Howard P. Byrnes, Jr. v. Glenda L. Byrnes ( 2022 )

AFFIRMED and Opinion Filed July 5, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00338-CV
HOWARD P. BYRNES, JR., Appellant
V.
GLENDA L. BYRNES, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-01739
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Garcia
Opinion by Justice Garcia
Howard Byrnes (“Husband”) appeals the trial court’s dismissal of his
declaratory judgement action seeking construction of a property insurance contract
and declaring ownership of the proceeds. In a single issue, Husband argues the trial
court erred by dismissing the case and transferring the proceeds. Finding no
reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
Husband and Wife were divorced, and a final decree was entered by the 256th
District Court (the “Family Court”) on March 22, 2019. The decree addressed,
among other things, the parties’ interest in a home located on Inwood Road (the
“Marital Home”). The decree provides that, subject to the provisions regarding the
sale of the Marital Home, Wife is awarded as her sole and separate property 75% of
the net proceeds from the sale of [the Marital Home] exceeding four million dollars.
Husband is awarded 25% of the proceeds as his sole and separate property up to four
million dollars and 50% for the amount exceeding four million dollars. Regarding
the sale of the Marital Home, the decree provides:
Provisions Regarding Sale of Marital Home (Inwood Road)
I. The parties agree that Wife’s portion of the equity in the marital
property residence commonly known as 10323 Inwood Rd., Dallas
Texas (“the marital residence”), is valued in the amount of
$3,000,000.00. The parties agree that Husband may buy out Wife’s
interest in the amount of $3,000,000.00 on or before August 15, 2019.
In the event Husband tenders $3,000,000.00 to Wife on or before
August 15, 2019, Wife shall, simultaneously upon receipt of payment
from Husband in the amount of $3,000,000.00, execute before a notary
public a Special Warranty Deed (prepared by husband’s counsel)
conveying her interest in the marital residence to Husband. IT IS
ORDERED that the original executed Special Warranty Deed shall be
provided to the offices of counsel for Husband within two business
days.
2. If the Husband does not tender $3,000,000.00 to Wife on or before
August 15, 2019, the marital residence shall be immediately listed for
sale with the realtor whose signed contract is attached hereto as Exhibit
A.
3. Husband shall have exclusive use and possession of the marital
residence until compliance with provisions 1 and 2 immediately above.
Wife will have access to the marital home to remove her inherited
property and any other contents awarded to wife by agreement with
husband or by the arbitrator’s ruling as soon as the agreement or ruling
is made.
4. The first $4,000,000.00 of the net proceeds from the sale of the
marital residence shall be divided as follows:
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a. Seventy-five percent (75%) to Wife; and
b. Twenty-five percent (25%) to Husband.
5. Following the division of the first $4,000,000.00 of the net proceeds
from the sale of the marital residence, the remaining net proceeds shall
be divided as follows:
a. Fifty percent (50%) to Wife; and
b. Fifty percent (50%) to Husband.
The Marital Home was destroyed by a tornado several months after entry of
the decree. The insurance company declared the property a total loss and issued
payment to Husband and Wife.
On January 13, 2020, Wife filed a petition for clarification of the final decree
and/or request to divide omitted property in the Family Court, asking the court to
determine who is entitled to the proceeds, or alternatively, to make an award of
property pursuant to TEX. FAM. CODE ANN. § 9.201.
On January 30, 2020, Husband initiated this action in the 193rd District Court,
seeking a declaratory judgment that the insurance proceeds are owned by Husband
and Wife in equal shares and that the insurance policy is not community property.
Wife moved to dismiss the petition for lack of jurisdiction, or alternatively, to
transfer the case to the family court.
The court conducted a hearing, granted Wife’s motion to dismiss, and
transferred the insurance proceeds on deposit to the Family Court. Husband now
appeals that dismissal.
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II. ANALYSIS
Husband argues that the Family Court is “completely without jurisdiction”
over the declaratory judgment action, the insurance contract, and the insurance
proceeds because the Family Court’s plenary power has expired and because the
parties’ agreed property division settlement did not dispose of or divide title to the
Marital Home or address ownership of the insurance proceeds. According to
Husband, the Marital Home ceased to be community property when the decree was
entered and Wife’s only remedy was to file suit for partition.
Husband’s argument ignores that Wife’s petition does seek division of the
undivided property as an alternative to clarification of the decree. It is well-
established that “[p]roperty adjudications in a divorce decree become final the same
as other judgments relating to title and possession of property.” DeGroot v. DeGroot,
260 S.W.3d 658, 662 (Tex. App.—Dallas 2008, no pet.). A motion for new trial or
a motion to modify, correct, or reform a judgment, if any, must be filed within thirty
days after the judgment is signed. TEX. R. CIV. P. 329b. After the trial court’s plenary
power expires, the trial court may not alter, amend, or modify the substantive
division of the property in the divorce decree. See id.; TEX. FAM. CODE ANN. § 9.007.
Seeking an order that alters or modifies a property division constitutes an
impermissible collateral attack. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009).
Nonetheless, the court that rendered the divorce decree retains continuing
subject matter jurisdiction to enforce and to clarify the decree’s property division
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pursuant to specific provisions of the Family Code after the court’s plenary power
expires. See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Gainous v.
Gainous, 219 S.W.3d 97, 106, 108 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied). In particular, a court has continuing jurisdiction to render further orders to
enforce the division of the property made in the decree of divorce to assist in the
implementation of or to clarify the prior order. See TEX. FAM. CODE ANN. § 9.006(a);
Wagner v. Davis, No. 02-19-00249-CV, 2020 WL 241381, at *2 (Tex. App.—Fort
Worth Jan. 16, 2020, no pet.) (mem. op.). Similarly, on the request of a party or on
the court’s own motion, the court may enter a clarifying order setting forth specific
terms to enforce compliance with an original division of property on a finding that
the original division of property is not specific enough to be enforceable by
contempt. See TEX. FAM. CODE ANN § 9.008; Gainous, 219 S.W.3d at 106.
There are, however, limitations on the enforcement and clarification powers
of the court that rendered the divorce decree. Gainous, 219 S.W.3d at 106. A court
may not amend, modify, alter, or change the division of property made or approved
in the divorce decree after its plenary power expires. TEX. FAM. CODE ANN §
9.007(a); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). An order that
amends, modifies, alters, or changes the divorce decree’s property division is beyond
the power of the court. See TEX. FAM. CODE ANN § 9.007(b); Gainous, 219 S.W.3d
at 106–07.
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Thus, as Husband acknowledges, there is no question that the Family Court
has jurisdiction to clarify the decree, to the extent that clarification is possible
without altering the decree’s original terms. In this case, however, the decree does
not dispose of the Marital Home or the insurance proceeds, and as Wife’s petition
states, as an alternative to the request for clarification, the property was not divided
or awarded to a spouse in the decree and should be divided by the court in a just and
right division.
The Family Code provides that if a trial court failed to dispose of property
subject to division in a final divorce decree, the court shall divide the property in a
post-divorce action in a manner that is just and right under the circumstances. TEX.
FAM. CODE ANN. § 9.203; see also Wilde v. Murchie, 949 S.W.2d 331. 333 (Tex.
1997); Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App.—San Antonio 2002, no
pet.). Wife’s petition seeks this division.
Husband correctly observes that the Marital Home ceased to be community
property when the final decree was entered. The general principle is that
“community property not awarded by a divorce decree is subject to later partition
between two ex-spouses who are considered joint tenants or tenants in common.”
Wilde, 949 S.W.2d at 332. But the character of the property does not deprive the
family court of jurisdiction to make a post-divorce partition. Rather, as the Texas
Supreme Court recently explained, Subchapter C of Chapter 9 of the Family Code
“allows property that is no longer community property to be treated as if it still were,
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so that it can be divided by the just-and-right standard.” S.C. v. M.B., __ S.W.3d __,
2022 WL 2192167, at *6 (Tex. June 17, 2022).
The S.C. court further concluded that because an action to divide previously
undivided property is a new suit, jurisdiction to do so is not exclusive to the court
that entered the decree. Rather, when either spouse invokes subchapter C, “any court
‘shall’ apply the specific ‘just and right standard.’” Id. at 812 (citing TEX. FAM. CODE
ANN. § 9.203(a). It is axiomatic that “any court” does not, by definition, in any way
exclude the Family Court.
In this instance, Wife invoked subchapter C when she filed her Family Court
petition seeking to divide the omitted community property. Although any district
court had jurisdiction to make the post-divorce just and right division, the Family
Court action was filed first. “The general common law rule in Texas is that the court
in which suit is first filed acquires dominant jurisdiction to the exclusion of other
coordinate courts.” In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016)
(orig. proceeding). Because the Family Court first acquired jurisdiction, the court
below did not err by dismissing Husband’s suit and transferring the deposited funds
to the Family Court.
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We resolve Husband’s issues against him. The trial court’s judgment is
affirmed.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
210338F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HOWARD P. BYRNES, JR., On Appeal from the 193rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-20-01739.
No. 05-21-00338-CV V. Opinion delivered by Justice Garcia.
Justices Molberg and Reichek
GLENDA L. BYRNES, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee GLENDA L. BYRNES recover her costs of
this appeal from appellant HOWARD P. BYRNES, JR..
Judgment entered July 5, 2022.
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