Published by Ben Beveridge | January 13, 2024 | Firm News
For any type of law suit there are a categories of orders that can arise (and specific ways to challenge those orders).
| Suit | Description | Orders (and the method of review) |
| Divorce | Filed to terminate a marriage, typically allocates property and contains a SAPCR when minor children are involved | 1. Restraining order (mandamus)
2. Temporary orders (mandamus) 3. Wage withholding orders (appeal) 4. Medical Support Order (appeal) 5. Final Decree (appeal) |
| SAPCR (Suit Affecting the Parent-Child Relationship) | Suit to determine rights and duties towards children (possession/access/support…) | 1. Restraining order (mandamus)
2. Temporary orders (mandamus) 3. Wage withholding orders (appeal) 4. Medical Support Order (appeal) 5. Final Orders (appeal) |
| Enforcement | Filed to enforce provisions of an order. Can include jail time for the offender and attorney’s fees. | 1. Final Orders (habeas corpus) |
| Habeas Corpus | Used to have a child quickly returned to the person who has a legal right to possess the child | 1. Final Orders (habeas corpus) |
| Protective Order | Used to protect a party from “family violence”. | 1. Ex Parte Protective Order (mandamus)
2. Final Protective Order (appeal) |
An appeal is not the only way to change an order. In a suit to modify, the trial court can decide that a change has occurred since the last order was entered and that modifying the existing order would be in the child’s best interest. Texas Family Code 156.007
Additionally, a trial court can essentially vacate its own final order and grant a new trial if certain conditions exist. However, a motion for new trial is not considered an appeal.
The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons:
(a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;
(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant’s rights; (c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors’ opinion;
(d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;
(e) when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant’s innocence has been intentionally destroyed or withheld, thus preventing its production at trial;
(f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;
(g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or
(h) when the verdict is contrary to the law and the evidence.
Texas Rules of Appellate Procedure 21.3
A motion to modify, correct, or reform the judgment can be filed, resulting in an order being changed. Texas Rules of Civil Procedure 329b. The trial court, after signing an order, has 30 days in which it can modify, correct or reform the judgement, but only to the extent that the change is supported by evidence/arguments proffered at trial.
An order can be “clarified” if a motion to enforce is filed but the order is found not specific enough to be enforceable by contempt. Texas family Code 157. The “clarification” though must not be substantive (requiring a modification), otherwise the new provision would be void and not enforceable. Similarity, a “clerical error” in an order can be corrected at any time, in a Judgment Nunc Pro Tunc. Like the clarification provision, this change must not be substantive, but only clerical, otherwise the change is void and not enforceable.
RULE 316. CORRECTION OF CLERICAL MISTAKES IN JUDGMENT RECORD Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended.
Texas Rule of Civil Procedure 316.
Final Orders are appealable, temporary orders are not. However, temporary orders can be challenged through the appellate court with a mandamus. An order is final when it disposes of all issues and parties involved in the case. (see below).
To constitute a final judgment under the second method, the trial court’s “intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.” Id. Although the order need not contain “magic language,” Bella Palma, 601 S.W.3d at 801, or “[t]alismanic phrases,” Jones, 629 S.W.3d at 924, it must on its face “clearly and unequivocally state[ ] that it finally disposes of all claims and parties,” Patel, 661 S.W.3d at 154. Stated differently, its language must “leave no doubt about the court’s intention” to enter a final judgment. Lehmann, 39 S.W.3d at 206.
“When an order ‘finally disposes of all claims and all parties’ in ‘clear and unequivocal language,’ it is a final order.” Id. (citing In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (origi. proceeding) (per curiam)).
Typically, whether the order is intended to be final or temporary is indicated in the title of the order. In a divorce, a final order will be titled “Decree of Divorce”. Similarly in a Suit Affecting the Parent-Child Relationship, the final order will be titled something like “Order in Suit Affecting the Parent-Child Relationship”. Typically these orders are final and dispose of all issues but occasionally when one of these orders are challenged on appeal a responding party may raise the defense that there are still outstanding claims or parties with issues that have not been resolved. When these arguments arise they are usually not obvious but if the appellate court agrees there are outstanding issues the appeal will be dismissed, abated or otherwise halted while the proceedings are finalized in the trial court.
Similar to final orders, temporary orders can usually be identified by their titles. In Divorces order SAPCRs, the title of a temporary order will usually include the word “temporary”. In a divorce, temporary orders usually address:
In a SAPCR, temporary orders usually address:
Once temporary orders are entered in a divorce, the remaining issues to be resolved are 1) potentially modifying the SAPCR provisions and 2) addressing property characterization and distribution. Usually after temporary orders are entered the parties engage in discovery (seeking information from each other and providing information from each other) and then with this additional info the parties are able to either settle the issues in mediation or through litigation at final trial.
All these temporary orders can be challenged via mandamus in the appellate courts. The mandamus challenging the temporary orders must be filed in the appellate court in a reasonable amount of time. Unlike an appeal there is not a hard deadline but rather the doctrine of laches. Courts emphasize the principle that “equity aids the diligent and not those who slumber on their rights” (In re J.A.L., 645 S.W.3d 922 (2022). A delay in filing a petition for writ of mandamus may result in the denial of relief under the doctrine of laches if the delay is deemed unreasonable and unjustified, and if the opposing party demonstrates harm resulting from the delay (In re Spiller, 303 S.W.3d 426 (2010), (In re Vaughan, Not Reported in S.W.3d (2004). For example, in In re Giles, the court noted that a relator who delays filing a petition for mandamus relief for 17 months may waive their right to relief unless the delay is justified (In re Giles, 675 S.W.3d 376 (2023).
To obtain mandamus relief in Texas, the relator must generally demonstrate two elements: (1) that the trial court clearly abused its discretion, and (2) that there is no adequate remedy at law to address the alleged harm (In re Salas, 228 S.W.3d 774 (2007). A trial court’s failure to correctly analyze or apply the law constitutes an abuse of discretion (In re Juniper Ventures of Texas, LLC, 679 S.W.3d 177 (2023), (In re Rolland, 96 S.W.3d 339 (2001). The second prong is typically satisfied with temporary orders in a SAPCR since the Texas Family Code States that, “(e) Temporary orders rendered under this section are not subject to interlocutory appeal.”. V.T.C.A., Family Code § 105.001(e) The first prong is the substantive prong and it is the challengers burden to show that the Court “clearly” abused its discretion.
You don’t like the Trial Court’s final order, so now what?
Well, if you are considering an appeal there are several factors that you should consider before moving forward.
Note, you appeal to the appellate court to complain of error committed by the trial court. NOT to complain of error committed by opposing party. If opposing party does something objectionable its your responsibility to object and then the Court’s ruling on that objection may or may not constitute error.
| Error when considering evidence | The trial court typically has more leeway (deference) in weighing evidence. In family law cases this is especially the case. Many times in a family court proceeding the only evidence regarding a disputed issue is the conflicting testimony of both parties. In that case the Judge gets to decide who to believe. This discretion stems from their ability to encounter parties and witnesses firsthand, observe their demeanor and personalities, and interpret the truth and reality of the testimony presented (Rosales v. Rosales, 377 S.W.2d 661 (1964). For example, the trial court’s observations allow it to judge sincerity and honesty better than an appellate court, which reviews the record without the benefit of direct observation (In re A.P.S., 54 S.W.3d 493 (2001).
This applies to any piece of evidence though (testimony, written evidence, text messages, photos…). The Court is granted a huge amount of discretion to determine how much weight, if any, to give a piece of evidence. |
| Error in application of the law | If the trial court commits error in application of the law, the appellate court grants the trial court no deference. The trial court may not misinterpret the law in any way. Credit Suisse AG v. Claymore Holdings, LLC, 610 S.W.3d 808, 819 (Tex. 2020). |
Once an error occurs, the complaining party must bring the error to the court’s attention in a timely manner and either receive a ruling or the complaining party must object if no ruling is given. The grounds of the objection must be specific (if not obvious from the context). McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex.1989)(specific objections are ones that enable the trial court to understand the precise grounds so as to make an informed ruling, and affords the opposing party an opportunity to remedy the defect, if possible).
There are a class of objection that can be raised on appeal without first complaining at the trial court level “fundamental error” but these cases are very rare and one should not rely on these grounds for an appeal if it can be helped. American Gen. Fire & Cas. Co. v. Wineburg, 639 S.W.2d 688, 689 (Tex.1982)
Rule 33. Preservation of Appellate Complaints (Texas Rules of Appellate Procedure)
33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either implicitly; or expressly or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.
(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.
(d) Sufficiency of Evidence Complaints in Civil Nonjury Cases. In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence – including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact – may be made for the first time on appeal in the complaining party’s brief.
Not only must there be error, but the error must have been likely to have caused the disfavorable ruling. This rule requires there be a nexus/connection between the error and the harm. It is not enough to say that the trial court committed error and you were harmed, it is the appellant’s burden to show the harm was caused by the error.
44.1. Reversible Error in Civil Cases
(a) Standard for Reversible Error. No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals.
(b) Error Affecting Only Part of Case. If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error. The court may not order a separate trial solely on unliquidated damages if liability is contested.
The standard of review is essentially the standard that your complaint will be compared to in order to see if you are correct. Its not a test to see if error is present but rather to see if enough error is present. As you can imagine, if the standard is smaller, then you need to produce less error, whereas if the standard is larger, your burden will be greater. Another way to think about the Standard of Review is to think about it as the measure of deference the appellate court gives to the trial court. The more deference the appellate court gives to the trial court the higher the Appellant’s burden will be.
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