William Cornwell v. Suzanne Cornwell
02-17-00105-CV
| Tex. App. | Dec 28, 2017Background
- William and Suzanne Cornwell divorced; final decree signed June 2, 2016.
- William was absent in person at the May 9, 2016 final hearing but was represented by counsel.
- A July 12, 2016 QDRO was entered for a NetScout 401(k); later the trial court learned much of the funds were in a prior Danaher 401(k).
- The trial court entered an October 25, 2016 QDRO for the Danaher 401(k) to effectuate the divorce property division.
- William filed a timely motion for new trial (filed July 5, 2016) and a second motion for new trial; the trial court denied the second motion on February 22, 2017.
- William filed a notice of appeal on March 24, 2017 seeking a restricted appeal; the Court of Appeals dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appeal from an order denying a motion for new trial is independently appealable | William treated the Feb. 22, 2017 denial as a basis to appeal and calculated timeliness from that date | Suzanne and Court: order denying motion for new trial is not an independently appealable judgment | Court: No—an order denying a motion for new trial is not separately appealable; cannot base appeal timing on that order |
| Whether William may pursue a restricted appeal of the divorce decree or QDROs | William asserted restricted-appeal requirements met and seeks to directly attack the judgment/QDRO | Suzanne and Court: William appeared (through counsel) at the hearings and filed postjudgment motions, and his notice was filed more than six months after the decree | Court: No—restricted appeal jurisdictional requirements unmet (not filed within six months of decree; participation and filing of postjudgment motion bar restricted appeal) |
Key Cases Cited
- Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314 (Tex. App.—Fort Worth 2015) (lists jurisdictional requirements for restricted appeals)
- Franklin v. Wilcox, 53 S.W.3d 739 (Tex. App.—Fort Worth 2001) (restricted appeal unavailable where appellant participated through counsel)
- Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527 (Tex. App.—Dallas 2000) (restricted appeal denied where postjudgment motion was timely filed)
- In re Baby Girl S., 353 S.W.3d 589 (Tex. App.—Dallas 2011) (dismissal of restricted appeal when filed more than six months after judgment)
- S.P. Dorman Expl. Co. v. Mitchell Energy Co., 71 S.W.3d 469 (Tex. App.—Waco 2002) (timely postjudgment motion precludes restricted appeal)