                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                   §
RAUL RENE RODRIGUEZ,                                                 No. 08-15-00340-CV
                                                   §
                            APPELLANT,                                  Appeal from the
                                                   §
V.                                                                    65th District Court
                                                   §
LETICIA BORREGO,                                                   of El Paso County, Texas
                                                   §
                              APPELLEE.                               (TC# 2007CM7669)
                                                   §

                                           OPINION

          The Court previously abated this appeal in order to give Appellant, Raul Rene Rodriguez,

an opportunity to comply with the trial court’s temporary orders. The appeal is reinstated.

          Pending before the Court are two motions filed by Rodriguez: (1) a motion asking that

we reconsider a prior order stating that the appeal would be dismissed if Rodriguez failed to

comply with the temporary orders; and (2) a motion to modify the trial court’s temporary orders,

or abate the appeal and remand to the trial court for modification. Finding that Rodriguez has

failed to comply with the trial court’s temporary orders, we deny both motions and dismiss the

appeal.

                                      FACTUAL SUMMARY

          Rodriguez is appealing from a final decree of divorce. After Rodriguez filed a request for

entry of findings of fact and conclusions of law, Appellee, Leticia Borrego, filed a motion
requesting temporary orders in the event Rodriguez perfected an appeal. See TEX.FAM.CODE

ANN. § 6.709 (West 2006)(authorizing the trial court to render temporary orders necessary for

preservation of property or protection of the parties during the appeal). Borrego requested that

Rodriguez be ordered to pay temporary spousal support retroactive to the date of the divorce and

her attorney’s fees incurred in connection with an appeal. After Rodriguez perfected his appeal

on November 20, 2015, the trial court conducted a hearing on Borrego’s motion. Finding it had

jurisdiction to render temporary orders pending appeal, the trial court granted Borrego’s motion,

and ordered Rodriguez to pay attorney’s fees in the amount of $21,000 to Borrego’s counsel by

March 15, 2016, and temporary spousal support to Borrego in the amount of $1,500 per month

with the first payment due on January 1, 2016. The court also ordered Rodriguez to pay

retroactive spousal support in the amount of $500 for the months of September, October, and

November 2015.

       On June 13, 2016, Borrego filed a motion to dismiss the appeal because Rodriguez has

not paid the temporary spousal support, the retroactive spousal support, or the attorney’s fees

ordered by the trial court. Alternatively, Borrego asked the Court to abate the appeal for fourteen

days to permit Rodriguez to comply with the trial court’s orders. We granted the motion in part

and abated the appeal until July 13, 2016. Our order provided that if Rodriguez failed to comply

with the temporary orders, the appeal would be dismissed. Rodriguez did not comply, and he

filed an unopposed motion to extend the abatement on July 11, 2016, stating that he needed

additional time to obtain funds from a Thrift Savings Plan (“TSP”) to pay the spousal support

and attorney’s fees. We granted the motion and extended the abatement to July 27, 2016.

Rodriguez filed a second unopposed motion to extend the abatement, and we also granted that

motion, extending the abatement period to August 16, 2016. We granted a third extension



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motion and extended the abatement period to August 26, 2016. The order granting the third

extension directed the parties to notify the Court whether Rodriguez complied with the

temporary orders and added that the appeal would be dismissed if Rodriguez failed to comply.

The order also specified that the Court would not consider any further extension requests.

Rodriguez did not comply with the temporary orders. He instead filed a motion to modify the

temporary orders, or alternatively, to abate the appeal and remand the issue of modification to

the trial court. On August 29, 2016, Rodriguez filed a motion asking the Court to reconsider its

order that the appeal would be dismissed if he failed to comply with the temporary orders.

          The Rules of Appellate Procedure authorize a court of appeals to dismiss an appeal when

the appellant fails to comply with a court order. See TEX.R.APP.P. 42.3(c). In Byrnes v.

Ketterman, this Court exercised its authority under Rule 42.3(c) and dismissed the appeal

because the appellant failed to comply with a trial court’s order to answer post-judgment

discovery. Byrnes v. Ketterman, 440 S.W.3d 688, 690 (Tex.App.--El Paso 2013, no pet.). The

Austin Court of Appeals dismissed an appeal in circumstances similar to this case where the

appellant failed to comply with temporary orders entered pursuant to Section 6.709 of the Texas

Family Code requiring him to pay attorney’s fees and temporary spousal support during the

pendency of the appeal. See Griffith v. Case, No. 03-06-00722-CV (Tex.App.--Austin May 22,

2007, no pet.)(mem. opinion).1

          Rodriguez asserts that his appeal should not be dismissed because he has been

negotiating with the TSP administrator in good faith to obtain the funds.                            According to

Rodriguez, the TSP administrator has place a “hold” on the TSP funds as a result of the appeal. 2


1
 This memorandum opinion is not available on Westlaw. It is accessible through the Third Court of Appeals’
website.
2
    According to Borrego, she does not have access to her share of the TSP funds because of the appeal.

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While we accept as true the representations of Rodriguez’s counsel that he has attempted to

negotiate with the TSP administrator, the trial court’s order did not require that the temporary

spousal support and attorney’s fees be paid from the TSP. As noted by Borrego, the divorce

decree awarded Rodriguez other property which could provide funds to pay the temporary

spousal support and attorney’s fees.

       Rodriguez also claims that his appeal should not be dismissed because he intends to

appeal the temporary orders as permitted by our opinion in Bowers v. Bowers, --- S.W.3d ---, No.

08-13-00346-CV, 2016 WL 1403227, at *10 (Tex.App.--El Paso April 8, 2016, no pet.). In

Bowers, we observed that several of our sister courts have read Section 6.709(b) of the Family

Code as vesting the appellate courts with the power to review the validity of ancillary Section

6.709 temporary orders concurrent with the underlying appeal from a final divorce decree. Id.,

citing Halleman v. Halleman, 379 S.W.3d 443, 455 (Tex.App.--Fort Worth 2012, no pet.); In re

Merriam, 228 S.W.3d 413, 416 (Tex.App.--Beaumont 2007, orig. proceeding); In re Marriage of

Edwards, No. 06–12–00016–CV, 2012 WL 4503413, at *10 n.28 (Tex.App.--Texarkana Oct. 2,

2012, no pet.)(mem. op.). Other courts have held that mandamus is the exclusive remedy. See

In re Garza, 153 S.W.3d 97, 100 (Tex.App.--San Antonio 2004, orig. proceeding). Our holding

in Bowers has limited precedential value in this case because Bowers was a transfer case, and we

were applying the precedent of the transferring court as we are required to do by Rule 41.3.

TEX.R.APP.P. 41.3. Even if we assume for the sake of argument that Rodriguez has a right to

challenge the temporary orders in this appeal, the mere existence of jurisdiction does not mean

that Rodriguez cannot forfeit the right to appeal the temporary orders by his conduct. It is

undisputed that Rodriguez has not made any payments required by the temporary orders, and his

only excuses are that he cannot obtain the funds from the TSP and he does not agree with the



                                             -4-
temporary orders. We are unaware of any law which permits a party to ignore temporary orders

simply because he disagrees with the order and intends to appeal it.

       Even though this appeal has been pending for ten months and the temporary orders have

been in place for approximately nine months, Rodriguez has not made a single payment ordered

by the trial court. The evidence indicates that Rodriguez did not attempt to negotiate with the

TSP administrator until after Borrego filed her motion to dismiss the appeal in June 2016, more

than six months after the first spousal support payment was due. The Court has been patient with

Rodriguez and has given him every opportunity to comply with the temporary orders entered for

the protection of Borrego during the pendency of the appeal, but he has failed to do so.

Accordingly, we deny Rodriguez’s motions to modify the temporary orders and to reconsider our

order that the appeal would be dismissed if he failed to comply with the temporary orders.

Finding that Rodriguez has failed to comply with a court order, we dismiss the appeal. See

TEX.R.APP.P. 42.3(c); Byrnes, 440 S.W.3d at 690; Griffith, No. 03-06-00722-CV.



September 23, 2016
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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