### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00477- CV

In re Mar ia F ootm an

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N Relator Maria Footman has filed a petition for writ of mandamus complaining of the trial court’s order sever ing claims broug ht ag ainst her by rea l pa rty in inter est L inda Nielsen into a
separ ate cause . See Tex. R. App. P. 52. We conditionally g rant the petition for writ of mandamus. See id. R. 52.8(c).

L in d a was marrie d to Steven Nielsen, who filed for divorce in November 2014

. L in d a filed a counter -petition, asser ting that Steven had brea ched his fiduciar y du ties to her by “squande r[ing]” community funds, had committed c onstructive fra ud, and had wa sted community
assets “by making g rossly excessive g ifts” to his paramour . Steven died on May 14, 2015, and on May 15, L inda filed an amende d counter -petition for divo r c e , n a ming Footman as Steven’s para mour and as a defe ndant. L inda asked that Steven and Footman be found jointly and sever ally liable for “bre ach of fiduciar

y responsibility and fra

ud on the community estate” and that Footman be require d
to acc ount for and return g ifts and funds g iven to her by S t ev en fr o m the community estate. On May 18, S t ev en ’s at t orney filed a motion to dismiss the divorce action. L inda filed a response

asser ting that althoug h she ag ree d that the divorce proce eding could not survive Steven’s death, thesepar ate and distinct claim for brea ch o f fi d u ciary duty leveled ag ainst Footman should not be

dismiss ed and instead should be sever ed into another cause number. The trial court sever ed L inda’s claim ag ainst Footman into a new cause number and then dismiss ed the d i v orce proce eding

. Footman filed this petition for writ of mandamus, asser ting that the trial court should have dismiss ed the claims ag ainst her a long w ith the divorce pr ocee ding. We a g ree .

As the supre me cour

t expl ained, the “ [d] eath of a par ty abate s a divorce action and its incidental inqu i ri es of property rig hts and child custody .” W hatley v. Bacon , 649 S.W .2d 297, 299 (Tex. 1983). Fur

ther, “[t] he death of either party to the divorce action prior to entry of the divorce decr ee w ithdraws the c ourt’s subject matter jurisdiction ove r the divorce action.” Pollard

v. Pollard , 316 S.W .3d 246, 251 (Tex. App.—Dallas 2010, no pet.); see also Janner v. Richardson , 414 S.W .3d 857, 858 (Tex. App.—Hou ston [1st Dist.] 2013, no pet.) (same) ; Garcia v. Daggett , 742 S.W .2d 808, 809-10 (Tex. App.—Houston [1st Dist. 1987, orig

. proce eding ) (“B eca use [wife’s] death immediately abate d the divorce action, the trial court had no authority to enter any order other than an order of dismiss al.”) ; Parr v. W hite , 543 S.W .2d 445, 448 (Tex. Civ. App.—Corpus Christi 1976, writ ref

’d n.r.e.) (“A n action for divorce is purely persona l in nature and abate s absolutely on the death of either party befor e judgme nt,” and “[t] he death of either party prior to en try of the divorce decr ee withdraws subject matter of the litigation from jurisdiction of the c ourt.”). I n such a case, the trial court must dismiss the divorce proce eding

. See, e .g. , W hatley , 649 S.W .2d at 299 (“The proper proce dural dispositi on of a divorce action when one of the parties dies is dismiss al.”) ; Pollard , 316 S.W .3d at 251 (“Where , as here, one of t he parties to a divorce action dies prior to a divorce being rende red, the proper proce dural disposition is di smissal of the divorce action.”)

.

2Thus, upon Steven’s death on May 14, the trial court “absolutely and automatically ”

lost jurisdiction to do any

thing other than to sign an order dismiss ing the proce eding

. See Garrison

v. Mead , 553 S.W .2d 25, 26 (Tex. Civ. App.—Houston [1st Dist.] 1977, orig

. pro ce ed i n g) (“The death of a party bef

o re judgme nt in a divorce case abate s the action absolutely and automatically abate s the court’s incidental power s conce rning proper ty rig hts. ”); Parr , 543 S.W .2d at 448 (divorce
proce eding “abates absolutely ” upon death of either party befor e decr ee and “withdra ws subject
matter of the litiga t ion from jurisdiction of the court” ; “Upon the death of J ody Martin Parr, her
proper ty passed immediately to her heirs at law and/or the benef iciarie s of her Wil l as the case might be.”) ; see also Janne r , 414 S.W .3d at 860 (“the fac t tha t the J anner s may have had the rig ht to file

a s ep ar at e p roceeding for acce ss does not alter the rule that, afte r t he death of a party to a divorc e action, the divorce action terminates and the trial court loses authority to enter any order other than

an order of dismiss al”)

. L inda’s amende d petition, filed a day later, did not somehow re- vest the trial court with jurisdiction to do any thing e lse. Be cause the trial court was without jurisdiction to issue any order s based on or rela ted to the underly ing divorce action, we conditionally g rant the w rit of mandamus. See Tex. R. App. 1 P. 52.8(c)

. Writ will issue only if the trial court ref uses to vaca

te the sever ance o rd er signe d on J une 25, 2015.

M an d am u s i s g ener ally proper if a trial court lacks subject matter jurisdiction over the 1 underly i n g proce eding , and in such a case , a rela tor need not establish that she lacks an adequate reme dy by appea l. See In re Martinez , 450 S.W .3d 157, 161 (Tex. App.—San Antonio 2014, orig

. proc ee d i n g); see also Mapco, Inc. v. Forrest , 795 S.W .2d 700, 703 (Tex. 1990) (judg ment is void when it is appar ent that trial court had “no jurisdiction of the parties, n o j u ri s d i ct i on of the subject matter” ). 3__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Filed: Nove mber 10, 2015

4