Opinion
No. 05-10-01053-CV
Opinion issued February 14, 2011.
On Appeal from the 255th Judicial District Court Dallas County, Texas, Trial Court Cause No. 06-17012-S.
Before Chief Justice WRIGHT and Justices O'NEILL and LANG-MIERS.
MEMORANDUM OPINION
This is an appeal from an order on petition for enforcement of child custody determination. Concluding the appealed order is not a final judgment and not an order that can be challenged by interlocutory appeal, we dismiss the appeal for want of jurisdiction.
Background
Appellant Mother and appellee Father were divorced in September 2008 and named joint managing conservators of their minor son, K.N.K., with Mother having the exclusive right to designate his primary residence. In July 2009, Father petitioned to modify the conservatorship orders, seeking to be named sole managing conservator with the right to designate K.N.K's primary residence. The following month, the trial court signed default temporary orders granting Father the relief requested and, in December 2009, the trial court signed a default judgment. Mother successfully moved to set aside the judgment and for a new trial, and five months later petitioned for enforcement of the original custody determination. Relying on the enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act found in chapter 152 of the Texas Family Code, Mother argued that, in accordance with the divorce decree, she was entitled to immediate possession of the child. See Tex. Fam. Code Ann. § 152.301- 152.317 (Vernon 2008). Mother maintained the divorce decree, and not the August 2009 temporary orders, became the controlling order when the trial court granted the new trial. Mother reasoned that the temporary orders were not controlling because they "expired on their own terms" when the trial court signed the modification order in December 2009. Rejecting Mother's argument, the trial court denied the petition and specifically found that the temporary orders "remain[ed] in full force and effect."
Mother immediately filed a petition for writ of mandamus. See In re Khanna, No. 05-10-00975-CV, 2010 WL 3245454 (Tex. App.-Dallas Aug. 18, 2010, orig. proceeding). Concluding Mother had not shown she was entitled to the relief requested, we denied the petition. Id. Mother then filed this appeal, specifically challenging the denial of expedited enforcement of the original custody orders as well as the finding concerning the temporary orders.
Because it appeared we had no jurisdiction over the appeal, we directed the parties to file letter briefs addressing our concern. Mother complied; Father did not respond.
Discussion
Our jurisdiction over appeals is established exclusively by constitutional and statutory enactments. Beckham Grp., P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.). Unless an interlocutory appeal is specifically authorized by the constitution or statute, we have jurisdiction only over appeals taken from final judgments, that is, from judgments disposing of all pending parties and claims. Id.
Here, when the trial court set aside the December 2009 default judgment, it returned the parties to the position they occupied before rendition of the judgment and left the case as if no judgment had been entered. See Curry v. Bank of Am., N.A., 232 S.W.3d 345, 351 (Tex. App.-Dallas 2007, pet. denied). In other words, it returned the parties to a position defined by the temporary orders and subject to Father's pending petition to modify the parent-child relationship. Accordingly, it was an interlocutory order, not a final judgment, and appealable only if authorized by the constitution or statute. With the exception of an order appointing a receiver, however, an interlocutory order in a family law case is not appealable. See Mason v. Mason, 256 S.W.3d 716, 718 (Tex. App.-Houston [14th Dist.] 2008, no pet.)
In concluding the challenged order is interlocutory and not appealable, we necessarily reject Mother's argument in her jurisdictional letter brief that we have jurisdiction over the appeal based on the denial of her petition for writ of mandamus. Mother asserts that our denial of the writ petition on the ground that she had not shown she was entitled to the relief requested was tantamount to holding "that normal appeal (and not mandamus) was the appropriate avenue by which to seek review of a void temporary interlocutory order rendered in a family-law case." We disagree. While mandamus relief is inappropriate when an adequate remedy by appeal exists, it is also inappropriate when relator has not shown a clear abuse of discretion by the trial court. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Nothing in this Court's opinion in In re Khanna suggests the Court determined mandamus was not the proper procedural avenue for relief.
Because there is no final judgment nor statutory basis for an interlocutory appeal, we lack jurisdiction and dismiss the appeal.