Ayala v. Minniti
| Decision Date | 07 August 1986 |
| Docket Number | No. 01-86-0248-CV,01-86-0248-CV |
| Citation | 714 S.W.2d 452 |
| Parties | George AYALA a/k/a Jorge Ayala, Appellant, v. Shelly Lynn (Ayala) MINNITI, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Brian Jensen, Wright & Jensen, Bruce Wettman, Wettman & Wettman, Houston, for appellant.
Kenneth T. Fibich, Joyce L. Welsh, Bonham, Carrington & Fox, Houston, for appellee.
Before HOYT, DUGGAN and LEVY, JJ.
This is an appeal from a temporary injunction resulting from a motion to modify a parent/child relationship established pursuant to a decree of divorce granted November 22, 1979, between George Ayala, appellant, and Shelly (Ayala) Minniti, appellee.
On January 20, 1986, Mr. Ayala filed a motion to modify his visitation periods as possessory conservator of his minor daughter. He also sought to decrease the $200 per month child support payments previously ordered in the divorce decree. In response, on February 10, Ms. Minniti filed a cross-motion to modify the parent/child relationship, requesting a lump sum increase in support payments, and a temporary restraining order enjoining Ayala from disposing of any and all proceeds, settlement awards, money judgments, or other funds derived from Ayala's personal injury cause of action, styled, "JORGE AYALA v. HI-RANGER, INC., ET AL.," Cause No. C-3527-84-E, pending in the 275th Judicial District Court of Hidalgo County, Texas.
Ms. Minniti also requested that the court make any temporary orders or issue any appropriate temporary injunction respecting Ayala's property as necessary for the preservation of all (or a portion) of any proceeds for the payment of past due child support owed by Ayala, for an increase in child support, and payments of same in a lump sum, and for payment of court costs. 1
On February 20, the court held a hearing on appellee's motion for temporary orders and a temporary restraining order.
At that hearing, appellant's counsel, Mr. Bruce Wettman, interrupted the direct examination of Ms. Minniti and offered to "stipulate to an injunction against Mr. Ayala or his agents from disposing of any money that would come in the future that would be concerned at all with a lump sum payment or any other payment."
Ms. Minniti's attorney asked for the entire injunction requested in the cross-motion to modify and also requested that it be extended to Wettman and his associate, Mr. Brian L. Jensen, who represented appellant in the personal injury cause of action.
Wettman agreed, and the court entered a temporary order restraining Ayala and his attorneys from disposing of any funds received as settlement in the pending lawsuit, and ordering the attorneys to hold the funds in trust pending final disposition of this action.
In two points of error, appellant contends that the court erred in granting the agreed temporary orders because: (1) no bond was posted for the temporary injunction as required under Tex.R.Civ.P. 684; and (2) the orders failed to provide any reason in support of the issuance of the temporary injunction as required under Tex.R.Civ.P. 683. Section 11.11 of the Texas Family Code Ann. (Vernon Pamphlet 1986) authorizes the trial court, in a suit affecting the parent/child relationship, to make "any temporary order for the safety and welfare of the child ..." including the temporary support of the child.
Temporary restraining orders and injunctions are specifically allowed under section 11.11(b) of the Family Code without the necessity of certain pleadings ordinarily required for such orders in non-Family Code proceedings. See Ouerner v. Ouerner, 668 S.W.2d 801, 803 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.). Under section 11.11(d), the court may even dispense with the necessity of a bond in connection with temporary orders in behalf of the child.
Though temporary orders are not generally subject to interlocutory appeal, temporary orders which grant injunctive relief are appealable. See Craft v. Craft, 579 S.W.2d 506, 511 (Tex.Civ.App.--Dallas 1979) writ ref'd per curiam, 580 S.W.2d 814 (Tex.1979). The temporary order entered in this case would accordingly be treated as appealable. See Tex. Civ. Prac. & Rem. Code, sec. 51.014 (Vernon's Pamplet 1986).
We do not, however, reach the merits of appellant's contentions because the record reflects that appellant agreed and stipulated to the temporary injunction issued by the court. At the motion for temporary orders, the following discourse occurred:
The agreed temporary order provided in relevant part as follows:
After the commencement of trial, the parties by and through their attorneys of record entered into stipulation of the following injunctions and orders and it is therefore ordered, adjudged and decreed that:
Movant/Cross-Respondent, George Ayala, and his attorney of record in this cause, Bruce W. Wettman, and George Ayala's attorney of record in Cause No. C-3527-84-E in the 275th Judicial District of Hidalgo County, Texas, Brian L. Jensen, are all ordered, restrained and enjoined pending further orders of this Court, from:
Removing, concealing, spending, encumbering, transferring, assigning (Except to Cross-Movant), disposing of or otherwise harming, reducing the value of or alienating any and all proceeds, settlement awards, money judgments or other funds derived from Cross-Respondent's (George Ayala's) cause of action for personal injury, styled and numbered, "Jorge Ayala vs. Hi-Ranger, Inc., et al., 275th Judicial District Court of Hidalgo County, Texas, Cause No. C-3527-84-E."
This temporary injunction is effective immediately and shall continue in full force and effect until further order of this Court or until it expires by operation of law. This order shall be binding on respondent, on respondent's attorneys, agents, servants and employees, and on those persons in active concern [sic] or participation with them who receive notice of this order by personal service or otherwise.
Bruce W. Wettman, attorney for George Ayala in this cause, and Brian L. Jensen, attorney at law, are further ordered to deposit the total amount of any and all proceeds, recovery, settlement awards, money judgments or other funds derived from Cause No. C-3527-84-E, now pending in the 275th Judicial District of Hidalgo County, Texas into the trust account of either said attorneys, and Bruce W. Wettman and Brian L. Jensen, are further ordered, restrained and enjoined from releasing, disbursing, expending any of the proceeds from said personal injury suit for any reason, pending final disposition by this Court in Cause No. 79K1714, 300th Judicial District Court of Brazoria County, Texas.
The record reflects that no objection was made to the agreed temporary injunction rendered by the court until the hearing on the motion to sign and enter the agreed temporary orders which occurred on March 13. At that hearing, Wettman's brother, also an attorney, and Jensen challenged the propriety of the relief granted in the injunction. The trial court ruled that because appellant agreed to hold the money when and if it was recovered, the injunction would issue as agreed to by the parties.
As cited in Alexander v. Alexander, 373 S.W.2d 800, 805 (Tex.Civ.App.--Corpus Christi 1963, no writ), Texas cases have long held that:
A stipulation by the parties to an action as to the nature and terms of the judgment to be entered constitutes a waiver of all nonjurisdictional errors committed by the court prior to the agreement and judgment and justifies its affirmance, if the agreement is based on a valid consideration and was...
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