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Huey-You v. Kimp

Court of Appeals of Texas, Second District, Fort Worth

January 11, 2018

ANDRE HUEY-YOU APPELLANT
v.
CLARETTE KIMP APPELLEE

         FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 352-283420-16

          WALKER, MEIER, and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          SUE WALKER JUSTICE

         I. Introduction

         This is an appeal from a no-answer default judgment entered in a suit to partition real property-a residence in Southlake (the Property)-owned jointly by Appellant Andre Huey-You and Appellee Clarette Kimp. The default judgment ordered the sale of the residence, appointed a receiver, and--based on Kimp's pleadings and the evidence presented at the default-judgment hearing that Appellant had effected an ouster of Kimp from the residence and had dissipated monies owned by Kimp from a Charles Schwab account--awarded Kimp her share of the rental value of the Property and half of the amount of Appellant's unauthorized withdrawals from the parties' Charles Schwab account. In five points, Appellant argues that the trial court lacked jurisdiction to render the default judgment because, according to Appellant, only the divorce court possessed jurisdiction; that the trial court's awards are not supported by sufficient evidence; and that the trial court abused its discretion by equally dividing the sale proceeds and by denying his motion to vacate the default judgment. For the reasons set forth below, we will affirm.

         II. Background

         Prior to their marriage, Appellant and Kimp purchased the Property. Appellant and Kimp married and then later divorced in August 2014. The divorce decree confirmed an undivided 1/2 interest in the Property as the separate property of each party.

         In January 2016, Kimp filed suit to partition the Property and for declaratory and injunctive relief. Kimp's request for declaratory relief alleged that she should be entitled to a disproportionate distribution, in her favor, from the proceeds of the sale of the Property because Appellant had effected an ouster of her from the Property and because Appellant had dissipated or had hidden funds.

          After Appellant was served by substituted service and did not file an answer, Kimp filed a motion for entry of default judgment and an affidavit in support. At the default judgment hearing, the trial court heard testimony from Kimp and from a licensed real estate broker and then signed the default judgment. The default judgment states that the trial court found that it had subject-matter jurisdiction, that Appellant and Kimp owned the Property as tenants in common with each jointly owning a 50% interest in the Property, that the Property was not capable of division in kind, and that Kimp was entitled to an order of partition by sale. The default judgment also states:

The Court further finds that Defendant has occupied the Property to the exclusion of the Plaintiff, effecting an ouster of the Plaintiff, who has had no use nor enjoyment of the property since August 12, 2014[, ] and that the reasonable rental value of the Property from that date to present (20 months) has been $3, 900 per month and that it would be fair and equitable for Plaintiff to be awarded her share of the rental value, which the Court finds and assesses at the sum of thirty-nine thousand ($39, 000.00) dollars through this date, plus an additional $1, 950 per month beginning May 1, 2016, for every month Defendant continues to occupy the Property, until it is sold; and
The Court further finds that it would be fair and equitable for Plaintiff to receive $91, 916.76 from Defendant's share of any net proceeds of sale of the Property, to compensate for the loss Plaintiff suffered as a result of Defendant's unauthorized withdrawals totaling $183, 833.53 from the parties' Charles Schwab account ending in 8516, which was a fraud upon Plaintiff and a breach of fiduciary duty to not [] unfairly dispose of community assets.

         Appellant filed a motion to vacate the default judgment, which the trial court denied. Appellant then perfected this appeal.

          III. Jurisdiction

         In his first point, Appellant argues that the trial court erred by rendering the default judgment because the court that entered the divorce decree-the 360th District Court of Tarrant County-had continuing, exclusive jurisdiction of the parties and the subject matter.

         Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Article V, section 8 of the Texas constitution provides that a district court's jurisdiction "consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Tex. Const. art. V, § 8. Additionally, the legislature has provided that a district court possesses "the jurisdiction provided by Article V, Section 8, of the Texas Constitution" and "may hear and determine any cause that is cognizable by courts of law or equity." Tex. Gov't Code Ann. § 24.008 ...


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