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In re A.S.

Court of Appeals of Texas, Second District, Fort Worth

November 14, 2019

In the Interest of A.S. and C.S., Children

          On Appeal from the 158th District Court Denton County, Texas Trial Court No. 2013-20522-158

          Before Sudderth, C.J.; Womack and Wallach, JJ.

          MEMORANDUM OPINION

          Dana Womack, Justice

         I. Introduction

         In this suit affecting the parent-child relationship, Appellant Father[1] attempts to appeal from an order granting the motion for no evidence summary judgment of Appellee Mother and dismissing Father's petition to modify the conservatorship of the children. In response to the two issues raised by Father, Mother first argues that the summary judgment entered by the trial court is not final. We agree and dismiss the appeal for want of jurisdiction.

         II. Background

         On April 2, 2014, the trial court entered an agreed final decree of divorce between Father and Mother. More than three years later, Father filed his "Original Petition to Modify Conservatorship, Possession/Access, and Request for Temporary Orders." Thereafter, Mother filed a "Counterpetition to Modify Parent-Child Relationship." Both Father and Mother amended their pleadings, with Father requesting modification of joint managing conservatorship and child support and Mother requesting an increase in child support and the issuance of temporary orders.

         After discovery, Mother filed "Respondent's Motion for No Evidence Summary Judgment, and in the Alternative, Motion to Dismiss." The motion alleged that, after an adequate time for discovery, there was no evidence to support the request of Father for modification of custody. Prior to the October 25, 2018 hearing on the motion, Father filed his response to the motion. At the hearing, the trial court granted the motion for no evidence summary judgment.

         In the "Order Granting [Mother's] Motion to Dismiss" signed on November 7, 2018, the trial court found that "there is no genuine issue of material fact as to [Father's] claim for a modification of the prior order [, ]" granted the motion for no evidence summary judgment, and "dismiss[ed] [Father's] petition to modify the conservatorship of the children the subject of this suit." The order added,

The Court may reconsider attorney fees and court costs if a final hearing is necessary to resolve the remaining issues.
. . . .
This judgment disposes of all [Father's] claims, leaving only [Mother's] claim for modification of support for the final trial. This Judgment is final and appealable.

         In its "Judicial Docket Entries" on October 25, 2018, the trial court noted:

Judicial Docket Entry (Relief not timely pursued, including custody evaluation. Change in custody dismissed. Child support is live. Attorneys admonished that support issue will involve attorney fees if not resolved prior to hearing. The court also instructed counsel how the court normally calculates ...

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