In re Marriage of Yarbrough

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Court of Appeals of Texas, Sixth District, TexarkanaJun 30, 2004
No. 06-04-00030-CV (Tex. App. Jun. 30, 2004)

No. 06-04-00030-CV

Submitted: June 29, 2004.

Decided: June 30, 2004.

On Appeal from the 62nd Judicial District Court, Lamar County, Texas, Trial Court No. 71870.

Before MORRISS, C.J., ROSS and CARTER, JJ.


MEMORANDUM OPINION


Stephen Kenneth Yarbrough appealed the trial court's order directing him to pay child support for his three children, Virgil Leonard Yarbrough (born November 25, 1985), Stephen Keith Yarbrough (born July 11, 1989), and Daniel Boone Yarbrough (born November 21, 1992). The record in the appeal was complete on April 23, 2004, making Stephen's brief due by May 23, 2004.

On May 26, 2004, we received a two-page document that we interpreted as being Stephen's pro se attempt at an appellate brief. The brief was defective in several respects. In a letter dated the same day, we specifically noted those defects, including the brief's failure to "contain `a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.'" See TEX. R. APP. P. 38.1(h). We gave Stephen until Monday, June 7, 2004, to submit a brief that corrected these errors.

On June 10, 2004, we received a one-page document that we interpreted as being Stephen's second attempt at an appellate brief. Like his earlier attempt, this second brief fails to "contain `a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.'" See TEX. R. APP. P. 38.1(h). If an appellate court determines that the requirements for briefs, as outlined in the Texas Rules of Appellate Procedure, have not been met, the court "may require a brief to be amended, supplemented, or redrawn." If the same party attempts to file another brief that violates the Texas Rules of Appellate Procedure in the same manner as the earlier brief, "the court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief." TEX. R. APP. P. 38.9(a).

In this case, Stephen has twice submitted a brief that fails to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Accordingly, we strike Stephen's second brief, we order that he be prohibited from filing another brief, and we proceed with the case as if Stephen had failed to file a brief. See id.

If an appellant fails to timely file a brief in compliance with the Texas Rules of Appellate Procedure, after having been given multiple opportunities to so do, the appellate court may dismiss the appeal for want of prosecution. TEX. R. APP. P. 38.8(a) (failure of the appellant to file a brief in civil cases). In this case, Stephen has failed to timely submit his brief in compliance with the Texas Rules of Appellate Procedure, despite having been given two opportunities to do so.

In both attempts at a brief, Stephen contends the trial court erred by ordering him to pay child support for Virgil because the child had already turned eighteen. A trial court may order one or both parents to support a child "until the child is 18 years of age or until graduation from high school, whichever occurs later; . . ." Tex. Fam. Code Ann. § 154.001(a) (Vernon 2002). During her testimony before the trial court, Linda informed the trial court that the three children were currently living with her. Linda also told the trial court that the children were currently in school. Thus, the record supports the trial court's decision to include Virgil in determining its award of child support, because the child had not yet graduated.

We dismiss the case for want of prosecution.