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### MEMORANDUM OPI NIO N No. 04-10-00174- CV Kenne th Richard GRIF F ITH ,

Appellant
v. Martha H ightowe r GRIF F ITH ,

Appellee Fr om the County

Court at L aw, Me dina County , Texas Trial Court No. 09-01- 5052-CCL Honora ble Vivian Torr es, Judge Pre siding 

### I N T E R L O C U T O R Y 

### O P I N I O N O N 

### A P P E A L O F 

### O R D E R 

### S E T T I N G 

### S E C U R I T Y Opinion by : Steven C. Hilbig, Just ice Sitt ing: Catherine Stone, Chief Justice

Steven C. Hilbig, Just ice Marialy n Ba rnar d, J ustice Deliver ed and F iled: August 25, 2010 ORDER SETTI

NG AMOU

NT OF SECURI TY AF FIRMED Appellant Kenneth R ichar d Griff ith seeks review o f t he amount of security set by the t rial court to superse de the divorce decr ee and reque sts an order setting the amount require d to superse de the tempora

ry order s pendingappea l. The parties wer e divorce d November 30, 2009. The divorce decr ee divided the marital estate, which included two cl o s ely held bus inesses. The decr ee awar ded Kenneth a six ty -percent interest0 4
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in the businesses and awa rded Martha Hig htower Griff ith the rema ining interest. In addition, the decr ee c ontained provisions intended to safeguard Martha’s positi on as a minority interest owner, such as requiring a two-thirds vote to incur additional debt, issue addi t i o n al share s or owner ship interests, or file for bankruptc y . The decr ee require d Ken n et h t o amend the bylaws and corpor ate regul ations to ref

lect these provisions. The decr ee further g rants Kenne th an option to purcha se Martha’ s interest in the bus inesses for $220,000 afte r certain debt has been paid. On F ebrua ry 19, 2010, the trial court signe d temporar y order s pending appea l that require d Kenne th to return to Martha some of the persona l proper ty awa rded her in the decr ee and to take the actions require d by the dec ree reg ardingthe businesses. After Martha filed a motion to enfor ce the decr ee and the temporar y order s, Kenne th asked the trial court to set t h e amount of security require d to suspend enforceme nt of the decr ee and temporar y order s. On the day of the hearing on the motion to set security , Kenne th filed an aff idavit in which he states he has a neg ative net worth. Martha contested the aff idavit, but K enneth did not offe r either

the af fidavit or any

other e vidence of his net worth at the hearing. Martha asked the trial court to set security at t h e $ 2 2 0 , 0 0 0 value of her interest in the businesses plus the value of other proper ty awa rded her in the judgme nt. She testified at the hearing that the repla ceme nt cost of some of the items awa rded to her and listed in the decr ee and temporar y order s was betwee n thirty and thirty -five thousand dollars, and that she would discount the value by one-ha lf beca

use of their used condition. The trial court set the amount of security require d to suspend enfor ceme nt of the judgme nt at $220,000. The court denied Kenne th’s motion to superse de the tempora

ry order s.

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Kenne th soug ht revie w of the trial court’s order , reduction of the amount of security to $5,000, and an order that posting a bond in the amount set will superse de the temporar y order s as well as the divorce decr ee. We order ed a rec o rd and a response and issued an order staying enfor ceme nt of the dec ree and tempora ry order s pendingour re view. We r eview the trial court’s order setting the amount of security for abuse of discretion. See Isern v. Ninth Court of

Appeals , 925 S.W .2d 604, 606 (Tex.) (orig
. proce eding ) (per curiam), cert. denied sub nom. W

atson v. Isern , 519 U.S. 1042 (1996); G.M. Houser, Inc. v. Rodgers , 204 S.W .3d 836, 840 (Tex. App.—Dallas 2006, no pet.). W hen the judgme nt is for the re co very of an interest in proper ty , the trial court deter

mines the amount o f s ecurity with ref ere nce to the value of the proper ty
. T E X . R. A P P . P. 24.2 (a) (2); see Mudd v. Mudd, 665 S.W .2d 128, 131 (Tex. App.—San Antonio 1983, no pet.) (r ed ucing amount set by trial court to amount equal to value of persona l proper ty and cash awa

rded in decr ee, plus costs and one year ’s interest). In this case , the amount of
security set by the trial court is less than the value of the proper ty awa rded to Martha in the decr ee. Acc ording ly , we cannot s ay t h e t ri al court abused its discretion by setting the amount of security excessively

high. Kenne th asks this court to reduc e the amount of the security require d to superse de the judgme nt beca

use of the asser

tion in his aff

idavit that he has a neg ative net worth. Howeve r, Kenne th has not soug ht a reduc tion of the amount o f s ec u ri t y p ursuant to rule 24.2(b) in the trial court. Although Kenne th filed his a ffidavit of net worth at the superse deas hearing, Martha contested the aff idavit and Kenne th made no eff ort to prove its contents. Nor did he plead or attempt to prove that posting sec urity

in the amount of $220,000 is likely to cause him substantial economic har m.

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L astly , Kenne th asks the court to set a bond to suspend enforceme nt of the temporar y order s. See T E X . F A M . C O D E AN N . § 6.709(b) (Ve rnon 2006) (cour t of appea ls to set conditions for superse ding temporar

y order pending appea l in suit for dissoluti on of marriag e). We order the temporar y order s to be superse ded on the same conditions as the divorc e dec ree . I n co n clusion, we aff

irm the trial court’s order setting amount of superse deas bond at $220,000, and further order that upon posting of a sufficie nt bond, enfor ceme nt of both the divorce decr ee a nd the tempora

ry order s will be suspended.

PER C URIAM

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