                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-14-00063-CV


JOSEPH M. INGRAM                                                 APPELLANT

                                       V.

SANDRA V. INGRAM                                                  APPELLEE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Joseph M. Ingram attempts to appeal from the trial court’s

December 30, 2013 order that granted appellee Sandra V. Ingram’s motion to set

aside a default judgment. We dismiss the appeal because we lack jurisdiction.

See Tex. R. App. P. 43.2(f).




      1
       See Tex. R. App. P. 47.4.
         In August 2013, appellant filed an “Original Petition for Bill of Review and

Motion to Abate Disbursement of Retirement.”            In that document, appellant

contended that he had divorced appellee in 2009 and that a dispute had

developed between the parties concerning the amount of appellant’s military

retirement that appellee was entitled to receive.

         On October 4, 2013, the trial court signed a default judgment in appellant’s

favor.       The court set aside an April 2013 clarifying domestic relations order,

awarded appellant $2,493.75 in attorney’s fees and expenses, and taxed costs

against appellee.

         On December 30, 2013, pursuant to a motion filed by appellee earlier that

month, the trial court signed an order vacating the October 4 default judgment.

The court reinstated the clarifying domestic relations order but did not purport to

render a final decision on appellant’s petition for bill of review.

         On January 31, 2014, appellant filed an untimely motion for new trial. 2 On

February 25, 2014, appellant filed a notice of appeal.

         We sent a letter to appellant on March 13, 2014 to express our concern

that we lack jurisdiction because the trial court’s order setting aside the default

judgment was not appealable.         We informed appellant that unless he filed a

response showing grounds for continuing the appeal, it could be dismissed for

want of jurisdiction.


         2
         See Tex. R. Civ. P. 329b(a).


                                           2
      Appellant has asserted that the “purpose of this appeal is to appeal the

lower court’s decision to [set aside the default judgment] . . . after the court’s

plenary power had expired.”     It appears that the trial court may have acted

outside of its plenary power by setting aside the October 4 default judgment on

December 30. 3 See Tex. R. Civ. P. 329b(d)–(e); Xiaodong Li v. DDX Group Inv.,

LLC, 404 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.] 2013, no pet.);

Hagemann v. Hagemann, No. 02-08-00045-CV, 2008 WL 755226, at *1 (Tex.

App.—Fort Worth Mar. 20, 2008, no pet.) (mem. op.). But an order that is signed

outside of a trial court’s plenary power and that does not purport to be a final,

appealable judgment is properly challenged through a petition for writ of

mandamus, not through an appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602,

605 (Tex. 2000) (orig. proceeding); Young v. Villegas, 231 S.W.3d 1, 6 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied); K.C. Roofing, Inc. v. Lorenzo, No.

04-98-00855-CV, 1998 WL 784406, at *1 (Tex. App.—San Antonio Nov. 12,

1998, no pet.) (not designated for publication); Fenno v. Sam Reece Air

Conditioning & Heating, Inc., 572 S.W.2d 810, 811 (Tex. Civ. App.—Houston

[14th Dist.] 1978, no writ). Therefore, because we hold that we do not have

jurisdiction to review the interlocutory but possibly void order setting aside the

default judgment through this appeal, we dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f); see also Gem Vending, Inc. v. Walker,

      3
     An order entered outside of a trial court’s plenary power is void. Pipes v.
Hemingway, 358 S.W.3d 438, 445 (Tex. App.—Dallas 2012, no pet.).


                                        3
918 S.W.2d 656, 658 (Tex. App.—Fort Worth 1996, no writ) (“Mandamus is the

appropriate remedy when a trial court enters a void order for new trial outside its

plenary power.”).


                                                   PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: April 17, 2014




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