Court of Appeals of Texas, Fifth District, Dallas
IN THE MATTER OF THE MARRIAGE OF KINDRELA KEISHELLE TYSON
Proceeding from the 255th Judicial District Court Dallas
County, Texas Trial Court Cause No. DF-16-19594
Justices Lang-Miers, Myers, and Boatright.
underlying proceeding is a divorce action. In this original
proceeding, relator Kindrela Keishelle Tyson complains of the
trial court's order requiring relator to sign a warranty
deed and convey her interest in the marital residence within
twenty-four hours of entry of judgment. We granted an
emergency stay of the order and requested responses to the
petition for writ of mandamus. Neither respondent nor the
real party in interest filed a response. Although the trial
court erred by issuing the order to execute the deed, that
order is merely voidable and not subject to mandamus review.
We, therefore, deny relator the relief requested.
underlying divorce proceeding, the trial judge stated her
rulings on the record, including her award of the marital
residence along with the associated debt, taxes, and expenses
to Husband. The trial court set the case for hearing to enter
a final order. At that hearing, the trial court also heard
Husband's motion to require relator to execute the
warranty deed to the marital residence within 48 hours. The
trial judge verbally granted the motion and signed an order
requiring relator to execute the deed by 5:00 p.m. the next
day. The trial judge rejected relator's argument that she
should be permitted to seek a bond and appeal the judgment
before being required to execute the deed. The trial judge
noted that relator must sign the deed within the next day
because relator had rescheduled the hearing to sign the
judgment and had caused delays in the case.
as otherwise provided by chapter 9 of the Family Code,
enforcement of divorce decrees are governed by the Texas
Rules of Civil Procedure. Tex. Fam. Code Ann. § 9.001(b)
(West Supp. 2016); English v. English, 44 S.W.3d
102, 105 (Tex. App.-Houston [14th Dist.] 2001, no pet.);
Winkle v. Winkle, 951 S.W.2d 80, 89 (Tex.
App.-Corpus Christi, 1997, pet. denied). Rule 627 of the
Texas Rules of Civil Procedure provides that, absent the
posting of a supersedeas bond, execution of a final judgment
from a district court may not issue until thirty days have
elapsed since the rendition of the final judgment, or thirty
days after the overruling of any motion for new trial, either
by written order or by operation of law. Tex.R.Civ.P. 627. A
prematurely issued execution of judgment, however, is not
void, only voidable. South Falls Corp. v. Davenport,
368 S.W.2d 695, 697 (Tex. Civ. App.-Dallas 1963, no writ);
Winkle, 951 S.W.2d at 89-90. The execution may not
be collaterally attacked and must be respected until it is
vacated in a direct proceeding instituted in the court which
ordered it to be issued. Winkle, 951 S.W.2d at 89-90
(citing South Falls Corp., 368 S.W.2d at 697). In
other words, a prematurely issued execution of judgment must
be attacked in the trial court that issued the order and may
not be reviewed through a petition for writ of mandamus.
York Div., Borg-Warner Corp. v. Sec. Sav. & Loan
Ass'n, Dickinson, 485 S.W.2d 327, 330 (Tex. Civ.
App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.)
("a writ of execution prematurely issued in violation of
Rule 627 . . . is not void but only voidable, and can be
attacked only in the court from which it issues in a direct
proceeding.") (citing South Falls Corp.).
voidable orders are readily appealable and must be attacked
directly, void orders may be circumvented by collateral
attack or remedied by mandamus. Sanchez v. Hester,
911 S.W.2d 173, 176 (Tex. App.-Corpus Christi 1995, no writ)
(citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703
(Tex. 1990) (orig. proceeding)). A void order is one entered
by a trial court that lacks jurisdiction over the parties or
the subject matter, or is an order entered outside the trial
court's capacity as a court. In re Florey, 329
S.W.3d 854, 857 (Tex. App.-Eastland 2010, orig. proceeding)
(citing Mapco, Inc., 795 S.W.2d at 703).
"Voidable orders result from errors other than lack of
jurisdiction, such as an action contrary to a statute or
statutory equivalent." Id. (citing Reiss v.
Reiss, 118 S.W.3d 439, 443 (Tex. 2003)).
rendering the initial decree of divorce containing a property
division, the trial court is prohibited from implementing or
clarifying the property division by way of further orders
while an appeal is pending. Tex. Fam. Code Ann. §
9.007(c) (West 2006); English, 44 S.W.3d at 105-06.
But the ministerial act of execution upon the judgment is not
proscribed. In re Fischer-Stoker, 174 S.W.3d 268,
272 (Tex. App.-Houston [1st Dist.] 2005, orig. proceeding);
English, 44 S.W.3d at 106; State v. Blair,
629 S.W.2d 148, 150 (Tex. App.-Dallas 1982) (execution in a
judgment is merely a direction to a ministerial officer to
permit enforcement of the judgment), aff'd Blair v.
State, 640 S.W.2d 867 (Tex. 1982). Section 9.007(c)
deprives the trial court of subject-matter jurisdiction to
enter an order clarifying the property division during the
pendency of an appeal. In re Lovell, No.
14-11-00197-CV, 2011 WL 1744211, at *2-3 (Tex. App.-Houston
[14th Dist.] May 5, 2011, orig. proceeding) (trial court
lacked jurisdiction to issue an order that attempted to
clarify an order for which an appeal had been perfected). An
order violating section 9.007(c) may be collaterally attacked
through a petition for writ of mandamus because such an order
is issued outside the trial court's jurisdiction and is
example, in Fischer-Stoker, the husband filed a
motion to enforce the property division by criminal contempt
if the wife failed to provide an accounting of her Wells
Fargo accounts as of December 12, 2003 and a check for 50% of
the money in those accounts on that date. In re
Fischer-Stoker, 174 S.W.3d at 272. The court construed
the relief sought as an order to assist in the implementation
of the property division in the final divorce decree for
which the trial court lacked jurisdiction to issue during the
pendency of an appeal under section 9.007(c). Id.
The court conditionally granted the wife's petition for
writ of mandamus and ordered the trial court to dismiss the
motion for contempt. Id.
in Lovell, the trial court issued an order in
November 2010 requiring the property to be sold at fair
market value and stating wife's share of the proceeds of
the property. Id. Wife appealed two months later and
that appeal automatically abated the power of the court to
clarify the property division by way of further order.
Id. The trial court, therefore, lacked jurisdiction
to issue an order that attempted to clarify the November
order after wife perfected the appeal. Id.
the analysis of the courts in Lovell and
Fischer-Stoker, the trial court's order granting
the motion to execute deed is an order "implementing or
clarifying the property division by way of further
orders" after entry of the divorce decree because the
order requires relator to implement the property division by
requiring her to execute the warranty deed. The trial court
will lack jurisdiction to issue and enforce such an order
once relator appeals the judgment and order. However, relator
has not yet filed a notice of appeal. Tex.R.App.P. 26.1,
26.3. As such, section 9.007(c) does not yet apply. Instead,
the enforcement order is simply a premature execution order
that violates Rule 627 but remains merely voidable and,