Susan Cohen Mandell v. Harold Lance Mandell

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00032-CV

SUSAN COHEN MANDELL APPELLANT

V.

HAROLD LANCE MANDELL APPELLEE

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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Susan Cohen Mandell appeals the trial court’s November 12,

2008 order granting Appellee Harold Lance Mandell’s postjudgment motion to

enforce the division of the marital estate provided in the couple’s April 8, 2008

divorce decree. The notice of appeal from the divorce decree was filed in this

court on July 7, 2008, we issued our opinion on April 15, 2010, and mandate

1 See Tex. R. App. P. 47.4. issued November 16, 2010.2 The appeal from the divorce decree was therefore

pending when the trial court rendered its enforcement order.

Section 9.007(c) of the family code provides that the power of the trial

court “to render further orders to assist in the implementation of or to clarify the

property division is abated while an appellate proceeding is pending.” 3

Accordingly, this court requested that the parties file supplemental letter briefs

addressing the impact of this statute on this case.

As both parties agree, under the statute, the trial court had no power to

render the November 12, 2008 enforcement order because the appeal from the

divorce decree was then pending.4 Accordingly, we vacate the trial court’s

November 12, 2008 enforcement order, and, because mandate has now issued

in the appeal from the divorce decree, we remand this case to the trial court for

further proceedings.5

LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: December 16, 2010 2 Mandell v. Mandell, 310 S.W.3d 531 (Tex. App.—Fort Worth 2010, pet. denied). 3 Tex. Fam. Code Ann. § 9.007(c) (Vernon 2006). 4 See id.; In re Fischer-Stoker, 174 S.W.3d 268, 271 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (op. on reh’g). 5 See Tex. Fam. Code Ann. § 9.007(c); Fischer-Stoker, 174 S.W.3d at 271.