Reversed and Remanded and Opinion Filed July 1, 2015




                                          S  In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00745-CV


                          IN THE INTEREST OF S.M.B., A CHILD


                      On Appeal from the 366th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 366-51444-2008

                             MEMORANDUM OPINION
                  Before Chief Justice Wright and Justices Brown and Stoddart
                                Opinion by Chief Justice Wright
       Appellant Stephen Aaron Bergenholtz challenges the trial court’s May 19, 2014 Order to

Unseal Records (the Order), which unseals the file in this suit affecting the parent child

relationship. In a single issue, appellant contends the trial court erred in granting appellee

Josephine Donna Eskenazi’s Motion for Court to Unseal Court Records (the Motion). We agree,

and we reverse the trial court’s Order.

       Throughout proceedings below, the file in this case has been sealed by agreement of the

parties and order of the trial court. Initially, the parties entered into an Agreed Confidentiality

Order, which the trial court signed. Subsequently, the parties entered into an Agreement Incident

to Divorce (the AID), which included—as a “material term of the parties’ settlement”—an

agreement to seal all testimony and documentary evidence in the case; this provision was

incorporated into the trial court’s Final Decree of Divorce (the Decree). The trial court ordered
that the entire file was to be sealed as soon as possible after entry of the Decree. When the

parties later resolved issues concerning property division with a settlement agreement, they

specifically incorporated the confidentiality provisions set forth in the AID and the Decree.

None of the parties’ agreements referred to or relied on rule 76a or any other rule or statutory

basis for sealing the file.

        Approximately three years later, appellee filed the Motion, stating:

        The circumstances of the parties and children [have] substantially changed since
        entry of the order sealing the court records in this cause and the court records
        should be unsealed.

In the Motion, appellee speaks primarily to changes brought about by electronic filing. She

contends she is unable to obtain copies of “pleadings, affidavits, and CDs in order to review

these documents and respond appropriately” because of the sealing order. She states she cannot

review the court’s docket online and cannot obtain the docket through the District Clerk. And

she states she cannot verify that documents have been filed or verify court settings. Her counsel,

she argues, cannot adequately represent her because of the sealing order.              Appellee also

represents that the parties’ youngest child was to graduate from high school and leave for college

last fall, so “[t]here is no further need to protect the child from the pleadings and documents on

file with the Court.” The trial court granted the Motion over appellant’s objection.

        The single legal authority cited in the Motion is rule 76a of the Texas Rules of Civil

Procedure. Appellant contends his appeal is proper under rule 76a, which provides:

        Any order (or portion of an order or judgment) relating to sealing or unsealing
        court records shall be deemed to be severed from the case and a final judgment
        which may be appealed by any party or intervenor who participated in the hearing
        preceding issuance of such order.

TEX. R. CIV. P. 76a(8). We agree that we have jurisdiction to determine whether the trial court

properly ordered the court’s file unsealed under rule 76a. See id. We review the Order for an

abuse of discretion. Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998).

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       In his sole issue, appellant argues that the records making up the file in this case are not

subject to rule 76a. That rule states that “court records, as defined in this rule, are presumed to

be open to the general public,” and it sets forth limited circumstances and procedures for

overcoming this presumption. TEX. R. CIV. P. 76a(1). If a party contests whether documents at

issue are court records within the meaning of rule 76a, the trial court must make a threshold

determination of whether the documents fall within the scope of the rule. Upjohn Co. v.

Freeman, 906 S.W.2d 92, 96 (Tex. App.—Dallas 1995, no writ). The rule’s definition of court

records is sweeping in the first instance: “all documents of any nature filed in connection with

any matter before any civil court.” TEX. R. CIV. P. 76a(2)(a). However, the rule makes three

exceptions to this broad category, and one of those exceptions is for “documents filed in an

action originally arising under the Family Code.” TEX. R. CIV. P. 76a(2)(a)(3). All documents in

the file in this case were filed in an action originally arising under the Family Code, namely a

divorce involving children. Thus, the documents are not court records within the meaning of

rule 76a, and the file in this case is not subject to rule 76a. TEX. R. CIV. P. 76a(1), 76a(2)(a)(3);

see also Monsanto Co. v. Davis, No. 10-02-00208-CV, 2004 WL 859159, at *1 (Tex. App.—

Waco April 21, 2004, no. pet.) (“Rule 76a pertains only to the sealing or unsealing of court

records.”).

       We conclude the trial court abused its discretion by unsealing the file pursuant to rule 76a

when the documents in this file are not court records within the meaning of rule 76a. Any claim

that the file could be properly unsealed pursuant to any other law is not a proper subject of this

appeal. See Monsanto Co., 2004 WL 859159, at *1.




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      We sustain appellant’s sole issue and reverse the Order of the trial court.




140745F.P05                                         /Carolyn Wright/
                                                    CAROLYN WRIGHT
                                                    CHIEF JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF S.M.B., A Child                  On Appeal from the 366th Judicial District
                                                    Court, Collin County, Texas
No. 05-14-00745-CV                                  Trial Court Cause No. 366-51444-2008.
                                                    Opinion delivered by Chief Justice Wright.
                                                    Justices Brown and Stoddart participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings..

       It is ORDERED that appellant Stephen Aaron Bergenholtz recover his costs of this
appeal from appellee Josephine Donna Eskenazi.
.


Judgment entered July 1, 2015.




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