In the Interest of A.M.S. and E.C.S., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 2, 2023
• Docket: 05-22-00860-CV
• Status: Published

Opinion

Dismissed and Opinion Filed March 2, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00860-CV

IN THE INTEREST OF A.M.S. AND E.C.S., CHILDREN

On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 90244

MEMORANDUM OPINION Before Justices Partida-Kipness, Smith, and Breedlove Opinion by Justice Partida-Kipness We questioned our jurisdiction over this appeal from the trial court’s decree

of divorce as it appeared the notice of appeal was untimely. As directed by this

Court, appellant filed a letter brief addressing the jurisdictional issue.

When a party does not file a timely post-judgment motion extending the

appellate timetable, a notice of appeal is due thirty days after the judgment is

signed or, with an extension motion, fifteen days after the deadline. See TEX. R.

APP. P. 26.1(a), 26.3. Without a timely filed notice of appeal, this Court lacks

jurisdiction. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d

542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice

of appeal jurisdictional). The trial court signed the divorce decree on April 27, 2022. Appellant did

not file a request for findings of fact or motion for new trial or to modify the

judgment. However, at the time the decree was signed, a motion to modify

temporary orders filed by appellant was pending. The record reflects the trial court

heard the motion to modify on August 24, 2022 and dismissed it as moot on the

record.1 Appellant filed his notice of appeal on August 29, 2022.

In his letter brief, appellant asserts the underlying case was not closed until

August 24, 2022, when the trial court determined the motion to modify. Appellant

is incorrect. The temporary orders were rendered moot by the entry of the final

divorce decree, see In re M.L.R., No. 05-15-00647-CV, 2016 WL 5791530, at *2

(Tex. App.—Dallas Oct. 4, 2016, no pet.) (mem. op.) (internal citations omitted),

and no claims remained pending once the trial court signed the decree.

Accordingly, because appellant did not file a timely post-judgment motion

extending the appellate timetable, the notice of appeal was due on May 27, 2022

or, with an extension motion, Monday, June 13, 2022. See TEX. R. APP. P. 4.1(a),

26.1, 26.3. Because the notice of appeal was not filed until August 29, 2022, we

dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE 220860F.P05

1 A notation of the dismissal is also on the trial court’s Docket Sheet.

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF A.M.S. AND On Appeal from the 196th Judicial E.C.S., CHILDREN District Court, Hunt County, Texas Trial Court Cause No. 90244. No. 05-22-00860-CV Opinion delivered by Justice Partida- Kipness. Justices Smith and Breedlove participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

Judgment entered March 2, 2023

–3–