Petition for Writ of Mandamus Denied and Memorandum Opinion filed July
30, 2013.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-13-00561-CV



                 IN RE RUSSELL JERRY HUSTED, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              312th District Court
                             Harris County, Texas
                       Trial Court Cause No. 1987-05441

                     MEMORANDUM OPINION

      On July 8, 2013, relator Russell Jerry Husted filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable David Farr,
presiding judge of the 312th District Court of Harris County, to vacate his ruling
creating a constructive trust.

         On January 26, 1988, relator was divorced from his wife Susan Kay Husted,
now Susan Cowles. On the same day, the trial court signed a Qualified Domestic
Relations Order (QDRO) in which the court awarded one-half of relator’s
retirement benefits from Arabian American Oil Company (ARAMCO) to Susan as
part of the property division. With regard to payment of the retirement benefits,
the order states:

         While it is anticipated that the Plan Administrator will pay directly to
         SUSAN KAY HUSTED LONG the benefit awarded to her,
         RUSSELL JERRY HUSTED is designated a constructive trustee to
         the extent he receives any retirement benefits under RETIREMENT
         INCOME PLAN that are due to SUSAN KAY HUSTED LONG but
         paid to RUSSELL JERRY HUSTED. RUSSELL JERRY HUSTED
         is ORDERED AND DECREED to pay the benefit defined above
         directly to SUSAN KAY HUSTED LONG within three days after
         receipt by RUSSELL JERRY HUSTED.

         Relator retired in 2001 and received a lump-sum retirement benefit in
February, 2002. At that time Susan’s portion of the retirement plan was not
distributed to her. On October 8, 2012, Susan filed a breach of contract action in
civil district court seeking her share of the retirement benefits. On February 25,
2013, Susan filed a petition for enforcement of the property division in the 312th
District Court, which is the underlying action. The trial court consolidated the two
cases.



                                            2
      On April 9, 2013, the trial court held a hearing at which relator testified that
he received between $400,000 and $500,000 in a lump-sum payment in 2002 from
ARAMCO. He did not distribute any of those funds to Susan. Relator testified
that at the time he withdrew the retirement funds he thought ARAMCO had
withdrawn the amount owed to Susan. Susan testified that she expected Jerry to
retire at age 70. She inquired about his retirement when he reached age 70, and
discovered that he had retired at age 59, and had taken a lump-sum payment from
his retirement fund.

      At the conclusion of the hearing, the trial court found that, pursuant to the
QDRO, relator is a constructive trustee and is obligated to pay Susan half of his
retirement account at the time of the divorce. The court further determined that
section 9.003(b) of the Texas Family Code does not bar Susan’s action because she
is not seeking recovery for property that did not exist at the time of the divorce.
The court rescheduled another hearing for July 9, 2013 for the parties to present
evidence on the amount owed under the QDRO. Relator has not provided this
court with a record of the July 9 hearing.

      In his mandamus petition, relator claims the trial court abused its discretion
in ruling that a constructive trust was created and in its pronouncement that the
enforcement action is not controlled by section 9.003 of the Texas Family Code.

      Mandamus relief is available when the trial court abuses its discretion and
there is no adequate remedy at law, such as by appeal. In re Prudential Ins. Co.,
148 S.W.3d 124, 135–36 (Tex. 2004). Relator can raise his constructive trust and
limitations issues after final judgment on appeal. See generally Marshall v. Priess,
                                             3
99 S.W.3d 150, 155–58 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
(addressing on appeal enforcement of QDRO on appeal and applicability of section
9.003 to retirement benefit). Because relator has an adequate remedy by appeal he
has not established entitlement to the extraordinary relief of a writ of mandamus.
Accordingly, we deny relator’s petition for writ of mandamus.



                                            PER CURIAM



Panel consists of Justices Brown, Christopher, and McCally.




                                        4
