                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-11-00220-CV


                   IN THE MATTER OF THE MARRIAGE OF
              MELISSA LEA GUNN EVERSE AND JOHANNES EVERSE


                      On Appeal from the County Court at Law No. 3
                                  Lubbock County, Texas
             Trial Court No. 2009-549,549, Honorable Judy C. Parker, Presiding

                                      July 25, 2013

                   ON MOTION FOR TEMPORARY RELIEF
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      On June 18, 2013, the Court issued an opinion and judgment reversing the trial

court’s judgment concerning division of marital property and remanding the case.

Appellee Melissa Lea Gunn Everse has, on July 23, filed a motion advising us that

appellant Johannes Everse died on July 10. Her motion also seeks temporary relief

pursuant to Texas Rule of Appellate Procedure 52.10(a), in the form of a temporary

restraining order to preserve the marital property of the parties until the trial court

addresses the remand. See Tex. R. App. P. 52.10(a).
      Making reference to a pending probate proceeding in Lubbock County initiated

by Johanne Everse’s son, Stephen Everse, Lea’s motion expresses concern that marital

property may be sold, destroyed or distributed.       She requests a temporary order

restraining herself and anyone acting on behalf of her former husband from certain

actions until the trial court can address the remanded issues.


      As noted, our opinion and judgment in the direct appeal of the divorce decree

issued on June 18. No motion for rehearing or en banc reconsideration was filed. And,

as noted, by our judgment we remanded the case to the trial court.


      Nor is there pending before us an original proceeding. Lea’s citation of appellate

rule 52.10 as authority for the requested temporary relief is thus misplaced. See In re

Kelleher, 999 S.W.2d 51, 52 (Tex.App.—Amarillo 1999, orig. proceeding) (before grant

of temporary relief under rule 52.10, original proceeding must first be commenced).


      For both those reasons, the motion for temporary relief is denied.


                                         Per Curiam




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