Child support appeal: With or without supersedeas?

Court of Appeals abates appeal and sends case back to the trial court to decide whether to suspend enforcement of child support arrears judgment and whether to require posting of a supersedeas bond or impose other conditions.

Inman v. Bryant, No. (Tex.App. - Austin, May 16, 2008)() (SAPCR appeal, child support enforcement, abatement, suspension of judgment, supersedeas bond) (Before Justices Patterson, Puryear and Henson)
Gerald Wayne Inman v. Sherry Ann Bryant--Appeal from 426th District Court of Bell County

Appeal from 426th District Court of Bell County

M E M O R A N D U M O P I N I O N

The trial court signed an order awarding appellee Sherry Ann Bryan almost $30,000 in child support arrearages from appellant Gerald Wayne Inman. Appellant, who is representing himself pro se, timely filed a notice of appeal and affidavit of indigence on March 14, 2008. Two weeks later, he filed a motion in this Court asking us to suspend the enforcement of the judgment, citing rule 24.2 of the rules of appellate procedure and arguing that he is entitled to suspension of the judgment without the need to post a supersedeas bond. See Tex. R. App. P. 24.2(a)(1) (to suspend judgment for money, bond must equal money award plus interest and costs, but may not exceed lesser of $25 million or 50% of judgment debtor's net worth). Appellee has filed a response asserting that the trial court has sole jurisdiction to determine the sufficiency of supersedeas and whether the bond amount should be reduced.

Appellant has since filed a motion asking for an extension time to pay his filing fees and again asking us to suspend the judgment. In this motion, he explains that the court reporter filed a contest to his affidavit of indigence and that, after a hearing, the court signed an order sustaining the contest and denying appellant's request for a free record. Appellant asserts that he did not receive notice of the contest and hearing on the contest until nearly two weeks after the contest was filed and three days after the trial court signed its order. He filed a motion in the trial court asking for a new hearing on the contest; the record does not reflect whether the trial court has acted on that motion.

We agree with appellee that the trial court is the proper court to determine whether the judgment should be suspended. See Tex. Fam. Code Ann. § 109.002(c) (West 2002) (appeal from final SAPCR order does not stay order unless trial court orders suspension "with or without a supersedeas bond").

We therefore abate the appeal until June 30, 2008, and remand it to the trial court to determine whether the judgment should be suspended and if so, under what conditions.
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David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: May 16, 2008

SACPR: Order denying enforcement not appealable

Rivas v. Rivas, No. (Tex. App.- Austin, Feb. 15, 2008) (Opinion by Justice Pemberton )(no appeal from order denying SAPCR enforcement petition, DWOJ)(right to make educational decision for child, choice of school) (Before Justices Patterson, Puryear and Pemberton)
Karl T. Rivas v. Julie Hetherly Rivas
Appeal from 22nd District Court of Comal County

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2005-0760A, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Karl T. Rivas brings this appeal from an order denying a petition for enforcement of a final order for conservatorship of and possession and access to a child. Karl filed a petition for enforcement against his ex-wife, Julie Hetherly Rivas, (1) alleging that Julie violated provisions of their agreed final decree of divorce by removing their children from their Comal County schools and enrolling them in Lampasas County schools. Finding that "there was no violation of the Agreed Final Decree of Divorce as alleged," the district court entered an order denying Karl's petition for enforcement. Karl attempts to appeal from this order. Julie has filed a motion to dismiss the appeal on grounds that we lack subject matter jurisdiction. Because we conclude that we do not have subject matter jurisdiction, we grant Julie's motion and dismiss this appeal.

Chapter 157 of the family code allows a party to file a motion for enforcement "to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order." Tex. Fam. Code Ann. § 157.001(a) (West 2002). Chapter 157 goes on to provide that "[t]he court may enforce by contempt a final order for possession of and access to a child as provided in this chapter." Id. § 157.001(b) (West 2002).

Courts of appeals do not have jurisdiction to review by direct appeal an order finding a party not in contempt. Norman v. Norman, 692 S.W.2d 655 (Tex. 1985) ("[A]n order finding a party not in contempt is not a final, appealable judgment."); Pruett v. Pruett, 754 S.W.2d 802, 803 (Tex. App.--Tyler 1988, no writ). Furthermore, "an order made for the purpose of carrying into effect a prior judgment is not a final judgment and 'cannot be appealed from.'" Wall St. Deli v. Boston Old Colony Ins., 110 S.W.3d 67, 69 (Tex. App.--Eastland 2003, no pet.) (quoting Wagner v. Warnasch, 295 S.W.2d 890, 893 (Tex. 1956)); see also N.H. Ins. Co. v. Tobias, 80 S.W.3d 146, 148 (Tex. App.--Austin 2002, no pet.) (dismissing appeal for want of jurisdiction because order appealed from was neither a final judgment nor an appealable interlocutory judgment).

Because we do not have jurisdiction to review the trial court's order denying Karl's petition for enforcement, we dismiss this appeal for want of jurisdiction.
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Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: February 15, 2008

1. To avoid confusion with the common surname, we will refer to the parties by their first names.