                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-17-00105-CV


WILLIAM CORNWELL                                                 APPELLANT

                                          V.

SUZANNE CORNWELL                                                  APPELLEE

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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 15-06165-158

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                          MEMORANDUM OPINION1

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                                    I. INTRODUCTION

      Appellant William Cornwell attempts a restricted appeal. Because we lack

jurisdiction over this appeal, we dismiss it.




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       See Tex. R. App. P. 47.4.
                    II. FACTUAL AND PROCEDURAL BACKGROUND

      The trial court conducted a final hearing in the divorce proceeding between

William and Appellee Suzanne Cornwell on May 9, 2016. William did not attend

the hearing, but he was represented by counsel at the hearing. The trial court

signed a final decree of divorce on June 2, 2016, and William timely filed a

motion for new trial on July 5, 2016.2

      To implement the property division set forth in the final decree, and as

agreed by the parties at the final trial, the trial court subsequently signed a July

12, 2016 qualified domestic relations order (QDRO) concerning William’s

retirement account identified as the NetScout Systems, Inc. 401k Savings Plan.

      At a later hearing on William’s motion for new trial, the trial court

questioned the parties about the fact that of the monies that were supposed to be

in the NetScout 401k, about “180-plus thousand” were not there.             William

explained on the record that these monies were not in the NetScout 401k but

were in his Danaher Corporation & Subsidiaries Savings Plan 401k, “which was

the account prior to the acquisition of the company to NetScout.” He explained

that “NetScout has started a brand-new 401k.” The trial court gave the parties

instructions to “get that taken care of” and to “get the QDRO squared away.”



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       William’s motion for new trial due date fell on July 2, 2016, which was a
Saturday, and the following Monday was the July 4 holiday, making William’s
motion for new trial timely filed on July 5, 2016. See Tex. R. Civ. P. 392b(a);
Tex. R. App. P. 4.1(a).

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      On October 25, 2016, the trial court signed a QDRO concerning the

Danaher 401k (Danaher QDRO) to effectuate the property division reflected in

the final decree. William filed a second motion for new trial, which the trial court

denied on February 22, 2017.

      William filed a notice of appeal on March 24, 2017, identifying the trial

court’s February 22, 2017 order denying his motion for new trial as the order he

was appealing from. After our court sent a letter questioning our jurisdiction over

this appeal, William filed an amended notice of appeal. In his amended notice of

appeal, William again purports to appeal from the trial court’s February 22, 2017

order denying his motion for new trial.      He sets forth the restricted-appeal

requirements and argues that he has met them.

         III. WILLIAM HAS FAILED TO INVOKE THIS COURT’S JURISDICTION

         A.     No Appeal from Order Denying Motion for New Trial

      No appeal from an order denying a motion for new trial exists separately

from an appeal of the underlying judgment. See Macklin v. Saia Motor Freight

Lines, Inc., No. 06-12-00038-CV, 2012 WL 1155141, at *1 (Tex. App.—

Texarkana Apr. 6, 2012, no pet.) (mem. op.) (dismissing appeal for want of

jurisdiction because an “order denying a motion for reconsideration or motion for

new trial is not a judgment, and is not independently appealable”). To the extent

William claims his March 24, 2017 notice of appeal is timely because it is

calculated from the date of the February 22, 2017 order denying his motion for

new trial, we cannot agree. See id.; Tex. R. App. P. 26.1.

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                              B. No Restricted Appeal

       “[T]o directly attack a judgment by restricted appeal, (1) the appeal must

be brought within six months after the trial court signed the judgment; (2) by a

party to the suit; (3) who did not participate in the hearing that resulted in the

judgment complained of; (4) who did not timely file a postjudgment motion, a

request for findings of fact and conclusions of law, or a notice of appeal; and (5)

the complained-of error that shows the invalidity of the judgment is apparent on

the face of the record.” Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 315

(Tex. App.—Fort Worth 2015, no pet.). “These requirements are jurisdictional

and will preclude a party’s right to seek relief by way of a restricted appeal if they

are not met.” Id.; see also Botello v. Davila, No. 13-17-00283-CV, 2017 WL

2979822, at *1 (Tex. App.—Corpus Christi-Edinburg July 13, 2017, no pet.)

(mem. op.) (“Each element of a restricted appeal is mandatory and

jurisdictional.”).

       William’s divorce decree was signed on June 2, 2016. His notice of appeal

was filed on March 24, 2017. William consequently failed to timely perfect a

restricted appeal within six months from the date of the divorce decree. See In re

Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.—Dallas 2011, no pet.) (dismissing

a restricted appeal for lack of jurisdiction when appeal was attempted more than

six months after the trial court’s order); Lab. Corp. of Am. v. Mid-Town Surgical

Ctr., Inc., 16 S.W.3d 527, 529 (Tex. App.—Dallas 2000, no pet.) (dismissing a



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restricted appeal for lack of jurisdiction when “appellant did not timely file the

notice of appeal”).

      To the extent William argues on appeal that he is entitled to bring a

restricted appeal from the October 25, 2016 Danaher QDRO, Suzanne contends,

and the record reflects, that William participated through counsel at the final trial

on May 9, 2016, and also at the August 25, 2016 hearing on his motion for new

trial where the Danaher QDRO was discussed and resolved.              Assuming an

appeal exists from a trial court’s modification of a QDRO, a restricted appeal is

not available to William because he participated either in person or through

counsel or both at all hearings and because he filed a motion for new trial

challenging the entry of the Danaher QDRO. See Tex. R. App. P. 30 (setting

forth restricted appeal requirements); Franklin v. Wilcox, 53 S.W.3d 739, 741

(Tex. App.—Fort Worth 2001, no pet.) (dismissing attempted restricted appeal for

want of jurisdiction when the appellant “appeared at the hearing through his

attorney” and “participated through his attorney in the hearing” by cross-

examining a witness); Aero at Sp. Z.O.O., 469 S.W.3d at 315 (“Because the

[restricted appeal] requirements are jurisdictional, if a party timely files a

postjudgment motion, a restricted appeal is not available.”); S.P. Dorman Expl.

Co. v. Mitchell Energy Co., 71 S.W.3d 469, 470 (Tex. App.—Waco 2002, no pet.)

(dismissing restricted appeal for want of jurisdiction when appellant timely filed a

motion for new trial); Lab. Corp. of Am., 16 S.W.3d at 528–29 (holding appellant



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was precluded from perfecting restricted appeal because appellant timely filed a

postjudgment motion).

                                  IV. CONCLUSION

      Having determined that we lack jurisdiction over this appeal, we dismiss it.

See Tex. R. App. P. 42.3(a); Tex. R. App. P. 43.2(f).



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: WALKER and PITTMAN, JJ., and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: December 28, 2017




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