IN RE: Donald Jason McCoy

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Court of Appeals of Texas, Fort Worth.

IN RE: Donald Jason McCoy, Relator

NO. 02–15–00273–CV

Decided: August 28, 2015

PANEL:  MEIER, DAUPHINOT and WALKER, JJ.

MEMORANDUM OPINION 1

The court has considered relator's petition for writ of mandamus and motion for emergency relief and is of the opinion that all relief should be denied.   Relator Donald Jason McCoy argues that the trial court abused its discretion by ordering him to pay attorney's fees because it “did not condition the award of appellate attorney's fees upon [his ex-wife] meeting [her] burden of proof.”   However, no reporter's record was made of the hearing at which the trial court entertained the motion seeking the fees, and without a reporter's record, we have no way to review whether McCoy's ex-wife met her burden of proof for an award of attorney's fees.   Although we deny McCoy's requested relief in this mandamus proceeding, our decision should not affect whether McCoy may alternatively seek to challenge the propriety of the attorney's fees in his pending appeal from the trial court's final decree of divorce.

Accordingly, relator's petition for writ of mandamus and motion for emergency relief are denied.

DISSENTING MEMORANDUM OPINION 1

I am of the tentative opinion that a serious question exists concerning the relief requested in Relator Donald Jason McCoy's petition for writ of mandamus that requires further consideration.   See Tex.R.App. P. 52.8(b).  Relator's petition complains of the trial court's August 10, 2015 temporary order pending appeal that requires Relator to pay Real Party in Interest Elena Khoroknorina $8,000 in appellate fees on or before August 31, 2015, pursuant to Texas Family Code section 6.709(a)(2).   See Tex. Fam.Code Ann. § 6.709(a)(2) (West 2006).

Relator is proceeding pro se in his appeal from the trial court's divorce judgment in cause number 02–15–00208–CV in our court.   He has paid $427 for preparation of the clerk's record, which has been filed with our court.   The court reporter has requested and has been granted an extension of time to file the reporter's record.   Relator's petition for writ of mandamus contains Relator's certification of the truth of the facts set forth therein and alleges that “requiring him to pay RPI's legal fees ․ would make him destitute.”

Because Respondent's temporary order requires Relator to pay $8,000 in appellate attorney's fees to Real Party in Interest on August 31, 2015, during the pendency of Relator's appeal;  because Relator claims that the payment “would make him destitute”;  and because, consequently, the ordered payment has the potential to preclude Relator's continued prosecution of his appeal, I would grant Relator's request for an emergency order staying Respondent's order requiring Relator's payment of $8,000 on August 31, 2015, and I would request a response.   See Tex.R.App. P. 52.8(b)(1);  Braden v. Downey, 811 S.W.2d 922, 928–31 (Tex.1991).   Because the majority opinion denies all relief requested, I respectfully dissent.

FOOTNOTES

1.   See Tex.R.App. P. 47.4, 52.8(d).

1.   See Tex.R.App. P. 47.4.

PER CURIAM

WALKER, J., filed a dissenting opinion.