Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 148th District Court of Nueces County, Texas.
Chief Justice Valdez and Justices Contreras and Benavides.
the second appeal from the underlying divorce proceeding
between appellant David Robertson and appellee Oksana
Robertson. See Robertson v. Robertson, No.
13-14-00523-CV, 2015 WL 7820814 (Tex. App.-Corpus Christi
Dec. 3, 2015, no pet.) (mem. op.) ("Robertson
I"). David appeals from an amended divorce decree.
David raises four issues, asserting that the trial court
erred by: (1) signing the amended decree without hearing
evidence or characterizing the property which he argued was
his separate property; (2) awarding Oksana $15, 000 in
appellate attorney's fees; (3) failing to render judgment
in his favor for fifty percent of the costs of the first
appeal; and (4) correcting a judicial error with a judgment
nunc pro tunc. We affirm in part, reverse in part, and remand
for further proceedings.
recount the necessary facts from the first appeal to place
our post-remand analysis in context.
Robertson I, David appealed a divorce decree granted
in favor of Oksana after she presented to the trial court a
marital agreement the parties had executed. The marital
agreement contained a partition of property and an allocation
of income detailed in four schedules: A, B, C, and
David argued in Robertson I that the entire marital
agreement was invalid and unenforceable, while also alleging
that the proceeds from two lawsuits-half of which had been
awarded to Oksana per Schedule D-were his separate property.
David, however, did not complain about any property listed
and awarded to Oksana under Schedule B.
analyzing the allocation of income contemplated by Schedule C
of the marital agreement, we held that particular allocation
void because the only income partitioned was David's
separate property. Id. at *6-7. As to the to the
marital agreement's validity and enforceability as a
whole, we found that:
Though the agreement cannot function to partition or exchange
property that is already characterized as separate, we
determine that it could effectively recharacterize the
remaining community property interest between the parties,
thereby creating the intended separate properties
contemplated by the marital agreement. To the extent the
marital agreement purports to partition or exchange the
parties' community property, it is sufficient to do so,
and we conclude that the portion of the marital agreement
that partitions or exchanges the Robertson's community
property into the other's separate property is
Id. at *6 (citations omitted). This Court further
stated that the proceeds from David's two lawsuits were
David's separate property, and he could not be divested
of them. Id. at *9- 10. Thus, we affirmed "in
part the portion of the judgment based on the agreement to
partition or exchange community property, and reverse[d] in
part the trial court's judgment divesting David of his
separate property and remand[ed] for further proceedings
consistent with [the] opinion." Id. at *10. We
also held that, for failing to object at the trial court,
David had waived any complaint as to the award of trial and
appellate attorney's fees to Oksana. Id.
Finally, we divided the appellate costs equally between the
Proceedings After Remand
remand, Oksana filed a "Motion for Entry of Final
Decree" and attached an amended divorce decree, which
she argued complied with our opinion in Robertson I.
The amended decree was almost identical to the one entered
prior to the first appeal, except that Oksana removed all
awards to her of the property which we stated was David's
separate property: (1) the proceeds from his two lawsuits and
(2) David's monthly check listed in Schedule C's
allocation-of-income section of the marital agreement. These
items were listed as David's separate property in the
amended decree. Furthermore, Oksana changed the language
pertaining to the award of appellate attorney's fees from
a conditional award "[i]n the event that [Oksana] shall
prevail in the appeal of this matter" to an
unconditional statement that Oksana "shall have [an]
additional judgment against [David] for her reasonable and
necessary appellate attorney's fees of $15, 000."
trial court set a hearing on Oksana's motion for May 31,
2016. On May 27, 2016, David filed an amended
counter-petition for divorce seeking to show that some of the
property being awarded to Oksana in the amended decree was
either a mixed-character asset or his separate
property. All of the property that David sought to
contest was listed in Schedule B. On May 30, 2016, David
filed a response to Oksana's motion restating that the
amended divorce decree could not divest him of his separate
property, which he again identified.
hearing, Oksana argued that the "amended final decree .
. . keeps all the language . . . that the Court of Appeals
affirmed [and] deletes the language that the Court of Appeals
reversed . . . ." Oksana argued that this Court affirmed
the division of property in schedules A and B, reversing only
schedule C, and "instructed [the trial court] to enter a
new Final Decree of divorce in conformity with [our]
ruling." The trial court agreed with Oksana and signed
the amended divorce decree. The judgment read that it was
"pronounced and rendered" on July 7, 2014, but
"ministerially" signed on May 31, 2016. The trial
court did not issue findings of fact or conclusions of law.
David filed his notice of appeal on the same day.
Characterization of Property
first issue, David asserts that the trial court erred in
signing an amended divorce decree after Robertson I
without hearing evidence and characterizing the property in
dispute. In response, Oksana contends David is precluded from
disputing the character of the property because the
law-of-the-case doctrine bars it and because he waived those
issues in Robertson I. We construe the issue to be
whether the amended divorce decree complied with our opinion
in Robertson I.
Scope of Remand
when an appellate court reverses and remands a case for
further proceedings, and the mandate is not limited by
special instructions, the effect is to remand the case to the
lower court on all issues of fact, and the case is opened in
its entirety." Simulis, L.L.C. v. Gen. Elec. Capital
Corp., 392 S.W.3d 729, 734 (Tex. App.-Houston [14th
Dist.] 2011, pet. denied); see Hudson v. Wakefield,
711 S.W.2d 628, 630 (Tex. 1986); Creative Thinking
Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504,
510-11 (Tex. App.-Corpus Christi 2002, no pet.). On the other
hand, when an appellate court "remands a case and limits
a subsequent trial to a particular issue, the trial court is
restricted to a determination of that particular issue."
Hudson, 711 S.W.2d at 630; Corpus Christi Day
Cruise, LLC v. Christus Spohn Health Sys. Corp., 398
S.W.3d 303, 309 (Tex. App.-Corpus Christi 2012, pet. denied);
see Creative Thinking, 74 S.W.3d at 510. For a
reversal to be limited to particular fact issues, it must be
clearly apparent from the decision that the appellate court
intended to do so. Hudson, 711 S.W.2d at 630. The
scope of the remand is determined by looking to both the
mandate and the opinion. Id.; Corpus Christi Day
Cruise, 398 S.W.3d at 309. A trial court's failure
or refusal to comply with a court of appeals' opinion and
mandate is an abuse of discretion. See Lee v.
Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig.
proceeding); see also Dean's Campin' Co. v.
Hardsteen, No. 13-05-00468-CV, 2008 WL 3984161, at *10
(Tex. App.-Corpus Christi Aug. 29, 2008, pet. denied) (mem.
characterization of property as community or separate-in
other words, the determination of to whom the property
belongs-matters most when a marriage ends."
Robertson I, 2015 WL 7820814 at *2 (quoting W.
Michael Wiist, Trust Income: Separate or Community
Property?, 51 Baylor L. Rev. 1149, 1153 (Fall 1999));
see Tex. Fam. Code Ann. §§ 7.001, 7.002
(West, Westlaw through 2017 1st C.S.). Typically, in the
context of a divorce, the spouses' community property is
subject to a "just and right" division by the trial
court. Pearson v. Fillingim, 332 S.W.3d 361, 364
(Tex. 2011); see Eggemeyer v. Eggemeyer, 554 S.W.2d
137, 139 (Tex. 1997); see, e.g., Tex. Fam. Code Ann.
§§ 7.001- 7.004 (West, Westlaw through 2017 1st
C.S.). However, a trial court, in performing its just and
right property division, is not authorized to divest either
spouse of his or her separate property. See
Eggemeyer, 554 S.W.2d at 140; Cameron v.
Cameron, 641 S.W.2d 210, 215 (Tex. 1982). Such
divestment is clearly unconstitutional and in violation of
statute. See Eggemeyer, 554 S.W.2d at 139-40;
Cameron, 641 S.W.2d at 214; see also Tex.
Const. art. XVI, § 15; Tex. Fam. Code Ann. § 7.001.
character of marital property is a mixed question of law and
fact. See Tex. Fam. Code Ann. § 6.711(a) (West,
Westlaw through 2017 1st C.S.); Welder v. Welder,
794 S.W.2d 420, 432-33 (Tex. App.-Corpus Christi 1990, no
writ). The Texas Family Code creates a statutory presumption
that all property possessed by either spouse during or upon
dissolution of marriage is community property. Tex. Fam. Code
Ann. § 3.003(a) (West, Westlaw through 2017 1st C.S.). A
party claiming property as their separate property has the
burden of rebutting the community-property presumption.
Pearson, 332 S.W.3d at 363. If the presumption is
not rebutted, the court must characterize the property as
community property, even if that characterization is
ultimately incorrect. See Id.
case at hand, there is no language in our previous opinion or
mandate providing special instructions or indicating we
limited the scope of remand to any particular issue. See
Robertson I, 2015 WL 7820814, at *10. Instead, this
Court affirmed in part and reversed in part and remanded
"for further proceedings consistent with [our]
opinion." Id. Therefore, the case was reopened
in its entirety on all issues of fact that were not disposed
of in the portion of the original final decree which we
affirmed. See Hudson 711 S.W.2d at 630;
Simulis, 392 S.W.3d at 734. That included the
characterization of the income listed in Schedule C's
allocation of income and the proceeds from David's two
noted, determining the character of marital property is a
mixed question of law and fact. See Tex. Fam. Code
Ann. § 6.711(a). Oksana argues that the law-of-case
doctrine bars David from challenging the character of the
property he seeks to dispute in this second appeal. We agree.
Under this doctrine, the decisions made on questions of law
on appeal govern the case throughout its subsequent stages.
Hudson 711 S.W.2d at 630; see Briscoe v.
Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). In
Robertson I, we affirmed "the portion of the
judgment based on the agreement to partition or exchange
community property." Robertson I, 2015 WL
7820814 at *6. By doing so, we ruled as a matter of law on
the characterization of the properties covered in that
portion of the judgment. In other words, to the extent we
affirmed the summary judgment as to the agreement's
characterization of property (i.e., the disposition under
Schedule B), David is now precluded from challenging that
filing her motion to enter an amended decree-which was based
on our partial affirmance of the trial court's summary
judgment in her favor-Oksana argued to the trial court that
she was entitled as a matter of law to an amended divorce
decree including the disposition in Schedule B. See
Tex. R. Civ. P. 166a(c); G & H Towing Co. v.
Magee, 347 S.W.3d 293, 296-97 (Tex. 2011); see also
In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex.
2008) (the nature of a motion is determined by its substance,
not its title or caption). In support of this, Oksana
attached a copy of our opinion from Robertson I, a
copy of the original decree entered before the first appeal,
a copy of the marital agreement, and a copy of the amended
our mandate in Robertson I, our judgment on the
sections of the marital agreement which we affirmed became
the judgment of the trial court. Cessna Aircraft Co. v.
Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex.
App.-Dallas 2011, no pet.); see Cook v.
Cameron, 733 S.W.2d 137, 139 (Tex. 1987). Thus, Oksana
was entitled as a matter of law to the dispositions mandated
by Schedule B.
the income listed in Schedule C and David's proceeds from
his two lawsuits, the trial court's judgment had been
nullified, leaving the judgment as to those issues as if it
had never been rendered. Cessna Aircraft Co., 345
S.W.3d at 145; In re S.S.G., 208 S.W.3d 1, 3 (Tex.
App.-Amarillo 2006, pet. denied); see also Swank v.
Cunningham, 258 S.W.3d 647, 663 (Tex. App.-Eastland
2008, pet. denied) (reversal of judgment returns parties to
status quo). We held in Robertson I that David could
not be divested of these properties, and, accordingly, the
amended divorce decree listed these as David's separate
property. Therefore, the amended divorce decree properly
disposed of the ...