in the Matter of the Marriage of A.L.F.L. and K.L.L., and in the Interest of K.A.F.L., a Child

Fourth Court of Appeals
San Antonio, Texas
June 30, 2015
No. 04-14-00364-CV
IN THE MATTER OF THE MARRIAGE OF A.L.F.L. AND K.L.L.,
AND IN THE INTEREST OF K.A.F.L., A CHILD,
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-02421
Honorable Barbara Hanson Nellermoe, Judge Presiding
ORDER
This is an accelerated appeal from the trial court’s denial of appellant’s plea to the
jurisdiction. On June 9, 2014, appellant, the State of Texas, filed a “Motion to Stay or Abate
Appeal.” In the motion, appellant claimed the issues in this appeal are similar to issues in two
cases that were pending before the Texas Supreme Court — In the Matter of the Marriage of J.B.
& H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. dism’d) and State v. Naylor, 330 S.W.3d
434 (Tex. App.—Austin 2011), aff’d, Nos. 11-0114 & 11-0222, 2015 WL 3852284 (Tex. June
19, 2015). We agreed the issues to be presented in this appeal are similar to those issues pending
before the Texas Supreme Court, i.e., the constitutionality of Texas marriage law under article I,
section 32 of the Texas Constitution and section 6.204 of the Texas Family Code.
After review, we agreed abatement was warranted. We therefore granted the appellant’s
motion and ordered the appeal abated and removed from this court’s active docket.
On August 11, 2014, appellant filed an emergency motion asking this court to lift our
abatement for the limited purpose of granting an emergency stay. Appellant asserted the trial
court was continuing to conduct proceedings in this matter and this threatened our jurisdiction
with regard to the previously abated appeal. Appellant requested that we issue an order staying
the trial court’s order and all proceedings relating to the underlying divorce. Appellee filed a
response
After considering appellant’s motion and the response, we granted appellant’s motion and
ordered the trial court not to take any action relating to its June 30, 2014 order or to take any
other action with regard to the matters at issue in this interlocutory appeal, noting that at issue in
the appeal is, among other things, the trial court’s subject matter jurisdiction over this matter.
On June 26, 2015, in light of the United States Supreme Court decision in Obergefell v.
Hodges, Nos. 14-556, 14-574, 14-562, & 14-571, __ U.S. __ (June 26, 2015), appellee filed a
motion asking this court to lift our prior abatement and stay orders. After reviewing the Supreme
Court’s decision, we GRANT appellee’s motion and ORDER our previous abatement and stay
lifted. We reinstate the appeal on the court’s active docket.
In Obergefell v. Hodges, the Supreme Court legalized same-sex marriage in the United
States. As the appeal pending before this court is based on appellant’s position that the trial
court erred in granting its plea to the jurisdiction because the trial court lacked jurisdiction over
this same-sex divorce for the reason that same-sex marriage was unconstitutional under Texas
law, it appears such a contention is now moot. Accordingly, in light of the decisions in State v.
Naylor and Obergefell v. Hodges, we ORDER the appellant to file a written response in this
court on or before July, 20, 2015 showing cause why this court should not dismiss the appeal as
moot.
We order the clerk of this court to serve a copy of this order on all counsel and the trial
court.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 30th day of June, 2015.
___________________________________
Keith E. Hottle
Clerk of Court