                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00239-CV


IN RE DANNY EATON


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                           ORIGINAL PROCEEDING
                       TRIAL COURT NO. 360-557201-14

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                        MEMORANDUM OPINION 1

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      In this mandamus proceeding, relator Danny Eaton asks this court to order

the respondent trial court to vacate its temporary orders awarding real party in

interest Donna Eaton temporary spousal support and interim attorneys’ fees

contrary to Danny and Donna’s separation agreement. Because we conclude

that Danny does not have an adequate appellate remedy and that the trial court

clearly abused its discretion, we conditionally grant mandamus relief.



      1
       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

                          A. SEPARATION AND DIVORCE

      After marrying on October 12, 2001, Danny and Donna formally separated

over seven years later. At the time of the separation, they did not intend to

divorce but signed a separation agreement on March 13, 2009, that would be “a

full, final, fair and equitable division of their community estate effective as of

[March 13, 2009].” The separation agreement provided that “all earnings, salary,

wages, bonuses, commissions or dividends of either party received or earned

after [March 13, 2009]” would be “the separate property of the parties.” Each

waived any claim to the separate property of the other. Danny agreed to provide

medical insurance for Donna through his employer 2 and to pay Donna a lump

sum followed by periodic payments until March 13, 2011, which were for “general

support, a travel allowance and money for uninsured medical expenses and

dietary supplements.” In exchange, Donna agreed that any claim she might have

“to the community estate of the parties or the separate estate of [Danny]” was

fully satisfied by the provisions in the separation agreement.

      On May 16, 2014, which was three years after Donna received her last

payment from Danny, Donna filed a divorce petition requesting a disproportionate

share of the community estate and court-ordered spousal maintenance. Danny

answered the petition and asserted that the separation agreement was a valid

      2
       It appears Danny continued to provide Donna with medical insurance
through his employer at the time of the divorce petition.

                                         2
marital property agreement and that the property division in the agreement

should be “enforced.” 3 See Tex. Fam. Code Ann. §§ 4.102–.105 (West 2006);

see also Tex. Const. art. XVI, § 15. The trial court set a hearing to determine

whether Danny should be ordered to pay Donna temporary support until the

divorce was final and whether Danny should “pay reasonable interim attorney’s

fees and expenses.”

                             B. TEMPORARY ORDERS

      The trial court’s associate judge presided over the May 30 hearing 4 and

entered a report for temporary orders requiring Danny to pay $6,000 per month in

temporary spousal support for three months, ending in August 2014. 5 E.g., Tex.

Fam. Code Ann. § 201.011 (West 2014).          Danny was also required to pay

Donna’s attorney $5,000 in interim attorney’s fees and expenses. The associate

      3
       Neither Danny nor Donna have asserted that the agreement was an
agreement incident to divorce, which could have been repudiated at any time
before the divorce was final and would have required judicial approval. See Tex.
Fam. Code Ann. § 7.006 (West 2006). We agree that the terms of the
agreement show that Danny and Donna did not intend to “promote amicable
settlement of disputes in a suit for divorce” nor did they intend to divorce at the
time they entered into the agreement. Id.; see Morin–Spatz v. Spatz, No. 05-00-
01580-CV, 2002 WL 576513, at *5–6 (Tex. App.—Dallas Apr. 18, 2002, no pet.)
(construing marital agreement to be a partition or exchange agreement and not
agreement incident to divorce based on intent of parties reflected in terms of
agreement).
      4
       The mandamus record does not include a referral order from the trial court
to the associate judge, but no party argues that the case was not properly
referred. See Tex. Fam. Code Ann. §§ 201.005–.006 (West 2014).
      5
       In her financial information statement, Donna requested $8,000 per month
in temporary spousal support.

                                        3
judge specifically noted in her report that there was a 2009 separation agreement

but that “the court did not rule and was not asked to rule on [its] validity today.”

Danny and Donna agree that a court reporter was not provided for the May 30

hearing. See id. § 201.009(a) (West 2014). Danny did not request a de novo

hearing of the associate judge’s report. See id. § 201.015 (West 2014).

       Danny filed a motion to reconsider with the associate judge, however, and

argued that the terms of the report “are inconsistent with the terms of the parties’

Separation Agreement.” On July 16, 2014, the associate judge denied Danny’s

motion to reconsider, entered temporary orders consistent with her prior report,

and denied Danny’s request to place the ordered payments into the trial court’s

registry.     See id. § 6.502(a)(2), (4) (West 2006).     Although signed by the

associate judge, the temporary orders constituted an order of the referring court.

See id. § 201.007(c) (West 2014).

                                  C. MANDAMUS

       On August 5, 2014, Danny filed a petition for writ of mandamus requesting

that this court vacate the trial court’s temporary orders. Because there was no

court reporter provided at the May 30 hearing, Danny included a statement that

because the issues raised in his mandamus petition involve questions of law, the

testimony adduced at the hearing was not relevant.          See Tex. R. App. P.

52.7(a)(2).     Danny also asked for temporary relief in the form of an order

authorizing Danny to place the payments ordered into the trial court’s registry.

We granted Danny’s requested temporary relief pending our action on the

                                         4
petition.   See Tex. R. App. P. 52.10(b).      Because we reached the tentative

opinion that a serious question concerning the relief required further

consideration, we further requested that Donna respond to Danny’s petition. See

Tex. R. App. P. 52.8(b). After Donna responded as ordered, Danny filed a reply.

See Tex. R. App. P. 52.4, 52.5.

       As a preliminary issue, Donna asserts that the absence of a record from

the May 30 hearing is fatal to Danny’s mandamus request because testimony

relevant to Danny’s claim was elicited at the hearing. We conclude that Danny’s

claims center on whether the trial court’s temporary orders violated the terms of

the separation agreement, which is a question of law.         Neither Danny’s nor

Donna’s factual testimony at the May 30 hearing bears on the legal effect of the

separation agreement on the resulting temporary orders. See generally Tex.

Fam. Code Ann. § 4.105(b) (providing enforceability of marital partition

agreement “shall be decided by the court as a matter of law”). Additionally, the

parties do not dispute what facts were adduced at the hearing. Therefore, a

record from the May 30 hearing is not required in this instance. See, e.g., In re

Carter, No. 01-13-01021-CV, 2014 WL 2809822, at *1 n.2 (Tex. App.—Houston

[1st Dist.] June 19, 2014, orig. proceeding) (mem. op.) (granting habeas corpus

relief even though relator failed to file reporter’s record from hearing because “the

testimony adduced at the hearing is not relevant or necessary to the disposition

of this petition”); In re Health Discovery Corp., 148 S.W.3d 163, 165–66 n.4 (Tex.

App.—Waco 2004, orig. proceeding) (“suspend[ing]” requirements of rule

                                         5
52.7(a)(1) “[i]n the absence of any dispute concerning the factual basis for

Relator’s request in this original proceeding”). See generally Tex. R. App. P.

52.7(a)(2) (requiring “properly authenticated transcript of any relevant testimony

from any underlying proceeding” (emphasis added)).

                                 II. DISCUSSION

                            A. AVAILABILITY OF REMEDY

      Mandamus relief is available only if the relator establishes that the trial

court abused its discretion and no adequate appellate remedy exists. In re State,

355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). A trial court clearly abuses its

discretion when it reaches a decision so arbitrary and unreasonable as to amount

to a clear and prejudicial error of law or if it clearly fails to correctly analyze or

apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010)

(orig. proceeding); Walker, 827 S.W.2d at 839. Determining whether a party has

an adequate remedy by appeal requires a balancing of the benefits and

detriments of mandamus review. In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 136 (Tex. 2004) (orig. proceeding).

                        B. ADEQUATE APPELLATE REMEDY

      Temporary orders entered in divorce actions may not be immediately

appealed. Tex. Fam. Code Ann. § 6.507 (West 2006). As a result, Danny lacks

a clear and adequate remedy at law and, thus, has satisfied the first requirement

for mandamus relief. E.g., In re Slanker, 365 S.W.3d 718, 721 (Tex. App.—

                                           6
Texarkana 2012, orig. proceeding) (citing In re Derzapf, 219 S.W.3d 327, 334–35

(Tex. 2007) (orig. proceeding)); In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort

Worth 2009, orig. proceeding [mand. denied]); accord United States v. Emerson,

270 F.3d 203, 263 (5th Cir. 2001) (recognizing review of section 6.502 temporary

orders is “available by mandamus”), cert. denied, 536 U.S. 907 (2002).

         Donna asserts that Danny has not satisfied this prerequisite to mandamus

relief because he failed to seek de novo review of either the associate judge’s

report or the associate judge’s refusal to reconsider the report, which were

adequate remedies at law. First, the family code clearly provides that the failure

to seek de novo review before the referring court “does not deprive the party of

the right to appeal to or request other relief from a court of appeals or the

supreme court.” Tex. Fam. Code Ann. § 201.016(a) (West 2014); see also In re

S.G.S., 53 S.W.3d 848, 852 (Tex. App.—Fort Worth 2001, no pet.) (holding

failure to seek de novo review of associate judge’s denial of motion to transfer

venue did not preclude appeal).        Second, Danny does not challenge the

associate judge’s report but rather the referring court’s temporary orders

requiring payment of spousal support and attorney’s fees. Although signed by

the associate judge, the temporary orders constituted an order of the referring

court.    See Tex. Fam. Code Ann. § 201.007(c) (providing associate judge’s

temporary orders are construed to be orders of referring court). Even if de novo

review were a necessary prerequisite to seeking mandamus relief in this court,

Danny’s failure to do so after the associate judge’s report would not affect the

                                         7
availability of the relief he seeks from the subsequent temporary orders of the

referring court. Therefore, Danny’s failure to seek de novo review before the

referring court does not affect the lack of an adequate appellate remedy.

                             C. ABUSE OF DISCRETION

      The associate judge’s temporary orders, which constituted orders of the

referring court, required Danny to pay Donna temporary spousal support for three

months and interim attorney’s fees and expenses. Of course, such orders are

authorized under the family code.        See Tex. Fam. Code Ann. §§ 6.502,

201.007(a)(14)(C).

      Danny argues, however, that the referring court clearly abused its

discretion by entering the temporary orders because the separation agreement

was a marital property agreement—specifically, a partition or exchange

agreement (a PEA)—and the relief granted to Donna was waived or fully satisfied

under the terms of the separation agreement. Donna asserts that the agreement

cannot be considered a PEA because it included neither the word “partition” nor

language that partition was intended by Danny and Donna. We disagree that an

agreement must contain the word “partition” to be construed as a PEA.             To

qualify as a PEA, the agreement must (1) be in writing, (2) be signed by both

parties, and (3) either contain a reference to partition or show an intent to convert

community property into separate property. See Tex. Fam. Code Ann. §§ 4.102,

.104; Ahmed v. Ahmed, 261 S.W.3d 190, 195 (Tex. App.—Houston [14th Dist.]

2008, no pet.); Byrnes v. Byrnes, 19 S.W.3d 556, 559 (Tex. App.—Fort Worth

                                         8
2000, no pet.).   The first two requirements are undisputedly met.       The third

requirement is also met because the agreement clearly indicated that Danny and

Donna intended to divide their community property between themselves and to

recharacterize the divided community property as their respective separate

property. Cf. McPhee v. Internal Revenue Serv., No. Civ.A.300CV2028D, 2002

WL 31045978, at *2–3 (N.D. Tex. Sept. 10, 2002) (mem. op. on recons.)

(questioning whether separation agreement could be a PEA under section 4.102

because agreement did not address partition of property acquired in the future

and focused on restricting conveyances rather than partitioning property);

Byrnes, 19 S.W.3d at 559 & n.2 (holding assignment to wife of future financial

benefits from husband’s retirement pay “to fully discharge all obligations arising

from marriage, other than division of property,” was not a partition agreement

because it required judicial approval by its terms and was a complete forfeiture of

husband’s interest); McBride v. McBride, 797 S.W.2d 689, 692 (Tex. App.—

Houston [14th Dist.] 1990, writ denied) (“[T]he term ‘partition’ as used in the

Family Code contemplates a division of property among the parties, not a

complete forfeiture.”). The separation agreement was a PEA as contemplated by

section 4.102.

      A PEA is presumptively enforceable, and the party seeking to show that

such an agreement is not enforceable bears the burden to show that the

agreement was involuntarily executed or unconscionable. See Tex. Fam. Code

Ann. § 4.105(a) (West 2006); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 694

                                        9
(Tex. App.—Austin 2005, pet. denied); Grossman v. Grossman, 799 S.W.2d 511,

513 (Tex. App.—Corpus Christi 1990, no writ). Here, Donna did not assert either

of the statutory bases that would render the agreement unenforceable and,

indeed, did not ask the associate judge to rule on the validity of the agreement.

Therefore, the agreement was presumptively enforceable and required no judicial

approval to be effective. See Byrnes, 19 S.W.3d at 559 n.2.

      This presumptively enforceable agreement partitioned Danny and Donna’s

community property, including future earnings or salaries, between themselves

and designated such property as separate property. Both recognized that any

community estate had been partitioned and recharacterized as separate property

by the agreement and agreed that the partition or exchange evidenced in the

agreement fully and completely satisfied “any claim . . . in law or in equity” to the

other’s separate property. Therefore, the agreement resulted in there being no

community estate to divide in the event of divorce. In fact, Donna was entitled to

receive no payments from Danny under the terms of the agreement after 2011—

three years before she filed the divorce petition.

      Donna asserts that the agreement created a joint tenancy in Danny’s

separate property because all future earnings were characterized as the

separate property of the “parties.” The nature of Donna’s interest in Danny’s

separate-property earnings is not for us to decide because that issue involves the

question of how to incorporate the agreement into the final divorce decree as

expressly provided in the agreement: “[T]he parties agree this agreement shall

                                         10
be binding on both parties in the event of divorce, and shall, if applicable, and

allowed by law, be incorporated into any divorce decree.” See Tex. Fam. Code

Ann. § 7.002(c) (West 2006). The agreement was presumptively valid at the time

of the temporary orders and clearly waived any claim Donna had to Danny’s

separate property.   What we are asked to decide is not how the agreement

should be incorporated into any final divorce decree but whether the trial court

abused its discretion by awarding temporary spousal support and interim

attorney’s fees in light of the presumptively valid agreement.

      The purpose of temporary spousal maintenance is to protect the welfare of

a “financially dependent” spouse or to maintain the status quo of the family until

the final divorce decree. Herschberg v. Herschberg, 994 S.W.2d 273, 277–78

(Tex. App.—Corpus Christi 1999, no pet.). Here, the parties’ status quo under

the terms of the presumptively enforceable PEA was that there was no

community estate and that Donna received no monetary support from Danny. As

stated above, a trial court has the general discretion to make temporary orders to

preserve the marital property and protect the parties. See In re Wymore, No. 2-

05-056-CV, 2005 WL 737476, at *3 (Tex. App.—Fort Worth Mar. 31, 2005, orig.

proceeding) (mem. op.). But by ordering temporary spousal support and interim

attorney’s fees even though there was a presumptively valid PEA, which

provided for no community estate and no monetary support after 2011, the trial

court incorrectly applied the law, thereby abusing its discretion.     See, e.g.,

Herschberg, 994 S.W.2d at 278–79 (recognizing temporary support is not a

                                        11
property right but is for the maintenance of the family); Grossnickle v.

Grossnickle, 935 S.W.2d 830, 847 (Tex. App.—Texarkana 1996, writ denied)

(recognizing ordered attorney’s-fees payments necessarily come from the

community estate); Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex. App.—Houston

[14th Dist.] 1989, writ denied) (“Because we have found that there was no

community property estate [as a result of premarital agreement], the award of

attorney’s fees was error.”), disapproved on other grounds by Twyman v.

Twyman, 855 S.W.2d 619 (Tex. 1993). See generally Walker, 827 S.W.2d at

840 (“A trial court has no ‘discretion’ in determining what the law is or applying

the law to the facts.”).

      Further, the presumptively enforceable agreement should have controlled

and superseded the court’s jurisdiction to order temporary spousal support and

interim attorney’s fees. Cf. Schecter v. Schecter, 579 S.W.2d 502, 506 (Tex. Civ.

App.—Dallas 1978, no writ) (presuming trial court considered valid premarital

agreement barring temporary alimony to wife in dividing the property and

awarding larger share of community estate to husband). Although Danny and

Donna’s agreement did not specifically mention temporary spousal support or

interim attorney’s fees, the agreement did specify that the agreement fully

satisfied any and all claims one would have to the other’s separate property and

that there was no community estate after the date of the agreement.          This




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language necessarily precluded any award of temporary spousal support or

interim attorney’s fees. 6


                                 III. CONCLUSION

      Having concluded that Danny has no adequate appellate remedy and that

the trial court abused its discretion by ordering temporary spousal support and

interim attorney’s fees in contravention of the parties’ presumptively enforceable

PEA, we conditionally grant the petition for writ of mandamus and order the trial

court to vacate the temporary orders.       The trial court further shall return the

monies deposited in the trial court’s registry to Danny. The writ of mandamus will

issue only if the trial court does not comply.




                                                    /s/Lee Gabriel
                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: September 25, 2014




      6
       We need not address Danny’s alternative argument that the ordered
amount of temporary spousal support improperly exceeded the statutory
maximum applicable to spousal maintenance. See Tex. R. App. P. 47.1, 52.8(d);
see also Tex. Fam. Code Ann. § 8.055(a) (West Supp. 2014).

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