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concluding spousal maintenance in divorce decree was implicitly based on finding spouse incapacitated because decree provided that spouse could seek a continuation of the support after two years
Summary of this case from Wiedenfeld v. MarkgrafOpinion
No. 04-04-00893-CV
Delivered and Filed: April 13, 2005.
This proceeding arises out of Cause No. 2000-CI-00809, styled In the Matter of the Marriage of Jo Donel Brunin and Steven Paul Brunin, pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Michael Peden presiding.
Petition for Writ of Mandamus Conditionally Granted.
Sitting: Alma L. LóPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Jo Donel Brunin's motion for rehearing is granted, and this court's opinion and order in this original proceeding dated December 29, 2004 are hereby withdrawn. Jo seeks mandamus relief from a trial court's order declaring an earlier order continuing spousal maintenance to be void. We conditionally grant the petition for writ of mandamus.
Background
Jo Donel Brunin and Steven Paul Brunin divorced in 2000. The divorce decree, which was based on the parties' agreement, provided for the payment of spousal maintenance. The spousal maintenance was to extend, in relevant part, until: "the expiration of two years on or about May 31, 2002, at which time Petitioner [Jo] may request continuation and/or modification of support upon her own motion." In April of 2002, the trial court held a hearing pursuant to a motion filed by Jo, and the court ordered that the spousal maintenance continue "until further order of [the] Court."
In September of 2004, Steven filed a "Motion for Clarification of Prior Order and Motion to Dissolve Prior Order Containing Alimony." In the motion, Steven sought clarification regarding his air force retirement and a declaration that the order continuing the spousal maintenance was void. Steven contended that the order was void because the original divorce decree did not contain a finding that the spousal maintenance was based on an incapacitating physical or mental disability. Steven moved for a partial summary judgment on his request to void the maintenance order, and the trial court granted the motion. Jo acknowledges that the proceeding with regard to clarifying the order regarding retirement is still pending. In addition, the trial court's order granting partial summary judgment notes that the issue of Steven's entitlement to reimbursement "for all payments made pursuant to [the 2002 order] by him shall be made at a later date."
Discussion
In our original order dated December 29, 2004, we denied Jo's petition for writ of mandamus, noting that a severance by the trial court would provide an adequate remedy by appeal. After our order issued, Jo filed a motion requesting that the trial court grant a severance, but the motion was denied. Steven maintains that Jo continues to have an adequate remedy by appeal.
"[W]hether an appellate remedy is `adequate' so as to preclude mandamus review depends heavily on the circumstances presented and is better guided by general principles than by simple rules." In re Prudential Ins. Co. of America, 148 S.W.3d 124, 137 (Tex. 2004). "The operative word, `adequate', has no comprehensive definition; it is simply a proxy for a careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts." Id. at 136. "Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted during eventual reversal of improperly conducted proceedings." Id. "An appellate remedy is `adequate' when any benefits to mandamus review are outweighed by the detriments." Id. "When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate." Id. Under the circumstances presented in this case, we conclude that an appellate remedy is not adequate. See id. at 137 (noting complete lack of authority for court's order as factor for granting mandamus relief.).
An order is void only when it is apparent that the court rendering the order had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); In re Garza, 981 S.W.2d 438, 440 (Tex.App.-San Antonio 1998, orig. proceeding). When a court's action is merely contrary to a statute or rule, the action is erroneous or voidable, rather than void. Mapco, Inc., 795 S.W.2d at 703; In re Garza, 981 S.W.2d at 440.
Steven contends that the trial court's order is void because the final divorce decree did not contain any finding that the maintenance was based on an incapacitating physical or mental disability. Section 8.054 of the Texas Family Code, however, does not contain any provision that requires an express finding by the trial court. See Tex. Fam. Code Ann. § 8.054 (Vernon Supp. 2004-2005). Furthermore, the divorce decree provided that Jo could seek a continuation of the support after two years by motion, and the 2002 order provided that maintenance continued until further order of the court. Since maintenance for any reason other than incapacitating physical or mental disability may only extend for three years, the divorce decree and the 2002 order could be read as being implicitly based on a finding of incapacitating physical or mental disability. Compare Tex. Fam. Code Ann. § 8.054(a) (Vernon Supp. 2004-2005) with Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2004-2005). Furthermore, even assuming that the trial court was not statutorily authorized to continue maintenance for more than three years absent an express finding in the divorce decree, the trial court's 2002 order would merely be contrary to a statute, making it voidable rather than void. Cf. Deltuva v. Deltuva, 113 S.W.2d 882, 889 (Tex.App.-Dallas 2003, no pet.) (reversing order requiring maintenance to be paid for four years on direct appeal where exception for incapacitating physical or mental disability not applicable).
Conclusion
The trial court abused its discretion in declaring the order entitled "Order In Suit To Continue Spousal Maintenance" void, and mandamus relief is conditionally granted with regard to the trial court's order. The writ will only issue if Judge Peden fails to withdraw his order within ten days from the date of our opinion and order.