Sammy Alex Fambro v. Donna Ann Eddleman ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Sammy Alex Fambro

Appellant

Vs.                   No. 11-02-00190-CV B Appeal from Stephens County

Donna Ann Eddleman

Appellee

In this post-divorce proceeding, Sammy Alex Fambro appeals from an order in which the trial court found that Fambro had violated various provisions of the divorce decree by failing to turn certain personal properties over to his former wife, Donna Ann Eddleman, and by failing to pay certain debts.^[1]  The trial court also found that to require Fambro to deliver the personal property as required by the decree was not an adequate remedy, and it entered a money judgment for damages in favor of Eddleman in the amount of $45,125.  We modify and affirm.

On September 9, 1997, the trial court signed a decree in which it dissolved the marriage between Fambro and Eddleman. According to the recitals in the decree, the divorce had been Ajudicially PRONOUNCED AND RENDERED@ on March 31, 1997.  In that decree, the trial court, among other things not relevant to this appeal, divided the property of the parties and also specified the terms for delivery of the property.  On September 15, 1997,  the parties entered into a settlement agreement which changed some of the terms of the decree, including the date that Eddleman was to receive the personal property awarded to her.  The settlement agreement also provided that she was to remove her property; the terms of the decree provided that Fambro was to deliver it to her.  The settlement agreement covered other things not relevant to this appeal.

In July 1997, Fambro filed a motion for clarification and reconsideration.  Five days later, he filed an amended motion.  In January 1999, Eddleman filed a motion for clarification, for entry of judgment nunc pro tunc, and for enforcement.  In April 2001, Eddleman filed an amended motion.  In August 2002, she filed a separate motion for judgment nunc pro tunc.  Eddleman alleged that Fambro had failed to make the personal property available to her; and she sought to have the trial court enforce the provisions of the decree, hold appellant in contempt, grant a judgment for the fair market value of that property Fambro did not make available to her, and either partition any property held in common or award judgment to her for the fair market value of the property.

In July 2001, the trial court conducted a two-day hearing on Eddleman=s motion.  On March 28, 2002, the trial court entered its order on the motion. In that order, in addition to the entry of a $45,125 judgment as damages for Fambro=s failure to deliver certain personal property to Eddleman, the trial court found that Fambro had failed in many respects to perform according to the orders contained in the amended decree of divorce.   The trial court held Fambro in contempt of court for each instance of failure to perform according to the decree and fined him $500 for each violation.  However, the trial court ordered that Fambro would not be required to pay the fine if he paid the $45,125 judgment within 90 days.  The trial court also held Fambro in criminal contempt and assessed his punishment at confinement in jail for 6 months for each separate violation, to run concurrently; but it suspended the imposition of commitment if Fambro paid the sum of $45,125, plus interest, into the registry of the court.

After the trial court entered its order of enforcement on March 28, 2002, Eddleman filed another motion for judgment nunc pro tunc.  The trial court granted that motion and entered a new order of enforcement on September 3, 2002.  The changes which were made as a result of the judgment nunc pro tunc do not affect the subject of this appeal.       

In his appeal from the trial court=s order of enforcement, Fambro urges eight points of error.  In his first point of error, Fambro argues that the trial court should not have enforced the decree because it had been superceded by the later settlement agreement.  However, as the non-breaching party, Eddleman had the option to proceed under the settlement agreement or to enforce the amended decree of divorce.  Votzmeyer v. Votzmeyer, 964 S.W.2d 315 (Tex.App. B Corpus Christi 1998, no pet=n). Fambro=s first point of error is overruled.

The property with which we are concerned in the money judgment aspect of this appeal consists of livestock.  Other types of personal property were involved in the enforcement proceeding; but, as we will point out later in this opinion in connection with Fambro=s last two points of error, Eddleman has waived her claim to a money judgment in connection with that property.   

The amended decree contained an award to Fambro of various specified cattle described in the decree, and it also contained the following award:

[A]nd IT IS FURTHER ORDERED AND DECREED that SAMMY ALEX FAMBRO is awarded one-half (2) of all remaining livestock of the parties, including but not limited to one-half (2) of those listed in [Eddleman=s] Inventory and Appraisement, Schedule 2.

The trial court also entered the following award in the decree:

IT IS ORDERED AND DECREED that DONNA ANN EDDLEMAN is awarded as her sole and separate property and estate the livestock securing the note to FIRST NATIONAL BANK ALBANY/BRECKENRIDGE as follows:

a) Note #200034766 dated April 15,1996 executed by Petitioner and LEXI FAMBRO in the original principal sum of $1,050.00, secured by lien on one registered Simbrah heifer, with a balance as of January 31, 1997 in the sum of $1,050.00 plus interest;

and IT IS FURTHER ORDERED AND DECREED that DONNA ANN EDDLEMAN is awarded...one-half (2) of all livestock of the parties not herein awarded to SAMMY ALEX FAMBRO which includes but is not limited to livestock described in Schedule 2 to [Eddleman=s] Inventory and Appraisement.

                                                            *   *   *

IT IS ORDERED AND DECREED that all property belonging to the children of the marriage, including but not limited to those items listed on the attached Schedule 6 of the [Eddleman=s] Inventory and Appraisement EXCEPT as otherwise expressly provided herein, regardless of where such property is located, is confirmed as the property of the children and such property is placed under the sole and exclusive control of DONNA ANN EDDLEMAN as a parent joint managing conservator, and IT IS FURTHER ORDERED AND DECREED that any of such items now in [Fambro=s] possession are to be delivered to DONNA ANN EDDLEMAN within five (5) days from the date of signing of this decree.

In his second, third, and fifth points of error, Fambro takes the position that the effect of the trial court=s order of enforcement was to modify, alter, or change the decree.  When a trial court renders a divorce decree, it generally retains the power to enforce the property division contained in the decree.  TEX. FAM. CODE ANN. ' 9.002 (Vernon 1998).  When a party does not comply with the provisions of a decree of divorce and delivery of property awarded in the decree is no longer an adequate remedy, the trial court may render a money judgment for the damages caused by the failure to comply.  TEX. FAM. CODE ANN. ' 9.010 (Vernon 1998).  However, a trial court may not amend, modify, alter, or change the division of property.  TEX. FAM. CODE ANN. ' 9.007(a) (Vernon 1998); Shanks v. Treadway, 110 S.W.3d 444 (Tex.2003).  An order of enforcement may be used only to assist in the implementation or clarification of the decree.  Section 9.007(a).  An order that alters the substantive division of property in a final divorce decree is beyond the power of the court.  TEX. FAM. CODE ANN. ' 9.007(b) (Vernon 1998).  The question posed by Fambro=s second, third, and fifth points is whether the trial court=s order of enforcement by reduction to judgment impermissibly amends, modifies, alters, or changes the property division contained in the amended decree.

At the very least, the record in this case shows that the ownership and identity of the livestock involved in this lawsuit apparently have been the subject of confusion for quite some time.  Much of the testimony at the hearing on the motion for enforcement, for clarification, and for entry of the first requested judgment nunc pro tunc involved questions as to the real ownership of specific cattle.  However, we point out that the trial court determined the ownership of the cattle in the decree.  Neither party appealed from that determination; and that determination cannot be changed in this proceeding at this point because neither this court nor the trial court can amend, modify, alter, or change what the trial court did in the decree. Section 9.007(a).  According to the decree, Eddleman was awarded one-half of the livestock shown on Schedule 2.  There was testimony at the hearing on the motion to enforce that the cattle shown on Schedule 2 actually belonged to the children, that some of the property shown on Schedule 6 (that property confirmed in the decree as belonging to the parties= children) in fact belonged to Fambro and Eddleman, and that the schedules possibly contained duplicate listing of cattle.  That evidence cannot affect this proceeding. Some five years earlier, the trial court determined in its decree that the parties owned the livestock shown on Schedule 2 and that the parties= children owned the property shown on Schedule 6.  In any event, the evidence established that at no time did Fambro make any cattle available to either Eddleman or their children as ordered by the trial court.

When the trial court issued its order of enforcement, it found that Fambro had failed to turn over to Eddleman the cattle that Ashe was awarded in the Amended Final Decree of Divorce.@  The trial court also found that Fambro had failed to deliver to Eddleman, as provided for by the decree, the livestock which had been previously confirmed as the children=s property:  A(a) 26 adult female cows; 1 bull (registered Simmental and Simbrah cattle) plus calves and 5 yearlings; (b) 6 head registered Beefmaster cows/heifers.@  This description of the cattle is the same description as the description contained in what is referred to in the trial court as Schedule 6 (children=s property).  However, there were some of the cattle which were described in Schedule 6 but which were not specifically addressed in the order of enforcement:  A2 Simmental/ Beefmaster commercial cows.@

The trial court also found in its order of enforcement that:

The fair market value of the cattle awarded to Donna Eddleman that she did not receive which were placed under her control on page 27 of the Decree is $65,250.00 with Donna Eddleman=s controlled interest being $32,625.00.  (Emphasis added)^[2]  

The trial court further found that:

The fair market value of the cattle she did not receive that were awarded to Donna Eddleman on page 18 and 19 of the Decree is $22,000.00, with Donna Eddleman=s interest being $11,000.00.  (Emphasis added)

However, when we refer to Page 27 of the decree, we see that the property dealt with on that page of the decree is property which had been confirmed as property that belonged to the children.  When we refer to Pages 18 and 19 of the decree, we see that, as far as the claims in this appeal are concerned, the property awarded to Eddleman on those pages consists of a heifer, which we will discuss later, and:

[O]ne-half (2) of all livestock of the parties not herein awarded to SAMMY ALEX FAMBRO which includes but is not limited to livestock described in Schedule 2 to [Eddleman=s] Inventory and Appraisement.@ (Emphasis added)

With the exception of some goats, there is no other livestock listed in the decree which could be divided between Fambro and Eddleman; the remainder had either been awarded to one of the parties or confirmed as property belonging to the children.

If the trial court intended, in its order of enforcement, to award damages to Eddleman individually on property described in Schedule 6 (Page 27 of the decree), it could not because to do so would be to amend, modify, alter, or change the division of property.  The result would be an impermissible award of property to Eddleman which she had not been awarded in the decree. See Section 9.007(a).  The same is true regarding the award of damages relating to Pages 18 and 19 of the decree.  The only cattle remaining were cattle confirmed to be the property of the children.  Both parties presented evidence at the hearing on the motion to enforce which addressed what they claimed to be the true ownership of the livestock. However, regardless of the accuracy of that evidence, it comes too late.  Otherwise, there would be no finality to property divisions in divorce cases.  There is an essential need for finality of judgments in any orderly system of justice. Pearcy v. Pearcy, 884 S.W.2d 512, 514 (Tex.App. ‑ San Antonio 1994, no pet=n). 

The divorce decree clearly awarded Eddleman one-half of the cattle shown on Schedule 2.  The trial court=s enforcement order clearly should have referred to Pages 18 and 19 rather than Page 27 when the trial court found the value of the cattle awarded to Eddleman.  Otherwise, the trial court would have impermissibly modified, altered, or changed the decree.  We modify the order of enforcement to relate the damage award of $32,625 to Schedule 2 as provided in the decree on Pages 18 and 19.  The $11,000 included in Eddleman=s judgment is not referable to any property awarded to her in the final decree, and we modify the order of enforcement to delete that amount from the judgment.  We note that in so doing we modify the order of enforcement, not the decree.

When we examine the relationship between the decree and the money judgment entered by the trial court in the order of enforcement, we must conclude that the trial court neither awarded nor refused to award any money to Eddleman on behalf of the children.  The evidence shows not only that Fambro made no cattle available to Eddleman, but also that he did not make any cattle available to his children; he still owes for that.  However, that issue is not before this court at this time.  The money judgment was referable to property awarded to Eddleman in the decree as her property.

In his fourth point of error, Fambro argues that there is no evidence to support the trial court=s finding that the fair market value of the cattle awarded to Eddleman was $65,250.  In his sixth point of error, Fambro also contends that there is no evidence to support the trial court=s finding that the Simbrah heifer awarded to Eddleman had a fair market value of $1,500.

The standards that apply to a review of jury findings also apply to findings made by the trial court after a bench trial.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).  Fambro has not challenged the factual sufficiency of the evidence.  In addressing a no-evidence point, we must view the evidence in the record in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary.  If there is any evidence of probative force to support the finding, the no-evidence point must be overruled.  Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); In re King=s Estate, 244 S.W.2d 660 (Tex.1951); see also Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998).  Any evidence supporting the finding that is of probative value and that is more than a scintilla is legally sufficient to uphold the finding.  Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Burroughs Wellcome Company v. Crye, 907 S.W.2d 497, 499 (Tex.1995).  More than  a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.  Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

Eddleman testified that her one-half interest as to the value of the cattle listed on Schedule 2 was $32,625.  Furthermore, Schedule 2 was before the trial court, and it contained a value of $64,250 for the cattle.  Viewing the evidence in the light most favorable to the findings, Eddleman=s testimony, even though the total shown on Schedule 2 is $1,000 less, is some evidence to support the trial court=s findings that the fair market value of the cattle was $65,250 and that Eddleman=s one-half interest was $32,625.  Fambro=s fourth point of error is overruled.   

At the hearing for enforcement, Eddleman introduced a summary of her testimony that included the value of the Simbrah heifer as $1,500.  This summary is some evidence to support the trial court=s finding that the fair market value of the Simbrah heifer was $1,500.  Fambro argues that this summary was not to be considered for valuation purposes.  However, the trial court stated that it would not consider the values listed for any cattle that were listed on Schedule 6.  The specific Simbrah Heifer was not listed on Schedule 6.  In any event, the trial court ultimately stated that it was overruling all objections and that it had considered all of the evidence that had been offered.  There is some evidence to support the trial court=s finding that the fair market value of the Simbrah heifer awarded to Eddleman was $1,500.  Fambro=s sixth point of error is overruled.

Fambro asserts in his seventh and eighth points of error that there is no evidence to support the trial court=s finding that he failed to deliver the non-livestock personal property to Eddleman as required by the decree and that the evidence is insufficient to support the trial court=s finding that he failed to deliver personal property confirmed to be Eddleman=s separate property.  Both at trial and on this appeal, Eddleman waived her claims to enforcement as to this property because, as was revealed at trial, it was Anot worth the argument.@ No damages were awarded for this property in the money judgment.

At the enforcement hearing, Eddleman testified that she had received some of the items of non-livestock personal property but that she had not received all of the property.  Because there is some evidence to support the trial court=s finding that at least some of the non-livestock personal property was not delivered to Eddleman, the seventh and eighth points of error are overruled.

With the possible exception of his first point of error, which we have overruled, Fambro makes no complaint on appeal that is directed at the contempt portions of the order of enforcement as they relate to the livestock. Because those contempt issues were not raised by Fambro, we do not address them.  All arguments raised by Fambro have been considered, and each is overruled.

We modify the judgment of the trial court to relate the award of $32,625 to the cattle listed on Pages 18 and 19 of the decree and to delete $11,000 from the judgment because that amount is not referable to any livestock awarded to Eddleman in the original decree.  Otherwise, the judgment of the trial court, as modified, is affirmed.

JIM R. WRIGHT

                        JUSTICE

January 15, 2004

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J, and McCall, J.

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^[1]The controlling divorce decree in this case is the AAmended Final Decree of Divorce.@

^[2]The total of the figures shown on Schedule 2 is $64,250, and one-half of that amount is $32,125.