Texas Appeals Court Vacates Appointment of Receiver as Improper Modification of Property Division

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.

The final decree awarded half of the net proceeds of the sale to each party. It required the parties to list the property with a particular agency.  The residence was to be sold at a mutually agreeable price, but the realtor would determine a reasonable price after considering each party’s opinion, if the parties were not able to agree on a sale price.  The decree also awarded the husband “the exclusive right to enjoy the use and possession of the premises until closing.”

Wife’s Petition for Enforcement and Appointment of a Receiver

The wife filed a petition alleging the husband failed to deliver certain personal property and failed to properly care for other personal property that was awarded to her.  She subsequently amended the petition alleging he had not provided certain personal property and that he failed to cooperate with the realtor and refused to execute the listing agreement.  She asked the court to appoint the realtor as receiver for the residence and to order the husband to vacate the property.

The husband alleged the listing agreement he had been presented contained errors and that he had corrected it and returned a signed copy.

At the hearing, the realtor testified about the contentious relationship between the parties and the difficulties he had communicating with the husband.  He opined that the husband would not cooperate in selling the property.  The wife testified she had not received certain personal property that had been awarded to her.  She also testified that she believed the husband did not want to sell the property and was trying not to facilitate the sale.

The husband objected to appointing the realtor as receiver.  He also denied intentionally delaying the listing.

The trial judge stated that the realtor would be appointed receiver and the husband would be ordered to move out within 30 days so the receiver could ensure the property was prepared and maintained.

The trial court appointed the realtor as receiver of the residence and authorized him to “manage, control, and dispose of [it] . . . in his sole discretion.” The court ordered the parties to fully cooperate with him.  The judge also signed another order, ordering the husband to surrender certain personal property.

The Husband’s Appeal

The husband appealed, arguing the court’s order on the motion for appointment of receiver modified the property division in the final divorce decree.

The husband argued that the divorce decree was not ambiguous.  The appeals court concluded the decree stated “clear requirements” regarding the sale of the property.  The husband argued the decree did not provide for appointment of a receiver, so the trial court’s order improperly modified the terms of the decree.  He pointed to the language authorizing the realtor “to manage, control, and dispose of” the property at his discretion.

The appeals court pointed out that the decree allowed the realtor’s agency to determine a reasonable price after consulting with the parties and considering their opinions and any independent appraisals the parties had.  The receivership order, however, allowed the realtor to dispose of the property in his sole discretion, without requiring him to consult with the parties or consider their independent appraisals.  The appeals court concluded the receivership order improperly modified the decree.  The appeals court vacated the receivership order, struck the findings referencing the appointment of a receiver in the other order, and remanded the case to the trial court.

Seek the Advice of an Experienced Family Law Attorney

Whether you are considering seeking enforcement of your divorce decree or facing an enforcement action against you, a skilled Texas divorce lawyer can advise you on your options and rights.  Call 214.692.8200 to set up a consultation with McClure Law Group.


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