Nahida Reza v. Mohammed Mortaza Reza ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-371-CV
NAHIDA REZA APPELLANT
V.
MOHAMMED MORTAZA REZA APPELLEE
------------
FROM THE 271ST DISTRICT COURT OF WISE COUNTY
------------
MEMORANDUM OPINION 1
------------
After the execution of a mediated settlement agreement (MSA) and a
hearing on a motion to set aside the MSA, the trial court signed a divorce
decree and later denied Appellant Nahida Reza’s motion for new trial. In four
issues, Appellant complains about the property division. Because we hold that
the trial court abused its discretion in dividing the marital estate, we reverse the
1
… See Tex. R. App. P. 47.4.
trial court’s judgment in part and remand this case to the trial court for a new
division of the marital estate.
In their MSA, the parties agreed, among other things, that Appellee
Mohammed Mortaza Reza would get Sunset Gas and Grill and that Appellant
would get Bowie Fina Mart. The agreement did not specifically state that
“Sunset Gas and Grill” included the value of the associated real estate, nor did
it specify that each store’s inventory and value as a going concern was included
in its respective value. A handwritten note appended to Exhibit A of the MSA
provided, “Restructure the corporate entity consistent with the property
settlement agreement.”
The sparse record and briefs before us show that at the time the parties
executed the MSA, D&R Investments, Inc., identified variously as a corporation
and a limited liability company (LLC) owned by the parties, owned the two
businesses as well as the real estate associated with Sunset Gas and Grill.2
The record also shows that D&R had filed assumed name certificates in the
2
… See Siefkas v. Siefkas, 902 S.W.2d 72, 79 (Tex. App.—El Paso 1995,
no writ) (“[U]nless the corporation is a spouse's alter ego, a court may only
award a spouse's interest in the corporation, not specific corporate property.”);
Thomas v. Thomas, 738 S.W.2d 342, 343 (Tex. App.—Houston [1st Dist.]
1987, writ denied) (same); see also Tex. Rev. Civ. Stat. Ann. art. 1528n, art.
4.04 (Vernon 2003) (“A membership interest is personal property. A member
has no interest in specific limited liability company property.”).
2
names of Sunset Gas and Grill and Bowie Fina Mart. Neither party pled alter
ego, nor was it tried by consent because there was no trial.3
D&R was not divided or even mentioned in the MSA. Nevertheless, in the
divorce decree, the trial court awarded all interest in D&R to Appellee.
Appellant complained of this award in her motion for new trial, preserving the
issue. Because the MSA did not divide D&R, we hold that the trial court
abused its discretion by awarding all interest in D&R to Appellee.4 We therefore
sustain Appellant’s first issue. We do not reach her remaining issues.5
We affirm the trial court’s judgment in part and reverse it in part. The
parties have not challenged the validity of their divorced status or the provisions
regarding the children. W e therefore affirm that part of the trial court’s
judgment granting the divorce and all provisions related to the children. But
because the trial court went beyond the terms of the MSA by awarding all
3
… See Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991) (holding
there was no support for judgment based on alter ego when it was neither pled
nor tried); Town Hall Estates Whitney, Inc. v. Winters, 220 S.W.3d 71, 86
(Tex. App.—Waco 2007, no pet.) (same).
4
… See Tex. Fam. Code Ann. § 6.602(c) (Vernon 2006); In re Marriage
of Joyner, 196 S.W.3d 883, 890 (Tex. App.—Texarkana 2006, pet. denied);
Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.—Dallas 2004, no pet.)
(both holding that a trial court has no authority to enter a judgment that varies
from the terms of a MSA).
5
… See Tex. R. App. P. 47.1.
3
interest in D&R to Appellee, we reverse that part of the trial court’s judgment
dividing the marital estate, and we remand this case solely for a new division
of the marital estate.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DELIVERED: October 2, 2008
4