Morrison v. Morrison

1

RODNEY WAYNE MORRISON, APPELLANT v. DEBBIE JO MORRISON, APPELLEE

No. 12-22-00315-CV

Court of Appeals of Texas, Twelfth District, Tyler

November 30, 2023

Appeal from the 402nd District Court of Wood County, Texas (Tr.Ct.No. 2018-303)

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

JAMES T. WORTHEN CHIEF JUSTICE

Rodney Wayne Morrison appeals the trial court's order granting Debbie Jo Morrison's post-divorce decree motion for contempt and enforcement. Rodney raises three issues. We vacate the order and dismiss the case.

Background

On April 6, 2021, the trial court signed an agreed final decree of divorce dissolving the marriage between Rodney and Debbie. Among other terms, the decree appointed a realtor to sell two parcels of real property owned by the parties (the marital residence and the shop) and a receiver to sell certain personal property. The decree awarded each spouse fifty percent of the net proceeds from the sales of the residence shop, and receivership property, and further mandated damages in the event either party failed or refused to comply with the provisions concerning delivery of the property. It also specifically awarded Debbie other items of personal property in Rodney's possession and the title to her vehicle. At the time of divorce, Rodney had concluded a bankruptcy proceeding that resulted in excess funds. The decree awarded Debbie 55.5% of those funds and Rodney the remaining 44.5%.

Relevant to this appeal, the decree contained a liquidated damages provision concerning failure to turn over property as ordered. The first sentence of the provision mandated an award of damages (including "redistribution" of assets) for a party's failure to turn over an asset as ordered, or failure to deliver an asset in undamaged condition:

IT IS ORDERED AND DECREED that a failure to deliver property awarded to the other party (or to be delivered to the Realtor or Receiver) timely and in the same condition as the property existed on the date of separation of the parties, shall result in the award of damages (including a redistribution of cash or other assets) and attorney's fees to the other party.

The second sentence of the provision required all property to be delivered timely and in undamaged condition:

If either party is ordered in this Decree to turn over real and/or personal property in his or her possession to the other party, to the Receiver or Real Estate Agent, said property shall be delivered at the specified time and in unharmed and undamaged condition.

The third and final sentence mandated that failure to turn over an asset as ordered or failure to deliver an asset in undamaged condition would result in the asset's fair market value being "assessed" against the offending spouse and taken from that spouse's share of proceeds from sale of the marital residence:

In the event that either party damages, harms, or destroys any property, or refuses to deliver the property as ordered the fair market value of the property shall be assessed against that party (normal wear and tear and Act of God excepted), and that amount shall be awarded to the other party, and accounted for out of the proceeds from the sale of the marital residence.

On May 5, 2021, the parties filed a joint motion to sign qualified domestic retirement orders (QDROs). As provided in that motion, the parties jointly requested that "this motion be considered a motion for new trial and that the plenary power of this Court be retained until this Motion may be heard and considered by this Court." The trial court signed the QDROs on May 7, 2021.^[1]

Thereafter, Debbie filed a Motion for Contempt and Enforcement on May 13, 2021, and filed an Amended Motion for Contempt and Enforcement on May 17. Rodney filed a Motion for Enforcement by Contempt on May 24. Five separate hearings were held on the motions, on June 3, 3021, July 21, 2021, July 29, 2021, August 30-31, 2022, and October 6, 2022.

During the litigation of the parties' competing motions, the court's registry received the following payments associated with the marital estate: $213,702.78 from excess funds remaining following Rodney's bankruptcy; $449,254.96 from the sale of the marital residence; $140,392.68 from the sale of the shop; and $58,490.00 from the receiver's sale of personal property.

On July 21, 2021, the trial court required the parties each to pay half of initial receiver's fees totaling $4,436.40. The trial court thereafter paid $11,406.42 and $797.20 to the receiver, out of the sale of the receivership property, leaving a balance in the receivership account of $46,286.38. The trial court ordered that $13,278.73 be paid out of the bankruptcy funds in order to pay delinquent taxes on the shop property to avoid foreclosure, which had been initiated against Rodney so that the property could be sold.

The trial court ordered that Debbie receive a portion of her 55.5% share of the bankruptcy proceeds, less one-half of the shop taxes which had been paid, in the amount of $110,898.16. The trial court held open the issue, until the motions for enforcement were resolved, of whether all those taxes should ultimately be assessed against Rodney for his failure to pay them as ordered. The trial court also ordered that Debbie receive her 50% share of proceeds from the sales of the residence and shop, and the clerk paid her $294,823.82.

At the time of the final hearing on the competing motions for enforcement, the registry contained $384,351.71 from the real-property sales and bankruptcy proceeds, and $46,286.38 from the receivership sales.

The trial court granted Debbie's motion for enforcement on December 14, 2022, which is the subject of this appeal. In the order, the trial court found in pertinent part that Rodney violated the agreed final decree of divorce and order for the appointment of the receiver in a total of thirty-nine respects. In pertinent part, the violations relate to either Rodney's failure to deliver property as ordered, or that he delivered property in damaged condition. Accordingly, the trial court expressly applied the above-described liquidated damages provision in the decree, concluding that Rodney's "violations mandate an award of damages (including a redistribution of cash or other assets) to Debbie," along with attorney's fees in accordance with the provision. In pertinent part, the trial court awarded Debbie a judgment in the amount of $722,725.33 as follows:

1. Damages against Rodney Wayne Morrison in an amount equivalent to 100% of the proceeds from the sale of the house, totaling $449,254.96.

2. Attorney's fees in the amount of $251,225.58. The Court finds all attorney's fees awarded herein which were incurred by Debbie Jo [Morrison] were reasonable and necessary, and that Debbie Jo [Morrison] is entitled to recover them from Rodney Wayne Morrison.

3.Court costs in the amount of $13,092.07.

4. Reimbursement of a portion of the Receiver's fees paid to Michael Collins in the amount of $9,152.72.

To assist in the satisfaction of the award, the court ordered disbursal to Debbie of all the remaining registry funds. This appeal followed.

Jurisdiction

In his first issue, Rodney contends that the trial court abused its discretion by "redistributing" marital assets previously awarded by the final decree after, he alleges, expiration of the trial court's plenary power. In effect, Rodney argues that the trial court improperly modified the decree under the guise of an enforcement action.

Standard of Review

We review for an abuse of discretion a trial court's ruling on a post-divorce motion for clarification or enforcement. Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex. App.-El Paso 2014, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). When a trial court acts arbitrarily or unreasonably without reference to any guiding rules or principles, it abuses its discretion. Cisneros v. Puentes, 662 S.W.3d 601, 604-05 (Tex. App.-El Paso 2022, no pet.) (applying standard in post-divorce motion for enforcement context).

However, we review de novo issues affecting the trial court's subject matter jurisdiction, such as whether it acted outside its plenary power. Marshall v. Priess, 99 S.W.3d 150, 156 (Tex. App.-Houston [14th Dist.] 2002, no pet.); see Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) (holding that question of jurisdiction, the court's authority to act, is an issue of law we review de novo). "Judicial action taken after the expiration of the court's [plenary power] is a nullity, and any orders signed outside the court's plenary jurisdiction are void." Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.-Dallas 2006, no pet.). We have no jurisdiction to consider the merits of an appeal from a void order. See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam). When a party appeals a void order, we must declare the order void, vacate the order, and dismiss for want of jurisdiction. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam).

An agreed divorce decree implementing an agreed property division is controlled by the rules of construction applicable to ordinary contracts. Murray v. Murray, 276 S.W.3d 138, 144 (Tex. App.-Fort Worth 2008, pet. dism'd). In interpreting the language of a divorce decree, we apply the general rules applicable to the construction of judgments-that is, we construe the decree as a whole to harmonize and give effect to the entire decree. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009).

Applicable Law

"A court that rendered a divorce decree generally retains continuing subject-matter jurisdiction to clarify and to enforce the decree's property division." Gainous...