Petition for Writ of Mandamus =
Conditionally=20
Granted in Part and Denied in Part, and Majority and Concurring =
Memorandum=20
Opinions filed August 19, 2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-08-00203-CV
____________
IN RE BRIAN =
KENEFICK,=20
Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
C O N C U=20
R R I N G M E M O R A N D U M O P I N I O=20
N
I respectfully concur =
with the=20
court=3Ds disposition of=20
Kenefick=3Ds mandamus petition, =
though I=20
do not join the majority=3Ds analysis as to the=20
clarification order.
In its =
clarification=20
order, the trial court changed the unambiguous formula used in the =
divorce=20
decree to calculate the dividend. Therefore, as the majority =
concludes, the clarification order is void and mandamus relief =
should be=20
conditionally granted as to this order. The majority, =
however, also=20
states that the divorce decree is unambiguous regarding the award =
of the=20
dividend. There is no need to address whether this part of =
the=20
divorce decree is unambiguous.
The =
parties=3D divorce decree has =
been final=20
by appeal for more than four years. No party made a direct =
attack on=20
the decree, and any such attack at this point would be =
untimely. =20
Nonetheless, the trial court may render orders to assist in the=20
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=20
to the divorce decree. See Tex. Fam. Code Ann. =
' 9.007(b). =
Under the=20
unambiguous language of the divorce decree, the monthly dividend =
amount is=20
equal to half of KCO=3Ds monthly net cash =
income, but=20
no more than $3,000. Under the clarification order, each =
party=20
receives a monthly dividend equal to $3,000 of KCO=3Ds net cash income, =
regardless=20
of the amount of monthly net cash income. Under the =
unambiguous=20
language of the divorce decree, an annual dividend Amay be used to =
distribute=20
additional surplus net cash income.@ However, in =
its=20
clarification order, the trial court added a provision requiring =
that some=20
undistributed net cash income from KCO be distributed to Kenefick =
and=20
Irwin at the end of the calendar year. Therefore, the trial =
court=20
exceeded its authority in rendering the February, 14, 2008 order, =
and this=20
order is void. See In re A.C.B., 103 S.W.3d =
570,=20
577B78 (Tex. =
App.CSan Antonio 2003, no=20
pet.). For this reason, mandamus relief should be =
conditionally=20
granted as to the clarification order.
In an obiter dictum, =
the=20
majority states that the divorce decree is unambiguous with regard =
to the=20
award of the KCO dividend. It is not necessary for this =
court to=20
address whether this language is unambiguous. There well may be =
more than=20
one reasonable interpretation of this part of the decree, i.e., =
whether=20
the trial court ordered Kenefick to cause KCO to pay any dividend =
or to=20
take all steps within his power to cause KCO to pay such a=20
dividend. This court need not decide today if this =
part of the=20
decree regarding the award of the KCO dividend is unambiguous to=20
conditionally grant mandamus relief as to the clarification =
order. =20
The decree is unambiguous as to the formula for calculating the =
dividend,=20
and mandamus relief is appropriate because in the clarification =
order, the=20
trial court changed this unambiguous language.
/s/ Kem=20
Thompson Frost
Justice
Petition for Writ of =
Mandamus=20
Conditionally Granted in Part and Denied in Part, and Majority and =
Concurring Memorandum Opinions filed August 19, 2008.
Panel consists of =
Justices=20
Fowler, Frost, and Seymore. (Seymore, J., =
majority).
=
The=20
majority correctly determines that mandamus relief should not be =
granted=20
as to the order compelling=20
discovery. |