







Dismissed and Majority and Dissenting Opinions filed October 7, 2004








Dismissed and Majority and Dissenting Opinions filed
October 7, 2004.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-01090-CV
____________
 

IN THE INTEREST OF K.M.B. AND D.R.B.
 

 
On Appeal from the County Court at Law
Waller County, Texas
Trial Court Cause No. 99-12-15216

 

 
M A J O R I T Y   O P I N I O N
This is an appeal from an order
reducing a child-support obligation.  As
a threshold matter, we must decide whether this court has jurisdiction.  After reviewing the record, we conclude that
the two judgments signed by the trial court are not final and appealable
because they do not dispose of the attorney=s fees
issues.  Accordingly, we dismiss this
appeal for lack of jurisdiction.
I.  Factual and Procedural
Background




Appellant Aaron Braziel and appellee Stephanie Braziel
finalized their divorce on November 30, 2000. 
The final divorce decree gave Aaron the right to establish the primary
residence for the couple=s two children. 
Stephanie was ordered to pay $519.75 a month in child support and to
reimburse Aaron for the cost of providing health insurance for the children
through his employer=s insurance plan.  The
sum of $519.75 a month was based on Stephanie=s income of $35,000 a year.
In November of 2001, Stephanie voluntarily left her job with
Lone Star Tower Co.  She testified that
in February of 2002, she began to work as a dancer, making $80 to $200 a day
and typically working no more than three days a week.  On February 13, 2003, the office of the
Attorney General filed a AMotion for Enforcement and Modification of Child Support
Order,@ alleging Stephanie was $3,356.26 in
arrears on her child support obligations as of January 27, 2003.  The Attorney General=s Office asked the court to (1) hold
Stephanie in contempt and punish her by fine or jail time, (2) order Stephanie
committed to the county jail until she paid the child-support arrearage,
reasonable attorney=s fees, and court costs, (3) confirm and enter judgment for
the child-support arrearage and accrued interest, (4) order payment and income
withholding to liquidate the judgment, (5) modify the amount of the payments
required by the child-support order and adjust the provisions regarding the
children=s health insurance, (6) withhold
support from disposable earnings, and (7) award reasonable attorney=s fees and all other costs of the
proceeding. 
A hearing on the Attorney General=s motion was held before a master on
May 22, 2003.  The master signed a
proposed order finding that Stephanie was $4,374.47 in arrears as of April 30,
2003, and recommended that she pay that sum in installments.  The master also recommended reducing the
child-support payments to $224.60 a month because the master found such a
reduction warranted based on changed circumstances since the entry of the
November 2000 divorce decree.  On May 23,
2003, Aaron filed a notice of appeal from the master=s hearing, objecting to most of the
master=s findings.  On May 28, 2003, the trial court approved and
adopted the master=s report Aas the order of the [c]ourt@ (the AMay Order@). 





On August 12, 2003, the trial court held a hearing in
response to Aaron=s appeal from the master=s hearing.  The trial court entered an order on that date
(the AAugust Order@) in which the trial court found,
among other things, that (1) Stephanie was $2,625.43 in arrears on child
support obligations as of August 12, 2003; (2) Stephanie had intentionally
under-employed herself; and (3) a modification of the child support payments to
$335.99 a month was warranted.  On
September 11, 2003, Aaron filed a notice of appeal contesting the portion of
the August Order that reduced Stephanie=s monthly child-support obligation.
II.  Analysis
and Discussion
To
determine whether this court has jurisdiction to consider the matters presented
on appeal, we must determine if the order from which this appeal is taken is a
final appealable order.  




An order
that disposes of all claims and parties then before the court is a final
appealable order.  See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 192B93 (Tex.
2001); State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995)
(per curiam).[1]  In this case, the trial court=s order
signed on May 28, 2003, adopted the master=s report Aas the
order of the [c]ourt.@  In the May Order, the trial court ordered
Stephanie committed to the county jail until she paid A$2,000.00
in child support arrearages; [no] attorney=s fees;
and [no] court costs,@ thus
ruling on the Attorney General=s request
that the trial court order
Stephanie committed to the county jail until she paid the child-support
arrearage, reasonable attorney=s fees, and court costs. 
Although not requested by the Attorney General, the trial court
suspended this commitment and placed Stephanie on community supervision for
sixty months.  In listing the conditions
of Stephanie=s community supervision in the
May Order, the master struck from the form order a condition that read Apay
attorney fees as ordered herein.@[2]  No provision of the May Order states that the
court grants or denies the Attorney General=s claim
for attorney=s fees.  Although the May Order does not require
Stephanie, as a condition of community supervision, to Apay
attorney fees as ordered herein,@ this is
not surprising because the May Order does not order Stephanie to pay attorney=s
fees.  However, the trial court=s failure
to order Stephanie to pay attorney=s fees
does not constitute a denial of the Attorney General=s claim
in this regard.  The trial court may have
intended to address the issue of attorney=s fees
later and then amend the conditions of community supervision accordingly, or
the trial court may have intended to address this issue later, but not to make
the payment of attorney=s fees a
condition of community supervision so as to make it easier for Stephanie to
satisfy these conditions.  In any event,
in the absence of language in the May Order ruling on the pending claim for
attorney=s fees,
we conclude that the May Order does not dispose of all issues and is not a
final and appealable judgment.  See
McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001); Lehmann, 39
S.W.3d at 192B93. 




The
dissent asserts that the May Order does rule on the attorney=s fees
claim based on the section of the May Order entitled, ASuspended
Commitment,@ in which the master struck the
requirement to Apay
attorney fees as ordered herein@ as a
condition of Stephanie=s
community supervision.  However, this
action by the master indicates only that payment of attorney=s fees
was not a condition of community supervision, not that the master considered
the Attorney General=s claim
for attorney=s fees in the enforcement and
modification proceeding and denied it.  See
Tex. Fam. Code Ann. ' 157.211
(Vernon 2002) (stating that terms and conditions of community supervision may
include the requirement that respondent pay attorney=s fees as
ordered by court); id. ' 231.211
(stating that trial court may, with certain exceptions, assess attorney=s fees
against nonprevailing party in proceeding brought by Attorney General as Title
IV-D agency).  Because the May Order did
not dispose of the Attorney General=s claim
for attorney=s fees, this order was not a
final and appealable order. 
Although
this court has held that a trial court=s failure
to award attorney=s fees in
a suit affecting the parent-child relationship does not affect the finality of
an order, the statute upon which the court was relying has since been
changed.  See In re J.R., 123
S.W.3d 669, 671B72 (Tex. App.CHouston [14th Dist.] 2003, no
pet.).  In In re J.R., this court
based its decision on the language in the former version of Texas Family Code
section 106.002, which stated that attorney=s fees in
such cases are awarded as costs.  See
id.; Tex. Fam. Code Ann. '
106.002(a) (Vernon 2002).  The statute no
longer states that the court may order attorney=s fees as
costs.  See Tex. Fam. Code Ann. '
106.002(a) (Vernon Supp. 2004).  The
phrase Aas costs@ has been
removed, and the statute now reads: AIn a suit
under this title, the court may render judgment for reasonable attorney=s fees
and expenses . . . .@  Id. Because the new statutory language
applies to this case,[3]
this court=s prior decision in In re J.R.
does not apply.




The trial
court=s August
Order presents a different situation. 
The trial court held a hearing in response to Aaron=s appeal
from the master=s ruling,
despite the fact that the trial court already had adopted the recommendations
in the master=s report on May 28, 2003.  At the hearing, Aaron=s
attorney testified as to his attorney=s fees
and requested the trial court to award Aaron $1,500 in attorney=s
fees.  Following the testimony, the
attorneys and the trial court engaged in a discussion as to whether attorney=s fees
were allowed under the Texas Family Code in the circumstances of this case.  The trial court indicated that it would take
the matter under advisement; however, at the conclusion of the hearing, the
trial court stated:  AAnd the
[c]ourt having taken a moment to read the statute is going to order that there
is [sic] no attorney=s fees to
be paid in this matter and otherwise will approve the judgement [sic] that=s been
presented today.@  The written order from the same day does not
include this statement from the trial court; rather, in the written order, the
trial court expressly reserved ruling on the issue of attorney=s fees
requested by Aaron and his attorney.[4]  The docket sheet indicates that sixteen days
later, on August 28, 2003, the trial court ordered Stephanie to pay $1,500 in
attorney=s fees.[5]  The trial judge=s
signature appears immediately below this entry on the docket sheet.  
First, we
must address the inconsistency between the trial court=s oral
pronouncement at the hearing and its written order stating that the court
reserved ruling on the issue of attorney=s
fees.  A written judgment or order
controls over a trial court=s oral
pronouncement. See, e.g., Ex parte Mathis, 822 S.W.2d 727, 732 (Tex. App.CTyler 1991, no writ); Gasperson
v. Madill Nat=l Bank, 455
S.W.2d 381, 387 (Tex.
App.CFort Worth 1970,
writ ref=d
n.r.e.).  Therefore, the trial court=s
statement in the August Order that it would reserve ruling on Aaron=s claim
for attorney=s fees controls over the oral
pronouncement made at the end of the hearing. 
As a result, the August Order is not a final appealable order because it
does not dispose of the issue of attorney=s
fees.  See McNally, 52 S.W.3d at
196.  




Second,
the docket-sheet entry did not constitute a signed, written order.  See Jauregui Partners, Ltd. v. Grubb &
Ellis Commercial Real Estate Servs., 960 S.W.2d 334, 335B36 (Tex. App.CCorpus Christi 1997, pet. denied)
(op. on reh=g) (finding notation on trial jacket
granting motion for new trial was not a written order); Grant v. American
Nat=l Ins. Co., 808 S.W.2d 181, 181B84 (Tex. App.CHouston [14th Dist.] 1991, no writ)
(holding docket entry under heading AOrders of Court@ with judge=s initials beside it did not
constitute a final, appealable judgment). 
Therefore, absent a signed order disposing of the issue of attorney=s fees, the trial court did not
dispose of all claims, and its judgment is not final.  See Pruett v. Pruett, 754 S.W.2d 802, 803
(Tex. App.CTyler 1988, no pet.) (finding no
appellate jurisdiction when trial court rendered judgment for child-support
arrearage but expressly reserved issue of attorney=s fees).  This court has no jurisdiction to entertain
an appeal from a judgment that is not final.
Neither
the May Order nor the August Order disposes of all issues and parties.  Because neither order is a final and
appealable judgment, we dismiss this appeal for lack of appellate
jurisdiction.  
 
/s/        Kem Thompson Frost
Justice
 
Judgment rendered and
Majority and Dissenting Opinions filed October 7, 2004.
 
Panel
consists of Chief Justice Hedges and Justices Frost and Guzman. (Hedges, C.J.,
dissenting).
 




[1]  Under Lehmann,
a judgment is also final and appealable if the judgment states with
unmistakable clarity that it is a final judgment.  See Lehmann, 39 S.W.3d at 192B93.  The trial
court=s May 28, 2003 and August 12, 2003, orders do not
state with Aunmistakable clarity@ that
they are final judgments.     


[2]  The order
reads as follows under the heading ASuspended
Commitment@:
 
The Court suspends the commitment and places STEPHANIE
M. BRAZIEL on community supervision for 60 months from the date of this
order.  As terms and conditions of
community supervision, STEPHANIE M. BRAZIEL shall:
. . .
4.  pay attorney fees as ordered herein;


[3]  The new
version of the statute became effective on September 1, 2003.  See Tex.
Fam. Code Ann. ' 106.002 (Vernon Supp. 2004).  It applies to a suit affecting the
parent-child relationship pending in a trial court on that date or filed on or
after that date.  See Acts of
2003, 78th Leg., R.S., ch. 478, ' 2, 2003
Tex. Gen. Laws, 1744, 1744.  Aaron filed
his notice of appeal with this court on September 11, 2003, so this case was
pending in the trial court on September 1, 2003.  


[4]  The dissent
finds difficulty in reconciling the May Order, in which the master struck the
payment of attorney=s fees as a condition of community supervision, with
the August Order, in which the same line was not struck.  First, the orders did not originate in the
same manner.  The May Order is a proposed
order signed by the master and then adopted by the trial court.  The August Order is an order directly from
the trial court.  Second, by making payment
of attorney=s fees awarded in the August Order a condition of
Stephanie=s community supervision, the trial court did not rule
on the attorney=s fees claim because the court did not determine in
the August Order whether any fees should be awarded.  Rather, the trial court expressly reserved
ruling on whether attorney=s fees should be awarded to Aaron and his
attorney.  Further, the August Order is
silent as to whether any attorney=s fees
should be awarded to the Attorney General. 
As with the May Order, this silence does not constitute a ruling on the
attorney=s fees claim.    



[5]  The docket
sheet reads: AOn 8/12/03 the [c]ourt reserved ruling on the matter
of attorneys [sic] fees.  After review of
157.167 the court orders Ms. Braziel to pay attorneys [sic] fees in the amount
of $1500.00.@


