Aimee Delyn Halleman v. Edward Charles Halleman ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00238-CV
AIMEE DELYN HALLEMAN APPELLANT
V.
EDWARD CHARLES HALLEMAN APPELLEE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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AND
NO. 02-11-00259-CV
IN RE AIMEE DELYN HALLEMAN RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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See Tex. R. App. P. 47.4.
I. Introduction
In three issues in her petition for writ of mandamus in cause number 02-
11-00259-CV, Relator Aimee Delyn Halleman asks this court for relief from
Respondent the Honorable Carmen Rivera-Worley’s temporary order requiring
her to pay $95,000 into the trial court’s registry for Real Party in Interest (RPI)
Edward Charles Halleman’s attorney’s fees on appeal. We conditionally grant
the writ of mandamus, directing Respondent to modify her order. We dismiss the
appeal of the same order, in cause number 02-11-00238-CV, for want of
jurisdiction.
II. Factual and Procedural Background
The underlying lawsuit is a divorce; Respondent signed the divorce decree
on April 29, 2011, awarding, among other things, the exclusive right to designate
the parties’ minor child’s primary residence to RPI and a $50,000 judgment for
RPI against Relator ―for reasonable and necessary attorney’s fees incurred by
him in obtaining orders pertaining to the child the subject of this suit.‖ Relator
filed a motion for new trial on May 26, 2011, and filed her notice of appeal of the
trial court’s judgment on May 27, 2011, in cause number 02-11-00184-CV, which
is still pending in this court.
A. Temporary Orders—Background
On June 9, 2011, RPI requested a temporary order pending appeal
―requiring payment of reasonable attorney’s fees and expenses to [him],
including but not limited to the payment of interim attorney’s fees pending the
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appeal.‖ He requested the order under both family code sections 6.709 and
109.001. See Tex. Fam. Code Ann. § 6.709 (West 2006), § 109.001 (West
2008). On June 15, 2011, Respondent held a hearing on RPI’s motion.
At the June 15, 2011 hearing, RPI called his appellate counsel to testify
about his estimated reasonable and necessary attorney’s fees for each stage of
the appeal, from defending against the motion for new trial to filing a brief in the
Texas Supreme Court. RPI then testified that he was unemployed when the trial
court addressed the parties’ marital property division in December 2010 and that
he remained unemployed. RPI also testified that he had not received any of the
$50,000 Respondent had awarded to him in the divorce decree and that his
family helped him pay his bills.
Relator testified that her annual salary as a human resources generalist
was $42,000 and her net monthly income was $2,207.02 after subtracting taxes,
child support ($552 monthly), and the child’s monthly health insurance ($100).
Her monthly bills totaled $2,390, and she owed $8,000 on her credit card, in
addition to the $50,000 judgment entered against her by Respondent in favor of
RPI. Her assets included her 401(k) and her personal items awarded to her in
the divorce. Relator stated that, based on her net monthly income and
expenses, in addition to the debts divided in the divorce, she did not have the
ability to pay the $50,000 judgment awarded to RPI for attorney’s fees.
On cross-examination, Relator agreed that she still worked for her
mother’s company but that her mother, the company’s president, did not have
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any influence over her salary. Relator also said that she lived alone in a home
paid for and owned by her mother and that she had sold her car after the divorce
and now drove her mother’s car. Relator stated that her mother had paid
Relator’s appellate attorneys a retainer of approximately $25,000 and that her
mother would pay for the other costs of her appeal but that she had to pay her
mother back.
On June 17, 2011, Respondent ordered Relator to pay $95,000 into the
court’s registry by July 17, 2011, for RPI’s attorney’s fees on appeal. Relator
then filed a notice of appeal from Respondent’s order, in cause number 02-11-
00238-CV, and a motion to suspend temporary orders pending appeal or to set a
supersedeas bond for the order. Respondent held a hearing on the motion to
suspend temporary orders pending appeal on July 8, 2011.
At the July 8, 2011 hearing, Relator again testified that her net monthly
after-tax income was $2,859.02 and that she had to pay $552 each month in
child support and $100 each month for the child’s health insurance. Deducting
child support and the child’s insurance left her with $2,207.02 as her net monthly
income, and her approximate monthly living expenses—electricity bill, groceries,
transportation, cable bill, water bill, credit card payment, items for the child,
clothing, house maintenance, and rent—totaled $2,390 per month.
Relator testified that while her mother was the president of the company
Relator worked for, her mother worked for the CEO, and Relator worked directly
for the director of human resources, so her mother had ―no control whatsoever‖
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over Relator’s compensation or her employment at the company. Relator also
said that her mother loaned her the money to pay her appellate attorneys’
retainer, that she had been asked to pay her mother back ―as much as [she]
possibly can,‖ and that her mother’s expectation was that Relator would pay her
back. Respondent denied Relator’s motion to suspend temporary orders
pending appeal or to set supersedeas bond. Relator then filed her petition for
writ of mandamus, a request for temporary emergency relief, and a ―motion for
emergency relief ancillary to appeal from temporary orders pending appeal.‖2
B. Temporary Orders—Terms
In its June 17, 2011 order, Respondent set out seven different items
conditioning various amounts of money to be remitted to either RPI or Relator in
the event of various occurrences:
1. $15,000 from Relator to RPI’s attorney if her motion for new trial is
resolved through court hearings and litigation.3
2. $50,000 to RPI from the registry if RPI files a brief in the court of
appeals and the court of appeals renders an opinion affirming in whole or in part
the judgment rendered by the trial court.
3. $50,000 to Relator from the registry if RPI fails to file a brief in the
court of appeals and the court of appeals renders an opinion reversing the trial
court’s judgment.
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This court’s order granting the stay in the mandamus proceeding
acknowledges that the motion in the appeal requests the same relief.
3
Both parties waived a hearing on Relator’s motion for new trial; this
$15,000 is separate from the $95,000 ordered deposited into the court’s registry
and is not part of the issue under review.
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4. $10,000 to RPI from the registry if the Texas Supreme Court denies
a petition for review filed by Relator and RPI files a reply pursuant to a request by
the supreme court.
5. $10,000 to Relator from the registry if the Texas Supreme Court
grants her petition for review.
6. $35,000 to RPI from the registry if RPI files a brief in the supreme
court pursuant to a request for full briefing and renders an opinion affirming in
whole or in part the judgment of the court of appeals.
7. $35,000 to Relator from the registry if RPI fails to file a brief in the
supreme court despite a request for full briefing and the supreme court renders
an opinion reversing the court of appeals’s judgment.
III. Analysis
In her second issue, Relator asks us to allow her to supersede the June
17, 2011 order and asks us what bond amount should be set in light of her
negative net worth. In her third issue, she asks us to conclude that Respondent
abused her discretion by ordering her to pay $95,000 in RPI’s attorney’s fees on
appeal and to prepay that amount into the court’s registry and requests that we
set aside the order.4
A. Standard of Review and Applicable Law
Mandamus is proper to correct a clear abuse of discretion when there is no
adequate remedy by appeal. CMH Homes v. Perez, 340 S.W.3d 444, 452–53
(Tex. 2011) (stating that it is the court’s practice, when confronted with parallel
4
In her first issue, Relator asks for temporary emergency relief to stay the
order during the pendency of this proceeding. Because we have already granted
temporary emergency relief, we need not further address Relator’s first issue.
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mandamus and appeal proceedings, to consolidate the two proceedings and
render a decision disposing of both simultaneously).
Under family code section 6.709, the trial court can render a temporary
order ―necessary for the preservation of the property and for the protection of the
parties during the appeal, including an order to: . . . (2) require the payment of
reasonable attorney’s fees and expenses.‖ Tex. Fam. Code Ann. § 6.709(a)(2).
Family code section 109.001 contains similar language but applies ―to preserve
and protect the safety and welfare of the child during the pendency of the appeal
as the court may deem necessary and equitable‖; the statute also includes a
provision stating that a temporary order under section 109.001 is not subject to
interlocutory appeal. Id. § 109.001(a)(5),(c). It also seems that a temporary
order under section 6.709 may not be subject to interlocutory appeal either,
although there is no corresponding statutory provision prohibiting it. See In re
Merriam, 228 S.W.3d 413, 414, 416 (Tex. App.—Beaumont 2007, orig.
proceeding) (construing petition as brought under section 6.709 because no
minor children were involved, denying petition because there was an adequate
remedy by appeal, and noting the circumstances under which mandamus relief
would have been available under section 6.709); see also Marcus v. Smith, 313
S.W.3d 408, 416 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (stating
that the court lacked jurisdiction over a direct appeal of award of appellate
attorney’s fees under section 109.001). Therefore, we dismiss the appeal in
cause number 02-11-00238-CV.
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B. Orders
RPI testified that he was unemployed in December 2010 and was still
unemployed at the time of the first hearing in June 2011 and that his family
helped him pay his bills. Therefore, Respondent had the discretion to issue a
temporary order ―necessary for the . . . protection of the parties during the
appeal,‖ which includes requiring the payment of reasonable attorney’s fees and
expenses. See Tex. Fam. Code Ann. § 6.709(a)(2). Further, in the divorce
decree, Respondent gave RPI the exclusive right to designate the parties’ minor
child’s primary residence, as well as a $50,000 judgment against Relator ―for
reasonable and necessary attorney’s fees incurred by him in obtaining orders
pertaining to the child the subject of this suit,‖ which Relator had not paid as of
the June 15 hearing. Therefore, Respondent also had the discretion to issue a
temporary order ―necessary to preserve and protect the safety and welfare of the
child during the pendency of the appeal,‖ which includes requiring payment of
reasonable attorney’s fees and expenses. See id. § 109.001(a)(5); Marcus, 313
S.W.3d at 418 (stating that under section 109.001, evidence is sufficient to justify
appellate attorney’s fees to preserve and protect the safety and welfare of the
child when the recipient of the fees has primary responsibility for the child and for
the care, upkeep of, and debt on the child’s principal home). Thus, we must next
examine whether the mechanism for paying these fees constitutes an abuse of
discretion.
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Respondent based the monetary amounts set out in the terms of the order
on RPI’s appellate counsel’s testimony at the June 15 hearing. However, at the
June 15 hearing, and again at the July 8 hearing, Respondent also heard Relator
testify that her income, as compared to her expenses, fell well below the ability to
pay $95,000 into the trial court’s registry. Although we defer to the trial court’s
determination of witness credibility, nothing in the record indicates that Relator
has the ability to pay this amount or any other. See Walker v. Packer, 827
S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding) (stating that with respect to
resolution of factual issues, the reviewing court may not substitute its judgment
for that of the trial court, and that the relator must establish that the trial court
could reasonably have reached only one decision). Compare Marcus, 313
S.W.3d at 418 (denying petition for writ of mandamus when record did not show
that the trial court acted arbitrarily or unreasonably by determining that Smith’s
award of appellate attorney’s fees during the pendency of appeal would help
preserve the welfare of the child), with Herschberg v. Herschberg, 994 S.W.2d
273, 275, 279 (Tex. App.—Corpus Christi 1999, orig. proceeding) (granting
conditional mandamus relief and ordering trial court to vacate its order for
attorney’s fees when the evidence at the hearing showed that the amount
payable to the ex-wife was beyond ex-husband’s ability to pay). Therefore, we
conclude that Respondent abused her discretion by ordering Relator to prepay
$95,000 into the trial court’s registry, and we sustain part of Relator’s third issue.
Cf. In re Pirelli Tire, 247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding) (stating
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that mandamus will not lie when the record contains legally sufficient evidence
both against and in support of the trial court’s decision).
Mandamus relief is available from a section 6.709 order only when the
order constitutes an abuse of discretion and the pending appeal provides an
inadequate remedy. Merriam, 228 S.W.3d at 416. In Merriam, the ex-husband
in a divorce appeal brought a petition for writ of mandamus regarding an order
requiring him to pay his ex-wife’s attorney’s fees in the event his appeal was
unsuccessful. Id. at 414. The Beaumont court concluded that mandamus relief
should be denied because the ex-husband had an adequate remedy by appeal
when the order provided that attorney’s fees were payable ―on or before thirty
days from the date of either (1) an opinion from the Court of Appeals which
affirms the trial court’s judgment or (2) an order overruling the last timely filed
motion for rehearing, if any whichever is later.‖ Id. at 414, 416. Because the
order did not require the ex-husband to pay the attorney’s fees until the
conclusion of an unsuccessful appeal, he had an adequate remedy by appeal;
the court did not address whether the trial court abused its discretion by ordering
him to pay the attorney’s fees. Id. at 416; cf. Marcus, 313 S.W.3d at 418 (―An
unconditional award of appellant’s appellate attorney’s fees is improper, and a
trial court must condition the award upon the appellant’s unsuccessful appeal.‖).
Here, Respondent required Relator to prepay $95,000 into the court’s
registry before this court renders judgment in the appeal. Because the record
reflects that Relator does not have the funds available to prepay $95,000 into the
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trial court’s registry, and, thus, that the trial court’s order would, in effect,
preclude her right to appeal, we conclude that she does not have an adequate
remedy by appeal.5 See In re Ford Motor Co., 988 S.W.2d 714, 721, 723 (Tex.
1998) (orig. proceeding) (concluding that the trial court abused its discretion by
awarding appellate attorney’s fees without conditioning the fee award on the
outcome of the appellate court proceedings and stating that appeal is not an
adequate remedy when a court imposes a monetary penalty on a party’s
prospective exercise of its legal rights); Braden v. Downey, 811 S.W.2d 922, 929
(Tex. 1991) (orig. proceeding) (noting the chilling effect monetary sanctions can
have on a party’s continuation of litigation); cf. Merriam, 228 S.W.3d at 414, 416.
Because the attorney’s fees will not be payable to RPI, if at all, until this
court renders a judgment in the appeal, we conditionally grant the writ of
mandamus for Respondent to vacate the provisions in the current order requiring
the immediate deposit of $95,000 into the trial court’s registry and allocating
funds to Relator and RPI from that deposit for various stages of the appeal, and
to substitute the following conditional language:
5
Further, under item two, of the order, RPI will be entitled to $50,000 of the
$95,000 if he files a brief in this court and we affirm in whole or in part
Respondent’s judgment, and under item three, Relator will be entitled to a return
of the $50,000 if RPI does not file a brief in this court and we reverse
Respondent’s judgment. However, it seems unlikely that either party will contest
the portion of Respondent’s judgment granting the divorce, and the resulting
affirmance of that portion of the judgment will commit Relator to pay $50,000 if
RPI files a brief. Even if he does not file a brief, Relator will still not be entitled to
a return of $50,000 of the $95,000 if this court affirms the portion of the judgment
granting the divorce.
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Edward Charles Halleman will be entitled to $50,000 upon issuance
of the mandate in connection with the appeal if he files a brief in the
court of appeals and the court of appeals affirms the trial court’s
entire judgment. Further, he will be entitled to $10,000 following the
Texas Supreme Court’s final judgment denying a petition for review
filed by Aimee Delyn Halleman in connection with the appeal if
Edward Charles Halleman files a reply to Aimee Delyn Halleman’s
petition for review pursuant to a request by the supreme court.
Edward Charles Halleman will be entitled to $35,000 following the
rendition of judgment by the Texas Supreme Court if he files a brief
pursuant to the supreme court’s request for full briefing and the
supreme court renders an opinion affirming the court of appeals’s
judgment in whole.
See, e.g., Keith v. Keith, 221 S.W.3d 156, 171–72 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (modifying judgment to make an award of appellate
attorney’s fees contingent upon the receiving party’s success on appeal).
In short, RPI will only be entitled to conditional appellate attorney’s fees,
and Relator will not be required to deposit $95,000 into the court’s registry in
order to continue with her appeal. See In re Garza, 153 S.W.3d 97, 99 (Tex.
App.—San Antonio 2004, orig. proceeding); Hughes v. Habitat Apartments, 828
S.W.2d 794, 795 (Tex. App.—Dallas 1992, no writ). We do not reach Relator’s
second issue. See Tex. R. App. P. 47.1.
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IV. Conclusion
Having sustained Relator’s third issue in part, we conditionally grant
mandamus relief, and we dismiss the appeal in cause number 02-11-00238-CV
for want of jurisdiction. We lift the July 18, 2011 stay on the order as modified.
BOB MCCOY
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: November 3, 2011
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