NO. 07-02-0398-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B OCTOBER 26, 2004

______________________________ IN THE MA

TTER OF T HE MARRI AGE OF JAMES D. DURHAM, JR. AND DEBORAH LYNN DURHAM

_________________________________ FROM THE 320TH DISTRICT COURT OF POTTE R COUNTY; NO. 63,04 6-D; HONO RABLE GO RDON GRE EN, JUDG E

_______________________________ Before JOHNSON, C.J. and QUINN and CAMPBELL, JJ. MEMORAND UM OPINION De borah Lynn Durham Marino appeals from the final decree di vorcing her fro m James D. Durham and, also, from the trial court’s rulings on cross-motions for enforcement of the decree. We dismiss her appeal as to thedecree of divorce for want of jurisdiction. The remainder of her appeal is abated and remanded for clarification of the trial court’s orders.-2- BACKGROUND On November 8, 2001, a decree of divorce w as signed in the divorce proceeding between Deborah Lynn Durham (now Deborah Lynn Mari no) and J ames D. D urham. A motion for new trial w as timely filed and ruled upon. The record reflects no decree of divorce, or

amended decree, other than the decree o f Novembe r 8th . Nor doe s the reco rd reflect a notice of appeal from the decree. Motions for enforcement and pleadin gs filed by Marino during the months following entry of t he Novem ber 8th decree did not question the f inality of that decree, but rather sought enforcement of it. In addition to seeking enforcement of the decree by her motions, Marino also claimed damages resulting from an alle ged assault by Durham and sought the value of certain property which Durham alleged ly conce aled dur ing pend ency of th e divorce

. On July 1, 2002, the trial judge signed separate orders ruling on Marino’s motion for enforcement and on Durham’s motion for enforcement. The orde r on Dur ham’s motion contained a Mother Hubbard clause stating that, “All relief reque sted and n ot expressly granted is denied.” The order on Marino’s motion d id not co ntain a M other Hub bard clause. Th e order o n Marino’s motion specifically referenced Marino’s affirmative claims for (1) additional property and damages, (2) damages for assault by Durham, and (3) partition of property. The ord er stated th at the claim s would not be he ard “in th is procee ding.” Following entry of the July 1st orders, Marino filed a motion seeking either modification of the orders or a new trial. The m otion was not acted upon by the trial court and she proceeded to file notice of appeal specifying that shewas appealing from the two orders.1 Reference to a ruleof appel late procedure he reafte r will beby refere nce to “TRAP_.”

2 As we have previously noted, the notice of appeal did not reference the November 8, 2001 d ecree as a judgmen t or order being a ppealed from. See TRAP 25 .1(d)(2). -3- Appearing on appeal pro se , Marino p resents th ree issue s. Her fi rst i ss ue challenges the vali dity of th e Novemb er 8, 200 1 decree of divorce; he r second issue challenges the July 1, 2002 order on Durham’s motion for enforcement; and the third issue challen ges the J uly 1, 20 02 order on Marino ’s motion for enfor cement. ISSUE ONE: THE DECREE OF DIVORCE In a civil cas e, ap peal is perfected by timel y filing a noticeof appea l. See T EX . R. A PP . P. 25.1(a ). 1 To be timely, notice of direct appeal must be filed within 30 days after the judgment being appealed from is signed, with certain exceptions. TRAP 26.1. If a motion for new trial is timely filed, the notice of app eal must be filed within 90 days after the judgment is sign ed. TRAP26.1(a). Once theti me for perfecting an appeal has passed w ithoutan appellant timely filing documents showi ng a bona fide intent to appeal , a n appella te court’s jurisdiction can no longer be invoked and the appeal must be dismissed. See Verburgt v. Donner , 959 S.W. 2d 615, 6 17 (Tex. 1997). The divorce decree signed on November 8, 2001 disposed of all parties and issues. Itwas, therefore, a final order for purposes of appeal. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 200 , 205-06 (Tex. 20 01); Cherokee Water Co. v. Ross , 698 S.W.2d 363, 365 (Tex. 1985). Marino timely filed a motion for new trial as to the de cree. Her only notice of appeal, however, was filed on September 30, 2002. 2 The notice of appeal was not timely-4-

to pe rfect appea l from thedecree, a nd we do not havejurisdic

tion to consider the merits of the appe al as tothe decre e. The appeal as to the November 8, 2001 decree of divorce will bedismisse d for wan t of jurisd iction. ISSUES T

WO AND TH REE: THE MOTIONS FOR ENFORCEMENT To be a final judgment from which an appeal may be taken , the judgm ent must dispose of all parties and all issue s in the case. See Lehmann , 39 S.W.3d at 200, 205

. W hether a ju dicial d ecree con stitutes a final ju dgment mu st be dete rmined fro m its language and t he record in the c ase. Id . at 205-06. The inclusion of a Mother Hubbar d clause–the statement, "all relief not granted is denied," or ess entially those words–is not conclusive indication that a judgment is final for purposes

of appea l. Id . at 203-04. If the record reveals the exis tence of p arties or claims notmentioned in the order, the order is not final. Id . at 206. Marino and Durh am filed post-decre e cro ss-m otions under the original cause number for enforcement of the divorce decree provisions. The motions were heard at the same time, but we re ruled upon via separate orders dated July 1, 2002. Under the circumstances, we consi der and construe th e orders together. In doing so, it appears that all parties and claims were mentioned in the orders, but we cannot discern whether the trial court intended the two orders to disposeof all c laims, in cluding Marino’s claims for recovery of property and fund s, damage s, a s sault by Durham and partition of undivided property; whether Marino’s claims were intended to, in some manner, be severed; or whether the trial-5-

court intended to dispose of all claims except Marino’s referenced cla ims, which the trial court intended to hear

at another time. In other words, in reviewing theJuly 1st orders, we cannotdetermine whether the trial court intended the orders, in combination, to be a final disposi tion for p urposes of appeal

. See id . at 200, 206. Accordi ngly we w ill aba te that pa rt of the a ppeal wh ich chal lenges t he trial court orders of July 1 , 2002 an d will r emand tothe trial court for clarification as to whether those orders we re intend ed to dis pose of a ll pendi ng partie s and cla ims. See id . at 206. CONCLUSION AND ORDER That part of Marino’s appe al which challenges the decree of divo rce dated November

8, 2001 is dismi ssed for want of juri sdiction

. We abate Marino’s appeal from the orders dated Jul y 1, 20 02 and re mand as to those orders. T h e trial court is directed to give such notice to the parties and hold any hearings necessary, and to enter an order clarifyi ng wheth er the cou rt intend ed its or ders dated July 1, 2002 to comprise a final disposi tion of all p arties an d claims

. Absent request by the trial court for an extension of time, the trial court is directed to cause any hearings held to be transcribed and to cause the transcription of such hearings, if any, together w ith the trial court’s clarification order an d any oth er papers or procee ding records the t rial cou rt deems appropriate, to b e inc luded in a supplemental transcript and cause the supplemental transcript to be filed with the appellate clerk no later than November 16, 2004. Per Curi am