APPELLANT v. APPELLEE (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

Appellant Susan Cohen Mandell appeals the trial court's November 12, 2008 order granting Appellee Harold Lance Mandell's postjudgment motion to enforce the division of the marital estate provided in the couple's April 8, 2008 divorce decree.   The notice of appeal from the divorce decree was filed in this court on July 7, 2008, we issued our opinion on April 15, 2010, and mandate issued November 16, 2010.²  The appeal from the divorce decree was therefore pending when the trial court rendered its enforcement order.

Section 9.007(c) of the family code provides that the power of the trial court “to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.” ³  Accordingly, this court requested that the parties file supplemental letter briefs addressing the impact of this statute on this case.

As both parties agree, under the statute, the trial court had no power to render the November 12, 2008 enforcement order because the appeal from the divorce decree was then pending.⁴  Accordingly, we vacate the trial court's November 12, 2008 enforcement order, and, because mandate has now issued in the appeal from the divorce decree, we remand this case to the trial court for further proceedings.⁵

PANEL:  DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED:  December 16, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. Mandell v. Mandell, 310 S.W.3d 531 (Tex.App.-Fort Worth 2010, pet. denied)..  FN2. Mandell v. Mandell, 310 S.W.3d 531 (Tex.App.-Fort Worth 2010, pet. denied).

FN3. Tex. Fam.Code Ann. § 9.007(c) (Vernon 2006)..  FN3. Tex. Fam.Code Ann. § 9.007(c) (Vernon 2006).

FN4. See id.;  In re Fischer-Stoker, 174 S.W.3d 268, 271 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding) (op. on reh'g)..  FN4. See id.;  In re Fischer-Stoker, 174 S.W.3d 268, 271 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding) (op. on reh'g).

FN5. See Tex. Fam.Code Ann. § 9.007(c);  Fischer-Stoker, 174 S.W.3d at 271..  FN5. See Tex. Fam.Code Ann. § 9.007(c);  Fischer-Stoker, 174 S.W.3d at 271.