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In re A.K.M.

Court of Appeals of Texas, Second District, Fort Worth

December 12, 2013

IN THE INTEREST OF A.K.M., A CHILD

FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

PANEL: GARDNER, WALKER, and MEIER, JJ.

MEMORANDUM OPINION [1]

BILL MEIER JUSTICE

I. Introduction

Appellant S.B. (Mother) appeals a final order in this suit affecting the parent-child relationship. We will affirm.

II. Background

Mother and Father dated but separated sometime around February 2006. They are the parents of A.K.M., a male child born in May 2006.

Mother filed this lawsuit in October 2007, seeking to establish conservatorship of A.K.M. and to receive child support from Father. The trial court entered temporary orders in February 2008, appointing Mother and Father temporary joint managing conservators of A.K.M., naming Mother the conservator with the exclusive right to designate the primary residence of A.K.M., and ordering Father to pay child support. Little happened in the case until October 2012, when the trial court modified the temporary orders and gave Father the right to determine A.K.M.'s residence, ordered that Mother have no periods of possession with A.K.M., and required Mother to pay Father monthly child support. A final bench trial occurred approximately two months later, in December 2012, and the trial court signed a final order in January 2013 that, among other things, designated both Mother and Father joint managing conservators of A.K.M., awarded Father the right to establish the primary residence of A.K.M., and gave Mother a standard possession order that became effective on January 1, 2013. Mother did not request findings of fact and conclusions of law.

III. Father's Motion to Dismiss

Father argues that we should dismiss this appeal for want of jurisdiction because Mother did not file a notice of appeal after the trial court signed the final order in January 2013, and a notice of appeal that Mother filed before the trial court signed the final order was ineffective to vest this court with jurisdiction.

Mother filed a notice of appeal on November 16, 2012, in an attempt to challenge the trial court's amended temporary orders. In December 2012, we sent Mother a letter explaining that the appeal was subject to dismissal because the order amending the temporary orders was neither a final judgment nor an appealable interlocutory order. The letter, however, was not delivered to Mother and was returned to the court. We then sent Mother a letter dated January 22, 2013, explaining that we had "been informed by the trial court clerk that the trial judge has not signed an order in this case, although [Mother] has informed us that a final order was signed in the trial court." We gave the parties an opportunity "to furnish this court [with] a signed copy of the order that appellant seeks to appeal." On March 6, 2013, the court notified the parties that it had received the trial court's January 18, 2013 final order but that it had not received a docketing statement or the filing fee. The appeal proceeded.

Rule 27.1(a) provides that "[i]n a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal." Tex.R.App.P. 27.1(a). Here, Mother filed a notice of appeal before the trial court signed the final order, but we gave the parties an opportunity to provide the court with a final order, which we ultimately received at some point before we sent the March 2013 letter to the parties requesting a docketing statement and the filing fee. Thus, we considered the defect in the record resolved. We recognize that Mother's premature notice of appeal sought to challenge the trial court's amended temporary orders, not the final order, but the subject matter of the amended temporary orders is virtually identical to the matters that the trial court ruled on at the final trial and that Mother now challenges in this appeal—conservatorship, possession, and child support. The supreme court has cautioned on several occasions that appellate courts should not dismiss an appeal for a procedural defect when any arguable interpretation of the rules of appellate procedure would preserve the appeal. See Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011); Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Heeding that warning, we conclude that, under these unique facts, an arguable interpretation of rule 27.1(a) exists that Mother's notice of appeal from the amended temporary orders altering conservatorship, possession, and support was sufficient to vest this court with jurisdiction over an appeal from the final order finally determining conservatorship, possession, and support, once the trial court signed the final order. Accordingly, we treat Mother's notice of appeal as having been filed on January 18, 2013, the date the judgment became final for purposes of appeal. We deny Father's motion to dismiss this appeal.[2]

IV. Conservatorship, Possession, and Support of A.K.M.

In her first issue, Mother complains of several decisions that the trial court made regarding the conservatorship, possession, and support of A.K.M. We review those decisions for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.—Fort Worth 2012, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, that is, if the act is ...


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