Court of Appeals of Texas, Fourth District, San Antonio
the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 10-2084-CV Honorable W.C. Kirkendall, Judge
Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene
appeal arises out of a post-divorce proceeding between
appellant Juan Robles and appellee Maria Milagros Robles.
Juan asserts the trial court lacked plenary power to hold a
hearing on Maria's motion to reconsider or enter the
March 22, 2016 order granting Maria's motion to
reconsider. Because we agree the trial court lacked plenary
power to enter the order, we vacate the March 22, 2016 order
and dismiss the appeal for lack of jurisdiction.
parties married on January 4, 1985. Maria filed her original
petition for divorce in Guadalupe County on October 1, 2010,
and Juan filed a counter-petition. The parties entered into a
Mediated Settlement Agreement (MSA) on May 20, 2011, and a
Final Decree of Divorce was entered on June 19, 2013.
the parties disputed the division of a Thrift Savings Plan
(TSP) in the initial Qualified Domestic Relations Order
(QDRO) and, subsequently, they were ordered to arbitration
for a determination regarding the date designated for
division of the TSP, among other issues. The arbitrator
determined the date for division of the TSP was May 20, 2011
- the date of the MSA, and Juan filed a motion to enforce the
arbitration award and motion for entry of arbitration. On
August 13, 2015, the trial court signed an order granting
Juan's motion and directing Maria to reimburse Juan $13,
542.49 for overpayment from the TSP (the "corrected
August 31, 2015, Maria filed a Motion to Reconsider or
Alternatively Order Arbitration. On November 17, 2015, the
trial court held a hearing during which Juan argued the trial
court lacked plenary power to hold the hearing. The trial
court disagreed and proceeded with the hearing. The hearing
was subsequently reset for November 23, 2015. At the
conclusion of the hearing, the trial court orally pronounced
its ruling and set the amount of Maria's reimbursement to
the TSP at $5, 156.14 rather than $13, 542.49. The trial
court also ordered Juan to pay Maria $2, 500.00 in
attorney's fees. On March 22, 2016, the trial court
signed a written order granting Maria's motion to
reconsider and awarding her attorney's fees.
contends the trial court lacked plenary power to proceed with
the hearings on November 17, 2015 and November 23, 2015, and
as a result, the trial court's March 22, 2016 order is
void. Juan argues the trial court's plenary power expired
thirty days after the trial court signed the August 13, 2015
corrected QDRO because the motion filed by Maria did not
extend the trial court's plenary power. Juan additionally
argues that even if the trial court's plenary power was
extended by Maria's motion, the trial court's plenary
power expired before it signed the written order granting
Maria's motion on March 22, 2016.
review whether a trial court has subject matter jurisdiction
de novo. Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
trial court's August 13, 2015 corrected QDRO order is a
final, appealable order, which has the same effect as a
judgment. See Reiss v. Reiss, 118 S.W.3d 439, 441
(Tex. 2003) (post-divorce QDRO reviewed by appeal);
Beshears v. Beshears, 423 S.W.3d 493, 500 (Tex.
App.- Dallas 2014, no pet.).
court retains plenary power to grant a new trial or to
vacate, modify, correct, or reform a judgment within thirty
days after the judgment is signed. Tex.R.Civ.P. 329b(d);
First Alief Bank v. White,682 S.W.2d 251, 252 (Tex.
1984) (orig. proceeding) (per curiam). If no party to a
judgment files a motion to extend the trial court's
plenary power, the trial court loses plenary power over the
judgment thirty days after the judgment is signed.
Pollard v. Pollard,316 S.W.3d 246, 251 (Tex.
App.-Dallas 2010 no pet.). If such a motion is timely filed,
the trial court has plenary power to grant a new trial or to
vacate, modify, correct, or reform the judgment until thirty
days after such motion is overruled by a written or signed
order or by operation of law. Tex.R.Civ.P. 329b(e). Such a
motion is overruled by operation of law seventy-five days
after the judgment is signed if no written order on
the motion is signed within that time period. Id. R.
329b(c) (emphasis added). The Texas Supreme Court has
recognized that "a timely filed postjudgment motion ...