Articles Posted in Enforcement

A trial court in a Texas divorce retains subject matter jurisdiction to enforce a decree or to clarify ambiguity in the decree.  Texas strongly favors finality of judgment, so the court may not make substantive changes to the property division in a divorce decree once it has become final.  The court does not have the authority to “amend, modify, alter, or change” the final property division despite errors in characterizing the property or applying the law.   The court may, however, issue orders to clarify an ambiguous decree or to enforce the decree.  A court interprets a Texas divorce decree according to the plain language of the decree. The court must interpret the decree as a whole and give effect to all provisions.  A former wife recently challenged a court order purporting to clarify the final divorce decree, arguing it substantively changed the property division.

Divorce Decree and Subsequent Order

The trial court filed with the clerk and sent the parties a letter rendering the property division following the bench trial.  The letter awarded to the wife as separate property 50% of three specified accounts and 50% of any stocks, options, or retirement accounts that were not listed in the letter but had vested as of a specified date.  The court directed the husband’s counsel to draft a decree comporting with the letter rendition.

The husband’s attorney added details that were not expressly included in the letter. He specified the date when the balances would be calculated for the property division and included a dollar amount for each account.  The parties’ attorneys approved the draft divorce decree as to form.  The trial court signed the decree as drafted by the husband’s attorney.  The decree became final without either party appealing.

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A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed.  Tex. R. Civ. P. 329b.  Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law.  The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree.  The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division.  It may specify the manner of the property division more precisely, but may not change the substantive property division.  A court may order delivery of specific property through its enforcement power.  If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

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A court must order a just and right division of the marital estate in a Texas divorce.  Once the divorce is final and the property has been divided, the property division generally may not be re-litigated.  The trial court does, however, retain the power to clarify and enforce the division.  Tex. Fam. Code § 9.002; Tex. Fam. Code § 9.008. The court may not alter or change the substantive property division, but may render additional orders to enforce, clarify, assist in implementing, or specify the manner of effecting the property division. Tex. Fam. Code § 9.006.  A former husband recently challenged a trial court’s partial denial of his request for clarification and enforcement.

According to the opinion of the appeals court, the final divorce decree awarded the husband certain personal property, specifically including the outdoor furniture purchased from a particular person and any property the wife had removed from the homestead, including certain dining room furniture and two bronze statues.

Clarification and Enforcement Hearing

The husband petitioned for clarification and enforcement of the property division, alleging the wife had not turned over certain property awarded to him, including two bronze statues, certain patio furniture he had purchased from a specified individual, and certain dining room furniture.  He asked the court to order her to turn them over by a specified date, and to award him their replacement value if she did not.

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A trial court may not amend, modify, alter or change the substantive property division in a divorce decree after expiration of its plenary power. The court retains jurisdiction, however, to enforce or clarify the property division in the divorce decree.  A former husband recently appealed a trial court’s appointment of a receiver for the marital residence, arguing it constituted an improper modification of the property division set forth in the divorce decree.

Divorce Proceedings

The parties got married in 2009 and separated in October 2020, according to the appeals court’s opinion.  The wife petitioned for divorce in November 2020, and the husband filed a counterpetition.  In its written ruling, the trial court indicated the marital home would be sold with the proceeds equally divided.  The ruling stated the husband was allowed to stay in the house until the sale.

A trial court in a Texas divorce case has discretion in how the trial is conducted, but that discretion is not unlimited.  In a recent case, the appeals court determined the trial court abused its discretion by imposing time restrictions that allowed the husband more time to present the case than it allowed the wife and by refusing the wife’s request to present an offer of proof.

According to the appeals court’s opinion, the divorce decree awarded the wife the marital residence; the entire community interest in a business; three of the business’s bank accounts, with the husband receiving half of the funds in them; and the household furniture and other personal property in her possession or control.  The husband was awarded 50% of the equity in the house; certain assets from the business; the furniture and other personal property in his possession or control; and 50% of the business’s accounts receivable.

Enforcement Hearing

The husband filed a motion asking the court to enforce the property division by contempt.

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A Texas divorce decree that is final and unambiguous and addresses all of the marital property may not be re-litigated.  The court may, however, enforce the property division or enter a clarifying order if the decree is ambiguous.  The trial court may not, however, amend, modify or change the substantive property division once its plenary power has expired. A husband recently challenged an enforcement/clarification order requiring him to sign certain documents and extending the time the wife had to refinance the home.

According to the appeals court’s opinion, the parties got divorced in August 2021.  Pursuant to the agreed judgment, the wife was awarded the marital home, contingent on refinancing.    She was required to pay the husband $75,000 within 15 days of refinancing the note.  If she failed to refinance by February 1, 2022, then the home was to be listed with a real estate broker with experience in the area and sold at a mutually agreed-upon priced.  The wife would keep 52% of the net proceeds and the husband would get the other 48%.

The wife was ordered to execute a deed of trust to secure owelty of partition and a lien note.  The husband was ordered to execute a warranty deed.  These documents were to be signed by 5:00 p.m. on the date the trial court signed the agreed divorce decree.

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iStock-1187184203-300x200TEX. CIV. PRAC. & REM. CODE § 34.001(a) provides that a judgment becomes dormant if a writ of execution is not issued within 10 years of its rendition.  A judgment is dormant, execution may not be issued unless it is revived.  A dormant judgment may be revived within two years of becoming dormant.  TEX. CIV. PRAC. & REM. CODE § 31.006.  A former wife recently argued that her ex-husband could not enforce a payment obligation contained in their divorce decree because the judgment had become dormant.

2008 Divorce – $30,000 Judgment Awarded to Husband

According to the appeals court’s opinion, the parties divorced in 2008.  The decree awarded the husband $30,000, with interest beginning 12 months after the judgment, secured by a lien on the home where the wife lived.  The unpaid principle and accrued interest were to be paid upon the earliest of: the sale of the home, the youngest child’s emancipation, the wife’s remarriage or cohabitation with a romantic partner, the wife’s death, or the home ceasing to be the primary residence of the children.

The husband filed an application for turnover and appointment of a receiver in 2021.  His counsel stated that the earliest of the listed events happened in May 2014, when the youngest child turned 18 and graduated high school.  The wife argued that the judgment had become dormant.  The trial court signed a turnover order and appointed a receiver to possess and liquidate the wife’s non-exempt property to satisfy the judgment.  She appealed.

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iStock-1125625723-300x200When parties to a Texas divorce reach an agreement, the agreement may place conditions on certain obligations.  A “condition precedent” is something that must occur before a party has a right to performance of an obligation by the other party. In a recent case, a mother challenged a trial court’s finding she had not met the condition precedent to receive certain payments from the father.

In the final divorce decree, the trial court approved and incorporated the parties’ Agreement Incident to Divorce (“AID”). The parties agreed the father would pay $11,500 in monthly Contract Support Payments to the mother to provide her and the two children an “alternative lifestyle.”  They would travel and live abroad so the children could learn other languages and cultures. The mother agreed to maintain this lifestyle and spend the Contract Support Payments to support it as a condition precedent to receiving the payments. The AID also included a provision that the father could send a notice if the mother failed to comply with a material term or condition. If she failed to cure the breach within 30 days, the Contract Support Payments would be abated until she complied.

Father Grows Concerned About Children’s Upbringing

The mother and children traveled within the U.S. and several countries abroad until July 2018. The father grew concerned about the children’s lack of structured education and their health and hygiene by the summer of 2018.

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iStock-1139699594-300x200When a couple has complex and high-value assets, the actions required to achieve the property division may drag out long after their Texas divorce.  The parties may need to refinance or liquidate certain assets.  These ongoing transactions can result in additional disputes and possibly enforcement actions by one or sometimes both parties.

A husband recently challenged a court’s order in favor of the wife in dualling enforcement motions.  The trial court entered an Agreed Final Decree of Divorce in March 2019.  The decree awarded the wife a business, but required her to pay the husband a $770,000 equalization judgment secured by her primary residence and rental properties.  She was also ordered to make monthly payments with 3% interest starting in February 2019.  She defaulted in 2020, triggering an acceleration clause.

The decree also addressed the parties’ 2017 tax return and liability. The wife would pay $60,000 of the approximate $199,000 liability and any penalties and interest “arising solely out of the failure to previously make the $60,000 payment to the Internal Revenue Service.” The parties would split the remaining tax liability, penalties, and interest equally.  The wife consented to filing the tax return in June of 2019, but the husband asked to review certain documents before he consented.  There was evidence he received the documents in the summer of 2020 and notified the wife and accountant he had identified additional medical expenses within a week of receipt.  He ultimately gave his consent to file the day before the enforcement hearing.

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