Raul Rene Rodriguez v. Leticia Borrego
536 S.W.3d 16
Tex. App.2016Background
- Appellant Raul Rene Rodriguez appealed a final divorce decree; appellee Leticia Borrego sought temporary orders under Tex. Fam. Code § 6.709 pending appeal.
- Trial court ordered Rodriguez to pay $21,000 in attorney’s fees by March 15, 2016; $1,500/month spousal support starting Jan 1, 2016; and $500 retroactive support for Sept–Nov 2015.
- Rodriguez perfected the appeal on Nov 20, 2015 but did not make any payments required by the temporary orders.
- Borrego moved to dismiss the appeal for noncompliance; the Court of Appeals abated the appeal multiple times and warned that failure to comply would result in dismissal.
- Rodriguez sought additional time citing efforts to obtain funds from a Thrift Savings Plan (TSP) and moved to modify the temporary orders or remand; he also asked the court to reconsider its dismissal warning.
- The Court concluded Rodriguez failed to comply with the temporary orders, denied his motions, and dismissed the appeal under Tex. R. App. P. 42.3(c).
Issues
| Issue | Plaintiff's Argument (Rodriguez) | Defendant's Argument (Borrego) | Held |
|---|---|---|---|
| Whether appeal should be dismissed for failure to comply with temporary orders | Rodriguez argued he was negotiating in good faith with the TSP administrator and needed more time to obtain funds; he also sought to appeal/modify the temporary orders | Borrego argued Rodriguez failed to pay required support and fees and could have used other assets awarded in the divorce to comply; dismissal appropriate | Court held dismissal appropriate under Tex. R. App. P. 42.3(c); Rodriguez forfeited relief by noncompliance |
| Whether the appellate court must entertain a challenge to ancillary § 6.709 temporary orders in the underlying appeal | Rodriguez asserted he could appeal the temporary orders (citing permissive jurisdiction in some precedents) | Borrego emphasized nonpayment and that jurisdictional arguments do not excuse noncompliance | Court noted some precedent permits appellate review but held jurisdiction does not excuse failure to comply; noncompliance warranted dismissal |
| Whether TSP hold excuses nonpayment | Rodriguez claimed a TSP hold prevented access to funds | Borrego responded she also lacked access and Rodriguez had other assets to satisfy orders | Court found no legal authority allowing a party to ignore temporary orders simply due to disagreement or claimed inability tied to TSP; noncompliance unacceptable |
| Whether court should remand to trial court to modify temporary orders | Rodriguez asked for modification or remand to obtain compliance | Borrego sought dismissal or brief abatement to permit compliance | Court denied motion to modify/remand and denied reconsideration; dismissed the appeal |
Key Cases Cited
- Byrnes v. Ketterman, 440 S.W.3d 688 (Tex. App.—El Paso 2013) (affirming dismissal of appeal for failure to comply with court order)
- Halleman v. Halleman, 379 S.W.3d 443 (Tex. App.—Fort Worth 2012) (discussing appellate review of ancillary Family Code § 6.709 temporary orders)
- In re Merriam, 228 S.W.3d 413 (Tex. App.—Beaumont 2007) (addressing concurrent appellate review of temporary orders under § 6.709)
- In re Garza, 153 S.W.3d 97 (Tex. App.—San Antonio 2004) (holding mandamus may be the exclusive remedy to challenge certain temporary orders)