In the Interest of K.M.B and D.R.B.--Appeal from County Court at Law of Waller County

Dismissed and Majority and Dissenting Opinions filed October 7, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01090-CV

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IN THE INTEREST OF K.M.B. AND D.R.B.

On Appeal from the County Court at Law

Waller County, Texas

Trial Court Cause No. 99-12-15216

D I S S E N T I N G O P I N I O N

Today the majority concludes that neither the trial court s May 28, 2003 order nor its August 12, 2003 order is a final judgment and consequently dismisses the appeal. I disagree. I would find that (1) the May 28 order is a final judgment and (2) the August 12 order is void. Having so found, I would reverse the judgment of the trial court and dismiss the appeal because appellant did not appeal from the May 28 order. Therefore, I respectfully dissent.

The majority concludes that the May 28 order is not a final judgment because it failed to dispose of the State s claim for attorney s fees. I do not agree. The issue of whether a judicial decree is a final appealable judgment must be determined from its language and the record in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The language of the May 28 order and the record in the present case both clearly reflect the fact that the trial court denied the State s request for attorney s fees.

First, the language in the trial court s May 28 order reflects that it is a final judgment. After finding Stephanie Braziel in contempt for failure to pay court-ordered child support, the trial court suspended her commitment to the county jail and imposed several listed terms and conditions. The trial court struck the pre-printed form requirement that she pay attorney s fees as ordered herein. In other words, the punishment imposed upon Stephanie Braziel for contempt does not include the payment of attorney s fees. Thus, although the State s motion for enforcement and modification of child support order sought reasonable attorney s fees and all other costs of this proceeding, the trial court declined to impose such a term or condition as punishment in its enforcement of the child support order. Accordingly, I am unpersuaded by the majority s conclusion that the trial court failed to dispose of the State s claim for attorney s fees in the May 28 order.[1]

Second, the record in the present case confirms that the May 28 order constitutes a final judgment. If, as the majority concludes, the May 28 order does not dispose of the State s request for attorney s fees, there is great difficulty in reconciling that conclusion with the trial court s August 12 order. In the August 12 order, the trial court did not strike the requirement that Stephanie Braziel pay attorney s fees as ordered herein, but expressly reserved ruling on the issue of attorney s fees requested by obligee Aaron Braziel and his attorney Deni Goebel. We should not give the same effect to the trial court s different actions on May 28 and August 12 concerning the payment of attorney s fees.[2] The only way to reconcile the trial court s actions in the two orders is to hold, as I would, that the May 28 striking of the attorney s fees requirement constitutes a denial of the claim, while the August 12 failure to strike the very same requirement constitutes either an award of such fees or, as in the present case, a reservation of the ruling until a later date.

Under Rule 329b(d) of the Texas Rules of Civil Procedure, the trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled. In the present case, the trial court approved and adopted the master s report in its May 28 order. None of the aforementioned motions appears in the record; all that appears is a document entitled Notice of Hearing, which apparently pertains to an appeal. Therefore, the trial court s plenary power expired thirty days after the May 28 order was signed unless a Rule 329b(f) procedure (bill of review, nunc pro tunc, etc.) was invoked. In the present case, the record reflects that no such procedure was invoked. Therefore, the trial court s plenary power over this case expired in late June 2003.

Judicial action taken after the court s jurisdiction over a cause has expired is a nullity. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). The trial court in the present case thus did not have plenary power over the cause when it issued its August 12 order. The August 12 order is therefore void.

Thus, the only valid order to be considered for purposes of this appeal is the May 28 order, which approved and adopted the master s May 22, 2003 order. But appellant did not file a notice of appeal as to the May 28 order. Consequently, this court is without jurisdiction to consider any appeal of this order, though appellant does not raise any arguments in connection with the May 28 order anyway. See Tex. R. App. P. 25.1(b).

Therefore, I would hold that (1) the trial court s May 28 order constitutes a final judgment and (2) the trial court s August 12 order is void. While the May 28 order is thus an appealable judgment, appellant did not appeal from that order. Accordingly, this court should reverse the judgment of the trial court and dismiss the appeal, leaving intact the trial court s May 28 order.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Majority and Dissenting Opinion filed October 7, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

[1] I disagree with the majority s statement that the trial court s striking of the attorney s fees requirement indicates that payment of attorney s fees was not a condition of community supervision, not that no attorney s fees were awarded. If the trial court enforces Stephanie Braziel s child support obligations in this order by punishing her for failure to make timely payments, and the trial court refuses to impose the payment of attorney s fees as a term or condition of that punishment for such failure, how can one say the order does not mean that no attorney s fees were awarded ?

[2] Essentially, the majority opinion by implication does just that; it finds that both the trial court s May 28 and August 12 orders failed to dispose of the attorney s fees issue.