Gervin v. Gervin

OPINION DIAL, Justice. This is an appeal from a property division in a divorce suit where the parties have remarried while the appeal is still pending. Appellant George Gervin, a professional basketball player, and his wife, Joyce Ger-vin, were divorced in December of 1984. The divorce decree ordered a division of the community estate, including an award to Joyce of various sums under certain endorsement contracts executed by her husband. The court further ordered that George pay Joyce’s attorneys’ fees ($125,-000) and $25,000 toward her “auditor’s fees.” George has appealed the order of the trial court claiming that the property division invaded his separate estate. He further alleges that the award of $150,000 in attorneys’ fees and accountant’s fees is excessive and not supported by the record. At oral argument, the attorneys conceded that their clients had reconciled and remarried. However, George’s attorney stated that his client wished to continue the appeal. He asserted that the case contains live issues which need to be resolved and that the parties’ remarriage to each other has no impact on the justiciability of the controversy. Courts have generally declined to review cases when the questions have become moot, abstract, or hypothetical since such decisions are advisory in nature. See Fireman’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333-34 (Tex.1968). Appellate courts do not decide cases unless an actual controversy exists between the parties at the time of the appeal. Coffee v. William Marsh Rice University, 387 S.W.2d 132, 136 (Tex.Civ.App.— Houston 1965), rev’d, on other grounds, 403 S.W.2d 340 (Tex.1966). We do not perceive an actual controversy between the parties at the present time. We hold that the remarriage of the parties while the divorce case is on appeal renders the case moot, and it should be dismissed. There is strong public policy for this conclusion in that it will encourage reconciliations. The parties will be in the same posture as before the divorce, and the ownership status of the property will likewise be the same. The parties are then free to avail themselves of the tools provided by the legislature to partition or exchange any of their community property by agreement, thereby making it separate property. TEX.FAM.CODE ANN. § 5.42 (Vernon Supp.1986). Either party may likewise convey his or her separate property to his or her spouse. The dissent correctly cites authority which holds that a subsequent remarriage does not change the classification of the property divided in a divorce suit. In those cases there was no appeal of the division of the property, and the judgments became final. That is not the case here where the judgment was appealed. Additionally, there is a challenge to the award of attorneys’ and accountant’s fees, claiming that they are excessive and not supported by the record. We disagree. We find that such evidence is contained in the record before us. Mr. Casseb provided a detailed account of his work on Mrs. Gervin’s behalf, including a chronology of the litigation and a description surrounding the nature and complexity of the case. This involved a detailed account of issues to be researched, documents which were drafted, served and filed, and details concerning the identity and functions of other professionals who were consulted. Mr. Jack Leon, a San Antonio attorney, stipulated as an expert, corroborated Mr. Casseb’s testimony concerning the reasonableness of the fees. Mr. Leon agreed that the case involved complex legal and factual issues requiring a significant amount of time, effort, and expertise. Accordingly, we find that the record contains ample probative evidence in support of the award. The attorney is entitled to be compensated for the work he has done. We sever that [152] portion of the judgment awarding attorney’s fees and affirm it. Appellant will be primarily liable for this debt. The remainder of the cause is remanded with instructions that the case be dismissed on the ground that it has become moot.