in the Matter of the Marriage of Arturo Joel Marin and Elizabeth Friday and in the Interest of Malissa Marin, a Child ( 2005 )

NO. 07-04-0456-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 7, 2005

______________________________



IN THE MATTER OF THE MARRIAGE OF ARTURO JOEL MARIN AND ELIZABETH FRIDAY AND IN THE INTEREST OF M.M., A CHILD _________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

NO. 2004-526,011; HONORABLE LARRY B. (RUSTY) LADD, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

ORDER

The court has received and filed a third supplemental clerk's record containing an order purporting to grant a new trial. If effective the order would vacate the decree from which appeal was brought and deprive this court of jurisdiction. We are obligated to determine sua sponte our jurisdiction over an appeal. Welch v. McDougal, 876 S.W.2d 218, 220 (Tex. App.-Amarillo 1994, writ denied). Finding the trial court's order was not effective, we direct appellant to file her brief in accordance with the Rules of Appellate Procedure.

Appellant's former husband Arturo Joel Marin filed his original petition for divorce in April 2004. No answer was filed on behalf of appellant and the trial court rendered a final decree of divorce August 12, 2004. Appellant timely perfected appeal by filing a notice of appeal September 3, 2004. See Tex. R. App. P. 26.1. The trial court's docket sheet contains a notation that the court also treated the notice as a motion for new trial and set the motion for a hearing.

The original clerk's record was filed in this court October 12, 2004. Appellee filed a response to appellant's motion for new trial in the trial court on October 27, 2004. In that document appellee correctly observed appellant's motion was overruled by operation of law seventy-five days after the judgment was signed, or October 26, 2004.

Appellant filed an amended motion for new trial November 16, 2004. The same day an order setting the matter for hearing on November 22, 2004 was signed. The record before us contains no reporter's record of that hearing and no docket sheet covering that date. We received the third supplemental clerk's record on January 27, 2005. It contains an order signed January 25, 2005 reciting the trial court heard appellant's motion for new trial November 22, 2004 and providing "the Motion is hereby GRANTED."

A motion for new trial must be filed within thirty days after the challenged judgment is signed. Tex. R. Civ. P. 329b(a). Any amendment must be filed within the same period, and before a ruling on the original motion. Tex. R. Civ. P. 329b(b). A late-filed amendment does not extend the trial court's jurisdiction and cannot be considered. L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.). A motion for new trial not disposed of by express order is deemed overruled by operation of law seventy-five days after the judgment was signed. Tex. R. Civ. P. 329b(c).

As appellee noted in response to appellant's motion, that motion was overruled by operation of law on October 26, 2004. Rule 329b(e) gives a trial court plenary power to grant a motion for new trial for an additional thirty days. Perfection of appeal does not deprive a trial court of power to grant a new trial. Id. In this instance, the thirtieth day after appellant's motion for new trial was overruled was November 25, 2004. That day and the following day were state holidays, Tex. Gov't. Code Ann. § 662.003(a)(8), (b)(6) (Vernon 1994), extending the court's power to November 29, 2004. Tex. R. Civ. P. 4.

A trial court must exercise its power to grant a new trial by a written order signed within the time allowed by rule 329b. The trial court's January 25, 2005 order was signed well after the court's plenary power to grant a new trial had expired. We need not consider whether the court's January 25, 2005 order may have merely reduced an earlier oral order to writing. In Taack v. McFall, 661 S.W.2d 923 (Tex. 1983) (orig. proceeding), the supreme court held the oral grant of a new trial, corroborated by a docket entry, was insufficient to satisfy the Rule and was ineffective. Id. at 924.

We hold the trial court's January 25, 2005 order was ineffective to vacate its August 12, 2004 final decree of divorce. The docketing statement filed by appellant indicates no reporter's record was requested. On the filing of the third supplemental clerk's record, the appellate record is complete. Appellant's brief is due no later than March 7, 2005. Tex. R. App. P. 38.6(a). The failure to timely file a brief or motion to extend the time for filing appellant's brief will make this appeal subject to dismissal for want of prosecution. Tex. R. App. P. 38.8(a)(1).

Per Curiam