in Re Jesus Jay Montalvo ( 2010 )

Opinion issued May 6, 2010.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00233-CV

———————————

IN RE Jesus Jay Montalvo, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM  OPINION

          Relator, Jesus Jay Montalvo, has filed a petition for writ of mandamus complaining of that portion of Judge Doug Warne’s[1] January 19, 2010 order— which required that Montalvo pay the interim attorney’s fees of the real party in interest, Eileen Mansfield—in which the trial court determined that it would not consider any affirmative relief requested by Montalvo until he paid the referenced attorney’s fees.  We conditionally grant the petition.

          In June 2006, the trial judge rendered a decree in this family-law case that, among other things, required Montalvo to pay Mansfield child support and awarded Mansfield her attorney’s fees (“the 2006 decree”).  The 2006 decree also included findings that Montalvo had “engaged in a continuing pattern of frivolous and abusive litigation” that was intended to and did result in financial damage to Mansfield; that Montalvo’s “pattern of behavior” constituted “stalking by litigation”; that Montalvo had brought the modification proceedings then at issue “with the design of harassing Mansfield” consistent with “what the Court believes to be a pledge or threat” that Montalvo had previously made to Mansfield; that Montalvo had failed to comply with certain Family Code provisions and had “thwarted the discovery powers of this Court . . .”; that the trial judge was departing from the standard child-support guidelines because “ongoing litigation . . . initiated by” Montalvo had resulted in “significant ongoing legal expenses incurred as necessary expenditures” by Mansfield; and that Montalvo’s own motion to modify prior orders “was filed frivolously or was designed to harass” Mansfield, so that Montalvo should pay her attorney’s fees.  The 2006 decree also recited that the trial judge had struck Montalvo’s pleadings and had prohibited him from presenting evidence in support.

In August 2009, Montalvo moved to modify the 2006 decree’s custody and child-support provisions, also seeking temporary orders reducing child-support in the interim (“the 2009 proceeding”).[2]  It was during the 2009 proceeding that the trial judge rendered the order of which Montalvo complains in this Court.  During the pendency of the 2009 proceeding, Mansfield moved the judge for interim attorney’s fees, alleging that she did not have funds “to defend against [Montalvo’s] frivolous suit.” See Tex. Fam. Code Ann. § 105.001(a)(5) (Vernon 2009) (“In a suit, the court may make a temporary order . . . for the safety and welfare of the child, including an order: . . . for payment of reasonable attorney’s fees and expenses.”)

At the hearing on her motion for interim attorney’s fees, Mansfield presented evidence that this was the fourth custody suit that Montalvo had instigated; she had had to borrow against her retirement account and from her parents to pay for attorney’s fees for Montalvo’s prior litigation in this suit, which debts she was still paying off; that Mansfield had about $9,000 left in her retirement account; that Montalvo had about $226,000 in his retirement account with the Houston Police Department, from which he had already retired; that he was receiving pension benefits of about $3,790 per month; and that attorney’s fees to take the current custody suit to trial would run about $30,000, which she could not pay.  Montalvo, who admitted sharing some expenses with his current wife, presented evidence that his sole current income was from his pension and that most of that went to pay expenses; that he was currently unemployed; that he would pay a penalty if he withdrew funds from his retirement account to pay Mansfield’s attorney’s fees; and that he had no resources from which to pay those fees. 

At the end of the hearing, the trial judge noted its adverse findings concerning Montalvo from the 2006 decree and awarded $20,000 in interim attorney’s fees to Mansfield, to be paid on or before April 15, 2010.  The judge then stated that he did “not intend to set or hear any other requests for affirmative relief by [Montalvo] until or unless the interim fees are paid as ordered by the Court.”  The order from which Montalvo seeks relief, signed January 19, 2010, likewise recited:

JESUS JAY MONTALVO PETITIONER IS ORDERED to pay to EILEEN MANSFIELD . . . the following sum(s): $20,000 on or before 4-15, 2010 at 5:00 p.m. . . . It is further ordered that no affirmative relief requested by Petitioner [Montalvo] will be entertained by this court until said fees are paid.

(Emphasis added.)[3] 

Montalvo complains that the italicized portion of the quoted order “is a denial of [his] access to the courts under due course of law.”  See Tex. Const. art. I, §§ 13, 19.  This issue has already been decided in In re Flores, in which we held that a trial judge may not refuse to set a case for trial because of a party’s refusal to pay interim attorney’s fees awarded, as here, under section 105.001(a)(5) the Family Code.  135 S.W.3d 863, 865 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding); see Tex. Fam. Code Ann. § 105.001(a)(5).  Although in Flores we “share[d] the trial court’s frustration” at relator’s refusal to pay the ordered fees, we nonetheless concluded that “[w]e do not believe that the trial court may compel compliance with its order of interim attorney’s fees by refusing to set a case for trial” and held that the denial to proceed until the occurrence of an uncertain future event (the payment of fees) under those circumstances was a denial of the relator’s access to the courts under due course of law.  Id.  We thus conditionally granted mandamus relief to order the trial court to proceed to trial, expressing “no opinion about other remedies that the trial court might use to compel compliance with its order.”  Id.  We based our holding in part on a decision of the Dallas Court of Appeals, which had held likewise when considering the refusal to proceed to trial until the relator paid interim attorney’s fees awarded under the Family Code. See Baluch v. Miller, 774 S.W.2d 299, 301-02 (Tex. App.—Dallas 1989, orig. proceeding).

As in Flores, we conditionally grant the petition for writ of mandamus to order the trial judge to proceed with the case regardless of whether Montalvo pays the interim attorney’s fees.  See Flores, 135 S.W.3d at 865.  We express no opinion about whether contempt or other remedies might be available to ensure that Montalvo complies with the January 19, 2010 order to pay Mansfield interim attorney’s fees.  See id.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

---

[1]           The Honorable Doug Warne, judge of the 311th District Court of Harris County, Texas.  The underlying lawsuit is In re M.J.M., No. 1998-14950 (311th Dist. Ct., Harris County, Tex.).

[2]           Montalvo originally sought only a reduction in the child-support that he paid Mansfield.  He later amended his petition to seek primary conservatorship of the parties’ child and to have Mansfield pay him child support.  Montalvo then alternatively requested that his child-support obligation be reduced if conservatorship were not changed.

[3]           Montalvo filed his mandamus petition in this Court on March 25, 2010—three weeks before the order’s deadline for him to pay the interim fees.  That deadline has now passed, and no party has advised this Court that Montalvo has paid the ordered fees.