Thomas Allan Cook, Relator v. Honorable Alan Mayfield, Judge, 74th District Court, McLennan County, Texas ( 1994 )

Cook v. Mayfield

  IN THE

TENTH COURT OF APPEALS

No. 10-94-283-CV

     THOMAS ALLAN COOK,

                                                                                              Relator

     v.

     HONORABLE ALAN MAYFIELD, JUDGE,

     74TH DISTRICT COURT, McLENNAN

     COUNTY, TEXAS,

                                                                                              Respondent

Original Proceeding

OPINION DENYING MOTION FOR REHEARING

      Annis Jo Cook (Ann) seeks a rehearing of our grant of Thomas Cook's Petition for Writ of Mandamus. See Tex. R. App. P. 100. She asserts, among other grounds for rehearing, that Thomas's petition was procedurally defective because it was not accompanied by a certified copy of the trial court's order denying the plea in abatement as required by Rule 121 and that Thomas had an adequate remedy at law. See id. 121(a)(2)(C).

      Thomas's motion for leave to file the petition, together with the petition, was filed on September 14, 1994. On September 2 a transcript was filed in our cause number 10-94-271-CV, an attempted interlocutory appeal in the same divorce case. Thomas's petition makes numerous references to the statement of facts and transcript in the interlocutory appeal, including a reference to the order overruling his plea in abatement that is contained at page 29 of that transcript. Additionally, a copy of the "temporary orders" that the trial court signed on September 2 and about which Thomas complained in his petition was attached to the petition as Exhibit B.

      As we pointed out in dismissing Thomas's interlocutory appeal, temporary orders issued under section 3.58 of the Family Code are not appealable. See Cook v. Cook, No. 10-94-271-CV, slip op. at 2 (Tex. App.—Waco October 19, 1994); Tex. Fam. Code Ann. § 3.58(g). Thus, mandamus is an appropriate remedy to challenge such orders. Post v. Garza, 867 S.W.2d 88, 89 (Tex. App.—Corpus Christi 1993, orig. proceeding). Additionally, because Thomas's challenge of the temporary orders was based on the trial court's failure to grant his plea in abatement, we stated that a remedy by appeal after trial is not adequate because of the rule that the defect in residential qualifications may be cured by amending the petition for divorce after the requisite period of residency in the county has been achieved. See Cook v. Mayfield, No. 10-94-283-CV, slip op. at 2 (Tex. App.—Waco October 19, 1994, orig. proceeding).

      Finding all of Ann's points in her motion for rehearing without merit, we deny the motion.

      Having been advised that the Respondent has signed an order abating the cause, we withdraw the writ of mandamus issued on October 20, 1994.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

          (Justice Cummings would grant the motion for rehearing)

Motion for rehearing denied; writ withdrawn

Opinion delivered and filed November 30, 1994

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