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Black v. Black

Court of Appeals of Texas, Texarkana
May 8, 1984
673 S.W.2d 269 (Tex. App. 1984)

Summary

holding that issues related to conservatorship rights of appellant mother "died with her" and became moot upon her death

Summary of this case from Gonzales v. Gonzales

Opinion

No. 9237.

May 8, 1984.

Appeal from the 102nd District Court, Bowie County, Leon Pesek, J.

John Mercy, J. Hawley Holman, Texarkana, for appellant.

Lynn Cooksey, Texarkana, for appellee.


Patricia Lynn Black perfected an appeal from a judgment granting Anthony Joe Black a divorce and custody of their small child. Thereafter, but before oral argument, Patricia Lynn Black died. Responding to a motion to dismiss for mootness, the attorney who had represented Patricia Black on appeal claims that the best interest of the child dictates that the issues raised on appeal be determined. We determine that the appeal is moot.

Ordinarily an appeal is not abated due to the death of a party after the rendition of judgment. Tex.R.Civ.P. 369. However, when a case becomes moot after judgment the appeal should be dismissed. Dunn v. Dunn, 439 S.W.2d 830 (Tex. 1969); Texas Foundries v. International Moulders Foundry Worker's Union, 151 Tex. 239, 248 S.W.2d 460 (1952). An exception exists in this and most jurisdictions: in an appeal from a divorce judgment, the death of a party during an appeal does not preclude an adjudication of the appeal's merits, if the divorce decree affects property rights of the parties. Dunn v. Dunn, supra. The attorney for the deceased appellant advances no argument that the property rights of the Blacks are affected. Nor does this record support that argument.

Patricia Lynn Black's efforts to gain managing conservatorship of her child died with her. Because she is dead the matters which she has raised on appeal — not relating to property rights — are moot. Calaway v. Calaway, 218 S.W.2d 315 (Tex.Civ.App. — Fort Worth 1949, writ dism'd); Ledbetter v. Ledbetter, 229 S.W. 576 (Tex.Civ.App. — Austin 1921, no writ). See also Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 (1901).

Further indicative of the mootness of this custody quest is the fact that our decision of this appeal would have no effect on the custody of the minor child. Anthony Joe Black, as the surviving parent, would be entitled to possession of his child. Greene v. Schuble, 654 S.W.2d 436 (Tex. 1983); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953).

We dismiss this moot appeal.


Summaries of

Black v. Black

Court of Appeals of Texas, Texarkana
May 8, 1984
673 S.W.2d 269 (Tex. App. 1984)

holding that issues related to conservatorship rights of appellant mother "died with her" and became moot upon her death

Summary of this case from Gonzales v. Gonzales

concluding that litigation pertaining to the custody of a child did not involve property rights, and as such, the litigation was mooted by the death of one of the spouses

Summary of this case from In re Fannette
Case details for

Black v. Black

Case Details

Full title:Patricia Lynn BLACK, Appellant, v. Anthony Joe BLACK, Appellee

Court:Court of Appeals of Texas, Texarkana

Date published: May 8, 1984

Citations

673 S.W.2d 269 (Tex. App. 1984)

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