### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00178
- CV

Andrew Morris , Appellant

v. Carrie Cecilia Veilleux , Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D - 1
- FM - 19
- 000995 , THE HONORABLE JAN SOIFER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Andrew Morris appeals from a final decree of divorce , alleging error in the trial
court ’ s order that he pay Carrie Cecilia Veilleux ’ s ap pellate attorneys ’ fees and in its division of the marital est ate. Neither party c hallenges the trial court ’ s disso lution of the marriage or any other portion of the decree. We wi ll affirm the trial court ’ s prop erty division but must vacate the trial court ’ s orde r that Morris pay Veilleu x ’ s appellate attorneys ’ fees.

BACKGROUND Thi s is the second appeal of the trial court ’ s disposition of issues presented in the se marriage dissolution proceedings. In the first appeal, Morris chal lenged the trial court ’ s

co nservatorship order that appointed Veilleux the joint managing conservator wi t h the exclusi ve right to establish the primary residence of their three children without geographic restrict ion

. In the first appeal, this Court affirme d the co nservatorship ord er. See Morr is v. Veilleu x ,2

No. 03

- 20

- 00385

- CV, 2021 WL 4341967, at * 6 (Tex

. App.

— Austin Sept. 24, 2021, no pet.) (mem. op.). Morris also asserted that the trial co urt had erred in its division of the marital property , speci fically b y including the v a lu e of a con dominium in making its just a nd right division of the est ate . Morr i s argued tha t the condom ini um was not part of the mari tal estate subject to the just and right division but, rather, belonged to his father. The trial court concluded that the e ntire value of the condomini um should be included in t he parties ’ community e s tate. In the first appeal, th is Court conclude d that the condominium was owned by Morris, Veilleux, and Morri s ’ s father and that the trial cou rt erred by including its total val ue as part of the community
estate

. Id. at * 8

. Because including only Morri s ’ s and Veilleux ’ s interest in the condominium in the valuation of the community estate would materially affect the tria l court ’ s just and right div ision, this Court d etermined th at the mischaracterization required the appellate court to remand the communi t y estate to the trial court for a just and right division of the pr operly characterized community property. Id. (citing McElwee v. McElw ee , 911 S.W.2d 182, 190 (Tex. App.

— Housto n [1st Dis t.] 1995, writ denied ). On remand, the tri al court si gned an o rder stating that the “ original division of the community pro perty as set out in the Fi nal Decree of Divorce filed with the Court on June 8, 2020, is JUST AND RIGHT , ” thereby confirmi n g that the

asse t s in the community estate be divided in the same manner as s e t for th in the court ’ s earlie r ju dgment. The trial court also awarded Veilleux appellate attorneys ’ fees associ ated with
Mor ris ’ s appeal of that judg ment. On appeal, Morris cha llenges both these portio ns of t he trial

cour t ’ s order.3 DISCUSSION
D ivision o

f Marital Estate In his second issue, Morris challenges the trial cour t ’ s division of the marital
estate. We review a trial court ’ s division of the marital estate for an ab us e of discretion , but th e trial court has broad discretion in making this divisi on. See Penick v. Penick , 783 S.W.2d 194, 198 (Tex. 1988) ; O ’ Carolan v. Hopper , 71 S.W.3d 529, 532 (T e x. App.

— Austin 2002, no pet.) ( O ’ Carolan I

). “ To constitute an abuse of di scretion, the property division must be manifestly unfair. ” O ’ Caro lan I , 71 S .W.3d at 532 (citing Mann v. Mann , 607 S.W.2 d 243, 245 (T ex. 1980)). “ On appeal, we presume that the trial court exercised this discretion proper ly and will

rever se the cause on ly where there is a cl e ar abuse of discretion. ” Ashr af v. Ashraf

, No. 03

- 11

- 0 0467, 2012 WL 1948347, at *7 (Tex. App.

— Austi n May 24, 2012, no pet.) (mem. op.) (citing Bell v. Bell , 513 S.W.2d 20, 22 (Tex. 1974) ). “ [T]he appellant bears the burden to show from the record tha t the division was so disp roportionate, and thus unfair, th a t it cons titutes an abuse of discretion. ” O ’ Carolan v. Hopper , 414 S.W.3d 288, 311 (Te x. App.

— Austin 2013, no pet.) ( O ’ Carolan II

); see Mu rff v. Murff

, 615 S.W.2d 696, 700 (Tex . 1981) (observi ng that

“ [m]athematical precision in dividing property in a di vorce is usually not possible ” and tha t

“ [w]ide latitu de and discretion rests in these trial court s and that discretion should only be dist urbed in the case of clear abuse ” ).

“ Under the a buse of discretion standard, a lack of legally or factually suffici ent evidence does not constitute an independent ground for asse rting error; instea d, it is a relevant factor in determining whether th e trial court abused its discretion. ” M athi s v. Mathis , No. 01

- 17

- 00449

- CV, 2018 WL 6613864, at *2 (T ex. App.

— Houston [1s t Dist.] Dec. 18, 2018, no pet.) (mem. op.) (citing Picke n s v . Pickens , 62 S.W.3d 212, 214 (Tex. App.

— Dallas 2001, pet.4

denied) ; accord O ’ Carolan I , 71 S.W.3d at 532

. “ When a s u fficiency review overlaps the abuse

of

- discretion standard , we engage in a two

- pronged inquiry: (1) whe ther the trial court had sufficient information to exercise it s discretion and (2) whether the trial court erred in its application of discretion. ” Math is , 2018 WL 6613864 , at *2 (citing Sandone v. Miller

- Sandone , 116 S.W.3d 204, 206 (Tex. App.

— El Paso 2003, no p et.) ). “ The traditional sufficiency rev iew

co mes into play under the first prong. ” Id.

In a divorce decree, a trial court must “ order a divi sion of the estate of the parties in a manner that the court deems just and ri g ht, having due regard for the righ ts of each party and any children of the marriage. ” T ex. Fam. Code § 7.001 ; see Bradshaw v. Bradshaw , 555 S.W.3d 539, 543 (Tex. 2018) (definin g “ jus t, ” “ right , ” and “ du e regard ” and describing abuse o f discretion standar d for reviewing trial court ’ s division of marital estate ) . The division must be equitable, but the trial court does not have to divi de the marital estate equally. Murff , 615 S.W .2d at 698

- 99

. If there is a reasonable basis for an unequal division of the property in the record, the trial court has not abuse d its discretion. See i d. ; O ’ Carolan I , 71 S.W.3d at 532 (explaining tha t trial court ’ s discretion is not unl imited and that there must be reasonab le basis for division). In exercising its discretio n , the trial court “ is empowered to use its legal knowledge and its human understanding and experience ” and “ has the opportunity to observe the parties on the witness stand, deter mine their credibility, [and ] evaluate their needs and potentials, both socia l a nd economic. ” Murff , 615 S.W.2d at 698

- 99 . The trial court may consider many fact ors , including the spouses ’ earning capacities, disparity of income and abilities , education, business opportunities, r elative phys ical condition, relative financial cond it i on, disparity of ages, size of separate estates, na ture of the property, and the benefits that the spouse who did not

cause th e breakup of the m arriage could have enjoyed had th e marriage continued. Id. “ The5

circumstances of each marriage dictate what f a ctors should be consid ered in division of the marital estate. ” Roberts v. Rober ts , 531 S.W. 3d 224, 232 (Tex. App.

— San Antonio 2017, pet. denied) (citing Youn g v. Young , 609 S.W .2d 758, 761 (Tex. 1980) ).

In the present case, th e marital assets had a t ot a l net value of $404,40 5. 93. The trial court award ed assets valued at $219,346.88 to Veilleux (54% of the marital estate) and $185,059.05 to Morris (46% of the marital estate). Morris complains on appeal that th is pr operty division co nstituted an abuse o f discretion. The l ion ’ s share of the additional value to Veilleux derives from the trial court ’ s division of the parties ’ real property . The marital estate included two piece s of real property: (1) the marital home , who se net value to the community es ta t e was $113,3 08.45 and (2) a condo minium tha t was jointly owned by Veilleux, Morris , and Morris ’ s father, whose net value to the community estate was $87,333.33. The trial court award ed the

m arital ho me to Veilleux and the community estate ’ s intere st in t h e condominium to Morris , resulting in Veilleux ’ s recei ving real property value d at $25,976.12 more tha n the real property awarded to Morris. We cannot conc lude tha t this const ituted an a buse of disc retion. Among the many factors the trial court may co ns i der in making a j ust and right division of the community estate i s the nature of the property b eing divided. Murff , 61 5 S.W.2d at 698

- 99

. Here there were two piece s of real prop erty. The trial court awar ded the mar i tal home to Veilleux and the

con dom ini um to Morris

. A reasonable b asis e xists for the trial court ’ s decision to award the condomin ium to M orris rather than to Veille ux

— one th ird of that p iece of real property was owned by Morris ’ s father. It w as re asonable for the tr ial court to award pro per ty in which Morri s ’ s fat her also had an interest to Morris r ather than to Veilleux

. The trial court also found that Veilleux cares for the parties ’ minor children “ the ove rwhelming majority of the ti me on her own in Arizona. ” Th is commit ment of time a nd money provides a reasonable basis for the trial6

court ’ s awarding Veilleux a slightly disproportiona te share of the community estate. Because the

recor d reflects that there is a rea sonable basis for the tr ial court ’ s une qual distrib ution of the property , w e cannot con clude th at the t rial court ’ s determination that the ordered property division is just and right consti tutes an abuse of it s broad discretion. O ’Carolan I , 71 S.W.3d
at 532

. W e overrule Morris ’ s second appellate issue.
Appe llate Attorneys ’ F e es

In his first issue, Morris challenges the trial court ’ s award of appellate at tor neys ’ fees to Veilleux related to the pre vious appeal of the trial court ’ s divorce decree. A f ter the tria l court si gned the di vorce de cree in June 2020 , Morris filed a n o tice of ap peal

. Veilleux then filed a motion requ esting tha t the court render a te mporary order requir ing Morris to pay her

“ rea sonable and necessary attorney ’ s fees an d expenses pending appeal ” as necessary to

“ preserve and protect the safety and welf ar e of the chil dren ” durin g the appeal. S ee Tex. Fam. Code § 109 .001 ( providing that , in suit affecting the parent

- child relationship , trial court may

ma ke any order necessary to p reserve and protect sa fety an d welfare of child during penden c y of appeal a s c ourt deems nec essary and equitable , includin g requiring paymen t of reasonable and necessary attorney s ’ fees and e xpenses). The trial court denied Veill e ux ’ s request for a temporary order pending appeal . In its order, the court stated tha t it “ maintain s p lenary power and r eserves the right to a ward att orney ’ s fees a f ter the ruling from the Court of Appeals. ” A f ter this Court remanded the case to the trial court , the trial cou rt signed an order awarding Veilleux appellate attorneys ’ fees o f $9 ,001.46. Th e court ’ s orde r sta tes its finding that “ it is ne cessary to

awa rd [Veilleux] her attorneys ’ fees rel ate d to the app e al to p reserve and protect the safety and welfare of the children. ” Thus, after the appeal had been disposed of, the trial court purporte d t o7

award attor ney s ’ fees to Ve illeu x on the ground that they we re necessary to “ preserve and prote ct the safety and welfare of the children

. ”

As an initial matter, we note that Texas Family Code section 109.001 permits the trial court to make any order n e cessary to pr eserve and protect the safety and welfare of chil dren during the pendenc

y of an ap

peal

. I d. § 109.001(a) . The s ta tu te identi fies the types of ord ers that might be necessary to do so, including appointing temporary conser vat ors fo r the childr en , requiring temporar y support of the child by a p arty, suspendin g the operation of the order or judgment being appe aled, or requir ing payment of rea sonable and necessary attorneys ’ fees and
expenses. Id. § 109.001(a)(1) , (2), (5), (6)

. The p lain purpos e of the statute is t o ensure that,

w hile the appea l is pending, the children ’ s safety and welfare is preserved and pr otected. An order awarding attorneys ’ fees after the appeal has been disposed of , and the trial court no longer retains juris diction, com es to o late to protect and preserve the children ’ s safet y and welfare during the appeal ’ s pendency and n o longer serves the purpose underpinning the statutory authority for a trial court to render a temporary order pending a ppeal.

The t r ial c ourt retains jurisdiction to conduct a hearing and sign a temporary order under sectio n 109.001 unt il the sixtieth d ay after the day any eli gible party has filed a n ot ice of appeal pursuant to the T exas Rules of Appellate Proced ure. See id . § 109.001 ( b

- 2) ; see also
I n re Jacquot , No. 14

- 21

- 00 022

- CV, 2021 WL 3924083, at *2 (Tex. App.

— Ho uston [14th Dist

. ] Sept. 2, 2021, no pet.) (mem. op.) (p er curiam )

. Thus, section 109.001(b

- 2) limit ed the time fram e within which the trial court c ould issue temporary orders in th e pr o ceeding on appeal to sixt y days from t he date Morris filed his notice of app eal. Th e cour t ’ s order challenged here was

s i gned more tha n a year after Morris filed his notice of appeal and , consequently, the trial court had lost jurisdicti on to award Veill e u x attorneys ’ f ees pursuan t to section 1 09.001

.8 On appeal, Veilleux a sserts that Morris is estopped from challengi n g the attorneys ’ fee award because he “ invited ” the trial court ’ s error b y himself requesting at the temporary orders hea ring that the tri a l court “ not award any attorne y ’ s fees a t this time, wa it for the appea l to co me back, see what the appellate court has to say ” and by , on remand, himself
reques ting that the tri al court award hi m his appellate attorneys ’ fees. Again, we read section 109

. 001 to provide that temporary orders are inten ded to preserve and protect the safety a nd welfare of the childr en dur ing the pend ency of the appeal, but not to award a ppellate attorneys ’ fees to a party after the appeal , and base d on the o utcome of , the ap p eal its elf. More to the point, however, the doctrine of “ inv ited error ” applies only to non

- j urisdictional defects. See, e.g. , Gillum v. Republic Health Corp. , 778 S.W. 2d 558, 562 (Tex. App.

— Dallas 1989, no writ ) ( party that co nsen ts to court ’ s action w a ive s all errors in the judgment except want of juri sdiction). Morris ’ s own conduct cannot be u sed as a ba sis on whi ch to confer on the trial court subject

matter jurisdic tion it does not o therwise have. B ecause the trial court did not retain jurisdiction
to award section 109 .001 attorneys ’ fees more tha n si xty days after Morris filed his notice of appeal, we sustain M orris ’ s first issue.

CON CLUSION

For the reasons stated in this opinion , we affirm the po rtion of the trial court ’ s order pertaining to th e divi sion of the marital es tate. We reverse the portion o f the trial court ’ s

or der awarding Veilleux $9,001.46 in appellat e attorneys ’ fees and vacate th at portion of the judgment

. In all other resp ects, the trial court ’ s decree o f divorce is affirme d.9 _________________________________ _________ Thomas J. Ba ker , Justice Before Justices Baker, Kelly, and Smith Affirmed in Par t , Vacated in Part File d: August 25, 2023