Rhonda Lyn Fowler v. Gary Lynn Fowler ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-274-CV
RHONDA LYN FOWLER APPELLANT
V.
GARY LYNN FOWLER APPELLEE
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FROM THE 415TH JUDICIAL DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Rhonda Lyn Fowler challenges the trial court’s order denying
her “First Amended Petition for Enforcement of Property Division by Contempt.”
In one issue, Rhonda contends that the trial court erred by finding that there
was no evidence to support her motion. We will affirm.
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… See T EX. R. A PP. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In December 2004, the trial court signed an agreed final divorce decree,
granting Rhonda and her husband, Gary Lynn Fowler, a divorce. The decree
divided Rhonda and Gary’s assets and liabilities and established child support
and possession guidelines. As part of the agreed terms, Rhonda was awarded
almost one hundred items of personal property “as her sole and separate
property,” while Gary was “divested of all right, title, interest, and claim in and
to [the] property.”
Rhonda later filed a petition alleging that Gary had failed to return
approximately forty of the personal property items awarded to her and had
failed to pay the couple’s tax liabilities for 2001, 2002, and 2003, as ordered
in the divorce decree. In her petition, Rhonda asked the trial court to (1) enter
a “judgment against [Gary] in favor of [Rhonda] in the amount of $75,000.00
. . . in lieu of ordering [Gary] to return the property to [Rhonda]”; (2) hold Gary
in contempt and fine him for each violation of the divorce decree; (3) award
Rhonda attorney’s fees; and (4) in the alternative, enter a clarifying order
regarding Gary’s duties under the divorce decree.
The trial court conducted a bench trial, at which Rhonda and Zane Fowler
(Rhonda and Gary’s oldest child) testified. After the testimony of these two
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witnesses, Gary moved for, and the trial court granted, a directed verdict.
Rhonda now appeals.
III. T HE T RIAL C OURT’S O RDER ON THE M OTION TO E NFORCE
In her sole issue, Rhonda claims that the trial court should have granted
her motion to enforce based on her testimony that she did not, at the time of
trial, possess all of the property awarded to her by the divorce decree. In the
alterative, Rhonda contends that her testimony was sufficient for the trial court
to at least grant her request for clarification of the divorce decree.
Rhonda does not challenge the trial court’s rulings on her request for
attorney’s fees or Gary’s alleged failure to pay the couple’s tax liabilities. And,
the trial court’s order in this case is not appealable insofar as it refuses to hold
Gary in contempt. See Tex. Animal Health Comm’n v. Nunley, 647 S.W.2d
951, 952 (Tex. 1983) (holding that an appellate court lacks jurisdiction to
review denial of a contempt order on direct appeal); Tracy v. Tracy, 219
S.W.3d 527, 530 (Tex. App.—Dallas 2007, no pet.); In re B.C.C., 187 S.W.3d
721, 723 (Tex. App.—Tyler 2006, no pet.). Accordingly, we review only the
portion of the trial court’s judgment denying Rhonda’s claim for either $75,000
or the items of property or for clarification of the agreed divorce decree.2
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… During the pendency of this appeal, the trial court entered an order
regarding child support arrearages. Because this appeal is limited to the trial
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A. Standard of Review
We review a trial court’s ruling on a motion for enforcement under an
abuse-of-discretion standard. See In re M.K.R., 216 S.W .3d 58, 61 (Tex.
App.—Fort Worth 2007, no pet.) (reviewing trial court’s ruling on child support
arrearages and payment of attorney’s fees under abuse-of-discretion standard);
In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana
2003, pet. denied) (reviewing the trial court’s clarifying order under abuse-of-
discretion standard); In re T.J.L., 97 S.W.3d 257, 265 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (reviewing enforcement order under abuse-of-
discretion standard); Chavez v. Chavez, 12 S.W.3d 563, 566 (Tex. App.—San
Antonio 1999, no pet.) (reviewing award of attorney’s fees under section
9.014 of the Texas Family Code under abuse-of-discretion standard); McCaig
v. McCaig, No. 12-06-00374-CV, 2007 WL 1765845, at *1 (Tex. App.—Tyler
June 20, 2007, pet. denied) (mem. op.) (reviewing trial court’s ruling on
motion for enforcement or clarification of divorce decree under abuse-of-
discretion standard).
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
court’s ruling on Rhonda’s petition for enforcement of property division, the trial
court’s subsequent order has no bearing on this opinion.
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principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a trial
court may decide a matter within its discretion in a different manner than an
appellate court would in a similar circumstance does not demonstrate that an
abuse of discretion has occurred. Id.
An abuse of discretion does not occur where the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur
as long as some evidence of substantive and probative character exists to
support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198,
211 (Tex. 2002).
Legal and factual sufficiency are factors that can be considered in
determining whether an abuse of discretion has occurred. In re M.K.R., 216
S.W.3d at 61; London v. London, 94 S.W.3d 139, 143–44 (Tex.
App.—Houston [14th Dist.] 2002, no pet.). A trial court’s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by
the same standards that are applied in reviewing evidence supporting a jury’s
verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). Conclusions of law may not be challenged
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for factual sufficiency, but they may be reviewed to determine their correctness
based upon the facts. Citizens Nat’l Bank v. City of Rhome, 201 S.W.3d 254,
256 (Tex. App.—Fort Worth 2006, no pet.); Dominey v. Unknown Heirs &
Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth
2005, no pet.).
B. Rhonda’s Request for Enforcement
A trial court can render enforcement orders to assist in the
implementation or clarification of a property division made in a divorce decree.
T EX. F AM. C ODE A NN. § 9.006(a) (Vernon 2006). One option available for the
trial court to enforce the property division made by the divorce decree is to
order a party to deliver the specific property awarded. Id. § 9.009 (Vernon
2006). If the party fails to comply with the property division set forth in the
divorce decree and delivery of the property awarded is no longer an adequate
remedy, the court may then render a money judgment for the damages caused
by the failure to comply. Id. § 9.010(a) (Vernon 2006).
In this case, the agreed final divorce decree between Rhonda and Gary
provided:
RHONDA LYN FOWLER . . . is awarded the following as her
sole and separate property, and the husband is divested of all right,
title, interest, and claim in and to that property:
W-1. All of the furniture, furnishings, and other personal
property, whether in her possession or husband’s possession, listed
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on Exhibit W of the Mediated Settlement Agreement, which is
attached hereto and made a part hereof as Exhibit “A.”
In her motion for contempt, Rhonda alleged that she had not received
several of the items listed in Exhibit A. She therefore requested that the trial
court order Gary to pay $75,000 in lieu of ordering him to return the property.
During the proceedings on Rhonda’s motion, Rhonda testified that she
had not received all of the items listed in Exhibit A. She did not testify that she
had attempted to retrieve the items or that Gary had, in any way, stopped her
from taking possession of the property. In fact, Zane testified that he, his
sister, and Rhonda lived at the house where the property was located for
several days after the trial court entered the final divorce decree. Zane stated
that, when they left the house, everyone, including Rhonda, packed up their
things, and Gary actually helped them move. Gary’s trial counsel went through
several of the items on Exhibit A for which Rhonda was seeking reimbursement
and had Zane verify that the personal property was at the house when Rhonda
moved and that Rhonda had left the items behind. Those items, Zane said,
were still located at the house at the time of the trial. According to Zane, he
had never seen Gary deny Rhonda the opportunity to come retrieve the items.
At the conclusion of Zane’s testimony, Gary moved for, and the trial court
granted, a directed verdict. In its findings of fact, the trial court found that
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Gary had not failed to comply with the divorce decree. The trial court found
that there was no evidence that Gary had ever “originally asserted or continued
to assert dominion and control over the personal property items,” as listed by
Rhonda. Therefore, the trial court concluded that Rhonda was not entitled to
a money judgment or any other relief sought.
The evidence presented at the hearing indicated that Gary had not failed
to comply with the divorce decree. See T EX. F AM. C ODE A NN. §§ 9.006, .9010.
Rhonda did not offer any evidence that she had tried to obtain the property,
that Gary had refused her access to it, or that Gary had disposed of it. In fact,
the evidence indicated that Rhonda had access to the property and voluntarily
left it behind when she moved several days after the final divorce decree was
entered. This evidence supports the trial court’s decision to not issue an
enforcement order.
Furthermore, although the trial court in this case may have had the
authority to enter the enforcement order that Rhonda requested, here, the
decision of whether to exercise that authority was well within the trial court’s
discretion. See id. §§ 9.006, 9.009; In re M.K.R., 216 S.W.3d at 61; In re
Marriage of McDonald, 118 S.W.3d at 832. Accordingly, we cannot say that
the trial court abused its discretion by denying Rhonda’s petition. See Downer,
701 S.W.2d at 241–42; Butnaru, 84 S.W.3d at 211.
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IV. T HE T RIAL C OURT’S O RDER ON THE M OTION TO C LARIFY
In the alternative, Rhonda urges that because the final divorce decree had
no provisions regarding how the actual transfer of property from Rhonda to
Gary was to occur, the trial court should have at least entered a clarifying
order, presumably setting forth the duties of each party to deliver or obtain the
property.
A. Standard of Review
If the trial court finds “that the original form of the division of property is
not specific enough to be enforceable by contempt, the court may render a
clarifying order setting forth specific terms to enforce compliance with the
original division of property.” T EX. F AM. C ODE A NN. § 9.008(b) (emphasis
added); McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). As the statute’s language
indicates, the trial court is not bound to enter a clarifying order if, in the court’s
best judgment, such an order is not necessary. See T EX. F AM. C ODE A NN. §
9.008(b); T EX. G OV’T C ODE A NN. § 311.016(1) (Vernon 2005) (stating that
courts should construe the term “may” as creating discretionary authority).
Therefore, we review the trial court’s decision to deny Rhonda’s request for
clarification under an abuse-of-discretion standard.
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B. Rhonda’s Request for Clarification
Here, Rhonda complains that the language awarding her the property does
not specifically order how the transfer of property is to take place. The decree
specifically awarded Rhonda the sole right to the disputed separate property
and completely divested Gary of any right to the property. The decree
additionally established that “[t]his decree shall serve as a muniment of title to
transfer of ownership of all property awarded to any party.” The decree
additionally mandated that Rhonda would have the exclusive right to enjoy the
use and possession of the residence where the property was located for thirty
days after the divorce decree was signed.
Therefore, in light of the evidence that Rhonda left behind numerous
items of the property awarded to her when she moved from the residence (and
yet took approximately sixty of the other items of personal property awarded
to her by Exhibit A) and that Gary had never refused her access to the property,
and in the absence of any evidence that Rhonda had ever asked Gary if she
could come get the property or asked him to deliver the property to her, we
cannot say that the trial court abused its statutory, discretionary authority by
declining to clarify the divorce decree. See T EX . F AM. C ODE A NN. § 9.008(b);
Shankes v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003).
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Accordingly, because the trial court did not abuse its discretion by
refusing to enter a motion to enforce or by declining to enter an order clarifying
the divorce decree, we overrule Rhonda’s sole issue.
V. C ONCLUSION
Having overruled Rhonda’s sole issue, we affirm the trial court’s order.
SUE WALKER
JUSTICE
PANEL F: HOLMAN, GARDNER, and WALKER, JJ.
DELIVERED: June 5, 2008
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