Julia Kathryn Welch v. Bob Don Welch Jr.

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-16-00249-CV
_________________
JULIA KATHRYN WELCH, Appellant
V.
BOB DON WELCH JR., Appellee
________________________________________________________________________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 13-08-08309-CV
________________________________________________________________________
MEMORANDUM OPINION
This case arises from divorce proceedings between Julia Kathryn Welch and
Bob Don Welch, Jr. The trial court entered an agreed final decree of divorce on May
29, 2014, following mediation. A dispute concerning the marital residence arose
almost two years after the trial court’s entry of the agreed final decree of divorce. In
light of the dispute, Bob filed a petition for enforcement of property division, which
1
the trial court granted, awarding the marital residence to Bob as his separate
property.1
Julia appeals the trial court’s enforcement order. Julia argues in three issues
on appeal that: (1) the trial court erred when it failed to address the decree’s
requirement that Bob pay Julia $10,000 no later than ninety days from the date of
the decree; (2) the trial court erred when it held that strict compliance with the terms
and conditions of the decree by Bob was unnecessary and that Bob’s intention or
willingness to pay Julia after either the ninety-day deadline or the two-year deadline
was sufficient compliance with the terms of the decree; and (3) the trial court should
have enforced the decree as written and awarded the marital property to Julia
according to the decree. We affirm.
Background
Julia filed her original petition for divorce on August 5, 2013. Prior to the
entry of the final decree of divorce, the parties reached a mediated settlement
agreement regarding all issues. Thereafter, the parties agreed to and signed off on
the proposed agreed final decree of divorce.
1
On the record at the hearing, the trial court noted the petition was denied;
however, the trial judge advised Julia that she lost and rendered an order in favor of
Bob.
2
The agreed final decree of divorce signed by the judge on May 29, 2014,
contains the following provisions under the “Division of Marital Residence” portion
of the decree: “IT IS ORDERED AND DECREED that BOB DON WELCH, JR.
shall pay a sum of $10,000.00 to JULIA KATHRYN WELCH for the marital
residence . . . within ninety (90) days of May 13, 2014.” Under a subheading entitled
“Division After Full Payment of $10,000.00 by Bob Don Welch, Jr.[,]” the decree
further provided that
IT IS ORDERED AND DECREED that upon BOB DON
WELCH, JR.’s payment of the full sum of $10,000.00 to JULIA
KATHRYN WELCH and the full sum of $10,000.00 clearing the bank,
BOB DON WELCH, JR. shall be awarded the marital residence . . .,
including but not limited to any escrow funds, prepaid insurance, utility
deposits, keys, mailbox keys, house plans, home security access and
code, garage door opener, warranties and service contracts, and title and
closing documents, as his sole and separate property.
Later in the decree under another subheading entitled “Division Upon Bob
Don Welch, Jr.’s Failure to Pay the Full Sum of $10,000.00 Within Two Years
of May 13, 2014[,]” it stated
IT IS ORDERED AND DECREED that if payment in the sum
of $10,000.00 is not paid in full to JULIA KATHRYN WELCH and
has not cleared the bank within two years of May 13, 2014, JULIA
KATHRYN WELCH shall be awarded the marital residence . . .,
included but not limited to any escrow funds, prepaid insurance, utility
deposits, . . . as her sole and separate property.
IT IS FURTHER ORDERED AND DECREED that if the
property becomes the separate property of JULIA KATHRYN
3
WELCH, BOB DON WELCH, JR. shall be divested of all right, title,
interest, and claim in and to the marital residence.
Prior to May 12, 2016, Bob paid Julia $1,200. It is undisputed that Bob did
not pay the full amount of $10,000 to Julia within ninety days of the date of the
judgment. Julia also acknowledged that Bob had two years to pay the $10,000. Julia
now argues on appeal that Bob only had ninety days to pay and that the agreement
was ambiguous.
Bob contacted Julia on May 12, 2016, via email and text message advising
her that he had the money and wanted to make arrangements to pay her the remaining
balance. Bob asked for Julia’s bank account and routing number on May 12, 2016,
so he could wire the money into her account. Yet, Julia refused to provide the
requested banking information on May 13, 2016. She also demanded that Bob
provide payment in cash on May 13, 2016. Bob agreed to provide the cash payment
and tried to set up a time to meet Julia, but she refused. Bob then filed his petition
for enforcement.
During the evidentiary hearing, Julia appeared pro se, and Bob was
represented by counsel. At the hearing, Julia asserted that Bob did not have funds
available on May 12 or May 13. Julia also testified at the hearing that she did not
want payment; instead, she wanted the property. At the time of the hearing, Julia had
control of the property, but she was not living in it and had it rented.
4
Bob argued that there was $9,000 in his bank account(s) and that he had been
attempting to contact Julia beginning on May 12 to deliver payment. The trial judge
made oral findings that Bob was willing to pay and the money was in the bank. As
of May 5, 2016, the court noted there were text messages from Bob to Julia where
he was trying to negotiate a half payment. However, as of May 12 or May 13, Bob
confirmed that he was willing to pay the full $8,800 he owed. At the hearing, the
court admitted an email from Bob to Julia dated May 12, 2016, which states “I have
the money in hand to pay the remaining balance. I need your account number and
routing number so [] I can finish paying you the remaining balance of $8800.00 for
the house.” Julia testified that she received the email.
The trial court ruled in favor of Bob and rendered its enforcement order on
June 27, 2016, awarding the property to Bob and ordering Bob to deliver the balance
of the money into the registry of the court. See Tex. Fam. Code Ann. § 9.006 (West
Supp. 2017). The enforcement order provided in pertinent part
IT IS ORDERED that [Bob] deliver the sum of $8,800.00 in the
form of a cashier’s check or money order to the Montgomery County
District Court Registry within three (3) business days of the signing of
this order, so that [Julia] may collect the funds.
IT IS FURTHER ORDERED that [Julia] vacate the premise
. . . by 5:00 p.m. on July 11, 2016[,] and be divested of all right, title,
interest, and claim in and to the property.
5
IT IS FURTHER ORDERED that [Bob] shall be awarded the
property . . . as his sole separate property at 5:00 p.m. on July 11, 2016,
with all rights and privileges pertaining thereto.2
On July 11, 2016, Julia filed a motion for new trial and notice of appeal. In
her motion for new trial, Julia alleged that she was prevented from introducing
testimony or exhibits and “unwittingly waived a record.”3 She further argued that
the trial court abused its discretion, and the errors amounted to denial of her rights
and was reasonably calculated to cause and probably did cause the rendition of an
improper judgment under Texas Rule of Appellate Procedure 44.1(a)(1). The motion
for new trial was overruled by operation of law, and Julia continued with her appeal.
See Tex. R. Civ. P. 329b.
Standard of Review
We review a trial court’s ruling on a post-divorce decree or motion for
enforcement under an abuse of discretion standard. See Woody v. Woody, 429
S.W.3d 792, 797 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Hollingsworth v.
Hollingsworth, 274 S.W.3d. 811, 815 (Tex. App.—Dallas 2008, no pet.). A trial
2
The enforcement order contained other provisions dealing with the turning
over of keys and documents to effectuate delivery of the property, along with
outlining the personal property that would remain at the residence and the payment
of an unsecured debt associated with the property by Julia.
3
Despite Julia’s allegation, our record includes a transcript of the June 9, 2016
hearing and exhibits.
6
court abuses its discretion if it acts “arbitrarily or unreasonably, without reference to
guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
Analysis
In her first issue, Julia argues the trial court erred when it failed to address the
decree’s requirement that Bob pay her $10,000 no later than ninety days from the
date of the decree.
Courts interpret divorce decrees as they do other court judgments. Hagen v.
Hagen, 282 S.W.3d 899, 901 (Tex. 2009); Shanks v. Treadway, 110 S.W.3d 444,
447 (Tex. 2003). “Agreed judgments are interpreted in accordance with contract
law.” McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). “Judgments should be construed as a whole to harmonize
and give effect to the entire decree.” Shanks, 110 S.W.3d at 447. Whether a decree
is ambiguous is a question of law subject to de novo review. See Bishop v. Bishop,
74 S.W.3d 877, 880 (Tex. App.—San Antonio 2002, no pet.). When the decree is
not silent regarding the property in question, general rules of construction of
judgments apply. Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997) (citing
Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976)). If the decree is
unambiguous as to the property’s disposition when read as a whole, the court must
effectuate the literal language used. Hagen, 282 S.W.3d at 901; Wilde, 949 S.W.2d
7
at 332. However, if the decree is ambiguous, the court must interpret the judgment
by reviewing both the decree and the record to determine the property’s disposition.
Hagen, 282 S.W.3d at 901; Wilde, 949 S.W.2d at 332. Once it is determined that a
contract contains an ambiguity, its interpretation and the intent of the parties
becomes a fact issue. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). In
addition, if a judgment is ambiguous—that is, subject to more than one reasonable
interpretation—courts should adopt the construction that correctly applies the law.
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam).
We conclude the Agreed Final Decree of Divorce is ambiguous. Thus, we
interpret the judgment by reviewing the decree and examining the record to
determine the property’s disposition. See Wilde, 949 S.W.2d at 332. “In some cases,
the parties’ subsequent actions are relevant to the construction of ambiguous
judgments.” Id. at 333. Here, while there was a provision in the agreed divorce
decree providing that Bob shall pay within ninety days for the marital residence,
such provision did not include a remedy if Bob failed to pay. However, the decree
also contained a provision indicating Bob had two years to pay. This provision did
provide for disposition of the property if Bob defaulted in making the payment. Julia
acknowledged at the hearing that Bob had two years to pay the $10,000. Written
8
communications between the parties support that both parties were operating under
the provision allowing Bob to pay the $10,000 within two years.
After reviewing the decree, the record, and the parties’ subsequent actions, we
conclude Julia’s argument is without merit, and the trial court did not err when it did
not address the ninety-day deadline in the enforcement order. The Agreed Final
Decree of Divorce was agreed to by the parties. Unlike the provision allowing Bob
two years to pay, the ninety-day recitation did not provide a remedy should Bob fail
to timely pay. Finally, the course of dealings of the parties supports that both parties
understood Bob was allowed two years to pay the agreed upon amount. We overrule
Julia’s first issue.
We will examine issues two and three together. In her second issue, Julia
asserts that the trial court erred when “it held that strict compliance with the terms
and conditions of the decree by Appellee was unnecessary and that Appellee’s
intention or willingness to pay Appellant after [the deadlines] was sufficient
compliance[.]” In her last issue, Julia complains that the trial court should have
enforced the decree as written and awarded the property to her. Having already
determined that the ninety-day deadline was not operable, we examine the language
of the provision allowing for the two-year deadline.
9
The specific language in the decree states as follows, “IT IS ORDERED AND
DECREED that if payment in the sum of $10,000.00 is not paid in full to JULIA
KATHRYN WELCH and has not cleared the bank within two years of May 13,
2014, JULIA KATHRYN WELCH shall be awarded the marital residence[.]”The
trial court conducted an evidentiary hearing and heard testimony from both parties.
The parties admitted exhibits at the hearing. “The fact-finder is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.” Woody, 429
S.W.3d at 797. Here, after hearing testimony from both parties and reviewing the
decree and evidence admitted during the hearing, the trial court orally pronounced
that Bob had “the money . . . in hand to pay the remaining balance” on May 12,
2016, and Julia avoided his attempts to deliver payment within the allowable time
period. The trial court then rendered an enforcement order in favor of Bob. We defer
to the trial judge as the fact-finder and her determinations of credibility. See id.
Accordingly, we conclude the trial court did not abuse its discretion when it
determined Bob’s attempts to provide the remaining balance to Julia on May 12,
2016, constituted sufficient compliance with the decree, and the trial court thereafter
rendered an appropriate order of enforcement. See Tex. Fam. Code § 9.006. We
overrule Julia’s second and third issues.
10
Conclusion
We have determined that the trial court did not err in construing the provision
allowing for a two-year deadline included in the agreed decree of divorce as the
operable provision for enforcement of the property division regarding the former
marital residence and payment of the agreed amount to Julia. Moreover, we have
concluded the trial court did not abuse its discretion when it, as the fact-finder, found
that Bob had the requisite funds available to pay Julia and timely tendered payment
to Julia within the two-year deadline provided in the agreed decree of divorce. We
conclude the trial court rendered an appropriate order to enforce the division of
property made in the decree. We affirm the trial court’s order.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on January 2, 2018
Opinion Delivered April 12, 2018
Before McKeithen, C.J., Kreger, and Johnson, JJ.
11