Phillip Wade Hanna v. Lora Kay Hanna

Opinion filed July 27, 2017
In The
Eleventh Court of Appeals
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No. 11-15-00178-CV
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PHILLIP WADE HANNA, Appellant
V.
LORA KAY HANNA, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C44997
MEMORANDUM OPINION
Appellant, Phillip Wade Hanna, filed a motion for enforcement of the final
decree of divorce between him and Appellee, Lora Kay Hanna. After a hearing, the
trial court denied the motion. Appearing pro se on appeal, Appellant brings a single
issue asserting that the trial court erred in denying his motion for enforcement. We
affirm.
Background Facts
Appellant and Appellee were divorced on January 18, 2013. Their agreed
final decree of divorce awarded Appellant “three boxes of photographs, [and]
previous marriage and trucking company items removed from the house in Perrin.”
Appellee was to deliver these items to her attorney for him to deliver to Appellant.
Appellant never received these items from Appellee.
On November 6, 2014, Appellant filed a motion for enforcement requesting
to receive the three boxes of photographs that he was awarded in the final decree of
divorce. The trial court subsequently held a hearing on the motion. During the
hearing, Appellee testified that Appellant allowed her to take a few items from the
home they shared when they separated. She took a few items, including frames and
decorations, but the frames did not contain photographs and she did not take any
photographs. Appellee stated that she never went to the house, where the photos
were located, after she and Appellant separated. According to Appellee, the house
in which the photos were located burned down, and she never recovered any photos
belonging to her or Appellant.
Appellant represented himself at the hearing. According to Appellant, the
three boxes of photographs were not in the house when it burned down. Rather, they
were in the trunk of a car that was parked behind the house that burned down.
Appellant stated that Appellee visited him in jail and told him that she removed
everything out of the trunk of the car, including the three boxes. The trial court
stated that it believed Appellee’s testimony and denied Appellant’s motion.
Analysis
“We review the trial court’s ruling on a post-divorce motion for enforcement
of a divorce decree under an abuse of discretion standard.” Woody v. Woody, 429
S.W.3d 792, 797 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A trial court
abuses its discretion when it acts “arbitrarily or unreasonably, without reference to
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guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). “When, as
here, the trial court did not file findings of fact and conclusions of law, we imply
that the trial court made all findings necessary to support the judgment and will
uphold those findings if supported by sufficient evidence.” Woody, 429 S.W.3d at
797.
Appellant asserts that the trial court ruled contrary to the law in denying his
motion to enforce the division of property in the final divorce decree. We disagree.
Appellant filed his motion to enforce because he did not receive three boxes of
photographs that he was entitled to receive under the terms of the divorce decree.
Appellant, as movant, had the burden of proof on this issue. Id. at 798 (citing In re
A.L.S., 338 S.W.3d 59, 66 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)).
Section 9.009 of the Texas Family Code provides as follows:
To enforce the division of property made or approved in a decree
of divorce or annulment, the court may make an order to deliver the
specific existing property awarded, without regard to whether the
property is of especial value, including an award of an existing sum of
money or its equivalent.
TEX. FAM. CODE ANN. § 9.009 (West Supp. 2016) (emphasis added). The trial court
determined that the items were not in Appellee’s possession or custody. Appellee’s
testimony at the hearing on the motion to enforce supported this determination. The
trial court decided to believe Appellee’s testimony that she did not have the
photographs. As the sole judge of the credibility of the witnesses, the trial court was
free to accept Appellee’s testimony. See Woody, 429 S.W.3d at 799 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)).
Appellant asserts that Appellee’s testimony regarding the photographs and the
fire was false. However, the evidence Appellant relies on to make this assertion is
not part of the appellate record, and we cannot look outside the record in conducting
our analysis. See OAIC Commercial Assets, L.L.C. v. White, 293 S.W.3d 883, 886
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(Tex. App.—Dallas 2009, pet. denied); see also TEX. R. APP. P. 38.1(i).
Accordingly, Appellant has not demonstrated that the trial court abused its discretion
in denying his motion for enforcement on the basis that the photographs were not in
Appellee’s possession or custody. See Woody, 429 S.W.3d at 799. Appellant’s sole
issue is overruled.
This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
JUSTICE
July 27, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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