GIFFIN v. GIFFIN

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Court of Appeals of Texas,Corpus Christi.

Brian K. GIFFIN, Appellant, v. Susan McGeorge GIFFIN, Appellee.

No. 13-95-518-CV.

Decided: January 15, 1998

Before DORSEY, CHAVEZ and RODRIGUEZ, JJ. Jack P. Kelso, Corpus Christi, for appellant. William A. Dudley, Cook, Dudley & Associates, Corpus Christi, for appellee.

OPINION

Appellant appeals from a wage withholding order of the trial court enforcing a spousal support order from the State of Virginia.   In a separate mandamus action, we held the trial court had no authority to enter the wage withholding order because it unconstitutionally garnished wages for the payment of spousal support.  Giffin v. Villareal, No. 13-95-462-CV, slip op. at 3 (Tex.App.-Corpus Christi, Dec. 8, 1995, orig. proceeding) (not designated for publication).

 Because the relief appellant asked for in the appeal was rendered moot by our conditional grant of mandamus in cause number 13-95-462-CV, appellant moved to dismiss the instant appeal.   The rules of appellate procedure in effect at the time appellant perfected the appeal and when he filed the motion to dismiss provided:

(1) The appellate court may finally dispose of an appeal or writ of error as follows:

(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties;  provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.

Tex.R.App. P. 59(a)(1)(B).1

 Our review of appellee's brief fails to yield any request for affirmative relief.   If this appeal is dismissed, appellee will not be prevented from seeking any appellate relief to which she would otherwise have been entitled.   See Tex.R.App. P. 59(a);  Elizondo v. Northeast Indep. Sch. Dist., 853 S.W.2d 862, 863 (Tex.App.-San Antonio 1993, no writ) (appellate court may not dispose of an appeal on motion if it would prevent any other party from seeking any appellate relief to which it would be entitled).

Accordingly, we grant appellant's motion to dismiss.   The appeal is hereby DISMISSED.

FOOTNOTES

1.   Now, Tex.R.App. P. 42.1(a)(2).

RODRIGUEZ, Justice.

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