in Re: In the Matter of the Marriage of Kindrela Keishelle Tyson
05-17-00371-CV
| Tex. App. | Jul 17, 2017Background
- Relator Kindrela Keishelle Tyson was ordered in a divorce proceeding to execute a warranty deed conveying her interest in the marital residence within 24–48 hours after the court signed the final order awarding the residence to Husband.
- The trial judge orally granted Husband’s motion to require execution of the deed and signed an order requiring Tyson to sign the deed by 5:00 p.m. the next day, rejecting Tyson’s request to seek a bond and appeal first.
- Tyson filed an original proceeding (mandamus) in the court of appeals and obtained an emergency stay of the trial-court order; respondents did not file a response.
- The appealability/enforceability issue centers on Texas Rule of Civil Procedure 627 (execution blocked for 30 days absent supersedeas bond) and Family Code §9.007(c) (trial court restrictions while an appeal is pending).
- The court of appeals concluded the order was a premature execution (violating Rule 627) but was only voidable, not void, and therefore not subject to collateral attack by mandamus. Tyson has an adequate appellate remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s order requiring immediate execution of the warranty deed is subject to mandamus | Tyson: the order improperly compels conveyance before appeal and should be set aside via mandamus | Trial court/Husband: order enforces the judgment and is a proper ministerial execution | Held: Order violates Rule 627 (premature execution) but is only voidable; not subject to mandamus; must be attacked in the trial court or on appeal |
| Whether section 9.007(c) bars the trial court from issuing the order during an active appeal | Tyson: the order would be void if appeal is pending | Trial court/Husband: section 9.007(c) does not apply because no appeal yet | Held: §9.007(c) would deprive jurisdiction if an appeal were perfected, but here no appeal had been filed, so §9.007(c) did not apply at the time |
| Whether a prematurely issued execution order is void or voidable | Tyson: seeks relief treating order as void to permit mandamus | Trial court/Husband: execution is a ministerial act and not void | Held: Premature execution is voidable, not void; cannot be collaterally attacked by mandamus |
| Proper remedy for relief from the order | Tyson: mandamus to vacate order immediately | Trial court/Husband: relief must be sought in trial court or by appeal | Held: Appellate remedy or direct attack in trial court is adequate; mandamus denied |
Key Cases Cited
- English v. English, 44 S.W.3d 102 (Tex. App.—Houston [14th Dist.] 2001) (discussing enforcement of divorce decrees under rules of civil procedure)
- Winkle v. Winkle, 951 S.W.2d 80 (Tex. App.—Corpus Christi 1997) (premature execution is voidable and must be attacked directly)
- South Falls Corp. v. Davenport, 368 S.W.2d 695 (Tex. Civ. App.—Dallas 1963) (premature execution not void but voidable)
- York Div., Borg-Warner Corp. v. Sec. Sav. & Loan Ass'n, Dickinson, 485 S.W.2d 327 (Tex. Civ. App.—Houston [1st Dist.] 1972) (writ of execution prematurely issued is voidable)
- Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) (distinguishing void and voidable orders for mandamus availability)
- In re Fischer–Stoker, 174 S.W.3d 268 (Tex. App.—Houston [1st Dist.] 2005) (order attempting to implement property division during an appeal is beyond trial court jurisdiction and subject to mandamus)
- In re Florey, 329 S.W.3d 854 (Tex. App.—Eastland 2010) (definition of void order: entered without jurisdiction or outside court’s capacity)