John Desmarais v. Unknown

• Court: Court of Appeals of Texas
• Decided: June 30, 2023
• Docket: 03-23-00262-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00262-CV

John Desmarais, Appellant

v.

Unknown, Appellee 1

FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 199704, THE HONORABLE GORDON G. ADAMS, JUDGE PRESIDING

MEMORANDUM OPINION

On April 10, 2023, appellant John Desmarais filed a notice of appeal. Desmarais

appeals from a final divorce decree signed sometime in 2004. 2 The notice of appeal was due to

be filed within 30 days of its signing. See Tex. R. App. P. 26.1 (requiring notice of appeal to be

filed within 30 days after judgment is signed). It was not filed until April 10, 2023.

Desmarais also included a March 4, 2023 child-support arrearage notice with the

notice of appeal. This Court’s jurisdiction is limited to appeals in which there exists a final or

appealable judgment or order, and a child-support arrearage notice is not an appealable

interlocutory order. See Tex. Civ. Prac. & Rem. Code § 51.012; Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001) (explaining that appeal generally may only be taken from final

1 We have designated the appellee as “unknown” because in the absence of the clerk’s record the Court is unable to discern from appellant’s notice of appeal the name of the appellee. 2 As explained in more detail below, the clerk’s record is overdue, and the notice of

appeal does not state the exact date of the 2004 divorce decree from which Desmarais appeals. judgment that disposes of all pending parties and claims in record unless statute provides for

interlocutory appeal); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (“Appellate courts

have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly

provides appellate jurisdiction.”); see also Tex. Civ. Prac. & Rem. Code § 51.014 (specifically

permitting appeal of various interlocutory orders but not permitting appeal from grant or denial

of child-support arrearage notice).

On June 13, 2023, after an initial review of the notice of appeal, the Clerk of this

Court sent Desmarais a letter informing him that the Court appears to lack jurisdiction over the

appeal for the reasons stated above and requesting a response informing us of any basis that

exists for jurisdiction. To date, Desmarais has not responded. Desmarais’s April 10, 2023 notice

of appeal is untimely and the child-support arrearage notice is not an appealable order; we

therefore lack jurisdiction over this appeal. See Tex. R. App. P. 25.1(b) (providing that filing

notice of appeal invokes appellate court’s jurisdiction); id. R. 2 (establishing that appellate court

may not alter time for perfecting appeal in civil case). Accordingly, we dismiss the appeal for

want of jurisdiction. See id. R. 42.3(a).

In addition, the clerk’s record in this appeal was due for filing in this Court on

May 10, 2023. On May 31, 2023, we notified Desmarais that no clerk’s record had been filed

due to his failure to pay or make arrangements to pay the trial clerk’s fee for preparing the

clerk’s record. The notice requested that Desmarais make arrangements for the clerk’s record

and submit a status report regarding this appeal by June 9, 2023. Further, the notice advised

Desmarais that his failure to comply with this request could result in the dismissal of the appeal

for want of prosecution. To date, Desmarais has not filed a status report or otherwise responded

to this Court’s notice, and the clerk’s record has not been filed.

2 If a trial-court clerk fails to file the clerk’s record due to an appellant’s failure to

pay or make arrangements to pay for the clerk’s fee for preparing the record, the appellate court

may dismiss the appeal for want of prosecution unless the appellant was entitled to proceed

without payment of costs. Tex. R. App. P. 37.3(b). In this case, Desmarais has not established

that he is entitled to proceed without payment of costs. See Tex. R. Civ. P. 145. Because

Desmarais has failed to pay or make arrangements to pay the clerk’s fee for preparing the clerk’s

record, this appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).

__________________________________________ Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Dismissed for Want of Jurisdiction

Filed: June 30, 2023