Kelli McDonald Sydow v. Michael David Sydow

Opinion issued April 7, 2015

In The

Court of Appeals
For The

First District of Texas
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NO. 01-13-00511-CV
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KELLI MCDONALD SYDOW, Appellant
V.
MICHAEL DAVID SYDOW, Appellee

On Appeal from the 308th District Court
Harris County, Texas
Trial Court Case No. 2010-02710

MEMORANDUM OPINION

Kelli McDonald Sydow is appealing the trial court’s order granting Michael

David Sydow’s motion to clarify the couple’s final divorce decree. In three issues,

Kelli 1 argues that the trial court abused its discretion and exceeded its authority

1
For the sake of clarity, we will refer to the parties by their given names.
because, instead of clarifying the divorce decree, the trial court impermissibly

changed the substantive division of the parties’ marital estate and reallocated

significant marital property liabilities.

We declare the trial court’s order of clarification void and dismiss the appeal

for want of jurisdiction.

Background

Michael and Kelli owned and resided in Unit 1103 at the Houstonian Estates

during most of their marriage. In 2008, MJOE Lending Investments, Inc.

purchased another condominium unit in the same building—Unit 904. MJOE is a

single investment real estate company organized by Michael’s law firm on behalf

of one of the firm’s clients.

Michael testified that in July or August 2008 he made a verbal agreement

with MJOE to rent the unit to Michael and his family. Under the terms of that

agreement, Michael and his family “could live in Unit 904, so long as, [they] paid

the taxes, insurance, homeowners’ association fees and expenses associated with

Unit 904, and agree[d] to maintain Unit 904 in good repair and condition, and to

vacate Unit 904 upon request.” Kelli was not present during any of the

conversations leading up to this informal agreement and testified that she

mistakenly believed that she and Michael were the owners of Unit 904.

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 Michael, Kelli, and their ten-year-old son moved into Unit 904 in the fall of

2008. Michael and Kelli separated in July 2009, and Michael moved back to the

family’s prior residence, Unit 1103. Kelli remained in Unit 904 and the couple’s

son split his time between both units. Michael filed a petition for divorce in

January 2010.

After a series of hearings in February, March, and April 2010, the trial court

entered temporary orders on April 20, 2010 (the Temporary Orders). The

Temporary Orders named Michael and Kelli as temporary joint managing

conservators, set the Houstonian as their son’s primary residence, and ordered that

neither parent could change the child’s primary residence without further order of

the court or the written agreement of the parties.2 The court also awarded

temporary use and possession of Unit 904 to Kelli, temporary use and possession

of Unit 1103 to Michael, and required Michael to pay certain expenses associated

with both units, including the Unit 904 property taxes, homeowners’ insurance,

utilities, and maintenance fees, which totaled over $4,500 per month (the 904

Expenses).3 At the time the Temporary Orders were entered, Kelli had been a

2
Kelli testified that she had advised the court that she wanted to move out of the
Houstonian in order to be closer to her son’s extracurricular activities in Tomball,
Texas. Michael, however, objected and requested that the trial court set their son’s
residence at the Houstonian.
3
Specifically, the Temporary Orders required Michael to pay the following monthly
expenses for Unit 904: $2,057.00 (property taxes), $2,070.00 (maintenance fees),

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stay-at-home mom for the previous fifteen years and did not have the income to

pay for the 904 Expenses during the pendency of the divorce.

At some point in 2010, Michael stopped paying the 904 Expenses, as the

Temporary Orders required. After being notified that the taxes for Unit 904 had not

been paid, Kelli became concerned about a possible tax foreclosure and filed a

petition for enforcement on September 20, 2010, asking the court to compel

Michael to pay the outstanding property taxes. 4 On September 28, 2010, the

purported owner of Unit 904 notified Kelli that it was planning to sell the unit and

demanded that she vacate the property within thirty days. 5 Kelli, who testified that

she believed that she and Michael owned the property, did not comply, and Kelli

and her son were evicted from Unit 904 on March 4, 2011.6

On April 5, 2011, Kelli and Michael entered into a binding mediated

settlement agreement (the MSA). By its express terms, the MSA provided:

and $131.13 (homeowners’ insurance). Michael was also required to pay up to
$400.00 per month in utilities for the unit.
4
Michael testified that he paid the property taxes for Unit 904 until September
2010.
5
MJOE executed a deed transferring ownership of Unit 904 to Greenwich Real
Estate Corp. (GREC) on September 24, 2010. Both GREC and MJOE are owned
or controlled by Michael’s client, Marcelo Heredia Montalvo.
6
The record reflects that the owner of Unit 904 later sued Kelli for rent and other
expenses under a breach of contract theory in a related case pending before
another trial court. The trial court in that case held that Kelli was not liable for any
past due 904 Expenses based on breach of contract because there was no contract
between Kelli and the owner of 904.

4
 The undersigned parties, [Kelli] and [Michael], agree to compromise
the claims and controversies currently at issue in the pending action
. . . . As to the property issues, the parties agree and stipulate that they
have taken into consideration all claims that one could or should have
made, including but not limited to debts of either party,
characterization of marital and separate property, valuation of
property, tax effects of all property division, and all pending claims
and motions which were disputed prior to this settlement. The parties
each acknowledge that to the best of their knowledge both parties
have made to the other a full and fair disclosure of all known debts
and assets and are entering into this agreement freely and voluntarily
. . . . The provisions of this agreement shall be effective immediately
as a contract, shall supersede any temporary orders or other
agreements of the parties with respect to the subject matter hereof.

Schedules attached to the MSA and incorporated by reference identified

specific debts and expressly allocated those between Michael and Kelli as part of

the overall property division. Existing or outstanding obligations regarding Unit

904 were not among those debts expressly identified in the schedules. The MSA

further provided that any and all “undisclosed” and “undivided” community

liabilities would be paid by the party incurring the liability and further provided

that “[a]ll debts and/or liabilities in the name of Michael Sydow or incurred solely

by Michael Sydow not divided herein” would be paid by Michael, and “[a]ll debts

and/or liabilities in the name of Kelli Sydow or incurred solely by Kelli Sydow not

divided herein” would be paid by Kelli.

The trial court rendered judgment on May 10, 2011, and a final divorce

decree was signed on September 9, 2011 (the Final Decree). Paragraph HD-2 of

the Final Decree required Michael to pay “[a]ll debts, charges, liabilities, and other

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obligations incurred by [Michael] during the marriage, unless express provision is

made in this Decree to the contrary.” Similarly, paragraph WD-2 of the Final

Decree required Kelli to pay “[a]ll debts, charges, liabilities, and other obligations

incurred by [Kelli] during the marriage, unless express provision is made in this

Decree to the contrary.” In accordance with the terms of the MSA, the Final

Decree also assigned unexpressed, undivided, and undisclosed community

liabilities to the party incurring them. 7 Like the MSA, the Final Decree did not

expressly refer to the 904 Expenses. The Final Decree also stated that the parties

“are discharged from all further liabilities and obligations imposed by the

temporary orders of this Court.”

On March 1, 2013, Michael filed a Petition for Enforcement, Motion for

Clarification and in the Alternative Post Divorce Division of Debt (the Petition to

Clarify), asking the court to compel Kelli to pay any outstanding 904 Expenses,

pursuant to the Final Decree. 8 After a hearing on the matter, the trial court granted

Michael’s petition and clarified the Final Decree to award “all liability of either

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“Undivided Assets and Liabilities . . . . IT IS FURTHER ORDERED AND
DECREED, as a part of the division of the estate of the parties, that any
community liability not expressly assumed by a party under this Decree is to be
paid by the party incurring the liability, and the party incurring the liability shall
indemnify and hold the other party and his or her property harmless from any
failure to so discharge the liability.”
8
Michael also asked the court to enter an order clarifying that Kelli was responsible
for these liabilities, in the event the court found that the part of the decree Michael
was asking the court to enforce was not specific enough to be enforced by
contempt.

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party for taxes, maintenance fees and condominium association dues, and

insurance related to Unit or Apartment 904 at the Houstonian Estates

condominiums which liability accrued, became due, or shall hereafter accrue or

become due for the period from August 1, 2009 to March 4, 2011” to Kelli, based

in part on its finding that Kelli had “exclusive use and possession of Unit 904 from

August 1, 2009 to March 4, 2011,” and the court’s conclusion that “[t]he Final

Decree supersedes all liabilities and obligations imposed upon either party by the

Temporary Orders.” On July 31, 2013, the trial court entered findings of fact and

conclusions of law.

Standard of Review and Applicable Law

The court that rendered the divorce decree retains continuing subject matter

jurisdiction to enforce and to clarify the decree’s property division pursuant to

specific provisions of the Family Code after the court’s plenary power expires. See

Gainous v. Gainous, 219 S.W.3d 97, 106, 108 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). In particular, a court has continuing jurisdiction to render

further orders to enforce the division of the property made in the decree of divorce

to assist in the implementation of or to clarify the prior order. See TEX. FAM. CODE

ANN. § 9.006(a) (West Supp. 2014); Gainous, 219 S.W.3d at 106. Similarly, on

the request of a party or on the court’s own motion, the court may enter a clarifying

order setting forth specific terms to enforce compliance with an original division of

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property on a finding that the original division of property is not specific enough to

be enforceable by contempt. See TEX. FAM. CODE ANN. § 9.008 (West 2006);

Gainous, 219 S.W.3d at 106.

However, there are limitations on the enforcement and clarification powers

of the court that rendered the divorce decree. Gainous, 219 S.W.3d at 106. A court

may not amend, modify, alter, or change the division of property made or approved

in the divorce decree after its plenary power expires. See TEX. FAM. CODE ANN.

§ 9.007(a) (West 2006); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003).

An order that amends, modifies, alters, or changes the divorce decree’s property

division is beyond the power of the court. See TEX. FAM. CODE ANN. § 9.007(b)

(West 2006); Gainous, 219 S.W.3d at 106–07. Accordingly, section 9.007 of the

Texas Family Code is jurisdictional and orders violating its restrictions are void.

Gainous, 219 S.W.3d at 108.

We review a trial court’s order on a motion for enforcement or clarification

of a final decree of divorce under an abuse of discretion standard. Id. at 103. A trial

court abuses its discretion when it (1) acts unreasonably, arbitrarily, or without

reference to any guiding rules or principles or (2) erroneously exercises its power

by making a choice outside the range of choices permitted the court by law. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985);

Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.—Fort Worth 2008, pet.

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dism’d). “A trial court abuses its discretion as to legal issues when it fails to

analyze or apply the law correctly.” In re D.S., 76 S.W.3d 512, 516 (Tex. App.—

Houston [14th Dist.] 2002, no pet.). The trial court’s conclusions of law are

reviewed de novo. Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex.

App.—Houston [14th Dist.] 2010, no pet.).

We interpret the language of a divorce decree as we do other judgments of

courts. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009) (citing Shanks, 110

S.W.3d at 447). We construe the decree as a whole to harmonize and give effect to

the entire decree. Id.; see Constance v. Constance, 544 S.W.2d 659, 660 (Tex.

1976). If the decree is unambiguous, the appellate court must adhere to the literal

language used. Hagen, 282 S.W.3d at 901. If the decree is ambiguous, it is

interpreted by reviewing both the decree as a whole and the record. Id. Whether a

divorce decree is ambiguous is a question of law. Id. at 901–02.

Discussion

In three issues, Kelli argues that (1) the trial court abused its discretion and

exceeded its authority when it issued the May 2013 order because, instead of

clarifying the divorce decree, the trial court impermissibly changed the substantive

division of the parties’ marital estate as set forth in the decree and reallocated

significant marital property liabilities in violation of Family Code section 9.007;

(2) the trial court erred in clarifying the Final Decree to provide that the 904

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Expenses were incurred by Kelli and are her sole obligation; and (3) the trial court

abused its discretion when it reallocated marital property liabilities without

reference to the factors outlined by the Texas Supreme Court in Murff v. Murff,

615 S.W.2d 696, 699 (Tex. 1981).

A. Did the May 2013 order alter the substantive division of the parties’
marital estate as set forth in the Final Decree?

Kelli argues that Michael incurred the 904 Expenses during their marriage

pursuant to the terms of the Temporary Orders and, therefore, the Final Decree

allocated those liabilities to Michael. Kelli further contends that the trial court’s

May 2013 order altered the substantive division of the parties’ marital estate by

reallocating those substantial expenses to her.

1. Impact of the Temporary Orders

It is undisputed that the Temporary Orders required Michael to pay the 904

Expenses. The parties disagree about the relevancy of the Temporary Orders to the

question of which spouse is liable to the other for the 904 Expenses.

Michael argues that the Temporary Orders are irrelevant with respect to

which party incurred the 904 Expenses because the Temporary Orders were

superseded by the MSA in April 2011 and, thus, they were of no force and effect

when the Final Decree was entered in September 2011. Specifically, Michael

argues that the MSA modified and/or released him from any prior obligations

imposed by the Temporary Orders based upon the following language: “The

10
provisions of this [MSA] shall be effective immediately as a contract, shall

supersede any temporary orders or other agreements of the parties with respect to

the subject matter hereof.” Michael argues that the trial court merely construed the

Final Decree and clarified it to reflect that the Temporary Orders had been

superseded by the MSA and, therefore, were longer of any force or effect.

Kelli contends that the MSA only relieved the parties of any future

obligations imposed by the Temporary Orders; it did not relieve the parties of their

past obligations that had already accrued. Kelli further argues that because there

was no order relieving Michael of his prior obligations imposed by the Temporary

Orders despite his specific attempts to obtain such relief, 9 the 904 Expenses were

obligations incurred by Michael pursuant to the terms of the Temporary Orders and

the MSA when the Final Decree was entered.

The term “supersede,” which is not defined in the MSA, is commonly

understood to mean “to replace,” “to cause to be set aside,” or “to take the place

of.” See www.merriam-webster.com/dictionary/supersede; see also Milner v.

Milner, 361 S.W.3d 615, 618–19, 627 (Tex. 2012) (holding MSAs are subject to

usual rules of contract interpretation and stating that undefined contract terms are

given their plain, ordinary, and generally accepted meaning). Based on the plain

9
Michael filed three motions to modify the Temporary Orders beginning in
September 2010 in which he asked the court to terminate his obligation to pay 904
Expenses, but none of these motions were ever ruled upon.

11
meaning of the term supersede, it is apparent that the parties agreed that the MSA

replaced or took the place of the Temporary Orders as of the MSA’s effective date,

thereby terminating any future or continuing obligations imposed by the

Temporary Orders. See Milner, 361 S.W.3d at 619 (stating that construction is

matter for court when agreement can be given certain and definite meaning). The

MSA, the terms of which were subsequently incorporated into the Final Decree,

did not explicitly set aside or nullify any prior obligations imposed by the

Temporary Orders that had already accrued. Case law holds that a final divorce

decree “supersedes” temporary orders, but does not extinguish liabilities that have

already accrued thereunder. See Pettus v. Pettus, 237 S.W.3d 405, 416 (Tex.

App.—Fort Worth 2007, pet. denied) (noting that “the rendition of a divorce

decree does not itself nullify any temporary order” and that obligation fixed by

temporary order continues after divorce decree unless specifically modified by

decree); Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. App.—Dallas 1980, no writ)

(holding that final divorce decree did not nullify temporary order with respect to

past due payments; rather, it superseded temporary order with respect to future

support).

More importantly, this interpretation is also consistent with the plain

language of the Final Decree, which the parties agreed would be based on the

terms of the MSA. The Final Decree states that the parties “are discharged from

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all further liabilities and obligations imposed by the temporary orders of this

Court.” Notably, the Final Decree does not discharge the parties from any

previously accrued liabilities and obligations imposed by the Temporary Orders,

only future liabilities and obligations.

Accordingly, we hold that neither the Final Decree nor the MSA altered or

discharged Michael’s obligations to pay the 904 Expenses that had already accrued

pursuant to the Temporary Orders. Based on the plain language of the Final

Decree, we further hold that the trial court erred by concluding that “[t]he Final

Decree supersedes any and all liabilities and obligations imposed upon either party by

the Temporary Orders.” See Busch, 312 S.W.3d at 299 (reviewing conclusions of

law de novo); see also Hagen, 282 S.W.3d at 901 (stating courts must adhere to

literal language used in unambiguous divorce decree).

The Temporary Orders provided that Michael was the spouse legally

obligated to pay for 904 Expenses, as between Michael and Kelli. Having

concluded that the MSA did not relieve Michael of his past obligations under the

Temporary Orders, we hold that at the time the parties entered the MSA and the

court entered the Final Decree, the 904 Expenses were obligations incurred by

Michael pursuant to the terms of the Temporary Orders. By shifting those

liabilities to Kelli, the court erroneously modified the division of property made or

approved in the divorce decree after its plenary power expired in violation of

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Family Code section 9.007. See TEX. FAM. CODE ANN. § 9.007(a); Shanks, 110

S.W.3d at 449. Accordingly, the trial court’s May 2013 order purporting to clarify

the Final Decree is void. Gainous, 219 S.W.3d at 108.

Conclusion

We declare the trial court’s order of clarification void and dismiss the appeal

for want of jurisdiction. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486

(Tex. 1995); Moore Landry, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d

536, 543 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

Russell Lloyd
Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

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