Herschberg v. Herschberg

• Decision Date: 20 May 1999
• Docket Number: No. 13-98-631-CV,No. 13-99-029-CV,13-98-631-CV,13-99-029-CV
• Parties: (Tex.App.-Corpus Christi 1999) JULIUS IGNACIO HERSCHBERG AND THELMA NESTEL HERSCHBERG, Appellants, v. FAY HERSCHBERG, Appellee. And IN RE: JULIUS IGNACIO HERSCHBERG AND THELMA NESTEL HERSCHBERG
• Court: Texas Court of Appeals

Page 273

994 S.W.2d 273 (Tex.App.-Corpus Christi 1999)

JULIUS IGNACIO HERSCHBERG AND THELMA NESTEL HERSCHBERG, Appellants, v. FAY HERSCHBERG,Appellee. And IN RE: JULIUS IGNACIO HERSCHBERG AND THELMA NESTEL HERSCHBERG

No. 13-98-631-CV

No. 13-99-029-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

May 20, 1999

Rehearing Overruled July 1, 1999.

On appeal from the 93rd District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

Before Justices Dorsey, Hinojosa, and Rodriguez

O P I N I O N

Opinion by Justice Dorsey

On Petition for Writ of Mandamus

Julius Herschberg and Thelma Nestel Herschberg (collectively "Julius") attempt by either interlocutory appeal or mandamus to challenge an order requiring Julius to pay $8,000 per month temporary support and $27,000 per month attorney's fees to his ex-wife, Fay Herschberg, pending a final order dividing the marital estate. We hold the awards are excessive under the evidence. We conditionally grant mandamus relief.

The trial court first signed a final decree of divorce on January 30, 1996. Fay appealed the property division, without contesting the granting of the divorce, and this Court on July 10, 1997, reversed and remanded under the following terms: "We affirm the trial court's judgment granting the divorce. We reverse the rest of the judgment and remand the case to the trial court for a jury trial." See Fay Herschberg v. Julio Ignacio Herschberg and Thelma Nestel, No. 13-96-215-CV (Tex. App.--Corpus Christi, July 10, 1997, pet. denied) (opinion ordered not published).

On remand, Fay petitioned the trial court on April 22, 1998, for continuing temporary support pending a new trial on division of the property. Julius then filed for Chapter 11 bankruptcy on May 28, 1998, and on June 8, 1998, the bankruptcy court entered an order for Julius to pay to Fay $5,000 per month from the marital estate. On August 20, 1998, the bankruptcy court issued an order remanding the underlying dissolution proceeding to the state trial court. The trial court then heard Fay's petition and ordered temporary support on November 12, 1998, in the sum of $8,000 per month and attorneys fees of $27,000 per month. Julius complains of that order both by appeal and by mandamus actions which we have consolidated. Whether the order may be attacked by appeal or mandamus depends upon whether that order is a Family Code order for temporary support or a normal temporary injunction.

Ordinarily a temporary injunction may be challenged by interlocutory appeal. TEX. CIV. PRAC. & REM. CODE ANN. 51.014(4) (Vernon Supp. 1999). However, an order for temporary support under the Family Code is not appealable, but must be challenged by mandamus under an abuse of discretion standard. TEX. FAM. CODE ANN. 3.58(g) (repealed)¹; see Dancy v. Daggett, 815 S.W.2d 548 (Tex.1991); Post v. Garza, 867 S.W.2d 88, 89 (Tex. App.--Corpus Christi 1993, orig. proceeding).

Julius argues that the present order is not a Family Code temporary support order because the underlying divorce has become final, that it is more in the nature of a temporary injunction, and that it is thus appealable rather than subject to mandamus. Nevertheless, out of an abundance of caution, Julius has brought both an interlocutory appeal and a mandamus proceeding challenging the authority of the trial court to enter the present order. We must first determine the nature of that order and whether appeal or mandamus is the proper means to challenge it.

Temporary Support Pending a Division of the Property on Remand

The trial court has authority under the Family Code to order temporary support under the following terms:

After a petition for divorce or annulment or to declare a marriage void is filed, the court, on the motion of any party or on the court's own motion, may make any appropriate order, including the granting of a temporary injunction, after notice and hearing, for the preservation of the property and protection of the parties as deemed necessary and equitable, including but not limited to an order directed to one or both parties:

...

(2) requiring the support of either of the spouses;

...

(4) ordering payment of reasonable attorney's fees and expenses:

...

TEX. FAM. CODE ANN. 3.58(c) (repealed)².

In addition, the Family Code further provides that the trial judge may order payments for support of a spouse "until a final decree is entered." TEX. FAM. CODE ANN. 3.59 (repealed)³.

Julius argues that the issue of divorce has become final and that a petition for divorce is no longer pending so as to give the trial court the authority to order temporary support under section 3.58(c).

We agree with Julius that the parties are actually divorced as of the date that the trial judge orally pronounces them divorced from the bench, absent some challenge to that decree on appeal. See Galbraith v. Galbraith, 619 S.W.2d 238, 240 (Tex. Civ. App.--Texarkana 1981, no writ); Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex. Civ. App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). Thirty days after that decree, they are each then free to remarry someone else. See TEX. FAM. CODE ANN. 3.66 (repealed)⁴; Galbraith, 619 S.W.2d at 240.

Therefore, although the division of the community estate may be reversed and remanded on appeal, the marital status of the parties is not extended beyond the date of the original decree of divorce, and the nature and extent of their community property is fixed as of that date. A remand merely for division of the property, in other words, does not prolong the marriage relationship until the decree is final after the remand. Gordon v. Blackmon, 675 S.W.2d 790, 793-94 (Tex. App.--Corpus Christi 1984, orig. proceeding) (request for discovery of alleged additions to community property following remand).

However, under the Texas Family Code, division of a marital estate is not severable at trial from the rest of a divorce proceeding. See TEX. FAM. CODE ANN. 3.63 (repealed)⁵; Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998). Therefore, it is error for a trial judge to sever the issue of property rights from the issue of divorce, and until the property of the parties has been disposed of no final divorce judgment exists. Biaza v. Simon, 879 S.W.2d 349, 355 (Tex. App.--Houston [14th Dist.] 1994, writ denied); Odom v. Odom, 683 S.W.2d 135, 137 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.). The court in Odom explained that the claims are not severable because "the property rights of the parties are part of the very divorce itself." Id. at 137.

Nevertheless, unlike the trial court, the appellate court does have the authority to affirm and sever the issue of divorce and remand for re-division of the property alone. See In the Matter of the Marriage of Knighton, 685 S.W.2d 719, 723 (Tex. App.--Amarillo 1984, no writ) (on rehearing). Even with a partial remand for division of the property, however, the marital "community estate" does not disappear with the issue of divorce but remains to be divided by the trial court. See Jacobs v. Jacobs, 687 S.W.2d 731, 731-32 (Tex. 1985) (remanding "the entire community estate for a new division and affirm the remainder of the judgment"). The property division is "again tried upon appropriate pleading as a severable but undisposed of part of plaintiff's original cause of action [for divorce]." Hursey v. Hursey, 165 S.W.2d 761, 766 (Tex. Civ. App.--Dallas 1942, writ dism'd w.o.j.). Accordingly, a suit for divorce necessarily includes both the divorce itself and the division of the marital estate, and the underlying lawsuit for divorce remains pending until both issues have been finally disposed of and a final decree has been entered.

Because the suit for divorce thus remains pending before the trial court on remand at least to the extent that the division of the marital estate is incomplete, the trial court retains jurisdiction under sections 3.58(c) and 3.59 to issue temporary orders for Fay's support. In a related context, the majority of the courts of appeals to examine whether a spouse is entitled to temporary support on appeal under TEX. FAM. CODE ANN. 3.58(h) (repealed)⁶, have concluded that it is irrelevant that neither spouse has challenged the underlying divorce and that the property division is the only issue on appeal. See In the Matter of the Marriage of Joiner, 755 S.W.2d 496, 499 (Tex. App.--Amarillo 1988, no writ); Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 891 (Tex. App.--Houston [1st Dist.] 1988, no writ); but see Grossnickle v. Grossnickle, 935 S.W.2d 830, 848 (Tex. App.--Texarkana 1996, writ denied) (there is no right to spousal support during the appeal when neither party appeals the granting of the divorce itself). The holding in Joiner and Eikenhorst recognizes, as does this Court in the present situation on remand, that the dissolution proceeding as a whole is not complete until the property has been finally divided.

A temporary support order is a perfectly legitimate means of protecting the welfare of a financially dependent spouse between the time a petition is filed and divorce is granted. Garduno v. Garduno, 760 S.W.2d 735, 742 (Tex. App.--Corpus Christi 1988, no writ). The financially dependent spouse who remains dispossessed of his or her access to the community estate on appeal and remand has the same need for protection and financial support until that property is finally divided. See Clay v. Clay, 550 S.W.2d 730, 735 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ). Moreover, upon final division, the equities of the parties and final adjustments for the amount of temporary support may be taken into consideration in making a just and right division of the marital estate. See Bagby v. Bagby, 186 S.W.2d 702, 708 (Tex. Civ. App.--Amarillo 1945, no writ); Williams v. Williams, 125 S.W. 937, 940 (Tex. Civ. App.--Houston 1910, writ dism'd).

In the present case, temporary support is particularly appropriate, since Julius maintains...