in the Interest of C.L.W. and H.A.W., Minor Children

Opinion

NO. 07-05-0093-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 12, 2006

______________________________

IN THE INTEREST OF C.L.W. AND H.A.W., MINOR CHILDREN

_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 96-556,965; HONORABLE MACKEY K. HANCOCK, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Lee Sheridan Wikle challenges an order requiring him to pay child support

arrearages in accordance with an agreed order of modification. Because the order is

interlocutory, we must dismiss the appeal for want of jurisdiction.

Lee and Leigh Anne Wikle were divorced by a decree signed October 22, 1997. The

original decree of divorce obligated Lee to pay child support in an amount in accordance with

the Family Code guidelines, plus additional support of twenty-five percent of any bonuses Lee received from his employment. Then, on March 27, 2000, the court signed an agreed order1

modifying the amount and method of payment. Following the modification order, the parties

disagreed as to whether the effect of the additional support exceeded the Family Code

guidelines.2 On July 13, 2004, pursuant to the terms of the modified decree, Leigh filed a

motion to enforce the payment of child support and to modify of the terms of the decree

pertaining to possession of and access to the children and medical support. She further

requested an award of attorney’s fees.

On November 24, 2004, the trial court heard Leigh’s motion to compel child support per

the March 27, 2000 agreed order, but Leigh’s request for modification and attorney’s fees was

not presented or heard by the trial court at that time. Considering the matters presented and

the agreed order of March 27, 2000, by order signed on February 9, 2005, Lee was ordered

to pay $11,712.00 in child support arrearage. The order expressly concluded that

All other issues raised by the pleadings in this proceeding are reserved for determination of the Court on final hearing in this proceeding.

Lee subsequently filed this appeal, and Leigh has moved to dismiss.

By his brief, Lee questions whether the trial court erred in ordering that he pay child

support in excess of the statutory guidelines and in accordance with the agreed order of March

1 The order was approved as to form and substance by appellant and as to form by his former counsel. 2 Although not controlling here, the record suggests that Lee unilaterally ceased making support payments per the agreed order.

2 27, 2000. He also questions whether a court may retroactively alter a child support

determination. However, where, as here, there has not been a conventional trial on the merits,

an order or judgment is not final for purposes of appeal unless it actually disposes of every

pending claim and party or unless it clearly and unequivocally states that it finally disposes of

all claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 201 (Tex. 2001). Nothing

in this record indicates disposition of Leigh’s request to modify the decree or her request for

an award of attorney’s fees. To the contrary, the court’s February 9th order reserves other

issues for determination by the court on final hearing. Thus, the court’s order is interlocutory

and not subject to appeal. Therefore, this Court is without power to review it and has

jurisdiction only to dismiss the appeal. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789,

790 (Tex. 1965).

We have not overlooked Lee’s alternative request that the appeal be abated so that a

new order may be obtained; however, the procedure in Iacono v. Lyons, 6 S.W.3d 715

(Tex.App.–Houston [1st Dist.] 1999, order), disp. on merits, 16 S.W.3d 92 (Tex.App.–Houston

[1st Dist.] 2000, no pet.), is not appropriate here because the remaining issues are subject to

hearing and trial.

Accordingly, the appeal is dismissed for want of jurisdiction.

Don H. Reavis Justice