Zenaw Batihun Mersha v. Genet G. Mersha ( 2004 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-04-00378-CV

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Zenaw Batihun Mersha, Appellant

v.

Genet G. Mersha, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. FM202911, HONORABLE CHARLES F. CAMPBELL JR., JUDGE PRESIDING

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M E M O R A N D U M O P I N I O N

Appellant Zenaw Batihun Mersha has filed a motion to abate his appeal because the notice of appeal was filed prematurely. The district court's "final divorce decree" did not address the division of property, which is mandatory under the family code and may not be severed from a divorce action. See Tex. Fam. Code Ann. § 7.001 (West 1998); Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.--Austin 2002, pet. denied). Accordingly, the "final divorce decree" was not a final judgment, and we agree that appellant's notice of appeal has been filed prematurely. See Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (final judgment fully disposes of all issues and all parties in lawsuit).

We grant appellant's motion to abate his appeal. His prematurely filed notice of appeal will be effective and deemed filed on the day of, but after, the entry of a final judgment in the case. See Tex. R. App. P. 27.1. Appellant is ordered to contact the court not later than twenty days after the entry of a final judgment so we may reinstate the case.

Justice B. A. Smith

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Filed: December 9, 2004