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Devine v. Devine - No. 07-15-00126-CV, 2015 Tex. App. LEXIS 9458 (Tex. App. Sep. 2, 2015)

Rule:

An appellate court reviews trial court rulings pursuant to Tex. R. App. P. 24.4 under an abuse of discretion standard. A trial court abuses its discretion when it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case, or when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.

Facts:

A community property lake house was contained within Matthew and Vicki Devine’s agreed decree of divorce. According to the divorce decree, the property was to be listed for sale for a six-month period and if the property was not sold within that period, it was to be listed for another six-month period during which the parties were required to accept the highest offer made by a qualified buyer. These periods commenced as of the "date of listing." However, this phrase was not defined in the decree, and there was disagreement between the parties relating to what this phrase means. The trial court issued an order setting $225,500 as the amount of supersedeas that Matthew must post to avoid enforcement of the judgment during the pendency of the appeal.  Matthew filed a "Motion for Review of Order Setting Amount and Type of Security for Supersedeas Pursuant to Texas Rule of Appellate Procedure 24.4,"  questioning the order. Vicki did not filed a response to this motion. 

Issue:

Did the trial court abuse its discretion when it set an amount of supersedeas that Matthew must post to avoid enforcement of the judgment during the pendency of the appeal?

Answer:

Yes

Conclusion:

The Court of Appeals held that a trial court order that set an amount of supersedeas pursuant to Tex. R. App. P. 24.4 that Matthew had to post in order to avoid enforcement of the judgment during the pendency of his appeal from the parties' agreed divorce decree regarding the terms of a property sale was an abuse of discretion because the amount thereof was excessive under Tex. R. App. P. 24.2(a)(3), as it was based on a sale contract for the property that did not exist until months after the trial court's final judgment. The Court reversed the trial court's order setting the type and amount of security for supersedeas. Because there was insufficient evidence before the Court to set supersedeas in an amount that would adequately protect the wife against loss or damage that the appeal could cause, pursuant to Rule 24.4(d) a remand for that determination was warranted. The trial court was ordered o take evidence to determine the type and amount of security and to enter an appropriate order pertaining to the security that must be posted by Matthew.

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