in the Interest of T. D. M. C., a Minor Child ( 2003 )

NO. 12-02-00218-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§ APPEAL FROM THE 349TH

IN THE INTEREST OF T.D.M.C.,

§ JUDICIAL DISTRICT COURT OF

A MINOR CHILD

§ ANDERSON COUNTY, TEXAS

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MEMORANDUM OPINION

In three issues, Lanny Malcolm Collett ("Lanny") and Mary Lois Collett ("Mary") appeal the trial court's order appointing joint managing conservators. We dismiss this appeal for want of jurisdiction.

Background

Lanny Malcolm Collett II ("Collett") married Lisa Ann Collett ("Lisa"), and they are the parents of T.D.M.C., born March 3, 1996. Lanny and Mary are the paternal grandparents of T.D.M.C. On July 31, 1996, Lanny and Mary were appointed sole managing conservators of T.D.M.C., and Collett and Lisa were appointed possessory conservators of the child, both having executed affidavits which designated the paternal grandparents as managing conservators of T.D.M.C. However, Lisa revoked her affidavit on November 19, 1996, and, through her motion to modify the parent-child relationship, requested appointment as joint managing conservator of T.D.M.C. Collett and Lisa were divorced in February of 1997. Lisa subsequently remarried, gave birth to a daughter, divorced again, and moved to Mississippi. T.D.M.C. lived continuously with Lanny and Mary.

On April 29, 2002, a hearing was held on Lisa's motion to modify and, on May 3, 2002, the trial court ordered modification of the parent-child relationship. Specifically, the court ordered appointment of Lisa, Lanny, and Mary as joint managing conservators of T.D.M.C. Lanny and Mary were granted the exclusive right to establish the primary residence of the child within Anderson County, Texas. Lisa, Lanny, and Mary were each given the independent right to make decisions concerning the child's education. However, the trial court ordered Lanny and Mary to enroll T.D.M.C. in public school beginning with the 2002-2003 school year. Further, the trial court ordered Lanny and Mary to enroll T.D.M.C. in an educational preschool program, such as Southside Baptist, for at least one time per week for a minimum of one-half day beginning the week of May 6, 2002, and continuing each week thereafter until the beginning of public school in the fall of 2002. Moreover, the trial court ordered that T.D.M.C. should not receive, be taken to, or be submitted for psychological or psychiatric evaluation, examination, or treatment without prior court approval. The order also included specific times and dates for visitations between Lisa and T.D.M.C. from May through August 2002. Further, the order contained a Mother Hubbard clause stating that "[a]ll relief requested in this case and not expressly granted is denied." The trial court also stated that "[a]ll other terms of the prior orders not specifically modified in this order shall remain in full force and effect." The trial court filed findings of fact and conclusions of law after a request by Lanny and Mary. In the findings of fact, the trial court found that the grandparents must become reconciled to Lisa's rights as T.D.M.C.'s mother "[i]f the Grandparents are going to keep the child," and that if they put T.D.M.C. between themselves and Lisa, "they are going to destroy the child and perhaps the legal relationship which allows them custody."

Since May 3, 2002, the court has issued more temporary orders concerning T.D.M.C. Furthermore, on July 22, 2003, the trial court ordered modification of the parent-child relationship. ⁽¹⁾ In this order, Lisa was appointed sole managing conservator of T.D.M.C., and Collett was appointed possessory conservator of T.D.M.C. Further, the trial court stated that "[t]his order supercedes all prior orders concerning the child."

Order Modifying Parent-Child Relationship  

Lanny and Mary appeal the May 3, 2002 order and refer to the order in their brief as a final judgment. A judgment is final for purposes of an appeal if it disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Further, without a conventional trial, a Mother Hubbard clause is not an indication that a judgment is final for purposes of appeal. Id. at 203-04. Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. at 195. First, the May 3, 2002 order contained certain provisions indicating that the order is temporary. The order defined Lisa's visitation with T.D.M.C. for the summer of 2002, and defined the particular type of educational preschool to be attended by T.D.M.C. in the summer of 2002. Next, the order only affected provisions of prior orders that were specifically modified. All other terms of prior orders remained in full force and effect. Finally, an examination of the record reveals that, in its findings of fact, the trial court noted reservations about Lanny and Mary's ability to maintain custody of T.D.M.C., and the possibility that they would lose custody in the future. Because the language of this order and the record in this case indicate that the trial court did not intend it to be a final judgment, the May 3, 2002 order is a temporary order.

On July 22, 2003, the trial court ordered modification of the parent-child relationship. This judgment disposed of all parties and issues in the proceeding, and is, therefore, a final judgment. See id. Complaints about temporary orders are moot where a final order has been entered. In re P.R., 994 S.W.2d 411, 417 (Tex. App.-Fort Worth 1999, pet. dism'd w.o.j.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 & n. 39 (Tex. 2002); Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex. App.-Houston [1st Dist.] 1988, no writ); Garner v. Garner, 673 S.W.2d 413, 418 (Tex. App.-Fort Worth 1984, writ dism'd). Because the May 3, 2002 order is a temporary order and a final order in the proceeding has been entered, the issues asserted by Lanny and Mary in this appeal are moot.

Conclusion    

Having determined that the issues asserted on appeal are moot, we dismiss the appeal for want of jurisdiction.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 29, 2003.

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

(PUBLISH)

1. This order was not included in the Clerk's Record, but was referred to by all parties in their briefs.