Appeal from the 245th District Court Harris County, Texas
Trial Court Case No. 2015-48441
consists of Justices Jennings, Higley, and Massengale.
Elliot Michael Muirhead, attempts to appeal from the trial
court's first amended final decree of divorce, signed on
July 25, 2016, by filing a notice of restricted appeal on
November 30, 2016. We dismiss this appeal for want of
authorized by statute to consider an appeal from a
"final order" rendered under Title 5 of the Family
Code. See Tex. Fam. Code Ann. § 109.002(b)
(West Supp. 2016); see, e.g., Brejon v.
Johnson, 314 S.W.3d 26, 33 (Tex. App.- Houston [1st
Dist.] 2009, no pet.). Generally, a notice of appeal is due
within thirty days after the judgment is signed. See
Tex. R. App. P. 26.1. The deadline to file a notice of appeal
is extended to ninety days after the date the judgment is
signed if, within thirty days after the judgment is signed,
any party timely files a motion for new trial, motion to
modify the judgment, motion to reinstate, or, under certain
circumstances, a request for findings of fact and conclusions
of law. See id. 26.1(a); Tex.R.Civ.P. 329b(a), (g).
The time to file a notice of appeal may also be extended if,
within fifteen days after the deadline to file the notice of
appeal, a party properly files a motion for extension.
See Tex. R. App. P. 10.5(b), 26.3.
qualify for a restricted appeal, an appellant must establish
that: (1) he filed the notice of restricted appeal within six
months after the judgment or order appealed from was signed;
(2) he was a party to the underlying suit; (3) he did not
timely file a post-judgment motion or request for findings of
fact and conclusions of law, or notice of appeal; (4) he did
not participate, either in person or through counsel, in the
hearing that resulted in the judgment complained of; and (5)
the trial court erred and the error is apparent from the face
of the record. See Bassie v. Citibank (S. Dakota)
N.A., No. 01-05-00943-CV, 2006 WL 181514, at *1 (Tex.
App.-Houston [1st Dist.] Jan. 26, 2006, no pet.) (per curiam)
(mem. op.) (citing, inter alia, Tex.R.App.P. 30,
Muirhead's notice of appeal claims that this is a
restricted appeal because, among other things, he did not
timely file a post-judgment motion. However, the district
clerk's letter of assignment includes Muirhead's
motion to set aside the default judgment, which was timely
filed by his appellate counsel on July 25,
2016. "A restricted appeal is only
available to a party 'who did not timely file a
postjudgment motion . . . .'" Lushann Int'l
Energy Corp. v. Harris County, No. 01-07-00119-CV, 2008
WL 4166473, at *1 (Tex. App.-Houston [1st Dist.] Sept. 11,
2008, no pet.) (per curiam) (mem. op.) (quoting Tex.R.App.P.
30) (dismissing for want of jurisdiction restricted appeal
after appellant had timely filed motion for new trial).
Because Muirhead timely filed a motion to set aside the
default judgment, that was a post-judgment motion and, thus,
we lack jurisdiction to consider this as a restricted appeal.
See, e.g., Rainey v. Rainey, No.
05-05-01384-CV, 2006 WL 29112, at *1 (Tex. App.-Dallas Jan.
6, 2006, no pet.) (mem. op.) (dismissing restricted appeal of
final order on suit to modify parent-child relationship for
want of jurisdiction because appellant's motion to set
aside default judgment/motion for new trial was timely
post-judgment motion) (citing Lab Corp. v. Mid-Town
Surgical Ctr., Inc., 16 S.W.3d 527, 528-29 (Tex.
App.-Dallas 2000, no pet.) (holding that court lacked
jurisdiction over restricted appeal because appellant timely
filed motion to set aside default judgment)).
post-judgment motion extended the deadline to file a notice
of appeal until October 24, 2016, or by November 7, 2016,
with the fifteen-day grace period. See Tex. R. App.
P. 4.1(a), 26.1(a)(1), 26.3. However, Muirhead's notice
of appeal was untimely filed on November 30, 2016,
thirty-seven days after the ninety-day deadline expired and
twenty-three days after the fifteen-day grace period ended.
Without a timely filed notice of appeal, this Court lacks
jurisdiction over the appeal. See Tex. R. App. P.
December 29, 2016, the Clerk of this Court notified Muirhead
that this appeal was subject to dismissal for want of
jurisdiction unless he timely responded and showed how this
Court had jurisdiction. See Tex. R. App. P. 42.3(a),
(c). Muirhead failed to timely file a response. Thus, we must
dismiss this appeal for want of jurisdiction. See
Lushann, 2008 WL 4166473, at *1.
we dismiss this appeal for want of jurisdiction. See
Tex. R. App. P. 42.3(a); 43.2(f). We dismiss any pending
motions as moot.
 On March 2, 2017, the Clerk of this
Court notified appellant that this case was subject to
dismissal for want of prosecution because the clerk's
record had not been filed due to appellant's lack of