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In re Christensen

Court of Appeals of Texas, First District

April 25, 2017

IN RE TROY LEE CHRISTENSEN, Relator

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         Relator, Troy Lee Christensen, has filed a petition for a writ of mandamus challenging the trial court's order granting real party in interest Christina Christensen's motion for temporary orders pending appeal.[1] Troy contends that the trial court abused its discretion in ordering him to (1) pay Christina's appellate attorney's fees by depositing $50, 000 into the registry of the court; (2) post a bond or cash equivalent in the amount of $275, 000, which included the appellate attorney's fees, to protect her against the potential loss of property or property rights accruing to her during his appeal; and (3) pay temporary spousal support of $3, 500 a month until the appeal is final. Troy additionally contends that the trial court abused its discretion in signing an order "intended to unjustly penalize [him] for asserting his rights to file an appeal of a grossly disproportionate division of community property." We conditionally grant the petition in part.

         Background

         In the underlying proceeding, Christina filed a petition for divorce and division of the parties' community estate. After a two-day bench trial, the trial court signed a final decree of divorce and later signed a "Reformed Final Decree of Divorce." In pertinent part, the trial court awarded Christina funds in (1) a Fidelity checking account; (2) a Fidelity brokerage account; (3) a Charles Schwab retirement account, less an amount awarded to Troy; (4) a Fidelity retirement account, less an amount confirmed as Troy's separate property and an amount awarded to Troy; and (5) an undivided 50% interest in a Schlumberger Discounted Stock Purchase Plan. The trial court also ordered Troy to pay Christina's attorney's fees in the amount of $20, 000. S

         After Troy timely filed a notice of appeal of the reformed final decree, Christina moved for temporary orders pending appeal pursuant to Texas Family Code section 6.709. Among other things, Christina asked the trial court to:

order [Troy] to pay reasonable appellate attorney's fees and expenses to [her] for the benefit of her appellate counsel with such appellate fees to be ordered paid by [Troy] into the registry of the Court through the Harris County District Clerk's office by a date certain, and to be held in the registry and thereafter payable to [Christina] upon [Troy's] pursuit of an unsuccessful appeal. In the alternative, [Christina] request[ed] the Court to grant a judgment against [Troy] for reasonable appellate attorney's fees, with such judgment to be conditioned upon [his] pursuit of an unsuccessful appeal, bearing interest on such judgment from the date the appeal becomes final at the legal rate per annum until paid.

         Christina also asked the Court to order Troy "to post a sufficient bond while the appeal is pending to secure [his] compliance with the terms of the final decree relating to the accounts" awarded to Christina in the reformed final decree and to pay her temporary spousal support pending appeal. Troy responded to Christina's motion, contending that the motion was intended to penalize him for appealing the reformed final decree, section 6.709 did not authorize prepayment of appellate attorney's fees into the court registry or posting a bond, and payment of temporary spousal support was not justified.

         After a hearing at which Troy, Christina, and her counsel testified, the trial court granted Christina's motion, finding that temporary orders were "necessary for the preservation of the property and the protection of the parties during the appeal." The trial court awarded Christina attorney's fees in the amount of $30, 000 if Troy unsuccessfully appealed the reformed final decree to this Court and in the amount of $20, 000 if he unsuccessfully pursued a petition for review in the Texas Supreme Court. The court required Troy to pay these amounts "to the Harris County District Clerk Court Registry by cash, cashier's check or money order" by November 15, 2016, to be held for Christina's benefit conditioned on Troy's unsuccessful appeal or petition for review. The trial court additionally ordered Troy to post a bond in the amount of $275, 000, or its cash equivalent, in the court registry by November 15, 2016, "to protect [Christina] against the potential loss of property or property rights accruing to her during the course of the appeal under the terms of the Reformed Final Decree of Divorce." The bond amount represented:

the estimated value (with interest) of property and/or payments accruing to [Christina] as redeemable and/or payable by [Troy] under the terms of the Final Decree of Divorce while the appeal in the court of appeals remains pending (which the trial court has anticipated to be as long as two years from the date the appeal was perfected) and includ[ed] the appellate attorney[']s fees of $50, 000 awarded herein.

         The order entitled Troy to a reduction of the "bond or cash equivalent payment" to the extent that he "compli[ed] with the terms of the Reformed Final Decree of Divorce regarding the redemption, payment and delivery of property or funds to [Christina]" during the pendency of the appeal. Finally, the trial court ordered Troy to pay to Christina temporary spousal support of $3, 500 per month.

         Troy then filed his petition for a writ of mandamus, which included a motion for temporary relief. We granted the motion in part and stayed the portions of the trial court's order that required Troy to pay appellate attorney's fees awarded to Christina into the court registry and to post a bond, or cash equivalent, in the amount of $275, 000.

         Standard ...


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