Opinion
No. 01-10-00073-CV
May 26, 2011
Opinion issued July 14, 2011.
On Appeal from the 308th District Court Harris County, Texas, Trial Court Case No. 2007-00020.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
On Appeal from the 308th District Court, Harris County, Texas, Trial Court Case No. 2007-00020.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
ORDER
Appellant, Carla Velasco ("Carla"), sued Fife Ellis ("Fife") for divorce. Fife counter-petitioned for divorce and asserted claims against Carla and her mother, Beatrice Truitt ("Beatriz"), for civil conspiracy, conversion, and breach of fiduciary duty. The final divorce decree named Fife sole managing conservator of their minor child, E.E., and, among other things, required Carla to pay $79,000 and Beatriz to pay $70,000 to Fife, to be held in trust for E.E.'s education, as a result of their wrongful removal of funds from an account opened in E.E.'s name. In five issues on appeal, Carla and Beatriz contend that the trial court erred in (1) refusing to sign a final divorce decree after the trial court rendered judgment approving the divorce; (2) ordering a trial on the issue of E.E.'s conservatorship when nothing in the record from the first trial setting rebutted the presumption in favor of a joint managing conservatorship; (3) denying Carla's motion to recuse without either recusing herself or forwarding the motion to the presiding judge of the administrative district; (4) denying Carla's demand for a jury trial on the issue of conservatorship; and (5) overruling Carla and Beatriz's motion for new trial.
Fife moves to dismiss the appeal on the ground that Carla, with the aid of Beatriz, allegedly absconded with E.E. three days before the trial court signed the final divorce decree and has potentially removed him from the United States.
We grant Fife's motion to dismiss.
Background
Carla and Fife married in 2001, and the only child of their marriage, E.E., was born on October 27, 2006. Carla and Fife separated when E.E. was two months old, and Carla filed for divorce on January 2, 2007. During the pendency of the divorce, the trial court entered an agreed temporary order naming Carla temporary sole managing conservator of E.E. and naming Fife temporary possessory conservator. The trial court awarded Fife possession of E.E. for Thursday evenings, Saturday mornings, and Sunday afternoons.
In May 2008, Fife counter-petitioned for divorce and named Beatriz as a third-party defendant. In his petition, Fife requested that the trial court "determine whether there is a risk of international abduction of the child by [Carla] and . . . take such measures as are necessary to protect the child." Fife also alleged that Carla had made "secret and unauthorized transfers of several thousand dollars" of community funds into an account created in E.E.'s name, changed the name of the custodian for the account to Beatriz, and then removed more than $49,000 from the account. Fife asserted, on behalf of E.E., claims of civil conspiracy and conversion against Carla and Beatriz. Fife requested that the trial court order Carla and Beatriz to reimburse E.E. and that it assess exemplary damages against Carla and Beatriz for breach of fiduciary duties owed to E.E.
On June 11, 2008, Carla and Fife entered into a Rule 11 agreement addressing issues of possession and access to E.E. The agreement provided that Carla would have the right to determine the residence of E.E., restricted to Harris and contiguous counties. The agreement also set out Fife's visitation schedule until November 1, 2009, shortly after E.E.'s third birthday, and then provided that Fife's visitation would be in accordance with the Standard Possession Order. The parties also agreed that they would address in mediation the marital property division, Fife's claims against Beatriz, the management of custodial bank accounts for E.E. created prior to the divorce, possession of firearms around E.E., and travel to Bolivia, Carla's home country. The agreement included the following statement: "Further, by your signature, all agreements contained herein regarding issues of the conservatorship, visitation, access, and possession for the child [are] final and not subject to revocation." The agreement did not address the specific type of conservatorship over E.E., nor did it set out the respective parental rights and duties of Carla and Fife, other than providing that Carla would determine E.E.'s residence.
On July 30, 2008, the parties entered into a Mediated Settlement Agreement ("MSA") "as to most issues." In addition to dividing the parties' marital property, the MSA also resolved Fife's claims against Carla and Beatriz. The MSA provided:
Carla and Fife both signed the MSA; however, Beatriz and Judith Ritts, the amicus attorney for E.E., did not.
All causes of action against B. Truitt shall be dismissed w/ prejudice upon filing the $20,000 into the registry of the [court.] All causes of action against [Carla shall be] dismissed upon the payment of $8000 to [Fife]. Beatriz Truitt shall deposit $20,000 into the registry of the Court on or before 8/30/08 and the Court shall decide who manages said funds.
The MSA required Carla to pay Fife, "for the benefit of the child and to be held in trust by [Fife] for the child's education, $8000 on or before 9/30/08." The MSA further stated that the trial court was to "decide injunctions as to firearms and travel [with] child or by child out of the country." The MSA did not incorporate the terms of the June 11, 2008 Rule 11 agreement, nor did it mention conservatorship of E.E.
Although both parties had timely filed a written jury demand and paid the required fee, they agreed to waive their right to a jury and have the trial court determine the issues left unresolved by the MSA. At the beginning of the bench trial on October 24, 2008, Fife's attorney informed the trial court that "[c]ustody is settled. Visitation is settled. Property is settled." Fife's attorney stated that Carla has "custody with residency restriction," but he did not specifically state that the parties had agreed on a particular type of conservatorship. At the end of the trial, the trial court stated that "[t]he divorce is granted, rendered, approved. The Mediated Settlement Agreement is affirmed." The court ordered Carla to transfer $21,000 to Fife for the benefit of E.E. in addition to the $8000 that she was required to pay pursuant to the MSA. The court ruled that Fife would control those funds, as well as the $20,000 that Beatriz was to return. It further ruled that Fife was not to keep firearms in his possession until E.E. turned eighteen. Finally, the court addressed international travel and stated,
Absolutely no international travel. If you have — again, testimony was that [Carla has] threatened to take this child; you are going to live with what you have done. And you have threatened [to take E.E.] into a country where we can't get that child back. The answer is no.
The court specifically ruled, "No international travel until the child is 16."
Carla testified that she is a citizen of Bolivia and still has family living there. Bolivia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
On December 9, 2008, the parties met in the trial court's chambers to discuss the signing of the divorce decree and entry of judgment. This meeting was not recorded by a court reporter. Both Fife's attorney and the amicus attorney testified at a later hearing that, at this December meeting, Fife and Carla disagreed regarding the type of conservatorship for E.E. and their respective parental rights and duties. According to both attorneys, Carla's attorney at the time stated that Carla wanted to be sole managing conservator of E.E. and that she would not agree to a joint managing conservatorship. The trial court then reportedly stated that if the parties did not have an agreement on conservatorship the issue was still open and the court could not sign a final divorce decree. The court set the conservatorship issue for trial in January 2009. Shortly thereafter, Carla's counsel filed a written jury demand and paid the required jury fee. After the trial setting in January was continued, Fife expressly revoked his consent to the Rule 11 agreement on February 4, 2009.
On May 7, 2009, the trial court held a hearing on Fife's motion to enforce an earlier trial court ruling requiring Beatriz to pay $20,000 by December 19, 2008. At this hearing, the trial court discussed the December 9, 2008 meeting on the record with the parties. The trial court ultimately agreed that the MSA was binding, but it set aside the Rule 11 agreement addressing possession and access to E.E. The trial court further ruled that because trial began on October 24, 2008, and the trial regarding conservatorship would be a continuation of that trial, "it's too late to start a jury." The court denied Carla's request for a jury trial. The court set the trial on conservatorship and the hearing on the motion to enforce against Beatriz for October 19, 2009.
On September 24, 2009, Carla filed a petition for writ of mandamus in this court, seeking to compel the trial court either to sign the divorce decree or to grant her request for a jury trial. We denied mandamus relief. See In re Velasco, No. 01-09-00824-CV, 2009 WL 3248204 (Tex. App. — Houston [1st Dist.] Oct. 7, 2009, orig. proceeding) (mem. op.). On October 9, 2009, Carla filed a motion to recuse the trial judge, contending that the court had demonstrated a personal bias or prejudice against Carla. Although Carla served the motion on both Fife and the amicus attorney, she did not serve the motion on Beatriz, as required by Texas Rule of Civil Procedure 18a(b). The trial court did not recuse herself or forward the motion to the presiding judge for the administrative district, reasoning that she could deny the motion without recusal or referral because the motion was "procedurally defective." Carla again requested mandamus relief from both this Court and the Texas Supreme Court, seeking to compel the trial court either to recuse herself or to forward the recusal motion to the presiding judge. Both our Court and the supreme court denied mandamus relief. See In re Velasco, No. 01-09-00901-CV, 2009 WL 3401116 (Tex. App. — Houston [1st Dist.] Oct. 20, 2009, orig. proceeding) (mem. op.); In re Velasco, No. 09-0880 (Tex. Oct. 22, 2009) (orig. proceeding) (mem. op.).
Trial on the conservatorship issue was scheduled to begin on Monday, October 19, 2009. Pursuant to the trial court's temporary orders, Fife was scheduled to have visitation with E.E. on both October 17 and 18. Fife testified that he had visitation on Saturday the 17th, but that Carla did not show up with E.E. for his scheduled visitation on Sunday the 18th. Although Carla's attorney was present for trial on October 19, neither Carla nor Beatriz appeared. Both of Carla's sisters testified that they had not spoken to Carla since the previous Thursday or Friday and neither knew her whereabouts. They also testified that Beatriz was probably with Carla and E.E.
On October 20, after neither Carla nor Beatriz had appeared and after hearing testimony on the conservatorship issue from Fife, the trial court named Fife sole managing conservator and Carla possessory conservator. The court additionally found that Carla and Beatriz had converted $29,000 and $20,000 of E.E.'s funds, respectively, and that both Carla and Beatriz had breached fiduciary duties owed to E.E. As a result, the trial court ordered both Carla and Beatriz to pay $50,000 in exemplary damages, in addition to the amount that they each had converted. The court further found that Carla was a flight risk and ordered the FBI and the Harris County District Attorney's Office to be notified regarding the parental kidnapping. The court issued a writ of attachment for E.E. and a capias for the arrest of Beatriz, due to her continued failure to pay the $20,000 that she owed to E.E.
Carla and Beatriz, through Carla's attorney, subsequently moved for a new trial. This motion was overruled by operation of law. Through counsel, Carla and Beatriz timely filed a notice of appeal.
On June 22, 2010, Fife moved to dismiss the appeal, alleging that dismissal was proper because Carla, possibly with the assistance of Beatriz, had absconded with E.E., and Fife had not seen E.E. since October 17, in violation of both the trial court's temporary order and the final divorce decree. Fife contended that, based on equitable principles, Carla could not seek relief from a final judgment concerning child custody while simultaneously deliberately violating that judgment by disappearing with E.E. and potentially leaving Texas or even the United States. Fife averred that as of June 18, 2010, felony interference with child custody charges remained pending against Carla and neither Carla nor E.E. had been located.
In his brief on the merits, Fife noted that E.E. remained missing as of October 18, 2010.
Motion to Dismiss
Texas Rule of Appellate Procedure 42.3(c) provides that an appellate court may dismiss an appeal because "the appellant has failed to comply with . . . a court order. . . ." TEX. R. APP. P. 42.3(c). Fife relies on a line of cases established in Burckhalter v. Conyer, 7 S.W.2d 73 (Tex. Comm'n App. 1928, holding approved) (set aside on reh'g), to support his contention that dismissal of Carla's appeal is appropriate because she seeks reversal of the trial court's final divorce decree naming Fife sole managing conservator while simultaneously intentionally disregarding the decree by absconding with E.E. and potentially removing him from the United States.
In Burckhalter, the plaintiff filed a petition for writ of habeas corpus seeking custody of her daughter. Burckhalter, 7 S.W.2d at 73. Although the trial court granted custody to Burckhalter, the Dallas Court of Civil Appeals reversed the judgment and remanded the case to the trial court. Id. After Burckhalter appealed to the Commission of Appeals, that court learned that, while the appeal was pending before the Dallas court, Burckhalter had taken the child "and removed her beyond the territorial jurisdiction of the courts of this state." Id. The Texas Supreme Court subsequently ordered Burckhalter to present evidence that the child "had been brought to some point within the state of Texas, together with proper assurances that she would be so kept and appropriately cared for pending further orders to be made by the Supreme Court." Id. Burckhalter did not comply with this order. Id. at 73-74. The Commission of Appeals recommended dismissal of the appeal, reasoning that:
Plaintiffs in error are seeking to invoke the jurisdiction of the Supreme Court to correct errors alleged to have been committed by the Court of Civil Appeals in reversing and remanding the judgment awarding them the custody of the child. They should not be permitted to invoke such jurisdiction when they refuse to comply with an order entered by the Supreme Court which was necessary in order to make effective the judgment which might be rendered in this case.
Id. at 74. The court noted that "keeping the child beyond the jurisdiction of the court would render ineffective the judgment of the court if it should be in favor of defendant in error." Id. On rehearing, Burckhalter demonstrated that she had complied with the Supreme Court's initial order, and the Commission of Appeals set aside the judgment dismissing her appeal and considered her appeal on the merits. Burckhalter v. Conyer, 9 S.W.2d 1029, 1029 (Tex. Comm'n App. 1928, holding approved).
Since Burckhalter, our Court and several of our sister courts have applied Burckhalter's reasoning and dismissed appeals when the appellant had withheld a child in violation of a trial court order and removed the child from the jurisdiction. See, e.g., Eberle-Adams v. Adams, No. 14-96-00432-CV, 1996 WL 307488, at *1 (Tex. App. — Houston [14th Dist.] June 6, 1996, no writ) (not designated for publication); Baker v. Baker, 588 S.W.2d 677, 678 (Tex. Civ. App. — Eastland 1979, writ ref'd n.r.e.); Alexander v. Gunning, 572 S.W.2d 34, 35 (Tex. Civ. App. — Houston [1st Dist.] 1978, no writ); Geesbreght v. Geesbreght, 570 S.W.2d 427, 429 (Tex. Civ. App. — Fort Worth 1978, writ dism'd) ("The proper order of an appellate court is to dismiss the appeal where an appellant is in obvious contempt of the judgment of the trial court from which the appeal has been taken."); Griffin v. Stanley, 562 S.W.2d 920, 921 (Tex. Civ. App. — Waco 1978, no writ); Steed v. Woods, 475 S.W.2d 814, 816 (Tex. Civ. App. — Amarillo 1972, writ dism'd); Hopp v. James, 470 S.W.2d 716, 717 (Tex. Civ. App. — San Antonio 1971, no writ) (per curiam); Meyer v. Meyer, 361 S.W.2d 935, 941 (Tex. Civ. App. — Austin 1962, writ dism'd); see also Roosth v. Roosth, 889 S.W.2d 445, 449-50 (Tex. App. — Houston [14th Dist.] 1994, writ denied) (noting that "Texas appellate courts have dismissed appeals from divorce judgments where the appellant has refused to comply with a trial court order regarding custody," but refusing to extend Burckhalter and its progeny beyond child custody context); Matthews v. Matthews, 725 S.W.2d 275, 281-82 (Tex. App. — Houston [1st Dist.] 1986, writ ref'd n.r.e.) (recognizing doctrine but holding inapplicable to instant case because although appellant was allegedly not complying with three trial court orders, appellant was not complaining about those specific orders on appeal).
In a substantively identical case, the Fort Worth Court of Appeals held that "[t]here is no doubt of our right to dismiss the appeal because of the appellant's disobedience of the order of the trial court." Strange v. Strange, 464 S.W.2d 216, 218 (Tex. Civ. App. — Fort Worth 1970, writ dism'd w.o.j.) (per curiam); see also Hays v. Brandon, 245 S.W.2d 381, 384 (Tex. Civ. App. — Fort Worth 1951, no writ) ("We believe the trial court's judgment carries equal dignity and forcefulness as an order from this Court."). In Strange, the trial court awarded custody to the mother; although the father appealed, he took the child after the trial court rendered judgment and left Texas. Strange, 464 S.W.2d at 217. In granting the mother's motion to dismiss the father's appeal, the Fort Worth court reasoned:
[The father] admittedly presents himself to this appellate court with what might be termed `unclean hands,' in that he withholds from the trial court, and likewise from the person designated by the court as its agent, custody of the person of the minor child of the parties. In so doing he has flaunted the order of the trial court contrary to principles of justice and to public policy.
Id. at 218; see also Steed, 475 S.W.2d at 816 (holding that requiring appellate court to entertain merits of appeal in this circumstance "would be a flagrant abuse of the principles of equity and of the due administration of justice. Such would be tantamount to a sanction for one to obey only those court orders with which one agrees."); Hopp, 470 S.W.2d at 717 ("[A] party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing her demands while she stands in an attitude of contempt to legal orders and processes of the courts of this State."); 40 TEX. JUR. 3d Family Law § 1464 (2005) ("Removal of a minor child from the state during pendency of a custody suit constitutes a fraud on the court and forecloses appellate court relief.").
In response to Fife's motion, Carla, through her attorney, contends that (1) she was not in violation of a court order pursuant to Rule 42.3(c) because the trial court's final divorce decree was void; (2) Rule 42.3(c) usually applies to a party's failure to comply with an appellate court's order "affecting that court's ability to fully receive the record, brief, or other procedural matter enumerated in the Rules of Appellate Procedure" and, therefore, this section is inapplicable to this case; (3) Fife's reliance on Burckhalter and its progeny is misplaced because these cases apply the "unclean hands" doctrine, which is an equitable defense that is "inapplicable to original appellate matters"; and (4) applying a procedural rule to dismiss Carla's substantive, statutory right of appeal violates the separation of powers doctrine.
On rehearing in Strange, the father contended that the underlying trial court judgment was void, and, therefore, the Fort Worth court should not dismiss his appeal but should instead consider his appeal on the merits. See Strange, 464 S.W.2d at 219. The Fort Worth court noted that if the judgment was void, then "[the father] continues to have the right to attack it collaterally at any appropriate time and occasion." Id. In an "ordinary" direct attack on the judgment, the appellate court would "test the points of error complaining of the judgment under attack, once the merits thereof are considered." Id. at 220. In light of "the reason for dismissal of the appeal," however, the Fort Worth court determined that it would not "consider the merits of the defendant's points." Id. The court held that:
What defendant/appellant has lost, as result of our action dismissing the appeal because of his disobedience and contempt of a proper order of the court, is any right to a reversal of the judgment because of any merit in the points of error he desires considered, including any right to which he otherwise might have been entitled. This right he has forfeited even though the points might show the judgment to have been voidable or even void.
Id. We adopt this reasoning and hold that the possibility that the trial court's final divorce decree may be void does not preclude dismissal of Carla's appeal in light of her post-judgment conduct regarding E.E. See id. ("[W]e may and do disregard the possibility that defendant/appellant might be correct in his contentions.").
Carla argues that the judgment is void on two grounds: (1) the trial court erroneously denied her demand for a jury trial on the conservatorship issue and (2) the trial court erroneously refused to either recuse herself or forward the recusal motion to the presiding judge of the administrative district. Although the denial of a jury trial may constitute reversible error, Carla cites no authority for the proposition that the erroneous denial of a jury trial voids the trial court's judgment. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996) ("The wrongful denial of a jury trial is harmful when the case contains material fact questions."). We have previously held that when a trial court does not "recuse or refer," the court's actions "taken after the motion to recuse was filed are `void'" and the case, "in effect, returns to the point in time when the motion to recuse was filed." Hudson v. Tex. Children's Hosp., 177 S.W.3d 232, 236, 238 (Tex. App. — Houston [1st Dist.] 2005, no pet.). We have also held, however, that if a party does not comply with the mandatory procedural requirements of Rule 18a, and thus the recusal motion is procedurally defective, the party waives her right to complain of the trial court's refusal to either recuse herself or refer the motion. See Gill v. Tex. Dep't of Criminal Justice, 3 S.W.3d 576, 579 (Tex. App. — Houston [1st Dist.] 1999, no pet.). Even if Carla's contention that the trial court erroneously failed to either recuse herself or refer the undisputedly defective recusal motion is correct, and, thus, the final divorce decree is void, we note that at the time she filed her recusal motion on October 9, 2009, a temporary order was in effect that granted Fife possession of E.E. on every Thursday night, Saturday morning, and Sunday afternoon. By disappearing with E.E., Carla deprived Fife of his rightful possession of E.E. in violation of a trial court order.
Carla additionally contends that we should deny Fife's motion because the cases on which he relies for support rest upon the equitable doctrine of "unclean hands," which, she contends, is inapplicable to "original appellate matters before this Court." As authority for this argument, Carla cites only cases discussing general principles of the unclean hands doctrine, such as that the doctrine "requires a person who comes into a court of equity to enter with `clean hands'" and that the doctrine "operates as a bar to the equitable relief of specific performance." Carla erroneously conflates the rule established by Burckhalter and its progeny — that a party to a child custody dispute may not invoke the jurisdiction of the appellate courts to appeal a judgment in that dispute while refusing to comply with a court order necessary to make the judgment effective — and the analogous affirmative defense of "unclean hands," which bars equitable relief when the plaintiff "has engaged in unlawful or inequitable conduct with regard to the issue in dispute" and such conduct has injured the defendant. See In re Francis, 186 S.W.3d 534, 551 (Tex. 2006) (Wainwright, J., dissenting) (citing Right to Life Advocates, Inc. v. Aaron Women's Clinic, 737 S.W.2d 564, 571-72 (Tex. App. — Houston [14th Dist.] 1987, writ denied) and Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex. App. — San Antonio 1983, writ ref'd n.r.e.)); see also Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988) ("It is well-settled that a party seeking an equitable remedy must do equity and come to court with clean hands.").
Furthermore, although Carla contends that Rule 42.3(c) has "generally been applied to dismiss proceedings following a litigant's failure to comply with an order of the appellate court affecting that court's ability to fully receive the record, brief, or other procedural matter enumerated in the Rules of Appellate Procedure," she cites no authority that holds that Rule 42.3(c) does not apply to the present situation, in which an appellant intentionally violates and disregards the trial court order from which she seeks relief, and the case law is to the contrary. See, e.g., Hayes v. Hayes, 920 S.W.2d 344, 347 (Tex. App. — Texarkana 1996, writ denied) (per curiam) (dismissing appeal pursuant to predecessor to Rule 42.3(c) after appellate court ordered appellant to either post supersedeas bond or comply with trial court's post-judgment discovery orders and appellant failed to do either). We further note that the plain language of Rule 42.3(c) applies to an appellant's failure to comply with "a court order" and does not specify the particular type of court order with which the appellant must comply or face dismissal. TEX. R. APP. P. 42.3(c); see also Strange, 464 S.W.2d at 218 ("There is no doubt of our right to dismiss the appeal because of the appellant's disobedience of the order of the trial court."); Hays, 245 S.W.2d at 384 ("We believe the trial court's judgment carries equal dignity and forcefulness as an order from this Court. Therefore, when appellants withheld the child from this state, during pendency of litigation, in violation of an order of a court of competent jurisdiction of this state, their case should be dismissed by any court having jurisdiction of same at the time such violation is pointed out to it.").
Finally, Carla contends that we should deny Fife's motion because she "enjoys a substantive, statutory right to appeal the judgment rendered in a suit affecting the parent-child relationship" and applying a procedural rule to dismiss her appeal in this manner would violate the separation of powers doctrine. We agree with Carla that she has a statutory right to appeal a final order in a suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 109.002(b) (Vernon 2008). We also note, however, that Family Code section 109.002(c) provides that "[a]n appeal from a final order, with or without a supersedeas bond, does not suspend the order unless suspension is ordered by the court rendering the order. The appellate court, on a proper showing, may permit the order to be suspended. . . ." Id. § 109.002(c); see also In re Gonzalez, 981 S.W.2d 313, 314- 15 (Tex. App. — San Antonio 1998, pet. denied) ("[N]either the trial court nor this court has suspended enforcement of the orders awarding Gonzalez child support. Because the court's orders have not been suspended, the trial court has the authority to reduce arrearages due by virtue of its previous orders to a money judgment,"). The trial court did not provide, either in the final divorce decree or in any other order, for suspension of its decree, and Carla has not requested that we allow suspension of the decree. Thus, although Carla has a statutory right to appeal the trial court's final divorce decree, she also has a statutory duty to comply with the decree during the pendency of her appeal, absent suspension of the decree by either the trial court or this Court. See Morris v. Morris, 654 S.W.2d 789, 791 (Tex. App. — Tyler 1983, no writ) (per curiam) ("Since neither the conservatorship [nor] support orders contained in the decree of divorce have been suspended by the trial judge . . . the appellant is bound to obey the trial court's orders found in the decree of divorce.").
Conclusion
We conclude that Fife's motion to dismiss is meritorious. We will dismiss the appeal unless the appellant, Carla Velasco, complies with the trial court's final divorce decree by delivering the minor child, E.E., to the appellee, Fife Ellis, in the presence of the sheriff or a deputy sheriff of Harris County or any officer of the 308th District Court of Harris County, on or before ten days from the date of this order, and in the event of such compliance by Carla, such officer shall give immediate notice to this Court certifying the fact. See Alexander, 572 S.W.2d at 35; see also Steed, 475 S.W.2d at 817 ("All appellant has to do, to secure a review of the order appealed from, is to comply with the related custody order.").
MEMORANDUM OPINION
On May 26, 2011, this Court issued an order finding the appellant, Carla Velasco, to be in violation of the trial court's final divorce decree appointing the appellee, Fife Ellis, as sole managing conservator of the parties' minor child, E.E., because Velasco had failed to deliver custody of E.E. to Ellis. This Court's order directed that unless Velasco complied with the trial court's divorce decree by delivering E.E. to Ellis in the presence of a sheriff or deputy sheriff of Harris County or an officer of the 308th District Court of Harris County on or before June 6, 2011, the pending appeal from the trial court's divorce decree would be dismissed. Our order required such officer, in the event of Velasco's compliance, to give immediate notice to this Court certifying such compliance. We have not received notice of Velasco's compliance. It thus appears to the Court that Velasco has not complied with our order in the manner and time specified and that Velasco continues to violate the trial court's order which is the subject of this appeal.
See Velasco v. Ellis, No. 01-10-00073-CV, 2011 WL 2118865 (Tex. App.-Houston [1st Dist.] May 26, 2011, order).
It is accordingly ORDERED that Ellis's motion to dismiss is granted and that the appeal is dismissed.