Summary
holding interlocutory declaratory judgment in divorce case unappealable
Summary of this case from Wright v. PayneOpinion
No. 08-07-00236-CV
October 11, 2007.
Appeal from the 65th District Court of El Paso County, Texas, (TC# 2004CM4522).
Before CHEW, C.J., McCLURE, and CARR, JJ.
MEMORANDUM OPINION
Pending before the Court is Appellee's motion to dismiss this appeal for lack of jurisdiction. Raymundo Beltran, Jr. argues that this Court does not have jurisdiction to consider Lilia Beltran's appeal, because it is based on an interlocutory declaratory judgment. Finding that the declaratory judgment has not been severed from the underlying divorce action, and that no final divorce decree has been entered, we agree that the declaratory judgment is interlocutory and will dismiss the appeal for want of jurisdiction.
This case began as a divorce action. Raymundo Beltran, Jr. filed an original petition for divorce from Lilia Beltran on July 16, 2004. Julian Beltran is the minor child of Raymundo and Lilian Beltran. During the divorce proceedings, a plea in intervention was filed on Julian's behalf asking the trial court to enter a judgment declaring that one-half of Beltcon Construction, Inc., belonged solely to Julian, and was not community property subject to division in the divorce. The trial court entered a declaratory judgment in Julian's favor on July 13, 2007, finding that one-half of the business had been transferred to Julian in 1991, and that the interest had been held in trust by Raymundo since the transfer. The judgment also states that the court's decision disposes of several other causes of action pleaded by Lilia Beltran alleging that Raymundo Beltran, Jr. had defrauded and conspired against the community estate by transferring shares of Beltcon Construction to Julian. Following the declaratory judgment, Raymundo and Lilia entered into a mediated settlement agreement regarding the property division and child custody and support. However, the record does not contain a final divorce decree, and there is no record that the declaratory judgment has been severed from the divorce action.
Appellate courts generally have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable. See Tex. Civ. Prac. Rem. Code Ann. § 51.012 and § 51.014; Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.-El Paso 1997, no writ). Given that the trial court has not yet entered a final decree of divorce in this case, the declaratory judgment from which Lilia Beltran has attempted to appeal, is an interlocutory order. See Tex. Fam. Code Ann. § 7.001 (requiring that a decree of divorce include a just and right division of the community estate); Tex. Fam. Code Ann. § 7.006(b) (if court determines that terms of settlement agreement are just and right court is bound by terms of agreement and may set forth agreement in full or incorporate agreement by reference in final decree of divorce). We are unaware of a statutory provision providing us with jurisdiction to consider such an appeal. Therefore, Appellee's motion is granted, and we dismiss the appeal for lack of jurisdiction.