Opinion issued October 11, 2012.
Court of Appeals
First District of Texas
ALAN NEIL MCGILBERY, Appellant
DORIS FELIX MCGILBERY, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 2011-15414
This case arises out of a suit for divorce. The trial court entered a declaratory
judgment finding that a common-law marriage exists between Doris McGilbery
and Alan McGilbery. Alan appeals from the trial court’s judgment, contending that
the trial court erred in concluding that he is informally married. As the trial court’s
order does not dispose of the pending divorce action between the parties, we
dismiss the appeal for want of jurisdiction.
Doris sued Alan for divorce in 2010. Alan generally denied Doris’s suit and
entered a plea in abatement, contending that no marriage existed between the
parties to dissolve. In reply, Doris petitioned for a declaratory judgment that she
and Alan informally married after their 1999 divorce. After a bench trial on Doris’s
declaratory judgment action, the trial court entered judgment in the same number
as the underlying divorce suit, finding that a common-law marriage exists between
Doris and Alan.
The general rule is that, absent a statutory exception, an appeal may only be
taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001). A judgment is final for purposes of appeal if it disposes of all pending
parties and claims in the record. Id.
The trial court’s November 8, 2011 judgment is interlocutory. The
declaratory judgment finds that the parties are informally married; it does not,
however, address Doris’s suit for divorce. Nor does the judgment effectively
dispose of the underlying divorce action, as the trial court merely entered judgment
declaring that the parties are informally married. Although Doris’s petition for
declaratory relief bears the number of the underlying divorce action and a separate
number, nothing in the record reveals that proceedings were severed. The trial
court entered judgment of an informal marriage in the same number as the
underlying divorce proceedings. Because the divorce action remains pending
before the trial court, the court’s November 8, 2011 judgment is interlocutory.
Hence, we lack jurisdiction over this appeal.
Citing Nguyen v. Nguyen, Alan contends that appellate jurisdiction for
review of the trial court’s order is proper. 355 S.W.3d 82, 87 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied). But Nguyen is inapposite to the facts of this case.
There, the trial court’s judgment declared that no valid marriage had existed
between the parties, thereby effectively disposing of all claims between the
putative husband and wife. Id. The judgment provided that it disposed of all parties
and claims in the action. It was, therefore, a final judgment. In this case, the trial
court’s judgment does not dispose of all pending claims; the divorce action,
namely, remains pending before the trial court.
We lack jurisdiction to review the trial court’s November 8, 2011
interlocutory finding that an informal marriage exists between Doris McGilbery
and Alan McGilbery as it does not dispose of the underlying divorce suit between
the parties. Accordingly, we dismiss the appeal for want of jurisdiction.
Panel consists of Chief Justice Radack and Justices Bland and Huddle.