Opinion
No. 05-06-00966-CV
Opinion Issued August 20, 2008.
Original Proceeding and Appeal from the 301st District Court, Dallas County, Texas, Trial Court Cause No. 03-12312-T.
Before Justices WRIGHT, MOSELEY, and LANG-MIERS.
OPINION
In this consolidated proceeding, Leila Regenia Brown Hidalgo (Wife) filed a petition for writ of mandamus and an appeal from the trial court's orders regarding her motion to enforce the terms of a California divorce decree against Alvin Steve Hidalgo (Husband). We conclude the trial court had no jurisdiction, and therefore abused its discretion, when it signed an order purporting to confirm its previously vacated final judgment. We conditionally grant the petition for writ of mandamus and dismiss the appeal for want of jurisdiction.
Background
Husband and Wife were divorced in California in 2002. Their divorce decree incorporated a marriage settlement agreement between the parties that, among other things, provided for Husband to pay: (1) spousal maintenance to Wife; and (2) premiums on a life insurance policy covering Husband for Wife's benefit. In 2003, Wife filed the California decree in Texas as a foreign judgment, see Tex. Civ. Prac. Rem. Code Ann. § 35.003 (Vernon 2008), and a motion to enforce the decree against Husband for failure to pay spousal support. Thereafter, the parties signed an agreed order modifying the marriage settlement agreement, which the trial court signed on March 14, 2005. This order is not in dispute in this proceeding.
Months later, Wife again moved to enforce the divorce decree, claiming Husband failed to pay the premiums on the life insurance policy. She requested reimbursement for premiums she had paid to keep the policy in force and an order requiring Husband to continue paying the premiums. Husband disputed the motion, contending he was no longer required to pay the premiums because he retired in 2005. On January 3, 2006, the trial court signed an order denying Wife's motion for enforcement, stating that Husband's obligation to pay the insurance premiums terminated as of January 1, 2005.
Wife filed a motion for rehearing. She asked the court to change its January 3, 2006 order to state that in the event Husband returns to work before age 65, he will be required to pay spousal support and pay the premiums on a life insurance policy as required by the divorce decree.
On April 4, 2006, ninety-one days after the trial court signed the January 3, 2006 order, the trial court signed a written "Ruling." In that document, the court referenced its January 3, 2006 order, stated the court had jurisdiction under rule 329b, and "vacate[d] its prior ruling." The court found Husband was obligated to pay spousal support and maintain the life insurance policy until Wife's death. It also stated that Husband owed Wife all the premiums she had paid on the life insurance policy; the court stated this amount was approximately $7900 at the time of the December hearing, plus additional premiums up to the date of the ruling. The ruling also granted Wife attorneys' fees of $1150 against Husband.
Within thirty days of the April 4 ruling, Husband filed a motion for new trial and a motion to confirm the January 3, 2006 order, which the trial court granted on July 5, 2006. That order states:
The Court Grants the Respondent's Motion to Confirm the January 3, 2006 Order Denying Motion for Enforcement. The Court finds that the Petitioner's Motion for Rehearing filed January 9, 2006 did not extend the plenary power of this Court as it did not seek a substantive change in the Judgment and that the First Amended Motion for Rehearing filed March 22, 2006 was not timely. Accordingly, the Court lost jurisdiction on February 2, 2006. IF [sic] the motion were found to extend the plenary power of the Court under TRCP 329b, the Court finds that there was no Final Judgment entered before April 18, 2006 reflecting the April 4, 2006 Ruling.
The Court ORDERS that the January 3, 2006 Order Denying Motion for Enforcement is Confirmed as the Final Order of this Court and ORDERS that the April 4, 2006 Ruling is set aside.
Thereafter, Wife filed a notice of appeal and also filed a petition for writ of mandamus. We consolidated the original proceeding and the appeal. In a single issue, Wife contends the trial court abused its discretion in retroactively determining it lacked jurisdiction to render the final orders it intended to render. Wife contends: (1) her January 9, 2006 motion for rehearing extended the trial court's plenary power under rule 329b; (2) the April 4, 2006 ruling was an order vacating the January 3, 2006 judgment; and (3) the trial court's July 5, 2006 order setting aside the April 4, 2006 ruling and confirming the January 6, 2006 order as the final judgment of the court was void.
Standard of Review
Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. In re Bass, 113 S.W.3d 735, 738 (Tex. 2003) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Thus, evaluating whether mandamus relief should be granted requires that we determine whether the trial court abused its discretion and whether an adequate appellate remedy exists. Walker, 827 S.W.2d at 839.
Discussion
We begin with some preliminary observations. First, the California divorce decree, filed in Texas under the Uniform Enforcement of Judgments Act, has the same effect and is subject to the same procedures as a judgment of the Texas court where filed. See Tex. Civ. Prac. Rem. Code Ann. § 35.003(c). Second, in resolution of Wife's first motion to enforce that decree and with the consent of the parties, the trial court modified that judgment on March 14, 2005.
Third, there can be only one final judgment in a case. Tex. R. Civ. P. 301. However, the trial court retains both statutory and inherent power to enforce its judgment. See Tex. Fam. Code Ann. §§ 9.001-.014 (Vernon 2006); Tex. R. Civ. P. 308 ("the court shall cause its judgments and decrees to be carried into execution"); Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (courts have inherent power to enforce judgments); Hines v. Villalba, 231 S.W.3d 550, 553 (Tex.App.-Dallas 2007, no pet.) (same). To the extent an order enforcing a final judgment disposes of all the issues of all the parties before the court, that order also constitutes a final judgment for purposes of appeal. See Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985).
With this background in mind, we first address the effect of the January 3, 2006 order. That order constitutes the trial court's ruling disposing of all the issues of all the parties before it, namely: Wife's second motion to enforce a prior final judgment. Both parties treat that order as a final judgment. We agree. Thus we will refer to the January 3, 2006 order as a judgment.
We next examine Wife's "motion for rehearing" and decide whether it had the effect of extending the trial court's plenary power over the January 3, 2006 judgment. See Tex. R. Civ. P. 329b. We look to the substance of a pleading or motion, not its title, to determine its effect. Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (stating courts "look to the substance of a motion to determine the relief sought, not merely to its title"); Doctor v. Pardue, 186 S.W.3d 4, 16 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Husband argues the motion is neither a motion for new trial nor a motion to modify, correct, or reform the judgment. Tex. R. Civ. P. 329b(a), (g).
Although entitled a motion for rehearing, Wife's motion did not ask for a new trial or a new hearing on her enforcement motion. Rather, it argued the trial court's judgment should be changed to state that Husband will have the obligation to pay the premiums on a life insurance policy if he returns to work before age 65. We conclude the motion sought a substantive change to the January 3, 2006 judgment rendered by the trial court. Thus, her motion was a motion to modify the judgment under rule 329b(g) and had the effect of extending the trial court's plenary power over that judgment. Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 314 (Tex. 2000) (timely filed post-judgment motion seeking a substantive change in existing judgment qualifies as a motion to modify under Rule 329b(g)); see also Tex. R. Civ. P. 329b(g).
If not decided by a written order, a timely motion for new trial or to modify, correct, or reform the judgment is overruled by operation of law seventy-five days after the judgment is signed. Tex. R. Civ. P. 329(c). Wife's motion, which was not decided by a written order, was overruled by operation of law on March 19, 2006. However, the trial court retains plenary power over its judgment for an additional 30 days after the last timely filed motion for new trial or to modify the judgment is overruled. Tex. R. Civ. P. 329b(e). Thus, the trial court's plenary power over the January 3, 2006 judgment expired on April 18, 2006.
We now consider the trial court's April 4, 2006 "Ruling." Husband argues this document is not an order of the trial court but merely a letter requesting submission of a written order for the court's signature. We disagree. The ruling is not in the form of a letter to counsel, and it did not request either party to prepare and submit an order. Instead, it bears the trial court's caption, case name, and cause number at the top of the page. Moreover, it stated the action the court was taking, and was signed by the trial court and entered in the minutes of the court. Thus it is a written order of the trial court. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (order granting new trial must be written and signed; oral pronouncement and docket entry not sufficient); cf. Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex.App.-Austin 2004, no pet.) (letter stating court granted motion for new trial but directing attorney to prepare order for court's signature was not an order for rule 329b purposes).
The April 4, 2006 order expressly "vacate[d] its prior ruling," referencing the January 3, 2006 judgment. By vacating rather than modifying its judgment, the trial court effectively granted a new trial, which was within its power to do at that time. See Tex. R. Civ. P. 329b(e) (if motion for new trial is timely filed, trial court "has plenary power to grant new trial or to vacate, modify, correct, or reform the judgment" until thirty days after motion is overruled by signed written order or by operation of law), (g) (motion to modify, correct, or reform a judgment "shall extend the trial court's plenary power" in same manner as motion for new trial).
Normally, an order setting aside or vacating a judgment returns the parties to the position they occupied before rendition of the judgment and leaves the case as if no judgment had been rendered. Curry v. Bank of Am., N.A., 232 S.W.3d 345, 351 (Tex.App.-Dallas 2007, pet. denied). Both parties agree the April 4, 2006 order was not in itself a new final judgment disposing of all issues and parties. We agree. It does not contain express language indicating the trial court intended to dispose of all issues and parties. It finds that Husband was obligated to maintain the life insurance policy and states Husband owed Wife the premiums she had paid, but it did not calculate the total amount owed at the time of the order. Further, it did not dispose of Wife's request that Husband be held in contempt or award pre-and post-judgment interest and court costs.
We conclude the April 4, 2006 order was not itself a final judgment, but an interlocutory order vacating the January 3, 2006 judgment. The effect of this order was to return the motion for enforcement to the trial court's docket. Hunter v. O'Neill, 854 S.W.2d 704, 705 (Tex.App.-Dallas 1993, orig. proceeding) (order granting new trial is unappealable interlocutory order; case stands on docket as if no judgment had been rendered).
On July 5, 2006, 183 days after the judgment was signed, the trial court signed an order granting Husband's motion to confirm, setting aside the April 4, 2006 order and confirming the January 3, 2006 judgment. As we explained above, Wife's motion for rehearing sought a substantive change to the judgment and extended the court's plenary power under rule 329b. The trial court had plenary power on April 4, 2006 when it vacated the January 3, 2006 judgment. However, because the April 4, 2006 ruling was not a final judgment, the case remained on the trial court's docket. See Hunter, 854 S.W.2d at 705.
If a trial court vacates its judgment and grants a new trial within the period of its plenary power, it retains the power to vacate or "ungrant" the new trial and reinstate the original judgment only during the seventy-five day period when it continues to have plenary power over the original judgment, not afterward. Id. (citing Essex Intern. Ltd. v. Wood, 646 S.W.2d 322, 324-25 (Tex.App.-Dallas 1983, no writ)).
Read literally, section (e) of rule 329b gives the trial court an additional thirty days of plenary power but limits that power to ruling on motions for new trial that have been overruled, not granted.
Id. at 705-06; accord, In re Steiger, 55 S.W.3d 168, 171-72 (Tex.App.-Corpus Christi 2001, orig. proceeding) (citing Hunter and other cases).
An order signed outside the trial court's plenary power over the original judgment that attempts to vacate an order granting a new trial is "void" and subject to correction by mandamus. Gallagher v. Willows at Sherman Assisted Living Memory Care, LP, 244 S.W.3d 646, 648 (Tex.App.-Dallas 2008, no pet.) (citing Porter v. Vick, 888 S.W.2d 789, 789-90 (Tex. 1994) (per curiam)). This rule "protects the parties' rights to obtain complete appellate review by preventing the trial court from reinstating an old judgment when it is too late for the parties to appeal." Gallagher, 244 S.W.3d at 649 (citing Zapata v. ACF Indus., Inc., 43 S.W.3d 584, 585-86 (Tex.App.-Houston [1st Dist.] 2001, no pet.)).
The July 5, 2006 order was signed outside the time period within which a trial court may revive a prior judgment by vacating the order granting a new trial-seventy-five days from the date of the original judgment. See Porter, 888 S.W.2d at 789-90; Gallagher, 244 S.W.3d at 648. We thus conclude the July 5, 2006 order seeking to reinstate the January 3, 2006 judgment is void, and that the trial court abused its discretion by signing it. We also conclude Wife has no adequate remedy by appeal because there is no final judgment.
We sustain Wife's issue in the mandamus proceeding. Because there is no final judgment in the trial court we have no jurisdiction over Wife's appeal.
Conclusion
We conditionally grant the petition for writ of mandamus. We direct the trial court to vacate the July 5, 2006 "Order." The writ will issue only if the trial court fails to do so. We dismiss the appeal for lack of jurisdiction.