Court of Appeals of Texas, Eighth District, El Paso
Appeal from the 158th District Court of Denton County, Texas. (TC# 2009-20906-158).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
GUADALUPE RIVERA, Justice
Appellant, Stacey Everett, former husband of Appellee, Jamie Everett, appeals from the portion of the trial court's clarifying order of the divorce decree that increased the amount of his spousal maintenance payments to Appellee. For the following reasons, we reverse and render judgment setting aside the trial court's clarifying order.
On April 15, 2010, Appellant and Appellee entered into a final decree of divorce. As part of division of the marital estate, Appellee was awarded the residence located at 5 Riviera Ct., Trophy Club, Texas, as her sole and separate property and was given 12 months from the date of the final decree to secure financing to purchase the residence. The decree further provided that if Appellee was unable or unwilling to secure financing to purchase the property, it would be listed for sale.
As part of the debt division of the marital estate, Appellant was ordered to pay all ad valorem taxes on the residence awarded to Appellee for a 36-month period. However, Appellant's obligation to continue making payments during that period would end upon Appellee either residing with a member of the opposite sex or getting remarried. The decree also ordered Appellant to pay Appellee spousal maintenance for a 36-month period according to the following schedule: $800 per month for 12 months; $700 per month for months 13-24; and $500 per month for months 25-36. The spousal maintenance provision would terminate early at the death of either party, Appellee's re-marriage, or upon further order by the trial court, including a finding of cohabitation by Appellee.
On May 17, 2011, Appellant filed a petition for enforcement of sale of the residence which he subsequently amended on May 23, 2011. In his first amended petition, Appellant alleged that Appellee failed to comply with the divorce decree because she had not secured financing for the real property. After a hearing on Appellant's first amended petition on July 21, 2011, the trial court ordered that the residence be sold, that the residence be taken off the market if Appellee obtained financing to purchase the home, and that Appellant continue to pay the taxes on the residence for 36 months as provided by the divorce decree. In the event the residence was sold prior to 36 months from the date of entry of the divorce decree, the trial court ordered Appellant to continue to pay Appellee a prorated portion of the taxes due on the residence as a form of spousal support. This payment of taxes to Appellee
was to terminate only under the conditions set forth in the divorce decree. A written order was not entered after the hearing as neither party presented the trial court with an order.
On July 25, 2011, Appellant filed a motion for reconsideration of the trial court's ruling. Appellant maintained the trial court was not authorized to enter a clarification order under section 9.008 of the Texas Family Code and that the trial court's order to increase Appellant's spousal maintenance payment could not be justified as a modification under section 8.057 of the Family Code. Tex. Fam. Code Ann. § 9.007 (West 2006); Tex. Fam. Code Ann. § 8.057 (West 2006). After a hearing on January 5, 2012, the trial court denied Appellant's motion for reconsideration and signed the " Order for Hearing Held on July 21, 2011" which was drafted by Appellee. Appellant filed his Notice of Appeal on January 6, 2012.
On January 18, 2012, Appellant filed a Motion to Modify, Correct, or Reform Judgment complaining that the trial court's January 5, 2012 order contained several errors. On February 16, 2012, the trial court entered a corrected order. In relevant part, this order provided:
Property Taxes Due on the Marital Residence and Post-Divorce Maintenance
If the marital residence is sold prior to April 15, 2013, [Appellant] is ORDERED to pay to [Appellee], as additional post-divorce maintenance, an amount equal to the portion of the gross sales price which is held back for application against any then-unpaid property taxes on the marital residence, if any. Thereafter, [Appellant] is ORDERED to pay each month to [Appellee], as additional post-divorce maintenance, an amount equal to one-twelfth of the total annual property ...