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In re B.E.T.

Court of Appeals of Texas, Fifth District, Dallas

February 27, 2018

IN THE INTEREST OF B.E.T., A CHILD

         On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-16-0527

          Before Justices Lang, Brown, and Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         Appellee Mother filed a new trial motion thirty-seven days after the trial judge signed a final divorce decree. Mother, however, never filed a Rule 306a motion or otherwise proved the matters set forth in Rule 306a(4). Nevertheless, the trial judge granted Mother's new trial motion, held a new trial, and signed a new final divorce decree.

         Father appeals, arguing that the trial court lacked plenary power to sign the second divorce decree. Mother has not filed an appellee's brief.

         We agree with Father and accordingly vacate the second divorce decree and dismiss this appeal.

         I. Facts

         Appellant Father filed a petition seeking a divorce from Mother. Mother did not answer.

         On August 29, 2016, the trial court held a bench trial at which Father and a representative of the Texas Attorney General appeared. That same day, the trial court signed a final divorce decree. The decree made both parents joint managing conservators and gave Father the exclusive right to designate B.E.T.'s primary residence.

         The clerk's record contains a "notice of court order" by the district clerk. The notice says that a final divorce decree was signed on August 29, 2016. The notice also says that it was mailed on September 6, 2016 to Mother at a specific street address and apartment number.

         On September 23, 2016, Mother filed a pro se "notice of appeal." The notice is a form document that Mother completed by hand. It recites that Mother intends "to appeal the decision of the Office of the Attorney General rendered on August 29, 2016. . . . This appeal is taken to the District Court in ___County, Texas."[1] Mother wrote her address on the notice of appeal. That address is slightly different from the one recited on the September 6, 2016 notice of court order. Specifically, Mother gave her street address number as "406, " while the notice of court order said that Mother's street address number was "409." The street name and apartment number were the same on the court clerk's notice and Mother's notice of appeal.

         On October 5, 2016, Mother-now acting through counsel-filed a new trial motion. The motion erroneously says that the final divorce decree was signed on September 6, 2016.

         Father responded to the new trial motion, arguing that it was filed late.

         In November 2016, the trial court heard and orally granted Mother's new trial motion. The judge also made a handwritten docket entry noting that the new trial motion had been granted. The record, however, ...


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