William Edgar Dempsey, Sr. v. Irma Delgado Dempsey ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WILLIAM EDGAR DEMPSEY, SR.,                   )

                                                                              )     No.  08-04-00306-CV

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     388th District Court

IRMA DELGADO DEMPSEY,                            )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 2004CM3064)

                                                                              )

O P I N I O N

Appellant William Edgar Dempsey, Sr. appeals a protective order granted on June 17, 2004 in favor of Irma Delgado Dempsey.  In five issues, Appellant complains that the trial court abused its discretion in finding Appellee=s testimony credible, erred in finding family violence on global allegations, and erred in denying his motion for a continuance.  Finding we lack jurisdiction, we dismiss the appeal.

 PROCEDURAL BACKGROUND

William Dempsey, Sr. and Irma Dempsey were married on January 1, 1991 and have no children together.  On May 13, 2004, Appellee filed an original petition for divorce in the 388th District Court in cause number 2004CM3064.  On May 28, 2004, Appellee petitioned the court for a protective order pursuant to Title 4, Texas Family Code.  An order to Show Cause on the application was filed on June 8, 2004. A hearing on the protective order was held on June 17, 2004 before the Associate Judge, who found that family violence had occurred and was likely to occur again in the future.  The district judge approved the associate judge=s recommendations that same date. Appellant filed his notice of appeal from the order on June 25, 2004 and requested findings of fact and conclusions of law on July 8, 2004.  The findings of fact and conclusions of law were filed on July 9, 2004.  Appellee filed an amended original petition for divorce on August 16, 2004.  A final hearing on the divorce was held on September 1, 2004.  A final order on the divorce does not appear in the record, but according to Appellant=s brief, the judgment was signed on October 31, 2004.

JURISDICTION

Appellate courts have jurisdiction over appeals from final judgments and such interlocutory orders as the Legislature deems appealable. See Tex.Civ.Prac.&Rem.Code Ann. '' 51.012, 51.014 (Vernon 1997 & Supp. 2004-05); Hughey v. Hughey, 923 S.W.2d 778, 779 (Tex.App.--Tyler 1996, writ denied).  A judgment is final and appealable if it disposes of all parties and all issues.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  A protective order granted while a divorce action is pending between the same parties is not a final judgment because it does not dispose of all issues in the case and must be classified as an unappealable interlocutory order.  Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.--El Paso 1997, no writ); Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex.App.--Austin 2002, no pet.); see also Escobar v. Escobar, No. 08-03-00348-CV, 2004 WL 759265, at *1 (Tex.App.--El Paso 2004, no pet.).  Because the protective order in this case was issued during the pendency of the divorce, it is an unappealable interlocutory order.^[1]  See Bilyeu, 86 S.W.3d at 282 (concluding that Amandamus is the proper procedure for appellate review of a family violence protective order in effect while the parties= divorce is pending in the trial court.@).

We conclude that we have no jurisdiction and dismiss the appeal.

September 15, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

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^[1] The Texas Legislature has recently amended Title 4 of the Texas Family Code to specifically address the issue of when a family violence protective order is appealable in the context of a pending divorce. See Act of 2005, 79th Leg., R.S., ch. 916, ' 2, 2005 Tex.Gen.Laws 3150, 3150-51 (to be codified as Tex.Fam.Code Ann. ' 81.009)(eff. June 18, 2005).  The statute now clarifies that A[a] protective order rendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final, appealable order.@  Id. at 3151.