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Gow v. Sevener

Court of Appeals of Texas, Fifth District, Dallas

November 30, 2017

BRETT GOW, Appellant
v.
SHEILA EVA SEVENER, Appellee

         On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-02864

          Before Justices Francis, Myers, and Whitehill

          MEMORANDUM OPINION

          Justice Whitehill

         This case involves the trial court's denial of a post-divorce decree request to amend a Qualified Domestic Relations Order (QDRO) to address a discrepancy between the QDRO's valuation date and the underlying decree's valuation date. In three issues, Husband argues that: (i) the trial court abused its discretion by refusing to enter the amended QDRO; (ii) he was denied due process when the trial court denied his requested relief without providing notice of the hearing; and (iii) the trial court's failure to record the hearing constitutes reversible error. We affirm the trial court's order.

         I. Background

         The trial court's July 24, 2015 rendition granted Husband and Wife's divorce. The rendition's property to wife list said she was to receive $120, 000 out of Husband's 401(k): "14) Portion of Husband's IBM 401K $120, 000.00." Husband was to receive "11) Portion of Husband's IBM 401K $186, 756.66." Husband's portion appeared to be the remaining balance after Wife's $120, 000share was subtracted from the then total balance.

         The final decree, signed on August 21, 2015, provided that Wife's portion of Husband's IBM 401(k) would be as of July 23, 2015 and would include "any interest, dividends, gains, or losses on that amount [$120, 000.00] arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed." Again, Husband was to receive "that portion being as of July 23, 2015 approximately $186, 756.66, together with any" gains or losses since the date specified in the QDRO.

         That same day, the court entered a QDRO awarding Wife $120, 000 out of Husband's IBM 401(k) as of the "Valuation Date, " which the QDRO defined to be August 21, 2015. The QDRO further provided that Wife's "award is entitled to earnings (gains and losses) from the Valuation Date to the date the award is segregated from [Husband's] account."

         Neither party appealed from the decree or the QDRO. More specifically, Husband did not file any post-judgment challenges to the decree or the QDRO while the court retained plenary power.

         But, 123 days later, on December 22, 2015, Husband filed a motion to modify or clarify the QDRO. On January 27, 2016, the court conducted a hearing on that motion, which it "dismissed for lack of jurisdiction."

         Subsequently, on February 8, 2016, Husband filed a petition requesting an amended QDRO under Family Code § 9.101. The petition stated only that valuation date was wrong in the original QDRO, and requested an amendment of the QDRO to effectuate the property division stated in the divorce decree and asked for attorney's fees, expenses, costs, and interest. Wife answered with a general denial.

         The court held a May 31 hearing at which counsel for both parties appeared, and the parties stipulated to several facts, including that Wife had already received her $120, 000 payment from the plan. When the hearing concluded, the trial court found that no subsequent or extraneous event rendered the QDRO ambiguous and denied the requested amendment. Husband timely requested findings of fact and conclusions of law, which were filed. The findings state, inter alia, that the QDRO division date was August 21, 2015, the date of the judgment. This appeal followed.

         II. Analysis

         A. Did the trial court err by refusing to amend the QDRO?

         1. Standard of Review

         We review a trial court's property division for an abuse of discretion. Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex. App.-Houston [14th Dist.] 2008, pet. dism'd w.o.j.). We likewise review the trial court's ruling on a post-divorce motion to enforce or clarify a divorce decree under an abuse of discretion standard. See in re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied).

         In a family law case, legal and factual sufficiency of the evidence are not independent grounds for reversal, but they are relevant factors in assessing whether the trial court abused its discretion. Moore v. ...


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