Mark A. Metzger, Jr. v. Patricia Metzger Westbo

Opinion issued June 7, 2007  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00893-CV

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MARK A. METZGER JR., Appellant

V.

PATRICIA WESTBO METZGER, Appellee ⁽¹⁾

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On Appeal from the 247th District Court

Harris County, Texas

Trial Court Cause No. 2002-21703

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MEMORANDUM OPINION

Appellant, Mark A. Metzger Jr., appeals from an "Order on Motion for Clarification of Prior Decree of Divorce" rendered between him and appellee, Patricia Westbo Metzger ("Westbo"). We determine (1) whether Metzger sufficiently briefed two of his appellate challenges; (2) whether he preserved his challenge that the trial court erred in rendering the order because he had withdrawn his consent to the mediated agreement on which the order was based; and (3) whether the trial court had subject-matter jurisdiction to enter certain provisions of the order concerning stock divided in the divorce decree. We modify the order and affirm it as so modified.

Background

Metzger and Westbo divorced on July 1, 2002. The decree awarded each party, as his or her separate property, "[a]ll shares of stock personally owned." The divorce decree did not, however, name the shares of stock that each party personally owned. Neither party appealed the divorce decree, and it became final.

In October 2002, outside the trial court's plenary jurisdiction, Westbo moved for clarification of the divorce decree. In pertinent part, the clarification motion provided:

The Motion for Enforcement [sic] and Clarification of Prior Order [sic] is brought to modify, correct or reform the judgment previously entered in this case. . . . [Westbo] did not have legal counsel in this case and, instead, relied on the legal advice of [Metzger's] former counsel of record, Joe Alfred Izen, Jr. The filing of this Motion for Clarification of Prior Order is necessary to clarify exactly what was meant in Paragraph 5, page 4 of the Decree of Divorce [the provision that Westbo be awarded "[a]ll shares of stock personally owned"].

At the time of the granting of the divorce, [Westbo] and [Metzger] owned one-half of two Texas corporations. This divorce decree was unnecessarily ambiguous and thus a fraud on [Westbo's] property rights. . . . [T]he divorce decree . . . awarded each party "all shares of stock personally owned." It was known to [Metzger's] counsel for several years that such provision allowed each party to own 50% of the shares in two corporations formed during the coverture of marriage, i.e., Lacy Creekside, Inc., and Respiratory, Inc.

The problem in the ambiguous language was compounded by what happened on July 30, 2002, when [Westbo] went to the corporate offices of one of the two corporations owned equally by the parties and [Metzger] had removed everything from the premises without notice to [Westbo]. [Metzger's] attorney drafted and filed the Decree of Divorce. He should have known that allowing the parties to remain as equal owners, after divorce, in two corporations owned equally by each and formed during marriage, would lead to what happened on July 30, 2002 and create a problem and a denial of [Westbo's] property rights.

It would be an injustice to [Westbo] to allow the Decree of Divorce to stand as entered without clarification as to what legal rights accompany her award of stock in the two corporations owned both before divorce and after divorce with her ex-husband. [Westbo] requests the Court to grant the Motion for Clarification of Prior Order and resolve the matter of allowing the divorced spouses to continue as equal co-owners and define their respective rights in regard to the two corporations.

(Emphasis added.) In a response to a jurisdictional plea that Metzger filed, Westbo later represented that her motion to clarify sought only to "resolve the matter of naming for the divorced spouses which corporations they are equal co-owners [of] and define their respective rights in regard to the two corporations" and to state the "responsibilities, if possible, of the parties in the two corporations." Likewise, in a response to a summary-judgment motion filed by Metzger, Westbo represented that "[t]he answer to this question [of the corporations' names] is all [Westbo] seeks" by her clarification motion.

The parties eventually mediated and signed a settlement agreement ("the mediated settlement agreement"). The mediation, and thus the mediated settlement agreement, resolved matters not only relevant to Westbo's clarification motion, but also concerning a suit in Tyler for trespass to try title and property that appears not to have been divided by the divorce decree. See Tex. Fam. Code Ann. § 9.203(a) (Vernon 2006) (allowing court that failed to dispose of property subject to division in final divorce or annulment decree to divide such property in matter that court deems just and right); see also id. § 9.004 (Vernon 2006) (providing that limitations of post-decree enforcement or clarification proceedings do not apply to property divided under Family Code subchapter that includes section 9.203(a)). In the portion pertinent to Metzger's appellate challenges, the mediated settlement agreement provided:

11. Westbo will sign over and Metzger is awarded 1,000 shares of stock in Lacy Creekside, Inc.

12. Westbo will disclaim and/or convey all right, title and interest in and to 1,000 shares of Respiratory, Inc. stock and use her Power of Attorney over Lucrettia Broyles to void the Revocation of the Broyles Trust and reinstate same and make said Trust irrevocable with Metzger and his children as the sole beneficiaries thereof and disclaim and/or convey any beneficial interests of Westbo and/or her children in or to such Trust. Westbo and her attorneys shall be provided drafts and final documents of such conveyances prior to the date of execution of same.

Westbo moved for entry of an order on the mediated settlement agreement; Metzger objected to her proposed order, although nothing in the record shows that he withdrew his consent to the mediated settlement agreement. The trial court signed the clarification order on June 18, 2004, reciting that the order was based on the mediated settlement agreement. The clarification order provided in pertinent part:

Additional Clarifying Orders

[T]he Court finds that the 1,000 shares of stock in Respiratory, Inc. are the property of The Wayne Elliott Broyles, Sr. and Lucretia Helen Broyles Trust Dated the 28th Day of April, 1995, Joe Alfred Izen, Jr. Trustee. The Court finds that Mark Alan Metzger, Jr., is the sole beneficiary of the equitable title in and to all assets of The Wayne Elliott Broyles, Sr. and Lucretia Helen Broyles Trust Dated the 28th Day of April, 1995 and that upon the death of Lucretia Helen Broyles, pursuant to the terms of said trust, (Wayne Elliott Broyles, Sr. having already predeceased her) Mark Alan Metzger, Jr. shall hold legal title to all assets of said trust. The Court finds that neither Patricia Westbo Metzger nor her children own any legal or equitable interest in or to any of the assets of The Wayne Elliott Broyles, Sr. and Lucretia Helen Broyles Trust Dated the 28th Day of April, 1995, including the 1,000 shares of stock in Respiratory, Inc.

Modified Division of Marital Estate

The Court finds that the prior Decree of Divorce did not accurately describe . . . all the property of the parties and, therefore, the Court, with the consent of the parties[,] hereby sets forth the proper identification, listing of the property awarded or intended to be awarded to each party as a just and right division of the parties' marital estate, having due regard for the rights of each party and the child of the marriage.

Property to Respondent, Mark A. Metzger, Jr.

IT IS ORDERED AND DECREED that the Respondent, MARK A. METZGER, JR., is awarded the following as his sole and separate property, and PATRICIA WESTBO METZGER is divested of all right, title, interest, and claim in and to that property:

A-1. 1,000 shares of Lacy Creekside, Inc. stock . . . .

. . .

A-4. All beneficial interest in The Wayne Elliott Broyles, Sr. and Lucretia Helen Broyles Trust Dated the 28th Day of April, 1995 and 100% of the legal interest in an [sic] to the assets of said trust upon the death of Lucretia Helen Broyles, pursuant to the terms of said trust, Wayne Elliott Broyles, Sr. having already predeceased Lucretia Helen Broyles. PATRICIA WESTBO METZGER and her children are hereby divested of all legal right and equitable interest in and to said trust.

. . . .

(Emphasis added.) The remainder of the clarification order, among doing other things, awarded property and assigned debts that had not been mentioned expressly in the divorce decree and also ordered cash sums to Westbo from Metzger pursuant to the mediated settlement agreement.

Matters Not Properly Briefed

In issues three and four, Metzger argues that the trial court erred by (1) rendering a clarification order "based on the mediated settlement agreement without affording [him] a trial by jury" and (2) by entering an order that altered the mediation agreement's terms. Although Metzger's brief indicates that issues three and four are discussed with issue two because the authority for all three of these issues is the same, it is not, and nowhere under issue two does he set out the authority supporting issues three and four. Accordingly, Metzger's issues three and four are not before us. See Tex. R. App. P. 38.1(h) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Miller v. State & County Mut. Fire Ins. Co., 1 S.W.3d 709, 712 (Tex. App.--Fort Worth 1999, pet. denied) (declining to address two issues that were not discussed in brief's argument section, despite fact that those two issues had been identified at start of brief as being two of four "issues presented").  

We overrule issues three and four.

Alleged Revocation of Consent to Mediated Settlement

In issue two, Metzger asserts that the trial court erred in signing the clarification order, which the order recited was based on the mediated settlement agreement, because Metzger had withdrawn his consent to the mediated settlement agreement before the clarification order's rendition. Nowhere below did Metzger inform the trial court that he had withdrawn his consent to the agreement underlying the order. ⁽²⁾ The issue is not preserved. ⁽³⁾ See Tex. R. App. P. 33.1(a)(1)(A).

We overrule issue two.

Jurisdiction

In issue one, Metzger argues that the trial court lacked subject-matter jurisdiction to enter "the stock division" portion of the clarification order because that portion of the order impermissibly modified the divorce decree's property division, rather than merely clarifying it. For the same reason, according to Metzger, the mediated settlement agreement was also "a nullity."

Fairly interpreting issue one--including, among other things, his argument that "[t]he trial court was without authority to change the terms of the divorce decree by entering the stock division order" (emphasis added) and that the other property divided in the clarification order appears not to have been divided in the divorce decree--we conclude that Metzger is complaining only of the portions of the clarification order that concerned the Lacy Creekside, Inc. and Respiratory, Inc. stock, which were the two stocks that the clarification motion itself concerned. The portions of the clarification order quoted above are the provisions that are relevant to these two companies' stock.

A. The Standard of Review

"We review [a] trial court's ruling on a post-divorce motion for . . . clarification of a divorce decree under an abuse-of-discretion standard." Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.--Houston [1st Dist.] 2006, pet. filed). "When a trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment." ⁽⁴⁾ Id. "Additionally, 'the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence.'" Id. (quoting Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds, Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989)). "Nonetheless, in cases in which the appellate record includes the reporter's record, the trial court's implied fact findings are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them." Id. "We review implied legal conclusions de novo." Id.

B. The Trial Court's Limited, Continuing Jurisdiction

"A court that rendered a divorce decree generally retains continuing subject-matter jurisdiction to clarify and to enforce the decree's property division." Id. at 106 (citing Tex. Fam. Code Ann. §§ 9.002, 9.008 (Vernon 2006)). "Specifically, the court has continuing jurisdiction to 'render further orders . . . to clarify the prior order.'" Id. (quoting Tex. Fam. Code Ann. § 9.006(a) (Vernon 2006)). "Likewise, '[o]n a finding . . . that the original form of the division of property is not specific enough to be enforceable by contempt,' the court has continuing jurisdiction to 'render a clarifying order setting forth specific terms to enforce compliance with an original division of property.'" Id. (quoting Tex. Fam. Code Ann. § 9.008(b) (Vernon 2006)). However,

there are limitations on the enforcement and clarification powers of the court that rendered the divorce decree. For example, "[t]he court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed."

Id. (quoting Tex. Fam. Code Ann. § 9.006(b) (Vernon 2006)) (emphasis in original). Specifically, the Family Code provides:

(a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property.

(b) An order under this section that amends, modifies, alters or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable.

Tex. Fam. Code Ann. § 9.007(a)-(b) (Vernon 1998); see Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003).

"Clarifying orders may more precisely specify the manner of carrying out the property division previously ordered so long as the substantive division of the property is not altered." In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.--Texarkana 2003, pet. denied). Accordingly, a proper clarification order is consistent with the prior divorce decree. McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Also for this reason, "[c]larification . . . requires a finding, express or implied, that the original form of the division of property lacks sufficient specificity to be enforced by contempt." In re Marriage of McDonald, 118 S.W.3d at 832. "If a divorce decree is unambiguous, the court has no authority to alter or modify the original disposition of property." Id.; accord McKnight, 132 S.W.3d at 130. "Whether the decree is ambiguous is a question of law subject to de novo review." McKnight, 132 S.W.3d at 131.

C. Discussion

The divorce decree provided in pertinent part only that each party was to receive, as his or her separate property, "[a]ll shares of stock personally owned." Because the clarification order was rendered upon the mediated settlement agreement, there was no testimony or explanation at the hearing on Westbo's clarification motion as to whether this language was ambiguous. However, the trial court did have before it the summary-judgment evidence, specifically Westbo's affidavit and Metzger's answers to interrogatories, indicating Westbo's position that the parties disputed what percentage interest they held in the stock of Lacy Creekside, Inc. and Respiratory, Inc. Westbo's motion for clarification, when first filed, sought more than mere clarification: it sought "to modify, correct or reform" the decree; it requested that the court "resolve the matter of allowing the divorced spouses to continue as equal co-owners and define their respective rights in regard to the two corporations"; it alleged "fraud," ostensibly because she had relied on her husband's attorney in the divorce proceedings; and it complained that Metzger's counsel "should have known that allowing the parties to remain as equal owners, after divorce, in two corporations owned equally by each and formed during marriage, would lead to what happened on July 30, 2002 and create a problem and a denial of [Westbo's] property rights." She limited her clarification request, however, through her summary-judgment and dismissal responses. See Stephens v. Dolcefino, 126 S.W.3d 120, 130-31 (Tex. App.--Houston [1st Dist.] 2003) (concluding that plaintiff limited cause of action by judicial admission made in summary-judgment response), pet. denied, 181 S.W.3d 741 (Tex. 2005). In those responses, she restricted her clarification request to resolve "the matter of naming for the divorced spouses which corporations they are equal co-owners [of] and define their respective rights in regard to the two corporations." Nonetheless, it is clear from everything in the record that both parties knew which two corporations' stocks were intended by the divorce decree's award of "[a]ll shares of stock personally owned."

What Westbo's clarification motion ultimately requested was (1) the naming of the two corporations to which the divorce decree's "[a]ll shares of stock personally owned" language referred and (2) the "defin[ing]" of Westbo's and Metzger's "respective rights in regard to the two corporations." The second request exceeded mere clarification because it sought a declaration of the parties corporate rights, not merely the elucidation of any ambiguity inherent in the term "[a]ll shares of stock personally owned." The trial court, therefore, had no continuing jurisdiction to grant Westbo's second request.

Westbo's first request could conceivably have constituted clarification, provided that (1) the decree's language was ambiguous as to which corporations' stock was intended and (2) the clarification order merely identified to which corporate stock the divorce decree referred. See Young v. Young, 765 S.W.2d 440, 443 (Tex. App.--Dallas 1988, no writ) (holding that trial court had jurisdiction to enter clarification order that specified which furniture was intended by divorce decree's award of "furniture," which was defined in decree only generally as moveable furniture, paintings, and antiques). As for ambiguity, it is questionable whether the decree's language "[a]ll shares of stock personally owned" was ambiguous in the way that Westbo alleged below--that the omission of the names of the corporations whose stock was awarded made the award unclear. In fact, Westbo herself alleged below that both parties knew the two corporations in which they had been awarded stock under this provision of the divorce decree. Additionally, the mediated settlement agreement indicates that the parties knew which two corporations were involved.

In any event, the clarification order did more than merely name the corporations whose stock was divided. The order decreed that a trust held all stock of Respiratory, Inc.; decreed that Metzger would become beneficiary of the trust and its assets upon the death of the current beneficiary; decreed that Westbo and the children had no beneficial interest in the trust or its assets; awarded 1,000 shares of Lacy Creekside, Inc. stock to Metzger; awarded Metzger all beneficial interest in the aforementioned trust upon the death of the current beneficiary; and divested Westbo and the parties' children of all legal and equitable interest in the trust and its assets. Moreover, the mediated settlement agreement, on which the trial court based the clarification order, required Westbo to transfer 1,000 shares of her stock in Lacy Creekside, Inc. to Metzger and to convey or to disclaim her and her children's equitable and legal title to the assets of the trust holding the Respiratory, Inc. stock; the clarification order then awarded Metzger 1,000 shares of Lacy Creekside, Inc. stock and divested Westbo and her children of any interest in the trust, including to the Respiratory, Inc. stock. It thus appears, even viewing the record in the light most favorable to the court's ruling, that the clarification order was used not to clarify the divorce decree, but judicially to enforce the parties' mediated settlement agreement to convey the stock in these two corporations. This is not mere clarification, and the trial court had no jurisdiction to do it.

"'Subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding.'" Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (quoting Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.--Houston [1st Dist.] 2000, no pet.)). The parties' settlement mediated agreement could not create subject-matter jurisdiction where none existed. See id.

We thus hold that the trial court abused its discretion in entering those portions of the clarification order discussed immediately above, i.e., those decreeing that a trust held all stock of Respiratory, Inc., decreeing that Metzger would become beneficiary of the trust and its assets upon the death of the current beneficiary, decreeing that Westbo and the parties' children had no beneficial interest in the trust or its assets, awarding 1,000 shares of Lacy Creekside, Inc. stock to Metzger, awarding Metzger all beneficial interest in the aforementioned trust upon the death of the current beneficiary, and divesting Westbo and the parties' children of all legal and equitable interest in the trust.

Our holding is simply that this trial court, in the exercise of its limited post-decree jurisdiction to clarify, had no power to enter these specific portions of the appealed clarification order. Our holding does not, as Metzger also argues under issue one, have the effect of rendering the mediated settlement agreement itself void. Generally speaking, parties may contract as they wish concerning property awarded them in a divorce decree, and they may sue for breach of that contract. It is only the divorce court that has no power to modify the divorce decree's property division after the divorce decree has become final.

We sustain issue one in part and overrule it in part, as indicated above.

Conclusion

We modify the clarification order to delete the provisions discussed above and affirm the order as so modified.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Hanks.

1. The parties refer to appellee as "Patricia F. Metzger Westbo." However, the trial court's clarification order that is the subject of this appeal recites that appellee's name is "Patricia Westbo Metzger." In our opinion and judgment, we use the name for appellee that the trial court's clarification order employed.

2. Instead, Metzger objected to Westbo's proposed clarification order because, for example, it allegedly did not accurately represent the parties' agreement and because Metzger believed that the trial court could not sign the order until after the Tyler district court had entered its decree effectuating a portion of the mediated settlement agreement. And during the hearing on entry of the clarification order, Metzger represented that "all I'm asking you, Judge[,]" was to wait for the Tyler court to sign its judgment first, thus narrowing his objection.

3. Moreover, nothing in the record shows that Metzger withdrew his consent

.

4. In a few sentences under his issue one, Metzger mentions that he requested fact findings and legal conclusions, that he notified the trial court when those were overdue, and that the failure to enter same was "harmful error." In support, Metzger cites Tenery v. Tenery, in which the supreme court noted that "[a] trial court's failure to make findings is not harmful error if 'the record before the appellate court affirmatively shows that the complaining party suffered no injury.'" 932 S.W.2d 29, 30 (Tex. 1996) (quoting

Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)). Metzger does not explain how the lack of fact findings or legal conclusions was harmful; he never again mentions the lack of such findings and conclusions; and he does not request the appropriate remedy for such a failure, which is, generally, to abate the appeal and to remand the cause for the entry of findings and conclusions (rather, he consistently requests a rendition). See, e.g., Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.--Houston [14th Dist.] 2003, no pet.) ("The proper remedy for a trial court's refusal to file findings of fact and conclusions of law is abatement of an appeal, thereby giving the trial court an opportunity to cure its error."). Nor does he assert a separate issue complaining of the omission of findings and conclusions, instead merely adding a few sentences about the omission within the discussion of his issue concerning the trial court's subject-matter jurisdiction to alter the divorce decree's property division. Accordingly, this complaint, if it could be construed as a complaint, is not properly presented for our review. See Tex. R. App. P. 38.1(h).