Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re J.A.F.

Court of Appeals of Texas, Ninth District, Beaumont

March 23, 2017

IN THE INTEREST OF J.A.F., T.A.F., AND H.S.F.

          Submitted on March 14, 2016

         On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 13-10-10909-CV

          Before McKeithen, C.J., Kreger, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         Jerad Weston Forcier (Father) appeals from the trial court's Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages, and Suspending Commitment, dated December 16, 2014. In five issues, Father contends the trial court erred when it: 1) entered an order modifying the Final Decree of Divorce regarding the children's 529 accounts; 2) found that Father had the ability and intentionally failed to pay child support on July 1, 2014; 3) found that Father failed to pay any support through the State Disbursement Unit on July 15, 2014; 4) found Father in contempt of court for intentionally failing to pay child support payments on July 1 and July 15, 2014; and 5) ordered Father to pay attorney's fees to Julie Anne Forcier (Mother). We affirm.

         I. Background

         This matter originates from a divorce action involving conservatorship, possession, and support of minor children, as well as division of the parties' marital estate. The original petition for divorce was filed on October 10, 2013. An Agreed Final Decree of Divorce was entered on June 26, 2014. On September 24, 2014, Mother filed a Petition for Enforcement by Contempt of Child Support and Spousal Support and Order to Appear, asking the court to determine an arrearage owed for child support and to hold Father in contempt of court for, among other things, failing to timely pay child support and for failing to fund 529 accounts for the children as agreed in the final decree. Father filed, among other pleadings, a response to Mother's petition for enforcement and asserted affirmative defenses of impossibility and inability to pay.[1] The trial court granted Mother's petition for enforcement and entered an order, among other things, determining an arrearage in child support payments owed by Father; finding that Father had the ability to pay and intentionally failed to pay child support on July 1, 2014 and July 15, 2014, and holding Father in contempt of court therefore; clarifying the provisions of the Agreed Final Decree of Divorce regarding the 529 accounts for the children; and awarding attorney's fees to Mother.

         II. Clarification Order

         In issue one, Father contends that the trial court's order of December 16, 2014, goes beyond a mere clarification of the provisions of the Agreed Final Decree of Divorce regarding the 529 accounts, that it instead constitutes "an alteration, modification and/or amendment" to certain property division provisions of the Agreed Final Decree of Divorce of June 24, 2014, and that the trial court was without jurisdiction to enter such an order. Relying upon § 9.007(a)-(b) of the Texas Family Code[2], Father contends the trial court's order amends, modifies, alters or changes the actual, substantive division of property made or approved in the Agreed Final Decree of Divorce.

         A property division in a final decree of divorce becomes final the same as other judgments; thus, an appeal or a motion to modify, correct, or reform the decree must be filed within the time prescribed by the Texas Rules of Civil Procedure and Texas Rules of Appellate Procedure. See Schwartz v. Jefferson, 520 S.W.2d 881, 887 (Tex. 1975); DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.-Dallas 2008, no pet.); In re Garza, 153 S.W.3d 97, 102 (Tex. App.-San Antonio 2004, orig. proceeding). After a trial court's plenary power has expired, the proper way for a party to directly attack a decree is to file a bill of review in the trial court. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990).

         A trial court does, however, retain continuing jurisdiction to render some further orders regarding a final decree of divorce. See Tex. Fam. Code Ann. §§ 9.002, 9.006 (West Supp. 2016), § 9.007 (West 2006). Such orders include those to "enforce the division of property[, ]" "assist in the implementation of or to clarify the prior order[, ]" or "specify more precisely the manner of effecting the property division previously made or approved[.]" Id. § 9.006(a), (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." Id. § 9.008(b) (West 2006); accord In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied). These orders may more precisely specify how the previously ordered property division will be implemented so long as the substantive division of the property is not altered. See Tex. Fam. Code Ann. § 9.006(b); see also McPherren v. McPherren, 967 S.W.2d 485, 490 (Tex. App.- El Paso 1998, no pet.); Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.-El Paso 1995, no writ). However, if the order "amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce[, ]" the order is "beyond the power of the divorce court and is unenforceable." Tex. Fam. Code Ann. § 9.007(b).

         "[T]he remedy of clarification applies not only to property divisions specifically set forth in the decree but to those divisions which are merely approved and incorporated by reference in the decree." Dechon, 909 S.W.2d at 956. A trial court may also enter a clarifying order regarding a motion for contempt when it finds the original order is not specific enough to be enforceable by contempt. Tex. Fam. Code Ann. § 9.008(b). Most importantly, a proper clarification is consistent with the prior divorce decree and merely serves to enforce by appropriate order the prior judgment or settlement agreement. Karigan v. Karigan, 239 S.W.3d 436, 439 (Tex. App.-Dallas 2007, no pet.); Young v. Young, 810 S.W.2d 850, 851 (Tex. App.-Dallas 1991, writ denied). Clarification orders, thus, cannot be used to make a substantive change to the division of property in a divorce decree after it becomes final. Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003); Brown v. Brown, 236 S.W.3d 343, 347 (Tex. App.- Houston [1st Dist.] 2007, no pet.).

         The Agreed Final Decree of Divorce provided:

         Custodial Accounts

IT IS ORDERED AND DECREED that [Mother] shall open a 529 account for each child within 30 days from the date of entry of this Agreed Final Decree of Divorce. IT IS FURTHER ORDERED AND DECREED that [Mother] shall provide [Father] written documentation of any and all information pertaining to said 529 accounts within ten days from opening said accounts.
IT IS ORDERED AND DECREED that [Father] shall deposit the sum of $5, 000.00 into each 529 account (for a total deposit of $15, 000.00) within 30 days from receiving written documentation of any and all information pertaining to said 529 accounts from [Mother].

         At the hearing on Mother's petition for enforcement, she testified that she had opened the 529 accounts on July 29, 2014. That date is outside of the 30 days set forth in the decree. However, as Father concedes in his appellate brief, it appears from the exhibit entered that Mother's testimony on this issue was erroneous because the date stamp on the email to Father alerting him to the opening of the 529 accounts is July 25, 2014, which is timely. Mother also testified that she sent screen shots of the electronic confirmation she received from the financial account provider for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.