in the Interest of T.N.L., a Child

ACCEPTED 06-15-00039-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/13/2015 2:07:37 PM DEBBIE AUTREY CLERK NO. 06-15-00039-CV ************* FILED IN 6th COURT OF APPEALS INTHE COURT OF APPEALS TEXARKANA, TEXAS 10/13/2015 2:07:37 PM SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY Clerk AT TEXARKANA, TEXAS ******* IN THE INTEREST OFT.N.L. A CHILD ******* Appealed from the 307TH Family District Court Gregg County, Texas Trial Court No. 2008-353-DR BRIEF OF APPELLEE CARLOS LANIER JESSICA A. KROSCHER State Bar # 24070879 Attorney at Law P.O. Box 1228 Longview, TX 75606 Telephone: (903) 553-0085 Facsimile: (903) 553-9448 jessica@longviewlegal.com ATTORNEY FORAPPELLEE APPELLEE WAIVES ORAL ARGUMENT NO. 06-15-00039-CV IN THE INTEREST OF T.N.L. A CHILD IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1 (a) Appellant: SAMUEL LANIER Marshall, Texas Father of T.N.L. Appellant's EBB B. MOBLEY P.O. Box2309 trial counsel: Attorney at Law Longview, Texas 75606 Appellant's EBB B. MOBLEY P.O. Box 2309 counsel on appeal Attorney at Law Longview, TX 75606 Appellee: CARLOS LANIER Longview, Texas Mother of T.N.L. Appellee's trial JESSICA KROSCHER P.O. Box 1228 counsel: Attorney at Law Longview, Texas 75606 Appellee's JESSICA KROSCHER P.O. Box 1228 counsel on appeal Attorney at Law Longview, Texas 75606 Trial Judge: TIM WOMACK 101 East Methvin, Suite 463 307th Family District Judge Longview, Texas 75601 Page 1of12 TABLE OF CONTENTS Page IDENTITYOFPARTIESANDCOUNSEL ............................................... l TABLE OF CONTENTS ........................................................................................... 2 INDEX OF AUTHORITIES ........................................... .............. .. .. .............. ........... 3 STATEMENT OF THE CASE .................................................................................. 4 STATEMENTOFFACTS ..................................................................................... 4-6 ISSUE ......................................................................... ............. ....................................... 6 Did the trial court abuse his discretion by rendering a judgment against a defaulting party for the amount of unpaid payments to which the opposing party is entitled to under the final decree of divorce? SUMMARY OF THE ARGUMENT ........................................................... 7 ARGUMENT ............................................................................................. 7-11 PRAYER ....................................................................................................................... 11 CERTIFICATE OFCOMPLIANCE ........................................................................ 12 CERTIFICATE OFSERVICE .................... .. ........................................................... 12 SCRIVENER'S NOTE The parties are referred to as "Samuel", "former husband", or"appellant", and "Carlos", "former wife", or " appellee". The residence in question located at 2308 Nixson in Longview, Gregg County, Texas is referred to as "the house." Page 2of12 INDEX OF AUTHORITIES Cases Forney v. Jorrie, 511S.W.2d379 (Tex.Civ.App.-San Antonio 1974, writ refd n.r.e.) ............................................... 10 In Re Marriage ofPyrtle, 433 S.W.2d 152 (Tex.App.-Dallas 2014, pet. denied) ........................................................................ 10 Statutes Texas Family Code §9.002 ............................................................... 8 Texas Family Code §9.006 ............................................................... 7 Texas Family Code §9.007(b) ....... ............. ............................. ............ 8 Texas Family Code §9.010 ................................................................ 7 Texas Family Code §9.0lO(b) ....................... ................................. 8,9,10 Page 3of12 STATEMENT OF THE CASE This is an appeal from a ruling in a post-divorce proceeding that was brought by a former wife due to her former husband's failure to meet his financial obligations ordered in the final decree of divorce. The trial court rendered a judgment against the former husband for the amount of unpaid payments to which the former wife was entitled. STATEMENT OF FACTS The parties were divorced on September 26, 2008 and the final decree was entered on November 17, 2008 (Reporter's Record Vol. 2 Page 6)(Clerk's Record Page 24). The final decree specifically ordered Samuel to pay the house note, insurance premiums and property taxes on the house in lieu of child support for the minor child T.N.L. (Clerk's Record Page 13). The final decree further ordered that Samuel was responsible for fifty percent of all maintenance expenses for the house over the amount of five hundred dollars ($500.00) (Clerk's Record Page 22). At a bench trial held on January 28, 2015, Carlos asked the court to award a judgment in the amount of Samuel's unpaid financial obligations that were ordered in the final decree (Reporter's Record Vol. 2 Page 9)(Clerk's Record Page 34). Carlos testified that after the divorce, she was the one who made the mortgage payments, property payments and tax payments and that Samuel did not make a single payment (Reporter's Record Vol. 2 Page 10). Carlos further testified that after the final decree was entered, the house nearly went into foreclosure proceedings, due to Samuel's nonpayment, until Carlos finally caught up the delinquent amount and began making the payments (Reporter's Record Vol. 2 Page 12). Carlos stated that she had to work two jobs just to be able to make the house payments every month. (Reporter's Record Vol. 2 Page 13). Page 4of12 Carlos further testified that Samuel didn't pay her for one half the cost of a new air conditioner for the house, and that Samuel's responsibility for the air conditioner totaled one thousand five hundred ninety seven dollars and fifty cents ($1,597.50) (Reporter's Record Vol. 2 Page 18). The totality of Samuel's financial responsibility under the final decree that remained unpaid at the time of trial was forty three thousand three hundred fifty three dollars and twelve cents ($43,353.12) (Reporter's Record Vol. 2 Page 18). Giving Samuel credit toward his financial obligations for the twenty one thousand nine hundred and forty eight dollar ($21,948.00) payment that Carlos received from the social security administration, the total amount Samuel was delinquent at the time of trial was twenty one thousand four hundred and five dollars and twelve cents ($21,405.12) (Reporter's Record Vol. 2 Page 18). Carlos testified that she made all of the mortgage payments from November 11, 2008, the date of the divorce, through June 1, 2014, when their daughter graduated from high school, for a total of forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62) (Reporter's Record Vol. 2 Page 17). The final decree specifically gave Carlos the exclusive use of the house until: T.N.L. turned 18 years of age; graduated high school; or the sale of the residence by mutual agreement of Carlos and Samuel (Clerk's Record Page 22). At that time, the decree orders Carlos to either sell the house; or purchase Samuel's portion of the equity. In the event of a buyout, Carlos was to order an appraisal on the home, and pay Samuel for his one-half interest in and to the equity in said property, over and above outstanding liens thereon (Clerk's Record Page 22-23). Carlos testified that she ordered an appraisal on the house and it appraised for sixty nine thousand dollars ($69,000.00) (Reporter's Record Vol. 2 Page 18). Carlos further testified the Page 5of12 mortgage payoff as of June 30, 2014 was twenty eight thousand six hundred seventy six dollars and thirty six cents ($28,676.36) (Reporter's Record Vol. 2 Page 19). Samuel testified that he was unable to inquire about the mortgage because his name was not on the deed (Reporter's Record Vol. 2 Page 33). It was later shown that both Carlos and Samuel were named on the deed of the house (Reporter's Record Vol. 2 Page 3)(Clerk's Record Page 81). Samuel ultimately conceded that the only proof he had as to whether he met any of the financial obligations ordered in the final decree were the "words I'm telling you" (Reporter's Record Vol. 2 Page 39). Samuel further testified to the court that he did not make any payments required under the divorce decree from either September 11, 2010 or September 11, 2011 forward (Reporter's Record Vol. 2 Page 48). After the bench trial on January 28, 2015, the order was signed on June 4, 2015 (Clerk's Record Page 106). The court's findings of fact and conclusions of law was signed by the trial judge on July 29, 2015 (Clerk's Record Page 119). ISSUE Did the trial court abuse his discretion by rendering a judgment against a defaulting party for the amount of unpaid payments to which the opposing party is entitled to under the final decree of divorce? Page 6of12 SUMMARY OF THE ARGUMENT The trial court's ruling was not an alteration of the original property division, it was a judgment against Samuel in the amount of the unpaid payments to which Carlos is entitled to under the final decree of divorce. ARGUMENT Applicable Statutes Texas Family Code §9.006 provides: (a) Except as provided by this subchapter and by the Texas Rules of Civil Procedure, the court may render further orders to enforce the division of property made or approved in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order. (b) The court may specify more precisely the manner of effecting the property division previously made or approved if the substantive division of property is not altered or changed. (c) An order of enforcement does not alter or affect the finality of the decree of divorce or annulment being enforced. Texas Family Code §9.010 provides: (a) If a party fails to comply with a decree of divorce or annulment and delivery of property awarded in the decree is no longer an adequate remedy, the court may render a money judgment for the damages caused by that failure to comply. (b) If a party did not receive payments of money as awarded in the decree of divorce or annulment, the court may render judgment against a defaulting party for the amount of unpaid payments to which the party is entitled. (c) The remedy of a reduction to money judgment is in addition to the other remedies provided by law. (d) A money judgment rendered under this section may be enforced by any means available for the enforcement of judgment for debt. Page 7of12 Analysis Under section 9.002 of the Texas Family Code, the trial court retains jurisdiction to render further orders to enforce the division of marital property. However, it is beyond the power of the trial court to render a ruling after the divorce decree has been entered if it "amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce." Tex.Fam.Code §9.007(b). Moreover, if a party did not receive payments in accordance with the decree of divorce, the court may render judgment against a defaulting party for the amount of unpaid payments to which the party is entitled. Tex.Fam.Code §9.0IO(b). The final decree of divorce was entered on November 17, 2008 (Clerk's Record Page 24). The final decree set aside the house for the exclusive use and benefit of Carlos and T.N.L. until the earliest of: 1) T .N .L. attaining eighteen years of age or finishing high school; or 2) the sale of the house by mutual agreement of Carlos and Samuel (Clerk's Record Page 22). During this period of exclusive occupancy, Samuel was ordered to pay the house note, insurance premiums and property taxes in lieu of child support (Clerk's Record Page 13). Additionally, Samuel was ordered to pay fifty percent of all maintenance expenses associated with the house that were above five hundred dollars ($500.00) (Clerk's Record Page 22). Since T.N.L. has both reached the age of eighteen and graduated from high school, it is undisputed that under the final decree, the house must be either sold or Carlos must purchase Samuel's interest in the property (Clerk's Record Page 22-23). In accordance with the final decree, Carlos began the proceedings to purchase Samuel's interest in the house. She had the property appraised, and a value of sixty nine thousand dollars ($69,000.00) was attributed to the house (Reporter's Record Vol. 2 Page 18). Carlos' testimony and the court's ruling follow Carlos' Page 8of12 summary ofrequested relief found in the Clerk's Record Page 34: Summary of Requested Relief Mortgage Payment Mr. Lanier should have made $41,755.62 (beginning 11111/2008 through 06/01/2014) Repairs Mr. Lanier should have reimbursed $1,597.50 Total owed by Mr. Lanier $43,353.12 Amount child received from Social Security Administration -$21,948.00 Amount remaining owed by Mr. Lanier $21,405.12 Value of home (Ct. ordered appraisal attached as exhibit "C") $69 000.00 Mortgage payoff through 06/30/2014 -$28,676.36 Total Equity $40 323.64 Amount still owed by Mr. Lanier $21,405.12 Each Yz Equity (approximate) -$20,161.82 Difference owed by Mr. Lanier $1,243.30 The trial court's adoption of the above listed requested relief in its ruling was a judgment against a defaulting party for the amount of unpaid payments to which the party is entitled, which is permitted under Texas Family Code §9.0lO(b). Samuel presented no tangible proof at trial that he met any of his financial obligations under the final decree. Samuel did claim to have made some cash payments before he stopped working in September of 2010 or 2011, but conceded to the court that he had made no payments since he stopped working (Reporter's Record Vol. 2 Page 48). The court was not persuaded by Samuel's testimony and lack of tangible evidence and ultimately made a finding that he made no payments (Clerk's Record Page 121-122). As a result of his nonpayment, the court found that Carlos paid forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62) in mortgage, tax and insurance payments that Samuel should have made (Clerk's Record Page 121). In addition to not paying the mortgage note, insurance or the taxes on the house, Samuel Page 9of12 failed to pay for his one half of the maintenance expense related to a new air conditioner. Samuel once again offered no proof of meeting his financial obligation and the court found that he had not paid any portion of the three thousand one hundred ninety five dollar ($3,195.00) maintenance expense (Clerk's Record Page 121). The ruling of the court regarding Samuel's nonpayment of his financial obligations under the final decree establishes Samuel as a party in default under Texas Family Code §9.lOl(b). Further, it is undisputed that Samuel was ordered to make these payments under the final decree. By making the payments that Samuel was ordered to make, Carlos is entitled to a judgment in the amount of the unpaid payments under Texas Family Code §9.lOl(b). Accordingly, the court did not abuse his discretion by entering a judgment against Samuel in the amount of his default. It has been established that it is entirely permissible to reduce delinquent monthly payments to a judgment. Forneyv. Jorrie, 511S.W.2d379, 385 (Tex.Civ.App.-SanAntonio 1974, writref'd n.r.e.). Moreover, Texas courts have ruled that if a party "does not comply with the portion of the property division in the decree ... the trial court ha[ s] the authority to reduce the property division made in the divorce decree to a money judgment." In Re Marriage of Pyrtle, 433 S.W.2d 152, 165 (Tex.App.-Dallas 2014, pet.