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In re Fuentes

Court of Appeals of Texas, First District

July 27, 2017

IN RE MIGUEL ZARAGOZA FUENTES, Relator

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          MEMORANDUM OPINION

          JANE BLAND JUSTICE.

         Miguel Zaragoza Fuentes seeks mandamus relief from the trial court's modified temporary orders pending appeal of the underlying divorce decree between Miguel and real party in interest, Evangelina Lopez Guzman Zaragoza.[1] In an earlier original proceeding, this court conditionally granted Miguel's request for mandamus relief challenging temporary orders requiring Miguel to pay $350, 000 per month in temporary spousal support and attorney's fees during Miguel's appeal of the divorce decree. See In re Fuentes, 506 S.W.3d 586 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding [mand. denied]). Because the temporary spousal benefits were not supported by the evidence, we ordered the trial court to modify its temporary orders consistent with our opinion. Id. at 594. Miguel's current mandamus petition arises from the trial court's subsequent modifications to the temporary orders. He challenges the modified orders, contending that the trial court abused its discretion by:

1) exceeding the scope of this court's limited remand to "modify its order of temporary support and attorney's fees consistent with" the court's earlier opinion;
2) awarding $250, 000 in monthly support during the appeal;
3) awarding $100, 000 in monthly attorney's fees during the appeal;
4) awarding approximately $6.4 million in lump-sum attorney's fees during the appeal; and
5) appointing a receiver.

         Evangelina filed a joint response to this petition as well as to two separate motions and petitions filed by Miguel and other appellants seeking enforcement of the supersedeas bond posted by Miguel.[2]

         Background

         Because the facts of the underlying case have been discussed in our concurrent and previous opinions, we do not recount them here except as relevant to this proceeding. See In re Fuentes and In re Anchondo and Eagle Ridge Properties, LLC, 01-16-00952-CV (Tex. App.-Houston [1st Dist.] July 27, 2017, orig. proceeding) (conditionally granting mandamus relief enforcing supersedeas bond); Fuentes v. Zaragoza, 01-17-00112-CV (Tex. App.-Houston [1st Dist.] July 27, 2017, no pet. h.) (vacating appointment of receiver); Fuentes v. Zaragoza, No. 01-16-00251-CV, 2017 WL 976079 (Tex. App.-Houston [1st Dist.] Mar. 14, 2017, order) (denying motion to dismiss intervenor appellants); In re Fuentes, 506 S.W.3d 586 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding [mand. denied]) (conditionally granting mandamus relief regarding temporary orders); Fuentes v. Zaragoza, No. 01-16-00251-CV, 2016 WL 3023811 (Tex. App.-Houston [1st Dist.] May 26, 2016, order) (granting motion to reduce supersedeas bond).

         On December 21, 2015, the trial court signed a final decree granting Evangelina a divorce against Miguel. The decree awarded Evangelina one-half of the marital estate and $537 million in fraud-on-the-community damages, including cash in the amount of $537, 680, 823, real and personal property, and "[a]ll shares and all interest of any kind in and to" several international business entities that the trial court found to be Miguel's alter egos.

         Miguel moved for a new trial. Several intervenors in the proceedings filed written notices of appeal, including Laura Zaragoza Rodriguez de Reyes, Dade Aviation, Inc., Abbingdon Marine, Inc., Ezar Management, LLC, Ezar Properties, L.P., Eagle Ridge Properties, LLC, and Elsa Esther Carrillo Anchondo. After the trial court denied Miguel's motion for new trial, Miguel filed a notice of appeal on March 18, 2016.

         The Original Temporary Orders

         On April 1, 2016, fourteen days after Miguel filed his notice of appeal, the trial court issued temporary orders pursuant to Family Code Section 6.709, requiring Miguel to pay $350, 000 per month to Evangelina, consisting of $300, 000 for monthly support and $50, 000 for monthly attorney's fees. See Tex. Fam. Code § 6.709(a) (allowing trial court to render temporary orders during appeal no later than 30 days after appeal perfected). Miguel filed a petition for writ of mandamus claiming that the trial court lacked jurisdiction to enter the temporary orders because, according to Miguel, they were entered more than 30 days after an appeal was perfected from the underlying case. In re Fuentes, 506 S.W.3d at 588-90. Although the temporary orders were entered within 30 days of Miguel's appeal, Miguel argued that the 30-day deadline began when the intervenor appellants had filed their earlier notices of appeal. Id. at 590-91. Alternatively, Miguel argued that the trial court abused its discretion because the awards lacked evidentiary support. Id. at 592.

         We conditionally granted the petition for writ of mandamus. Id. at 594. In our opinion, we rejected Miguel's argument that the 30-day deadline for issuing temporary orders began when the intervenor appellants filed notices of appeal; instead, we held that the trial court had jurisdiction to issue the orders because they were filed within 30 days of Miguel's notice of appeal. Id. at 590-91. But, although the trial court had jurisdiction to issue the temporary orders, we held that the trial court abused its discretion because the award amounts were not supported by evidence. Id. at 591, 593-94. Our opinion initially directed the trial court to "vacate its order of temporary support and for attorney's fees and to conduct a hearing and enter new temporary orders within 30 days."

         Miguel moved for rehearing, arguing that the trial court did not have jurisdiction to issue new orders, conduct another hearing, or take new evidence more than 30 days after Miguel perfected his appeal. We denied rehearing, but withdrew the earlier opinion and issued a substitute opinion. Id. at 588 n.1. The substitute opinion removed the directive to hold a hearing, and instead directed the trial court to "modify its order of temporary support and attorney's fees consistent with this opinion within 30 days." Id. at 594.

         The Modified Temporary Orders

         The trial court set another evidentiary hearing for November 1, 2016. Miguel objected to the hearing, contending that orders were issued outside of the trial court's jurisdiction. He requested that the trial court "decline from exercising jurisdiction over temporary orders at this juncture." In the alternative, Miguel claimed that if the trial court exercised jurisdiction to modify its temporary orders, then it must do so with the evidence before it and could not hear new evidence. On this point, Miguel argued that (1) the court lacked jurisdiction to conduct another hearing or take new evidence more than 30 days after Miguel's appeal was perfected and (2) "the trial court's only authority was to 'modify its order of temporary support and attorney's fees consistent with'" this Court's opinion. The trial court overruled Miguel's objections and proceeded to conduct a two-day evidentiary hearing.

         At the conclusion of the hearing, the trial court announced that it was awarding Evangelina $250, 000 in monthly support pending appeal (a reduction of $50, 000 from the earlier order), $100, 000 in monthly attorney's fees pending appeal (an increase of $50, 000 from the earlier order), and approximately $6.4 million in lump-sum attorney's fees.

         Miguel then filed a petition for writ of mandamus, again challenging the temporary orders. We granted Miguel's request for a stay of the orders pending our determination of the mandamus petition. Although Miguel challenges the appointment of a receiver in his mandamus petition, Miguel also filed an interlocutory appeal of the receivership appointment that is pending in our court under case number 01-17-00112-CV. The appeal of the decree is pending under appellate cause number 01-16-00251-CV, and we decide that appeal concurrently with our resolution of this proceeding.

         Discussion

         I. Standard of Review

         Mandamus is an extraordinary remedy that is available when a trial court clearly abuses its discretion and there is no adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is and applying it to the facts and abuses its discretion if it fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); Walker, 827 S.W.2d at 840. A trial court abuses its discretion concerning factual matters if the record establishes that the trial court could have reached only one conclusion. Walker, 827 S.W.2d at 841; see In re Allen, 359 S.W.3d 284, 288 (Tex. App.-Texarkana 2012, orig. proceeding) (citing Walker, 827 S.W.2d at 839-40) ("Where, as here, a relator seeks to overrule a decision based on factual issues or matters committed to the trial court's discretion, [relator] has the burden to show the trial court could have reached only one decision on the facts."). In regard to a factual issue, we may not substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 840.

         We review awards of spousal maintenance for an abuse of discretion. See Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Dunn, 177 S.W.3d at 396. In this context, "legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion." Dunn, 177 S.W.3d at 396. Because of the overlap between the abuse-of-discretion and sufficiency-of-the-evidence standards of review, we determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of that discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

         II.Adequate Remedy ...


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