IN THE INTEREST OF R.R.K., A CHILD
No. 18-0273
IN THE SUPREME COURT OF TEXAS
December 13, 2019
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
Argued September 19, 2019
In this case, we decide whether a memorandum order modifying possession and child support is final and appealable, rendering the trial court‘s later order void, and the mother‘s appeal untimely. Relying on a Mother Hubbard clause, the court of appeals held that the memorandum order was the final order, and it dismissed the mother‘s appeal for lack of jurisdiction. We conclude that the memorandum order lacks “clear and unequivocal” indicia of finality, requiring an examination of the record to determine the trial court‘s intent. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205–06 (Tex. 2001); In re Elizondo, 544 S.W.3d 824, 827 (Tex. 2018) (per curiam). The record in this case demonstrates that neither the trial court nor the parties intended the memorandum to be the final order. Because the trial court‘s later “Order in Suit to Modify Parent-Child Relationship” is the appealable order, the mother‘s notice of appeal was timely filed. We therefore reverse.
I
In 2014, R.R.K.‘s parents obtained a court order establishing possession and support obligations for their child. A year later, R.R.K.‘s father moved to modify the trial court‘s order, citing changed circumstances.
After a bench trial, the trial court issued a “memorandum.” The one-pagе memorandum contains bullet-point orders modifying some aspects of the parties’ possession and support obligations and removing others. A final point contained a Mother Hubbard clause, stating that “[a]ny and all relief not expressly granted is hereby DENIED.”
Two days later, the father and mother signed a Rule 11 letter, prepared by the father‘s counsel, setting forth their agreement about рossession for the upcoming Christmas holidays. See
After the holidays, the father moved for entry of a final order. The mother proposed her own final order in response. Each proposal incorporated the trial court‘s memorandum orders. The proposals included: (1) statutоrily-required identification information; (2) required warnings that failure to comply with possession and support obligations could result in a finding of contempt; and (3) complete and specific—rather than piecemeal—possession and child support obligations, covering all periods of possession and stating the amount the father must pay. See
The trial court heard the pаrties’ motions and signed a 51-page “Order in Suit to Modify Parent-Child Relationship.” From that order, both parents requested findings of fact and conclusions of law, and the mother timely filed a notice of appeal.
On appeal, no party challenged appellate jurisdiction. The court of appeals, however, sua sponte questioned whether it had jurisdiction and ultimately dismissed the mother‘s aрpeal as untimely.1 The court of appeals held that the trial court‘s memorandum constituted a final order, reasoning that the “memorandum substantially complie[d] with the requisites of a formal judgment.”2 Concluding that the appellate deadlines ran from the date of the “memorandum,” and not the trial court‘s later order, the court of appeals held that the
II
Under the Family Code, a party may appeal a “final order” in a suit affecting the parent-child relationship, including a final order in a modification proceeding.4 The time for filing a notice of appeal begins to run from the date the trial court signs the final order.5 A party seeking to appeal must file a notice of appeal within 30 days of the final order, absent an appropriate post-judgment motion.6 An appropriate and timely filed post-judgment motion extends the time for filing the notice of appeal from 30 days to 90 days.7
A
The Family Code establishes specific requirements for final orders in suits affecting the parent-child relatiоnship. Entitled “Contents of Final Order,” section 105.006(a) provides that a final order in a proceeding like this one “must contain” the parties’ driver‘s license and social security information, current home and work addresses, and telephone numbers.8 Section 105.006(b) requires the trial court to include an order that each party notify the court, the other parties, and the state of changes in the party‘s identifying information, for as long as any party is obligated to pay child support or is entitled to possession or access to the child.9
Section 105.006(d) further provides that final orders must prominently feature statutory warnings stating the legal consequences for failing to comply with the order, and the failure to pay child support does not justify denying court-ordered possession.10 The order must provide a statutory notice to peace officers of the order‘s
B
Added to this statutory framework is our finality jurisprudence. A judicial decree is final when it disposes of all issues and all parties in the record.13 Because a court order need not be in any particular form, “whether a judicial decree is a final judgment must be determined from its language and the record in the case.”14 When an order “finally disposes of all claims and all parties” in “clear and unequivocal languagе,” it is a final order.15 If, however, an order‘s finality is not “clear and unequivocal,” then a reviewing court must examine the record to determine whether the trial court intended the order to be final.16
The trial court‘s memorandum in this case includes “Mother Hubbard” language—“a recitation that all relief not expressly
But orders following a conventional trial can be ambiguous as to their finality, overcoming the presumption of finality, and in Vaughn v. Drennon we held that “[i]f there is any doubt as to the judgment‘s finality,” we should review the record to determine whether the trial court intended the order to be final, even if it was signed after a trial.20 Our “any doubt” rule resolves disputes about finality by placing an order in its context. The right to appeal should not be “abridged by judgments that were drafted poorly or were unclear.”21
Our finality rule before Lehmann was simpler: an order was final when it included “language purporting to dispose of all claims or parties.” Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993), overruled by Lehmann, 39 S.W.3d at 203–04. We departed from that rule in Lehmann because it “created more problems than it solved—confusing the lоwer courts, operating as a trap for unwary litigants, and consistently bringing about arguably unjust and oftentimes absurd results.” Lehmann, 39 S.W.3d at 208 (Baker, J., concurring).
Lehmann therefore clarified that Mother Hubbard clauses are not a conclusive indication of finality.22 Lehmann‘s rule strikes a better balance. “Clear and unequivocal” language that reflects an intent to dispose of the entire case is given effect, but when there is doubt about finality, the record resolves the issue.23
III
A
A Mother Hubbard clause is not conclusive of finality when other aspects of the order render the meaning of the clause uncertain.24 That is the case here. Unlike orders that we have recognized as unmistakably final, the memorandum order in this case does not remove “any doubt” about finality.
The memorandum‘s bullet points belie the proposition that it is a finаl order because possession and support issues remained unresolved. The memorandum provides that possession be evenly split and that the Christmas and Thanksgiving holiday schedule “follow the Texas Family Code.” It does not set forth this schedule, however, and otherwise lacks a disposition for possession for other holidays. It does not assign possession to one parent or the other based on any schedule. As to child support, the memorandum ordered an “offset” based on the father and mother‘s
The trial court‘s memorandum lacks many of section 105.006‘s requirements for final orders and contains none of the statutorily-required warnings аnd advisories.25 The courts of appeals have differed in their consideration of the effect of compliance with section 105.006 on finality, with some holding that section 105.006 plays no role in determining finality and others viewing lack of compliance as part of the overall finality analysis. We agree with the latter approach.26 While a missing required element does not conсlusively negate finality, a failure to include multiple required elements suggests ambiguity as to the trial court‘s intent. In this case, that ambiguity is not otherwise resolved on the face of the memorandum because it lacks language that it finally disposes of all claims and parties and is appealable.27
A failure to comply with every aspect of section 105.006 is not fatal to finality. But when finality is cоntested, and the order lacks required statutory elements, a reviewing court should examine the record to determine finality under Lehmann and its progeny.28 Absent “clear and unequivocal” language that the memorandum disposes of all claims and all parties and is appealable, omissions of elements
The particular Mother Hubbard language in this case does not conclusively establish finality because it does not state that the memorandum (1) is a final order; (2) disposes of all claims and parties; and (3) is appealable.29 In contrast, the order in Elizondo removed all doubt, stating: “This judgment is final, disposes of all claims and all parties, and is appealable. All relief not granted herein is denied.”30
The father contends that consideration of the Family Code requirements will subject final orders to collateral attack when they fail to include a section 105.006 required element. The risk of collateral attack would not be ameliorated with a different rule—a longstanding “final order” could be equally challenged as void in favor of an earlier, incomplete order. The presumption of finality after a conventional trial still governs, and a record that fails to reveal the trial court‘s intent that the order be interim and not final will not rebut that presumption.31 Finally, interim orders, while not final, are nonetheless enforceable.32
The father also contends that the Family Code‘s contempt provision, which allows a trial court to clarify an order that “is not specific enough to be enforced by contempt” without affecting finality, cures finality defects. This cure provision does not answer, however, whether an order is final in the first instance and does not preclude a determination that an incomplete order lacks finality.33
Because the memorandum order in this case does not contain “clear,” “unequivocal,” and “unmistakable” indicia of finality, removing “any doubt” about its effect, we examine the reсord to determine the trial court‘s intent.34 Rather than examining the record, the court of appeals relied on a seven-factor test to conclude that the order was final.35 Each of these indicators, however, is an attribute of both interim and final orders; the list does not meaningfully distinguish between the two.36 When in doubt, the record provides
B
For this case, the rest of the record resolves the question. After the court issued its оne-page memorandum, the parties entered into a Rule 11 agreement memorializing the parties’ understanding of possession during the Christmas holidays. The letter was “prepared in anticipation of an Order being drafted.” The parties exchanged draft orders and later moved to enter an order conforming with, but adding to, the memorandum order‘s possession and child support obligations.
After conducting a hearing on the parties’ respective motions for entry of a final order, the trial court issued a 51-page “Order in Suit to Modify Parent-Child Relationship” that contained the parties’ personal information and included section 105.006‘s statutory admonishments. Unlike the memorandum, this order assigns possession and details its beginning and end dates, and it denotes which parent has possession during holidays other than Christmas, Thanksgiving, and for the summer. It provides that either parent must notify the other when choosing not to exercise a period of possession. It calculates each party‘s total net resources after subtracting taxes, sets forth the amount of contribution to the child‘s health insurance costs, and states the net monthly child support to be paid by the father. The lаst paragraph states: “IT IS ORDERED that all relief requested in this case and not expressly granted is denied. All other terms of the prior orders not specifically modified in this order shall remain in full force and effect.” The record reveals that no one—not the trial court and not the parties—intended the earlier memorandum to be the “final” order.
We hold that an order lacking the unmistakable language of finality—that it resolves all claims between and among all parties and is final and appealable—is ambiguous in a suit under the Family Code when the order does not comport with the statute governing final orders and is otherwise inconclusive as to its intent. If a judicial decree‘s finality is ambiguous, a reviewing court should examine the record to determine the trial court‘s intent. Because the record in this case reveals that the trial court‘s later order was the final order, the mother‘s appeal was timely filed.
We reverse and remand to the court of appeals for consideration of the merits of the mother‘s appeal.
Jane N. Bland
Justice
OPINION DELIVERED: December 13, 2019
Notes
An order in a suit that orders child supрort or possession of or access to a child must contain the following prominently displayed statement . . . :
“FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY‘S FEES AND COURT COSTS.”
“FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.”
“FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.”
An order in a suit that provides for the possession of or access to a child must contain the following prominently displayed statement . . . :
“NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER‘S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER‘S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER‘S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000.”
An order in a suit that orders child support must contain the following prominently displayed statement . . . :
“THE COURT MAY MODIFY THIS ORDER THAT PROVIDES FOR THE SUPPORT OF A CHILD, IF:
(1) THE CIRCUMSTANCES OF THE CHILD OR A PERSON AFFECTED BY THE ORDER HAVE MATERIALLY AND SUBSTANTIALLY CHANGED; OR
(2) IT HAS BEEN THREE YEARS SINCE THE ORDER WAS RENDERED OR LAST MODIFIED AND THE MONTHLY AMOUNT OF THE CHILD SUPPORT AWARD UNDER THE ORDER DIFFERS BY EITHER 20 PERCENT OR $100 FROM THE AMOUNT THAT WOULD BE AWARDED IN ACCORDANCE WITH THE CHILD SUPPORT GUIDELINES.”