Arthur F. Preston v. Stephanie Ann Dyer

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00439-CV ____________________

ARTHUR F. PRESTON, Appellant

V.

STEPHANIE ANN DYER, Appellee _______________________________________________________ ______________

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 09-02-01826-CV ________________________________________________________ _____________

MEMORANDUM OPINION

Arthur F. Preston periodically deposited funds into the registry of the trial

court under the terms of an agreement to supersede the judgment pending his

appeal of his divorce from Stephanie Ann Dyer. See Tex. R. App. P. 24.1(a)(1).

The trial court’s judgment, which included spousal support based on an arbitrator’s

award, was affirmed on appeal. See Preston v. Dyer, No. 09-11-00200-CV, 2012

WL 5960193, at *6 (Tex. App.—Beaumont Nov. 29, 2012, pet. denied) (mem.

op.). After the appellate mandate issued and the divorce decree became final, the

trial court signed an order releasing the funds in the registry of the court to Dyer.

Preston filed a notice of appeal. We questioned our jurisdiction and obtained

responses from the parties.

“In a civil case in which the judgment or amount in controversy exceeds

$250, exclusive of interest and costs, a person may take an appeal or writ of error

to the court of appeals from a final judgment of the district or county court.” Tex.

Civ. Prac. & Rem. Code Ann. § 51.012 (West Supp. 2013). “The usual writs and

orders aiding execution to collect a final money judgment are not, in general,

appealable orders.” Lovall v. Yen, No. 14-07-00770-CV, 2008 WL 361373, at *2

(Tex. App.—Houston [14th Dist.] Feb. 12, 2008, no pet. ) (mem. op.); but see In re

Levitas, No. 13-10-00345-CV, 2010 WL 2968189, at *3 n.2 (Tex. App.—Corpus

Christi July 27, 2010, orig. proceeding) (mem. op.) (recognizing that an order

concerning the value of the property’s rent or revenue during the pendency of the

appeal was an appealable order).

Preston contends he made periodic payments into the court’s registry in the

amount required by the judgment, without adjusting for offsets required by the

parties’ premarital agreement, but which were not incorporated into the arbitral

award or the divorce decree. Preston asserted that his deposits exceeded a cap

contained in the pre-marital agreement, but the divorce decree does not provide for

adjustments based upon Preston’s adjusted gross income for the years in which

periodic payments are required. The trial court’s order releasing funds concerns

only enforcement of the judgment. No further factual determination is necessary by

the trial court to determine who is entitled to the funds deposited under the terms of

the parties’ supersedeas agreement. Because the order is a ministerial order

incidental to our mandate, it is not appealable. See Lovall, 2008 WL 361373, at

*2. We dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.

________________________________ CHARLES KREGER Justice

Opinion Delivered December 12, 2013

Before McKeithen, C.J., Kreger and Horton, JJ.