Opinion
No. 14-10-00247-CV
Opinion filed August 11, 2011.
On Appeal from the 328th District Court, Fort Bend County, Texas, Trial Court Cause No. 05-CV-141313.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and BOYCE.
MEMORANDUM OPINION
Appellant, Anthony Berteen, appeals the trial court's order clarifying a provision in a divorce decree pertaining to division of the spouses' property. We affirm.
I. BACKGROUND
Berteen and appellee, Jhanrie Abigail Hamdan (formerly Berteen), were divorced in 2005. In the divorce decree, the trial court awarded Berteen certain real property subject to the following provision:
. . . before [Berteen] becomes sole owner . . ., the property must appraised [sic] by Hill and Asscociates [sic]. . . . [Hamdan] and [Berteen] will share equally the cost of the appraisal. The equity on the property will then be determined. [Berteen] will be awarded $11,000 of that equity. The remaining equity will be divided equally between [Berteen] and [Hamdan]. [Berteen] will then pay to [Hamdan] her share of the equity in one lump sum within a reasonable time from the date this order is signed.
Subsequently, Hamdan filed a petition for enforcement of this provision, alleging that Berteen refused to allow the appraisal and to pay Hamdan's share of the equity. The parties signed a mediated settlement agreement, which contained various agreements relative to obtaining the appraisal. Hamdan then requested an enforcement order in accordance with the mediated settlement agreement. On January 26, 2007, the trial court signed an "Agreed Property Enforcement Order," ruling in pertinent part:
The Court finds that the parties agree to have the property . . . appraised by Hill and Associates. The parties are both ordered to pay one-half of the appraisal fees not later than October 13, 2006, made payable directly to Hill and Associates.
The Court finds the parties agree to have the appraisal conducted on or before October 31, 2006.
The order was signed after the date specified therein for the appraisal. Apparently, the delay was attributable to the parties' inability to agree on the terms of an order to reflect their mediated settlement agreement, thus prompting Hamdan to request an enforcement order. Nevertheless, the trial court reduced the agreement to a written order regardless of the date on which the appraisal was performed.
. . .
The parties are ORDERED to comply with all requests made by Hill and Associates to facilitate the appraisal process.
After the appraisal was performed, Hamdan filed a motion for clarification of the property division in the divorce decree, asserting it was not sufficiently specific with respect to "conditions under which [Berteen] shall pay [Hamdan] her equity interest." Berteen filed a counter petition, seeking an order requiring Hamdan to execute a Special Warranty Deed conveying the property to Berteen and to bear half of the mortgage payments and repair costs incurred by Berteen between the divorce and the appraisal as an offset against her share of the equity.
On January 19, 2010, the trial court signed a "Clarification Order," stating in pertinent part:
The Court finds that the prior order to sell the property . . . needs to clarified [sic]. The Court further finds the parties had the property appraised pursuant to a prior court order. The Court finds that the equity of the property shall be determined as follows: the appraised value less the mortgage balance as of the date of the appraisal, less a pro rata deduction for property taxes and insurance through the date of the appraisal, less $11,000.00 paid to [Berteen]. The remaining equity shall be divided equally between [Hamdan] and [Berteen]. [Berteen] shall pay [Hamdan] her share of the equity in a lump sum payment within ninety days from the date of this order.
The trial court did not grant any of the relief requested by Berteen in his counter petition. Berteen now appeals from the clarification order.
II. ANALYSIS
In four issues, Berteen contends (1) rendition of the clarification order was barred under the doctrine of res judicata, (2) the trial court lacked jurisdiction to issue a clarification order absent a pending motion to enforce, (3) the trial court erred by refusing to require Hamdan to execute a Special Warranty Deed, and (4) the clarification order constituted an impermissible modification of the divorce decree.
A. Res Judicata
The doctrine of res judicata "prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit." Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).
In the enforcement order, the trial court prescribed only the procedure for obtaining an appraisal. Then, in the clarification order, the trial court recognized that the appraisal had been completed and prescribed the procedure for determination of equity and payment of Hamdan's share. Berteen apparently contends that this clarification should have been included in the parties' mediated settlement agreement and thus adjudicated in the enforcement order. He also suggests that the trial court's failure to specifically "reserve" in the enforcement order a ruling on any other issues precluded, under the doctrine of res judicata, later clarification of the decree. We disagree.
When an issue regarding application of res judicata presents purely legal issues, we apply a de novo standard of review. See Ex parte Myers, 68 S.W.3d 229, 232 (Tex. App.-Texarkana 2002, no pet.); Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.-San Antonio 1996, no writ). In this case, the res judicata contention involves purely legal issues because our resolution is based on Texas Family Code Chapter 9, Subchapter A, which governs enforcement of a divorce decree. See generally Tex. Fam. Code Ann. §§ 9.001-.014 (West 2006 Supp. 2009).
Specifically, a court that rendered a divorce decree "retains the power to enforce the property division." Id. § 9.002. This power includes authority "to render further orders to enforce the division of property made in the decree of divorce . . . to assist in the implementation of or to clarify the prior order." Id. § 9.006(a). In particular, "[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. § 9.006(b).
In the present case, the trial court's enforcement order and clarification order, respectively, concerned two separate steps necessary to effect the property division: (1) appraisal followed by (2) division of equity. Subchapter A includes no requirement that a trial court's post-decree enforcement or clarification of separate aspects of a property division must be adjudicated within one proceeding. See id. §§ 9.001-.014. Similarly, Subchapter A does not prohibit a trial court from rendering multiple enforcement or clarification orders as issues arise on progressive procedures necessary to effect a property division. See id. Our imposing such a prohibition under the doctrine of res judicata would be contrary to the court's "[c]ontinuing" authority to render further "orders" (in the plural) to enforce its decree. See id. §§ 9.002, 9.006(a). Finally, Subchapter A includes no requirement that a trial court issuing an enforcement or clarification order must expressly reserve the right to rule on any other issues before it may later exercise its continuing jurisdiction to render further orders. See id. §§ 9.001-.014. Accordingly, the trial court's clarification order was not barred under the doctrine of res judicata. We overrule Berteen's first issue.
B. Jurisdiction to Render Clarification Order
Next, Berteen argues that the trial court lacked jurisdiction to render the clarification order absent a pending motion to enforce. Berteen emphasizes that the previous enforcement petition had been resolved and the motion for clarification was not joined with any other enforcement petition. Whether jurisdiction exists is a question of law, which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
The title of Subchapter A is "Suit To Enforce Decree." See Tex. Fam. Code Ann. §§ 9.001-.014. As mentioned above, a trial court is authorized under this subchapter to render orders "to enforce the division of property . . . to assist in the implementation of or to clarify the prior order." Id. § 9.006(a) (emphasis added). Therefore, we construe a clarification order as one option a trial court may exercise to enforce its divorce decree and a clarification proceeding as a form of enforcement proceeding. See Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex. App.-Corpus Christi 2000, no pet.) (recognizing that valid clarification order merely enforces original decree). Accordingly, by filing her motion for clarification, Hamdan invoked the trial court's jurisdiction to render its clarification order even if the previous enforcement petition had been resolved and there was no other pending enforcement petition.
To support his jurisdictional argument, Berteen also cites section 9.008, which provides in pertinent part:
(a) On the request of a party or on the court's own motion, the court may render a clarifying order before a motion for contempt is made or heard, in conjunction with a motion for contempt or on denial of a motion for contempt.
(b) On a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property.
Tex. Fam. Code Ann. § 9.008(a), (b).
Berteen suggests section 9.008 requires that a motion for clarification be joined with a contempt proceeding. Berteen also contends that the trial court lacked authority to render the clarification order because it did not first find that "the original form of the division of property is not specific enough to be enforceable by contempt." See id. § 9.008(b).
We note that these contentions seem somewhat inconsistent with Berteen's previous suggestion that Hamdan was required to join the motion for clarification with any general enforcement petition. Nonetheless, section 9.008 is only one of the provisions in Subchapter A addressing a trial court's power to render a clarification order. As we have mentioned, section 9.006(b) also authorizes the court to "specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed." Id. § 9.006(b). A sister court has held that sections 9.006(b) and 9.008 provide independent bases for a court to render a clarification order. See Wright, 32 S.W.3d at 894-95. In particular, the Wright court held that the finding required under section 9.008(b) is not required under section 9.006(b). Id. at 894-95; compare Tex. Fam. Code Ann. § 9.006(b), with § 9.008(b). However, our court has indirectly suggested that section 9.008(b) more specifically describes the court's authority under section 9.006(b) to clarify its divorce decree and prescribes an additional perquisite for a clarification order. See Marshall v. Priess, 99 S.W.3d 150, 158 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
Assuming without deciding section 9.008 is applicable to any motion for clarification, the provision negates Berteen's argument that such a motion must be joined with a contempt proceeding; section 9.008(a) expresses that the trial court may clarify the divorce decree "before" a motion for contempt is made. See Tex. Fam. Code Ann. § 9.008(a).
With respect to Berteen's argument that the trial court failed to make the finding set forth in section 9.008(b), the court did not issue findings of fact and conclusions of law and they were not properly requested; although Berteen timely requested findings, the record contains no notice of past due findings. See Tex. R. Civ. App. 297. When no findings of fact or conclusions of law are filed or properly requested after a bench trial, it is implied that the trial court made all necessary findings to support its judgment. Mays v. Pierce, 203 S.W.3d 564, 571 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). Consequently, even if the trial court was required to make the finding set forth in section 9.008(b), the court made such an implied finding. Accordingly, we overrule Berteen's second issue.
C. Special Warranty Deed
Berteen also complains that the trial court denied his request for a provision in the clarification order requiring Hamdan to execute a Special Warranty Deed conveying the property to Berteen. According to Berteen, ownership of the property vested in him as soon as the appraisal was completed. Therefore, Berteen suggests that the trial court's denial of his request constituted a substantive modification of the divorce decree which is prohibited under Family Code section 9.007:
(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).
However, Berteen was the party effectively requesting modification because the decree provides that ownership will vest in Berteen after the appraisal and division of equity. Therefore, assuming without deciding that a Special Warranty Deed is the appropriate instrument for conveying the property, the trial court did not err by refusing to order execution of such an instrument before the division of equity is completed. As we have discussed, there is no provision in Chapter 9, Subchapter A precluding Berteen from moving to enforce or clarify the decree by requesting an order requiring execution of a Special Warranty Deed as the final step in the property division once the equity is divided. Accordingly, we overrule his third issue.
D. Additional Substantive-Modification Arguments
Finally, Berteen posits that the clarification order constituted a substantive modification of the divorce decree in several additional respects.
First, Berteen emphasizes that the trial court stated in the clarification order, "the prior order to sell the property . . . needs to clarified." As Berteen asserts, the decree contains no requirement that the property be sold. Rather, Berteen is required only to pay Hamdan her share of the equity in a lump sum. Nonetheless, the court's referenced statement in the clarification order was merely a recital before ordering specific relief. The court did not then order that the property be sold. Instead, consistent with the decree, the court ordered Berteen to pay Hamdan her share of the equity in a lump sum. Accordingly, although the recital did not accurately reflect the decree, it did not modify the decree.
Next, Berteen complains that the trial court added procedures for determining equity which were not contained in the decree. However, the court merely "specif[ied] more precisely the manner of effecting the property division previously made," as authorized under section 9.006(b) if "the substantive division of property is not altered or changed." Id. § 9.006(b). The court specified the method for determining equity so that it could then be divided in the manner required under the decree. The court did not alter the share of equity to which each party is entitled.
Lastly, Berteen contends that the clarification order altered the decree "by unjust enrichment" because the trial court ordered that equity be determined using the mortgage balance "as of the date of the appraisal" but Hamdan did not help reduce the mortgage balance or pay repair costs incurred between the divorce and the appraisal. However, the clarification order was consistent with the decree's requirement that equity be determined once the appraisal is performed. In light of his complaint, Berteen is actually the party requesting modification of the property division because the decree contains no term allowing him to recover any mortgage payments or repair costs from Hamdan via a reduction in her share of the equity or otherwise. To the contrary, under another portion of the decree addressing debts, the court ordered Berteen to pay the balance due on the mortgage and "other charges due or to become due" on the property, with no exception for mortgage payments or charges incurred between the divorce and the appraisal.
In sum, because the trial court did not modify the decree in the clarification order, we overrule Berteen's fourth issue.
We affirm the clarification order.