Opinion
No. 05-04-00542-CV
Opinion Filed March 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-53304-01.
Dismissed.
Before Justices MOSELEY, WRIGHT and LANG.
MEMORANDUM OPINION
This is an appeal of several trial court orders in a family law matter, including a Protective Order issued pursuant to Chapter 85 of the Texas Family Code. We must decide whether we have jurisdiction.
Appellant, Bryan Wade Bell, claims, among other things, that the trial court abused its discretion in entering the protective order. Bell alleges that there was no evidence to support the findings of family violence or the award of attorney's fees. Additionally, Bell claims that the trial court abused its discretion by ordering sanctions in the amount of three thousand six hundred dollars based on Bell's filing of a cross-motion to modify in suit affecting the parent-child relationship along with a motion for a social study and independent psychological evaluation. Bell claims that these sanctions were requested and awarded based on the theory espoused by appellee, Kimberlee Bustamente. In one of her arguments to the trial court, Bustamente asserted that because of the entry of the protective order, which has a duration of two years, the court was prohibited from modifying the protective order by statute for a period of one year. See Tex. Fam. Code. Ann. § 85.025(b) (Vernon 2002). Hence, Bustamente claimed Bell's motions were groundless, or brought in bad faith, and sanctionable.
Bustamente responds by asserting that we have no jurisdiction to address the protective order since both Bustamente and Bell filed motions to modify, issues in those motions are unresolved, and those motions remain pending before the trial court. Bustamente cites us authorities and argues that unless the rendition of the protective order resolved all issues, the appeal is premature, not final and appealable. Ulmer v. Ulmer, 130 S.W.3d 294, 296 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Cooke v. Cooke, 65 S.W.3d 785, 787-88 (Tex.App.-Dallas 2001, no pet.); B.C. v. Rhodes, 116 S.W.3d 878, 881-82 (Tex.App.-Austin 2003, no pet.). The record reflects that based upon Bustamente's motion to dismiss or abate the motions pending appeal, the trial court ordered that the motions be abated.
As rejoinder, Bell claims that all custody issues are effectively resolved since, by entering the protective order, the trial court severely limited Bell's visitation rights for a period of two years. The amount of time he would be allowed to visit with the child was substantially reduced to two hours a week, with an additional two hours under certain circumstances, subject to the supervision of a designated person.
A review of Bustamente's motion shows that, among other requests, Bustamente sought: (1) Bell's access to the child be denied or reduced and supervised; (2) a security bond be required of Bell respecting performance of the court's orders; (3) support payments be increased; and (4) attorney's fees, expenses, costs, and interest. In his motion, Bell sought, among other things, to be appointed as sole managing conservator or, if he and Bustamente remained joint managing conservators, that he have exclusive right to establish the child's primary residence. The protective order concluded, among other things, that Bell had committed family violence and that family violence was likely to occur in the future. Also, the protective order required, inter alia, that Bell's visitation be limited as set out above and that Bell was not to communicate with Bustamente, her family, or the child except through Bell's attorney. Finally, the order abating the motions awarded attorney's fees to Bustamente and against Bell of three thousand six hundred dollars.
Bell tells us that he is without remedy if he cannot obtain review of the protective order at this time. He claims the trial court abused its discretion in entering the protective order, that the trial court has effectively barred him from proceeding with his motion because of the limitations of review of the protective order provided in section 85.025(b), and that he is being unlawfully sanctioned for asserting his rights. Bustamente argues that Bell could have sought severance of the protective order to make it final, but did not do so. We interpret Bell's argument to claim that any attempt to sever would be futile. However, we do not make any conclusions respecting the merits of Bell's claims other than those set out above as to jurisdiction. We simply note in passing that a party may seek a remedy pursuant to mandamus where the authorities provide for such relief. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
We conclude that, under the authorities, we do not have jurisdiction to review the protective order by direct appeal at this time since all issues between the parties have not been resolved. See Ulmer, 130 S.W.3d at 296. This appeal is dismissed.