Frank E. Marley, Jr. v. Connie A. Stirgus Marley--Appeal from 387th District Court of Fort Bend County

Opinion issued October 27, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01 05 00992 CV

FRANK E. MARLEY, JR., Appellant

V.

CONNIE A. STIRGUS MARLEY, Appellee

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 05 CV 144270

CORRECTED MEMORANDUM OPINION

Having found a clerical error in the caption, this Court withdraws its opinion and judgment issued October 5, 2006 and issues this corrected memorandum opinion and judgment in its stead. // Frank E. Marley, Jr., appellant, filed for divorce from Connie A. Stirgus Marley, appellee. The trial court entered temporary orders and later entered additional temporary orders. Frank failed to comply with the court s orders and an enforcement order was entered against him.

In two points of error, Frank challenges the constitutionality of the temporary orders, arguing that sections 6.502 and 6.507 of the Family Code, as well as the temporary orders, violate the due process clause and the equal protection clause of the Fourteenth Amendment of the United States Constitution.

Because this Court lacks the jurisdiction to consider this appeal, we dismiss.

Background

Frank filed for divorce on August 8, 2005. On September 2, 2005, the trial court entered an agreed order requiring Frank to pay $500 to Connie and giving Connie exclusive access to their house. On September 16, 2005, the court entered additional temporary orders, giving Frank and Connie temporary joint managing conservatorship of their daughter, requiring Frank to pay child support for their daughter, requiring Frank to provide health insurance for their daughter, and requiring Frank to pay temporary spousal support. On January 19, 2006, the trial court determined that Frank was in arrears on his child support and spousal support payments and entered an enforcement order against Frank. Frank appeals the temporary orders.

Appellate Jurisdiction

Before we can reach Frank s substantive arguments, we must first determine whether we have jurisdiction over this matter. Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App. Houston [1st Dist.] 1998, pet. dism d w.o.j.). When an appellate court concludes it does not have jurisdiction, it can only dismiss the appeal. Bethurum v. Holland, 771 S.W.2d 719, 722 (Tex. App. Amarillo 1989, no writ).

The legislature determines, by statute, whether a particular type of pretrial ruling may be appealed before a final judgment is rendered. Kilroy v. Kilroy, 137 S.W.3d 780, 783 (Tex. App. Houston [1st Dist.] 2004, no pet.). Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352 53 (Tex. 1998); Eichelberger v. Hayton, 814 S.W.2d 179, 182 (Tex. App. Houston [1st Dist.] 1991, writ denied). A statute authorizing an appeal from an interlocutory order is in derogation of the general rule that only final judgments are appealable; therefore, Texas courts strictly construe those statutes authorizing interlocutory appeals. Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App. Houston [1st Dist.] 2002, no pet.).

The temporary orders entered by the trial court are controlled by sections 105.001 and 6.502 of the Family Code. See Tex. Fam. Code Ann. 6.502 (temporary orders relating to divorce of spouse), 105.001 (temporary orders relating to suit affecting parent-child relationship) (Vernon Supp. 2005). Frank challenges portions of the orders controlled by section 6.502. However, section 6.507 of the Family Code states that [a]n order under this subchapter, except an order appointing a receiver, is not subject to interlocutory appeal. Tex. Fam. Code Ann. 6.507 (Vernon 1998).

Frank argues that section 6.507 is inapplicable because section 51.014 of the Civil Practice and Remedies Code (CPRC) allows for interlocutory appeal of a temporary injunction. Tex. Civ. Prac. & Rem. Code Ann. 51.014(4) (Vernon Supp. 2005). He cites Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) and Swanson v. Cmty. State Bank, 12 S.W.3d 163, 166 (Tex. App. Houston [1st Dist.] 2000, no pet.) for the proposition that it is the character and function of an order that determine its classification. Lopez, 845 S.W.2d at 809.

Despite the cited language of section 51.014 of the CPRC, Lopez, and Swanson, section 6.507 of the Family Code is controlling. Section 311.026 of the Government Code provides that when two statutes are in conflict with each other, the specific statute prevails as an exception to the general statute. Tex. Gov t Code Ann. 311.026(b) (Vernon 2005); Kilroy, 137 S.W.3d at 786. Because section 6.507 of the Family Code applies specifically to divorce proceedings, it prevails over the general application of section 51.014 of the CPRC.

Frank also argues that the trial court s orders finally disposed of all issues between the parties, at this stage of the proceedings, citing Gonzalez v. Gonalez, 309 S.W.3d 111, 114 (Tex. App. Fort Worth 1958, no writ). Gonzalez is a probate case where the decedent s will appointed Isabel Gonzalez the independent executrix of the decedent s estate. Id. at 113. The will did not provide for distribution or partial distribution to the devisees during the lifetime of the executrix, and did not provide for reports or accounting to be made either to the Probate Court or the devisees. Id.

The devisees brought an action for accounting, the probate court entered an order for accounting, and the district court enforced it. Id. at 114. The issue on appeal was whether the probate court had jurisdiction to enter the order. After ruling that the probate court lacked jurisdiction, the Fort Worth Court of Appeals held that it was not necessary for the entire probate estate to be dispersed for the appeal to be heard, because the order finally dispose[d] of and [was] conclusive of the issue or controverted question for which that particular part of the proceeding was brought. Id.

The proceeding in this case is a suit for divorce. Section 6.502 of the Family Code provides the trial court with jurisdiction to enter temporary orders. Tex. Fam. Code Ann. 6.502. The temporary orders are interlocutory. Beard v. Beard, 49 S.W.3d 40, 69 (Tex. App. Waco 2001, pet. denied). Section 6.507 precludes appeal of those orders. Tex. Fam. Code Ann. 6.507. To say that an order disposes of all issues at this stage of the proceeding is irrelevant. All orders, whether interlocutory or final, dispose of some issue at some stage of the proceeding. The court s temporary orders did not provide a final judgment, and the language of the Family Code precludes an interlocutory appeal. We hold that this Court lacks jurisdiction to consider Frank s appeal.

Motion for Sanctions

Along with her brief, Connie filed a motion for sanctions, requesting that Frank be ordered to pay the attorney s fees incurred as a result of the appeal. Under Texas Rule of Appellate Procedure 45, we may award just damages if we objectively determine, after considering the record, briefs, or other papers filed in the court of appeals, an appeal is frivolous. Tex. R. App. P. 45. To objectively determine whether an appeal is frivolous, we look at the record from the viewpoint of the advocate and decide whether he had reasonable grounds to believe the case could be reversed. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App. Houston [1st Dist.] 2001, pet. denied). While there are cases that hold that temporary orders in a divorce cannot be appealed, we do not find one directly on point with Frank s argument that the Civil Practice and Remedies Code allows for interlocutory appeal. Looking at the record from the viewpoint of a pro se appellant, we cannot say his grounds to believe the case could be reversed were unreasonable. We deny Connie s motion.

Conclusion

We dismiss Frank s appeal for want of jurisdiction and deny Connie s motion for sanctions.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Hanks, and Higley.