September 19, 2019
Petition for Review from the Court of Appeals for the Fifth
District of Texas
N. BLAND, JUSTICE
case, we decide whether a memorandum order modifying
possession and child support is final and appealable,
rendering the trial court's later order void, and the
mother's appeal untimely. Relying on a Mother Hubbard
clause, the court of appeals held that the memorandum order
was the final order, and it dismissed the mother's appeal
for lack of jurisdiction. We conclude that the memorandum
order lacks "clear and unequivocal" indicia of
finality, requiring an examination of the record to determine
the trial court's intent. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 205-06 (Tex. 2001); In re
Elizondo, 544 S.W.3d 824, 827 (Tex. 2018) (per curiam).
The record in this case demonstrates that neither the trial
court nor the parties intended the memorandum to be the final
order. Because the trial court's later "Order in
Suit to Modify Parent-Child Relationship" is the
appealable order, the mother's notice of appeal was
timely filed. We therefore reverse.
2014, R.R.K.'s parents obtained a court order
establishing possession and support obligations for their
child. A year later, R.R.K.'s father moved to modify the
trial court's order, citing changed circumstances.
bench trial, the trial court issued a "memorandum."
The one-page memorandum contains bullet-point orders
modifying some aspects of the parties' possession and
support obligations and removing others. A final point
contained a Mother Hubbard clause, stating that "[a]ny
and all relief not expressly granted is hereby DENIED."
days later, the father and mother signed a Rule 11 letter,
prepared by the father's counsel, setting forth their
agreement about possession for the upcoming Christmas
holidays. See Tex. R. Civ. P. 11. The letter recited
that the agreement was made "in anticipation of an Order
the holidays, the father moved for entry of a final order.
The mother proposed her own final order in response. Each
proposal incorporated the trial court's memorandum
orders. The proposals included: (1) statutorily-required
identification information; (2) required warnings that
failure to comply with possession and support obligations
could result in a finding of contempt; and (3) complete and
specific-rather than piecemeal-possession and child support
obligations, covering all periods of possession and stating
the amount the father must pay. See Tex. Fam. Code
trial court heard the parties' motions and signed a
51-page "Order in Suit to Modify Parent-Child
Relationship." From that order, both parents requested
findings of fact and conclusions of law, and the mother
timely filed a notice of appeal.
appeal, no party challenged appellate jurisdiction. The court
of appeals, however, sua sponte questioned whether
it had jurisdiction and ultimately dismissed the mother's
appeal as untimely. The court of appeals held that the trial
court's memorandum constituted a final order, reasoning
that the "memorandum substantially complie[d] with the
requisites of a formal judgment." Concluding that
the appellate deadlines ran from the date of the
"memorandum," and not the trial court's later
order, the court of appeals held that the mother's notice
of appeal was filed more than three months too late, and it
dismissed her appeal for lack of jurisdiction. We granted the
mother's petition for review.
the Family Code, a party may appeal a "final order"
in a suit affecting the parent-child relationship, including
a final order in a modification proceeding. The time for
filing a notice of appeal begins to run from the date the
trial court signs the final order. A party seeking to appeal
must file a notice of appeal within 30 days of the final
order, absent an appropriate post-judgment
motion. An appropriate and timely filed
post-judgment motion extends the time for filing the notice
of appeal from 30 days to 90 days.
Family Code establishes specific requirements for final
orders in suits affecting the parent-child relationship.
Entitled "Contents of Final Order," section
105.006(a) provides that a final order in a proceeding like
this one "must contain" the parties'
driver's license and social security information, current
home and work addresses, and telephone numbers. Section
105.006(b) requires the trial court to include an order that
each party notify the court, the other parties, and the state
of changes in the party's identifying information, for as
long as any party is obligated to pay child support or is
entitled to possession or access to the child.
105.006(d) further provides that final orders must
prominently feature statutory warnings stating the legal
consequences for failing to comply with the order, and the
failure to pay child support does not justify denying
court-ordered possession. The order must provide a
statutory notice to peace officers of the order's
enforceability. For child support orders, final orders
must prominently include the circumstances in which a court
may modify court-ordered child support, using language
provided by the statute. Section 105.006 thus provides a
framework for what final orders must say in suits affecting
the parent-child relationship.
to this statutory framework is our finality jurisprudence. A
judicial decree is final when it disposes of all issues and
all parties in the record. Because a court order need not
be in any particular form, "whether a judicial decree is
a final judgment must be determined from its language and the
record in the case." When an order "finally
disposes of all claims and all parties" in "clear
and unequivocal language," it is a final
order. If, however, an order's finality is
not "clear and unequivocal," then a reviewing court
must examine the record to determine whether the trial court
intended the order to be final.
trial court's memorandum in this case includes
"Mother Hubbard" language-"a recitation that
all relief not expressly granted is
denied." As we observed in Lehmann, a
Mother Hubbard clause can indicate finality after a trial on
the merits. We also generally presume that a
judgment following a conventional trial on the merits is
final for purposes of appeal.
orders following a conventional trial can be ambiguous as to
their finality, overcoming the presumption of finality, and
in Vaughn v. Drennon we held that "[i]f there
is any doubt as to the judgment's finality," we
should review the record to determine whether the trial court
intended the order to be final, even if it was signed after a
trial. Our "any doubt" rule resolves
disputes about finality by placing an order in its context.
The right to appeal should not be "abridged by judgments
that were drafted poorly or were unclear."
finality rule before Lehmann was simpler: an order
was final when it included "language purporting to
dispose of all claims or parties." Mafrige v.
Ross, 866 S.W.2d 590, 592 (Tex 1993), overruled
by Lehmann, 39 S.W.3d at 203-04 We departed
from that rule in Lehmann because it "created more
problems than it solved-confusing the lower courts, operating
as a trap for unwary litigants, and consistently bringing
about arguably unjust and oftentimes absurd results"
Lehmann, 39 S.W.3d at 208 (Baker, J, concurring).
therefore clarified that Mother Hubbard clauses are not a
conclusive indication of finality. Lehmann's
rule strikes a better balance. "Clear and
unequivocal" language that reflects an intent to dispose
of the entire case is given effect, but when there is doubt
about finality, the record resolves the issue.
Mother Hubbard clause is not conclusive of finality when
other aspects of the order render the meaning of the clause
uncertain. That is the case here. Unlike orders
that we have recognized as unmistakably final, the memorandum
order in this case does not remove "any doubt"
memorandum's bullet points belie the proposition that it
is a final order because possession and support issues
remained unresolved. The memorandum provides that possession
be evenly split and that the Christmas and Thanksgiving
holiday schedule "follow the Texas Family Code." It
does not set forth this schedule, however, and otherwise
lacks a disposition for possession for other holidays. It
does not assign possession to one parent or the other based
on any schedule. As to child support, the memorandum ordered
an "offset" based on the father and mother's
monthly gross incomes, but it neither calculates the
parents' net resources nor states the amount of the new
child support payment.
trial court's memorandum lacks many of section
105.006's requirements for final orders and contains none
of the statutorily-required warnings and
advisories. The courts of appeals have differed in
their consideration of the effect of compliance with section
105.006 on finality, with some holding that section 105.006
plays no role in determining finality and others viewing lack
of compliance as part of the overall finality analysis. We
agree with the latter approach. While a missing required
element does not conclusively negate finality, a failure to
include multiple required elements suggests ambiguity as to
the trial court's intent. In ...