John Desmarais v. Unknown ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00262-CV
John Desmarais, Appellant
v.
Unknown, Appellee 1
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 199704, THE HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
MEMORANDUM OPINION
On April 10, 2023, appellant John Desmarais filed a notice of appeal. Desmarais
appeals from a final divorce decree signed sometime in 2004. 2 The notice of appeal was due to
be filed within 30 days of its signing. See Tex. R. App. P. 26.1 (requiring notice of appeal to be
filed within 30 days after judgment is signed). It was not filed until April 10, 2023.
Desmarais also included a March 4, 2023 child-support arrearage notice with the
notice of appeal. This Court’s jurisdiction is limited to appeals in which there exists a final or
appealable judgment or order, and a child-support arrearage notice is not an appealable
interlocutory order. See Tex. Civ. Prac. & Rem. Code § 51.012; Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001) (explaining that appeal generally may only be taken from final
1 We have designated the appellee as “unknown” because in the absence of the clerk’s
record the Court is unable to discern from appellant’s notice of appeal the name of the appellee.
2 As explained in more detail below, the clerk’s record is overdue, and the notice of
appeal does not state the exact date of the 2004 divorce decree from which Desmarais appeals.
judgment that disposes of all pending parties and claims in record unless statute provides for
interlocutory appeal); Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (“Appellate courts
have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly
provides appellate jurisdiction.”); see also Tex. Civ. Prac. & Rem. Code § 51.014 (specifically
permitting appeal of various interlocutory orders but not permitting appeal from grant or denial
of child-support arrearage notice).
On June 13, 2023, after an initial review of the notice of appeal, the Clerk of this
Court sent Desmarais a letter informing him that the Court appears to lack jurisdiction over the
appeal for the reasons stated above and requesting a response informing us of any basis that
exists for jurisdiction. To date, Desmarais has not responded. Desmarais’s April 10, 2023 notice
of appeal is untimely and the child-support arrearage notice is not an appealable order; we
therefore lack jurisdiction over this appeal. See Tex. R. App. P. 25.1(b) (providing that filing
notice of appeal invokes appellate court’s jurisdiction); id. R. 2 (establishing that appellate court
may not alter time for perfecting appeal in civil case). Accordingly, we dismiss the appeal for
want of jurisdiction. See id. R. 42.3(a).
In addition, the clerk’s record in this appeal was due for filing in this Court on
May 10, 2023. On May 31, 2023, we notified Desmarais that no clerk’s record had been filed
due to his failure to pay or make arrangements to pay the trial clerk’s fee for preparing the
clerk’s record. The notice requested that Desmarais make arrangements for the clerk’s record
and submit a status report regarding this appeal by June 9, 2023. Further, the notice advised
Desmarais that his failure to comply with this request could result in the dismissal of the appeal
for want of prosecution. To date, Desmarais has not filed a status report or otherwise responded
to this Court’s notice, and the clerk’s record has not been filed.
2
If a trial-court clerk fails to file the clerk’s record due to an appellant’s failure to
pay or make arrangements to pay for the clerk’s fee for preparing the record, the appellate court
may dismiss the appeal for want of prosecution unless the appellant was entitled to proceed
without payment of costs. Tex. R. App. P. 37.3(b). In this case, Desmarais has not established
that he is entitled to proceed without payment of costs. See Tex. R. Civ. P. 145. Because
Desmarais has failed to pay or make arrangements to pay the clerk’s fee for preparing the clerk’s
record, this appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Dismissed for Want of Jurisdiction
Filed: June 30, 2023
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