Ideally, after a Texas divorce, the parties will cooperate and take any actions needed to sell or transfer property and resolve outstanding issues, but that does not always happen. A Texas appeals court recently considered a case in which a former wife alleged the former husband was preventing the sale of jointly-owned property.
Divorce Case
The parties divorced in March 2020. According to the appeals court’s opinion, the final divorce decree found that a particular piece of real property was community property and awarded each party 50% as their separate property, leaving them tenants in common. The decree did not address sale or partition of the property.
Second Lawsuit
A couple of months after the decree was signed, the former wife filed suit against the former husband, seeking an order for the sale of the property and partition of the proceeds. She also requested attorney’s fees, expenses, and interest. This lawsuit was ultimately consolidated into the divorce case. The court held a bench trial and signed an order finding the parties were co-tenants and that the property was not subject to partition in kind. The order required the property be listed by June 1, 2022 and that the parties to take all necessary steps and execute any necessary documents to facilitate the sale. The court also ordered that any proceeds after payment of any encumbrances on the property be split equally between the parties. It did not address the wife’s request for fees, expenses, and interest.
She filed an emergency motion a few weeks later, alleging the former husband was preventing the sale of the property by damaging the home, refusing to cooperate, and threatening realtors. She alleged she had accepted an offer but could not close until he moved out and signed the documents. She also filed a petition for enforcement the following October, seeking contempt against the former husband for failing to comply with the order.
Third Lawsuit
She filed another lawsuit in March 2023, identified in the court’s opinion as the “Third Lawsuit.” She sought partition pursuant to Tex. Prop. Code Ch. 23, or alternatively quiet title and a declaratory judgment that the husband’s claim to her 50% interest in the property was invalid and void. She also sought appointment of a receiver to take possession of and sell the property. She moved for summary judgment.
The husband argued the wife’s claims were barred by res judicata because the court had previously granted the relief the wife sought in the Third Lawsuit. He also argued the wife had raised the same issues in the prior proceedings so they were barred by collateral estoppel.
The wife’s attorney argued that res judicata does not bar an ex-spouse from seeking a partition of property that had not been partitioned in the divorce decree. The husband’s attorney argued that res judicata was based on the order, not the decree. The wife’s attorney argued when they tried to enforce the order, the district court thought it lacked jurisdiction because its plenary power had expired.
The trial court granted summary judgment, declaring the husband’s claim to the wife’s 50% interest in the property invalid and void. The court ordered a partition and sale of the property and appointed a receiver. The court authorized the receiver to take control of the property and do what was reasonably necessary for its proper management and sale. The court also ordered the husband to cooperate.
The Appeal
The husband appealed, arguing the former wife could not file a new lawsuit under Tex. Prop. Code Ch. 23 when she had already invoked remedies under that chapter and Tex. Fam. Code Sec. 9.001.
The appeals court first considered whether there was a genuine issue of material fact as to the husband’s defenses such that the trial court erred in granting the motion for summary judgment. The appeals court noted that an essential element of both defenses was whether there had been a prior final judgment on the merits by a court of competent jurisdiction.
Although the final divorce decree was a final and appealable judgment, it did not, however, address partitioning the property. Furthermore, the husband did not base his defenses on the decree.
He instead argued that the subsequent order was the prior final judgment that barred the wife’s claims. The order in question was issued in the second lawsuit after it had been consolidated with the divorce case. The appeals court noted that the first case ended with the final decree and the second lawsuit remained “a separate and distinct lawsuit” even though it was under the cause number of the first case.
An order issued without a trial on the merits is only considered final and appealable if it disposes of all claims and all parties or if it clearly states that it is a final judgment. Lehmann v. Har-Con Corp. In this case, however, the order was issued after a trial, so it is presumed final. If an order does not include a clause stating that all relief that is not expressly granted is denied or another statement that makes it clear it is a final and appealable order, the presumption may be rebutted. The order in this case did not include a statement making clear that it was a final judgment. The order also did not dispose of all claims because it did not address the wife’s claims for fees, expenses, and interest. The appeals court concluded the finality presumption was rebutted by the record and that the order was interlocutory.
The husband also characterized the wife’s enforcement petition as seeking relief under Tex. Fam. Code 9.203, but it did not cite to any part of the Texas Family Code. Furthermore, she had not asked the court to divide property it had failed to divide in the decree. The appeals court concluded the enforcement petition did not request relief under Tex. Fam. Code 9.203 in either form or substance, but instead sought an order of contempt.
Furthermore, the record before the appeals court did not include a signed order or judgment ruling on the wife’s enforcement petition. The summary-judgment evidence included a docket sheet with a notation that the motion was granted and an order would be filed. The docket also indicated that the court did not sign the proposed order that had been filed and asked the husband to amend it. There was nothing on the docket sheet indicating another proposed order had been submitted or that the court signed an order or judgment on the enforcement petition. With no order or judgment, the appeals court concluded the summary-judgment evidence did not raise a genuine issue of material fact as to whether there was a final judgment on the enforcement petition that could support the husband’s res judicata or collateral estoppel defenses.
The appeals court affirmed the trial court’s judgment.
Contact a Dallas Divorce Lawyer
This case illustrates how a divorce decree can lead to ongoing litigation if the parties do not cooperate and all issues are not addressed. If you are facing a potentially contentious high net worth divorce, an experienced Texas divorce attorney can help you seek an outcome that protects your assets fully resolves all issues to avoid future litigation.