In re Marriage of Grossnickle

Citation115 S.W.3d 238
Decision Date25 August 2003
Docket NumberNo. 06-02-00169-CV.,06-02-00169-CV.
PartiesIn the Matter of the MARRIAGE OF Richard Dean GROSSNICKLE and Lee Ann Grossnickle and in the Interest of Emily Ann Grossnickle, a Minor Child.
CourtCourt of Appeals of Texas

Richard Dean Grossnickle, for appellant.

Lee Ann Grossnickle, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Richard Dean Grossnickle appeals, pro se, from an order modifying the support for the child of his marriage to Lee Ann Grossnickle.1 In that order, the trial court increased child support to the amount of $2,000.00 per month. The court also ordered both parties to divide evenly the expenses of the child's enrollment in a private high school. The court also ordered that, if Richard Grossnickle died, the child support provisions remained as an obligation of his estate. Lee Ann Grossnickle has also filed an appeal from the court's order. Hereafter, both parties shall be referred to by their first names.

Richard brings twelve points of error in which he identifies a number of alleged errors by the trial court in determining the proper amount of child support, in failing to order Lee Ann to pay costs previously awarded by this Court in two appeals, by failing to grant a permanent injunction to keep Lee Ann from executing on a judgment dating back to the 1992 decree of divorce, and by failing to find Lee Ann a vexatious litigant and sanctioning her for her continuing pattern of unnecessary litigation.2 Lee Ann also complains about the injunction and about the court's refusal to order Richard to reimburse her for certain medical expenses incurred on behalf of the child. She further complains about the court's refusal to grant her all the relief she sought in several other respects, including failure to enter additional findings of fact and conclusions of law she requested.

We first address Richard's contention that the trial court erred by applying Tex. Fam.Code Ann. § 145.013 in its order and ordering that child support must be paid out of Richard's estate in the event of his death. Richard is actually referring to Tex. Fam.Code Ann. § 154.013 (Vernon 2002). That section is effective for modification or enforcement proceedings commenced on or after September 1, 2001, and among other things provides that the Texas Probate Code does not control over the disposition of an estate when child support is involved. Richard argues that, because this modification/enforcement proceeding was commenced well before that date, the trial court erred by including such language in its order.

Richard is correct. This proceeding was commenced on a date before the effective date of the statute. Thus, the trial court erred by including such language in its order of July 30, 2002, and we order the language deleted from the order.

Richard next contends the court erred by not ordering Lee Ann to pay costs ordered by the Sixth Court of Appeals in its mandate on two of the previous appeals and by refusing to award attorney's fees to Richard for successfully defending those appeals in spite of a provision in the modified final (trial court) judgment awarding such fees to the prevailing party.3 Those issues were presented to the trial court by written motion. The trial court did not expressly address those claims.

Once acquired, this Court has full jurisdiction, authority, and power to dispose finally of the case on appeal and to enforce its mandate. In re Cantrell, 97 S.W.3d 722, 723 (Tex.App.-Texarkana 2003, no pet. h.); Varner v. Koons, 888 S.W.2d 511, 513 (Tex.App.-El Paso 1994, orig. proceeding); Witherspoon v. Daviss, 163 S.W. 700, 703 (Tex.Civ.App.-Austin 1914, orig. proceeding). When an appellate court affirms the judgment of a trial court or renders a judgment the trial court should have rendered, that judgment becomes the judgment of both courts. Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987). The appellate court's mandate is "official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing it to have its judgment duly recognized, obeyed, and executed." Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex.App.-Dallas 1992, orig. proceeding). Therefore, "[w]hen an appellate court affirms a judgment, upon issuance of its mandate the trial court has the duty to give effect to the judgment by executing proper orders." Harris County Children's Protective Servs. v. Olvera, 971 S.W.2d 172, 175 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (quoting Myers v. Myers, 515 S.W.2d 334, 335 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ dism'd)); see also Los Campeones, Inc. v. Valley Int'l Props., Inc., 591 S.W.2d 312, 315 (Tex.Civ. App.-Corpus Christi 1979, no writ) (stating when appellate court affirms judgment of trial court, clerk of trial court must remove case from docket immediately on return of mandate and trial court must give effect to judgment by executing it through proper orders and process). The trial court has no discretion to review, interpret, or enforce the appellate court's mandate but, instead, it must carry out the mandate. Olvera, 971 S.W.2d at 175-76. The trial court's orders carrying out the mandate are merely "ministerial." Id. at 175; Madeksho v. Abraham, Watkins, Nichols & Friend, 112 S.W.3d 679, 685 (Tex.App.-Houston [14th Dist.], 2003, no pet. h.).

The mandates to which Richard directs our attention do not provide that costs or attorney's fees are to be paid to him. The 1994 judgment, however, does contain clear language providing that, in the event of an appeal from that judgment, the party unsuccessfully appealing would be responsible for reasonable attorney's fees incurred by the party defending the appeal. As Lee Ann was the unsuccessful appellant, the language of that judgment makes Richard's reasonable attorney's fees for defense of the appeal her responsibility.

However, the judgment does not specify the amount of such fees, and we are directed to no location in this voluminous record where a determination of the amount of such fees appears. Accordingly, we find the trial court did not err by declining Richard's request to order such relief. The contention is overruled.

Richard further contends the court erred by refusing to grant a permanent injunction, in place of the temporary injunction which it did issue, to prevent Lee Ann from executing on his property.

Appellate review of a trial court order granting or denying a permanent injunction is strictly limited to a determination of whether the trial court has committed a clear abuse of discretion. Risk Managers Int'l, Inc. v. State, 858 S.W.2d 567, 569-70 (Tex.App.-Austin 1993, writ denied); Priest v. Tex. Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex. App.-Dallas 1989, no writ). A clear abuse of discretion in denying injunctive relief arises only when the trial court's decision is not supported by some evidence of substantial and probative character. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 620 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Richard contends the court abused its discretion by failing to make the injunction permanent because the May 12, 1992, judgment on which Lee Ann sought to execute to obtain payment for three months of "temporary spousal support" is invalid. That judgment was the subject of an earlier appeal in which we affirmed the divorce, conservatorship, and child support issues but, because of the denial of the right to a jury trial, we reversed the judgment of the trial court in all other respects. Grossnickle v. Grossnickle, 865 S.W.2d 211, 213 (Tex.App.-Texarkana 1993, no writ). After remand, Lee Ann waived her right to a jury trial and a different judge entered a new property division which was the subject of her appeal in Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex.App.-Texarkana 1996, writ denied).

The judgment setting out the second property division, rendered in October 1994, states that all parts of the previous judgment (except for divorce, conservatorship, and child support) were withdrawn. This would necessarily include the prior order of spousal support, which was not provided for in that judgment. Her 1996 appeal did not address that aspect of the 1994 judgment. Accordingly, with the exceptions noted above, the 1992 judgment has been replaced by the 1994 judgment, and there is no judgment awarding spousal support on which to predicate the execution which she sought. The trial court correctly granted a temporary injunction, and we conclude from this posture of the case that it should have granted the permanent injunction sought by Richard. We find the court abused its discretion by failing to do so.

In connection with this issue, Lee Ann has also raised a point of error in her separate appeal in which she contends the temporary injunction, as written, is inadequate to be enforceable because it does not explain its ruling or set a trial date. Tex.R. Civ. P. 683 does not expressly require that a trial date be set. Rather, it simply provides that the injunction order set the cause for trial on the merits. This is effectively the same as requiring a specific trial date to be set in the order. See EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50 (Tex.App.-San Antonio 2002, no pet.); Henke v. Peoples State Bank, 6 S.W.3d 717, 721 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.); Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex.App.-Houston [1st Dist.] 1991, no writ).

In this case, there are two directives. The July 26, 2002, order grants a temporary injunction enjoining Lee Ann from executing a writ, subject to posting of bond by Richard of $25,000.00, representing the original judgment of $7,500.00 and accrued interest. The September 23, 2002, findings of fact state Richard is entitled to injunctive relief staying execution for the amount because "such would have terminated upon...

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