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Cornwell v. Cornwell

Court of Appeals of Texas, Second District, Fort Worth

December 28, 2017

WILLIAM CORNWELL APPELLANT
v.
SUZANNE CORNWELL APPELLEE

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-06165-158

          PANEL: WALKER and PITTMAN, JJ., and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

          MEMORANDUM OPINION[1]

          SUE WALKER JUSTICE.

         I. Introduction

         Appellant William Cornwell attempts a restricted appeal. Because we lack jurisdiction over this appeal, we dismiss it.

         II. Factual and Procedural Background

         The trial court conducted a final hearing in the divorce proceeding between William and Appellee Suzanne Cornwell on May 9, 2016. William did not attend the hearing, but he was represented by counsel at the hearing. The trial court signed a final decree of divorce on June 2, 2016, and William timely filed a motion for new trial on July 5, 2016.[2]

         To implement the property division set forth in the final decree, and as agreed by the parties at the final trial, the trial court subsequently signed a July 12, 2016 qualified domestic relations order (QDRO) concerning William's retirement account identified as the NetScout Systems, Inc. 401k Savings Plan.

         At a later hearing on William's motion for new trial, the trial court questioned the parties about the fact that of the monies that were supposed to be in the NetScout 401k, about "180-plus thousand" were not there. William explained on the record that these monies were not in the NetScout 401k but were in his Danaher Corporation & Subsidiaries Savings Plan 401k, "which was the account prior to the acquisition of the company to NetScout." He explained that "NetScout has started a brand-new 401k." The trial court gave the parties instructions to "get that taken care of" and to "get the QDRO squared away."

         On October 25, 2016, the trial court signed a QDRO concerning the Danaher 401k (Danaher QDRO) to effectuate the property division reflected in the final decree. William filed a second motion for new trial, which the trial court denied on February 22, 2017.

         William filed a notice of appeal on March 24, 2017, identifying the trial court's February 22, 2017 order denying his motion for new trial as the order he was appealing from. After our court sent a letter questioning our jurisdiction over this appeal, William filed an amended notice of appeal. In his amended notice of appeal, William again purports to appeal from the trial court's February 22, 2017 order denying his motion for new trial. He sets forth the restricted-appeal requirements and argues that he has met them.

         III. William Has Failed to Invoke This Court's Jurisdiction

         A. No Appeal from Order Denying Motion for New Trial

         No appeal from an order denying a motion for new trial exists separately from an appeal of the underlying judgment. See Macklin v. Saia Motor Freight Lines, Inc., No. 06-12-00038-CV, 2012 WL 1155141, at *1 (Tex. App.- Texarkana Apr. 6, 2012, no pet.) (mem. op.) (dismissing appeal for want of jurisdiction because an "order denying a motion for reconsideration or motion for new trial is not a judgment, and is not independently appealable"). To the extent William claims his March 24, 2017 notice of appeal is timely because it ...


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