Joe Allen Stowe v. Julia Kathleen Stowe

• Court: Court of Appeals of Texas
• Decided: August 5, 2004
• Docket: 13-03-00633-CV
• Status: Published

Opinion

NUMBER 13-03-633-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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JOE ALLEN STOWE,                                                         Appellant,

v.

JULIA KATHLEEN STOWE,                                                 Appellee.

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On appeal from the 257th District Court of Harris County, Texas.

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MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Castillo

Opinion Per Curiam

         Appellant, Joe Allen Stowe, was divorced by decree entered on September 4, 1998. On January 2, 2003, appellant filed a motion in the trial court seeking to modify a qualified domestic relations order allegedly entered on June 29, 1999. On July 23, 2003, appellant filed an “agreed motion for interlocutory appeal.” Appellant contends that he is entitled to an interlocutory appeal under section 51.014(d) of the civil practice and remedies code because his motion to modify has been pending for more than six months, therefore, the appellant “deems no Court activity means all things requested” are denied. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (Vernon Supp. 2004). We disagree, and dismiss this appeal.

         On June 3, 2004, the Clerk of this Court notified appellant that it did not appear that this Court had jurisdiction over the appeal, and requested correction of the defect within ten days. In response, 2appellant filed a request to file a “late motion to cure jurisdiction defect,” and on July 2, 2004, appellant filed a motion “to cure jurisdiction defect.” Appellant’s motion to cure jurisdiction reiterates the grounds for appeal previously raised in his motion for interlocutory appeal.

         According to section 51.014(d) of the civil practice and remedies code:

A district court may issue a written order for interlocutory appeal in a civil action not otherwise appealable under this section if:

(1)the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion;

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and

(3) the parties agree to the order.

See id. The record fails to substantiate appellant’s alleged right to an interlocutory appeal under this section because the record lacks a written order for interlocutory appeal issued by the district court. Moreover, although appellant’s motion is captioned as an “agreed motion for interlocutory appeal,” the certificate of conference states that a conference would be a “meaningless ritual” because the opposing party or counsel “can neither approve or disapprove” of this motion. The record thus fails to reflect the parties’ agreement as required by section 51.014(d), subsections (1) and (3).

         We find no basis for jurisdiction. The original divorce decree was entered on September 4, 1998, and the record on appeal does not contain any subsequent orders for enforcement or clarification. Accordingly, this appeal is dismissed. Any pending motions are likewise dismissed as moot.

                                                               PER CURIAM

Memorandum opinion delivered and filed

this the 5th day of August, 2004.