in the Interest of Z.I.Y. and K.S.Y., Minor Children ( 2007 )

NUMBER13-07-00273-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

IN THE INTEREST OF Z.I.Y. AND K.S.Y., MINOR CHILDREN_______________________________________________________

On appeal from the 347th District Court

of Nueces County, Texas

_______________________________________________________  

MEMORANDUM OPINION ON MOTION FOR REHEARING

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion on Motion for Rehearing

by Chief Justice Valdez  

   Appellant Patricia Vaughn's motion for rehearing is denied. However, we withdraw our memorandum opinion dated August 16, 2007 and substitute this memorandum opinion in its place.

Vaughn, the natural grandmother of Z.I.Y. and K.S.Y., appeals from a final divorce decree that determined the custody of the minor children. Vaughn was an intervenor in the divorce proceeding, but her plea in intervention was struck on January 3, 2007. She timely filed a motion for new trial as to the trial court's ruling on her plea in intervention; Vaughn's motion for new trial was denied on March 8, 2007. A final divorce decree was signed on March 9, 2007. On April 27, 2007, Vaughn filed a motion for extension of time to file a notice of appeal. See generally Tex. R. App. P. 26.3. In her motion for extension of time, Vaughn requested that the deadline to file her notice of appeal be extended to May 7, 2007. Vaughn filed her notice of appeal on September 17, 2007.

A motion for new trial "shall be filed prior to or within thirty days after the judgment or other order complained of is signed." Tex. R. Civ. P. 329b(a) (Emphasis added). A motion for new trial filed before judgment "shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails . . . ." Tex. R. Civ. P. 306c. An appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed. Tex. R. App. P. 27.2. Thus, a premature motion for new trial will extend the appellate timetable. South Tex. GMAC Real Estate v. Cohyco, Inc., 124 S.W.3d 321, 325 (Tex. App.-Corpus Christi 2003, no pet.). However, if a trial court modifies a judgment after a motion for new trial has been filed, a second motion is still needed to extend the deadlines if the first motion does not "assail" the modified judgment. Id.

According to her motion for extension of time to file a notice of appeal, Vaughn's motion for new trial challenged the trial court's decision to strike her plea in intervention. According to her motion for rehearing, Vaughn's motion for new trial sought relief from the trial court's adoption of an agreed parenting plan. Under either ground, presumably Vaughn's motion for new trial did not "assail" the final divorce decree. Because the motion for new trial did not challenge the final divorce decree, the appellate timetables were not extended. Id. Therefore, Vaughn's notice of appeal from the final divorce decree was due on April 9, 2007. Tex. R. App. P. 26.1 (providing that the notice of appeal must be filed within 30 days after the judgment is signed and providing exceptions for certain situation). A motion for extension of time to file a notice of appeal was due on April 24, 2007. Tex. R. App. P. 26.3 (providing that the appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party files the notice of appeal in the trial court and file a motion complying with Rule 10.5(b) in the appellate court). Vaughn's motion for extension of time to file a notice of appeal was filed on April 27, 2007.

Both Vaughn's motion for extension of time to file a notice of appeal and notice of appeal are untimely. We dismiss Vaughn's appeal for want of jurisdiction.

ROGELIO VALDEZ  

Chief Justice

Memorandum Opinion on Motion for Rehearing

delivered and filed on this the 11th day of October, 2007.