A divorce decree dividing the community estate is just a piece of paper. Some parties comply. Others do not. When parties are reluctant, court intervention might be required through a Chapter 9 enforcement suit. However, it is important not to get overambitious and attempt to relitigate issues that were already resolved in the divorce decree. The petitioner may be awarded attorney’s fees incurred in the enforcement, Tex Fam. Code § 9.014, but may not alter the property division in an effort to make the petitioner “whole.” Tex. Fam. Code § 9.007(a).
Courts interpret divorce decree language as they do other judgments. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). “As with other final, unappealed judgments which are regular on their face, divorce decrees and judgments are not vulnerable to collateral attack.” Id. at 902. However, the Family Code authorizes a trial court that rendered a divorce decree to enter orders to enforce or specify more precisely the decree’s property division. See Tex. Fam. Code § 9.006(a) (“[T]he court may render further orders to enforce the division of property made or approved in the decree ... to assist in the implementation of or to clarify the prior order” and “may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed.”); Hagen, 282 S.W.3d at 902. If the trial court finds that the original form of the property division is not specific enough to be enforceable by contempt, it “may render a clarifying order setting forth specific terms to enforce compliance with the original division of property.” Tex. Fam. Code § 9.008. But the trial court may not “amend, modify, or change the division of property” originally set out in the decree. Tex. Fam. Code § 9.007(a). “Attempting to obtain an order that alters or modifies a divorce decree's property division is an impermissible collateral attack.” Hagen, 282 S.W.3d at 902.
If a decree is found to be unambiguous, then the addition of terms to instruct the parties on how to fulfill their rights and duties is not an impermissible modification of a property division. See Fry v. Fry, No. 01-22-00611, 2024 WL 969728 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (mem. op.) (clarification that Husband’s company owed Wife money, and Husband was guarantor of moneys owed did not modify decree); LeBlanc v. LeBlanc, 676 S.W.3d 703, 708 (Tex. App.—El Paso, 2023, no pet.) (clarifying execution of documents necessary to refinance mortgage as ordered in decree). When a decree is ambiguous, the court may consider extrinsic evidence to resolve the ambiguity. Coker v. Coker, 650 S.W.2d 391, 393–94 (Tex. 1983); see Shearn v. Brinton-Shearn, No. 01-17-00222-CV, 2018 WL 6318450, at 10 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (mem. op.) (court heard testimony to resolve ambiguity relating to which party responsible for property taxes on marital residence). Note that a clarification order is not a nunc pro tunc and requires a new lawsuit under Texas Family Code Chapter 9. See Okafor v. Okafor, No. 14-21-00483-CV, 2023 WL 163814, at 7 (Tex. App.—Houston [14th Dist.] no pet.) (mem. op.) (reversing nunc pro tunc for adding terms to clarify sale of residence because not clerical error but required judicial reasoning).
Despite the trial court’s inability to modify a property division, parties may enter into an agreement after a divorce decree is final, and a trial court may enforce that agreement “so long as it ‘touches upon’ the underlying suit.” Dailey v. McAfee, No. 01-21-00106-CV, 2022 WL 3363195, at 3–4 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (mem. op.) (citation omitted) (enforcing parties’ post-divorce Rule 11 agreement and stating the attempt to enforce the judgment was a continuation of an aspect of the underlying suit). The trial court’s jurisdiction to enforce such an agreement does not hinge on its jurisdiction to modify a divorce decree. See id. at 3 (citing Karp v. Karp, No. 14-01-00902-CV, 2002 WL 31487899, at *1 (concluding trial court had jurisdiction to enforce post-divorce Rule 11 Agreement regarding the sale of the parties’ home)) (other citation omitted).
The Family Code states that “[t]he court may not give retroactive effect to a clarifying order.” Tex. Fam. Code § 9.008(c); Zeolla v. Zeolla, 15 S.W.3d 239, 242–43 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding trial court did not give clarification order retroactive effect when it ordered payment of benefits already accrued under the agreement by the parties). Section 9.008 deals with clarification in aid of contempt enforcement, and all its other subsections specifically speak in terms of contempt. See Tex. Fam. Code § 9.008(a)–(b), (d). Read in this context, Section 9.008(c) prohibits a court from giving retroactive effect to a clarifying order “in such a way as to subject a party immediately to contempt,” not from ordering payment of past-due benefits consistent with the divorce decree. Zeolla, 15 S.W.3d at 242 (noting that any other interpretation would make court powerless to order payment of past due obligations and would conflict with case law and Family Code).
Mootness defeats a court’s subject-matter jurisdiction over a particular controversy. See Messier v. Messier, 458 S.W.3d 155, 161 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Robinson v. Alief ISD, 298 S.W.3d 321, 324 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The mootness doctrine precludes a court from rendering an advisory opinion in a case where there is no live controversy.”); Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“[I]f a judgment cannot have a practical effect on an existing controversy, the case is moot and any opinion issued on the merits in the appeal would constitute an impermissible advisory opinion.”). A case becomes moot when the issues presented are no longer “live”—that is, a justiciable controversy no longer exists between the parties, or the parties no longer have a legally cognizable interest in the case’s outcome. Glassdoor, Inc. v. Andra Grp., LP, 575 S.W.3d 523, 527 (Tex. 2019). But a case is not made moot merely because some issues became moot during the appeal; that is, if only some claims or issues become moot, the case remains live for the claims or issues that are not moot. State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018).
If a property is sold during the pendency of an appeal, then an unresolved appellate challenge to an order for the sale of the property becomes moot. Garza v. Garza, No. 14-22-00810-CV, 2024 WL 1102973, at *5 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (mem. op.). However, if the challenge were to the characterization of the house—and effectively to the distribution of the net proceeds of the sale—then a sale would not render the appeal moot. See Harper, 562 S.W.3d at 6.
Again, it is important to remember—and to help your clients understand—Chapter 9 enforcements are used to enforce the decree as rendered, not to relitigate the divorce. The family courts can aid with the enforcement, but their power is limited.
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