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Family Law No. 12-02-00366-CV, 5/21/2003. Click here for the full text of this decision FACTS: The appellant, Dan Compton, appeals a protective order granted on Sept. 9, 2002, pursuant to Texas Family Code Chapter 85. The appellee, Vicki Compton, has filed a motion to dismiss the appeal, contending that a protective order entered while a divorce is pending is not a final appealable order. HOLDING: The appeal is dismissed for want of jurisdiction. A number of appellate courts have considered whether a family violence protective order is a final appealable order and have reached differing conclusions on the issue. The court finds only two cases in which the challenged protective order was entered during the pendency of a divorce proceeding rather than in an independent action where the court’s order disposed of all issues between the parties. In Ruiz v. Ruiz, 946 S.W.2d 123 (Tex. App. – El Paso 1997, no pet.), a divorce proceeding was consolidated with a pending protective order proceeding. The court subsequently granted a protective order, which was appealed. After concluding that an order appointing a receiver was the only type of temporary order that would be appealable under the facts presented, the court dismissed the appeal for lack of jurisdiction. In the case at hand, the protective order and the divorce action have not been consolidated. Therefore, Ruizis factually distinguishable. The Austin Court of Appeals has considered whether a family violence protective order is a final appealable order where the protective order is issued by one court and a divorce proceeding is pending in another. Bilyeu v. Bilyeu, 86 S.W.3d 278 (Tex. App. – Austin 2002, no pet.). In addressing the issue, the court discussed the Family Code provisions dealing with protective orders generally, as well as other courts’ determinations of whether these orders are appealable. The court also noted that, in Ruiz, the pending divorce proceeding and the protective order proceeding had been consolidated prior to the entry of the challenged order. However, the court concluded that factual distinction made no difference in the analysis. Relying on Ruiz, the court reasoned that under the Family Code’s statutory scheme for protective orders rendered during the pendency of a divorce proceeding, either the court that renders the protective order or the court to which the protective order may be transferred has the power to modify the terms and conditions of the order throughout its existence. Texas Family Code ��85.065(c), 87.001. However, unlike other modification actions in the family law context, motions to modify protective orders have not been legislatively designated as “new suits,” thereby making the original orders and the modification orders final and appealable. Further, neither the Texas Supreme Court nor the Legislature has declared that protective orders entered during the pendency of a divorce are final appealable orders. Therefore, the Austin court held that a protective order rendered during the pendency of a divorce is not a final judgment for purposes of appeal. OPINION: Worthen, J.; Worthen, C.J., and Griffith, J.

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