in Re: In the Matter of the Marriage of Kindrela Keishelle Tyson ( 2017 )

DENY; and Opinion Filed July 17, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00371-CV
IN THE MATTER OF THE MARRIAGE OF KINDRELA KEISHELLE TYSON
Original Proceeding from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-19594
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Boatright
The underlying proceeding is a divorce action. In this original proceeding, relator
Kindrela Keishelle Tyson complains of the trial court’s order requiring relator to sign a warranty
deed and convey her interest in the marital residence within twenty-four hours of entry of
judgment. We granted an emergency stay of the order and requested responses to the petition for
writ of mandamus. Neither respondent nor the real party in interest filed a response. Although
the trial court erred by issuing the order to execute the deed, that order is merely voidable and
not subject to mandamus review. We, therefore, deny relator the relief requested.
Background
In the underlying divorce proceeding, the trial judge stated her rulings on the record,
including her award of the marital residence along with the associated debt, taxes, and expenses
to Husband. The trial court set the case for hearing to enter a final order. At that hearing, the
trial court also heard Husband’s motion to require relator to execute the warranty deed to the
marital residence within 48 hours. The trial judge verbally granted the motion and signed an
order requiring relator to execute the deed by 5:00 p.m. the next day. The trial judge rejected
relator’s argument that she should be permitted to seek a bond and appeal the judgment before
being required to execute the deed. The trial judge noted that relator must sign the deed within
the next day because relator had rescheduled the hearing to sign the judgment and had caused
delays in the case.
Applicable Law
Except as otherwise provided by chapter 9 of the Family Code, enforcement of divorce
decrees are governed by the Texas Rules of Civil Procedure. TEX. FAM. CODE ANN. § 9.001(b)
(West Supp. 2016); English v. English, 44 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.]
2001, no pet.); Winkle v. Winkle, 951 S.W.2d 80, 89 (Tex. App.—Corpus Christi, 1997, pet.
denied). Rule 627 of the Texas Rules of Civil Procedure provides that, absent the posting of a
supersedeas bond, execution of a final judgment from a district court may not issue until thirty
days have elapsed since the rendition of the final judgment, or thirty days after the overruling of
any motion for new trial, either by written order or by operation of law. TEX. R. CIV. P. 627. A
prematurely issued execution of judgment, however, is not void, only voidable. South Falls
Corp. v. Davenport, 368 S.W.2d 695, 697 (Tex. Civ. App.—Dallas 1963, no writ); Winkle, 951
S.W.2d at 89–90. The execution may not be collaterally attacked and must be respected until it
is vacated in a direct proceeding instituted in the court which ordered it to be issued. Winkle, 951
S.W.2d at 89–90 (citing South Falls Corp., 368 S.W.2d at 697). In other words, a prematurely
issued execution of judgment must be attacked in the trial court that issued the order and may not
be reviewed through a petition for writ of mandamus. York Div., Borg-Warner Corp. v. Sec. Sav.
& Loan Ass’n, Dickinson, 485 S.W.2d 327, 330 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ
ref’d n.r.e.) (“a writ of execution prematurely issued in violation of Rule 627 . . . is not void but
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only voidable, and can be attacked only in the court from which it issues in a direct proceeding.”)
(citing South Falls Corp.).
Although voidable orders are readily appealable and must be attacked directly, void
orders may be circumvented by collateral attack or remedied by mandamus. Sanchez v. Hester,
911 S.W.2d 173, 176 (Tex. App.—Corpus Christi 1995, no writ) (citing Mapco, Inc. v. Forrest,
795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding)). A void order is one entered by a trial
court that lacks jurisdiction over the parties or the subject matter, or is an order entered outside
the trial court's capacity as a court. In re Florey, 329 S.W.3d 854, 857 (Tex. App.—Eastland
2010, orig. proceeding) (citing Mapco, Inc., 795 S.W.2d at 703). “Voidable orders result from
errors other than lack of jurisdiction, such as an action contrary to a statute or statutory
equivalent.” Id. (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003)).
After rendering the initial decree of divorce containing a property division, the trial court
is prohibited from implementing or clarifying the property division by way of further orders
while an appeal is pending. TEX. FAM. CODE ANN. § 9.007(c) (West 2006); English, 44 S.W.3d
at 105–06. But the ministerial act of execution upon the judgment is not proscribed. In re
Fischer–Stoker, 174 S.W.3d 268, 272 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding);
English, 44 S.W.3d at 106; State v. Blair, 629 S.W.2d 148, 150 (Tex. App.—Dallas 1982)
(execution in a judgment is merely a direction to a ministerial officer to permit enforcement of
the judgment), aff’d Blair v. State, 640 S.W.2d 867 (Tex. 1982). Section 9.007(c) deprives the
trial court of subject-matter jurisdiction to enter an order clarifying the property division during
the pendency of an appeal. In re Lovell, No. 14-11-00197-CV, 2011 WL 1744211, at *2–3 (Tex.
App.—Houston [14th Dist.] May 5, 2011, orig. proceeding) (trial court lacked jurisdiction to
issue an order that attempted to clarify an order for which an appeal had been perfected). An
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order violating section 9.007(c) may be collaterally attacked through a petition for writ of
mandamus because such an order is issued outside the trial court’s jurisdiction and is void. Id.
For example, in Fischer-Stoker, the husband filed a motion to enforce the property
division by criminal contempt if the wife failed to provide an accounting of her Wells Fargo
accounts as of December 12, 2003 and a check for 50% of the money in those accounts on that
date. In re Fischer–Stoker, 174 S.W.3d at 272. The court construed the relief sought as an order
to assist in the implementation of the property division in the final divorce decree for which the
trial court lacked jurisdiction to issue during the pendency of an appeal under section 9.007(c).
Id. The court conditionally granted the wife’s petition for writ of mandamus and ordered the
trial court to dismiss the motion for contempt. Id.
Similarly, in Lovell, the trial court issued an order in November 2010 requiring the
property to be sold at fair market value and stating wife’s share of the proceeds of the property.
Id. Wife appealed two months later and that appeal automatically abated the power of the court
to clarify the property division by way of further order. Id. The trial court, therefore, lacked
jurisdiction to issue an order that attempted to clarify the November order after wife perfected
the appeal. Id.
Analysis
Applying the analysis of the courts in Lovell and Fischer-Stoker, the trial court’s order
granting the motion to execute deed is an order “implementing or clarifying the property division
by way of further orders” after entry of the divorce decree because the order requires relator to
implement the property division by requiring her to execute the warranty deed. The trial court
will lack jurisdiction to issue and enforce such an order once relator appeals the judgment and
order. However, relator has not yet filed a notice of appeal. TEX. R. APP. P. 26.1, 26.3. As such,
section 9.007(c) does not yet apply. Instead, the enforcement order is simply a premature
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execution order that violates Rule 627 but remains merely voidable and, therefore, not subject to
collateral attack through a petition for writ of mandamus. Relator has an adequate appellate
remedy. Accordingly, we deny relator’s petition for writ of mandamus.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE
170371F.P05
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