William Perry v. Vickie Reams Perry , 2016 Tex. App. LEXIS 13182 ( 2016 )

Opinion issued December 13, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00156-CV
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WILLIAM PERRY, Appellant
V.
VICKIE REAMS PERRY, Appellee
On Appeal from the County Court at Law
Waller County, Texas
Trial Court Case No. 12-05-21470
OPINION
William Perry appeals from a post-divorce order appointing a receiver to
sell, “in his sole discretion . . . upon terms and conditions determined by him,”
certain real property in Hockley, Texas (the “House”).
The House is the former community property of William and his ex-wife,
Vickie Reams Perry. The decree from William and Vickie’s divorce awarded
possession of the House to William and awarded William and Vickie each one-half
of the profits of the sale of the House.
Under the Texas Family Code, a trial court may not modify the division of
property made in a decree of divorce. TEX. FAM. CODE § 9.007(a). William
contends that the trial court improperly modified the division of property made in
William and Vickie’s decree of divorce. We vacate the trial court’s order and
remand for further proceedings.
Background
The trial court enters the divorce decree
William and Vickie divorced in 2012. The division of property in their final
decree of divorce included two provisions relating to the House: one that was part
of the form divorce decree, and one that was added in handwriting by William and
Vickie.
The provision from the form awarded the House to William and divested the
House from Vickie:
The Court ORDERS that the Husband is awarded (gets) the [House],
and the Wife is divested of (doesn’t get) any interest, title or claim she
may have to the [House].
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Wife IS ORDERED to sign any deeds or documents needed to
transfer [the House] to the Husband. Husband is responsible for
preparing the documents.
The handwritten provision granted Vickie one-half of the profits of the sale
of the House:
William Perry agrees to grant Vickie Perry 50% of the profit of the
[sale] of the currently community property of [the House.]
The trial court subsequently appoints a receiver to sell the House
Several years after William and Vickie’s divorce, William, appearing pro se,
filed suit to enforce the divorce decree. William alleged that Vickie had violated
the decree by failing to sign a deed transferring her interest in the House to him.
William requested that the trial court order Vickie to transfer her interest in the
House to him. William alleged that Vickie’s refusal to sign a deed was preventing
him from selling the House to a prospective buyer.
Vickie answered and counterclaimed for a clarifying order. Vickie
requested that the trial court determine each party’s rights and duties under the
divorce decree and clarify any ambiguity in the decree’s property division. Vickie
alleged that William had told her that he was going to sell the House but was not
going to give her one-half of the profits.
Vickie also moved the trial court to appoint a receiver to sell the House.
Vickie alleged that the House was at risk of foreclosure and therefore contended
that appointing a receiver would protect both parties’ interests in the House.
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Vickie did not verify the allegations in her motion or support them with evidence.
Nor did she state the legal basis for appointing a receiver under these
circumstances or cite to any supporting legal authority for her requested relief.
William did not file a response to Vickie’s motion.
The trial court held two hearings on Vickie’s receiver motion. At the first
hearing, William, again appearing pro se, informed the trial court that he opposed
the appointment of a receiver because the House was not in danger of foreclosure.
The trial court suggested that he and Vickie prepare an agreed order requiring that
the proceeds of the sale of the House be paid into an escrow account until the
parties or the trial court determined how such proceeds would be distributed. The
record does not include any evidence that William agreed to such an order.
At the second hearing, William, now appearing through counsel, again
objected to the appointment of a receiver. William argued that appointing a
receiver would improperly modify the divorce decree because the decree did not
order William to sell the House.
The trial court stated that appointing a receiver would not harm either
William or Vickie but would benefit them both. The trial court also recalled that
William had agreed to sell the House at the first hearing. Again, the record does
not include any evidence that William agreed to sell the House at the first hearing.
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After the second hearing, the trial court signed an order appointing a receiver
to sell the House. The order appointed the receiver “to take charge and
possession” of the House if William failed to sell the House by February 15, 2016.
If William failed to do so, the order authorized the receiver “to manage, control,
and dispose” of the House “as he s[aw] fit in his sole discretion . . . upon terms and
conditions determined by him . . . .”
William timely appealed.
Modification of Divorce Decree
In three issues, William argues that the entry of the receivership order was
an abuse of discretion because (1) neither the receiver nor Vickie were required to
post a bond,1 (2) the order improperly modified the divorce decree’s division of
property, and (3) a receivership to sell the House is not a remedy available under
Section 64.001 of the Civil Practice and Remedies Code. William did not raise the
first and third issues below, so we do not consider them here.2 We therefore turn to
William’s second issue, and determine whether the trial court’s receivership order
1
See TEX. CIV. PRAC. & REM. CODE § 64.023 (“Before a person assumes the duties
of a receiver, he must execute a good and sufficient bond . . . .”); TEX. R. CIV. P.
695a (“No receiver shall be appointed with authority to take charge of property
until the party applying therefor has filed with the clerk of the court a good and
sufficient bond . . . .”).
2
See Fite v. Emtel, Inc., No. 01–07–00273–CV, 2008 WL 4427676, at *9 (Tex.
App.—Houston [1st Dist.] Oct. 2, 2008, pet. denied) (mem. op.) (stating errors in
receivership proceedings are waivable).
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improperly modified the division of property in William and Vickie’s divorce
decree.
A. Preservation of error
Vickie argues that William failed to preserve error on his second issue
because he failed timely to object to the appointment of a receiver. We disagree.
Preservation of error is a prerequisite for appellate
review. TEX. R. APP. P. 33.1(a). To preserve error, a party must (1) raise the issue
before the trial court in a manner that is timely, complies with the Rules of Civil
Procedure, and informs the trial court of what the party requests and the basis for
the request, and (2) obtain a ruling from the trial court or object to the trial court’s
refusal to rule. Id.; see In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex.
2011). Appellate courts may not review issues that are not preserved for appeal.
TEX. R. APP. P. 33.1(a).
At both hearings, William objected to the appointment of a receiver. He
specifically argued that appointing a receiver would improperly modify the divorce
decree because the decree did not order William to sell the House. We hold that
William preserved error on his second issue.
B. Standard of review
We review a trial court’s interlocutory order appointing a receiver for an
abuse of discretion. Abella v. Knight Oil Tools, 945 S.W.2d 847, 849 (Tex.
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App.—Houston [1st Dist.] 1997, no writ); see also Howard v. Howard, 490
S.W.3d 179, 183 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (ruling on
post-divorce motion reviewed for abuse of discretion).
“A trial court abuses its discretion only if it reaches a decision so arbitrary
and unreasonable that it amounts to a clear and prejudicial error of law or if it
clearly fails to correctly analyze or apply the law.” Howard, 490 S.W.3d at 184.
When, as here, the trial court makes no separate findings of fact or conclusions of
law, we draw every reasonable inference supported by the record in favor of the
trial court’s judgment. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied). The trial court’s order must be affirmed if it
can be upheld on any legal theory that finds support in the evidence. Id.C. Applicable law
1. Family Code
Under the Family Code, the trial court that renders a divorce decree retains
jurisdiction to clarify and to enforce the decree’s property division. Pearson v.
Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) (citing TEX. FAM. CODE
§§ 9.002, .008). However, after its plenary power expires, the trial court may not
amend, modify, alter, or change the property division in the decree. Howard, 490
S.W.3d at 185 (citing TEX. FAM. CODE § 9.007(a), (b); Shanks v. Treadway, 110
S.W.3d 444, 449 (Tex. 2003); Quijano v. Quijano, 347 S.W.3d 345, 353 (Tex.
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App.—Houston [14th Dist.] 2011, no pet.)). “An order . . . that amends, modifies,
alters, or changes the actual, substantive division of property made or approved in
a final decree of divorce . . . is beyond the power of the divorce court and is
unenforceable.” TEX. FAM. CODE § 9.007(b).
2. Appointment of receiver
Chapter 64 of the Civil Practice and Remedies Code sets forth the
circumstances under which a trial court may appoint a receiver. TEX. CIV. PRAC. &
REM. CODE §§ 64.001 et seq. Under Section 64.001, a trial court of competent
jurisdiction may appoint a receiver under six different circumstances, including
cases “in which a receiver may be appointed under the rules of equity.” Id. §
64.001(a).
The appointment of a receiver is a harsh, drastic, and extraordinary remedy,
which must be used cautiously. Benefield v. State, 266 S.W.3d 25, 31 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). “[A] trial court should not appoint a
receiver if another remedy exists, either legal or equitable.” Id. “[R]eceivership is
warranted only if the evidence shows a threat of serious injury to the applicant.”
Id. In determining whether the trial court erred in appointing a receiver, “[o]ur
review focuses on whether the pleadings and evidence are sufficient to justify a
receivership.” Id.8
D. Modification of divorce decree
William argues that the trial court’s receivership order is “beyond the
power” of the trial court because it modifies the “actual, substantive division of
property” in the divorce decree. According to William, the order modifies the
decree’s property division because the decree does not order that the House be
sold; it only orders that Vickie receive one-half of the profits if William decides, in
his discretion, to sell the House. Vickie, in response, contends that William’s
agreement in the decree to grant her one-half of the profits of the sale of the House
“directly implies” that the House must be sold. Thus, to determine whether the
trial court improperly modified William and Vickie’s divorce decree, we must
determine whether the decree orders that the House be sold, and, if so, under what
circumstances.
We interpret an agreed divorce decree according to the rules of contract
construction. Howard, 490 S.W.3d at 184. Our primary aim is to ascertain the
true intent of the parties as expressed in the writing itself. Id. (citing Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex.
2011)). We construe the decree as a whole to harmonize and to give effect to the
entire agreement so that none of its provisions will be rendered meaningless.
Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009); Howard, 490 S.W.3d at 184.
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We begin our analysis with the decree’s express language. Italian Cowboy
Partners, 341 S.W.3d at 333. If the decree is subject to only one reasonable
interpretation, then the decree is unambiguous, and we interpret it according to its
literal language. Howard, 490 S.W.3d at 184. But if the decree is subject to more
than one reasonable interpretation, then the decree is ambiguous, and we interpret
it by reviewing both the decree as a whole and the record. Hagen, 282 S.W.3d at
901; Howard, 490 S.W.3d at 184. “Whether a divorce decree is ambiguous is a
question of law.” Hagen, 282 S.W.3d at 901–02.
William and Vickie’s divorce decree includes two provisions relating to the
House—a provision that was part of the form and a provision that was added in
handwriting by William and Vickie. The provision from the form awards the
House to William and divests Vickie of “any interest, title or claim” to the House.
The handwritten provision grants Vickie half of the profits of any sale of the
House, presupposing that the House will be sold and that William will be the one
who sells it.
We hold that these two provisions, read as a whole, are subject to only one
reasonable interpretation: William is awarded possession of the House and is
responsible for selling the House, and Vickie is divested of “any interest, title or
claim” to the House except a right to one-half of the profits of the sale. This is the
only construction that harmonizes and gives effect to both provisions.
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But the provisions do not specify by when or for how much the House must
be sold. Under the rules of contract construction, “when construing an agreement
to avoid forfeiture, we may imply terms that can reasonably be implied.” Fischer
v. CTMI, L.L.C., 479 S.W.3d 231, 239 (Tex. 2016). Thus, if a divorce decree
orders that property be sold, but fails to specify a price, “the law presumes that the
parties . . . intended a reasonable price.” Seabourne v. Seabourne, 493 S.W.3d
222, 230 n.9 (Tex. App.—Texarkana 2016, no pet.).3 Likewise, if the decree fails
to specify a time for performance, “the law implies a reasonable time . . . .” Noyes
v. Noyes, No. 04–08–00627–CV, 2009 WL 2520972, at *4 (Tex. App.—San
Antonio Aug. 12, 2009, no pet.) (mem. op.) (holding that divorce decree that did
not specify date by which husband was required to sell house required husband to
sell house “within a reasonable amount of time”).4
3
See also David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)
(“Where the parties have done everything else necessary to make a binding
agreement for the sale of goods or services . . . it will be presumed that a
reasonable price was intended.”).
4
See also Atl. Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 212 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied) (“When no specific time for performance is stated in
a contract, the law will imply a reasonable time.”); Beago v. Ceres, 619 S.W.2d
293, 295 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (holding that
separation agreement that contemplated sale of property without specifying date
required property to be sold by reasonable date).
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Because the divorce decree’s provisions do not specify by when or for how
much the House must be sold, the law provides these two missing terms: The
House must be sold at a reasonable time and for a reasonable price.
The receivership order authorizes the receiver to sell the House “in his sole
discretion . . . upon terms and conditions determined by him . . . .” In other words,
the order does not require that the receiver sell the House at a reasonable time and
for a reasonable price. Accordingly, we hold that the receivership order modifies
the division of property in William and Vickie’s decree of divorce.
Vickie nevertheless maintains that the trial court’s order was proper because
she holds an equitable vendor’s lien on the House and thus has the right to force a
sale of the House through the appointment of a receiver. Vickie contends that the
lien was created by the divorce decree.
Under Texas law, a divorce decree by which the ex-husband agrees to pay
the ex-wife a sum of money in consideration for the conveyance of her interest in
real property creates an equitable vendor’s lien for the ex-wife. McGoodwin v.
McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984); Bowden v. Knowlton, 734 S.W.2d
206, 208 (Tex. App.—Houston [1st Dist.] 1987, no writ). Although the ex-wife no
longer has title to the property, she can use the lien as an encumbrance against the
property to satisfy the debt. Hankins v. Harris, No. 01–15–00396–CV, 2016 WL
4032639, at *4 (Tex. App.—Houston [1st Dist.] July 26, 2016, pet. filed). If the
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ex-husband fails to satisfy the debt after the lien matures, the ex-wife may
foreclose on and force the sale of the property. McGoodwin, 671 S.W.2d at 883;
see In re Miller, 58 B.R. 192, 197 (Bankr. S.D. Tex. 1985) (“When the equitable
lien matured, [the ex-husband] had the right to foreclose if the lien was not paid.”).
The record does not support Vickie’s contention on appeal that the
receivership order was proper because she holds an equitable vendor’s lien on the
House. Vickie moved to appoint a receiver because the House was allegedly at
risk of foreclosure. She never argued below that she held a vendor’s lien on the
House. At the receivership hearings, Vickie presented no evidence that she held a
vendor’s lien or that the alleged lien had matured. Because Vickie presented no
evidence that she holds a vendor’s lien on the House, we hold that the trial court
could not have based its receivership order on such a finding.
By appointing a receiver to sell the House “in his sole discretion . . . upon
terms and conditions determined by him,” the trial court improperly modified the
division of property made in William and Vickie’s decree of divorce. We hold that
the trial court’s order is unenforceable and sustain William’s second issue.
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Conclusion
We vacate the trial court’s order and remand for further proceedings
consistent with this opinion.
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
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