in Re Miguel Zaragoza Fuentes, 2016 Tex. App. LEXIS 10953

Background

Wife (Evangelina) sued for divorce; alleged husband Miguel controlled numerous companies and sought receiver; Miguel did not appear at trial and a default final decree (Dec. 21, 2015) awarded her one-half of the marital estate and $537 million in damages.
Intervenors and Miguel filed post-judgment motions and notices of appeal; intervenors filed notices on Jan 20, 2016; Miguel filed his notice on Mar 18, 2016.
Ten days after Miguel’s notice, Evangelina moved under Tex. Fam. Code §6.709 for temporary orders during appeal seeking spousal support and monthly attorney fees.
Trial court denied Miguel’s motion to dismiss the §6.709 motion, concluded it had jurisdiction as to Miguel, and ordered $300,000/mo spousal support plus $50,000/mo attorney’s fees.
Miguel petitioned for mandamus arguing (1) the §6.709 order was void as untimely because 30-day deadline ran from intervenors’ earlier appeals, and (2) the monthly awards lacked evidentiary support.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §6.709’s 30‑day deadline runs from any party’s perfected appeal or from the appeal perfected by the party against whom relief is sought	Evangelina: deadline runs from the appeal perfected by the party from whom support is sought (Miguel), so her motion was timely	Miguel: deadline runs from the first perfected appeal in the case (intervenors’ Jan 20 appeals), so the order was untimely and void	Court held deadline runs from the appeal perfected by the party against whom relief is sought (Miguel); trial court had jurisdiction and order was timely
Whether an order under §6.709 entered more than 30 days after an appeal is perfected is void	Evangelina: not applicable if deadline measured from Miguel’s appeal date	Miguel: order is void if entered after 30 days from any perfected appeal	Court treated untimeliness as void but held orders were timely as to Miguel’s appeal date
Whether mandamus is available to challenge the temporary monthly payments and fees	Evangelina: challenges can be reviewed with underlying appeal; mandamus unnecessary	Miguel: mandamus appropriate because the awards require immediate monthly payments and appeal is inadequate remedy	Court held mandamus can be available where appeal is inadequate (here monthly payments create inadequate remedy by appeal)
Whether the evidence supported $300,000/mo spousal support and $50,000/mo attorney’s fees	Evangelina: trial court could rely on familiarity with case, scope of marital estate, and applicant’s needs	Miguel: awards lack evidentiary support; wife failed to prove actual necessary expenses or reasonable appellate fees	Court held evidence insufficient for both amounts and ordered trial court to modify the temporary order consistent with opinion

Key Cases Cited

Love v. Bailey-Love, 217 S.W.3d 33 (Tex. App.—Houston [1st Dist.] 2006) (untimely §6.709 orders are void)
Bass v. Bass, 106 S.W.3d 311 (Tex. App.—Houston [1st Dist.] 2003) (timeliness controls validity of temporary family support orders)
In re Boyd, 34 S.W.3d 708 (Tex. App.—Fort Worth 2000) (mandamus appropriate to correct void orders)
Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App.—Texarkana 1996) (temporary support requires a pending appeal of the divorce decree)
In re Merriam, 228 S.W.3d 413 (Tex. App.—Beaumont 2007) (mandamus availability when appeal is inadequate; review of §6.709 orders along with underlying appeal)
Halleman v. Halleman, 379 S.W.3d 443 (Tex. App.—Fort Worth 2012) (appellate review of ancillary §6.709 orders concurrent with underlying appeal)
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (abuse of discretion standard explained)
Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (testimony lacking personal knowledge is insufficient evidence)
Russell v. Russell, 79 S.W.2d 639 (Tex. Civ. App.—Fort Worth 1934) (temporary support intended for necessary maintenance; requires proof of need)