Opinions, April 25, 2017: Post-Judgment Temporary Orders Pending Appeal

The First District Court of Appeals released its memorandum opinion in In re Christensen, No. 01-16-00893-CV, this morning concerning post-judgment temporary orders pending appeal under TFC 6.709.

Christina and Troy divorced. After a two-day bench trial, the trial court signed a final decree which awarded Christina stocks and funds in various accounts and ordered Troy to pay a portion of Christina’s attorney’s fees (in the amount of $20,000).

After Troy timely filed his notice of appeal, Christina moved for post-judgment temporary orders pending appeal under TFC 6.709. She requested the trial court, inter alia:  order Troy to 1) pay reasonable appellate attorney’s fees into the registry of the court to be payable to Christina upon Troy’s pursuit of an unsuccessful appeal or, in the alternative, grant a judgment against Troy for reasonable appellate attorney’s fees conditioned upon his pursuit of an unsuccessful appeal; 2) post a bond to secure his compliance with the terms of the decree; and 3) pay her temporary spousal support pending appeal.

Troy argued the motion was merely an attempt to penalize him for appealing, section 6.709 did not authorize prepayment of appellate attorney’s fees into the registry of the court or posting a bond, and payment of temporary spousal support was not justified.

The trial court granted Christina’s motion, awarding her $50,000 total ($30,000 for the district court of appeals and $20,000 for the Texas Supreme Court) if Troy unsuccessfully appealed and required him to pay these amounts into the court registry. The trial court also ordered Troy to post a bond of $275,000 (or its cash equivalent) to protect Christina against potential loss of property or property rights during the course of the appeal.

Troy filed a petition for writ of mandamus, alleging five issues. which the Court of Appeals addressed out of sequence.

The Court of Appeals sustained Troy’s second and third issue concerning prepayment of appellate fees into the registry of the court. Citing Halleman v. Halleman, No. 02-11-00238-CV, 2011 WL 5247882 (Tex.App.–Fort Worth, Nov. 3, 2011, orig. proceeding), the Court of Appeals found that section 6.709 does not authorize and the trial court abused its discretion in ordering Troy to prepay the attorney’s fees into the registry of the court because the appellate attorney’s fees will not be payable to Christina “if at all” until the appellate proceedings are final.

In his fourth issue, Troy argued the trial court abused its discretion by ordering him to post a bond in the amount of $275,000 (which included the $50,000 of appellate attorney’s fees). Christina had asserted in her motion for temporary orders that the bond should be sufficient to cover the value of the property as determined by the trial court at rendition plus interest. She also asked the trial court to require Troy to provide statements for the accounts and enjoin him from taking certain actions regarding the accounts until the appeal was final.

At the hearing on Christina’s motion, the parties testified regarding the accounts awarded in the divorce. Troy testified he had control over the accounts, Christina did not; Christina testified that Troy had not accounted for over $200,000 of assets awarded to her and that Troy had traded or sold about $300,000 in stocks, half of which were awarded to her. The opinion does not indicate Troy disputed Christina’s testimony on this point, but he did testify that “issues existed regarding the documents needed to transfer these accounts to Christina.” The Court of Appeals found that Troy presented no authority that the trial court lacked authority to order the bond and the trial court did not abuse its discretion in ordering it.

In his fifth issue, Troy contested the temporary monthly spousal support award of $3,500 until the appeal is final because, according to him, he does not have the financial ability to pay it, the calculation of the amount was flawed, and the support obligation “was part of the property division improperly disguised as spousal support.” He testified he had to borrow $25,000 from family to keep afloat, he could not afford either the $20,000 for Christina’s attorney’s fees ordered in the decree, nor the $250,000 bond or monthly spousal support. He also testified that he earned $214,000/year and had received a $24,000 bonus this year. His FIS indicated his net monthly income of $10,630 and monthly expenses of $13,638. Christina also testified that her means were significantly less than Troy’s. The Court of Appeals found no abuse of discretion in the award of temporary monthly support and overruled Troy’s fifth issue.

Finally, taking the first last, the Court of Appeals overruled Troy’s first issue in which he argued the temporary orders were not intended to protect Christina and her property, but to “unjustly penalize [him] for asserting his rights” to appeal. The Court of Appeals found the temporary orders do not prevent him from pursuing his appeal.

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