                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-11-00238-CV

AIMEE DELYN HALLEMAN                              APPELLANT

                                     V.

EDWARD CHARLES HALLEMAN                            APPELLEE

                                 ------------

        FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                 ------------

                                   AND


                           NO. 02-11-00259-CV


IN RE AIMEE DELYN HALLEMAN                          RELATOR


                                 ------------

                        ORIGINAL PROCEEDING

                                 ------------

                     MEMORANDUM OPINION1
                                 ------------
    1
     See Tex. R. App. P. 47.4.
                                  I.   Introduction

       In three issues in her petition for writ of mandamus in cause number 02-

11-00259-CV, Relator Aimee Delyn Halleman asks this court for relief from

Respondent the Honorable Carmen Rivera-Worley’s temporary order requiring

her to pay $95,000 into the trial court’s registry for Real Party in Interest (RPI)

Edward Charles Halleman’s attorney’s fees on appeal. We conditionally grant

the writ of mandamus, directing Respondent to modify her order. We dismiss the

appeal of the same order, in cause number 02-11-00238-CV, for want of

jurisdiction.

                    II.     Factual and Procedural Background

       The underlying lawsuit is a divorce; Respondent signed the divorce decree

on April 29, 2011, awarding, among other things, the exclusive right to designate

the parties’ minor child’s primary residence to RPI and a $50,000 judgment for

RPI against Relator ―for reasonable and necessary attorney’s fees incurred by

him in obtaining orders pertaining to the child the subject of this suit.‖ Relator

filed a motion for new trial on May 26, 2011, and filed her notice of appeal of the

trial court’s judgment on May 27, 2011, in cause number 02-11-00184-CV, which

is still pending in this court.

A. Temporary Orders—Background

       On June 9, 2011, RPI requested a temporary order pending appeal

―requiring payment of reasonable attorney’s fees and expenses to [him],

including but not limited to the payment of interim attorney’s fees pending the

                                         2
appeal.‖ He requested the order under both family code sections 6.709 and

109.001.   See Tex. Fam. Code Ann. § 6.709 (West 2006), § 109.001 (West

2008). On June 15, 2011, Respondent held a hearing on RPI’s motion.

      At the June 15, 2011 hearing, RPI called his appellate counsel to testify

about his estimated reasonable and necessary attorney’s fees for each stage of

the appeal, from defending against the motion for new trial to filing a brief in the

Texas Supreme Court. RPI then testified that he was unemployed when the trial

court addressed the parties’ marital property division in December 2010 and that

he remained unemployed. RPI also testified that he had not received any of the

$50,000 Respondent had awarded to him in the divorce decree and that his

family helped him pay his bills.

      Relator testified that her annual salary as a human resources generalist

was $42,000 and her net monthly income was $2,207.02 after subtracting taxes,

child support ($552 monthly), and the child’s monthly health insurance ($100).

Her monthly bills totaled $2,390, and she owed $8,000 on her credit card, in

addition to the $50,000 judgment entered against her by Respondent in favor of

RPI. Her assets included her 401(k) and her personal items awarded to her in

the divorce.    Relator stated that, based on her net monthly income and

expenses, in addition to the debts divided in the divorce, she did not have the

ability to pay the $50,000 judgment awarded to RPI for attorney’s fees.

      On cross-examination, Relator agreed that she still worked for her

mother’s company but that her mother, the company’s president, did not have

                                         3
any influence over her salary. Relator also said that she lived alone in a home

paid for and owned by her mother and that she had sold her car after the divorce

and now drove her mother’s car.       Relator stated that her mother had paid

Relator’s appellate attorneys a retainer of approximately $25,000 and that her

mother would pay for the other costs of her appeal but that she had to pay her

mother back.

      On June 17, 2011, Respondent ordered Relator to pay $95,000 into the

court’s registry by July 17, 2011, for RPI’s attorney’s fees on appeal. Relator

then filed a notice of appeal from Respondent’s order, in cause number 02-11-

00238-CV, and a motion to suspend temporary orders pending appeal or to set a

supersedeas bond for the order. Respondent held a hearing on the motion to

suspend temporary orders pending appeal on July 8, 2011.

      At the July 8, 2011 hearing, Relator again testified that her net monthly

after-tax income was $2,859.02 and that she had to pay $552 each month in

child support and $100 each month for the child’s health insurance. Deducting

child support and the child’s insurance left her with $2,207.02 as her net monthly

income, and her approximate monthly living expenses—electricity bill, groceries,

transportation, cable bill, water bill, credit card payment, items for the child,

clothing, house maintenance, and rent—totaled $2,390 per month.

      Relator testified that while her mother was the president of the company

Relator worked for, her mother worked for the CEO, and Relator worked directly

for the director of human resources, so her mother had ―no control whatsoever‖

                                        4
over Relator’s compensation or her employment at the company. Relator also

said that her mother loaned her the money to pay her appellate attorneys’

retainer, that she had been asked to pay her mother back ―as much as [she]

possibly can,‖ and that her mother’s expectation was that Relator would pay her

back.       Respondent denied Relator’s motion to suspend temporary orders

pending appeal or to set supersedeas bond. Relator then filed her petition for

writ of mandamus, a request for temporary emergency relief, and a ―motion for

emergency relief ancillary to appeal from temporary orders pending appeal.‖2

B. Temporary Orders—Terms

        In its June 17, 2011 order, Respondent set out seven different items

conditioning various amounts of money to be remitted to either RPI or Relator in

the event of various occurrences:

      1.     $15,000 from Relator to RPI’s attorney if her motion for new trial is
resolved through court hearings and litigation.3

       2.  $50,000 to RPI from the registry if RPI files a brief in the court of
appeals and the court of appeals renders an opinion affirming in whole or in part
the judgment rendered by the trial court.

       3.    $50,000 to Relator from the registry if RPI fails to file a brief in the
court of appeals and the court of appeals renders an opinion reversing the trial
court’s judgment.


        2
      This court’s order granting the stay in the mandamus proceeding
acknowledges that the motion in the appeal requests the same relief.
        3
       Both parties waived a hearing on Relator’s motion for new trial; this
$15,000 is separate from the $95,000 ordered deposited into the court’s registry
and is not part of the issue under review.

                                         5
       4.     $10,000 to RPI from the registry if the Texas Supreme Court denies
a petition for review filed by Relator and RPI files a reply pursuant to a request by
the supreme court.

      5.    $10,000 to Relator from the registry if the Texas Supreme Court
grants her petition for review.

      6.     $35,000 to RPI from the registry if RPI files a brief in the supreme
court pursuant to a request for full briefing and renders an opinion affirming in
whole or in part the judgment of the court of appeals.

      7.     $35,000 to Relator from the registry if RPI fails to file a brief in the
supreme court despite a request for full briefing and the supreme court renders
an opinion reversing the court of appeals’s judgment.

                                  III.   Analysis

      In her second issue, Relator asks us to allow her to supersede the June

17, 2011 order and asks us what bond amount should be set in light of her

negative net worth. In her third issue, she asks us to conclude that Respondent

abused her discretion by ordering her to pay $95,000 in RPI’s attorney’s fees on

appeal and to prepay that amount into the court’s registry and requests that we

set aside the order.4

A. Standard of Review and Applicable Law

      Mandamus is proper to correct a clear abuse of discretion when there is no

adequate remedy by appeal. CMH Homes v. Perez, 340 S.W.3d 444, 452–53

(Tex. 2011) (stating that it is the court’s practice, when confronted with parallel



      4
       In her first issue, Relator asks for temporary emergency relief to stay the
order during the pendency of this proceeding. Because we have already granted
temporary emergency relief, we need not further address Relator’s first issue.

                                         6
mandamus and appeal proceedings, to consolidate the two proceedings and

render a decision disposing of both simultaneously).

      Under family code section 6.709, the trial court can render a temporary

order ―necessary for the preservation of the property and for the protection of the

parties during the appeal, including an order to: . . . (2) require the payment of

reasonable attorney’s fees and expenses.‖ Tex. Fam. Code Ann. § 6.709(a)(2).

Family code section 109.001 contains similar language but applies ―to preserve

and protect the safety and welfare of the child during the pendency of the appeal

as the court may deem necessary and equitable‖; the statute also includes a

provision stating that a temporary order under section 109.001 is not subject to

interlocutory appeal. Id. § 109.001(a)(5),(c). It also seems that a temporary

order under section 6.709 may not be subject to interlocutory appeal either,

although there is no corresponding statutory provision prohibiting it. See In re

Merriam, 228 S.W.3d 413, 414, 416 (Tex. App.—Beaumont 2007, orig.

proceeding) (construing petition as brought under section 6.709 because no

minor children were involved, denying petition because there was an adequate

remedy by appeal, and noting the circumstances under which mandamus relief

would have been available under section 6.709); see also Marcus v. Smith, 313

S.W.3d 408, 416 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (stating

that the court lacked jurisdiction over a direct appeal of award of appellate

attorney’s fees under section 109.001).     Therefore, we dismiss the appeal in

cause number 02-11-00238-CV.

                                        7
B. Orders

      RPI testified that he was unemployed in December 2010 and was still

unemployed at the time of the first hearing in June 2011 and that his family

helped him pay his bills. Therefore, Respondent had the discretion to issue a

temporary order ―necessary for the . . . protection of the parties during the

appeal,‖ which includes requiring the payment of reasonable attorney’s fees and

expenses. See Tex. Fam. Code Ann. § 6.709(a)(2). Further, in the divorce

decree, Respondent gave RPI the exclusive right to designate the parties’ minor

child’s primary residence, as well as a $50,000 judgment against Relator ―for

reasonable and necessary attorney’s fees incurred by him in obtaining orders

pertaining to the child the subject of this suit,‖ which Relator had not paid as of

the June 15 hearing. Therefore, Respondent also had the discretion to issue a

temporary order ―necessary to preserve and protect the safety and welfare of the

child during the pendency of the appeal,‖ which includes requiring payment of

reasonable attorney’s fees and expenses. See id. § 109.001(a)(5); Marcus, 313

S.W.3d at 418 (stating that under section 109.001, evidence is sufficient to justify

appellate attorney’s fees to preserve and protect the safety and welfare of the

child when the recipient of the fees has primary responsibility for the child and for

the care, upkeep of, and debt on the child’s principal home). Thus, we must next

examine whether the mechanism for paying these fees constitutes an abuse of

discretion.



                                         8
      Respondent based the monetary amounts set out in the terms of the order

on RPI’s appellate counsel’s testimony at the June 15 hearing. However, at the

June 15 hearing, and again at the July 8 hearing, Respondent also heard Relator

testify that her income, as compared to her expenses, fell well below the ability to

pay $95,000 into the trial court’s registry. Although we defer to the trial court’s

determination of witness credibility, nothing in the record indicates that Relator

has the ability to pay this amount or any other.       See Walker v. Packer, 827

S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding) (stating that with respect to

resolution of factual issues, the reviewing court may not substitute its judgment

for that of the trial court, and that the relator must establish that the trial court

could reasonably have reached only one decision).           Compare Marcus, 313

S.W.3d at 418 (denying petition for writ of mandamus when record did not show

that the trial court acted arbitrarily or unreasonably by determining that Smith’s

award of appellate attorney’s fees during the pendency of appeal would help

preserve the welfare of the child), with Herschberg v. Herschberg, 994 S.W.2d

273, 275, 279 (Tex. App.—Corpus Christi 1999, orig. proceeding) (granting

conditional mandamus relief and ordering trial court to vacate its order for

attorney’s fees when the evidence at the hearing showed that the amount

payable to the ex-wife was beyond ex-husband’s ability to pay). Therefore, we

conclude that Respondent abused her discretion by ordering Relator to prepay

$95,000 into the trial court’s registry, and we sustain part of Relator’s third issue.

Cf. In re Pirelli Tire, 247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding) (stating

                                          9
that mandamus will not lie when the record contains legally sufficient evidence

both against and in support of the trial court’s decision).

      Mandamus relief is available from a section 6.709 order only when the

order constitutes an abuse of discretion and the pending appeal provides an

inadequate remedy. Merriam, 228 S.W.3d at 416. In Merriam, the ex-husband

in a divorce appeal brought a petition for writ of mandamus regarding an order

requiring him to pay his ex-wife’s attorney’s fees in the event his appeal was

unsuccessful. Id. at 414. The Beaumont court concluded that mandamus relief

should be denied because the ex-husband had an adequate remedy by appeal

when the order provided that attorney’s fees were payable ―on or before thirty

days from the date of either (1) an opinion from the Court of Appeals which

affirms the trial court’s judgment or (2) an order overruling the last timely filed

motion for rehearing, if any whichever is later.‖ Id. at 414, 416. Because the

order did not require the ex-husband to pay the attorney’s fees until the

conclusion of an unsuccessful appeal, he had an adequate remedy by appeal;

the court did not address whether the trial court abused its discretion by ordering

him to pay the attorney’s fees. Id. at 416; cf. Marcus, 313 S.W.3d at 418 (―An

unconditional award of appellant’s appellate attorney’s fees is improper, and a

trial court must condition the award upon the appellant’s unsuccessful appeal.‖).

      Here, Respondent required Relator to prepay $95,000 into the court’s

registry before this court renders judgment in the appeal. Because the record

reflects that Relator does not have the funds available to prepay $95,000 into the

                                         10
trial court’s registry, and, thus, that the trial court’s order would, in effect,

preclude her right to appeal, we conclude that she does not have an adequate

remedy by appeal.5 See In re Ford Motor Co., 988 S.W.2d 714, 721, 723 (Tex.

1998) (orig. proceeding) (concluding that the trial court abused its discretion by

awarding appellate attorney’s fees without conditioning the fee award on the

outcome of the appellate court proceedings and stating that appeal is not an

adequate remedy when a court imposes a monetary penalty on a party’s

prospective exercise of its legal rights); Braden v. Downey, 811 S.W.2d 922, 929

(Tex. 1991) (orig. proceeding) (noting the chilling effect monetary sanctions can

have on a party’s continuation of litigation); cf. Merriam, 228 S.W.3d at 414, 416.

      Because the attorney’s fees will not be payable to RPI, if at all, until this

court renders a judgment in the appeal, we conditionally grant the writ of

mandamus for Respondent to vacate the provisions in the current order requiring

the immediate deposit of $95,000 into the trial court’s registry and allocating

funds to Relator and RPI from that deposit for various stages of the appeal, and

to substitute the following conditional language:

      5
        Further, under item two, of the order, RPI will be entitled to $50,000 of the
$95,000 if he files a brief in this court and we affirm in whole or in part
Respondent’s judgment, and under item three, Relator will be entitled to a return
of the $50,000 if RPI does not file a brief in this court and we reverse
Respondent’s judgment. However, it seems unlikely that either party will contest
the portion of Respondent’s judgment granting the divorce, and the resulting
affirmance of that portion of the judgment will commit Relator to pay $50,000 if
RPI files a brief. Even if he does not file a brief, Relator will still not be entitled to
a return of $50,000 of the $95,000 if this court affirms the portion of the judgment
granting the divorce.

                                           11
      Edward Charles Halleman will be entitled to $50,000 upon issuance
      of the mandate in connection with the appeal if he files a brief in the
      court of appeals and the court of appeals affirms the trial court’s
      entire judgment. Further, he will be entitled to $10,000 following the
      Texas Supreme Court’s final judgment denying a petition for review
      filed by Aimee Delyn Halleman in connection with the appeal if
      Edward Charles Halleman files a reply to Aimee Delyn Halleman’s
      petition for review pursuant to a request by the supreme court.
      Edward Charles Halleman will be entitled to $35,000 following the
      rendition of judgment by the Texas Supreme Court if he files a brief
      pursuant to the supreme court’s request for full briefing and the
      supreme court renders an opinion affirming the court of appeals’s
      judgment in whole.

See, e.g., Keith v. Keith, 221 S.W.3d 156, 171–72 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (modifying judgment to make an award of appellate

attorney’s fees contingent upon the receiving party’s success on appeal).

      In short, RPI will only be entitled to conditional appellate attorney’s fees,

and Relator will not be required to deposit $95,000 into the court’s registry in

order to continue with her appeal. See In re Garza, 153 S.W.3d 97, 99 (Tex.

App.—San Antonio 2004, orig. proceeding); Hughes v. Habitat Apartments, 828

S.W.2d 794, 795 (Tex. App.—Dallas 1992, no writ). We do not reach Relator’s

second issue. See Tex. R. App. P. 47.1.




                                        12
                                IV.    Conclusion

      Having sustained Relator’s third issue in part, we conditionally grant

mandamus relief, and we dismiss the appeal in cause number 02-11-00238-CV

for want of jurisdiction. We lift the July 18, 2011 stay on the order as modified.




                                                    BOB MCCOY
                                                    JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: November 3, 2011




                                         13
