## NO. 12

- 24

- 00003 -CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:
DANIEL LAROCK , RE L

ATOR § § § ORIGINAL PROCEEDING

MEMORANDUM OPINION PER CURIAM Daniel LaRock filed this original proceeding to challenge Responde nt’ s temporary order awarding temporary support to Real Party in Interest Daphne LaRock. 1 We deny the writ.

B ACKGROUND Th is proceeding arises out of a pending divorce betw een Daphne and Daniel . On August 24, 2023, Respondent held a temporary orders hearing. Subsequently, i n an August 30 letter order, Respondent granted temporary support as requested by Daphne. Specifica lly, accordin g to Daphne’ s request for relief, $79,000 was held in trust by Farmer ’ s Bank and from this amount, Daph n e sought ei ght months of temporary support at $4,000 per month, for a total of $32,000

. Her request showed a balance of $11,164

. Respon de nt granted this request. Daphne also sought temporary support of $5,000 per month going forward during the divorce suit ’s pendency. Respondent denied this request. Dani el filed this original proceeding on January 4, 2024.

1 Respondent i s the H onorab le James A. Payne, Jr., Judge of the 273rd District Court in Shelby County , Texas.2 S TA NDARD OF R EVIEW Man damus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P. , 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding)

. A writ of mandamus will issue only when the relator has no adequa te re medy by appeal and the trial court committe d a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)

. The re lat or has t he b urden of establishing both prer equisite s. In r e Fitzgerald , 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014, orig. proceeding.)

. I n determining whether the trial court ab used its discretion in resolving underlying factual matters or matters committed to the trial court ’ s discretion, we may not substitute our judgment for that of the trial court and may not disturb the trial court ’ s decision unless it is shown to be arbitra ry and u nreasonable. Walker v. Packer , 827 S.W.2d 833, 839 –40 (Tex. 1992) (orig. proceeding)

. Therefore, to show an abuse of discretion in those matters, the relator must establis h that the tr ial court could reasonably have reached only one decision and it did not do

so. Id

. at 840

. M andamus r eview of temporary orders in a suit for dissolution of marriage is proper bec au se those ord ers, other than an order appointing a receiver, are not subject to interlocutory appeal

. In re Doyle , No. 12 -19-00317- CV, 2020 WL 219236, at *1 (Tex. App.

— Tyler Jan. 15, 2020, orig. proceeding) (mem. op.) ; T EX

. F AM

. C ODE A NN . § 6.507 (West 2020).

E NTITLEMENT TO M ANDAMUS R ELIEF For two reasons, we conclude that Daniel is not entitled to mandamus relief under th e circumstances of this case

. First, Daniel failed to timely seek mandamus relief and failed to offer a justification fo r such delay. Mandamus is an extraordinary remedy and not an absolute right. See Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex. 1993)

. “Although mandamus is no t an equ itable remed y, its issuance is largely controlled by equitable principles.” Id

. “One such principle is that ‘equity aids the diligent and not those who slumber on their rights.’ ” Id . (quoting Callaha n v. Giles , 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) ). When the record fails to show that the relator acted di ligently to prot ect his rights, relief by mandamus is not available. See In re Hotze , 627 S.W.3d 642, 646 (Tex. 2020) (orig. proceeding)

. “ [U] nreasonable delay is calculated with re ference to the man damus petition ’ s filing, not the issue that precipitated the request for a writ.” In re Episcopal S ch ool of Dallas, Inc
. , 55 6 S.W.3d 347, 360 (Tex. App.

— Dallas 2017,3 orig. proceeding) ; see In re AAA Brothers Holdings, LLC , No. 12

- 23

- 0 021 0

- CV, 2023 WL 66319 52, at *4 (Tex. App.

— Tyler Oct. 11, 2023, orig. proceeding) (mem. op.)

.

“ An unexplained delay of fo ur months or more can con stitute laches and result in denial of mandamus relief

. ” In re Webber, L L C , No. 05

- 20

- 00564

- CV, 2020 WL 34962 79, at *1 (Tex. App.

— D allas June 29, 2020, orig. proceeding) (mem. op.)

. Here, Danie l waited just over four months to fi le a p etition for writ of mandamus challeng ing Respondent ’ s letter order. The record does not reveal a justification for this delay. See In re Am. Airlines, Inc. , 634 S.W.3d 38, 43 ( Tex. 2021) (per curiam) (orig. proce eding) ( “a relator wh o unduly or unreasonably delays filing a petition for mandamus relief may waiv e its right to suc h relief unless the delay is justified ” ); see also In re J.A.L. , 645 S.W.3d 922, 92 4 (Tex. App.

— El P as o 2022 , orig. proceedin g ) ( “ a court may properly deny mandamus relief when the record does not reveal a justification for the del ay in f iling a petition f or writ of mandamus ” ) ; T EX

. R. A PP

. P. 52 ( g enerally, party seeking mandamus relief must bring forward all that is nece ssary to establish claim for mandamus relief )

. By waiting over four months to seek mandamus relief and fa iling to e ven addr ess t he delay, much less offer a justification , Danie l failed to act diligently to protect his rights. See Rivera , 858 S.W.2d at 367

- 68 (d enying mandamus petiti on in light of relator ’ s four

- month delay in seeking relief) ; see also In re Saldivar , No. 13

- 1 7

- 00648

- CV, 2017 WL 5760319, at * 5

- 6 (Tex. App.

— Corpus C hristi Nov. 28, 2017, orig . proceeding ) (mem. op.) ( four

- mon th del a y waived right t o mandamus relief). Accordingly, Daniel waived his right to mandamus relief. Second, Daniel ’ s petition fails to comply with appellate Rule 52.3(h) ’ s requirement that a mandamus petition contain clear and concise arguments for the co ntentions made, with
ap propriate citations to authorities and the appendix or record. See T EX

. R. A PP

. P. 52.3(h). Daniel ’ s argumen ts t hat Respondent abused his discretion by awarding temporary support are based on family code Section s 8.051(2)( B) and 8.0 53(a). 2 Section 8.051 p rovides , in pertinent part, as follows:

2 Specificall y, Daniel maintains that Respondent abused his dis c r et io n by awarding temporary support be c ause D aphne “ d id not lack sufficient property to provide for her minimum reasonable needs and because there was insufficien t evidence to overcome the presumption that spousal maintenance is not warranted. ” He further c ontends that the record contains no e videnc e showin g that D aphne is not meeting her reasonable b asic needs or attempted t o “ exercise diligence in developing the necessary sk ills to provide for her minimum reasonable needs during a period of separation and during the time the suit for dissolu t ion of the marri age has been pending. ”4 In a suit for dissolution of a marriage or in a proceeding for maint enan ce in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal ju risdiction over an absent spouse, the co urt may order maintenance for either spouse only if the spouse seeki ng m aintenance will lack sufficient property, including the spouse ’ s separate property, on dissolution of the marriage to pr ovide for the spouse ’ s m inimum reasonable needs and

... the spouse seek ing maintenance

... has been married to the other spouse for 10 ye ars or longer and lacks the ability to earn sufficient income to provide for the spouse ’ s minimum reasonable need s[.]

T EX

. F AM

. C ODE A NN

. § 8.051 (2) (B) (West 2020 ) (em phasis added) . There is a rebuttable presumption that maintenance is not warranted unde r Se ction 8.051(2)(B) unless the spouse seeking maintenance exercised diligence in “ (1) earning sufficient income to provide for the spouse ’ s minimum r easonable needs; or (2) developing the necessary skills to provide for the spouse ’ s minimum reasonable ne eds during a period of separation and during the time the suit for dissolution of th e marriage is pending. ” Id

. § 8.05 3 (We st 2020 )

. However, t hese sect ions apply to a maintenance order on dissol ution of marriage. See In re McKusker , No. 09

- 17

- 00486

- CV, 201 8 WL 355671, at *1 (Tex . App.

— Beaumon t Jan. 11, 2018, orig. proceeding) (per curiam) (mem. op.) ( noting that statute rel ied on, Section 8.055 addr essi ng the amount of maintenance, applies to a maintenance order issued on dissolution of marriage and did not prohibit court from or der ing temporary support during pendency of divorce suit ) ; see also Kelly v. Kelly , 634 S.W.3d 33 5 , 363 (Tex. App.

— Hous ton [1st Dist. ] 2021, no pet. ) ( Chapter 8 of family code “ governs the award of spousal maintenance in a di vorc e decree ” )

. Here, Respondent ordered tempora ry support. Thus , Chapter 8 does not apply. R ather, Section 6.502 appl ies to temporary orders an d pr ovides , in pertinent par t , that :
While a suit for dissolution of a marriage is pending and on the motion of a party or on the court ’ s own motion after notice and hearing, the court may render an appropriate order, including t he granting of a temporary inju nction for the preservation of th e property and protection of the parties as deemed nec essary and equitab le a nd including an order directed to one or both parties

... requiring payments to be made for the support of either spou se [

. ]

T EX

. F AM

. C ODE A NN

. § 6. 502 (a)(2) (West Supp. 2023 )

. By its plain lan guage, Section 6.502 does not contain the same requirements as Chapter 8. 3 The cases to which Dani el cites involve

3 A party seeking temporary suppo rt still must show a need for support. “ [T] emporary support i s only meant to pay for necessary expenses. ” Herschberg v. Herschberg , 994 S.W.2d 2 73, 2 7 8 (Tex. App.

— Corpus Christi 19 9 9, ori g. p roceeding)

. “ A temporary support order is a means of protecting the welfare of a financially dependent spouse between the tim e a petition is filed and divorce is granted

. ” Graham v. Turner , No. 12

- 14

- 00336

- C V, 2015 WL 6560577, at *6 (Tex. App.

— Tyler Oct. 30, 2015, no pet. ) (mem. op.) (citing Herschberg , 994 S.W.2d at 2 77

- 78 )

. It is determined by consider ing the applicant ’s nee ds

. Id

. (citing Herschberg , 994 S.W.2d at 2 7 8 )

.5 spousal maintenance, not support awarded in a temporary order. See Dalton v. Dalton , 551 S.W.3d 126, 129 , 132 (Tex. 2018) ( orders enforcing agreed spousal

- support obligation incorporated into final decr ee ); see also Kelly , 634 S.W.3d at 344-45 , 363 ( award of spousal maintenance in divorce decree ); McCollough v. McCollough , 212 S. W.3d 638, 648 ( Tex. App.— Austin 2006, no pet.) (addressing whether chapter 8 applie s t o alimon y obligation) Cooper v. Cooper , 1 76 S.W.3d 62, 63 (Tex. App. —Houston [1 st Dist.] 2004, no pet.) (appeal from divorce decree awarding spousal maintenance); O’ Ca rola n v. H opper , 71 S.W.3d 529, 531 (Tex. App .—Austin 2002, no pet. ) ( challenge to final decree awarding spousal maintenance ); Ca r dwell v . Sicola -Cardwell , 9 78 S.W.2d 72 2, 723

- 24 (Tex. App. —Austin 1998, pet. denied ) (suit to enforce spousal support agreement incorpo rat ed into final divorce decree). I t is not this Court ’ s duty, or even right, to conduct an independent review of the r ecord and applicable law to determine w hether there was error. Interest of A.E. , 580 S.W.3d 211, 219 (Tex. App.

— Tyler 2019, pet. denied ). Were we to do so, we would be abandoning our role as neutral adjudicators and become an advocate for that party. Id

. Rule 52.3(h) requires t hat a relator pro vide substantive legal analysis and citations to authority supporting his legal arguments and c onclusions

. See Fitzgerald , 429 S.W.3d at 897. Because Daniel fail ed to cite appropriate legal autho rity in support of his arguments and conclusion s, his compl aint is waived. See id . (mandamus compl aint waived where relator ’s argument c onsist ed of mere conclusions unaccompanied by any discussion of applicable legal principles or controlling authority).

D ISPOSITION Ha v ing concluded that Danie l waive d his right to mand amus relief, we deny the petition for writ of mandamus.

Opinion January 24, 2024. Pa nel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

Specificall y , “ temporary support should be awarded based on considera t ions o f bo th the degree to which the applicant is destitute of means to pay for her necessities during the pendency of the suit, and the ability of the requested spouse to pay .” Id . A trial court has broad, though not unlimited, discretion in making tem p orary s uppo rt orders during the course of divorce proceedings

. Id

.

## COURT OF APPEALS TWEL FTH COURT OF A PPEALS DISTRICT OF TEX AS JUDGMENT

J ANUARY 24, 2024 NO. 12-24-00003- CV

DANI EL LAROCK , Relator V.
HON. JUDGE JAMES (JIM) A. PAYNE JR. , Respondent

O RIGIN AL P ROCEEDING O N THIS DAY came to be heard the petition for writ of mandamus filed by D aniel LaRoc k ; who is the relato r in a ppella te cause number 12-24-00003- CV and a party to trial court cause number 22D36265 , pending on the docket of the 273rd Judicial Distr ict Court of Shelby County , Texas. Said petition for writ of mandamus having been filed herein on January 4, 2024 , and the sa me having been duly considered, because it is the opinion of this Court that the writ should not issue , it is therefore CONSIDERED , ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied

. Panel consi sted o f Wort hen, C.J ., Hoyle, J. and Neeley, J.