Normand v. Fox

• Decision Date: 05 March 1997
• Docket Number: No. 10-96-101-CV,10-96-101-CV
• Citation: 940 S.W.2d 401
• Parties: Charles R. NORMAND, Appellant, v. Marianne FOX, Appellee.
• Court: Texas Court of Appeals

Page 401

940 S.W.2d 401

Charles R. NORMAND, Appellant, v. Marianne FOX, Appellee.

No. 10-96-101-CV.

Court of Appeals of Texas,

Waco.

March 5, 1997.

M. Bryon Barnhill & Daniel A. Corbin, Corbin & Associates, P.C., Killeen, for appellant.

Edwin E. Powell, Jr., County Attorney, Gatesville, for appellee.

Before DAVIS, C.J., and CUMMINGS, and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

Charles R. Normand ("Normand") appeals from a protective order entered against him. The trial court found that the numerous phone calls Normand made to his ex-wife, Marianne Fox ("Fox"), constituted family violence warranting the issuance of a protective order. Normand attacks the legal and factual sufficiency of the evidence to support the granting of a protective order. Also, he complains that the trial court's finding entitling Fox to a protective order is against the great weight and preponderance of the evidence. Because we do not have the authority to review appeals of protective orders granted under the Family Code, we dismiss for want of jurisdiction without reaching the merits of this case.

We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte. Bowles v. Wade, 913 S.W.2d 644, 649 (Tex.App.--Dallas 1995, writ denied); Dallas County Appraisal v. Funds Recovery, 887 S.W.2d 465, 468 (Tex.App.--Dallas 1994, writ denied). Generally, we possess appellate jurisdiction over appeals from final judgments and such interlocutory appeals as the legislature has deemed appealable. TEX. CIV. PRAC. & REM.CODE ANN. § 51.012 (Vernon 1986) and § 51.014 (Vernon Supp.1997); Hughey v. Hughey, 923 S.W.2d 778, 779 (Tex.App.--Tyler 1996, writ denied). Absent an express grant, we do not have jurisdiction to review interlocutory orders. Hughey, 923 S.W.2d at 779; Cook v. Cook, 886 S.W.2d 838, 839 (Tex.App.--Waco 1994, no writ). Jurisdiction to review an interlocutory order is either specified in a particular statute or under the general interlocutory appeal provision in the Texas Civil Practice and Remedies Code. ¹ The family protective order does not fall within the parameters for interlocutory review under Section 51.014 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014. Furthermore, Title 4 of the Family Code does not provide for interlocutory appeal. ² Thus, only if the protective order qualifies as a final judgment are we empowered to review it.

An order which purports to dispose of all issues and all parties is a final appealable order. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995); Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex.App.--Dallas 1994, writ denied). In a final judgment, no further action by the trial court will be necessary to settle and determine the entire controversy. Retana v. Tanner, 869 S.W.2d 669, 670 (Tex.App.--San Antonio 1994, no writ). A judgment settling all legal issues and rights between the parties is final even though further proceedings may be necessary for its execution or some incidental or dependent matter may remain unsettled. Id. The judgment must settle all disputed material issues between the parties which require the exercise of judicial discretion. Id. If that is done the judgment will not be considered interlocutory even if ancillary matters remain, provided that such matters are purely ministerial. Id.

A protective order entered under Chapter 71 is effective for the period specified by the trial court, but not to exceed one year. TEX. FAM.CODE ANN. § 71.13 (Vernon 1996). During this effective period, the trial court retains the power and jurisdiction to modify the protective order either by removing items included or including items not previously contained in the order. Id. § 71.14. This modification power clouds the protective order's finality. To help ascertain the finality of the order, we can analogize between the power of the trial court to modify a protective order and modify an order in a suit affecting the parent-child relationship. A trial court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child. Id. § 156.001. Title 5 of the Family Code provides, however, that a suit for modification is a new lawsuit filed after the rendition of a final order. ³ Id. § 156.004; Hudson v. Markum, 931 S.W.2d 336, 337 (Tex.App.--Dallas 1996, no writ); Hughey, 923 S.W.2d at 781. Because the trial court's modifications do not affect or alter the original order, the order in a suit affecting the parent-child relationship remains final and appealable. See Tamez v. Tamez, 822 S.W.2d 688, 692 (Tex.App.--Corpus Christi 1991, writ denied). However, Chapter 71 does not contain a provision similar to Section 156.004. The trial court retains the power to exercise judicial discretion in modifying its original protective order. Therefore, we believe that a protective order entered under Chapter 71 is not a final, appealable order. Retana, 869 S.W.2d at 670.

Nevertheless, some evidence exists which might indicate that the Legislature intended a protective order to be a final, appealable order. Chapter 71 of the Family Code includes definitions referenced by the former Section 11.01. ⁴ Title 5 defines an order to mean a final order, decree, or judgment unless identified as a temporary order or the context clearly requires a different meaning. TEX. FAM.CODE ANN. § 101.023. However, this definition was not included in the original Section 11.01 to which Section 71.01 refers. Another section of Chapter 71 creates an inference that protective orders are to be considered final orders. The Legislature's titling Section 71.15 "Temporary Orders" infers orders not entered under Section 71.15 are not temporary but are final. Id. § 71.15. ⁵ We are not bound by the name given to the order but must look to its actual application. See Jobe, 874 S.W.2d at 766. Despite this slight evidence of Legislative intent to the contrary, we conclude that the protective order's effect is that of an interlocutory, non-appealable order.

We are cognizant of case law which espouses that we are to construe our jurisdiction liberally. We must presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition. Peek v. Equipment Service Co., 779 S.W.2d 802, 804 (Tex.1989). Furthermore, we construe the allegations in the pleading in favor of the pleader and, if necessary, examine the entire record to determine if there is any evidence establishing subject matter jurisdiction. Bowles, 913 S.W.2d at 649; Dallas County Appraisal, 887 S.W.2d at 469. However, these cases relate to construing the facts in the pleadings broadly to favor jurisdiction. In this case, no fact issue impacts on our jurisdiction; thus, we have nothing to construe favorably. Moreover, the Supreme Court has instructed us that our decisions should turn on substance rather than procedural technicality. Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex.1994). We should also recognize an appellant's "bona fide attempt to invoke the appellate court jurisdiction." Id. However, lacking authorization to hear an appeal constitutes more than a mere procedural technicality. Although Normand made a bona fide attempt to invoke our jurisdiction, we possess no jurisdiction for him to invoke.

Mandamus is an appropriate remedy to challenge interlocutory orders not subject to appeal. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex.1991); Cook, 886 S.W.2d at 839 (citing Post v. Garza, 867 S.W.2d 88 (Tex.App.--Corpus Christi 1993, orig. proceeding)). Thus, we conclude the proper vehicle to complain of protective orders entered under the Family Code is a writ of mandamus. ⁶ Because Normand brought forward his complaint by appeal instead of mandamus, we are not authorized to hear his case.

We dismiss for want of jurisdiction.

VANCE, J., dissents.

VANCE, Justice, dissenting.

The majority holds that the protective order is an interlocutory order over which we have no jurisdiction. I believe the order is "final" and appealable.

A judgment is final and appealable when it disposes of all parties and issues. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985). An interlocutory order is one made pending the final disposition of the merits of a case. City of Corpus Christi v. Public Util. Comm'n, 572 S.W.2d 290, 297 (Tex.1978). A judgment is interlocutory if it determines less than all issues, leaving something further to be determined and adjudicated in disposing of the parties and their rights. Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex.App.--Dallas 1989, no writ). "Temporary orders" in a divorce action are interlocutory orders. TEX. FAM.CODE ANN. § 3.58 (Vernon 1993). They expire with the entry of the final divorce decree which supersedes the temporary orders. Coke v. Coke, 802 S.W.2d 270, 273 (Tex.App.--Dallas 1990, writ denied).

Here, Marianne Fox sought a protective order against her ex-husband, Charles Normand, under Chapter 71. TEX. FAM.CODE ANN. § 71.01-.19 (Vernon 1996). ¹ No other proceeding was pending between the parties. The court's protective order disposed of all the issues between the parties. I do not share the notion that the court's ability to modify the order, after notice and hearing, clouds its finality. Once modified, the new order would also be final, assuming it disposed of all issues and parties.

Although I believe the order is final and appealable, I recognize that review by mandamus is a more expeditious remedy. ² Because a protective order expires automatically one year after being granted, the issue may become moot before the merits can be finally determined on appeal. Id. § 71.13. Review by mandamus, however, limits the complaining party's right of review to an assertion that the court abused its discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). Thus, neither an ordinary appeal nor mandamus may provide effective appellate review.

The...