                                COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON

                                   ORDER ON MOTIONS

Appellate case name:        Jeffery Dwayne Benoit v. Brenda Faye Benoit

Appellate case number:      01-15-00023-CV

Trial court case number:    E-140080-D

Trial court:                County Court at Law No. 2 of Orange County

       On November 25, 2014, appellant filed his notice of appeal with the trial clerk
from the final decree of divorce, signed by the trial court on October 30, 2014. On
December 23, 2014, in the Ninth Court of Appeals, appellant filed a motion to stay,
abate, vacate, or reform the trial court’s December 15, 2014 post-notice of appeal order
on motion for temporary orders pending appeal, issued under Texas Family Code §
6.709, which directed appellant to pay $5,000 in appellate attorney’s fees to appellee by
March 1, 2015. On January 8, 2015, this appeal was transferred from the Ninth Court to
this Court pursuant to the Texas Supreme Court’s docket equalization powers.1
        On January 16, 2015, appellant filed an emergency motion to expedite this Court’s
hearing of his prior motion to stay, seeking to stay the appellate fee award pending the
determination of his underlying appeal, and attached the trial court’s December 15, 2014
order. The trial court’s December 15, 2014 order, among other things, ordered appellant
to pay appellee’s counsel $5,000 in “attorney’s fees and expenses, as additional
temporary support,” by March 1, 2015, and these attorney’s fees were “not [to] be a
credit against the post[-]divorce spousal support ordered under the Court’s Decree of
Divorce entered on October 30, 2014.” Although appellant’s motions do not include
certificates of conference, they both contain certificates of service stating that they were


1
       On December 15, 2014, the Texas Supreme Court ordered this appeal transferred from
       the Ninth Court. See TEX. GOV’T CODE ANN. § 73.001 (West Supp. 2014); Order
       Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 14-9246, ¶ V
       (Tex. Dec. 15, 2014). We are unaware of any conflict between the precedent of the Ninth
       Court and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
served on appellee’s counsel and have been on file with the Court for more than ten days
without any opposition filed. See TEX. R. APP. P. 10.1(a)(5), (b), 10.3(a).
       “The trial court retains jurisdiction to enforce a temporary order under this section
unless the appellate court, on a proper showing, supersedes the trial court’s order.” TEX.
FAM. CODE ANN. § 6.709(b) (West Supp. 2014). We have previously held that “[a] trial
court may not penalize a party for taking a successful appeal” and, thus, “[a]n
unconditional award of an appellant’s appellate attorney’s fees is improper.” Keith v.
Keith, 221 S.W.3d 156, 171 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “However,
an unconditional award of appellate attorney’s fees does not require reversal; instead, we
may modify a trial court’s judgment to make the award of appellate attorney’s fees
contingent upon the receiving party’s success on appeal.” Id. (citations omitted).
       Here, because the trial court’s order did not provide any conditions for the award
of appellate fees, we grant appellant’s emergency motion and motion to stay the
temporary order with respect to the appellate fee award, pending determination of the
underlying appeal. See id. Although we may modify the judgment to make it contingent
upon appellant’s unsuccessful appeal, the trial court’s fee award was directed to be
additional temporary spousal support not to be a credit to the October 30, 2014 final
decree of divorce. Thus, appellant’s alternative motion to abate, vacate, or reform the
December 15, 2014 temporary order will be considered together with the merits of
underlying appeal of the final divorce decree.
       Accordingly, we grant appellant’s emergency motion and motion to stay the trial
court’s December 15, 2014 temporary order with respect to the $5,000 award of appellate
fees by March 1, 2015, until the underlying appeal of the final divorce decree in this
Court is finally decided or the Court otherwise orders the stay lifted. See TEX. FAM.
CODE ANN. § 6.709(b).


       It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley
                    Acting individually      Acting for the Court

Date: February 5, 2015




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