Karen D. Smith v. Jerry W. Smith, Sr. and in the Interest of H.T.S., Z.C.S. and E.C.S., Children--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-01-108-CV

KAREN D. SMITH,

Appellant

v.

JERRY W. SMITH,

Appellee

AND IN THE INTEREST OF

H.T.S., Z.C.S., AND E.C.S., CHILDREN

From the 13th District Court

Navarro County, Texas

Trial Court # 99-00-09293-CV

MEMORANDUM OPINION

Jerry W. Smith, Sr. sought a divorce from his wife Karen D. Smith. The trial court granted the divorce, appointing Jerry as sole managing conservator of the Smiths children and ordering Karen to pay child support. On December 22, 2000, Karen perfected an appeal from the divorce decree, which we docketed under appellate cause number 10-00-409-CV.

Jerry filed a motion to enforce Karen s child support obligation on March 5, 2001. The trial court found Karen in contempt of court, committed her to jail for three days, then placed her on community supervision for two years. Karen perfected this appeal from the contempt order on April 3, 2001, which we docketed under appellate cause number 10-01-108-CV.

Karen has now filed a two-part motion in which she requests that we: (1) consolidate the record in the contempt appeal (cause number 10-01-108-CV) with the record in the divorce appeal (cause number 10-00-409-CV); and (2) dismiss the contempt appeal because this traditional appeal is not the appropriate procedural vehicle by which to challenge the trial court s contempt orders.

Regarding consolidation of the contempt record with the divorce record, Karen asserts that the former is pertinent to the [divorce appeal] that will remain pending and any future habeas corpus proceeding. Thus, she asserts that it would be efficient and practical for this Court to file the appellate record from the [contempt appeal] in the [divorce] appeal before [the contempt appeal] is dismissed. Karen seems to believe that the contempt record might not be available after the contempt appeal is dismissed. However, section 51.204 of the Government Code requires the Clerk of this Court to maintain this record for a minimum of six years. See Tex. Gov t Code. Ann. 51.204(d) (Vernon Supp. 2002). We assume that any future habeas corpus proceeding which Karen may institute will be filed within the next six years. Karen can file any appropriate motion regarding the contempt record at that time. Accordingly, we deny her request to consolidate the records.

Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

Karen s dismissal motion complies with the requirements of the appellate rules. Accordingly, this cause is dismissed with costs to be taxed against Karen.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Appeal dismissed

Opinion delivered and filed February 13, 2002

Do not publish

[CV06]