Opinion
13-22-00043-CV
09-28-2022
IN THE INTEREST OF J.H., C.H., J.H., AND N.H., CHILDREN
On appeal from the 105th District Court of Nueces County, Texas.
Before Justices Longoria, Hinojosa, and Silva
ORDER
PER CURIAM
Appellant Chris Holt, proceeding pro se, has filed a notice of appeal regarding an order requiring him to pay one-half of the attorney ad litem's fees in the underlying case. This cause is before the Court on its own motion regarding two issues: bankruptcy and jurisdiction. Appellant's opposing counsel has identified at least two pending bankruptcy proceedings involving appellant. Further, the order subject to review herein does not appear to be subject to appeal, and even if so, may have been rendered moot by subsequent events.
First, under the United States Bankruptcy Code, the filing of a bankruptcy petition automatically stays:
[T]he commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]11 U.S.C.A. § 362(a)(1). The automatic stay applies to other litigation even if the trial court or the parties to the other litigation did not learn of the bankruptcy prior to taking action against the debtor. Adeleye v. Driscal, 488 S.W.3d 498, 499 (Tex. App.-Houston [14th Dist.] 2016, no pet.); In re Small, 286 S.W.3d 525, 530 (Tex. App.-Houston [14th Dist.] 2009, orig. proceeding). Further, the stay applies to divorce proceedings to the extent they seek to determine the division of estate property. See 11 U.S.C.A § 362(b)(2)(A)(iv); Adeleye, 488 S.W.3d at 499. The stay abates any judicial proceeding against the debtor, and state courts lack jurisdiction over the debtor and his property until the stay is lifted or modified. See Adeleye, 488 S.W.3d at 499; In re Small, 286 S.W.3d at 530. Any action taken in violation of the stay is void. See York v. State, 373 S.W.3d 32, 39-40 (Tex. 2012); Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992) (order) (per curiam); Adeleye, 488 S.W.3d at 499; In re Small, 286 S.W.3d at 530. Because a judgment or decree entered in violation of the stay is void, it constitutes fundamental error that can be raised for the first time on appeal and can be raised sua sponte by the appellate court. See Adeleye, 488 S.W.3d at 499; Houston Pipeline Co. v. Bank of Am., N.A., 213 S.W.3d 418, 429 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Opposing counsel in this case has provided information indicating that appellant is involved in two separate bankruptcies that may have created an automatic stay preventing any proceedings in this case. However, because we cannot determine whether the existence of the automatic stay was explored in the trial court, questions remain regarding whether any alleged stay prohibited any part of the proceedings in this case. As the Texas Supreme Court has explained, "any limitations the automatic stay may have imposed on these proceedings cannot simply be hypothesized by the court of appeals sua sponte." Evans v. Unit 82 Joint Venture, 377 S.W.3d 694, 695 (Tex. 2012) (per curiam). "The parties should have . . . an opportunity to develop a record to support their positions and seek a ruling from the trial court, even if it should turn out that only the bankruptcy court can finally decide the issue." Id.; see Adeleye, 488 S.W.3d at 500.
Second, the order subject to review here required appellant to pay one-half of the attorney ad litem's fees. The order at issue does not appear consist of a final judgment or an otherwise appealable interlocutory order. Further, based on subsequent events, the trial court has determined that appellant is indigent, and accordingly, the trial court may have modified its order.
Given the foregoing, we abate the appeal and remand the case to the trial court for a determination regarding whether an automatic bankruptcy stay barred any part of the proceedings in this case. Upon remand, the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine whether an automatic bankruptcy stay barred any part of the proceedings in this case. The trial court shall also address whether a final judgment or other appealable order has been entered in this case, and whether the order subject to appeal has been modified in any respect.
The trial court shall cause a supplemental reporter's record to be prepared regarding this hearing. The trial court shall further prepare and file its findings and orders and cause them to be included in a supplemental clerk's record. The supplemental reporter's record and supplemental clerk's record shall be filed with the Clerk of this Court within thirty days from the date of this order.