Jimie Dianne Owsley v. Brian Leon Owsley ( 2022 )

NUMBER 13-18-00636-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JIMIE DIANNE OWSLEY, Appellant,
v.
BRIAN LEON OWSLEY, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Jimie Dianne Owsley challenges the trial court’s judgment granting
appellee Brian Leon Owsley’s motion to enforce a final decree of divorce. By seven
issues, appellant contends that: (1) the trial court “improperly modified the Decree of
Divorce”; (2) the trial court improperly found that she did not refinance a mortgage on
community property within sixty days; (3) the trial court improperly enforced the divorce
decree by contempt; (4) the trial court abused its discretion in a myriad manner; (5) the
trial court abused its discretion by awarding attorney’s fees to appellee; (6) “[t]he provision
in the Divorce Decree relating to the title to the two vehicles is not sufficiently specific to
support a finding of contempt”; and (7) “[t]he [t]rial [c]ourt abused its discretion by setting
a supersedeas bond at $250,000, in violation of the standards of” the Texas Rules of
Appellate Procedure and the Texas Civil Practice and Remedies Code. We affirm.
I. PERTINENT FACTS
The parties were divorced in 2016. In 2018, appellee filed a motion to enforce the
divorce decree. The trial court granted that motion after a hearing. In its enforcement
order, the trial court found that appellant had failed to comply with a multitude of provisions
of the divorce decree, including failing to (1) refinance the mortgage on a house the couple
owned in Las Vegas in her sole name within sixty days of the divorce decree, (2) provide
appellee with title to two vehicles which were in her name and were awarded to appellee
in the divorce decree, and (3) pay attorney’s fees to appellee.
The trial court ordered that the Las Vegas property “be listed for immediate sale,
and sold”; that appellant pay appellee attorney’s fees; that appellant provide appellee
valid titles to each of the vehicles awarded to him in the divorce decree but registered in
her name; and that appellant pay a supersedeas bond in the amount of $250,000. The
trial court also made several orders relating to the sale of the Las Vegas property and
held appellant in contempt of court. Appellant then appealed the judgment on November
16, 2018.
Subsequently, on March 1, 2019, appellant filed a suggestion of bankruptcy in our
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Court. See TEX. R. APP. P. 8.1. We therefore abated this appeal pending the filing of a
motion to reinstate. See id. 8.3(8). On December 14, 2020, appellant filed a motion to
reinstate this appeal stating that the bankruptcy court had confirmed the bankruptcy plan.
We granted the motion and reinstated the appeal on December 23, 2020.
II. APPELLANT’S FIRST ISSUE
By her first issue, appellant contends that the trial court “improperly modified the
Decree of Divorce, which is prohibited by Tex. Fam. Code §§ 9.006(b) and 9.007(a) &
(b).” Specifically, by three sub-issues, appellant claims that the trial court “impermissibly
modified” the divorce decree in three areas.
In her first sub-issue, appellant states that the trial court held her “in contempt of
court and sets her punishment at three days in jail,” but ordered that “she can avoid
incarceration if she provides [appellee] with valid Texas Certificates of Title for both
vehicles free of liens.” Appellant claims that holding her in contempt of court is a deviation
from the divorce decree and impermissibly altered the divorce decree, which she claims
merely required that she provide title to the vehicles if “available.”
To the extent she is complaining about the contempt order itself, as pointed out by
appellee, generally, an order of contempt is not appealable. See In re Office of Atty. Gen.
of Tex., 215 S.W.3d 913, 916 (Tex. App.—Fort Worth 2007, no pet.) (“A contempt
judgment may be attacked by a petition for writ of habeas corpus (if the contemnor is
confined) or a petition for writ of mandamus (if no confinement is involved); however,
because a contempt order is not a final judgment, a remedy by appeal does not lie.”)
(Internal citation omitted). Appellant does not argue on appeal that an exception to the
general rule applies to the facts here. And, in her reply brief states that she is not
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appealing the contempt order. Nonetheless, we conclude that appellant’s complaint that
holding her in contempt for not producing the titles to the vehicles is paramount to
deviating from the divorce decree, is a challenge to the contempt order itself, and thus
not an appealable complaint. See id.Next, by her second sub-issue, appellant complains that although appellee
admitted “that he refused to sign paperwork to allow the refinancing [of the couple’s Las
Vegas property] to go forward and without evidence that the mortgage cannot be
refinanced in [appellant’s] sole name,” “[t]he order being appealed orders that the
[couple’s Las Vegas] property be sold and gives [appellee] the exclusive authority to”
perform several tasks related to the sale including, among other things, “obtain[ing] a
competitive market analysis of the value of the house, select[ing] a listing agent or broker,
and sell[ing] the house at any price at or above 90% of the price indicated in the market
analysis.” According to appellant, the sale of the Las Vegas property was thus “converted
from a conditional event stated in the Decree to a mandatory requirement in the Order,
without regard to whether the condition for sale contained in the Decree had been met.”
We disagree with appellant to the extent that she argues that there is no evidence
that she could not refinance the Las Vegas loan in her own name —and therefore, the
trial court modified the decree by ordering the property to be sold—we note that the trial
court heard evidence that appellant did not refinance the loan within sixty days of the
judgment, a fact she does not challenge on appeal. Appellant claims that appellee
prevented her from refinancing the loan, but the evidence supports the trial court’s implied
finding that appellee did not do that.
By her third sub-issue to her first issue, appellant states: “[She] was enjoined from
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interfering with the sale of the property,” the “injunction was not contained in the Divorce
Decree, and there were no pleadings or evidence to support the issuance of an injunction
under TEX. R. CIV. P. 683.” Appellant instructs the Court to “See Issue No. 4(9) below.”
As pointed out by appellee, and not disputed by appellant, the Las Vegas property
was sold. Accordingly, a controversy no longer exists regarding appellant’s above-
mentioned complaints. “If a controversy ceases to exist—the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome—the case
becomes moot.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). When an appellate
court’s judgment cannot have any practical legal effect upon a previous existing
controversy, the case is also moot. Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007)
(“An appeal is moot when a court’s action on the merits cannot affect the rights of the
parties.”). Appellant has failed to establish that the appeal concerning these complaints
about the Las Vegas property is still ripe. Therefore, we conclude that these complaints
concerning the sale of the home are moot.
Having found no merit in appellant’s first issue and sub-issues, we overrule them.
III. APPELLANT’S SECOND ISSUE
By her second issue, appellant contends that the Las Vegas property was awarded
to her solely in the divorce decree; however, “[t]he order being appealed says, ‘pursuant
to the enumerated provisions of the parties’ Final Decree of Divorce signed on February
19, 2016, [the Las Vegas property was] ordered sold, and the proceeds divided.’”
Appellant argues that the trial court erred in this regard because “only if the mortgage on
the property could not be refinanced in [her] sole name [would] the [Las Vegas]
property . . . be sold and the proceeds divided.” This argument appears to be a
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restatement of appellant’s second sub-issue to her first issue and additionally appears to
challenge the sufficiency of the evidence supporting the trial court’s implied finding that
the mortgage was not refinanced in her sole name within sixty days.
As we understand it, appellant complains that there is no evidence that she
satisfied the “condition” set forth in the divorce decree. Appellant relies on evidence she
claims shows that the reason for her inability to refinance the mortgage under her name
was due to appellee’s refusal to sign the paperwork. Appellant provides one citation to an
evidentiary hearing in her argument section wherein appellee stated that he refused to
sign the closing documents for refinancing the Las Vegas property. However, appellee
also then explained that he refused to sign the paperwork because, at that point, he “had
[a trial court] order indicating that he had the right to sell” because appellant had failed to
refinance the home within the sixty-day period as ordered by the trial court.
As previously pointed out, appellant admits that, according to the divorce decree,
if she were unable to refinance the mortgage in her sole name within sixty days of the
decree, “the [Las Vegas] house would be sold and the proceeds divided.” There is
evidence in the record that appellant failed to refinance the mortgage in her sole name in
the allotted time as set out in the divorce decree. We conclude that based on the record
before us, the “condition” set forth the in the divorce decree to trigger the obligation to sell
the property was satisfied. Accordingly, we overrule appellant’s second issue.
IV. APPELLANT’S THIRD ISSUE
By her third issue, appellant again complains about the order compelling the sale
of the Las Vegas property. Appellant argues that the trial court erred pursuant to Texas
Family Code § 9.008(d) because the trial court failed to “provide a reasonable time for
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compliance before enforcing a clarifying order by contempt or in another manner.”
Specifically, appellant argues that “the Trial Court ordered the [Las Vegas] property sold
without allowing [her] a reasonable time after the Order to refinance the house in her sole
name.” Appellant, baldly states that it was “error” for the trial court to order “a sale of the
[Las Vegas] house at [appellee’s] discretion, giving [him] exclusive control over all
decisions relating to the marketing and sale of the property and prohibiting [appellant]
from interfering.”
The divorce decree stated that the house must be sold if appellant did not refinance
it in her name within sixty days, and that order is final. Therefore, the trial court was within
its authority to enforce the divorce decree by ordering the sale of the property. We
overrule appellant’s third issue.
V. APPELLANT’S FOURTH ISSUE
By her fourth issue, appellant complains that it was an abuse of the trial court’s
discretion to:
(1) give Brian Owsley exclusive control over securing a market analysis of
the Las Vegas property;
(2) give Brian the exclusive power to select the broker or agent to list the
property at a price set by Brian;
(3) provide that the house awarded in the divorce to Jimie would be sold for
a price that is 90% or more of the price suggested in the market analysis;
(4) provide for Brian to get a new market analysis if the house was unsold
at the end of six months, giving Brian the exclusive power to relist the
property at a price set by Brian;
(5) give Brian the right, if the house had not sold within 12 months, to
request a show cause and trigger a conference with the Judge to determine
if additional orders should be issued, after plenary power has expired, while
giving Jimie no such right;
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(6) require Jimie to pay half of “lender required repairs,” with no specification
of who the lender is or that the repairs be necessary and the cost
reasonable, and to require that the cost must be advanced within 72 hours
of the request for such repairs;
(7) require Jimie to sign “all documents required by the listing broker, listing
agent, and/or title company” within 72 hours of presentment, obligating her
to sign documents that have not yet been drafted, and that could contain
terms that are not reasonable or terms to which she does not agree;
(8) award half of the proceeds from sale of the property to Brian; and
(9) issue an injunction prohibiting Jimie “from interfering with the ordered
sale . . . as provided by these orders,” without sufficient pleadings and proof
to support the injunction, and where the injunction is overly vague.[1]
A. Right to Control2
First, by a sub-issue to her fourth issue, citing Elliott v. Elliott, appellant states that
although the trial court is vested with broad powers and discretion to divide the marital
estate and to make decisions regarding the adjustment of equities between the parties,
this discretion “may enlist the aid of a trustee, receiver[,] or a commissioner to effectuate
the terms and provisions of [a] judgment.” 422 S.W.2d 757, 758 (Tex. Civ. App.—Fort
Worth 1967, writ dism’d w.o.j.). Appellant then states:
Note that the court in Elliott did not suggest the appointment of one spouse
to dispose of property belonging partly to the opposing spouse. Despite
Brian’s inherent conflict of interest and demonstrable hostility toward Jimie,
the Trial Court gave Brian the authority of a receiver without the safeguards
of receivership. For example, a receiver is required to post a bond but Brian
is not required to post a bond. TEX. CIV. PRAC. & REM. CODE § 64.023. But
Brian operates without a bond and without court supervision and Jimie is
enjoined from taking any action that would interfere with Brian’s exercise of
power. This arrangement was an abuse of discretion.
1 Although appellant makes this list of complaints, she only provides purported argument
concerning the complaints we address below in sections VI. A-E.
2 We use the same titles that appellant uses in her brief to label the subsections to section VI.
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As previously stated, the property has been sold, and any issues concerning it are now
moot. We overrule appellant’s first sub-issue to her fourth issue.
B. Expiration of Plenary Power
By her second sub-issue to her fourth issue, appellant complains that the trial court
acted outside its plenary power when it ordered that appellee “could issue a show cause
or trigger a status conference after the Trial Court [lost] plenary power” if the Las Vegas
property did not sell within twelve months of the first market analysis.
Appellant cites authority establishing that a trial court’s plenary power generally
expires, and the court loses jurisdiction, thirty days after the judgment is signed. See TEX.
R. CIV. P. 329b(d). However, notwithstanding this authority, a court that rendered a
divorce decree “retains the power to enforce the property division” set forth in the decree.
TEX. FAM. CODE ANN. § 9.002. Thus, the trial court had authority to enforce the property
division. See id. We overrule her second sub-issue to her fourth issue.
C. Requirement to Make and Pay for Repairs Required by Third Persons
By her third sub-issue to her fourth issue, appellant states that “Inherently, a court
may not require a party to pay future bills without limit and without recourse to the courts”
and it cannot “order the payment of claims without the requirement that they be
reasonable and necessary.” Specifically, appellant complains of the court’s order that she
“must advance half of ‘Lender required repairs.’” Appellant notes that the order does not
identify the “lender,” and complains that it does not state that any required repairs must
be reasonable and necessary. Appellant cites authority establishing that “[a] party seeking
to recover remedial damages must prove that the damages sought are reasonable and
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necessary.”3 However, as the Las Vegas property has been sold, we conclude that this
issue is moot.
Furthermore, the case cited by appellant applies to a breach of construction
contract claim, which is not the issue here. See McGinty v. Hennen, 372 S.W.3d 625, 627
(Tex. 2012) (per curiam) (explaining that the measure of damages in a breach of
construction contract claim are remedial damages and difference-in-value damages and
stating that “[a] party seeking to recover remedial damages must prove that the damages
sought are reasonable and necessary”). Instead, here, the trial court issued an
enforcement order of a divorce decree, and appellant cites and we find no authority
prohibiting the trial court from doing so. Therefore, we conclude that in this case, remedial
damages are not applicable. See id. We overrule appellant’s third sub-issue to her fourth
issue.
D. Requirement to Sign All Documents Prepared by Third Persons
By a fourth sub-issue to her fourth issue, appellant complains as follows:
For similar reasons, a court cannot order a party to execute documents not
yet created, without regard to what the documents may say, and without
judicial recourse. No cases were found that review such an order. However,
it follows from the doctrine of ripeness that a court cannot adjudicate future
disputes that have not yet arisen. “A case is not ripe when its resolution
depends on contingent or hypothetical facts, or upon events that have not
yet come to pass.” Patterson v. Planned Parenthood, 971 S.W.2d 439, 443
(Tex. 1998). Courts do not have the power to adjudicate issues before they
arise.
This is the extent of the briefing regarding this sub-issue. Accordingly, we overrule
appellant’s fourth sub-issue to her fourth issue as inadequately briefed. See id.3 Specifically, appellant cites McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012) (per curiam).
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E. The Injunction
By her fifth sub-issue to her fourth issue, appellant contends that “a judgment
cannot stand unless it is supported by both pleadings and evidence”; “there was no
evidence offered to support a permanent injunction”; “there is no evidence of a wrongful
act, or imminent harm or irreparable injury, or absence of an adequate remedy at law”;
and “this injunction is so vague that it constitutes [an] abuse of discretion.” Appellant then
states: “Because of insufficient pleadings, lack of supporting evidence, and vagueness,
the injunction should be dissolved.”
Appellee responds that the Las Vegas property was placed under the bankruptcy
court’s review, and she was ordered to sell it as part of her bankruptcy plan. Thus,
according to appellee, the issue of the injunction is moot. We agree with appellee and
therefore overrule this issue as further discussed below.
1. Applicable Law
“[C]ourts have an obligation to take into account intervening events that may
render a lawsuit moot.” Heckman v. Williamson County, 369 S.W.3d 137, 166–67 (Tex.
2012). We lack jurisdiction to decide moot controversies and to render advisory opinions.
See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). “And we have
the power, ‘on affidavit or otherwise,’ to ‘ascertain the matters of fact that are necessary
to the proper exercise of [our] jurisdiction,’ even if evidence establishing those facts is not
in the trial court’s record. State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); see
TEX. GOV’T CODE ANN. § 22.220 (“Each court of appeals may, on affidavit or otherwise, as
the court may determine, ascertain the matters of fact that are necessary to the proper
exercise of its jurisdiction.”); see also Glass v. Sponsel, 916 S.W.2d 25, 26 (Tex. App.—
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Houston [1st Dist.] 1995, writ dism’d).
A case is not moot if a justiciable controversy between the parties exists at every
stage of the legal proceedings, including the appeal. Williams v. Lara, 52 S.W.3d 171,
184 (Tex. 2001). “If a controversy ceases to exist—the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome—the case becomes
moot.” Id. When an appellate court’s judgment cannot have any practical legal effect upon
a previous existing controversy, the case is also moot. Zipp v. Wuemling, 218 S.W.3d 71,
73 (Tex. 2007) (“An appeal is moot when a court’s action on the merits cannot affect the
rights of the parties.”).
2. Analysis
Here, even if we reverse the complained-of order regarding the injunction, the
bankruptcy court ordered the sale of the Las Vegas property, which is the subject of the
injunction, and pursuant to the bankruptcy court’s order, the Las Vegas property was sold.
Thus, the relief appellant requests from us would have no practical legal effect on the
appellant’s rights in the sale of the Las Vegas property. See id.4 We overrule this sub-
issue as moot.
VI. APPELLANT’S FIFTH ISSUE
By her fifth issue, appellant complains of the trial court’s order compelling her to
4 We note that appellee has provided the Court with a copy of an agreed order conditioning an
automatic stay regarding the Las Vegas property, wherein the bankruptcy court documented that appellant
and appellee signed an agreement which was accepted and approved by the bankruptcy court to sell the
Las Vegas property. “And we have the power, ‘on affidavit or otherwise,’ to ‘ascertain the matters of fact
that are necessary to the proper exercise of [our] jurisdiction,’ even if evidence establishing those facts is
not in the trial court’s record.” State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); see TEX. GOV’T
CODE ANN. § 22.220 (“Each court of appeals may, on affidavit or otherwise, as the court may determine,
ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction.”); see also Glass
v. Sponsel, 916 S.W.2d 25, 26 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d).
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pay attorney’s fees to appellee. As previously set out above, appellant filed for bankruptcy
during the pendency of this appeal, and the bankruptcy court ordered her to pay the
amount of attorney’s fees as found she owed by the trial court in this appeal. Thus,
appellee argues that the bankruptcy court’s order renders this appeal regarding attorney’s
fees moot. Appellant responds that the bankruptcy court’s judgment ordering her to pay
attorney’s fees is not moot because attorney’s fees are not dischargeable in bankruptcy
court.5
A case “is not rendered moot simply because some of the issues become moot
during the appellate process.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737
(Tex. 2005) (orig. proceeding). A case remains “live” to claims or issues that are not moot
even if some claims or issues become moot. See id.Nonetheless, the bankruptcy court has ordered appellant to pay the attorney’s fees
awarded in the appealed-from judgment in this case, and that order is final. Thus, even if
we were to determine that the trial court in this appeal erroneously awarded those fees to
appellee, appellant must still pay those attorney’s fees pursuant to the bankruptcy court’s
final order as she did not appeal it.6 Accordingly, our ruling in this matter cannot have any
practical legal effect upon the previous existing controversy between appellant and
appellee concerning attorney’s fees. 7 See Zipp, 218 S.W.3d at 73. Therefore, we
5 We note that appellant cites no authority, and we find none, supporting this argument.
6
This Court has no jurisdiction to correct error occurring in bankruptcy court. See In re C.C., 02-
17-00058-CV, 2017 WL 4819407, at *2 (Tex. App.—Fort Worth Oct. 26, 2017, no pet.) (explaining that if
the bankruptcy court erred, we have no jurisdiction to review that error). The bankruptcy order confirmed
appellant’s plan that she would pay appellee’s attorney’s fees.
7
We note that the bankruptcy court found that appellee was a creditor and confirmed the parties’
agreement that appellant pay him $53,000.
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conclude that appellant’s issue regarding the award of attorney’s fees is moot. We
overrule appellant’s fifth issue.
VII. APPELLANT’S SIXTH ISSUE
By her sixth issue, appellant contends that the divorce decree’s provision relating
to two vehicles awarded to appellee “is not sufficiently specific to support a finding of
contempt.” Again, a direct appeal is not usually the procedural vehicle to challenge an
order of contempt, and appellant neither cites legal authority nor argues that an exception
to that general rule exists allowing her to challenge the trial court’s contempt order in this
direct appeal. See In re Office of Atty. Gen. of Tex., 215 S.W.3d at 916. Accordingly, we
overrule her sixth issue.8
VIII. APPELLANT’S SEVENTH ISSUE
By her seventh issue, appellant contends that the trial court “abused its discretion
by setting a supersedeas bond at $250,000, in violation of the standards of Tex. R. App.
P. 24.2 and Tex. Civ. Prac. & Rem. Code § 52.006(a).” Specifically, appellant argues that
this amount is arbitrary and was “suggested” by appellee “without explanation.” Appellant
argues as follows:
8 Appellant recognizes in her brief that “ordinarily” there is no appeal from a contempt order. She
argues nonetheless as follows:
However, Jimie is not appealing her confinement. She is appealing the Trial Court’s use of
a contempt finding to impose a jail sentence that was used to coerce her to obey an order
that the Trial Court had no power to issue. The finding of contempt is against the evidence,
the confinement to jail was unconstitutional, and both should be reversed and disallowed
as a basis for the Trial Court to try to accomplish what it was prohibited from doing—that
is, modifying the property division in a post-divorce clarification and enforcement
proceeding.
Appellant cites no supporting authority and does not present legal argument to support these bald
assertions. Accordingly, these assertions are inadequately briefed. See TEX. R. APP. P. 38.1(i).
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Tex. R. App. P. 24.2 provides that for a judgment for the recovery of property
the bond should be set at least at the value of the rent or revenue of the
property. But for a money judgment, the supersedeas bond requirement
applies only to compensatory damages, interest, and costs. Tex. Civ. Prac.
& Rem. Code § 52.006(a). Under the Order being appealed from, there
were no damages or interest. Only costs were assessed against Jimie.
Under either standard, the setting of the bond at $250,000 was an abuse of
discretion.
The complained-of order awarded appellee compensatory damages. See TEX. R.
APP. P. 24.2(a)(2). The rule states that the amount of security must be “at least” the
property’s value but it does not, explicitly or implicitly, restrict the trial court from ordering
security in excess of that amount. Instead, the trial court has the general discretion to
“make any order necessary to adequately protect the judgment creditor against loss or
damage that the appeal might cause.” TEX. R. APP. P. 24.1(e). Here, the trial court used
its discretion when it set the bond, and appellant has failed to establish on appeal that it
abused that discretion. We overrule appellant’s seventh issue.
IX. CONCLUSION
We affirm the trial court’s judgment.9
JAIME TIJERINA
Justice
Delivered and filed on the
10th day of November, 2022.
9 All pending motions, if any, are denied.
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