Rickey Fantroy v. Carolyn May Howard-Fantroy and in the Interest of R.F. a Child--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-02-101-CV

RICKEY FANTROY,

Appellant

v.

CAROLYN MAE HOWARD-FANTROY,

Appellee

AND IN THE INTEREST OF R.F., A CHILD

From the 18th District Court

Johnson County, Texas

Trial Court # D2001-05094

MEMORANDUM OPINION

Rickey Fantroy appeals an order suspending his visitation rights. Because this is not an appealable order, we dismiss this appeal for want of jurisdiction.

The trial court signed a divorce decree in November 2001 dissolving the marriage between Rickey and Carolyn Fantroy and awarding them joint custody of their son. Rickey appealed. We docketed his appeal under our cause number 10-02-008-CV, which remains pending before this Court.

Carolyn filed a verified pleading // with the trial court on February 11, 2002 asking the court to: (1) enforce the decree by directing Rickey to return their son to her possession; (2) issue a writ of habeas corpus directing him to do so; (3) grant temporary orders suspending further visitation; (4) grant a temporary restraining order and a temporary injunction; and (5) modify the custody portion of the divorce decree by naming her sole managing conservator and restricting Rickey to supervised visits conditioned on the posting of a bond.

The trial court issued the requested writ on the same day directing Rickey to produce their son before the court the following day. Rickey failed to appear on February 12. The court signed an order on February 12 directing him to return their son to Carolyn. The court signed a second order on that date by which the court suspended visitation until further order of the Court. // To date, the trial court has rendered no further orders in the matter.

Rickey filed a notice of restricted appeal on April 3 stating his desire to appeal the judgment on February 12, 2002. Because the trial court has not addressed or disposed of all claims asserted by Carolyn, we warned Rickey that his appeal may be subject to dismissal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Rickey filed a response in which he contends that the order he is appealing is an injunction appealable under section 51.014(a)(4) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(4) (Vernon Supp. 2002). We construe his response to mean that he is challenging the trial court s order suspending visitation.

Article V, section 6 of the Texas Constitution vests this Court with jurisdiction over all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Tex. Const. art. V, 6. Section 51.014(a)(4) of the Civil Practice and Remedies Code allows for an interlocutory appeal of an order granting (or denying) a temporary injunction. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(4). However, the order suspending visitation is not a temporary injunction. See Craft v. Craft, 579 S.W.2d 506, 511 (Tex. Civ. App. Dallas), writ ref d n.r.e. per curiam, 580 S.W.2d 814 (Tex. 1979).

We construe Carolyn s February 11 pleading as a motion to modify/enforce the prior custody decree. Thus, it is a suit affecting the parent-child relationship. // See Tex. Fam. Code. Ann. 101.032(a) (Vernon Supp. 2002). In such proceedings, a trial court is authorized to issue temporary orders including temporary restraining orders and injunctions. Id. 105.001, 156.006 (Vernon Supp. 2002). Carolyn requested temporary orders, a temporary restraining order, and a temporary injunction. The trial court granted only temporary orders. Such orders are not subject to interlocutory appeal. Id. 105.001(e).

For the foregoing reasons, we dismiss this appeal for want of jurisdiction. Rickey shall pay all costs incurred by either party in connection with this appeal.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Appeal dismissed

Opinion delivered and filed August 7, 2002

Do not publish

[CV06]