Opinion
No. 06-17-00005-CV
03-09-2017
TROY D. THOELE, Appellant v. HEATHER M. THOELE, Appellee
On Appeal from the County Court at Law No. 1 Brazos County, Texas
Trial Court No. 11-001609-CVD-CCL1 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Troy D. Thoele appeals from the trial court's December 16, 2016, order denying Thoele's "Motion For Enforcement Requesting Contempt," which asked the trial court to hold Heather M. Thoele in contempt of court for allegedly violating the terms of the parties' divorce decree.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
Our jurisdiction, as an appellate court, is constitutional and statutory in nature. See TEX. CONST. art. V, § 6; TEX. GOV'T CODE ANN. § 22.220 (West Supp. 2016). Stated differently, in the absence of a specific grant of jurisdiction by the Texas Constitution or the Texas Legislature, an appellate court lacks jurisdiction to act. The question, then, is whether either the Texas Constitution or the Texas Legislature has granted this Court jurisdiction to hear the type of interlocutory appeal that Thoele has noticed. The trial court's December 16 order denying Thoele's motion to hold Heather in contempt of court does not fall within any of the categories of appealable interlocutory orders. See Vega v. Lira, No. 01-16-00369-CV, 2016 WL 4253696, at *2 (Tex. App.—Houston [1st Dist.] Aug. 11, 2016, no pet.) (per curiam) (mem. op.) (citing TEX. FAM. CODE ANN. § 109.002(b); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(1)-(12)).
Moreover, it has long been the law in the State of Texas that decisions in contempt proceedings are not reviewable on direct appeal. Hooper v. Hooper, No. 14-09-01024-CV, 2011 WL 334198, at *1 (Tex. App.—Houston [14th Dist.] Feb. 3, 2011, no pet.) (mem. op.) (citing In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915-16 (Tex. App.—Fort Worth, orig. proceeding)); see Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam) (holding appellate court lacked jurisdiction over direct appeal from order finding party not in contempt). "A ruling denying a motion for contempt can be challenged only by an original proceeding." Hooper, 2011 WL 334198, at *1.
There is a line of cases that allow a direct appeal from rulings made during a contempt proceeding but involving issues wholly unrelated to the issue of contempt. For example, "[i]f a motion to enforce includes a request for both a contempt finding and a money judgment for child support arrearage, an appellate court has jurisdiction to address the arrearage judgment because it is unrelated to the contempt order." In re E.H.G., No. 04-08-00579-CV, 2009 WL 1406246, at *5 (Tex. App.—San Antonio May 20, 2009, no pet.) (mem. op.). However, the motion to enforce filed in this matter does not appear to include anything other than a request for a contempt finding. "We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it." State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (citing TEX. R. CIV. P. 71).
By letter of January 10, 2017, we informed Thoele of this potential defect in our jurisdiction and afforded him the opportunity to demonstrate proper grounds for our retention of the appeal. Thoele did not file a response to our letter.
In light of the foregoing, we dismiss the appeal for want of jurisdiction.
Bailey C. Moseley
Justice Date Submitted: March 8, 2017
Date Decided: March 9, 2017