in the Interest Of: M.A.C. and M.T.C.

• Court: Court of Appeals of Texas
• Decided: April 3, 2015
• Docket: 05-14-00351-CV
• Status: Published

Opinion

REVERSED and VACATED; and Opinion Filed April 3, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00351-CV

IN THE INTEREST OF M.A.C. AND M.T.C.

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-50420-2012

MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Schenck In this divorce proceeding, Appellant (“Father”) contends that the trial court lacked

jurisdiction to render a First Amended Final Decree of Divorce on January 22, 2014. We agree

that the First Amended Final Decree of Divorce was rendered after the trial court’s plenary

jurisdiction expired. We reverse and vacate the trial court’s judgment. Because all issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Appellee (“Mother”) filed an original petition for divorce in 2012. The matter was tried

before the court, and the trial court rendered a Final Decree of Divorce on August 28, 2013. On

September 6, 2013, Mother filed both a motion for new trial and a motion to modify, reform, and

correct the judgment. The clerk’s record does not contain an order on either motion. Instead, the

record contains a “First Amended Final Decree of Divorce” (the “First Amended Decree”) which recites, “Judgment rendered on July 15, 2013, but signed on January 22, 2014.” Father filed a

motion for new trial on January 27, 2014, alleging that the trial court’s plenary power had

expired at the time the First Amended Decree was rendered. 1 The trial court did not rule on this

motion. This appeal followed.

STANDARD OF REVIEW

Whether the trial court properly exercised its plenary power is a question of law we

review de novo. See Coleman v. Sitel Corp., 21 S.W.3d 411, 413 (Tex. App.—San Antonio

2000, no pet.) (question of trial court’s jurisdiction to vacate judgment after plenary power

expired was question of law reviewed de novo).

DISCUSSION

In three issues, Father contends the trial court erred by rendering the First Amended

Decree after the trial court’s plenary power had expired; by rendering the First Amended Decree

when no new trial actually occurred; and by failing to enter findings of fact and conclusions of

law relating to the First Amended Decree after his timely request.

A trial court retains plenary jurisdiction over a case for thirty days after signing the

judgment. TEX. R. CIV. P. 329b(d). During those thirty days, any party may file a motion for

new trial or a motion to modify, correct, or reform a judgment. TEX. R. CIV. P. 329b(a), (g); see

also Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 301 (Tex. 2000). Here,

Mother timely filed motions for new trial and to modify the judgment. The record does not

contain a written order from the trial court on either motion. Mother contends the trial court

granted her motion to modify the judgment in a hearing on September 26, 2013. However, there

is no written order reflecting this ruling until the trial court’s January 22, 2014 First Amended

1 The record also reflects that on December 19, 2013, Father filed a motion to transfer the case to Denton County, and the trial court granted this motion by written order on January 31, 2014.

–2– Decree. Rule 329b(c) requires a written order to grant a new trial or to modify, correct, or

reform a judgment. In re Lovito-Nelson, 278 S.W.3d 773, 775 (Tex. 2009) (orig. proceeding).

Without a written order, the motions were overruled by operation of law on November

11, 2013, seventy-five days after the judgment was signed. TEX. R. CIV. P. 329b(c). The filing

of the motions extended the court’s plenary power until thirty days after the motions were

overruled by operation of law. TEX. R. CIV. P. 329b(e). Thus, the trial court retained its plenary

power until December 11, 2013, one hundred and five days after the judgment was signed. The

trial court’s First Amended Decree signed on January 22, 2014, forty-two days after the

expiration of the trial court’s plenary power, was void for lack of jurisdiction. See In re Green,

No. 05-13-00062-CV, 2013 WL 1274711, at *1–2 (Tex. App.—Dallas Mar. 22, 2013, orig.

proceeding) (mem. op.) (order signed by trial court after its plenary power expired, setting aside

final divorce decree and entering “clarified” final decree, was void).

Mother argues that her motion for new trial was “neither considered nor granted”; rather,

the court considered and ruled on her motion to modify, reform, or correct the judgment. But the

same rule applies to motions to modify under Rule 329b(g) as to motions for new trial under

Rule 329b(a); an order granting either must be written and signed. Faulkner v. Culver, 851

S.W.2d 187, 188 (Tex. 1993) (per curiam).

Mother also points to her October 28, 2013 “Motion to Sign First Amended Final Decree

of Divorce,” heard by the trial court on January 22, 2014. She argues, “[c]learly the Court did

not lose its plenary power as there were live pleadings, motions and settings pending during the

entire period argued by Appellant.” But the parties may not confer jurisdiction on the trial court

by agreement. See Gem Vending, Inc. v. Walker, 918 S.W.2d 656, 658 (Tex. App.—Fort Worth

1996, orig. proceeding) (parties cannot consent to give trial court more plenary power than it has

by rule); see also In re Lovito-Nelson, 278 S.W.3d at 775–76 (“bright line” rule requiring written

–3– order necessary, or “all sorts of conduct” could be argued to constitute grant of new trial). We

sustain Father’s first issue.

CONCLUSION

Because of our disposition of Father’s first issue, we need not reach Father’s second and

third issues. See TEX. R. APP. P. 47.1 (opinion must address issues “necessary to final

disposition of the appeal”). We reverse and vacate the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

140351F.P05

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

IN THE INTEREST OF On Appeal from the 199th Judicial District M.A.C. AND M.T.C. Court, Collin County, Texas Trial Court Cause No. 199-50420-2012. Opinion delivered by Justice Schenck, Justices Lang and Stoddart participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and VACATED.

It is ORDERED that appellant Michael Joseph Cox recover his costs of this appeal from appellee Brenda Jean Cox.

Judgment entered this 3rd day of April, 2015.

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