Laurie A. Voight v. Kevin J. Voight ( 2017 )

ACCEPTED
02-17-00165-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/11/2017 4:36 PM
DEBRA SPISAK
CLERK
NO. 02-17-00165-CV
FILED IN
2nd COURT OF APPEALS
IN THE FORT WORTH, TEXAS
SECOND COURT OF APPEALS 12/11/2017 4:36:45 PM
AT FORT WORTH, TEXAS DEBRA SPISAK
Clerk
______________________________
LAURIE VOIGHT, Appellant,
v.
KEVIN VOIGHT, Appellee.
_______________________________
ON APPEAL FROM THE
TH
324 DISTRICT COURT OF TARRANT COUNTY, TEXAS
TRIAL COURT NO. 324-610645-17
__________________________________________________________________
AMENDED APPELLEE'S BRIEF
__________________________________________________________________
KAREN L. BAYLOR
State Bar No. 00798549
BAYLOR FAMILY LAW
9500 RAY WHITE ROAD
SUITE 200
FORT WORTH, TEXAS 76244
Tel. (817) 745-4705
Email: karen@baylorfamilylaw.com
ATTORNEY FOR APPELLEE
KEVIN J. VOIGHT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, the
undersigned counsel for Appellee certifies that the following is a list of all parties
and counsel to the Trial Court’s Order, including a designation of the trial counsel
and a correction of appellee counsel:
Trial Counsel for Appellant:
KYLE CLAUNCH
State Bar No. 04326150
301 West Central Avenue
Fort Worth, Texas 76164
Tel.: (817) 335-4003
Fax: (817) 335-7112
Appellate Counsel for Appellant/Petitioner:
Perry J. Cockerell
State Bar No. 04462500
Adkerson, Hauder & Bezney P.C.
1700 Pacific Avenue, Suite 4450
Dallas, Texas 75201
Tel.: (214) 740-2521
Fax: (214) 740-2501
pcockerell@ahblaw.net
Trial Counsel for Appellee: Appellate Counsel for Appellee/Respondent:
Aaron L. Benter Karen L. Baylor
State Bar No. 24059051 State Bar No. 00798549
MARX, ALTMAN & JOHNSON BAYLOR FAMILY LAW
2905 Lackland Road 9500 Ray White Road, Suite 200
Fort Worth, Texas 76116 Keller, Texas 76244
Tel.: (817) 926-2611 Tel.: (817) 745-4705
Fax: (817) 926-6188 karen@baylorfamilylaw.com
aaronbenter@majadmin.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………ii
TABLE OF CONTENTS………………………………………………………..iii
INDEX OF AUTHORITIES…………………………………………………….iv
STATEMENT OF FACTS……………………………………………………….1
SUMMARY OF ARGUMENT…………………………………………………..3
ARGUMENT……………………………………………………………………..5
PRAYER………………………………………………………………………...13
CERTIFICATE OF COMPLIANCE & CERTIFICATE OF SERVICE……….15
APPENDIX……………………………………………………………………..16
A ASSOCIATE JUDGE’S SUPPLEMENTAL REPORT
B TEXAS FAMILY CODE, CHAPTER 9
iii
INDEX OF AUTHORITIES
CASE LAW
Beck v. Walker, 154 S.W.3d 895 (Tex. App.-Dallas 2005, no pet.)
Bell Aerospace Corp. v. Anderson, 478 S.W.2d 191 (Tex.Civ.App.-El Paso, 1972)
DeGroot v. DeGroot, 369 S.W.3d at 922 (Tex.App.-Dallas 2008, no pet.)
Garza et al. v. Alviar et al., 395 S.W.2d 821 (Sup.Ct. 1965)
Hollingsworth v. Hollingsworth, 274 S.W.3d 811 (Tex. App. - Dallas 2008)
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992)
In re Pyrtle, 433 S.W.3d 152 (Tex. App. - Dallas, 2014)
In re T.J.L., 97 S.W.3d 257 (Tex. App.-Houston [14th Dist.] 2002, no pet.)
Missouri Pac. Ry. Co. v. Somers, Tex. 439, 14 S.W. 779 (1890)
McMillen Feeds, Inc. of Texas et al. v. Harlow, 405 S.W.2d 123
(Tex.Civ.App.)(Ref. n.r.e.)
TEXAS FAMILY CODE
Tex. Fam. Code §§ 9.001 – 9.010
ARTICLES
Robert W. Calvert, 38 Tex.Law Rev. 361
30 Tex. L. Rev. 803
iv
STATEMENT OF FACTS
The underlying case was initiated by KEVIN J. VOIGHT (APPELLEE) with
a Petition for Enforcement of Property Division by Contempt. (CR 4). The
property division was originally set out in a Final Decree of Divorce signed by the
324th Judicial District Court of Tarrant County, Texas, on January 10, 2017. That
Final Order was referenced in Mr. VOIGHT’s Petition for Enforcement. The
provisions sought to be enforced from the Order (Final Decree of Divorce) were
also clearly and specifically stated in his Petition for Enforcement, along with
LAURIE A. VOIGHT’s (APPELLANT’s) exact violation of the Final Decree of
Divorce through her failure to move from the residence confirmed as the separate
property KEVIN J. VOIGHT (APPELLEE) by a date certain. (Id.). The date of
compliance in the Final Decree of Divorce is NOVEMBER 15, 2016, however,
this date was inadvertently recorded in the Petition for Enforcement as
NOVEMBER 1, 2016. (Id.). This was a clerical error by trial counsel when
drafting the Petition. This error WAS NOT brought to the attention of the under
Court prior to or during the hearing below. It was clarified in testimony to the
Court in the hearing on the Enforcement. (RR 9, 28, 29, 40 & 41). No objections
were considered as to alleged vagueness of the Petition for Enforcement.
An Associate Judge’s Supplemental Report (not an “Order”) was rendered
on February 24, 2017, with the date of February 26, 2017, as the date
APPELLANT was to deliver the residence to APPELLEE following the filing of
1
his Petition for Enforcement. (CR 14). The same Report noticed all parties of the
reset date (MARCH 17, 2017) for the Hearing on the Petition for Enforcement.
(Id.). The Report went on to specifically reserve the issue of damages until the
reset date. (Id.).
On March 17, 2017, the Court took testimony that APPELLANT did not
move out of the residence on or before November 15, 2016; that APPELLANT did
not move out of the residence on or before November 30, 2016; that APPELLANT
did not move out of the residence on or before February 26, 2017; and that the
APPELLANT did not move out of the residence until March 3, 2017. (RR 10, 11,
19, 28, 29, 41 & 42). APPELLEE testified that he incurred damages due to
APPELLANT’s failure to move out of his separate property residence. (RR 12, 13,
24 & 25). Said damages were expenses APPELLEE incurred as a direct result of
not being allowed rightful use of his residence, specifically, housing expenses (rent
and deposits) for himself, boarding expenses for his dogs, and additional expenses
for medical injections for his dogs while being boarded. (Id.).
After receiving testimony and evidence, the under Court signed an Order
finding LAURIE A. VOIGHT (APPELLANT) failed to comply with and therefore
violating the provisions of the order (Final Decree of Divorce) when she did not
vacate the residence at 4201 Spindletree Lane, Fort Worth, TX 76137 until March
3, 2017. (CR 15 & 19). The Court below went on to award damages to KEVIN J.
VOIGHT (APPELLEE) in the amount of $5,000.00 for Ms. VOIGHT’s failure to
comply with the Final Decree of Divorce. (Id.)(RR 24). This $5,000.00 was
ordered to be deducted from the $16,500.00 owed to Ms. VOIGHT under other
provisions of the Final Decree of Divorce. (Id.).
2
SUMMARY OF ARGUMENT
The Orders entered enforcing the Final Decree of Divorce and finding
LAURIE A. VOIGHT (APPELLANT) in contempt should be confirmed.
APPELLANT’s suggestion to the Honorable Court that it is not possible to
determine the exact compliance date for move out is erroneous and misleading.
Though the date of November 1, 2016, was recorded in APPELLEE’s Petition for
Enforcement as an inadvertent clerical error, the date Ordered in the Final Decree
of Divorce for APPELLANT to turn over KEVIN J. VOIGHT’s (APPELLEE’s)
separate property residence was clarified through testimony elicited at the
Enforcement hearing in open Court as being November 15, 2016. (RR 9, 28, 29, 40
& 41). This date Ordered in the Final Decree of Divorce was not contested by
APPELLEE in the Enforcement hearing.
The Associate Judge did not “extend” the move out date Ordered in the
Final Decree of Divorce. Rather, the Associate Judge’s Supplemental Report
provided a means of enforcement of the division of property made in the Final
Decree of Divorce by establishing a new date and time to deliver the specific
existing property (APPELLEE’s separate property residence) awarded previously.
(CR 14). The original date of compliance, November 15, 2016, remains
enforceable under the Final Decree of Divorce. APPELLANT’s own testimony in
the Court below was that she moved out on March 3, 2017, eight (8) days AFTER
3
the date in the Associate Judge’s Supplemental Report. (RR 29). Had the Report
been reduced to writing and entered with the Court as an Order, APPELLEE was
within his legal rights to amend his Motion for Enforcement after February 26,
2017, and request a second count of Contempt be Ordered against APPELLANT,
not give up his legal right to the first count.
Further, this is not a case of a “hold over tenant” or of “special damages”.
It is a Post-Divorce Enforcement of Property case under Chapter 9 of the Texas
Family Code. The remedy utilized by the Trial Court of the reduction to money
judgment following APPELLANT’s failure to delivery the property awarded in the
Decree is not only the “proper measure of damages”, it is statutorily sanctioned
when delivery of the property alone is no longer an adequate remedy. Tex. Fam.
Code Ann § 9.010. Considering the financial damages KEVIN J. VOIGHT
(APPELLEE) suffered from LAURIE A. VOIGHT’s (APPELLANT’s) failure to
comply with the Court’s Order, the award of $5,000.00 for damages is not an abuse
of the Trial Court’s discretion. (RR 47).
4
ARGUMENT
APPELLANT first presents the issue of whether the trial court abused its
discretion in holding LAURIE A. VOIGHT in contempt of court for not
timely moving out of the marital residence because there was no evidence of
the court order that was violated and the compliance date was extended.
KEVIN J. VOIGHT, APPELLEE, would begin his argument in support of
the Trial Court’s ruling by address the legal term “abuse of discretion” when
applied to a Texas Family Code Chapter 9 case. A trial court's decision to grant or
deny the relief requested in a post-divorce motion for clarification
or enforcement is reviewed for an abuse of discretion. See Hollingsworth v.
Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.-Dallas 2008, no pet.). When, as
here, the trial court did not file findings of fact and conclusions of law, we imply
that the trial court made all findings necessary to support the judgment and will
uphold those findings if supported by sufficient evidence. See Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex. 1992); Beck v. Walker, 154
S.W.3d 895, 901 (Tex. App.-Dallas 2005, no pet.). Under the abuse of discretion
standard, sufficiency of the evidence is not an independent ground of error but
rather is a relevant factor in assessing whether the trial court abused its discretion.
Beck, 154 S.W.3d at 902; In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston
5
[14th Dist.] 2002, no pet.). When acting as fact finder, the trial court is the sole
judge of witnesses' credibility and can draw reasonable inferences from the facts.
See Beck, 154 S.W.3d at 901.
No Evidence of the Court Order
In the instant case, the property division was originally set out in a Final
Decree of Divorce signed by the 324th Judicial District Court of Tarrant County,
Texas, on January 10, 2017. That Final Order and date of entry were referenced in
Mr. VOIGHT’s Petition for Enforcement. (CR 4). The provisions sought to be
enforced from the Order (Final Decree of Divorce) were also clearly and
specifically stated in his Petition for Enforcement, along with LAURIE A.
VOIGHT’s (APPELLANT’s) exact violation of the Final Decree of Divorce
through her failure to move from the residence which had been confirmed as the
separate property of KEVIN J. VOIGHT (APPELLEE) by a date certain. (Id.).
The date of compliance in the Final Decree of Divorce is NOVEMBER 15, 2016,
however, this date was inadvertently recorded in the Petition for Enforcement as
NOVEMBER 1, 2016. This was a clerical error by trial counsel when drafting the
Petition. This error WAS NOT brought to the attention of the under Court prior to
or during the hearing below. Testimony was elicited to clarify this issue at the
Hearing on the Motion for Enforcement. (RR 9, 28, 29, 40 & 41). Further, no
objections were considered as to alleged vagueness of the Petition for Enforcement
due to this clerical error.
It is uncontested by APPELLANT that on March 17, 2017, the Court took
6
testimony from the parties that APPELLEE, KEVIN J. VOIGHT, agreed to allow
APPELLANT, LAURIE A. VOIGHT, to remain an extra 15 days at the residence;
that he agreed she could stay in the residence until November 30, 2016; that
APPELLANT did not move out of the residence on or before November 15, 2016;
that APPELLANT did not move out of the residence on or before November 30,
2016; that APPELLANT did not move out of the residence on or before February
26, 2017; and that the APPELLANT did not move out of the residence until March
3, 2017. (RR 10, 11, 19, 18, 29, 41 & 42). Additional uncontested testimony of
APPELLEE was that he incurred damages due to APPELLANT’s failure to move
out of his separate property residence; that said damages were expenses
APPELLEE incurred as a direct result of not being allowed rightful use of his
residence; and specifically, that those damages included housing expenses (rent
and deposits) for himself, boarding expenses for his dogs, and additional expenses
for medical injections for his dogs while being boarded. (RR 12, 13, 24 & 25).
It is significant to note that the February 26, 2017, date was brought into
testimony because an Associate Judge’s Supplemental Report (not an “Order”) was
rendered on February 24, 2017, with the date of February 26, 2017, as the date
APPELLANT was to deliver the residence to APPELLEE following the filing of
his Petition for Enforcement. (CR 14). The same Report noticed all parties of the
reset date (MARCH 17, 2017) for the Hearing on the Petition for Enforcement.
(Id.). The Report went on to specifically reserve the issue of damages until the
reset date. (Id.).
7
The basic rule for considering 'no evidence' and 'insufficient evidence' points
of error is contained in the article of Robert W. Calvert, 38 Tex.Law Rev. 361. In
deciding 'no evidence' points, the reviewing Court should view the evidence in its
most favorable light in support of the finding of fact, considering only the evidence
and inferences which support the finding and rejecting the evidence and inferences
to the contrary. In considering 'insufficient evidence' points, the entire record must
be considered, and such points sustained if the evidence is factually insufficient to
support a finding or if the finding is so contrary to the great weight and
preponderance of the evidence as to be clearly wrong. It is the duty of this Court to
consider the 'no evidence' points first.
…
As Chief Justice Calvert of the Texas Supreme Court stated in 38 Texas Law
Review at p. 367:
'If there is evidence of probative force tending to prove the existence of a vital fact
and evidence tending to disprove its existence and the point of error is that the
finding is against the great weight and preponderance of the evidence, the rule by
which a Court of Civil Appeals should be guided in passing on the point is simple
even if the conclusion to be reached in a particular case is difficult. If the finding
of the existence of the fact, considering all of the evidence, is so contrary to the
great weight and preponderance of the evidence as to be clearly wrong and unjust,
8
the court should sustain the point and order a new trial; otherwise, the court should
overrule the point and affirm.' (Citing Missouri Pac. Ry. Co. v. Somers, 78 Tex.
439, 14 S.W. 779 (1890); 30 Tex. L. Rev. 803). See also Garza et al. v. Alviar et
al., 395 S.W.2d 821 (Sup.Ct.1965); McMillen Feeds, Inc. of Texas et al. v. Harlow,
Tex.Civ.App., 405 S.W.2d 123 (Ref. n.r.e.). Bell Aerospace Corp. v. Anderson,
478 S.W.2d 191, 195 – 198, (Tex.Civ.App.-El Paso, 1972).
APPELLEE respectfully suggest to the Honorable Court that the trial court
did not abuse its discretion in holding Laurie Voight in contempt of court for not
timely moving out of the marital residence. Based on Chief Justice Calvert’s “no
evidence” analysis herein above, this court should view the evidence in its most
favorable light in support of the finding of fact, considering only the evidence and
inferences which support the finding and rejecting the evidence and inferences to
the contrary court. When held to that burden, the trial court could have found
sufficient evidence to make all findings necessary to support the judgment.
Compliance Date was Extended
The Associate Judge did not “extend” the move out date Ordered in the
Final Decree of Divorce. Rather, the Associate Judge’s Supplemental Report
provided a means of enforcement of the division of property made in the Final
Decree of Divorce by establishing a new date and time to deliver the specific
existing property (APPELLEE’s separate property residence) awarded previously.
(CR 14).
9
The original date of compliance, November 15, 2016, remains enforceable under
the Final Decree of Divorce. APPELLANT’s own testimony in the Court below
was that she moved out on March 3, 2017, eight (8) days AFTER the date in the
Associate Judge’s Supplemental Report. (RR 29). Had the Report been reduced to
writing and entered with the Court as an Order, APPELLEE was within his legal
rights to amend his Motion for Enforcement after February 26, 2017, and request a
second count of Contempt be Ordered against APPELLANT, not give up his legal
right to the first count.
Subchapter “A” of Chapter 9 of the Texas Family Code is titled “Suit to
Enforce Decree.” See Tex. Fam.Code Ann. §§ 9.001–.014 (West 2006 &
Supp.2013). Pursuant to that subchapter, a party affected by a decree of divorce
providing for a division of property may request enforcement of that decree by
filing a suit to enforce in the court that rendered the decree. Id. § 9.001. Generally,
the court that rendered the decree of divorce retains the power to enforce the
property division contained therein. Id. § 9.002. Specifically, “the court may
render further orders to enforce the division of property made in the decree of
divorce ... to assist in the implementation of or to clarify the prior
order.” DeGroot, 369 S.W.3d at 922 (citing Tex. Fam.Code Ann. § 9.006(a)). The
trial court “may specify more precisely the manner of effecting the property
division previously made or approved if the substantive division of property is not
10
altered or changed.” Tex. Fam.Code Ann. § 9.006(b)… “To enforce a division in a
divorce decree of specific, existing property, the trial court may order the property
to be delivered.” DeGroot, 369 S.W.3d at 922 (citing Tex. Fam.Code Ann. §
9.009). In re Pyrtle, 433 S.W.3d 152 (Tex. App. - Dallas, 2014).
This is exactly what the trial court did when it signed the Associate Judge’s
Supplemental Report that “LAURIE VOIGHT will move out of 4201 Spindletree,
Fort Worth, TX 76137 by Sunday, February 26, 2017, at 3:00 p.m.”. (CR 14). The
original date of compliance, November 15, 2016, remains enforceable under the
Final Decree of Divorce. That original date was not “extended”.
The Honorable Court should overrule the APPELLANT’s first point and
affirm the trial court’s Orders.
APPELLANT’s second issue presented is whether the trial court erred in
granting $5,000.00 in damages to KEVIN J. VOIGHT because it was the
improper measure of damages for a holdover tenant and the damages offered
were special damages that were not pled.
APPELLEE would respectfully advise the Court that this query is a simple
misunderstanding of the law. The case before the Court is not a case of a “hold
over tenant” or of “special damages”. It is a Post-Divorce Enforcement of
Property case under Chapter 9 of the Texas Family Code. The remedy utilized by
the Trial Court of the reduction to money judgment following APPELLANT’s
11
failure to delivery the property awarded in the Decree is not only the proper
measure of damages, it is a self-contained, statutorily sanctioned measure of
damages when delivery of the property alone is no longer an adequate remedy. To
wit, “[i]f a party fails to comply with a decree of divorce or annulment and
delivery of property awarded in the decree is no longer an adequate remedy, the
court may render a money judgment for the damages caused by that failure to
comply.” Tex. Fam. Code Ann. § 9.010.
Much like the ruling in Pyrtle, the trial court had the authority to reduce
the property division made in the divorce decree to a money judgment pursuant to
section 9.010 of the family code. Id.; DeGroot, 369 S.W.3d at
923; Campbell, 2011 WL 2436513, at *3. Considering testimony received by the
Court below regarding the financial damages KEVIN J. VOIGHT (APPELLEE)
suffered from LAURIE A. VOIGHT’s (APPELLANT’s) failure to comply with the
Court’s Order, the award of $5,000.00 for damages is not an abuse of the Trial
Court’s discretion. (RR 12, 13, 24 & 25). Hence, the trial court did not err in
granting $5,000.00 in damages to KEVIN J. VOIGHT. (CR 15 & 19)(RR 47).
The Honorable Court should overrule the APPELLANT’s second point
and affirm the trial court’s Orders.
12
PRAYER
In conclusion, APPELLEE, KEVIN J. VOIGHT, prays this Honorable
Court find that the trial court did not abuse its discretion in determining
(1) that LAURIE A. VOIGHT (APPELLANT) failed to comply with
the Final Decree of Divorce provisions, since these provisions were clearly and
specifically stated in KEVIN J. VOIGHT’s (APPELLEE’s) Petition for
Enforcement, as was LAURIE A. VOIGHT’s (APPELLANT’s) exact violation of
the Final Decree of Divorce through her failure to move from the residence
confirmed as the separate property KEVIN J. VOIGHT (APPELLEE) by a date
certain (November 15, 2016). Additionally, the parties testified to same in open
Court, and both Court Orders entered following the hearing set out the same;
(2) that under Chapter 9 of the Texas Family Code, LAURIE A.
VOIGHT (APPELLANT) was in contempt for this violation of the Trial Court’s
Order whether or not she had moved from the property as of the date of the
contempt hearing;
(3) that under Chapter 9 of the Texas Family Code, delivery of
property awarded in the Decree was no longer an adequate remedy considering the
damages KEVIN J. VOIGHT (APPELLEE) suffered from this failure to comply;
(4) that under Chapter 9 of the Texas Family Code, the court properly
rendered a money judgment for the damages against LAURIE A. VOIGHT
(APPELLANT) caused by her failure to comply;
13
(5) that this is not a case of a “hold over tenant” or of “special
damages”, but rather that under Chapter 9 of the Texas Family Code, the remedy
of the reduction to money judgment was proper and in addition to the other
remedies provided by law;
(6) that under Chapter 9 of the Texas Family Code, the enforcement of
the division of property made in the Final Decree of Divorce by and thru the
Associate Judge’s Supplemental Report to deliver the specific existing property
awarded previously on a new date and time was NOT an extension for the original
date of compliance.
APPELLEE, KEVIN J. VOIGHT, further prays this Honorable Court
affirm the Trial Court’s judgment and award APPELLEE costs for defending this
appeal.
Respectfully submitted,
KAREN L. BAYLOR
Texas Bar No. 00798549
Email: karen@baylorfamilylaw.com
9500 RAY WHITE ROAD
SUITE 200
FORT WORTH, TEXAS 76244
Tel. (817) 745-4705
Attorney for Appellee
KEVIN J. VOIGHT
14
CERTIFICATE OF COMPLIANCE
This brief was prepared using MicroSoft Word. I certify that the word count
according to said software, excluding the cover, tables/indices, signature block and
certificates, is 3309 words. I have no reason to believe it is inaccurate.
KAREN L. BAYLOR
ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
I certify that on November 22, 2017, a true and correct copy of Amended
Appellee's Brief was served on PERRY J. COCKERELL electronically at
pcockerell@ahblaw.net, as provided by the Texas Rules of Appellate Procedure,
and the electronic transmission was reported as complete.
KAREN L. BAYLOR
ATTORNEY FOR APPELLEE
E-mail: karen@baylorfamilylaw.com
15
APPENDIX
Tex. Fam. Code, Chapter 9 (partial)….……………………………………………A
ASSOCIATE JUDGE’S SUPPLEMENTAL REPORT…………………………...B
16
A
FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE C. DISSOLUTION OF MARRIAGE
CHAPTER 9. POST-DECREE PROCEEDINGS
SUBCHAPTER A. SUIT TO ENFORCE DECREE
Sec. 9.001. ENFORCEMENT OF DECREE. (a) A party affected by a
decree of divorce or annulment providing for a division of property as provided by
Chapter 7, including a division of property and any contractual provisions under
the terms of an agreement incident to divorce or annulment under Section 7.006
that was approved by the court, may request enforcement of that decree by filing a
suit to enforce as provided by this chapter in the court that rendered the decree.
(b) Except as otherwise provided in this chapter, a suit to enforce shall be
governed by the Texas Rules of Civil Procedure applicable to the filing of an
original lawsuit.
(c) A party whose rights, duties, powers, or liabilities may be affected by
the suit to enforce is entitled to receive notice by citation and shall be commanded
to appear by filing a written answer. Thereafter, the proceedings shall be as in civil
cases generally.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 242 (H.B. 389), Sec. 5, eff. September 1,
2013.
Sec. 9.002. CONTINUING AUTHORITY TO ENFORCE DECREE. The
court that rendered the decree of divorce or annulment retains the power to enforce
the property division as provided by Chapter 7, including a property division and
any contractual provisions under the terms of an agreement incident to divorce or
annulment under Section 7.006 that was approved by the court.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 242 (H.B. 389), Sec. 6, eff. September 1,
2013.
Sec. 9.003. FILING DEADLINES. (a) A suit to enforce the division of
tangible personal property in existence at the time of the decree of divorce or
annulment must be filed before the second anniversary of the date the decree was
signed or becomes final after appeal, whichever date is later, or the suit is barred.
(b) A suit to enforce the division of future property not in existence at the
time of the original decree must be filed before the second anniversary of the date
the right to the property matures or accrues or the decree becomes final, whichever
date is later, or the suit is barred.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 9.004. APPLICABILITY TO UNDIVIDED PROPERTY. The
procedures and limitations of this subchapter do not apply to existing property not
divided on divorce, which are governed by Subchapter C and by the rules
applicable to civil cases generally.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
…
Sec. 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a)
Except as provided by this subchapter and by the Texas Rules of Civil Procedure,
the court may render further orders to enforce the division of property made or
approved in the decree of divorce or annulment to assist in the implementation of
or to clarify the prior order.
(b) The court may specify more precisely the manner of effecting the
property division previously made or approved if the substantive division of
property is not altered or changed.
(c) An order of enforcement does not alter or affect the finality of the
decree of divorce or annulment being enforced.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 242 (H.B. 389), Sec. 7, eff. September 1,
2013.
This section was amended by the 85th Legislature. Pending publication of the
current statutes, see S.B. 1237, 85th Legislature, Regular Session, for amendments
affecting this section.
Sec. 9.007. LIMITATION ON POWER OF COURT TO ENFORCE. (a)
A court may not amend, modify, alter, or change the division of property made or
approved in the decree of divorce or annulment. An order to enforce the division
is limited to an order to assist in the implementation of or to clarify the prior order
and may not alter or change the substantive division of property.
(b) An order under this section that amends, modifies, alters, or changes
the actual, substantive division of property made or approved in a final decree of
divorce or annulment is beyond the power of the divorce court and is
unenforceable.
(c) The power of the court to render further orders to assist in the
implementation of or to clarify the property division is abated while an appellate
proceeding is pending.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 9.008. CLARIFICATION ORDER. (a) On the request of a party or
on the court's own motion, the court may render a clarifying order before a motion
for contempt is made or heard, in conjunction with a motion for contempt or on
denial of a motion for contempt.
(b) On a finding by the court that the original form of the division of
property is not specific enough to be enforceable by contempt, the court may
render a clarifying order setting forth specific terms to enforce compliance with the
original division of property.
(c) The court may not give retroactive effect to a clarifying order.
(d) The court shall provide a reasonable time for compliance before
enforcing a clarifying order by contempt or in another manner.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 9.009. DELIVERY OF PROPERTY. To enforce the division of
property made or approved in a decree of divorce or annulment, the court may
make an order to deliver the specific existing property awarded, without regard to
whether the property is of especial value, including an award of an existing sum of
money or its equivalent.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 242 (H.B. 389), Sec. 8, eff. September 1,
2013.
Sec. 9.010. REDUCTION TO MONEY JUDGMENT. (a) If a party fails
to comply with a decree of divorce or annulment and delivery of property awarded
in the decree is no longer an adequate remedy, the court may render a money
judgment for the damages caused by that failure to comply.
(b) If a party did not receive payments of money as awarded in the decree
of divorce or annulment, the court may render judgment against a defaulting party
for the amount of unpaid payments to which the party is entitled.
(c) The remedy of a reduction to money judgment is in addition to the
other remedies provided by law.
(d) A money judgment rendered under this section may be enforced by any
means available for the enforcement of judgment for debt.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
…
Sec. 9.012. CONTEMPT. (a) The court may enforce by contempt an
order requiring delivery of specific property or an award of a right to future
property.
(b) The court may not enforce by contempt an award in a decree of divorce
or annulment of a sum of money payable in a lump sum or in future installment
payments in the nature of debt, except for:
(1) a sum of money in existence at the time the decree was rendered;
or
(2) a matured right to future payments as provided by Section 9.011.
(c) This subchapter does not detract from or limit the general power of a
court to enforce an order of the court by appropriate means.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
B