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Robertson v. Robertson

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 21, 2017


         On appeal from the 148th District Court of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides.


          DORI CONTRERAS Justice.

         This is 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.

         I. Background

         We recount the necessary facts from the first appeal to place our post-remand analysis in context.

         A. Robertson I

         In 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.[1] The marital agreement contained a partition of property and an allocation of income detailed in four schedules: A, B, C, and D.[2] 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.

         After 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.[3] 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 valid.[4]

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 parties.

         B. Proceedings After Remand

         On 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."

         The 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.[5] 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.

         At the 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.

         II. Discussion

         A. Characterization of Property

         By his 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.

         1. Scope of Remand

         "Generally, 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. op.).

         2. Applicable Law

         "[T]he 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.

         The 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.

         3. Analysis

         In the 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 lawsuits.[6]

         As 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 characterization.

         By 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 divorce decree.

         After 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.

         As to 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 ...

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