Justin Dean Matthews v. Coti Lynn Matthews--Appeal from 356th District Court of Hardin County
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In The Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-10-00156-CV _________________ JUSTIN DEAN MATTHEWS, Appellant V. COTI LYNN MATTHEWS, Appellee _____________________________________________________________________ On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 50,221 _____________________________________________________________________ MEMORANDUM OPINION The trial court signed an agreed decree of divorce and order in suit affecting the parent-child relationship on December 1, 2009. According to the record, Justin Dean Matthews died later that day. On December 28, 2009, Coti Lynn Matthews filed a motion to vacate the decree and to grant a new trial. The trial court granted the motion for new trial on February 10, 2010, and Justin appealed. 1 We questioned our jurisdiction over the appeal. No response has been filed. Justin s counsel of record signed the notice of appeal. The record does not indicate that a representative for the estate has been appointed. 1 1 An order granting a motion for new trial is an interlocutory order that is appealable only upon entry of a final judgment. See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 212-13 (Tex. 2009). In the absence of the entry of a final order in the case, relief from an abuse of the trial court s discretion must be sought through mandamus. Id. In this case, the trial court granted a new trial while it retained plenary power over the case. See TEX. R. CIV. P. 329b(e); see also Dunn v. Dunn, 439 S.W.2d 830, 834 (Tex. 1969) (A divorce case does not become moot where the the property rights of the parties would be significantly affected depending upon whether the marriage was held to have been terminated by divorce decree or by death. ). The trial court s order of February 10, 2010, is not a final order. Accordingly, we dismiss the appeal without reference to the merits. APPEAL DISMISSED. ________________________________ STEVE McKEITHEN Chief Justice Opinion Delivered May 20, 2010 Before McKeithen, C.J., Gaultney and Horton, JJ. 2
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