BRADLEY JAMES WILCOX v. KIMBERLY MARIANNE WILCOX (2010)

MEMORANDUM OPINION

Opinion by Chief Justice Wright

Appellant has filed multiple notices of appeal challenging various interlocutory orders entered by the trial court, as well as from the trial court's order of contempt.¹  Specifically, appellant has filed notices of appeal from each of the following orders:  (1) September 17, 2009 “Order Holding Respondent in Contempt”;  (2) November 19, 2009 “Order on Respondent's Motion Objecting to Petitioner's Motion Requesting Appointment of Psychologist”;  (3) November 19, 2009 “Order on Respondent's Motion to Appoint Attorney for Appeal of Order Adjudging Respondent in Contempt”;  (4) December 10, 2009 “Order on Respondent's Request to Take Judicial Notice of the Law of Federal Rules of Civil Procedure”;  and (5) December 10, 2009 “Order on Respondent's Request to Take Judicial Notice of Facts.”   Because judgments of contempt are not reviewable by appeal and the remaining orders appeared to be unappealable interlocutory orders, we directed the parties to file letter briefs addressing our jurisdiction over the appeal.

Appellant responded by stating he has filed a motion to recuse the trial court judge, which “should help the [C]ourt to establish jurisdiction and shall serve as notice to the Court of Appeals as to the injustice and frustration of justice that [he] has experienced on the trial court level.”   Appellee has responded that the order of contempt is reviewable only by mandamus and the remaining orders are unappealable interlocutory orders.   We agree with appellee that we lack jurisdiction over the appeal.

Appellate courts have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001);  Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.-El Paso 1997, no writ).   Appellate jurisdiction is never presumed.  Brashear v. Victoria Gardens of McKinney, L.L.C., No. 05-07-01269-CV, 2009 WL 4827862, *2 (Tex.App.-Dallas Dec. 16, 2009, no pet. h.) (op. on reh'g).   Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss.   Id.

The orders involving rulings on the motions to take judicial notice of certain rules and facts and for appointment of counsel and on appellant's objection to the appointment of a psychologist are all unappealable interlocutory orders.   Moreover, contempt orders are not reviewable on direct appeal.   See Herzfeld v. Herzfeld, 285 S.W.3d 122, 132 (Tex.App.-Dallas 2009, no pet.).   Rather, contempt orders involving confinement may be reviewed by writ of habeas corpus and contempt orders that do not involve confinement may be reviewed only through mandamus.  Id.

Because there is no final judgment and no otherwise appealable interlocutory orders before us, we conclude we lack jurisdiction over this appeal.

We dismiss the appeal for want of jurisdiction.

091421F.P05

FOOTNOTES

FN1. Appellant's notices of appeal were filed on different dates.   The first notice of appeal received by this Court was docketed as the above appellate cause number.   For purposes of judicial economy, each subsequent notice of appeal the Court received from appellant involving this trial court number was included in this appellate cause number..  FN1. Appellant's notices of appeal were filed on different dates.   The first notice of appeal received by this Court was docketed as the above appellate cause number.   For purposes of judicial economy, each subsequent notice of appeal the Court received from appellant involving this trial court number was included in this appellate cause number.

CAROLYN WRIGHT CHIEF JUSTICE