Paul Fowler v. Sheila Fowler and Interest of K.J.F. and N.P.F., Children

• Court: Court of Appeals of Texas
• Decided: January 14, 2004
• Docket: 10-01-00294-CV
• Status: Published

Opinion

Paul Fowler v. Sheila Fowler et al

IN THE

TENTH COURT OF APPEALS

No. 10-01-294-CV

     PAUL FOWLER,

                                                                              Appellant

     v.

     SHEILA FOWLER,

                                                                              Appellee

AND IN THE INTEREST OF

K.J.F. AND N.P.F., CHILDREN

From the 87th District Court

Leon County, Texas

Trial Court # 6354-B

DISSENTING OPINION

      The majority has misunderstood the trial court’s Order, resulting in an improper dismissal of the appeal. Therefore, I dissent.

      In the same Texas court that issued the divorce decree, Paul Fowler filed a motion to modify possession to be appointed sole managing conservator and a motion for contempt due to violations of the possession order in the decree. Respondent in the motions was his former wife, Sheila, who after the divorce had moved with their children to Mississippi. Sheila responded by filing a special appearance and, under applicable provisions of the UCCJEA, a plea to the jurisdiction and a plea of forum non conveniens. Tex. Fam. Code Ann. §§ 152.202(a)(1), 152.207 (Vernon 2002). On July 20, 2001, the trial court issued a one-page Order granting the plea to the jurisdiction.

      The Order specifically says “the Plea to the Jurisdiction filed herein by Sheila Fowler is sustained on the above grounds.” The court stated in the Order that it had “determined and concluded that substantial evidence is no longer available in the State of Texas concerning the children’s care, protection, training and personal relationships as required by Section 152.202(a)(1) Texas Family Code.” Thus, by its Order the court dismissed the suit under the UCCJEA for want of jurisdiction. Id. § 152.202(a)(1). The Order also awarded attorney’s fees, completing all pending matters. In the Order, the trial court also found that it “is an inconvenient forum under the circumstances and that a Court in the State of Mississippi is a more appropriate forum.” The court did not, however, refer to the plea for forum non conveniens in the decretal portion of the Order, which refers only to the plea to the jurisdiction.

      A dismissal for want of jurisdiction is a final, appealable order, because the entire cause is dismissed, and thus all claims of all parties are disposed of. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Lucas v. Burleson Publ. Co., 39 S.W.3d 693, 695 (Tex. App.—Waco 2001, no pet.). In addition, this Order contains a Mother Hubbard clause. Although, absent a trial on the merits, inclusion of the clause does not necessarily indicate that the court intended the order to be final, in the context of a dismissal for want of jurisdiction, which disposes of all claims and parties, the clause shows the court’s intent of finality. See Lehman, 39 S.W.3d at 203-04.

      Paul has appealed from a final, appealable Order. Therefore, we should address his issues on appeal. Because the majority holds otherwise, I dissent.

                                                                   BILL VANCE

                                                                   Justice

Dissenting opinion delivered and filed January 14, 2004