Opinion
NO. 01-18-00644-CV
03-26-2019
ESTELLE STACEY CASEY, Appellant v. PATRICK CASEY, Appellee
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 38755
MEMORANDUM OPINION
Appellant, Estelle Stacey Casey, attempts to appeal from the trial court's interlocutory "Order on Motion for Enforcement of Possession or Access" in this modification proceeding. Appellee, Patrick Casey, filed a motion to dismiss for want of jurisdiction because the contempt order is not appealable. We agree with appellee, grant the motion, and dismiss this appeal for want of jurisdiction.
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Generally, "a notice of appeal must be filed within thirty days after the judgment is signed." TEX. R. APP. P. 26.1(a). The time to file a notice of appeal is extended to ninety days after the signing if any party files a timely motion for new trial, motion to modify the judgment, motion to reinstate, or a request for findings of fact and conclusions of law that is either required by the Rules of Civil Procedure or properly considerable by the appellate court. TEX. R. APP. P. 26.1(a)(1-4).
We are authorized by statute to consider an appeal from a "final order" rendered under Title 5 of the Family Code. See TEX. FAM. CODE ANN. § 109.002(b) (West 2014) ("An appeal may be taken by any party to a suit from a final order rendered under this title."); cf. TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)-(13) (West 2014) (listing appealable interlocutory orders); see, e.g., Brejon v. Johnson, 314 S.W.3d 26, 33 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Generally, appellate courts have jurisdiction only over appeals from final judgments or orders. See Lehmann, 39 S.W.3d at 195; N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). To be final, a judgment or order must dispose of all issues and parties in a case. Aldridge, 400 S.W.2d at 895.
After Estelle and Patrick divorced in 2008, Patrick was awarded primary custody of the parties' youngest child, C.C., who was still a minor child under the jurisdiction of the trial court when it signed two temporary orders in 2012 and January 2018 and a Rule 11 agreement in February 2018. On March 13, 2018, Estelle filed a "Motion for Enforcement of Possession and Access and Order to Appear," seeking to enforce those two orders and the Rule 11 agreement by holding Patrick in contempt for allegedly committing seventeen violations and to have him jailed or fined.
Following an evidentiary hearing on Estelle's motion for enforcement, the trial court orally denied the motion. The trial court signed an order denying Estelle's motion for contempt on April 30, 2018, finding that "all of the violations in Movant's Motion for Enforcement of Possession or Access are not true and therefore the motion is denied." The trial court also ordered Estelle to pay $4,525.00 in attorney's fees, expenses, and costs to reimburse Patrick's counsel.
On May 24, 2018, Estelle filed a motion for new trial, challenging only the trial court's finding of no contempt. On July 13, 2018, Estelle filed a timely notice of appeal from the order denying the contempt motion, again challenging only the finding of no contempt. See TEX. R. APP. P. 26.1(a)(1).
After Estelle filed a brief, Patrick filed a motion to dismiss this appeal for lack of jurisdiction in this Court, contending that, because a contempt action is quasi-criminal in nature and jeopardy attaches, the trial court's finding of "not guilty" of contempt is not appealable. See Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967); Ex parte Harwell, 538 S.W.2d 667 (Tex. App.—Waco 1976, pet. denied). Estelle responded in opposition, contending that Patrick's motion arguing that "contempt actions are quasi[-]criminal in nature and that jeopardy attaches is not a legal argument and the Court should not dismiss an appeal based on those statements."
Although Patrick may have cited inapposite authority to support his motion to dismiss, this Court has a duty to assess its own jurisdiction sua sponte. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004); Ward v. Lamar Univ., 484 S.W.3d 440, 450-51 (Tex. App.—Houston [14th Dist.] 2016, no pet.). This Court "has jurisdiction to hear an appeal when the 'issues on appeal do not assert that the trial court erred in refusing to hold [appellee] in contempt of court.'" Marcus v. Smith, 313 S.W.3d 408, 415 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (quoting In re W.J.B., 294 S.W.3d 873, 878 (Tex. App.—Beaumont 2009, no pet.)). However, an "order finding a party not in contempt is not a final, appealable judgment." Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985). "'Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable.'" Marcus, 313 S.W.3d at 415 (quoting Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied)).
Contempt proceedings, whether the court grants or denies the motion, are not appealable because they "are not concerned with disposing of all claims and parties before the court, as are judgments; instead, contempt proceedings involve a court's enforcement of its own orders, regardless of the status of the claims between the parties before it." In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915-16 (Tex. App.—Fort Worth 2007, orig. proceeding); Hooper v. Hooper, No. 14-09-01024-CV, 2011 WL 334198, at *1 (Tex. App.—Houston [14th Dist.] Feb. 3, 2011, no pet.) (mem. op.) (dismissing for want of jurisdiction appeal from denial of contempt motion seeking to enforce child support order). "A contempt judgment may be attacked by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved), see Cadle, 50 S.W.3d at 671; however, because a contempt order is not a final judgment, a remedy by appeal does not lie." In re Office of Attorney Gen. of Tex., 215 S.W.3d at 916 (citing Lehmann, 39 S.W.3d at 195). Thus, because this is an appeal of the trial court's order finding no contempt, we must dismiss this appeal for want of jurisdiction. See Norman, 692 S.W.2d at 655; Marcus, 313 S.W.3d at 415; Hooper, 2011 WL 334198, at *1.
Accordingly, we grant Patrick's motion and dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a); 43.2(f).
PER CURIAM Panel consists of Justices Keyes, Higley, and Landau.