Francis Quintero v. Candelerio Quintero--Appeal from County Court at Law of Cherokee County

NO. 12-03-00261-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FRANCIS QUINTERO, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW

CANDELARIO QUINTERO,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Francis Quintero ( Francis ) appeals a bill of review granted in favor of Appellee Candelario Quintero ( Candelario ). Francis presents three issues. We dismiss this appeal for want of jurisdiction.

Background

Francis and Candelario were married on or about December 12, 1992. On September 8, 2000, Francis filed a second amended petition for divorce, alleging that she and Candelario are the parents of D.Q. On September 11, the trial court set the divorce case for a final hearing on October 23. Two days later, counsel for Candelario filed a motion to withdraw and noted that the case was set for trial. However, in the order granting the motion to withdraw, the trial court stated that there were no pending settings and deadlines in the case. Further, the trial court ordered that all notices in the case be delivered to Candelario and that the withdrawing counsel notify Candelario of any additional settings or deadlines not known to his client. On October 23, the trial court held a final hearing, but Candelario failed to appear. The trial court rendered a decree of divorce, which included a finding that Francis and Candelario are the parents of D.Q. Moreover, the trial court ordered Candelario to pay child support, maintain health insurance for D.Q., and pay half of D.Q. s health care expenses. On March 2, 2001, the trial court ordered Candelario s employer to withhold child support from his earnings.

On May 15, 2002, Candelario filed a petition for bill of review alleging that he and Francis are not the biological parents of D.Q. and that he does not believe that Francis formally adopted the child. Candelario requested a new trial on the case. He also requested the trial court to set aside and render void the finding that he is the biological father of D.Q. and the portion of the decree requiring him to pay child support, provide health insurance for D.Q., and pay half of D.Q. s medical expenses. Francis alleged that Candelario had not met his burden to establish a prima facie case.

After a hearing, the trial court found that the October 23 final hearing was not set in compliance with Rule 245 of the Texas Rules of Civil Procedure. The trial court also found that the court made an official mistake because there was a discrepancy between the order setting the final hearing and the subsequent order granting counsel s motion to withdraw. Thus, the trial court granted Candelario s bill of review, ordered that any child support collection from Candelario s current wages be terminated, and ordered that any employer withholding Candelario s wages for child support cease wage garnishment. At the conclusion of the hearing, the trial court vacated the finding that Francis and Candelario are the parents of D.Q., noting that there was not sufficient evidence at the hearing to determine whether Candelario is the biological father of the child. The trial court stated that such issue will have to be addressed at another setting. Moreover, the trial court, in ordering that child support collection cease, stated that Candelario s counsel should get this heard, and we need to have 45-days notice or an agreed setting. This appeal followed.

Jurisdiction

In her first issue, Francis argues that the trial court abused its discretion in conducting a hearing on Candelario s petition for bill of review because, on its face, the petition failed to meet the pleading requirements for a bill of review. In her second issue, Francis contends that Candelario was not entitled to relief because he failed to meet the evidentiary burden necessary to sustain a bill of review. In her third issue, Francis argues that the trial court abused its discretion in granting Candelario s bill of review on the ground that he did not receive forty-five days notice of the final hearing. Candelario contends that this appeal should be dismissed for want of jurisdiction because Francis appeals from an interlocutory order. We will first determine whether this court has jurisdiction.

An appeal may be prosecuted only from a final judgment that disposes of all issues and parties in the case. Tesoro Petroleum v. Smith, 796 S.W.2d 705 (Tex. 1990). A bill of review that sets aside a prior judgment but does not dispose of the case on the merits is interlocutory and not appealable. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (citing Tesoro Petroleum, 796 S.W.2d at 705; Warren v. Walter, 414 S.W.2d 423 (Tex. 1967)). In this case, the order granting the bill of review, vacating the finding that Francis and Candelario are D.Q. s parents, and ordering that all child support collection from Candelario terminate did not determine whether Candelario was the biological father of D.Q. In fact, the trial court decided that such a determination must be made at another hearing, thereby indicating that all issues are not resolved. See id. Because the order granting the bill of review did not dispose of the case on the merits, it is interlocutory and not appealable. See id.

Disposition

We dismiss this appeal for want of jurisdiction. Having determined that we lack jurisdiction to consider the appeal, we do not address Francis s three issues.

SAM GRIFFITH

Justice

Opinion delivered September 22, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)