M.B., Individually and as Next Friend of I.C. v. S.C. ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00168-CV
___________________________
M.B., INDIVIDUALLY AND AS NEXT FRIEND OF I.C., Appellant
V.
S.C., Appellee
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-285252-16
Dissenting Memorandum Opinion by Chief Justice Sudderth
DISSENTING MEMORANDUM OPINION
I would hold that the divorce court has exclusive jurisdiction over this action
and that to construe the statute as the majority has would lead to an absurd result.
Family Code Section 9.201(a) provides that a former spouse “may file a suit” in
the divorce court. Tex. Fam. Code Ann. § 9.201(a). I agree with the majority that the
word “may” is permissive, not mandatory, language but I disagree with the majority’s
conclusion.
The statute provides that a former spouse “may file a suit as provided by this
subchapter.” Id. (emphasis added). The subchapter in question is Subchapter C, “Post-
Decree Division of Property,” which is found in Family Code Chapter 9, “Post-
Decree Proceedings.” See generally id. §§ 9.201–.205. Within this subchapter,
Section 9.203(a) provides that “[i]f a court of this state failed to dispose of property
subject to division in a final decree of divorce or annulment even though the court
had jurisdiction over the spouses or over the property, the court shall divide the
property . . . .” Id. § 9.203(a) (emphasis added). In context, the phrase “the court” in
Section 9.203(a) refers to “a court of this state [that] failed to dispose of property
subject to division in a final decree of divorce.” See id.
In other words, the filing of a suit to divide property that was not divided or
awarded to a spouse in a final decree of divorce is permitted as provided by
Chapter 9, Subchapter C of the Family Code. See id. §§ 9.201–.205. And Chapter 9,
Subchapter C of the Family Code authorizes the court that failed to dispose of
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property to do so post-decree. See id. Long-standing common law tenants-in-
common principles notwithstanding, when the Legislature enacted Chapter 9,
Subchapter C, it supplanted common law principles in favor of a statutory scheme.
Cf., e.g., In re S.T., 467 S.W.3d 720, 725–27 (Tex. App.—Fort Worth 2015, orig.
proceeding). On its face, this statute does not authorize any court—other than the
court that failed to dispose of the property in the first place—to dispose of property
that was otherwise subject to division in a final divorce decree.1
The majority holds that the “dealer’s choice” result forced by its interpretation
is not an absurd one. I disagree. It would be absurd, indeed, to allow a party who hid
assets during a divorce proceeding2 to get a second bite at the apple post-divorce by
unilaterally filing in the court of his or her choice when the Legislature has provided
that the party shall receive a “just and right” division of the assets by the divorce court
exercising its jurisdiction over the case. See id. §§ 7.001, 9.203(a) (emphasis added).
The majority’s reading creates an incentive for a bad actor to hide assets pending
divorce so that he or she can later seek a more advantageous distribution through
forum-shopping.
For these reasons, I respectfully dissent.
1
To the extent that this interpretation is in conflict with our earlier decision in
Huey-You v. Kimp, No. 02-16-00172-CV, 2018 WL 359633 (Tex. App.—Fort Worth
Jan. 11, 2018, pet. denied) (mem. op.), we should overrule Huey-You.
2
I do not mean to imply that the hiding of assets occurred here.
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/s/Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: April 9, 2020
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