James Kenneth Collins v. Stacey Leigh Collins ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-522 CV ____________________

JAMES KENNETH COLLINS, Appellant

V.

STACEY LEIGH COLLINS, Appellee

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On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 04-01-00621 CV

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MEMORANDUM OPINION

The appellant, James Kenneth Collins, filed a motion to dismiss this appeal. Because the appellant filed two notices of appeal affecting different orders entered in the same case, the Court asked for clarification of the appellant's intent regarding perfection of appeal and required the appellant to identify the order being appealed and to explain how it is appealable at this time. In response, the appellant explained that the trial court signed a written order on appellant's motion for clarification on September 4, 2007, and that the appellant wished to withdraw his notice of appeal regarding that order. The appellant also explained that on September 28, 2007, the trial court made an oral order that the appellant pay attorney fees to the appellee. The appellant concedes that the order has not been reduced to writing, but contends the order is appealable because it is effective immediately. The clerk's record includes a motion for enforcement and petition to modify the parent-child relationship. The motion was filed on September 11, 2007. The clerk's record also includes an application for a temporary ex parte protective order with an attached temporary order upon which the judge's signature has intentionally been stricken. Thus, it appears that no protective order has been entered in this case.

Regardless of whether an oral order is immediately effective, the timetable for an appeal commences when the order is reduced to writing and signed by the trial court. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). Furthermore, the trial court has not disposed of all the issues and parties before the trial court and the appellant has not shown that the oral order to pay attorney fees is amenable to an interlocutory accelerated appeal.

The motion to dismiss this appeal is voluntarily made by the appellant prior to any decision of this Court and should be granted. Tex. R. App. P. 42.1(a)(1). The motion to dismiss is granted. Although the same party filed a notice of appeal of an oral order, the order is not amenable to an appeal at this time. Tex. R. App. P. 42.3. The appeal is dismissed.

APPEAL DISMISSED.

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CHARLES KREGER

Justice

Opinion Delivered December 20, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.