F.H. v. F.H. ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00493-CV
___________________________
F.H., Appellant
V.
F.H., Appellee
On Appeal from the 324th District Court
Tarrant County, Texas
Trial Court No. 324-573642-15
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
This appeal arises from a post-decree enforcement action in a divorce case. In
six issues, Appellant F.C.H. (Wife) argues that the trial court erred by granting
Appellee F.H. (Husband) summary judgment, dismissing Wife’s claims with prejudice,
awarding Husband attorney’s fees as a sanction, and denying Wife’s motions for
continuance and reconsideration. We will affirm.
I. BACKGROUND
Husband and Wife were divorced in November 2017. Under the divorce
decree, Wife was awarded the marital residence. At the time of the divorce, the home
was encumbered by a mortgage securing a home-equity line of credit (HELOC)1 from
BBVA Compass Bank (now PNC Bank). The decree provided that Husband was to
pay $100,000 of the HELOC balance by November 1, 2019; that Wife was
responsible for paying the remaining $30,163; and that both parties were enjoined
from incurring any further debt on the HELOC account.
In early 2019, Wife learned that despite the language in the divorce decree
enjoining the parties from incurring any further debt on the HELOC account and
despite her having already paid her allotted $30,163 share of the HELOC debt in
September 2018, the account balance had increased significantly.
1
Apparently, the debt owed to Compass Bank was actually a home-equity loan,
but it was erroneously described as a HELOC in the divorce decree. Because the
parties have consistently referred to this debt as a HELOC both in the trial court and
in their appellate briefing, we will also refer to it as a HELOC.
2
Ultimately, Wife decided to sell the home. The sale closed in February 2019—
nearly nine months before Husband’s deadline to pay his share of the HELOC debt.
Compass received $161,841.42 of the sale proceeds in satisfaction of the HELOC
account.
In February 2023, Wife filed a “Motion for Money Judgment on
Indemnification” in the divorce case.2 In this motion, Wife claimed that she was
entitled to a money judgment against Husband in the amount of $161,841.42 because
she had “accidentally paid off” his share of the HELOC debt “‘early’ when she sold
the house.”
In May 2023, Husband moved for summary judgment and sanctions on the
grounds that the trial court lacked jurisdiction over Wife’s cause of action because it
did not fall within the scope of Chapter 9 of the Family Code and that even if it did
fall within Chapter 9’s scope, it would be barred by limitations. In accordance with
the trial court’s instructions, all supplemental and responsive briefing regarding
Husband’s summary judgment motion was completed by July 2023.
After considering the parties’ briefing and the summary judgment evidence, the
trial court scheduled a conference on September 29, 2023, to deliver its decision on
2
Wife filed her original motion on February 10, 2023, and a first amended
motion on February 13, 2023. She filed a second amended motion in September
2023, but Husband filed a motion to strike, and the trial court ultimately ruled that
Wife’s second amended motion “w[as] not timely presented” and denied all relief
requested therein.
3
Husband’s motions for summary judgment and sanctions. On the day that the
conference was scheduled, Wife filed a motion for continuance requesting that the
trial court delay ruling on Husband’s motions because she had recently received bank
records pertaining to the HELOC from Compass. The trial court denied Wife’s
motion for continuance and granted Husband’s motions for summary judgment and
sanctions. Wife filed a motion for new trial and a motion to reconsider, both of
which were denied. This appeal followed.
II. DISCUSSION
As noted, Wife raises six issues on appeal. But these issues are interrelated and
can be distilled down to two dispositive questions: (1) whether Wife pleaded a valid
Chapter 9 cause of action and (2) whether the trial court abused its discretion by
awarding Husband attorney’s fees and sanctions. These dispositive questions will
guide our analysis.
A. We Set Forth the Applicable Standards of Review
1. Summary Judgment
We review a traditional summary judgment de novo. Travelers Ins. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light
most favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any
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doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.
2008). A defendant that conclusively negates at least one essential element of a
plaintiff’s cause of action is entitled to summary judgment on that claim. Frost Nat’l
Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
Once the defendant produces sufficient evidence to establish the right to summary
judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence that raises a fact issue. Van v. Peña, 990 S.W.2d 751, 753 (Tex.
1999).
2. Sanctions Awards and Denials of Motions for Reconsideration and
Continuance
We review a trial court’s decision to impose sanctions, to deny a motion to
reconsider a summary judgment ruling, or to deny a motion for continuance under an
abuse of discretion standard. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)
(reviewing imposition of sanctions for abuse of discretion); Miller v. Walker, 582
S.W.3d 300, 308 (Tex. App.—Fort Worth 2018, no pet.) (same); Mullins v. Martinez
R.O.W., LLC, 498 S.W.3d 700, 705 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(reviewing trial court’s denials of appellants’ motion to reconsider summary judgment
and motion for continuance for abuse of discretion). A trial court abuses its
discretion when it makes a decision without reference to any guiding rules or
principles. Mullins, 498 S.W.3d at 705 (citing Garcia v. Martinez, 988 S.W.2d 219, 222
(Tex. 1999)).
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B. Wife Did Not Plead a Valid Chapter 9 Cause of Action
Because Wife’s post-decree motion for money judgment sought relief beyond
the scope of Chapter 9 of the Texas Family Code, the trial court did not err by
granting Husband’s summary judgment motion and dismissing Wife’s claims with
prejudice.
After a trial court’s plenary power over a final divorce decree expires, it retains
limited jurisdiction for the specific purposes prescribed in Chapter 9 of the Family
Code. See DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.—Dallas 2008, no pet.).
That chapter allows “[a] party affected by a decree of divorce . . . providing for a
division of property” to “request enforcement of that decree by filing a suit to
enforce . . . in the court that rendered the decree.” Tex. Fam. Code Ann. § 9.001(a).
As the Texas Supreme Court has explained, Chapter 9’s “obvious purpose” is “to
provide an expeditious procedure for enforcing and clarifying property divisions in
divorce decrees.” Brown v. Fullenweider, 52 S.W.3d 169, 170–71 (Tex. 2001) (per
curiam). Thus, under Chapter 9, a court may “render further orders to enforce . . . or
to clarify” a divorce decree’s property division, but it may not “amend, modify, alter,
or change the division of property made or approved in the decree of divorce.” Tex.
Fam. Code Ann. §§ 9.006(a), 9.007(a).
Here, Wife sought relief under Family Code Section 9.010, which provides, in
pertinent part, as follows:
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(a) If a party fails to comply with a decree of divorce or annulment and
delivery of property awarded in the decree is no longer an adequate
remedy, the court may render a money judgment for the damages caused
by that failure to comply.
(b) If a party did not receive payments of money as awarded in the
decree of divorce or annulment, the court may render judgment against a
defaulting party for the amount of unpaid payments to which the party is
entitled.
Id. § 9.010(a)–(b). Thus, under Section 9.010’s plain language, it applies only if a party
(1) “fails to comply” with a divorce decree or (2) “did not receive payments of money
as awarded” in a divorce decree. See id.; see also Lippincott v. Whisenhunt, 462 S.W.3d
507, 509 (Tex. 2015) (instructing that when construing a statute, courts must “look to
the statute’s plain language” and interpret its unambiguous language “according to its
plain meaning”). But Wife cannot show that either of these prerequisites is satisfied
in the present case.
First, Wife’s motion was not based on Husband’s failure to comply with the
divorce decree. See Tex. Fam. Code Ann. § 9.010(a). Under the decree, Husband was
required to pay “[t]he amount of $100,000 of the balance owed by the community,
plus interest thereon, on the BBVA Compass HELOC account . . . by November 1,
2019.” But because Wife elected to sell the marital residence in February 2019 and
the HELOC balance was paid in full from the sale proceeds, there was no “balance
owed by the community” on the HELOC account when Husband’s November 1,
7
2019 payment deadline arrived.3 It would defy logic and common sense to conclude
that Husband failed to comply with the decree by neglecting to make a payment on a
debt that no longer existed.4
Second, Wife does not allege that she “did not receive payments of money as
awarded” in the divorce decree. See id. § 9.010(b). Rather, she seeks reimbursement
for the payment of a debt that she purportedly made on Husband’s behalf.
3
The fact that Wife paid off the HELOC debt well before Husband’s
November 1, 2019 payment deadline distinguishes this case from In re Marriage of Kerr,
No. 14-08-00529-CV, 2009 WL 3000977 (Tex. App.—Houston [14th Dist.] Sept. 22,
2009, no pet.) (mem. op.), a case cited by Wife in her reply brief. In Kerr, the court of
appeals affirmed a $22,000 judgment awarded to a wife to reimburse her for paying a
credit card debt that her husband had failed to pay as ordered in the divorce decree.
Id. at *1–3. Because—unlike the present case—Kerr involved a situation in which the
husband had undisputedly failed to comply with the divorce decree by neglecting to
pay a debt as ordered, it does not support Wife’s argument that her motion falls
within Chapter 9’s scope. See Tex. Fam. Code Ann. § 9.010(a).
4
In her appellate briefing, Wife asserts that the bank statements produced by
Compass in response to her subpoena show that Husband withdrew funds on the
HELOC account in violation of the divorce decree’s injunction. But this purported
violation was not the basis for Wife’s Section 9.010 claim. Although Wife referenced
the fact that “[t]he decree stated that neither party was to incur any further debt on
the . . . HELOC account” in her first amended motion, she never actually alleged that
Husband had violated the decree’s injunction, nor did she seek relief on that basis.
Rather she based her claim on the divorce decree’s indemnification provision and
Husband’s duty to make the $100,000 payment on the HELOC account. In her
second amended motion, Wife at least questioned whether Husband had “take[n] an
impermissible draw” on the HELOC account, but the trial court ruled that this
pleading—which was filed on the same day that the trial court advised the parties via
email that it was ready to rule on Husband’s summary judgment motion—was
untimely. See supra note 2. Further, as discussed more fully below, Wife fails to cite to
specific evidence in the record to support her contention that Husband made
impermissible draws on the HELOC account. See infra Section II.C. & note 8.
8
As Husband points out, Wife’s claim is—in substance—one for unjust
enrichment and equitable subrogation, not the enforcement of a right to receive
money or property under the divorce decree. See Surgitek, Bristol-Myers Corp. v. Abel,
997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the substance of a motion to
determine the relief sought, not merely to its title.”); see also Brumley v. McDuff, 616
S.W.3d 826, 833 (Tex. 2021) (stressing that courts should acknowledge the substance
of the relief sought despite the formal styling of the pleading); State Bar of Tex. v.
Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding) (“We look to the substance
of a plea for relief to determine the nature of the pleading, not merely at the form of
title given to it.”). The equitable-subordination doctrine serves to prevent unjust
enrichment “when one person confers upon another a benefit that is not required by
legal duty or contract.” Smart v. Tower Land & Inv. Co., 597 S.W.2d 333, 337 (Tex.
1980). Under this doctrine, a third party who pays a debt on behalf of a debtor
may—under certain circumstances—be subrogated to the creditor’s rights to collect
the discharged debt. See Hulen v. Hamilton, No. 2-06-288-CV, 2008 WL 553812, at *3
(Tex. App.—Fort Worth, Feb. 28, 2008, no pet.) (mem. op.) (first citing First Nat’l
Bank of Kerrville v. O’Dell, 856 S.W.2d 410, 415 (Tex. 1993); and then citing Smart, 597
S.W.2d at 337). “The doctrine allows a person, not acting voluntarily, who pays [a]
debt owed by another, to seek repayment from the person who in equity and good
conscience should repay it.” Id. (citing Matagorda Cnty. v. Tex. Ass’n of Counties Cnty.
9
Gov’t Risk Mgmt. Pool, 975 S.W.2d 782, 785 (Tex. App.—Corpus Christi–Edinburg
1998), aff’d, 52 S.W.3d 128 (Tex. 2000)).
Here, Wife does not seek to enforce the divorce decree or to reduce any of the
decree’s awards to a money judgment.5 See Tex. Fam. Code Ann. § 9.010(a)–(b).
Rather, having paid the HELOC debt, she seeks repayment from Husband who—in
Wife’s view—in equity and good conscience should repay it. See Hulen, 2008 WL
553812, at *3. Because nothing in the divorce decree required Husband to reimburse
Wife for her payment of a community debt owed to a third party, Wife’s cause of
action does not fall within Section 9.010’s parameters.6 Indeed, Wife’s own pleadings
5
Because Wife does not seek to collect money or property that was awarded
directly to her in the divorce decree, the primary cases on which she relies to show
that her claim fits within Chapter 9’s scope are inapposite. See generally Gomez v. Gomez,
632 S.W.3d 4 (Tex. App.—El Paso 2020, no pet.); Ackerly v. Ackerly, 13 S.W.3d 454(Tex. App.—Corpus Christi–Edinburg 2000, no pet.); Jenkins v. Jenkins, 991 S.W.2d
440 (Tex. App.—Fort Worth 1999, pet. denied); Arnold v. Eaton, 910 S.W.2d 181 (Tex.
App.—Eastland 1995, no writ); Bowden v. Knowlton, 734 S.W.2d 206 (Tex. App.—
Houston [1st Dist.] 1987, no writ). Ackerly, Jenkins, Arnold, and Bowden all involved
disputes that arose when one spouse failed to make required payments directly to the
other spouse. See Ackerly, 13 S.W.3d at 455; Jenkins, 991 S.W.2d at 445; Arnold, 910
S.W.2d at 182–83; Bowden, 734 S.W.2d at 207. And in Gomez, the wife sought relief
after she discovered that two retirement accounts in which she was awarded
fifty-percent interests had been drained by her husband during the divorce in violation
of a court order. See Gomez, 632 S.W.3d at 7. Thus, none of these cases supports
Wife’s contention that her cause of action seeking reimbursement for the payment of
a debt to a third party falls within the parameters of Chapter 9.
6
Although the divorce decree contains an indemnification provision, it requires
indemnification only “if any claim, action, or proceeding is . . . initiated seeking to
hold the party not assuming a debt . . . liable for such debt.” Because the record does
not reflect that Compass or anyone else initiated a “claim, action, or proceeding”
against Wife to collect the HELOC debt, the decree’s indemnification provision was
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acknowledged that all or a portion of the “money judgment” that she sought might
need to come from Compass, a third party with no obligations under the divorce
decree.
In sum, if Wife had wanted to compel Husband to reimburse her for paying off
the HELOC debt, she could have invoked the equitable-subordination doctrine by
filing a new lawsuit asserting an unjust enrichment cause of action. See Hulen, 2008
WL 553812 at *3; cf. Kim v. Kim, No. 13-18-00269-CV, 2020 WL 1060577, at *3 (Tex.
App.—Corpus Christi–Edinburg Mar. 5, 2020, no pet.) (mem. op.) (holding that trial
court had jurisdiction over common law fraud lawsuit arising from a divorce case
even though it had not rendered the divorce decree). Instead, she attempted to fit the
round peg of her unjust enrichment claim into the square hole of Family Code
Section 9.010. Because Wife sought relief beyond Chapter 9’s scope, the trial court,
lacking subject matter jurisdiction, did not err by granting Husband’s summary
judgment motion and dismissing Wife’s claims. See Devon Energy Prod. Co., L.P. v. KCS
Res., LLC, 450 S.W.3d 203, 210 (Tex. App.—Houston [14th] Dist. 2014, pet. denied)
(“The absence of subject matter jurisdiction may be raised by a motion for summary
judgment.” (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000))).
never triggered. Indeed, in her appellate briefing, Wife—distinguishing between
contractual and common law indemnity—seemingly concedes that her cause of action
did not arise under the decree’s indemnification provision.
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Accordingly, we overrule Wife’s second, fourth,7 fifth, and sixth issues. Having
determined that the trial court did not err by granting Husband’s summary judgment
motion on the basis that Wife failed to plead a valid Chapter 9 cause of action, we
need not—and therefore do not—address Wife’s first issue challenging the trial
court’s determination that Wife’s claims were barred by limitations. See Tex. R. App.
P. 47.1.
C. The Trial Court Did Not Abuse its Discretion by Awarding Husband
Attorney’s Fees
In her third issue, Wife contends that the trial court abused its discretion by
awarding Husband attorney’s fees because “nothing in . . . Chapter 9” supports this
award. But as Wife acknowledges, Husband did not seek attorney’s fees under
Chapter 9; rather, he sought them as a sanction under applicable provisions of the
Texas Civil Practice and Remedies Code and the Texas Rules of Civil Procedure. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001–.002; Tex. R. Civ. P. 13. Similarly, the
7
In her fourth issue, Wife challenges the trial court’s denial of her motion to
continue the hearing on Husband’s summary judgment motion. Because the
requested continuance would not have changed the fact that Wife’s cause of action
was beyond Chapter 9’s scope, Wife cannot show that she was harmed by the
continuance’s denial. See Pajooh v. Miller, No. 01-16-00927-CV, 2018 WL 3233466, at
*3 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op. on reh’g) (“Even
if a trial court abused its discretion by denying a motion for continuance, the
complaining party must demonstrate that he was harmed by the trial court’s denial of
the motion in order to obtain appellate relief.” (citing Pollitt v. Comput. Comforts, Inc.,
No. 01-13-00785-CV, 2014 WL 7474073, at *3 (Tex. App.—Houston [1st Dist.] Dec.
30, 2014, no pet.) (mem. op.))). Accordingly, we overrule this issue.
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trial court did not invoke Chapter 9 in its orders granting Husband’s motion for
sanctions and awarding him attorney’s fees.
Wife also argues that Husband was not entitled to attorney’s fees because he
purportedly “continued to withdraw funds from the HELOC in violation of the
decree.” But Wife does not cite to anything in the record to support her allegation
that Husband violated the decree in this manner,8 nor does she cite any authority
showing how this allegation—even if true—supports her argument that the trial court
abused its discretion by awarding Husband attorney’s fees. See Tex. R. App. P. 38.1(i)
(directing that an appellant’s brief “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”).
Having determined that Wife failed to plead a valid Chapter 9 cause of action
and having reviewed the entire record, we cannot conclude that the trial court abused
its discretion by (1) determining that Wife’s pleading was frivolous, (2) granting
8
In a separate section of her brief, Wife generally cites to the bank statements
that Compass produced in response to her subpoena—which number over 150
pages—to support her allegation that Husband withdrew funds from the HELOC in
violation of the divorce decree. But she fails to point to any specific statements
(much less line items) or to explain exactly how such statements support her
allegation. Further, the trial court determined that these bank statements, which were
attached as an exhibit to Wife’s motion to reconsider, were not timely presented and
thus did not consider them in deciding Husband’s summary judgment motion. See
Gonzalez v. Gonzalez, No. 04-20-00226-CV, 2021 WL 6127931, at *9 (Tex. App.—San
Antonio Dec. 29, 2021, no pet.) (mem. op.) (declining to consider material on appeal
because it “was not before the trial court when it ruled on the motion for summary
judgment” (citing Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex. 1984) (per
curiam))).
13
Husband’s motion for sanctions, and (3) awarding him attorney’s fees. See Low, 221
S.W.3d at 614; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001–.002.
Accordingly, we overrule Wife’s third issue.
III. CONCLUSION
Having overruled Wife’s dispositive issues, we affirm the trial court’s orders.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: November 7, 2024
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