In Re Brian Kenefick--Appeal from 308th District Court of Harris County

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part, and Majority and Concurring Memorandum Opinions filed August 19, 2008

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part, and Majority and Concurring Memorandum Opinions filed August 19, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00203-CV

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IN RE BRIAN KENEFICK, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

C O N C U R R I N G M E M O R A N D U M O P I N I O N

I respectfully concur with the court=s disposition of Kenefick=s mandamus petition, though I do not join the majority=s analysis as to the clarification order.

In its clarification order, the trial court changed the unambiguous formula used in the divorce decree to calculate the dividend. Therefore, as the majority concludes, the clarification order is void and mandamus relief should be conditionally granted as to this order. The majority, however, also states that the divorce decree is unambiguous regarding the award of the dividend. There is no need to address whether this part of the divorce decree is unambiguous.

The parties= divorce decree has been final by appeal for more than four years. No party made a direct attack on the decree, and any such attack at this point would be untimely. Nonetheless, the trial court may render orders to assist in the implementation of or to clarify the decree. See Tex. Fam. Code Ann. '' 9.007, 9.008 (Vernon 2006). The trial court, however, may not make a substantive change to the divorce decree. See Tex. Fam. Code Ann. ' 9.007(b). Under the unambiguous language of the divorce decree, the monthly dividend amount is equal to half of KCO=s monthly net cash income, but no more than $3,000. Under the clarification order, each party receives a monthly dividend equal to $3,000 of KCO=s net cash income, regardless of the amount of monthly net cash income. Under the unambiguous language of the divorce decree, an annual dividend Amay be used to distribute additional surplus net cash income.@ However, in its clarification order, the trial court added a provision requiring that some undistributed net cash income from KCO be distributed to Kenefick and Irwin at the end of the calendar year. Therefore, the trial court exceeded its authority in rendering the February, 14, 2008 order, and this order is void. See In re A.C.B., 103 S.W.3d 570, 577B78 (Tex. App.CSan Antonio 2003, no pet.). For this reason, mandamus relief should be conditionally granted as to the clarification order.[1]

In an obiter dictum, the majority states that the divorce decree is unambiguous with regard to the award of the KCO dividend. It is not necessary for this court to address whether this language is unambiguous. There well may be more than one reasonable interpretation of this part of the decree, i.e., whether the trial court ordered Kenefick to cause KCO to pay any dividend or to take all steps within his power to cause KCO to pay such a dividend. This court need not decide today if this part of the decree regarding the award of the KCO dividend is unambiguous to conditionally grant mandamus relief as to the clarification order. The decree is unambiguous as to the formula for calculating the dividend, and mandamus relief is appropriate because in the clarification order, the trial court changed this unambiguous language.

/s/ Kem Thompson Frost

Justice

Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part, and Majority and Concurring Memorandum Opinions filed August 19, 2008.

Panel consists of Justices Fowler, Frost, and Seymore. (Seymore, J., majority).

[1] The majority correctly determines that mandamus relief should not be granted as to the order compelling discovery.