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In re R.R.K.

Supreme Court of Texas

December 13, 2019

In the Interest of R.R.K., a Child

          Argued September 19, 2019

          On Petition for Review from the Court of Appeals for the Fifth District of Texas



         In this 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.


         In 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.

         After a 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."

         Two 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 being drafted."

         After 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 § 105.006.

         The 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.

         On 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.[1] 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."[2] 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.[3] We granted the mother's petition for review.


         Under 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.[4] The time for filing a notice of appeal begins to run from the date the trial court signs the final order.[5] A party seeking to appeal must file a notice of appeal within 30 days of the final order, absent an appropriate post-judgment motion.[6] An appropriate and timely filed post-judgment motion extends the time for filing the notice of appeal from 30 days to 90 days.[7]


         The 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.[8] 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.[9]

         Section 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.[10] The order must provide a statutory notice to peace officers of the order's enforceability.[11] 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.[12] Section 105.006 thus provides a framework for what final orders must say in suits affecting the parent-child relationship.


         Added 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.[13] 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."[14] When an order "finally disposes of all claims and all parties" in "clear and unequivocal language," it is a final order.[15] 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.[16]

         The trial court's memorandum in this case includes "Mother Hubbard" language-"a recitation that all relief not expressly granted is denied."[17] As we observed in Lehmann, a Mother Hubbard clause can indicate finality after a trial on the merits.[18] We also generally presume that a judgment following a conventional trial on the merits is final for purposes of appeal.[19]

         But 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.[20] 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."[21]

         Our 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).

         Lehmann therefore clarified that Mother Hubbard clauses are not a conclusive indication of finality.[22] 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.[23]



         A Mother Hubbard clause is not conclusive of finality when other aspects of the order render the meaning of the clause uncertain.[24] 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" about finality.

         The 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.

         The 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.[25] 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.[26] 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 ...

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