in Re: Cecilia Ramirez Pena ( 2007 )

NUMBER 13-07-116-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________

IN RE CECILIA RAMIREZ PENA

---

On Petition for Writ of Mandamus

---

  MEMORANDUM OPINION  

Before Chief Justice Valdez and Justices Yañez and Vela Per Curiam Memorandum Opinion ⁽¹⁾  

   On February 23, 2007, Cecilia Ramirez Pena filed a petition for writ of mandamus, an emergency motion for stay of the trial court proceedings, and a motion for leave to amend the petition for writ of mandamus upon receipt of the reporter's record and court order. Pena requests that this Court direct the Honorable Fred Garza, presiding judge of County Court at Law Number Four of Hidalgo County, Texas, to vacate his order authorizing Jaime Pena to sell specified real property that is part of the parties' marital estate.

On February 26, 2007, the Court granted the motion for emergency stay and stayed the proceedings below, including the sale of the real estate at issue in this original proceeding. The Court requested that the real party in interest, Jaime Pena, file a response to relator's petition for writ of mandamus, and said response was filed on March 2, 2007. The Court granted relator's motion for leave to amend the petition for writ of mandamus upon receipt of the reporter's record and court order.

The Court, having examined and fully considered the petition for writ of mandamus and the response, is of the opinion that relator has not shown herself entitled to the relief sought and the petition for writ of mandamus should be denied. See Tex. R. App. P. 52.8. This matter arises from a divorce proceeding. The trial court's temporary orders provide, in part, that:

IT IS ORDERED that only [Jaime Pena] may conduct any business relative to the property on 23rd Street and any attempts to sell or encumber the same and [Cecilia Pena] is enjoined from making any phone calls or contacts to any persons with whom discussions are ongoing concerning the property and Jaime Pena has sole management and control of the property; provided, however, that Jaime Pena is ORDERED to keep [Cecilia Pena] advised of any pending matters concerning the property on a reasonable basis.

On February 15, 2007, Jaime Pena filed an emergency motion requesting that the trial court "order the sale of the real property to pay the outstanding and past due note . . . and [o]rder that the balance of the funds be held to pay other community debt." On February 22, 2007, the trial court held a hearing on this motion and granted same. This original proceeding ensued.

Under section 6.502 of the Texas Family Code, the trial court may render an appropriate order for the preservation of marital property and protection of the parties as deemed necessary and equitable during the pendency of a divorce. See Tex. Fam. Code Ann. § 6.502(a)(5) (Vernon Supp. 2006). District courts have the broadest form of discretion in issuing temporary orders. See Norem v. Norem, 105 S.W.3d 213, 216 (Tex. App.-Dallas 2003, no pet.); Allen v. Allen, 366 S.W.2d 650, 651 (Tex. Civ. App.-Amarillo 1963, no writ). The trial court's order cannot be disturbed unless there is a clear showing of an abuse of discretion. Sparr v. Sparr, 596 S.W.2d 164, 165-66 (Tex. Civ. App.-Texarkana 1980, no writ) (applying predecessor statute).

While we sympathize with relator's concern about the unilateral aspect of the trial court's orders insofar as they grant Jaime Pena the sole right to manage or sell the property, we nevertheless conclude that relator has failed to establish a "clear showing" that the trial court abused its discretion. Based on the record, the trial court had before it evidence from which it may have reasonably concluded that the sale was necessary for the preservation of marital property. We would further note that the trial court has entered other temporary orders relative to the protection of the parties which enure to relator's benefit. For instance, the trial court's temporary order expressly prohibits harming or reducing the value of marital property. We are confident that the trial court will issue any further temporary orders necessary to preserve the community assets of the parties, including, if necessary, the appointment of a receiver.

Accordingly, the stay is hereby ordered LIFTED, and the petition for writ of mandamus is DENIED.

PER CURIAM

Memorandum Opinion delivered and filed

this 14th day of March, 2007.

1.

See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).