in the Matter of the Marriage of Daisy Joanna Mendoza and Adrian Joe Mendoza and in the Interest of E.M., a Child

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00336-CV

IN THE MATTER OF THE MARRIAGE OF DAISY JOANNA MENDOZA AND ADRIAN JOE MENDOZA AND IN THE INTEREST OF E.M., A CHILD

On Appeal from the County Court at Law No. 2 Randall County, Texas Trial Court No. 75,119-L2, Honorable Matthew C. Martindale, Presiding

February 23, 2021 ORDER REINSTATING AND DISMISSING APPEAL Before QUINN, C.J., and PARKER and DOSS, JJ.

Adrian Joe Mendoza filed a notice of appeal from the trial court’s Final Decree of

Divorce. The trial court later granted a modification to the divorce decree within its plenary

power but did not issue a modified, final judgment. On appeal, we remanded the cause to

allow Adrian the opportunity to secure a final judgment from the trial court. Because Adrian

has failed to do so within the time provided, we reinstate the cause and dismiss the

premature appeal for want of jurisdiction. Background

On June 24, 2019, the trial court signed the Final Decree of Divorce dissolving the

marriage of Adrian and Daisy Joanna Mendoza. Adrian timely filed a motion for new trial

and motion to modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(a), (g).

At the hearing on the motions, Adrian and Daisy agreed to modify the decree of divorce

to include the agreed start date for child support, the parties’ retirement accounts, vehicles

in Adrian’s possession, the business known as “APR1,” and APR1’s associated business

debt. The trial court orally granted Adrian’s motion to modify the decree in accordance

with the parties’ agreement but took Adrian’s request to include extended visitation

provisions under advisement. Adrian withdrew his motion for new trial at the hearing.

Adrian’s motion to modify the judgment was overruled by operation of law on

September 9, 2019. See TEX. R. CIV. P. 4, 329b(c). On October 9, 2019, the trial court

signed an Order on Motion to Modify, Correct, or Reform Judgment, granting the

corrections agreed to by the parties and denying Adrian’s request to include the extended

visitation provisions. Although the trial court did not sign an amended divorce decree,

Adrian appealed. The record and briefs have been filed and the appeal has been

submitted to this Court.

Analysis

The trial court issued an order modifying the Final Decree of Divorce within its

plenary power. See TEX. R. CIV. P. 329b(d), (e) (providing that a trial court has plenary

power to vacate or modify its judgment within thirty days after the judgment is signed or

within thirty days after all timely motions for new trial or motions to modify are overruled).

2 When a judgment is modified or reformed, the signing of an amended judgment initiates

the running of a new period of the court’s plenary power over the modified judgment and

new appellate timetable tables. See TEX. R. CIV. P. 329b(h); TEX. R. APP. P. 4.3(a); Check

v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). Thus, without an amended divorce decree,

there is no modified, final judgment for this Court to review and Adrian’s appeal is

premature. See TEX. R. APP. P. 27.1(a), 27.2; Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001) (“the general rule, with a few mostly statutory exceptions, is that an

appeal may be taken only from a final judgment.”).

On December 23, 2020, we abated the appeal and remanded the cause to the trial

court to provide Adrian the opportunity to secure a modified, final judgment. See TEX. R.

APP. P. 27.2 (“An appellate court may allow an appealed order that is not final to be

modified so as to be made final and may allow the modified order and all proceedings

relating to it to be included in a supplemental record.”); Iacono v. Lyons, 6 S.W.3d 715,

717 (Tex. App.—Houston [1st Dist.] 1999, order) (per curiam) (abating appeal to allow

the trial court to cure jurisdictional defect when only the ministerial act of making the

judgment final remained). We admonished that if a final judgment or appealable order

was not filed in a supplemental clerk’s record with this Court by February 8, 2021, we

would reinstate the cause and dismiss the appeal for want of jurisdiction. To date, a

supplemental record containing a final judgment has not been filed and Adrian has had

no communication with this Court explaining the omission.1

1We have also been notified by the trial court clerk and coordinator that no modified judgment has been issued.

3 Because Adrian has not presented this Court with a final judgment or appealable

order, we dismiss the appeal for want of jurisdiction without prejudice to its refiling. See

TEX. R. APP. P. 42.3(a).

Per Curiam