In the Interest of N.U. and J.U., Children, 05-25-00959-CV, February 17, 2026.
On appeal from the 254th Judicial District Court of Dallas County.
Synopsis
The Fifth Court of Appeals dismissed this SAPCR-related appeal after the appellant failed to file a merits brief or respond to the court’s delinquency notice. Despite a formal warning that failure to comply would result in dismissal without further notice, the appellant remained silent, leading the court to terminate the proceedings for want of prosecution.
Relevance to Family Law
In the context of divorce and custody litigation, appellate deadlines are not mere suggestions; they are jurisdictional safeguards that ensure the finality of orders affecting the parent-child relationship. This case serves as a stark reminder that even in high-stakes family law disputes where the best interests of children are at issue, the appellate court will not sua sponte preserve an appellant’s rights if they fail to perform the fundamental duty of briefing. For trial counsel, this highlights the necessity of strictly monitoring the transition from the trial court to the appellate court. A failure to file a brief is a forfeiture of the client’s right to challenge the trial court’s decree, effectively rendering the underlying judgment unassailable regardless of any potential errors committed during the bench or jury trial.
Case Summary
Fact Summary
This appeal arose from a final order in a suit affecting the parent-child relationship (SAPCR) involving two children, N.U. and J.U., out of the 254th Judicial District Court in Dallas County. Following the perfection of the appeal, the appellant’s brief became overdue. On January 6, 2026, the Fifth Court of Appeals issued a formal notice to the appellant via postcard, expressly informing her that the brief was delinquent. The court provided a ten-day grace period for the filing of the brief and included an explicit warning: failure to comply would result in the dismissal of the appeal without further notice. Despite this directive, the appellant failed to file a brief, a motion for extension of time, or any other correspondence with the court regarding the status of the appeal.
Issues Decided
The primary issue was whether an appellate court must dismiss an appeal when an appellant fails to file their brief or otherwise respond after receiving a delinquency notice and a specific warning of impending dismissal for want of prosecution.
Rules Applied
The court relied upon Texas Rule of Appellate Procedure 38.8(a)(1), which permits an appellate court to dismiss an appeal for want of prosecution if the appellant fails to timely file a brief. Additionally, the court cited Rule 42.3(b) and (c), which authorize dismissal when an appellant has failed to comply with a requirement of the appellate rules, a court order, or a notice from the clerk requiring a response within a specified time.
Application
The Dallas Court of Appeals followed a rigorous procedural path to reach its conclusion. Once the initial deadline for the appellant’s brief passed, the court fulfilled its obligation under the rules to provide a “second chance” notice. By waiting for the expiration of the ten-day window provided in the January 6th notice and verifying that no response or brief had been filed, the court determined that the appellant had effectively abandoned the appeal. The court’s narrative is one of procedural finality; the total lack of communication from the appellant left the justices with no alternative but to enforce the warnings previously issued. The application of Rules 38.8 and 42.3 in this instance demonstrates the court’s refusal to maintain a case on its docket indefinitely when the party seeking affirmative relief fails to take the requisite steps to move the case toward a resolution on the merits.
Holding
The Court of Appeals held that the appeal must be dismissed for want of prosecution. Because the appellant failed to provide a brief after being notified of the delinquency and warned of the consequences, the court found dismissal appropriate under the Texas Rules of Appellate Procedure.
The court further held that dismissal was warranted under Rule 42.3 because the appellant failed to comply with the court’s specific directive to file the brief or explain the delay within the provided ten-day period. This holding emphasizes that the duty to prosecute an appeal remains solely with the appellant.
Practical Application
For the family law practitioner, this case underscores the importance of the “appellate hand-off.” Often in domestic relations cases, an exhausted client may initially file a notice of appeal pro se or through trial counsel, only to lose momentum or financial resources. However, if the appeal is not formally withdrawn, it remains an open threat to the prevailing party. For the appellee, this case illustrates the utility of the court’s clerk-driven dismissal process to achieve finality without the need for extensive (and expensive) motion practice. For the appellant’s counsel, it highlights the “point of no return” following a Rule 38.8 notice; once that ten-day postcard arrives, the window to save the appeal is narrow and requires immediate action.
Checklists
Managing Appellant Deadlines
- Track the Record: Ensure the Clerk’s Record and Reporter’s Record are filed; the briefing clock generally starts only after the full record is complete.
- Calendar the Warning: If a delinquency notice is received, treat the ten-day grace period as a hard jurisdictional deadline.
- Communicate Intent: If a client can no longer afford the appeal, file a voluntary motion to dismiss under Rule 42.1 to avoid a dismissal for want of prosecution, which can have different implications for cost-shifting.
- Seek Extensions Early: Do not wait for the delinquency notice; file a Rule 10.5(b) motion for extension of time before the brief is due.
Defensive Strategies for the Appellee
- Monitor the Docket: Check the appellate portal regularly to see if the court has issued a Rule 38.8 notice.
- Wait for the Court: In many instances, as seen here, the Court of Appeals will sua sponte dismiss for failure to brief, saving the appellee the cost of filing a motion to dismiss.
- Finalize the Judgment: Once the dismissal order is issued and the mandate follows, ensure the trial court’s file reflects that the appeal has been terminated to clear any clouds on property titles or custody arrangements.
Citation
In the Interest of N.U. and J.U., Children, No. 05-25-00959-CV, 2026 WL __ (Tex. App.—Dallas Feb. 17, 2026, no pet. h.) (mem. op.).
Full Opinion
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