Court of Appeals of Texas, Ninth District, Beaumont
Submitted on March 14, 2016
Appeal from the County Court at Law No. 3 Montgomery County,
Texas Trial Cause No. 13-10-10909-CV
McKeithen, C.J., Kreger, and Johnson, JJ.
CHARLES KREGER Justice
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.
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. 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.
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, 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.
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).
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).
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.).
Agreed Final Decree of Divorce provided:
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].
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