Andrew Morris v. Carrie Cecilia Veilleux ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00178-CV
Andrew Morris, Appellant
v.
Carrie Cecilia Veilleux, Appellee
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-19-000995, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Andrew Morris appeals from a final decree of divorce, alleging error in the trial
court’s order that he pay Carrie Cecilia Veilleux’s appellate attorneys’ fees and in its division of
the marital estate. Neither party challenges the trial court’s dissolution of the marriage or any
other portion of the decree. We will affirm the trial court’s property division but must vacate the
trial court’s order that Morris pay Veilleux’s appellate attorneys’ fees.
BACKGROUND
This is the second appeal of the trial court’s disposition of issues presented in
these marriage dissolution proceedings. In the first appeal, Morris challenged the trial court’s
conservatorship order that appointed Veilleux the joint managing conservator with the exclusive
right to establish the primary residence of their three children without geographic restriction.
In the first appeal, this Court affirmed the conservatorship order. See Morris v. Veilleux,
No. 03-20-00385-CV, 2021 WL 4341967, at * 6 (Tex. App.—Austin Sept. 24, 2021, no pet.)
(mem. op.). Morris also asserted that the trial court had erred in its division of the marital
property, specifically by including the value of a condominium in making its just and right
division of the estate. Morris argued that the condominium was not part of the marital estate
subject to the just and right division but, rather, belonged to his father. The trial court concluded
that the entire value of the condominium should be included in the parties’ community estate. In
the first appeal, this Court concluded that the condominium was owned by Morris, Veilleux, and
Morris’s father and that the trial court erred by including its total value as part of the community
estate. Id. at *8. Because including only Morris’s and Veilleux’s interest in the condominium in
the valuation of the community estate would materially affect the trial court’s just and right
division, this Court determined that the mischaracterization required the appellate court to
remand the community estate to the trial court for a just and right division of the properly
characterized community property. Id. (citing McElwee v. McElwee, 911 S.W.2d 182, 190 (Tex.
App.—Houston [1st Dist.] 1995, writ denied). On remand, the trial court signed an order stating
that the “original division of the community property as set out in the Final Decree of Divorce
filed with the Court on June 8, 2020, is JUST AND RIGHT,” thereby confirming that the
assets in the community estate be divided in the same manner as set forth in the court’s earlier
judgment. The trial court also awarded Veilleux appellate attorneys’ fees associated with
Morris’s appeal of that judgment. On appeal, Morris challenges both these portions of the trial
court’s order.
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DISCUSSION
Division of Marital Estate
In his second issue, Morris challenges the trial court’s division of the marital
estate. We review a trial court’s division of the marital estate for an abuse of discretion, but the
trial court has broad discretion in making this division. See Penick v. Penick, 783 S.W.2d 194,
198 (Tex. 1988); O’Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.)
(O’Carolan I). “To constitute an abuse of discretion, the property division must be manifestly
unfair.” O’Carolan I, 71 S.W.3d at 532 (citing Mann v. Mann, 607 S.W.2d 243, 245 (Tex.
1980)). “On appeal, we presume that the trial court exercised this discretion properly and will
reverse the cause only where there is a clear abuse of discretion.” Ashraf v. Ashraf, No. 03-11-
00467, 2012 WL 1948347, at *7 (Tex. App.—Austin May 24, 2012, no pet.) (mem. op.) (citing
Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974)). “[T]he appellant bears the burden to show from the
record that the division was so disproportionate, and thus unfair, that it constitutes an abuse of
discretion.” O’Carolan v. Hopper, 414 S.W.3d 288, 311 (Tex. App.—Austin 2013, no pet.)
(O’Carolan II); see Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981) (observing that
“[m]athematical precision in dividing property in a divorce is usually not possible” and that
“[w]ide latitude and discretion rests in these trial courts and that discretion should only be
disturbed in the case of clear abuse”).
“Under the abuse of discretion standard, a lack of legally or factually sufficient
evidence does not constitute an independent ground for asserting error; instead, it is a relevant
factor in determining whether the trial court abused its discretion.” Mathis v. Mathis, No. 01-17-
00449-CV, 2018 WL 6613864, at *2 (Tex. App.—Houston [1st Dist.] Dec. 18, 2018, no pet.)
(mem. op.) (citing Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—Dallas 2001, pet.
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denied); accord O’Carolan I, 71 S.W.3d at 532. “When a sufficiency review overlaps the abuse-
of-discretion standard, we engage in a two-pronged inquiry: (1) whether the trial court had
sufficient information to exercise its discretion and (2) whether the trial court erred in its
application of discretion.” Mathis, 2018 WL 6613864, at *2 (citing Sandone v. Miller-Sandone,
116 S.W.3d 204, 206 (Tex. App.—El Paso 2003, no pet.)). “The traditional sufficiency review
comes into play under the first prong.” Id.In a divorce decree, a trial court must “order a division of the estate of the
parties in a manner that the court deems just and right, having due regard for the rights of each
party and any children of the marriage.” Tex. Fam. Code § 7.001; see Bradshaw v. Bradshaw,
555 S.W.3d 539, 543 (Tex. 2018) (defining “just,” “right,” and “due regard” and describing
abuse of discretion standard for reviewing trial court’s division of marital estate). The division
must be equitable, but the trial court does not have to divide the marital estate equally. Murff,
615 S.W.2d at 698-99. If there is a reasonable basis for an unequal division of the property in
the record, the trial court has not abused its discretion. See id.; O’Carolan I, 71 S.W.3d at 532(explaining that trial court’s discretion is not unlimited and that there must be reasonable basis
for division). In exercising its discretion, the trial court “is empowered to use its legal
knowledge and its human understanding and experience” and “has the opportunity to observe the
parties on the witness stand, determine their credibility, [and] evaluate their needs and potentials,
both social and economic.” Murff, 615 S.W.2d at 698-99. The trial court may consider many
factors, including the spouses’ earning capacities, disparity of income and abilities, education,
business opportunities, relative physical condition, relative financial condition, disparity of ages,
size of separate estates, nature of the property, and the benefits that the spouse who did not
cause the breakup of the marriage could have enjoyed had the marriage continued. Id. “The
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circumstances of each marriage dictate what factors should be considered in division of the
marital estate.” Roberts v. Roberts, 531 S.W.3d 224, 232 (Tex. App.—San Antonio 2017, pet.
denied) (citing Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980)).
In the present case, the marital assets had a total net value of $404,405.93. The
trial court awarded assets valued at $219,346.88 to Veilleux (54% of the marital estate) and
$185,059.05 to Morris (46% of the marital estate). Morris complains on appeal that this property
division constituted an abuse of discretion. The lion’s share of the additional value to Veilleux
derives from the trial court’s division of the parties’ real property. The marital estate included
two pieces of real property: (1) the marital home, whose net value to the community estate was
$113,308.45 and (2) a condominium that was jointly owned by Veilleux, Morris, and Morris’s
father, whose net value to the community estate was $87,333.33. The trial court awarded the
marital home to Veilleux and the community estate’s interest in the condominium to Morris,
resulting in Veilleux’s receiving real property valued at $25,976.12 more than the real property
awarded to Morris. We cannot conclude that this constituted an abuse of discretion. Among the
many factors the trial court may consider in making a just and right division of the community
estate is the nature of the property being divided. Murff, 615 S.W.2d at 698-99. Here there were
two pieces of real property. The trial court awarded the marital home to Veilleux and the
condominium to Morris. A reasonable basis exists for the trial court’s decision to award the
condominium to Morris rather than to Veilleux—one third of that piece of real property was
owned by Morris’s father. It was reasonable for the trial court to award property in which
Morris’s father also had an interest to Morris rather than to Veilleux. The trial court also found
that Veilleux cares for the parties’ minor children “the overwhelming majority of the time on her
own in Arizona.” This commitment of time and money provides a reasonable basis for the trial
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court’s awarding Veilleux a slightly disproportionate share of the community estate. Because the
record reflects that there is a reasonable basis for the trial court’s unequal distribution of the
property, we cannot conclude that the trial court’s determination that the ordered property
division is just and right constitutes an abuse of its broad discretion. O’Carolan I, 71 S.W.3d
at 532. We overrule Morris’s second appellate issue.
Appellate Attorneys’ Fees
In his first issue, Morris challenges the trial court’s award of appellate attorneys’
fees to Veilleux related to the previous appeal of the trial court’s divorce decree. After the trial
court signed the divorce decree in June 2020, Morris filed a notice of appeal. Veilleux then filed
a motion requesting that the court render a temporary order requiring Morris to pay her
“reasonable and necessary attorney’s fees and expenses pending appeal” as necessary to
“preserve and protect the safety and welfare of the children” during the appeal. See Tex. Fam.
Code § 109.001 (providing that, in suit affecting the parent-child relationship, trial court may
make any order necessary to preserve and protect safety and welfare of child during pendency
of appeal as court deems necessary and equitable, including requiring payment of reasonable
and necessary attorneys’ fees and expenses). The trial court denied Veilleux’s request for a
temporary order pending appeal. In its order, the court stated that it “maintains plenary power
and reserves the right to award attorney’s fees after the ruling from the Court of Appeals.” After
this Court remanded the case to the trial court, the trial court signed an order awarding Veilleux
appellate attorneys’ fees of $9,001.46. The court’s order states its finding that “it is necessary to
award [Veilleux] her attorneys’ fees related to the appeal to preserve and protect the safety and
welfare of the children.” Thus, after the appeal had been disposed of, the trial court purported to
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award attorneys’ fees to Veilleux on the ground that they were necessary to “preserve and protect
the safety and welfare of the children.”
As an initial matter, we note that Texas Family Code section 109.001 permits the
trial court to make any order necessary to preserve and protect the safety and welfare of children
during the pendency of an appeal. Id. § 109.001(a). The statute identifies the types of orders
that might be necessary to do so, including appointing temporary conservators for the children,
requiring temporary support of the child by a party, suspending the operation of the order or
judgment being appealed, or requiring payment of reasonable and necessary attorneys’ fees and
expenses. Id. § 109.001(a)(1), (2), (5), (6). The plain purpose of the statute is to ensure that,
while the appeal is pending, the children’s safety and welfare is preserved and protected. An
order awarding attorneys’ fees after the appeal has been disposed of, and the trial court no longer
retains jurisdiction, comes too late to protect and preserve the children’s safety and welfare
during the appeal’s pendency and no longer serves the purpose underpinning the statutory
authority for a trial court to render a temporary order pending appeal.
The trial court retains jurisdiction to conduct a hearing and sign a temporary order
under section 109.001 until the sixtieth day after the day any eligible party has filed a notice of
appeal pursuant to the Texas Rules of Appellate Procedure. See id. § 109.001(b-2); see also
In re Jacquot, No. 14-21-00022-CV, 2021 WL 3924083, at *2 (Tex. App.—Houston [14th Dist.]
Sept. 2, 2021, no pet.) (mem. op.) (per curiam). Thus, section 109.001(b-2) limited the time
frame within which the trial court could issue temporary orders in the proceeding on appeal to
sixty days from the date Morris filed his notice of appeal. The court’s order challenged here was
signed more than a year after Morris filed his notice of appeal and, consequently, the trial court
had lost jurisdiction to award Veilleux attorneys’ fees pursuant to section 109.001.
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On appeal, Veilleux asserts that Morris is estopped from challenging the
attorneys’ fee award because he “invited” the trial court’s error by himself requesting at the
temporary orders hearing that the trial court “not award any attorney’s fees at this time, wait for
the appeal to come back, see what the appellate court has to say” and by, on remand, himself
requesting that the trial court award him his appellate attorneys’ fees. Again, we read section
109.001 to provide that temporary orders are intended to preserve and protect the safety and
welfare of the children during the pendency of the appeal, but not to award appellate attorneys’
fees to a party after the appeal, and based on the outcome of, the appeal itself. More to the point,
however, the doctrine of “invited error” applies only to non-jurisdictional defects. See, e.g.,
Gillum v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex. App.—Dallas 1989, no writ) (party
that consents to court’s action waives all errors in the judgment except want of jurisdiction).
Morris’s own conduct cannot be used as a basis on which to confer on the trial court subject-
matter jurisdiction it does not otherwise have. Because the trial court did not retain jurisdiction
to award section 109.001 attorneys’ fees more than sixty days after Morris filed his notice of
appeal, we sustain Morris’s first issue.
CONCLUSION
For the reasons stated in this opinion, we affirm the portion of the trial court’s
order pertaining to the division of the marital estate. We reverse the portion of the trial court’s
order awarding Veilleux $9,001.46 in appellate attorneys’ fees and vacate that portion of the
judgment. In all other respects, the trial court’s decree of divorce is affirmed.
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__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Kelly, and Smith
Affirmed in Part, Vacated in Part
Filed: August 25, 2023
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