John T. Gonzales v. Alicia Pounds ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00088-CV
________________________
JOHN T. GONZALES, APPELLANT
V.
ALICIA POUNDS, APPELLEE
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court No. D-1-FM-18-000396; Honorable Jan Soifer, Presiding
February 4, 2022
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
This appeal involves post-divorce enforcement matters surrounding the dissolution
of the marriage between Appellant, John T. Gonzales, and Appellee, Alicia Pounds.
Gonzales appeals the trial court’s Order on Motion for Enforcement entered in the
underlying cause following a hearing on competing motions for enforcement of the parties’
Agreed Final Decree of Divorce. The trial court’s order found that the present unpaid
balance of an “equalization judgment” owed by Pounds to Gonzales under the terms of
the original decree was $200,285.28; however, the trial court ordered that the unpaid
balance be reduced or offset by (1) $86,237.56 for Gonzales’s one-half of the parties’
2017 tax liability, (2) $30,572.00 for the penalties and interest accrued on the parties’
2017 federal taxes paid, (3) $14,220.00 for attorney’s fees paid by Pounds to Walters
Gilbreath, PLLC, (4) $17,590.00 for attorney’s fees paid by Pounds for Five Stone Tax
Advisers, and (5) $3,818.25 for Gonzales’s one-half of the fees paid to John Knox for
preparation of the parties’ 2017 joint federal tax return. Via this appeal, Gonzales
challenges the trial court’s order through eight issues. 1 We will affirm in part and reverse
and remand in part.
BACKGROUND
Gonzales filed for divorce on January 22, 2018, and an Agreed Final Decree of
Divorce was subsequently entered on March 7, 2019. The decree made provisions for
the conservatorship and support of three minor children and the division of the community
estate of the parties. Pursuant to that decree, Pounds was awarded a business; however,
she was required to pay Gonzales for his community interest in that business. To that
end, Gonzales was granted an “equalization judgment” in the amount of $770,000,
secured by Pounds’s primary residence and certain other rental properties awarded to
her by the decree. Pounds was also required to pay the equalization judgment in monthly
installments of $23,333, with a three percent interest rate beginning February 1, 2019.
1 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to
this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. §
73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court
on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court.
TEX. R. APP. P. 41.3.
2
Pounds paid those installments to Gonzales until March 2020. Pounds defaulted on the
payments and an acceleration clause in the periodic payment agreement contained in the
decree was triggered, causing the full amount of the judgment to become immediately
due and payable. 2
Per the parties’ agreement, an accountant, John Knox, was to prepare the parties’
tax returns. Knox prepared for the parties both their corporate and individual returns. At
issue here is the 2017 federal joint tax return, the last joint tax return due for income
earned prior to the divorce. The parties incurred a tax liability of approximately $199,000
for that tax year. The Decree set forth that Pounds was to pay an initial $60,000, plus
penalties and interest “arising solely out of the failure to previously make the $60,000
payment to the Internal Revenue Service.” The parties were then to each pay one-half
of the remaining tax liability, plus any penalties and interest. Knox prepared the 2017 tax
return on June 10, 2019. Pounds immediately provided her consent to Knox to file the
return. However, Gonzales did not. Due to his expertise as a tax consultant, Gonzales
requested certain documents to review before consenting to the filing of their return.
Evidence presented at trial showed he received those documents in the summer of 2020 3
and within a week, he informed Knox and Pounds that he found additional medical
expenses of $6,000 and $111,962 in standard deductions, giving the parties a tax credit
2 Gonzales testified he attempted foreclosure proceedings but was unable to do so due to COVID-
19 restrictions. He told the court he had incurred over $10,000 in attorney’s fees as part of that process.
3 The parties disagree as to which of them caused the delay. Pounds contends Gonzales refused
to respond to inquiries regarding his consent to file the 2017 tax return, but Gonzales contends he could
not access or obtain the documents he requested from Pounds for well over a year. After hearing evidence,
the trial court determined it was Gonzales’s inaction that caused the delay.
3
of approximately $58,250. Gonzales finally provided consent to file the 2017 tax return
the day before the hearing in this matter.
Pounds testified that she defaulted on the payments to Gonzales in March 2020
because without the 2017 tax return she could not refinance her properties and thus had
to choose whether to meet her payroll obligations for the business or to pay Gonzales.
She admitted that at one point, she told Gonzales she was diverting the monthly payments
due to him to the IRS but later acknowledged that was untrue.
To secure payment of the $770,000 equalization judgment, an owelty lien 4 was
placed on the real property that was awarded to Pounds in the division of assets. At
Pounds’s request, the trial court also ordered that any money from the sale of that real
property be placed in a trust account. Pounds sold her primary residence in August 2020
and the proceeds from that sale were placed in that trust account. Thereafter, the parties
filed competing motions for enforcement of the Agreed Final Decree of Divorce and
disposition of the money in that trust was delayed until such time as the trial could
determine whether Pounds was entitled to any offsets.
The trial court held a hearing on the parties’ motions in October 2020. 5 Through
that hearing, Pounds sought to offset the judgment owed to Gonzales by one-half of the
4 An owelty is the difference in value that results when a court divides real property into shares of
unequal value in partition proceedings. McNally v. McNally, No. 02-18-00142-CV, 2020 Tex. App. LEXIS
7211, at *17-18 (Tex. App.—Fort Worth Sept. 3, 2020, pet. denied) (mem. op.) (citation omitted). The court
may then order an owelty payment to equalize the shares’ value and impose a lien on the greater share in
favor of the recipient of the lesser share to secure the owelty payment. Id. (citation omitted). “Application
of the doctrine of owelty is limited to those cases in which partition in kind is adjudged.” Id. (citing Rodriguez
v. Rivas, 573 S.W.3d 447, 453 (Tex. App.—Amarillo 2019, no pet.); Travelers Ins. Co. v. Nauert, 200
S.W.2d 661, 665 (Tex. App.—El Paso 1941, no writ) (“In case there be a partition in kind, owelty may be
adjudged to achieve a fair and equitable partition.”)).
5 The hearing was held via Zoom in accordance with COVID-19 protocols.
4
remaining tax liability owed as well as by other fees, including attorney’s fees. By that
time, Pounds had filed a separate tax return for 2017 and had entered a payment plan
with the IRS by which she paid $1,000 per month until February 2021, after which she
was to pay $23,000 per month. 6 Pounds asked the trial court to order the filing of the
2017 joint tax return, to deduct $94,000 (one-half of remaining tax liability) from the
equalization judgment, to hold Gonzales responsible for the late penalties and interest, 7
and to require Gonzales to pay one-half of monies she paid to Knox as well as one-half
of the attorney’s fees she had incurred.
Gonzales asked the trial court to find that Pounds failed to timely pay her
installment payments to him and failed to cure the default by paying the full amount once
it was accelerated. He also asked the trial court to award to him the full amount held in
the trust account from the sale of Pounds’s residence as partial payment on the
accelerated equalization judgment. Third, he requested that the trial court award him
reasonable and necessary attorney’s fees as they related to the enforcement motions.
Lastly, he asked the trial court to allow him discretion to enter a payment plan with the
IRS or to negotiate and pay a lower lump sum to satisfy his tax liability to the IRS.
6Pounds testified that Gonzales does not pay on his obligations, and accordingly, she believed a
payment plan with the IRS was inadvisable. In the event Gonzales did not pay his IRS obligations, the IRS
would be entitled to seek payment from her. She owned properties and other assets while Gonzales owned
only a home and two rather invaluable vehicles.
7Testimony at the hearing indicated that had Gonzales consented in June 2019 to the filing of the
2017 tax return, the parties would not have incurred the additional late penalties and interest.
5
At the conclusion of the hearing, the trial court asked each party to submit
attorney’s fees requests and written closing arguments by the Friday of the following
week.
Two months after the hearing, the trial court entered its Order on Motion for
Enforcement. In it, it denied the relief Gonzales requested and stated the following:
IT IS ORDERED that the equalization judgment owed from ALICIA
POUNDS to JOHN GONZALES under the parties’ Agreed Final Decree of
Divorce is currently $200,285.28 (after the payment of $40,000.00, which
JOHN GONZALES has already received).
IT IS ORDERED that the above-mentioned equalization judgment shall be
offset by the following judgments against JOHN GONZALES:
a. $86,237.56 for JOHN GONZALES’ one-half of the parties’
2017 tax liability (to be paid directly to the IRS);
b. $30,572.00 for the penalties and interest accrued on the
parties’ 2017 taxes since June 15, 2019 (to be paid directly to
the IRS);
c. $14,220.00 for Walters Gilbreath, PLLC’s’ attorney’s fees;
d. $17,590.00 for Five Stone Tax Advisers’ attorney’s fees;
and
e. $3,818.25 for JOHN GONZALES’ one-half of the fees due
to John Knox for preparation of the parties’ tax returns.
As a result of the above offset, IT IS THEREFORE ORDERED that the
equalization judgment currently due from ALICIA POUNDS to JOHN
GONZALES is $47,847.47. IT IS ORDERED that this amount shall be paid
to JOHN GONZALES from the funds currently held in trust with Evans
Family Law Group.
IT IS ORDERED that after the payment of $86,237.56 and $30,572.00
directly to the IRS from the funds held in trust with Evans Family Law Group,
any remaining amount held in Evans Family Law Group trust account shall
be paid to ALICIA POUNDS.
ALICIA POUNDS is ORDERED to pay the IRS directly for her one-half of
the parties’ 2017 tax liability being $86,237.56, as well as one-half of any
6
and all remaining penalties and interest owed on the parties’ 2017 taxes
after JOHN GONZALES has made his $30,572.00 payment.
Thereafter, Gonzales filed with the trial court a request for findings of fact and
conclusions of law. The court entered its findings and conclusions on January 28, 2021.
Gonzales also filed a motion for new trial and a request for a temporary restraining order.
Gonzales then appealed the trial court’s order, bringing eight issues before this court.
Pounds did not favor this court with a brief.
ANALYSIS
STANDARD OF REVIEW
When reviewing a decree of divorce, a trial court’s property division is reviewed
under an abuse of discretion standard. Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex.
App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.). Likewise, a trial court’s ruling on a
post-decree motion to enforce or clarify a decree of divorce is reviewed under an abuse
of discretion standard. 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. Moore, 383 S.W.3d 190, 198 (Tex. App.—
Dallas 2012, pet. ref’d). To determine whether the trial court abused its discretion
because the evidence was either legally or factually insufficient to support a trial court’s
discretionary decision, we consider whether the trial court: (1) had sufficient evidence on
which to exercise that discretion or (2) erred in the application of that discretion. Moroch
v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). We conduct the
7
applicable sufficiency review when considering the first prong of the test. Id. (citation
omitted). We then determine whether, based on the elicited evidence, the trial court made
a reasonable decision. Id. (citation omitted). A trial court does not abuse its discretion if
there is some evidence of a substantive and probative character to support the decision.
Id. (citation omitted).
In an appeal from a bench trial, the trial court’s findings of fact have the “same
force and dignity” as a jury’s answers to jury questions. Anderson v. City of Seven Points,
806 S.W.2d 791, 794 (Tex. 1991). As such, we review a trial court’s findings of fact under
the same legal and factual sufficiency of the evidence standards used to determine
whether sufficient evidence exists to support an answer to a jury question. Ortiz v. Jones,
917 S.W.2d 770, 772 (Tex. 1996). We review the trial court’s conclusions of law de novo.
Smith v. Smith, 22 S.W.3d 140, 143-44 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
In that regard, we will follow a trial court’s conclusion of law unless it is erroneous as a
matter of law. Id. at 144.
A party appealing from a non-jury trial in which the trial court made findings of fact
and conclusions of law should direct a sufficiency of the evidence attack at specific
findings of fact, rather than at the judgment as a whole. Betancourt v. Ohmer, No. 09-18-
00121-CV, 2019 Tex. App. LEXIS 323, at *7-8 (Tex. App.—Beaumont Jan. 17, 2019, no
pet.) (mem. op.) (citing Nw. Park Homeowners Ass’n, Inc. v. Brundrett, 970 S.W.2d 700,
704 (Tex. App.—Amarillo 1998, pet. denied)).
A challenge to an unidentified finding of fact may be sufficient if we can fairly
determine from the argument the specific finding of fact that the appellant challenges.
8
Betancourt, 2019 Tex. App. LEXIS 323, at *8 (citing Shaw v. Cty. of Dallas, 251 S.W.3d
165, 169 (Tex. App.—Dallas 2008, pet. denied) (citing Tittizer v. Union Gas Corp., 171
S.W.3d 857, 863 (Tex. 2005)). Although here Gonzales fails to challenge any specific
finding of fact in any of the discussions of his issues, we can fairly determine from the
arguments which findings Gonzales is challenging.
ISSUE ONE—ABUSE OF DISCRETION REGARDING PENALTIES AND INTEREST ACCRUED
Through his first issue, Gonzales argues the trial court abused its discretion by
ordering him to pay one hundred percent of the penalties and interest that accrued on the
parties’ 2017 tax liability from June 10, 2019, until the date of the enforcement hearing.
He contends this order improperly modified or changed the agreed-upon division of
property set forth in the Agreed Final Decree of Divorce.
Gonzales argues the trial court abused its discretion in making this order
“especially when [Gonzales’s] reasonable efforts to review the underlying documentation
resulted in a reduction in tax liability exceeding $106,000.” He further argues that the
Family Code is “very clear that the trial court lacks the authority to modify or amend the
Final Decree.” TEX. FAM. CODE ANN. §§ 9.002, 9.007(a) (West 2020). See also Powell v.
Stover, 165 S.W.3d 322, 324 (Tex. 2005) (orig. proceeding) (a trial court abuses its
discretion when it fails to analyze or apply the law correctly). He says the trial court did
so here because it “carved out additional obligations” that resulted in additional debts
being awarded to him.
An agreed property division incorporated into a final divorce decree is treated as a
contract and is controlled by the rules of construction applicable to ordinary contracts.
9
Gulliksen v. Gulliksen, No. 02-20-00203-CV, 2021 Tex. App. LEXIS 3493, at *6 (Tex.
App.—Fort Worth May 6, 2021, no pet.) (mem. op.) (citing Howard v. Howard, 490 S.W.3d
179, 184 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citing Allen v. Allen, 717
S.W.2d 311, 313 (Tex. 1986)). “The same rules of interpretation apply in ascertaining the
meaning of judgments as in ascertaining the meaning of other written instruments.”
Cortez v. Chapa, No. 13-19-00193-CV, 2021 Tex. App. LEXIS 284, at *15-16 (Tex.
App.—Corpus Christi Jan. 14, 2021, no pet.) (mem. op.) (citing Treadway v. Shanks, 110
S.W.3d 1, 6 (Tex. App.—Dallas 2000, pet. granted), aff’d, 110 S.W.3d 444 (Tex. 2003)
(citing Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404-05 (Tex. 1971)). Whether
a written instrument is ambiguous is a question of law. Cortez, 2021 Tex. App. LEXIS
284, at *15-16 (citing Pathfinder Oil & Gas, Inc. v. Great Western Drilling, Ltd., 574 S.W.3d
882, 889 (Tex. 2019)). “A document is ambiguous only when the application of pertinent
rules of interpretation results in genuine uncertainty as to which one of two or more
meanings is proper.” Cortez, 2021 Tex. App. LEXIS 284, at *16 (citing Treadway, 110
S.W.3d at 6 (citing Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154,
157 (Tex. 1951)). A written instrument “is not ambiguous simply because the parties
disagree over its meaning.” Cortez, 2021 Tex. App. LEXIS 284, at *16 (citing Dynegy
Midstream Servs., Ltd. P'shp v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009) (citing
Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.
1996)).
If the written instrument can be given a certain or definite legal meaning or
interpretation, then there is no ambiguity, and the court will construe the instrument as a
matter of law. Cortez, 2021 Tex. App. LEXIS 284, at *16 (citing Pathfinder, 574 S.W.3d
10at 889; Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). Our primary objective is to
give effect to the instrument’s written expression. Cortez, 2021 Tex. App. LEXIS 284, at
*16 (citing URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (Tex. 2018) (citing Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005)). “[T]he parties’ intent is
governed by what they said, not by what they intended to say but did not.” Cortez, 2021
Tex. App. LEXIS 284, at *16 (citing Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746
(Tex. 2006) (citing Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.
1998)). We interpret the language of a written instrument “according to its ‘plain, ordinary,
and generally accepted meaning’ unless the instrument directs otherwise.” Cortez, 2021
Tex. App. LEXIS 284, at *16 (citing URI, Inc., 543 S.W.3d at 764 (quoting Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)).
We agree that the trial court does not have the authority to alter, amend, modify,
or change the division of property made or approved in the decree of divorce or alter or
change the substantive division of the property. TEX. FAM. CODE ANN. § 9.007(a). The
trial court “may specify more precisely the manner of effecting the property division
previously made or approved if the substantive division of the property is not altered or
changed.” TEX. FAM. CODE ANN. § 9.006(b) (West 2020). The question before us, then,
is whether the trial court’s order that Gonzales alone pay the penalties and interest
assessed against the tax liability of the couple from June 2019 to the date of the
enforcement hearing altered, amended, modified, or changed the division of the property
set forth in the Agreed Final Decree of Divorce or whether it merely clarified or enforced
the agreement.
11
The divorce decree states, as it pertains to 2017 tax liability, that Gonzales and
Pounds:
shall be fifty percent (50%) responsible for the payment of any additional
tax liability, including any penalty and interest remaining after the payment
of the $60,000.00 by ALICIA POUNDS. IT IS ORDERED that John Knox,
CPA[,] shall determine the amount each party shall pay pursuant to the
terms of the Arbitration Award dated February 19, 2019.
(Emphasis added).
Taking into consideration the rules concerning interpretation of written
agreements, we note the plain language of the decree clearly provides that Gonzales and
Pounds agreed that each party would pay fifty percent of the 2017 tax liability, including
any penalty and interest remaining after Pounds’s $60,000.00 payment. The parties’
intent is clear and unambiguous. However, at the time of the entry of the decree, the
parties had not incurred the additional $30,572.00 in penalties and interest because the
filing of the 2017 tax return had not yet been delayed. By the time of the enforcement
hearing, however, the filing had been delayed for a long period of time. The trial court
heard evidence that the delay was due solely to Gonzales’s inaction and set forth in its
conclusions of law that “JOHN GONZALES’S inaction since June 15, 2019 caused the
accrual of penalties and interest on the parties’ 2017 federal income tax liability in an
amount of $30,572.00; thus, the Court ordered JOHN GONZALES to pay these penalties
and interest.” While, based on the record before us, we can see the equities the trial
court may have been trying to address, the agreement of the parties was clear and
unambiguous—each party was to pay one-half of any penalty and interest remaining after
Pounds’s $60,000.00 payment. To the extent that the trial court ordered otherwise, it
altered or amended both the agreement of the parties and the prior decree of divorce and,
12
in doing so, it acted without reference to any guiding rules or principles. As such, it
abused its discretion. Gonzales’s first issue is sustained.
ISSUE TWO—ABUSE OF DISCRETION IN ORDERING GONZALES TO PAY TAX LIABILITY
IMMEDIATELY OUT OF FUNDS RECEIVED IN EQUALIZATION JUDGMENT
Via his second issue, Gonzales argues the trial court abused its discretion when it
credited as an offset his one-half of the parties’ 2017 tax liability against the outstanding
balance of the equalization judgment and authorized the Evans Family Law Group, to pay
those sums directly to the IRS. He argues this modified the property division set forth in
the divorce decree in violation of section 9.007(a) of the Family Code. See TEX. FAM.
CODE ANN. § 9.007(a). In addition, Gonzales argues, the court permitted Pounds to enter
into a monthly installment plan with the IRS that would result in additional penalties and
interest for which he could be liable.
Gonzales asserts that the ruling of the trial court was not an attempt to clarify the
divorce decree but rather was “castigatory in nature” and exceeded the authority of the
trial court, given that there was no time standard for making any payment to the IRS in
the Agreed Final Decree of Divorce. Moreover, Gonzales contends, Pounds never
completed personal service on him as it related to the enforcement pleading and
accordingly, she was precluded from obtaining a contempt ruling against him.
Here, we disagree with Gonzales’s contentions. First, the trial court’s order does
not impose any financial or monetary obligation that did not previously exist, and, as such,
Gonzales has not identified any new obligation imposed by the trial court’s order that was
not already present in the divorce decree. Hollingsworth v. Hollingsworth, 274 S.W.3d
811, 819 (Tex. App.—Dallas 2008, no pet.). The plain language of the divorce decree
13
indicates the parties agreed that each party was responsible for one-half of the couples’
2017 tax liability. Because the decree did not specifically state how that payment was to
be made, the trial court’s order simply clarified and enforced the obligation already set
forth in the decree. The imposition of a specific time and manner for Gonzales to pay his
existing obligation did not alter, amend, modify, or change the underlying property
division. Gills v. Harris, No. 11-15-00018-CV, 2017 Tex. App. LEXIS 908, at *6 (Tex.
App.—Eastland Feb. 2, 2017, no pet.) (mem. op.) (citing Hollingsworth, 274 S.W.3d at
819).
Further, it is irrelevant that Pounds had previously entered into a payment plan
with the IRS to pay her one-half of the parties’ 2017 tax liability as she was attempting to
fulfill her responsibility under the parties’ Agreed Final Decree of Divorce. Nevertheless,
the trial court also ordered Pounds to “pay the IRS directly for her one-half of the parties’
2017 tax liability being $86,237.56, as well as one-half of any and all remaining penalties
and interest owed on the parties’ 2017 taxes after JOHN GONZALES has made his
$30,572.00 payment.” As such, there was no payment plan from which additional
penalties and interest could result. Lastly, we note no contempt ruling was made against
Gonzales. Accordingly, we overrule Gonzales’s second issue.
ISSUE THREE—ABUSE OF DISCRETION IN AWARD OF EQUALIZATION JUDGMENT
WITHOUT THREE PERCENT INTEREST
By his third issue, Gonzales argues the trial court abused its discretion by
modifying the property division as set forth in the Agreed Final Decree of Divorce, violating
section 9.007(a) of the Family Code, when it determined the unpaid balance of the
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equalization judgment awarded to him, without including the three percent interest as
ordered in the decree.
During the hearing, Pounds told the court the total amount owed to Gonzales was
$200,285.28, taking into consideration a $40,000.00 payment she previously made to
him. Gonzales, on the other hand, told the court that Pounds owed him $223,325.11,
taking into consideration the three percent interest Pounds owed to Gonzales, as
provided for in the decree. Because the trial court found Pounds owed to him
$200,285.28, Gonzales argues, it erred because that figure did not include the required
three percent interest for the period of time at issue.
The Agreed Final Decree of Divorce included a provision concerning the
equalization judgment that read, “By agreement of the parties, such judgment shall be
without penalty for pre-payment and interest on such judgment shall be abated until
February 1, 2019. Thereafter, IT IS ORDERED that beginning on February 2, 2019 said
money judgment shall incur three percent (3%) statutory interest.”
We apply the standards of interpretation of written judgments here as set forth in
our discussion of Gonzales’s first issue. In doing so, we find the plain language of the
decree provides that a three percent interest should be imposed on the remaining balance
of the equalization judgment. Because the trial court’s order failed to include that interest,
we find the trial court erred. We sustain Gonzales’s third issue.
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ISSUE FOUR—ABUSE OF DISCRETION IN DETERMINING INTEREST AND PENALTIES IN
ABSENCE OF EXPERT TESTIMONY
In his list of appellate issues, Gonzales sets forth a statement that the trial court
abused its discretion in determining the interest and penalties related to the parties’ 2017
tax liability from June 10, 2019, through the enforcement hearing was $30,572.00
because there was no expert testimony provided. Gonzales does not, however, set forth
any argument or cite any legal authority in his appellate brief on this issue. His argument
proceeds from a discussion of issue three to a discussion of issues five and six. As such,
he has presented nothing for our review and has waived this issue. See TEX. R. APP. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.”); WorldPeace v. Comm’n for
Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied) (finding waiver of appellate arguments in the absence of “argument or citations
to the record or to authority”). We thus overrule Gonzales’s fourth issue.
ISSUES FIVE AND SIX—ABUSE OF DISCRETION IN DETERMINING ATTORNEY’S FEES
Via his fifth issue, Gonzales asserts that the trial court abused its discretion when
it awarded attorney’s fees to Pounds for her tax attorneys in the absence of expert
testimony or exhibits to establish the reasonableness and necessity of the fees. Further,
he contends through his sixth issue that the trial court abused its discretion when it denied
his request for attorney’s fees despite the affirmance that he was owed money related to
his equalization judgment and that the decree mandated that the fees be paid if default
by Pounds resulted in legal action.
16
In Texas, each party generally must pay its own attorney’s fees. Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 483 (Tex. 2019) (citations
omitted). However, in some circumstances, such as when authorized by statute or
contract, a prevailing party may recover fees from the opposing party. Brewer v. Lennox
Hearth Products, LLC, 601 S.W.3d 704, 721 n.71 (Tex. 2020). A trial court may award
reasonable attorney’s fees in a proceeding for enforcement of a divorce decree under
section 9.014 of the Family Code. See TEX. FAM. CODE ANN. § 9.014 (West 2020). A
party seeking attorney’s fees “bears the burden of providing sufficient evidence” that the
requested fees are both necessary and reasonable. Rohrmoos Venture, 578 S.W.3d at
498. The amount of attorney’s fees awarded by the trial court in a bench trial is a matter
subject to review under an abuse of discretion standard. Ridge Oil Co. v. Guinn Invs.,
Inc., 148 S.W.3d 143, 163 (Tex. 2004). The trial court abuses its discretion if it awards
expenses without legally and factually sufficient evidence that the attorney’s fees were
reasonable and necessary. Id.In determining whether the evidence is legally sufficient, we must consider
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. Betancourt, 2019 Tex. App. LEXIS 323, at *9
(citing Bass v. Walker, 99 S.W.3d 877, 883 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied)). When conducting our analysis, we must credit favorable evidence if a
reasonable fact finder could and disregard contrary evidence unless a reasonable fact
finder could not. Betancourt, 2019 Tex. App. LEXIS 323, at *9 (citation omitted). When
reviewing a challenge to the factual sufficiency of the evidence, we examine the entire
record, considering both the evidence in favor of, and contrary to, the challenged
17
finding. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). After considering all
the evidence, we will set aside the fact finding only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Betancourt, 2019 Tex. App.
LEXIS 323, at *9 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). In a
nonjury trial, the trial court is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony. Betancourt, 2019 Tex. App. LEXIS 323, at *9 (citing
Tate v. Commodore Cty. Mut. Ins., Co., 767 S.W.2d 219, 224 (Tex. App.—Dallas 1989,
writ denied)).
In reviewing the sufficiency of the attorney’s fee evidence set forth here, the
lodestar analysis applies, as it does in “any situation in which an objective calculation of
reasonable hours worked times a reasonable rate can be employed.” Rohrmoos Venture,
578 S.W.3d at 498. Under the lodestar method, the fact finder begins the attorney fee
calculation by determining the reasonable hours worked multiplied by a reasonable hourly
rate. Id. “Sufficient evidence includes, at a minimum, evidence of (1) particular services
performed, (2) who performed those services, (3) approximately when the services were
performed, (4) the reasonable amount of time required to perform the services, and (5)
the reasonable hourly rate for each person performing such services.” Id. Obtaining such
evidence requires “itemizing specific tasks” and “the time required for those tasks.” Id. at
495 (quoting City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (per curiam)).
The fees incurred or contracted for do not themselves establish reasonableness or
necessity. Rohrmoos Venture, 578 S.W.3d at 495. The result of the lodestar calculation,
on the other hand, is presumed to represent a reasonable and necessary attorney fee.
Id. at 501.
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In rare circumstances, the lodestar figure may be adjusted upward or downward,
but only if specific evidence overcomes the presumption of reasonableness and shows
that the adjustment is necessary to achieve a reasonable fee award. Milliken v. Turoff,
No. 14-19-00761-CV, 2021 Tex. App. LEXIS 4188, at *6 (Tex. App.—Houston [14th Dist.]
May 27, 2021, no pet.) (citing Rohrmoos Venture, 578 S.W.3d at 500-01). The lodestar
figure may not be adjusted based on considerations that are already inherently subsumed
within the lodestar calculation. Id. (citation omitted). Considerations that the lodestar
calculation already takes into account usually include, at a minimum, “the time and labor
required,” “the novelty and difficulty of the questions involved,” “the skill required to
perform the legal service properly,” “the fee customarily charged in the locality for similar
legal services,” “the amount involved,” “the experience, reputation, and ability of the
lawyer or lawyers performing the services,” “whether the fee is fixed or contingent on
results obtained,” “the uncertainty of collection before the legal services have been
rendered,” and “results obtained.” Milliken, 2021 Tex. App. LEXIS 4188, at *7 (citations
omitted).
As noted, the trial court did not hold a hearing regarding attorney’s fees. Rather,
it requested written submission of requests for those fees a week following the hearing.
Included in the record are invoices setting forth the rate charged, the time spent, and a
brief description of the tasks performed. However, this information is not a substitute for
testimony explaining the reasonableness and necessity of those fees. See, e.g., Jarvis
v. Rocanville Corp., 298 S.W.3d 305, 319 (Tex. App.—Dallas 2009, pet. denied) (attorney
testified the fees were reasonable and necessary). It is no better than “general,
conclusory testimony” that is “devoid of any real substance.” Rohrmoos Venture, 578
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S.W.3d at 501-02. Such evidence has been found insufficient to support an award of
attorney’s fees. Id. Compare In re A.M., No. 02-18-00412-CV, 2020 Tex. App. LEXIS
5334, at *10 (Tex. App.—Fort Worth June 4, 2020, no pet.) (mem. op.) (finding testimony
of attorney regarding qualifications, hourly rate as fair and reasonable among family law
practitioners in his area and experience, time spent on case, and travel and attendance
at hearing sufficient to show attorney’s fees were reasonable and necessary). Having
considered the evidence in the light most favorable to the challenged finding and indulging
every reasonable inference that would support the trial court’s award of attorney’s fees,
we are of the opinion that the evidence is factually insufficient. Accordingly, we thus
sustain Gonzales’s fifth issue. In light of this ruling, we remand this issue to the trial court
for further proceedings not inconsistent with this opinion.
We turn now to Gonzales’s contention that the trial court erred in denying his
request for attorney’s fees. The record shows Pounds agreed she defaulted on the
agreement set forth in the Agreed Final Decree of Divorce when she stopped making
installment payments to Gonzales in March 2020. Gonzales testified that under the
divorce decree, Pounds agreed to pay reasonable attorney’s fees in the event he had to
collect on that obligation. Further, Gonzales argues, the trial court found Gonzales was
entitled to receive the outstanding amount of $200,285.28 from Pounds. As a result,
Gonzales argued, he was entitled to receive the attorney’s fees he requested.
However, Gonzales’s request for attorney’s fees suffers from the same deficiency
as that of Pounds. While we agree that the Agreed Final Decree of Divorce provided for
attorney’s fees from Pounds to Gonzales in the event of Pounds’s default, and thus is not
of the same character as that of Pounds’s request, the decree still called for payment of
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reasonable fees. The record contains insufficient evidence that the requested fees were
reasonable. As mentioned above, the trial court did not hold a hearing regarding
attorney’s fees and thus, there is insufficient testimony or other evidence that satisfies the
requisites for an award of attorney’s fees to Gonzales. Rohrmoos Venture, 578 S.W.3d
at 484 (“When fee-shifting is authorized, whether by statute or contract, the party seeking
a fee award must prove the reasonableness and necessity of the requested attorney’s
fees.”) (citations omitted). Therefore, while we sustain Gonzales’s sixth issue as to an
award of attorney’s fees, we also remand this issue to the trial court for further
proceedings not inconsistent with this opinion.
ISSUE SEVEN—ABUSE OF DISCRETION IN DENYING ALL RELIEF REQUESTED BY
GONZALES
In his seventh issue, Gonzales argues the trial court abused its discretion when it
denied all of the relief he requested in his enforcement pleadings despite the fact that
Pounds stipulated she failed to pay the installment payments toward the equalization
judgment as ordered.
As support for his argument, Gonzales points to several instances in which Pounds
agreed she failed to make the payments as required and wholly admitted default. Further,
he argues, Pounds “did not have pleadings on file requesting that the trial court determine
the balance of the equalization judgment.”
We agree the record shows Pounds admitted her default in paying the installments
as required under the equalization judgment. However, that admission did not require
the trial court to find in Gonzales’s favor. Rather, the court was still within its discretion
to determine what, if any, relief to award Gonzales. See Greiner v. Jameson, 865 S.W.3d
21493, 498 (Tex. App.—Dallas 1993, writ denied) (trial court has broad discretion in
enforcing its judgments). Reviewing the record, we cannot say the trial court acted
without reference to any guiding rules or principles in denying the relief Gonzales
requested. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985),
cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986).
Furthermore, we cannot agree with Gonzales’s contention that the trial court
abused its discretion in denying his requested relief because Pounds did not have
pleadings on file requesting the trial court determine the balance of the equalization
judgment. Both parties made arguments concerning the balance of the equalization
judgment and the trial court could not have made requested rulings concerning the
judgment and other claims without determining that balance. Gonzales has not satisfied
his burden to show how the trial court abused its discretion in doing so. We thus overrule
issue seven.
ISSUE EIGHT—ABUSE OF DISCRETION IN GRANTING TO POUNDS RELIEF NOT
REQUESTED IN HER LIVE PLEADINGS
Finally, Gonzales argues through his last issue that the trial court abused its
discretion by granting the relief Pounds requested in her proposed disposition of issues
that was not included in her live pleadings. Gonzales complains that Pounds never asked
the trial court to offset Gonzales’s equalization judgment by an alleged balance owed to
the IRS. Further, he contends, Pounds never pleaded in her motion that he failed to make
a payment to the IRS relating to the 2017 tax liability. Instead, the only relief Pounds
sought was as follows:
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Violation 207. JOHN T. GONZALES refused to work with John Knox, CPA,
in the preparation of the parties’ 2017 tax return. This resulted in John Knox
having to file two returns and charging the parties $2,107.50 for his services.
JOHN T. GONZALES has not paid his half, which amounts to $1,053.75.
Violation 208. JOHN T. GONZALES did not have his 2017 tax return
prepared by John Knox per the terms of the parties’ decree.
10. Petitioner requests that for each violation alleged above, Respondent
be held in contempt and fined up to $500.
11. Petitioner requests that, if the Court finds that any part of the order
sought to be enforced is not specific enough to be enforced by contempt,
the Court enter a clarifying order more clearly specifying the duties imposed
on Respondent and giving Respondent a reasonable time within which to
comply.
Therefore, Gonzales argues, the trial court’s ruling in this matter served as a
substantive change to the Agreed Final Decree of Divorce, violating section 157.421 of
the Family Code, 8 and granted relief that was not specifically pleaded by Pounds.
The record indicates that the parties discussed the potential offsets to the judgment
at length during the hearing. At no time did Gonzales raise the complaints he now brings.
Rather, he argued to the trial court that those offsets were not valid. As such, we will look
only to whether the trial court’s ruling here served as a substantive change to the decree
in violation of the Family Code. See TEX. R. APP. P. 33.1(a); Knapp v. Wilson N. Jones
Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.) (“To preserve an
error for appeal, a party’s argument on appeal must comport with its argument in the trial
court.”).
We cannot agree with Gonzales’s contention that each of the trial court’s offsets
against the equalization judgment substantively changed the agreement set forth in the
8 TEX. FAM. CODE ANN. § 157.421 (West 2014) (providing for clarification of a non-specific order).
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Agreed Final Decree of Divorce. The trial court found the equalization judgment owed by
Pounds to Gonzales should be offset by $86,237.56 for Gonzales’s one-half of the parties’
2017 tax liability, $30,572.00 for the penalties and interest accrued on the parties’ 2017
federal income tax liability since June 15, 2019, $14,220.00 for Walters Gilbreath, PLLC’s
attorney’s fees, $17,590.00 for Five Stone Tax Advisers’ attorney’s fees, and $3,818.25
for Gonzales’s one-half of the fees owed to John Knox. All of those offsets were either
items agreed to by the parties or properly determined by the trial court as discussed
herein. The trial court did not change anything with regard to what Gonzales was entitled
to receive, nor did it alter any agreement made by Gonzales and Pounds as to what each
party would pay. Accordingly, we cannot find the trial court abused its discretion. We
overrule Gonzales’s final issue.
CONCLUSION
We overrule Gonzales’s second, fourth, seventh, and eighth issues; however, we
sustain his first, third, fifth, and sixth issues. As such, the Order on Motion for
Enforcement is reversed and this cause is remanded to the trial court for further
proceedings consistent with our opinion herein.
Patrick A. Pirtle
Justice
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