Opinion
No. 06-00-00081-CV.
Date Submitted: July 31, 2000.
Date Decided: August 2, 2000.
Appeal from the County Court at Law #3, Montgomery County, Texas, Trial Court No. 99-09-05464-CV.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Jack Townsend filed a restricted appeal from the judgment of divorce signed by the trial court on December 1, 1999. Townsend filed his Notice of Restricted Appeal on April 5, 2000. He contends that despite his failure to answer or appear at any hearing, the trial court erred by ordering a payment of maintenance because there were no pleadings or evidence to support the award, pursuant to Tex. Fam. Code Ann. § 8.002 (Vernon Supp. 2000).
The evidence shows that Jack Townsend and Carol Elkins-Townsend were married on September 5, 1986 and that Carol filed a petition for divorce on September 15, 1999. In that petition, she asked for a division of the marital estate, for temporary injunctions to preserve the property, and for a protective order. She also asked the court to award reasonable attorney's fees and to direct Jack to pay various taxes.
A direct attack on a judgment by a restricted appeal must (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. See Tex. Civ. Prac. Rem. Code Ann. § 51.013 (Vernon 1997); Tex.R.App.P. 30; DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex. 1991).
Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965). The only restriction on the scope of review is that the error must appear on the face of the record. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991). The face of the record, for purposes of review in a restricted appeal, consists of all the papers on file in the appeal, including the statement of facts. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269 (Tex. 1997); DSC Fin. Corp., 815 S.W.2d at 551.
The 1998 changes in the Rules of Appellate Procedure renamed a former writ of error appeal as a restricted appeal.
Our review is limited to the record as it existed before the trial court at the time the default judgment was rendered. Armstrong v. Minshew, 768 S.W.2d 883, 884 (Tex.App.-Dallas 1989, no writ); see also Gerdes v. Marion State Bank, 774 S.W.2d 63 (Tex.App.-San Antonio 1989, writ denied) (record cannot be changed after defaulting party has perfected appeal by writ of error); Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72 (Tex.App.-Waco 1997, writ denied). Unlike most types of judgments taken by default, however, in a suit for divorce the petition is not taken as confessed if the respondent does not file an answer. Tex. Fam. Code Ann. § 6.701 (Vernon 1998).
Jack Townsend contends that the allegations do not support an award of spousal maintenance under Chapter 8 of the Family Code. The court ordered Townsend to make two payments of $800 each, due on December 1, 1999 and January 1, 2000. Spousal maintenance is a form of support, and the petition for divorce requests that support be awarded as the court finds necessary and equitable. Thus, the allegations support the award.
Townsend further contends that the proof made at the hearing does not support the award. The trial court has broad discretion in making temporary orders for support and attorney's fees during the course of divorce proceedings, and the trial court's order will not be disturbed absent an abuse of that discretion. Herschberg v. Herschberg, 994 S.W.2d 273, 278 (Tex.App.-Corpus Christi 1999, no pet.); Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex.App.-San Antonio 1995, no writ).
There was testimony and evidence presented to the court showing that the parties had a lease on the marital residence ending in January 2000, that the petitioner lacked the income or resources to pay the lease amount and that they had been married for more than ten years. She testified that she lacked the earning capacity to meet this reasonable need. Tex. Fam. Code Ann. § 8.002 provides that maintenance is available if the duration of the marriage was over ten years and that the spouse seeking maintenance lacks sufficient property to provide minimum reasonable needs and clearly lacks earning capacity adequate to provide support for those needs. The requirements of Tex. Fam. Code Ann. § 8.002 were met, and error in this respect does not appear on the face of the record.
Townsend further contends that the judgment does not contain a percentage division of the community as stated by counsel at the hearing. The Texas Family Code does not require that the judgment set forth such a percentage. No error is shown.
Townsend also contends that there is insufficient evidence to support the award of $2,000 in interim attorney's fees during the pendency of the divorce.
Temporary orders under Tex. Fam. Code Ann. § 6.502 (Vernon 1998) are not appealable. Craft v. Craft, 580 S.W.2d 814, 815 (Tex. 1979) (citing to the predecessor statute). Mandamus is therefore the appropriate remedy to attack the issuance of temporary orders. See Little v. Daggett, 858 S.W.2d 368 (Tex. 1993); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex.App.-San Antonio 1997, writ denied); Post v. Garza, 867 S.W.2d 88, 89 (Tex.App.-Corpus Christi 1993, orig. proceeding); Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding).
The fees about which Jack Townsend now complains were not awarded in the divorce from which he now appeals. They were a subject of temporary orders entered by the trial court in September 1999. Townsend did not seek mandamus relief and may not now attack those temporary orders in an appeal from the divorce. The contention of error is overruled.
The judgment is affirmed.