in the Interest of C.S.K. ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00587-CV
IN THE INTEREST OF C.S.K.
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CI-17273
Honorable David A. Canales, Judge Presiding
PER CURIAM
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: November 29, 2017
MOTION TO DISMISS GRANTED; APPEAL DISMISSED
On August 18, 2017, appellant Lynn M. Kolb was held in contempt for violating certain
provisions of a prior final decree of divorce. On September 19, 2017, appellant filed a notice of
appeal seeking to appeal the trial court’s order of contempt. This court does not have jurisdiction
to review contempt orders by direct appeal. See, e.g., Norman v. Norman, 692 S.W.2d 655, 655
(Tex. 1985); Chavira v. Quarry Hills Mgmt., LLC, 458 S.W.3d 561, 565–66 (Tex. App.—El Paso
2014, pet. denied). Contempt orders may only be reviewed by an application for a writ of habeas
corpus, if the contemnor has been confined, or by a petition for a writ of mandamus, if the
contemnor has not been confined. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex
parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985); Chavira, 458 S.W.3d at 566.
04-17-00587-CV
We therefore ordered appellant to show cause in writing why this appeal should not be
dismissed for lack of jurisdiction, without prejudice to refiling this action as a petition for writ of
mandamus. See Rosser, 902 S.W.2d at 962; Chavira, 458 S.W.3d at 566. In response, appellant
filed a motion to dismiss the appeal without prejudice to refiling this action as a petition for writ
of mandamus. After reviewing appellant’s motion, we grant the motion to dismiss and dismiss the
appeal for want of jurisdiction.
In addition, this court had previously granted a stay of all proceedings with regard to this
matter. After the trial court, the Honorable David A. Canales presiding, rendered its order of
contempt, it also granted an order of severance. Thereafter, appellant filed her notice of appeal —
the appeal we are now dismissing. However, appellant also filed a petition for declaratory
judgment, or alternatively, for modification. In that petition, appellant sought a declaration that
the trial court lacks jurisdiction over C.S.K. because she is not a child. Mother also sought to
modify the decree and asked for additional relief. Appellant’s newly-filed matter was assigned to
the Honorable Cathy Stryker. After contacting Judge Stryker’s court, this court learned that a trial
on appellant’s matter was scheduled to begin on October 9, 2017, at 8:30 a.m.
After appellant filed her notice of appeal, appellee, Carl J. Kolb, filed an emergency motion
in this court, asking that we stay all proceedings in this matter, including the proceedings in Judge
Stryker’s court, pursuant to Rule 29.5 of the Texas Rules of Appellate Procedure. See TEX. R.
APP. P. 29.5. After reviewing both the motion for stay and appellant’s response to the motion, we
ordered all trial court proceedings relating to this matter, including any proceedings in Judge
Stryker’s court stayed pending further order of this court. See id. Given that we have now
dismissed the appeal, we order our previous stay lifted.
PER CURIAM
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