Kathleen J. Dickerson v. Larry E. Dickerson ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00030-CV
KATHLEEN J. DICKERSON APPELLANT
V.
LARRY E. DICKERSON APPELLEE
----------
FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-479099-10
----------
MEMORANDUM OPINION 1
----------
This is an appeal from a divorce that was initiated in 2010. In two issues,
Appellant Kathleen J. Dickerson (Wife) complains that the trial court erred by
denying her a jury trial, amending the divorce decree outside its plenary power,
and failing to follow the mediated settlement agreement (MSA) that she entered
into with Appellee Larry E. Dickerson (Husband). Husband did not file a brief.
1
See Tex. R. App. P. 47.4.
Because we hold that Wife expressly waived a jury trial, that her motion for new
trial extended the trial court’s plenary power beyond the date the trial judge
signed the amended decree, and that she is judicially estopped from now
contending that the MSA should be enforced, we affirm the trial court’s judgment.
Wife expressly waived a jury trial on the record at a hearing in this cause.
Soon thereafter, the trial court signed an order stating that both parties waived
the right to a jury trial. Nevertheless, Wife later requested a jury trial on multiple
occasions, and the trial court denied her requests.
During the lengthy proceedings below, a special master was appointed.
The trial court subsequently broadened the powers of the special master and
changed his title to receiver (Receiver). The trial court gave Receiver control
over an airplane hangar, the ownership of which was disputed by Wife and
Husband. Husband filed a motion requesting that Receiver sell the hangar
property, and the trial court granted the motion and ordered that the property be
sold.
On December 8, 2012, Husband and Wife entered into an MSA that
extinguished temporary orders but also specifically excluded the topic of
attorney’s fees and claims of intervenors, who were several attorneys who had
represented Wife in succession and who had intervened in the lawsuit to obtain
their claimed fees. On December 12 and December 13, the trial court conducted
a bench trial regarding attorney’s fees and intervenors’ claims for attorney’s fees.
2
On January 10, 2013, the trial court signed a final decree of divorce
incorporating terms that Husband and Wife had agreed to in mediation. The
decree awarded Wife the hangar property and an airplane from the community
estate, and it ordered each party to pay his or her own attorney’s fees except for
$3,660 awarded to Husband’s trial counsel from Wife. The decree did not
expressly terminate or continue the duties of Receiver. On January 18, 2013, the
trial court signed a judgment in favor of one of Wife’s former attorney’s and
against Wife.
Wife filed a motion for new trial on January 23, 2013, challenging, among
other things, the MSA, and on that day and on days to follow, the trial court
signed more individual judgments against Wife and in favor of her former
attorneys for attorney’s fees.
While the trial court’s period of plenary power as extended by the filing of
Wife’s motion for new trial remained open, Receiver filed a motion to reconfirm
the court’s previous order that he sell the airplane and hangar. The trial court
granted the motion. On April 18, 2013, the trial court signed an amended decree
of divorce. This amended decree ordered that Receiver would continue in that
role until further order of the court and would continue to have full authority over
the property previously ordered into his care.
In her first issue, Wife contends that the trial court erred by denying her a
jury trial. On November 29, 2011, in a hearing on Husband’s motion to release
funds, new counsel appeared on Wife’s behalf. Wife waived a jury trial on the
3
record after the trial judge indicated that he would likely deny a motion for
continuance of a jury trial setting but would grant a motion for continuance of a
bench trial setting, explaining that a one-day bench trial would be easier to reset
sooner than a four-day jury trial. The trial judge signed an order commemorating
this waiver on December 14, 2011. Wife’s newer trial counsel, not the “new” trial
counsel who appeared only at the November 29, 2011 hearing, did not sign the
order. Wife relies on GMC v. Gayle to neutralize her express waiver, but that
case does not address express waivers of jury trial. 2 Because Wife expressly
waived a jury trial on the record, we overrule her first issue. 3
In her second issue, Wife initially contends that the trial court erred by
amending the divorce decree after the trial court’s plenary power expired. The
trial court signed the original decree on January 10, 2013. Wife filed a timely
motion for new trial on January 23, 2013. 4 That motion for new trial was
overruled by operation of law on March 26, 2013, seventy-five days after the
signing of the original decree. 5 The trial court’s plenary power extended thirty
days thereafter, or until April 25, 2013. 6 Consequently, the trial court amended
2
951 S.W.2d 469 (Tex. 1997) (orig. proceeding).
3
See Norton v. Deer Creek Prop. Owners Ass’n, No. 03-09-00422-CV,
2010 WL 2867375, at *6 (Tex. App.—Austin July 22, 2010, no pet.) (mem. op.).
4
See Tex. R. Civ. P. 329b(a).
5
See Tex. R. Civ. P. 329b(c).
6
See Tex. R. Civ. P. 329b(e).
4
the final judgment well within its plenary power. We overrule this part of Wife’s
second issue.
In the remainder of her second issue, Wife contends that the trial court
failed to give effect to the MSA. But Wife filed a motion for new trial contending
that the MSA is not enforceable. She is therefore estopped from contending that
the MSA should be enforced. 7
Nevertheless, we point out that the MSA expressly excluded Wife’s
attorney’s fees and the claims of the intervenors, all former attorneys of hers in
this matter. In fact, the appendix to the MSA specifically provides,
Attorney’s Fees in This Case
12.1 Attorney’s fees, including intervenors’ claims, are subject to a
trial scheduled December 12, 2012.
Further, the record before us contains another indication that the trial court
severed the attorney’s fee/intervenors’ issues from the MSA. Husband’s trial
counsel stated on December 12, 2014, the date of the trial on attorney’s fees,
The mediated settlement agreement is also on file with the
court. We did not send that to the intervenors, because at the last
setting, you severed.
....
The only thing that is outstanding in our—in our mind is
attorney’s fees. And we did reserve that in the mediated settlement
agreement, and said that it was available to be decided today at final
7
See Brooks v. Brooks, 257 S.W.3d 418, 423 (Tex. App.—Fort Worth
2008, pet. denied).
5
trial. And that was just any award of attorney’s fees and also the
intervenors’ claims.
Finally, even if Wife were not estopped from now contending that the trial
court should have enforced the MSA, we are not prepared to hold that the trial
court abused its discretion by continuing the appointment of or reappointing
Receiver to enforce the trial court’s post-MSA judgments against Wife and in
favor of the intervenors. Receiver filed a motion on March 7, 2013, while Wife’s
motion for new trial challenging the MSA and original decree was pending, to
reconfirm his authority to sell the property originally ordered to be sold on
October 30, 2012. The trial court granted the motion on March 28, 2013. The
trial court had statutory authority to appoint Receiver during the pendency of
proceedings 8 and inherent authority to appoint Receiver to enforce its judgments,
including those for the intervenors and against Wife. 9 We overrule Wife’s second
issue.
Conclusion
Having overruled Wife’s two issues, we affirm the trial court’s judgment.
8
See Tex. Fam. Code Ann. § 6.502 (West 2006); In re C.F.M., 360 S.W.3d
654, 658 (Tex. App.—Dallas 2012, no pet.).
9
See Young v. Young, 765 S.W.2d 440, 444 (Tex. App—Dallas 1988, no
writ); Elliott v. Elliott, 422 S.W.2d 757, 758 (Tex. Civ. App.—Fort Worth 1967, writ
dism’d); see also Wells Fargo Home Mortgage, Inc. v. Alford, No. 02-08-00355-
CV, 2010 WL 144397, at *1 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.)
(mem. op.).
6
PER CURIAM
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: November 26, 2014
7