in Re Jay Charles Bowen

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-03-338-CV IN RE JAY CHARLES BOWEN ------------ ORIGINAL PROCEEDING ------------ * MEMORANDUM OPINION1 ------------ Real party in interest, Jane Susanne Weckherlin, filed a post-divorce suit against relator, Jay Charles Bowen, for breach of the agreement incident to divorce. After the suit was filed, relator filed bankruptcy and filed a notice of bankruptcy with the trial court in the post-divorce suit. Relator asserts that two orders signed by the trial court on September 5, 20032 are void because he filed bankruptcy on April 9, 2003, and the bankruptcy code’s automatic stay precludes any action in the underlying post-divorce litigation until or unless the automatic stay is lifted. See 11 U.S.C.A. § 362(a)(1) (West 1993 & Supp. 2003).3 During the pendency of a federal bankruptcy action, a state court has jurisdiction to hear matters pertaining to the dissolution of a marriage but not to hear matters relating to property that is part of the bankruptcy estate. See In re Surgent, No. 13-03-484-CV, 2003 WL 22512023, at *3 (Tex. App.—Corpus Christi Nov. 6, 2003, orig. proceeding).4 Thus, all issues in the underlying litigation related to property in the bankruptcy estate are stayed as a matter of law. See 11 U.S.C.A. § 362(a)(1); see also In re Shock, 37 B.R. 399, 400 (D.N.D. 1984) (holding a state court may not make determination or disposition of property included in bankruptcy estate). Accordingly, the trial court’s September 5 orders are void to the extent that they address issues regarding property in Relator’s bankruptcy estate. See Sanchez v. Hester, 911 S.W.2d 173, 175-76 (Tex. App.—Corpus Christi 1995, orig. proceeding). We conditionally grant in part relator’s petition for writ of mandamus and direct the trial court to vacate its September 5, 2003 orders or to amend them, if possible, to specifically address only matters related to the enforcement action that do not seek to attain or involve property in relator’s bankruptcy estate. The writ will issue only if the trial court fails to comply with these instructions. SUE WALKER JUSTICE PANEL A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ. CAYCE, C.J., filed a dissenting opinion. DELIVERED: March 18, 2004 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-03-338-CV IN RE JAY CHARLES BOWEN ------------ ORIGINAL PROCEEDING ------------ DISSENTING OPINION ------------ I respectfully dissent because I do not believe the record shows that the trial court’s orders will or are intended to affect property in the relator’s bankruptcy estate. For this reason, I would deny the relator’s petition for writ of mandamus. JOHN CAYCE CHIEF JUSTICE DELIVERED: March 18, 2004 NOTES * Majority Opinion by Justice Sue Walker; Dissenting Opinion by Chief Justice John Cayce MAJORITY NOTES 1. See Tex. R. App. P. 47.4. 2. The two orders are: a mediation order requiring the parties to complete mediation before April 30, 2004; and a pretrial scheduling order setting pretrial deadlines and a May 6, 2004 trial date. 3. We requested a response from real party in interest, but she notified us that no response would be filed. 4. When a challenged order is void for lack of jurisdiction, relator is not required to establish that he has no adequate remedy at law. In re S.W. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).