Marshall, Demetri v. Wilkes, Lenora

• Court: Court of Appeals of Texas
• Decided: September 30, 2003
• Docket: 14-02-00163-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 30, 2003

Dismissed and Memorandum Opinion filed September 30, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00163-CV

DEMETRI MARSHALL, Appellant

V.

LENORA WILKES, Appellee

____________________________________________________

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 96-32216

M E M O R A N D U M   O P I N I O N

            Appellant Demetri Marshall contends in nine issues that the trial court erred in modifying his child support obligations and in holding him in contempt of court.  We dismiss for want of jurisdiction.

            As a preliminary matter, appellee Lenora Wilkes asserts Marshall has filed an untimely appeal that we must dismiss.  We agree.  The associate judge who heard this case orally ruled on child support modification and contempt on August 29, 2001 in the presence of the parties and their attorneys.  An associate judge may give the parties notice of the substance of his or her report in open court by oral statement.  Tex. Fam. Code Ann. § 201.011(c)(1) (Vernon 2002).  Such notice triggers a three-day deadline to file a notice of appeal with the referring court.  Tex. Fam. Code Ann. § 201.015(a) (Vernon 2002).  Marshall waited to file his notice of appeal of the associate judge’s ruling until September 27, 2001, far beyond the three days allowed by statute. 

            By that time, the referring court had already adopted the associate judge’s ruling.  See Tex. Fam. Code Ann. § 201.014 (Vernon 2002) (if no written notice of appeal has been filed, referring court may adopt the associate judge’s report).  Thus, the referring court’s order, dated September 25, 2001, was the final judgment, and appellate deadlines began to then run.  See Tex. Fam. Code Ann. § 201.016(b) (Vernon 2002) (date of referring court’s judgment is the controlling date for appeal to the court of appeals).  Because Marshall did not file a motion for new trial, he needed to perfect appeal within thirty days of the judgment.  Tex. R. App. P. 26.1.  Marshall filed his notice of appeal more than thirty days after judgment, on December 14, 2001.  This was too late to perfect appeal.

            The time for perfecting appeal is jurisdictional.  Velasquez v. Harrison, 934 S.W.2d 767, 770 (Tex. App.—Houston [1st Dist.] 1996, no writ).  We have no jurisdiction to address an untimely appeal.  See id. at 770–71.  Accordingly, we dismiss this appeal for want of jurisdiction.  Tex. R. App. P. 42.3.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed September 30, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.