Proceeding on Petition for Writ of Mandamus
consists of Chief Justice Radack and Justices Higley and
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. 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
2) awarding $250, 000 in monthly support during the appeal;
3) awarding $100, 000 in monthly attorney's fees during
4) awarding approximately $6.4 million in lump-sum
attorney's fees during the appeal; and
5) appointing a receiver.
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
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).
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.
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.
Original Temporary Orders
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.
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."
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.
Modified Temporary Orders
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
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.
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.
Standard of Review
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
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 ...