in the Matter of the Marriage of Daisy Joanna Mendoza and Adrian Joe Mendoza and in the Interest of E.M., a Child ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00336-CV
IN THE MATTER OF THE MARRIAGE OF DAISY JOANNA MENDOZA AND ADRIAN
JOE MENDOZA AND IN THE INTEREST OF E.M., A CHILD
On Appeal from the County Court at Law No. 2
Randall County, Texas
Trial Court No. 75,119-L2, Honorable Matthew C. Martindale, Presiding
December 23, 2020
ORDER OF ABATEMENT AND REMAND
Before PIRTLE and PARKER and DOSS, JJ.
Adrian Joe Mendoza appeals from the trial court’s Final Decree of Divorce dissolving
his marriage to Daisy Joanna Mendoza. Because the trial court modified the final divorce
decree without signing a new final judgment, we remand the cause to the trial court for
further proceedings.
Background
On June 24, 2019, the trial court signed the Final Decree of Divorce. Thereafter,
Adrian timely filed a motion for new trial and motion to modify, correct, or reform the
judgment. See TEX. R. CIV. P. 329b(a), (g). At the hearing on the motions, Adrian and
Daisy agreed to modify the decree of divorce to include the agreed start date for child
support, the parties’ retirement accounts, vehicles in Adrian’s possession, the business
known as “APR1,” and APR1’s associated business debt. The trial court orally granted
Adrian’s motion to modify the decree in accordance with the parties’ agreement but took
Adrian’s request to include extended visitation provisions under advisement. Adrian
withdrew his motion for new trial at the hearing.
Adrian’s motion to modify the judgment was overruled by operation of law on
September 9, 2019. See TEX. R. CIV. P. 4, 329b(c). On October 9, 2019, the trial court
signed an Order on Motion to Modify, Correct, or Reform Judgment, granting the
corrections agreed to by the parties and denying Adrian’s request to include the extended
visitation provisions. Although the trial court did not sign an amended divorce decree,
Adrian appealed. The record and briefs have been filed and the appeal has been
submitted to this Court.
Analysis
The trial court issued an order modifying the Final Decree of Divorce within its
plenary power. See TEX. R. CIV. P. 329b(d), (e) (providing that a trial court has plenary
power to vacate or modify its judgment within thirty days after the judgment is signed or
within thirty days after all timely motions for new trial or motions to modify are overruled).
When a judgment is modified or reformed, the signing of an amended judgment initiates
the running of a new period of the court’s plenary power over the modified judgment and
a new appellate timetable. See TEX. R. CIV. P. 329b(h); TEX. R. APP. P. 4.3(a); Check v.
Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). Thus, without an amended divorce decree,
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there is no modified, final judgment for this Court to review and Adrian’s appeal is
premature. See TEX. R. APP. P. 27.1(a), 27.2; Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001) (“the general rule, with a few mostly statutory exceptions, is that an
appeal may be taken only from a final judgment.”).
We are prohibited from dismissing an appeal, however, if the trial court’s
erroneous action or inaction prevents the proper presentation of an appeal and can be
corrected by the trial court. See TEX. R. APP. P. 44.4(a), (b) (requiring courts of appeals
to direct the trial court to correct the error if these circumstances exist). Further, we may
permit a party to cure a prematurely filed appeal by allowing “an appealed order that is
not final to be modified so as to be made final and may allow the modified order and all
proceedings relating to it to be included in a supplemental record.” TEX. R. APP. P. 27.2;
see Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 1999, order) (per
curiam) (abating appeal to allow trial court to cure jurisdictional defect when only
ministerial act of making the judgment final remained).
Accordingly, we abate this appeal and remand the cause to the trial court. See
TEX. R. APP. P. 27.2, 44.4(b). Upon remand, the trial court may issue such further orders
or judgments necessary to create a final, appealable order or judgment in this cause.
Unless a final, appealable order or judgment is included in a supplemental clerk’s record
and filed with the Clerk of this Court on or before February 8, 2020, the appeal will be
reinstated and dismissed for want of jurisdiction.
It is so ordered.
Per Curiam
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