Denial of a Motion to Reconsider a Stay is Interlocutory

The Court of Civil Appeals dismissed the wife’s appeal from a divorce decree in Norman v. Norman, No. 2060587, released October 12, 2007.   In that case, the trial court entered a judgment of divorce awarding custody of the parties’ children and ordering the father to make child support payments.  The mother filed a motion to modify the child support obligations and for contempt.  The father answered and filed a motion to stay pursuant to the Servicemembers Civil Relief Act, claiming that he was engaged in active military service.  The trial court granted the motion to stay.  The mother filed a motion to reconsider the trial court’s order granting a stay.  The trial court denied that motion on February 22, 2007 and the mother appealed on March 29, 2007. 

  

In determining whether it had appellate jurisiction, the court noted that an order denying a motion to reconsider a motion to stay is not a final, appealable order and is therefore an interlocutory order.  Accordingly, the court lacked jurisdiction to hear the appeal. 

Although the court noted that it may elect to interpret an appeal from an interlocutory order as a petition for a writ of mandamus, it declined to do so. The mother’s appeal was filed outside the presumptively reasonable time period of 42 days and the motion to reconsider did not extend the presumptively reasonable time within which the mother could have petitioned for a writ of mandamus.  Therefore, even if the court did elect to treat the interlocutory order as a petition for a writ of mandamus, it could not hear the matter because it was not timely filed.

The appeal was dismissed.