In re Sue Walston--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00259-CV

In re Sue Walston

Original Proceeding

MEMORANDUM Opinion

Petition for Writ of Mandamus

Subsequent to the property division in connection with her divorce decree, Sue Walston filed various post-trial motions. Shortly before the hearing scheduled on those post-trial motions, the real party in interest, Larry Walston, filed a Petition for Enforcement of Property Division and scheduled a hearing at the same time as the hearing previously scheduled by Sue to hear her motions. Sue brought this original proceeding to prevent the trial court from hearing the Petition for Enforcement of Property Division as part of the original divorce case, and in particular, from hearing it at the same time as the hearing on her post-trial motions because she had not been served by citation. We requested a response to Sue s Petition for Extraordinary Relief and granted emergency relief as follows:

To the extent that there are any proceedings to be had relating to Sue Walston in Cause No. 92-3224-1 or on Larry Walston s Petition for Enforcement of Property Division, on June 30, 2005 at 1:30 p.m., such proceedings are hereby stayed until further order of this Court.

A hearing was held on June 30, 2005 purportedly on Sue s post-trial motions, the rulings on which are not relevant at this juncture. We have been provided a certified copy of that proceeding held before a visiting judge, the Honorable Donald Koons. Notwithstanding this Court s Order Regarding Temporary Relief, the transcript is filled with discussion of the court in which to file, the proper method of service for filing, and the relief sought by Larry in his Petition for Enforcement of Property Division.

Based upon the statements made in Larry s response to Sue s petition and the statements of Larry s counsel at the hearing, Larry concedes that the Petition for Enforcement of Property Division not only had the wrong cause number for the original divorce proceeding, but in fact must be filed as a separate suit in the same court, not in the original case for dissolution of the marriage, Case Number 92-3724-1.

Based upon the foregoing, we grant the writ.

Motion for Sanctions

Sue also sought sanctions against Larry and his attorneys. First, the error regarding the case number appears to have been entirely inadvertent on the part of counsel. However, there is no dispute that under the Family Code the Petition for Enforcement of Property Division must be filed in a new and separate proceeding in the same court. See Tex. Fam. Code Ann. 9.001(a) & (b) (Vernon 1998). Because we are issuing the writ of mandamus, Sue will be entitled as part of the judgment to recover her court costs, including the filing fee and cost of the reporter s record. But in addition to her costs, Sue wants sanctions.

We are unable to award such sanctions in this proceeding. Rule 45 provides that we may award damages for a frivolous appeal. Tex. R. App. P. 45. This is not an appeal, but rather an original proceeding. Thus, technically Rule 45 does not provide authority for a sanction that we could impose. We note, however, that in determining whether to award damages under Rule 45: The court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals. Tex. Rule App. P. 45. The only logical construction of other papers is other papers filed in the appeal in which sanctions are being sought or considered. Although not applicable to original proceedings, we do find this provision to be instructive in the context of our inherent authority to manage and control our docket and prevent parties from taking frivolous positions in connection with matters in the trial court that may cause a party to have to bring an original proceeding.

The record, briefs, and other papers filed in this proceeding do not reflect that the action taken by Larry is frivolous; in fact, it indicates that the Petition for Enforcement of Property Division may be the only method available for Larry to obtain a clear title to an airplane. From the record on file in this proceeding and Larry s response, the Petition for Enforcement of Property Division has now been pursued by Larry as a separate proceeding under the Family Code and was merely pursued originally in the wrong manner at the trial court level. Accordingly, to the extent that Sue seeks sanctions for Larry s having filed the Petition for Enforcement of Property Division in the wrong proceeding and his efforts to have the merits thereof considered at the time Sue s post-trial motions were going to be considered, we do not believe that upon this record sanctions are appropriate.

Conclusion

The petition for writ of mandamus prohibiting the trial court from considering any matter relating to the Petition for Enforcement of Property Division as part of Case Number 92-3724-1, styled In the Matter of the Marriage of Sue Walston and Larry Walston or as part of Case Number 92-3224-1, styled In re Thompson is granted. All other relief requested in the Petition is denied, and the stay previously issued by this Court is lifted.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Writ granted

Stay lifted

Opinion delivered and filed October 26, 2005

[CV06]