in Re Perlina Hernandez ( 2014 )

Petition for Writ of Mandamus Denied, Appeal Dismissed, and Memorandum
Opinion Filed December 4, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00305-CV
IN RE PERLINA HERNANDEZ
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
NO. 14-13-01038-CV
PERLINA HERNANDEZ, Appellant
V.
IDELFONSO TORRES, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2009-20864
MEMORANDUM OPINION
On the motion of appellant/relator Perlina Hernandez, we have consolidated
an interlocutory appeal with a petition for writ of mandamus raising the same
issues in the same case.
On August 20, 2013, Hernandez filed a motion for judgment nunc pro tunc
asking the trial court to change the final divorce decree signed October 15, 2009,
which ended the marriage of Hernandez and Idelfonso Torres. The trial court
denied Hernandez’s nunc pro tunc motion on October 14, 2013. An order denying
a motion for judgment nunc pro tunc is not a final, appealable judgment. See
Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990)
(explaining that there is no direct appeal from the denial of a motion for judgment
nunc pro tunc). Because there is no final appealable order in this case, we dismiss
Hernandez’s appeal (cause no. 14-13-01038-CV) for want of jurisdiction. See
Nohavitza v. Toman, No. A14-94-00232-CV, 1994 WL 168240, at *1 (Tex.
App.—Houston [14th Dist.] May 5, 1994, no pet.) (not designated for publication)
(holding that denial of nunc pro tunc motion to change minor child’s name in
paternity decree was not final appealable order over which this court has
jurisdiction).
Nevertheless, we have jurisdiction over Hernandez’s petition for writ of
mandamus, filed on April 24, 2014. See Tex. Gov’t Code Ann. § 22.221; see also
Tex. R. App. P. 52. In the petition, Hernandez asks this Court to compel the
Honorable Lisa Millard, presiding judge of the 310th District Court of Harris
County, to grant her judgment nunc pro tunc and change the divorce decree to
reflect that (1) relator Hernandez has the exclusive right to designate the primary
residence of the children subject to the decree and (2) real-party-in-interest Torres
is awarded a standard possession order.
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Hernandez has not satisfied her burden to demonstrate her entitlement to the
extraordinary relief of a writ of mandamus. See In re State Bar of Tex., 113
S.W.3d 730, 733 (Tex. 2003) (orig. proceeding) (“‘Mandamus issues only to
correct a clear abuse of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law.’” (quoting Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding))). Hernandez may file a motion to
modify the possession order. See Tex. Fam. Code Ann. § 156.101. Thus, she has
an adequate remedy at law. Accordingly, we deny relator’s petition for writ of
mandamus (cause no. 14-14-00305-CV).
PER CURIAM
Panel Consists of Justices McCally, Brown, and Wise.
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