in Re Troy Lee Christensen
01-16-00893-CV
| Tex. App. | Apr 25, 2017Background
- Christina filed for divorce; after a two-day bench trial the trial court entered a reformed final decree dividing community assets and awarded Christina various Fidelity/Schwab accounts, a 50% interest in a stock plan, and $20,000 in attorney’s fees.
- Troy timely appealed the reformed final decree. Christina moved under Tex. Fam. Code § 6.709 for temporary orders pending appeal: appellate attorney’s fees, a bond or cash security to protect her property interests, account preservation measures, and temporary spousal support.
- At a hearing both parties testified about account balances, alleged depletion of funds awarded to Christina, and respective incomes/expenses; trial court found temporary orders necessary to preserve property and protect the parties.
- The trial court ordered Troy to deposit $50,000 into the court registry for Christina’s appellate fees (conditional on an unsuccessful appeal), post a $275,000 bond or cash equivalent (which included the $50,000 fees), and pay $3,500/month temporary spousal support.
- Troy filed a mandamus petition challenging the registry deposit, the bond requirement, the temporary spousal support, and alleging the orders penalized his right to appeal. This Court stayed the registry and bond requirements pending review and granted mandamus relief in part.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument (Christensen) | Defendant's Argument (Troy) | Held |
|---|---|---|---|
| Whether trial court could require prepayment of appellate attorney’s fees into registry | §6.709 authorizes payment of reasonable attorney’s fees and the court may secure those fees pending appeal | Prepayment into registry is improper; appellate fees should be conditional and not payable until appeal concludes | Trial court abused discretion by ordering $50,000 prepaid into registry; appellate fees must not be prepaid into registry while appeal pending |
| Whether trial court could require posting of bond/cash equivalent to protect property during appeal | Bond/cash security is appropriate to protect property and may include estimated interest and duration | No authority to require a bond under §6.709; Rule 24 inapplicable | Trial court had authority under §6.709 to require security, but including the $50,000 prepaid appellate-fee amount in the bond was an abuse of discretion |
| Whether temporary spousal support of $3,500/mo was proper | Temporary spousal support needed to cover Christina’s necessary expenses during appeal | Troy lacks ability to pay; award disguises property division and penalizes appeal | Trial court did not abuse its discretion; evidence supported temporary spousal support award |
| Whether orders functioned as an improper monetary penalty chilling appeals | Orders (registry deposit/bond) operate as a precondition to appeal and chill appellate rights | Fee award was conditioned on unsuccessful appeal; orders aimed to preserve property, not punish | No basis to vacate entire order as penal; only registry deposit and inclusion of that amount in bond were improper |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus available when trial court clearly abuses discretion and no adequate appellate remedy exists)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus review and abuse of discretion)
- Halleman v. Halleman, 379 S.W.3d 443 (Tex. App.—Fort Worth 2012) (ordering prepayment of appellate fees into registry while appeal pending is improper)
- Keith v. Keith, 221 S.W.3d 156 (Tex. App.—Houston [1st Dist.] 2006) (appellate attorney’s fees under §6.709 must be conditioned on unsuccessful appeal)
- In re Garza, 153 S.W.3d 97 (Tex. App.—San Antonio 2004) (trial court may impose temporary measures to preserve community estate pending appeal)
- Ford Motor Co. v. [unnamed sanctions context cited], 988 S.W.2d 714 (Tex. 1988) (trial court abused discretion by awarding unconditional appellate attorney’s fees that penalized appeal)