Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Stephanie and Xavier Garza divorced and both were named joint managing conservators of their two children. Xavier was to have the exclusive right to determine the children’s residence, and Stephanie was to pay child support. The divorce decree awarded Xavier the family homestead, ordered Stephanie to convey her interest in the property to Xavier and ordered Xavier to pay Stephanie $73,871 for that interest in 60 monthly installments. Each party was ordered to bear his or her own attorneys’ fees and costs. Stephanie appealed, and while the appeal was pending, the trial court entered temporary orders for the pendency of the appeal on Dec. 18, 2003, in order to protect the children’s interest and preserve the parties’ property. These temporary orders required Xavier to deposit the money he would owe Stephanie into the registry of the court. The temporary orders also stated that if Stephanie lost on appeal, Xavier’s $25,000 in contingent appellate attorneys’ fees would be taken from the amount deposited into the court’s registry. Stephanie files this writ over the trial court’s temporary orders. HOLDING:Writ conditionally granted. The court first rejects Stephanie’s contention that it was error to order Xavier to pay the equity interest he owes Stephanie into the court’s registry. In her appeal, Stephanie has stated that she will challenge the characterization of the divided property. As the amount Stephanie is owed by Xavier can change, pending appeal, it was reasonable to deposit the amounts that might be owed into the court’s registry. Stephanie testified at the hearing on the temporary orders that she needs Xavier’s payments now to help her pay her living expenses during the appeal. If she is successful, she would be unable to return any payments already made to her to the community estate for a new division. The court also finds it reasonable to assess Xavier’s appellate attorneys’ fees against Stephanie if she loses on appeal. Nonetheless, the court finds it was in error to order that those fees be paid out of the registry funds. The court points out that under Family Code 9.007(a), temporary orders may impose additional obligations on the parties pending disposition of the appeal; but, if the trial court’s plenary power over the decree has expired, the temporary orders may not alter, amend, or modify the substantive division of the property in the final decree. The court says that the trial court had until Dec. 3, 2003, to modify, alter or change the property division, but it did not. Thereafter, “unless and until the judgment is reversed on appeal and the case is remanded for a new property division, the trial court was without authority to alter the substantive division of the property” on Dec. 18. The trial court’s order temporarily encumbers the exempt proceeds of Stephanie’s interest in the homestead while the appeal is pending. OPINION:Duncan, J.; Stone, Green and Duncan, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.