London v. London
342 S.W.3d 768
Tex. App.2011Background
- Divorced in 1995; Jeffrey ordered to pay Leticia $1,500/month child support, later increased to $4,500 for two children; London I reversed portions of the order; London II increased support to $3,000 and awarded Leticia retroactive and attorney’s fees, then reversed again; Jeffrey pursued collection of past-due amounts after final appeals; in 2009 Leticia attempted to sell her homestead and designate sale proceeds to creditors; trial court issued turnover and receiver orders December 1, 2009 directing proceeds to be delivered to a receiver; Leticia sought disbursement of proceeds and challenged turnover via appeal and mandamus; appellate panel consolidated and held the turnover and receiver orders were improper, remanding with instructions to return proceeds to Leticia
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether turnover order violated the statute. | London contends proceeds are exempt six months | London argues exemption is waived by use of proceeds | Turnover order violated statute; abuse of discretion |
| Whether Leticia waived the homestead-exemption by intent to use proceeds for non-purchase of another homestead. | London not waived; exemption applies for six months | London attempted to use proceeds for non-homestead purposes | No waiver; exemption applies; six-month period tollable |
| What relief is proper given six-month exemption would be tolled. | tolling appropriate to preserve exemption | Toll the six-month exemption; remand with instructions to return proceeds to Leticia | |
| Whether mandamus relief was appropriate. | Relief requested to compel disbursement | Order erroneous but not void | Mandamus denied; appeal relief granted on merits |
Key Cases Cited
- London v. London, 94 S.W.3d 139 (Tex.App.-Houston [14th Dist.] 2002) (appeal regarding child support and related awards in divorce context)
- London v. London, 192 S.W.3d 6 (Tex.App.-Houston [14th Dist.] 2005) (reversal of increased support and related awards; remand)
- In re Gen. Elec. Co., 271 S.W.3d 681 (Tex. 2008) (turnover orders; statutory compliance; abuse of discretion)
- Henry v. Boedker, 141 S.W.2d 811 (Tex.Civ.App.-San Antonio 1911) (homestead proceeds are sacred fund; cannot be reached by process)
- Jones v. Maroney, 619 S.W.2d 296 (Tex.Civ.App.-Houston 1981) (tolling of homestead-exemption during proceedings; purpose of exemption)
- Walston v. Walston, 971 S.W.2d 687 (Tex.App.-Houston [14th Dist.] 1998) (unsecured creditors cannot seize homestead proceeds)
- Zibman v. Tow, 268 F.3d 298 (5th Cir. 2001) (bankruptcy exemption continues for six months; not permanent)