Azbill v. Dallas County Child Protective Services Unit of Texas Dept. of Human and Regulatory Services, 05-93-00301-CV

Citation860 S.W.2d 133
Decision Date22 June 1993
Docket NumberNo. 05-93-00301-CV,05-93-00301-CV
PartiesTina AZBILL and Terry Azbill, Sr., Appellants, v. DALLAS COUNTY CHILD PROTECTIVE SERVICES UNIT OF the TEXAS DEPARTMENT OF HUMAN AND REGULATORY SERVICES, Appellees.
CourtCourt of Appeals of Texas

Maridell J. Templeton, Michael L. Meripolski, Dallas, for appellants.

Michael D. Munden, Douglas Dunn (Guardian for the children), Dallas, for appellees.

Before BAKER, ROSENBERG, and MORRIS, JJ.

PRESUBMISSION OPINION

BAKER, Justice.

After reviewing the transcript, the Court questioned whether appellant Terry Azbill, Sr. timely perfected his appeal. We conclude that Terry timely perfected his appeal. However, in determining whether Terry timely perfected his appeal, we also conclude that the trial court's November 30, 1992 divorce decree is a nullity.

SUMMARY

Whether Terry timely perfected his appeal depends upon a series of jurisdictional questions: whether there is one or two judgments; if there are two judgments, which of the two is controlling; whether Tina's and Terry's motions for new trial attack the surviving final judgment; whether Terry's affidavit of inability to pay in lieu of appeal bond perfected his appeal; and, assuming Terry's affidavit of inability to pay in lieu of appeal bond did not perfect his appeal, whether Terry's cash deposit in lieu of appeal bond timely perfected his appeal. This opinion considers and resolves each of these issues in turn.

TWO PETITIONS

On October 9, 1991, the Dallas County Child Protective Services Unit of the Texas Department of Human Services, an agency of the State of Texas (the State), brought suit against Tina and Terry. The State sought to terminate the parental rights of Tina and Terry to their four children. The State filed the suit in the 305th District Court under cause number 91-877-X-305th.

On January 31, 1992, while the termination proceeding was pending, Tina filed a cross-action for divorce against Terry. 1 Tina filed this cross-action in the 305th District Court under the same cause number 91-877-X-305th.

TWO TRIALS

On September 8, 1992, the trial court conducted a jury trial on the termination proceeding and a bench trial on the divorce proceeding. Although the transcript shows that the trial court conducted separate trials, there is no order for separate trials.

THE TERMINATION JUDGMENT

On November 10, 1992, the trial court signed a judgment terminating Tina's and Terry's parental rights to their four children. This termination judgment appointed the State as permanent managing conservator. The termination judgment makes no reference to the divorce proceeding.

The first jurisdictional issue is whether the termination judgment was a final judgment. We hold that the termination judgment was final.

When determining finality, the first issue is whether a presumption of finality applies to the judgment in question. The Supreme Court of Texas has written:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966) (emphasis added). All claims not expressly disposed of are presumed denied. See Aldridge, 400 S.W.2d at 898.

The termination judgment was a product of a jury trial. The trial court rendered the termination judgment after it had set the case for a conventional trial on the merits. Nothing in the termination judgment is intrinsically interlocutory; the termination judgment reserves no issue for later disposition

                and makes no reference to any order for separate trials.  We hold that the Aldridge presumption of finality applies.  Applying this presumption, we conclude the termination judgment denied every claim not expressly disposed of, including all the claims Tina asserted in her divorce petition.  Aldridge, 400 S.W.2d at 898.   Because of the Aldridge presumption, Tina did not establish any grounds meriting a divorce.  See TEX.FAM.CODE ANN. § 3.01-3.07 (Vernon 1993).  Absent a divorce, a property division was unnecessary.    TEX.FAM.CODE ANN. § 3.63 (Vernon 1993).  In the termination judgment, the trial court terminated Tina's and Terry's parental rights.  That judgment appointed the State as permanent managing conservator.  Because of the termination judgment, no child conservatorship and support issues remained.    TEX.FAM.CODE ANN. §§ 3.55(b), 11.01(3) (Vernon Supp.1993).  The termination judgment was a final judgment
                
THE DIVORCE DECREE

On November 30, 1992, the trial court signed a second judgment divorcing Tina from Terry and dividing their property. The divorce decree makes no disposition of the custody of the four children. Because Tina and Terry were no longer "parents" of the children as defined by the Texas Family Code, no custody and support disposition was necessary. See TEX.FAM.CODE ANN. § 11.01(3) (Vernon Supp.1993). It does recite: "The Court finds that [Tina] and [Terry] are the [birth] parents of the following children.... The Parent-Child relationship between the children and the [birth] parents was terminated by Court Order dated November 10, 1992."

TWO JUDGMENTS

The trial court signed two judgments. There can be only one final judgment in a case. TEX.R.CIV.P. 301; Cavazos v. Hancock, 686 S.W.2d 284, 286 (Tex.App.--Amarillo 1985, orig. proceeding). We questioned whether there was any manner by which we could treat the two judgments as one. We further questioned whether we could treat the termination and divorce proceedings as independent and distinct for finality purposes. We conclude that we can do neither.

We note that had the termination judgment been interlocutory, it would have merged into the divorce decree. Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558, 560 (Tex.App.--Dallas 1987, writ ref'd n.r.e.) (op. on reh'g). This principle does not apply in this case because the termination judgment was not an interlocutory judgment. Had the trial court entered an order for separate trials or had the termination judgment reserved the divorce proceeding for later disposition, then the termination judgment would have been interlocutory under Aldridge. Under these circumstances, the termination judgment would have automatically merged into the divorce decree. Radelow-Gittens, 735 S.W.2d at 560.

We questioned whether the divorce decree incorporated the termination judgment into it by reference. Assuming the divorce decree's reference to the termination judgment incorporated the termination judgment into the divorce decree by reference, then the divorce decree may have modified and effectively replaced the termination judgment. Absent an incorporation by reference, the divorce decree and the termination judgment remain distinct judgments.

Courts construe orders and judgments under the same rules of interpretation as those applied to other written instruments. McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex.App.--Dallas 1987, no writ). Before one document incorporates a second document, the second document must unmistakably make the first document part of the second document. See Malone v. Shoemaker, 597 S.W.2d 473, 476 (Tex.Civ.App.--Tyler 1980, no writ); Taylor v. Republic Nat'l Bank, 452 S.W.2d 560, 563 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.). A mere reference to the first document is not an incorporation. See Trim v. Daniels, 862 S.W.2d 8, 10, at

Page 3 We questioned whether the trial court's de facto separate trials are sufficient to defeat the Aldridge presumption. Had the trial court signed an order for separate trials, the termination judgment would have been interlocutory. See Aldridge, 400 S.W.2d at 897-98. Our review of Aldridge indicates that simply conducting separate trials, as here, is not enough to overcome the Aldridge presumption. The Aldridge court required an "entered" order for separate trials. Aldridge, 400 S.W.2d at 897. After the trial court signs a judgment, the court clerk enters the signed judgment in the minutes of the court; "entered" is not synonymous with "signed" or "rendered." Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978). Our transcript does not contain an entered order for separate trials. The fact that the trial court conducted separate trials is not enough to overcome the Aldridge presumption.

                (Tex.App.--Houston [1st Dist.] 1992, n.w.h.);  Taylor, 452 S.W.2d at 563;  Schell v. Centex Materials Co., 450 S.W.2d  
                673, 676-77 (Tex.Civ.App.--Austin 1970, no writ). 2  The divorce decree merely refers to the termination judgment.  We conclude the trial court did not intend to incorporate the termination judgment into the divorce decree
                

We questioned whether the termination judgment and divorce decree were interlocutory because the trial court did not dispose of all the issues in one document. See Stone v. Stone, 531 S.W.2d 850, 851 (Tex.Civ.App.--Dallas 1975, no writ); Schell, 450 S.W.2d at 676-677; Thomas v. Shult, 436 S.W.2d 194, 196-97 (Tex.Civ.App.--Houston [1st Dist.] 1968, no writ). 3 More recently, this Court has held that the dispositive orders need not appear in one document for a judgment to be final. See Radelow-Gittens, 735 S.W.2d at 560; Runnymede Corp. v. Metroplex Plaza, Inc., 543 S.W.2d 4, 5 (Tex.Civ.App.--Dallas 1976, writ ref'd). In Runnymede Corp., we concluded that the Texas Supreme Court had apparently overruled Thomas in Webb v. Jorns, 488 S.W.2d 407 (Tex.1972). See Runnymede Corp., 543 S.W.2d at 5.

As explained in Radelow-Gittens, interlocutory judgments merge into the final judgment. See Radelow-Gittens, 735 S.W.2d at 560; accord City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex.1988) (per curiam); Webb,...

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