v.
Trisha Dunahoo
ACCEPTED 07150029CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/17/2015 5:30:49 PM Vivian Long, Clerk
CAUSE NO. 07-15-00029-CV FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS In the Court of Appeals 2/17/2015 5:30:49 PM ,, I For the Seventh Court of Appeals District VIVIAN LONG I CLERK Amarillo, Texas 1 I ] I J TIMOTHY PARRISH APPELLANT vs. TRISHA DUNAHOO APPELLEE ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL COUNTY, APPELLANT TIMOTHY PARRISH'S BRIEF CORBIN & ASSOCIATES, P.C., Attorneys ASHLEY CLAPPER SBN: 24076317 DANIEL A. CORBIN SBN: 04814300 603 North 81h Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 [email protected] Counsel for Timothy Parrish TABLE OF CONTENTS IDENTITY OF THE PARTIES ..................................... 2 INDEX OF AUTHORITIES ...................................... 3 STANDARD OF REVIEW....................................... 4 STATEMENT OF THE CASE ..................................... 5 STATEMENT OF THE ISSUES PRESENTED ........................ 6 STATEMENT OF THE FACTS ................................... 7-10 SUMMARY OF THE ARGUMENT ............................... 11 ARGUMENT. ............................................... 12-22 PRAYER FOR RELIEF .......................................... 23 CERTIFICATE OF WORD COUNT ................................ 24 CERTIFICATE OF SERVICE..................................... 25 APPENDIX .................................................... 26 ·''
[*1]IDENTITY OF THE PARTIES AND ATTORNEYS
ATTORNEYS ASHLEY CLAPPER DANIEL CORBIN Corbin & Associates, P.C. 603 N. 8th Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 Attorneys for Timothy Parrish BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Dunahoo
PARTIES Timothy Parrish, Appellant Trisha Dunahoo, Formerly Trisha Parrish, Appellee (hereinafter Trisha Parrish)
[*2]INDEX OF AUTHORITIES
TEXAS CASES: Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987) ..................... 19 Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13, 17,18 Joynerv. Joyner, 352 S.W. 3d 746 (Tex. App.-SanAntonio 2011) ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 16 Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) .............. 12, 13, 15 Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir. Tex. Dec. 19, 2014) ........................................ 12 STATUTES: Tex. Fam. Code§ 9.006 (2014) .................................. 12 Tex. Fam. Code§ 9.007 (2014) ................................ 12, 13 Tex. Fam. Code§ 9.008 (2014) .................................. 12
[*3]STANDARD OF REVIEW
The standard of review for determining whether the district court had subject matter jurisdiction is de novo. Joyner v. Joyner, 352 S.W. 3d 746, 749 (Tex. App.-San Antonio 2011). "The issue of jurisdiction in this case turns on whether the trial court modified or clarified the DRO." Id. at 749.
[*4]STATEMENT OF THE CASE
Timothy Parrish filed a MotiQn for Clarification of Military Retirement in the 146th Judicial District Court seeking to clarify the award of military retirement awarded to Trisha Parrish at the conclusion of his military service. C.R. 153. Trisha Parrish filed a Motion for Enforcement of Military Retirement. Subsequently, Trisha Parrish filed a Supplemental Motion to Enforce Military Retirement. C.R. 185. The district court heard the Motion for Clarification of Military Retirement on May 6, 2014. C.R. 198. The district court took the matter under advisement and issued a Memorandum Ruling on May 22, 2014. C.R. 198. The Court ordered that the End ofAward provision contained in the 2008 Domestic Relations Order should be removed and a new Domestic Relations Order should be entered. (Exhibit C)'. The Court signed a new Domestic Relations Order on November 12, 2014. (Exhibit D?
'Memorandum Ruling 2 2014 Domestic Relations Order
[*5]STATEMENT OF THE ISSUES PRESENTED
1. Did the District Court have subject matter jurisdiction to remove the End ofAward provision thereby modifYing the award of property as originally set out in the Final Decree of Divorce and the 2008 Domestic
Relations Order?
2. Was the removal of the End ofAward provision from the 2008 Domestic
Relations Order barred by res judicata and therefore an error for the District Court remove the provision?
[*6]STATEMENT OF FACTS
Timothy Parrish and Trisha Parrish were married on October 3, 1994. C.R. [5]. Subsequently the couple divorced on April30, 2008 at which time the Judge signed a Final Decree of Divorce and a Domestic Relations Order. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The divorce decree and DRO were signed at the same time. (Trial Tr. Vol. 1, p. 9, May 6, 2014). The Final Decree of Divorce states in relevant part "The Court finds that the parties have entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance." (Exhibit Al To the extent permitted by law, the parties stipulate that the agreement is enforceable as a contract." (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Domestic Relations Order is incorporated into the final decree of divorce specifically on pages 15 and 16. (Exhibit At The parties signed the Final Decree of Divorce approving it as to both form and substance. (Exhibit A) 5 The Domestic Relations Order contained a provision that ended the award of military retirement to Trisha Parrish after she received the retirement for thirteen years and four months (herein after known as the End ofAward
[*7]provision). (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). Trisha Parrish signed the Domestic Relations Order, approving it as to both form and substance, and had it notarized prior to the entry of the Domestic Relations Order. (Trial Tr. Vol. 1, p.
6, May 6, 2014 and Exhibit B 6). Timothy Parrish continued his military service
and retired in December 2011. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The Domestic Relations Order was submitted to Department Finance Accounting
Services (herein after "DFAS"). (Trial Tr. Vol. 1, p. 5, May 6, 2014). Timothy
Parrish subsequently filed a Motion for Clarification of Military Retirement
Division on January 4, 2012 to clarify the amount of the award of the military ~j ~:1 J retirement Trisha Parrish was going to receive. (Trial Tr. Vol. 1, p. 6, May 6, :'I :j .I 'I ., ~ --~ 2014). Trisha Parrish filed a Petition for Enforcement of Retirement on November "'I 25, 2013 requesting the court to enforce the military retirement. C.R. 167.
Subsequently, Trisha Parrish filed a Supplemental Petition for Enforcement of Retirement asking the court to remove the provision ending the award of military retirement that she would receive from the Domestic Relations Order. (Trial Tr.
Vol. 1, p. 6, May 6, 2014 ). The court held a hearing on May 6, 2014 regarding the clarification. C.R. 198. Timothy Parrish argued that the challenge to the End of 6 2008 Domestic Relations Order, page 5.
[*8]Award provision was barred by res judicata. (Trial Tr. Vol. 1, p. 6, May 6, 2014). Trisha Parrish argued that the court was not barred by res judicata because the provision was riot contained in the divorce decree but contained in the DRO. (Trial Tr. Vol. 1, p 16, May 6, 20 14). She reasoned that "the divorce decree is the substantive contract of the parties," and that the DRO is not substantive. (Trial Tr. Vol. 1, p. 9, May 6, 2014). "The contract was the Final Decree of Divorce, and all a Domestic Relations Order does is effectuates what the court has ordered." (Trial Tr. Vol. 1, p. 11, May 6, 2014). She goes on to say that Domestic Relations Orders are never incorporated by reference, and in this case are not incorporated by reference." (Trial Tr. Vol. 1, p. 16, May 6, 2014 ). Trisha Parrish further argues that the court has unlimited jurisdiction to amend a DRO. (Trial Tr. Vol. 1, p. 9, May 6, 2014). She argues that the End ofAward provision divests her of her separate property rights because she is entitled to the retirement until the death of herself or the death of Parrish. (Trial Tr. Vol. 1, p. 10, May 6, 2014). Parrish's rebuttal argument was that the 2008 DRO was incorporated into the Final Decree of Divorce and was a contract between the parties. (Trial Tr. Vol. 1, p.13, May 6, 2014). He argued that Trisha Parrish was trying to undo a substantive property division that was a final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). He points out that she had 30 days to file an appeal and she made no attempt to appeal the final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Court took the matter of clarification under advisement and subsequently issued a memorandum ruling. (Trial Tr. Vol. 1, p. 21, May 6, 2014; Exhibit C7). The memorandum ruling clarified the calculation for Trisha Parrish's portion of the military retirement. (Exhibit C8). Additionally, the memorandum ruling removed the provision ending the award of military retirement from the Domestic Relations Order. (Exhibit C9). On April 30, 2008 the District Court signed the amended Domestic Relations Order. (Exhibit D 10). Timothy Parrish filed a notice of appeal on December 10, 2014 to challenge the district court's ruling and entry of the 2014 Domestic Relations Order. C.R. 220.
[*9][*10]SUMMARY OF THE ARGUMENT
The district court did not have subject matter jurisdiction to remove the End ofAward provision in the 2008 Domestic Relations Order. The district court has the power to clarify any ambiguous terms of the Domestic Relations Order but does not have jurisdiction to modify or amend the terms of the Domestic Relations Order if the terms are not ambiguous. The End ofAward provision was not ambiguous and therefore was a modification of a substantive property division that was beyond the jurisdiction of the district court.
Additionally, the terms of the 2008 Domestic Relations Order constitute a final judgment. The removal of the End ofAward provision is a collateral attack on a final judgment and is barred by res judicata.
[*11]ARGUMENT
I. THE DISTRICT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO REMOVE THE PROVISION ENDING THE AWARD OF MILITARY RETIREMENT BECAUSE IT MODIFIED AN UNAMBIGUOUS SUBSTANTIVE PROPERTY DIVISION FROM THE DIVORCE DECREE AND THE 2008 DOMESTIC RELATIONS ORDER.
The Texas Family Code gives the trial court that rendered a divorce decree jurisdiction to enforce and clarify the property division contained in that decree. Tex. Fam. Code §9.006-9.008. "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio 2011). Subject matter jurisdiction cannot be waived and may be raised for the first time on appeal. Statin v. Deutsche Bank Nat 'l Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir, Tex. Dec. 19, 2014). "Judgments should be construed as a whole to harmonize and give effect to the entire decree." Shanks v. Treadway, 110 S.W. 3d 444, 447. "If the decree, when read as a whole, is unambiguous as to the property's disposition, the court must effectuate the order in light of the literal language used." !d. "When the signing of the DRO occurs contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." Hicks v. Hicks 348 S.W. 3d 281, 284 (Tex. App-Houston [14th dist.] 2011). The trial court is without power to modify an unambiguous property division contained in a divorce decree. Tex. Fam. Code 9.007(b), Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio
[*12]20 II). "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Id.
The Court in Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) signed a divorce decree in 1981 that awarded the wife a 25% interest in the husband's retirement benefits. There was no Domestic Relations Order entered at that time. Id at 445. In 1998, seventeen years later, the husband filed a Motion to Sign Qualified Domestic Relations Order. /d. His contention was that the wife's retirement benefits should be calculated as 25% as of the date of divorce. Id. The Wife asserted that the QDRO calculation was barred by res judicata and should be interpreted as a collateral attack on the property division set out in the divorce decree. Id. The trial court valued the wife's retirement benefits as of the date of divorce. Id at 446. The Court of Appeals reversed the trial court stating the "trial court's QDRO impermissibly altered the substantive division of property made in the original divorce decree." !d. The Supreme Court of Texas affirmed the court of appeals. !d. The Supreme Court of Texas reasoned that the decree as written was unambiguous and was therefore not subject to clarification. Id at 447. They further assert that "the fact that the district court erroneously applied the law when it entered the divorce decree does not alter the decree's plain language." !d.
[*13]In Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011) the husband asserts that the trial court lacked jurisdiction to enter a Domestic Relations Order that impermissibly modified the substantive provisions of his military retirement. !d. The parties divorced in 2001 at which time the court entered a divorce decree that awarded the wife a portion of the husbands military retirement "and stated that her portion would be 'more particularly defmed in a Domestic Relations Order."' Id at 74 7-7 48. The Court entered a Domestic Relations Order at the same time that awarded the wife 50% of the community share of the husband's retirement in a hypothetical calculation. !d. in 2005, after the husband retired, DF AS began paying the wife 50% of all accrued amounts of the husband's retirement. !d. The husband filed to clarify the award of military retirement. !d. The court entered an amended Domestic Relations Order that changed the wife's retirement to 37 percent. !d. The husband appealed the judgment stating that it was an impermissible change of the substantive property division. Jd at 749. The court found that the award to the wife was "not ambiguous because it is expressed witb mathematical certainty," and was therefore not within tbe subject matter jurisdiction oftbe court to change. Jd at 750.
[*14]Timothy Parrish presents an argument similar to Shanks, and contends tbat the district court did not have subject matter jurisdiction to remove the End of Award provision from the 2008 Domestic Relations Order because the provision was not ambiguous. This issue is raised for tbe first time on appeal. In this case, the trial court approved and signed a Final Decree of Divorce and Domestic Relations Order in 2008 tbat contained the End OfAward provision. Much like the specified percentage in Shanks was unambiguous this provision is not ambiguous. Trisha Parrish never asserts tbat the End ofAward provision is ambiguous and therefore subject to clarification. Instead, Trisha Parrish asserts that the original provision was not permissible under the law at the time the decree and the DRO were signed. However, the Supreme Court of Texas has struck down this argument in Shanks. The district court only has subject matter jurisdiction to clarifY an ambiguous term which is not the case here. The plain language of tbe 2008 Domestic Relations Order clearly stated that the award would end after she received the retirement for 13 years and 4 months after it began or until the death of one of the parties. The district court in this case wrongfully changed the award that was set out in the original judgment in plain language which is beyond the scope of the court's subject matter jurisdiction.
[*15]Additionally, the court in Joyner found that the court was without power to amend the DRO when the percentage was fixed with a mathematical certainty. Unlike the award in Joyner this case does not have a mathematical certainty. However, the language in the End ofAward provision specifies a total number of years and months that Trisha Parrish is to receive the award of military retirement. The specific end date is unambiguous and is not open to interpretation and is therefore, outside of the subject matter jurisdiction of the court to remove.
Furthermore, Trisha Parrish argues that the Domestic Relations Order is simply an effectuating document and that the actual judgment is the Final Decree of Divorce that is subject to clarification. This contention is flawed in two different respects. First, the plain language ofthe Final Decree of Divorce states that the terms are "more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference." (Exhibit A) 11 • The justification she gives to the court is basically that even though the Final Decree of Divorce contains that language it does not really mean what the plain language states. This argument is simply without merit. The terms of the Final Decree of Divorce are "enforceable as a contract," including the provision
[*16]that incorporates the 2008 Domestic Relations Order into the Final Decree of Divorce. Furthermore, by signing the Final Decree of Divorce Trisha Parrish agreed to the terms of the 2008 Domestic Relations Order that was incorporated into the decree, specifically the End ofAward provision.
In addition to the plain language of the Final Decree of Divorce that
incorporates the terms of the 2008 DRO, the courts have addressed this issue in Hicks v. Hicks, 348 S.W.3d 281 (Tex. App. -Houston [141h dist.] 2011).
The parties in Hicks entered into an agreed Final Decree of Divorce which was signed by the court at the same time the Domestic Relations Order was signed. ld at 282. The divorce decree expressly deleted any reference to the DRO contained in the decree. ld at 284. The DRO contained a provision "designating
Wife as the former spouse beneficiary of the [husband's] Survivor Benefits Plan when no such designation was made in the final decree of divorce." Id at 283.
The husband appealed the judgment stating that the court erred in signing the DRO with the additional provision as it was not contained in the divorce decree. ld. The Court found that the general rule is "when the signing of the DRO occurs ,j '
[*17]' contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." !d. at 284. The court reasoned that in this spec'ific case, because the "references to the DRO are expressly deleted from the agreed decree", that the court was to view the DRO as a separate order and not to be read as part of the agreed divorce decree. Id.
Trisha Parrish urges the court to view the Final Decree of Divorce as the final judgment and the 2008 DRO as an effectuating document, whose terms are not to be read as part of the substantive final judgment much like the Appellant in Hicks. However, unlike Hicks, the Final Decree of Divorce in this case specifically points to the 2008 Domestic Relations Order as an extension of the final decree to be "incorporated verbatim in [the final decree] by reference." (Exhibit A). In applying Hicks to this case the court must view the 2008 Domestic Relations Order to be read in conjunction with the divorce decree and the terms contained in the 2008 DRO should be treated as those contained in the divorce decree.
When the Court reads the Final Decree of Divorce and the 2008 Domestic Relations Order as incorporated into the decree by virtue of the documents plain language, and under the court's decision in Hicks v. Hicks, 348 S.W. 3d 281 (Tex.
[*18]App.-Houston[14th dist.] 2011), as a whole, the court will find that the End of Award provision is unambiguous and therefore beyond the subject matter jurisdiction of the court to clarifY, As such, the Seventh Court of Appeals should reverse the ruling of the 146th Judicial District Court.
II. THE DISTRICT COURT ERRED IN REMOVING THE END OF A WARD PROVISION FROM THE DOMESTIC RELATIONS ORDER BECAUSE A COLLATERAL ATTACK WAS BARRED BY RES JUDICATA.
"The doctrine of Res Judicata bars relitigation of issues decided in a final judgment." Cookv. Cameron, 733 S.W. 2d 137, 140 (Tex. 1987). Errors other than lack of jurisdiction render the judgment merely voidable and must be attacked within the prescribed time limits. Id. "A judgment is void only when it is apparent that the court rendering the judgment 'had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court."' !d. "Errors other than lack of jurisdiction render a judgment merely voidable and must be attacked within prescribed time limits." !d.
In Cookv. Cameron733 S.W. 2d 137 (Tex. 1987), the court signed a final decree in March 1979 that awarded thewife 35% of the husbands gross retired pay. Id at 138. The court also added a contingent award that would make the award to the wife an amount equal to 45% ifthere were further litigation in the case, other than a direct appeal. Id at 139. There was a direct appeal taken (Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) and the court affirmed the award of 35% of the gross retirement to the wife but clarified dates that were not to be included in the calculation. !d. After the husband retired he refused to pay the wife 35% of the gross retirement because DFAS was paying 35% of the net retirement. !d. The wife subsequently filed an enforcement. !d. The trial court refused to enforce the decree as did the court of appeals stating that the amount of the award affirmed in the Texas Supreme Court opinion in Cameron v. Cameron, 608 S.W. 2d 748 (Tex. Civ. App.--Corpus Christie 1980) was ambiguous and subject to clarification. !d. The Supreme Court of Texas found that the refusal of the trial court and the appellate court to enforce the ruling in Cameron was a collateral attack on a final judgment. Id at 140. The Supreme Court of Texas reasoned that the doctrine of res judicata applied to the final judgment and the collateral attack was without merit. !d. The husband further argued that the judgment was void because the contingent award divested him of his separate property rights and was therefore subject to collateral attack. !d. The Court found that there had not been a direct appeal of the contingent award during the prescribed time limits and therefore that provision was not subject to collateral attack. I d. The Court reasoned that "even though the contingent award was improper, the divorce decree, including the contingent penalty, is not subject to Cameron's collateral attack. Res judicata also applies here to prevent relitigation of issues which should have been litigated in an earlier appeal." Id.
[*19][*20]This case is almost identical to Cook. Timothy Parrish argued that Trisha Parrish is attempting to change substantive property division by removing the End ofAward provision contained in the 2008 Domestic Relations Order. He reasons that this provision in the final judgment cannot be collaterally attacked because it is barred by Res Judicata. The Court signed the Final Decree of Divorce and Domestic Relations Order on April 30, 2008 at which time the judgment became final. Trisha Parrish had 30 days to file an appeal of that judgment if she disagreed with the judgment, which she failed to do. Additionally, Trisha Parrish makes the exact same argument contained in Cook, that the trial court improperly divested her of her separate property rights. However, the Texas Supreme Court struck down that exact argument because it is one that should have been appealed directly after the judgment. The law does not allow Trisha Parrish to return to court six years later to attempt to change a property division that she is no longer happy with, that she agreed to in the original documents.
[*21]The Final Decree of Divorce and the Domestic Relations Order became a final judgment of the court 30 days after they were signed in 2008. Trisha Parrish did not appeal the substantive property division within the prescribed time limits. Therefore, the Seventh Court of Appeals should reverse the 146th District Court's ruling because the attack on the substantive property division was barred by res judicata.
[*22]PRAYER FOR RELIEF
.I "-1 ,-·1 WHEREFORE, PREMISES CONSIDERED, Appellant, TIMOTHY ·' PARRJSH, respectfully prays this Court reverse the Trial Court's ruling.
Appellant respectfully prays for any such other and further reliefto which
Appellant may be entitled to at Jaw or in equity.
[*23]CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.4(i), I certify that a copy ofthis brief has a word count of 4,193 words as counted by Wordperfect word count feature.
[*24]CERTIFICATE OF SERVICE Pursuant to TEX. R. APP. P. 9.5, I certify that a copy of this brief has been mailed via U.S. Mail, postage prepared to the following on d-/7- 6 . BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Ann Parrish
[*25]APPENDIX
EXHIBITS
A. Final Decree of Divorce
B. 2008 Domestic Relations Order
C. Memorandum Ruling
D. 2014 Domestic Relations Order
E. 2014 Domestic Relations Order Nunc Pro Tunc
CASE LAW ,, ',, 1. Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.--corpus Christi 1980)
2. Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987)
3. Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ~- ; 4. Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011)
5. Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003)
6. Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th
Cir. Tex. Dec. 19, 2014).
[*26]Puge 1 finding of contempt docs not amount to further Cameron contends the contingent increase is void liligalion." On Cook's amended second motion. the trial and unenforceable as a matter of law. He asserts (I) the court again refused Cook's request to activate lhe contingent provision renders the decree indefinite and contingent escalation. uncenain because "funhcr litigation" is undefined and unclear; (2) the trial court is authorized to make only one We hold the trial court's denial of Cook's request "just and right" division of property, and the contingent does not mandate reversal. Cameron's testimony at the increase constitutes a second propeny division; and (3) contempt hearing eslablished 10 the trial court that he did <i ::: the increase operates to divcs.t him of his separate not willfully refuse to pay Mrs. Cook 35% of gross, but property after divorce. Cnmeron olso claims the instead considered the counsel of a lawyer with the Air :--i contingent prm•ision is unconstitutional because it Force Accounting and [ .. 10] Finance Center, the I violates the open courts provision, the due process [..8] ranking legal officer at the Corpus Chrisli Naval Air clause, separation of powers, and the equal rights Slation, and his own attorneys. Cameron's conclusion that amendment to the Texas Constitution. a gross amount wa.'i not required by our Camcro11 judgment appears to be in good faith and docs not A judgment is void only when it is apparent thai the warrant our imposition of the improper contingent coun rendering judgment "hod no jurisdiction of the penalty. We agree that the aclion here resolving the panics, no jurisdiction of the subjecl maner, no dispule concerning our Camerorr judgment does not jurisdiction to enter the judgment, or no capacity to acl as constitute "further litigation" as intended by the decree. a court." 8rolt'ni11g ''·Placke, 698 S.W.ld 362. 363 (Tex. 1985). Errors other lhon lack of jurisdiction render d1e Finally, Cook also argues she is entillcd to attorney judgment merely \'oidable and must be attacked wi1hin fees incurred in the proceeding to enforce the decree. A prescribed lime limits. /d. The trial court issuing the court may, in its discretion, award attorney fees in a divorce decree had jurisdiction of the parties, subject proceeding to enforce a divorce decree. TEX. FAM. matter, and capacity 10 act as a court. Any error regarding CODE ANN. § 3.77 (Vernon Supp. 1987). Cook has the contingent increase then, rendered the judgmcnl mude no showing, however, that the court abused its voidable, not void ob initio. discretion in failing to nwnrd nttomcy fees.
Cameron appealed the conlingenl increase provision Accordingly, the judgments of the lower couns are to the court of appeals in his appeal from the divorce reversed. We render judgment ordering the trial court to decree, but did not appeal the contingent award to this enforce the judgment in Camero" v. Camei'OJJ awarding court. Cameron did appeal the conlingent provision in his Cook thirty-five percent of gross retircmcnl benefits Cameron motion for rehearing, bul by nol submitting a beginning June 25, 1981. This cause is remanded lo the crosspoint in Camero,, he waived 1he error. Thus, even trial court solely 10 detenninc the amounts owing to
Page 4 733 S.W.2d 137, •141; 1987 Tex. LEXIS 369, ••10; 30 Tex. Sup. J. 550
Cook. event that [Cook] receives the allotted share without further litigation other than a direct appeal. . . ." COSCUR B\': WALLACE Litigation is defined as a contest in the courts 10 enforce a right or seek a remedy. Black's Law Dir:tionar)' 841 (5th DISSE~T B\': WALLACE ed. 1979). The purpose of litigation is to preserve and enforce rights and secure compliance with the laws of the DISSE~T state. Mi.t.mwi, Kansas & Texas Ry. Cn. 1'. Hickman, 183 U.S. 53, 60, 21 S. Ct. /8, 46 L. Ed. 78 (1901). CONCURRING AND DISSENTING Because Cameron failed 10 honor lhe divorce decree, Cook was forced to file this lawsuit. By definition, she [.. II) OPINION ON MOTION FOR was forced [.. 12] to pursue further litigation whether REHEARING Cameron ac1cd in good faith or not. ConscqucnlJy, she is ( concur in the majority holding that Sue Cook is cnlitled to 45% of Cameron's gross military relirement entitled to enforcement of the judgment rendered in pay. Camei"On "· Cameron, 641 S. W.2d 210 (Tex. 1984) Cameron failed to properly challenge the contingent awarding her 35% of Paul Cameron's gross military provision in his direcl appeal of the divorce. Because he rerirement benefits. However, I dissent from the could have secured review of the provision in the divorce majority's refusal to enforce the contingenl increase appeal, res judicata bars him from litigating that issue in award. this lawsuit. Garcia 1'. RC Cola-- 7-Up Botlling Co., ~~7 The majority concludes this lawsuit docs not amount S.W.ldJ17,J/9(Tex. /984). to "funhcr liligation'' because Cameron acted in goad For the foregoing reasons, I would hold Cook is faith in refusing to honor the divorce decree. I disagree. entitled lo enforcement of the entire divorce decree The decree states that 35% of gross military retirement including the contingent provision. benefits "is dctcnnined to be just and right only in the
.I .. '.. ·,···1 ":.
Page I Appellee-s: 1VIarcit: Ly1m Sehoul, Esq .• Kndic Pn:ston mortgage and attempt to fQrcclnl'c nn his hnme. Stt1tin B!..'nnion, \Villinm Lance Lewis, Esq. Quilling, Sc:ltllldcr, sought e-quitable relief voiding the lorcclosmc of his Lownds. Winslett & rv1oser, P.C.. Dallas, TX. horne cmd gmntlng tlme to sccun: nn additional loan to pay oiT S2S.OOO due on the mortgagc, a~ well as a .ll'llGES: Before DAVIS. CLF.MENT, and COSTA. declaration that the mor1g<Jge would be satisfied by a Circuit Judges. S2S,OOO payrucur. Statin sought no m~1nctary damages. OPit\ION The Dcf'cndants filed a LimelyNottcc ofRI!moval on
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FINAL D~:CREE OF DIVORCE = = ' = ...... CJ
On --~A"'P--'RL..:3).__u0__,2,0,08,___ _ the Court heard this case. ,Jppearances Petitioner, Tl1viOTHY PARRJSH, app~ared in person and through attorney of record, DANIEL A. CORBfN, and announced ready for trial. Respondent, TRISHA ANN PARRJSH, wai vcd issuance and service of citation by waiver duly filed and did not otherwise appear. . Record
The making ofn record of testimony was waived by the panies with the consent of the Coun. Jurisdiction and Domicile
The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, I finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed I since the date the suit was flied. The Court finds that, at the time this suit was filed, Petitioner had I been a domiciliary ofTexas for the preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly cited.
Jury
A jury was waived, and questions of fact and of law were submitted to the Court .
..lgreement of Parries .i The Court finds that the parties haw entered into-a wriuen agreement as contained in this ! decree by vinue of having approved this decree as to both fonn and substance. To the extent permitted by law, the panics stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contair.ed in I his Final Decree at" Divorce.
i"~:-.a!. :Je-:::-!!e or ::OO'Icer;:,e ':':~Cil/'1' PARR:SH "'· 7?.:SPJi.. ;vltl PAAIH$1t Page I ·' Divorce
IT IS ORDERED AND DECREED lhal TIMOTHY PARRISH, Pelilioner, and TRJSHA ANN PARRISH, Respondenl, are divorced-and thai 1he marriage between them is dissolved on the ground ofinsupportability. Children of the Marriage The Coun finds that Petitioner and Respondent arc the parents of the following children: Name: JOSHUA ROBERT PARRISH Sex: Male Birth date: March 26, 1996 Home state: Texas Social Security number: Name: ZACHARY ALLEN PARRISH Sex: Male Birth date: September 4, 2000 Home state: Texas Social Security number: The Court finds no other children of the marriage are expected. Conservatorship The Court, havin~considered the circumstances ofthe parents and of the children, finds that the following orders are m the best interest of the children. · IT IS ORDERED that TIMOTHY PARRISH and TRJSHA ANN PARRISH are appointed Joint Managing Conservators of the following children: JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH. IT IS ORDERED that, at all times, TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights: I. the right to receive infonnation from any other conservator ofthe children concerning the health, education, and welfare of the children; 2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; 4. the right to consult with a physician, dentist, or psychologist of the children; 5. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to anend school activities; r1='1a:i. O.,cree ~f ::~vorce: -:-:!o'IQ';'HJ PARRISH •;, ":'R:SHA MN PAP.RISH Page 2 ' 7. the right!.; be designated on the children's records as a person to be notified in case of an emergency; 8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, TRJSHA ANN PARRJSH, as a parent joint managing conservator, shall have the following rights: I. the right to receive information from any otherconservatorofthe children concerning the health, education, and welfare of the children; 2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; 4. the right to consult with a physician, dentist, or psychologist of the children; S. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to attend school activilies; 7. the right to be designated on the children's records as a person to be notified in case of an emergency; 8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, TIMOTHY PARRISH and TRJSHA ANN PARRISH, as parent joint managing conservators, shall each have the following duties: I. the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and 2. the duty to inform the other conservatorofthe children ifthe conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person's r.:.~•_J :ecrveo! :)1v=r;e i~~y PAAR!SH v, :a:sHA ~~ PARR:SH Page 3
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requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVA"J:OR FAILS TO PROVIDE THIS NOTICE. IT IS ORDERED that, during his respective periods of possession, TIMOTHY PARRISH, as parent joint managing conservator, shall have the following rights and duties: I I. the duty of care, control, protection, and reasonable discipline of the children; I
2. the duty to support the children, including providing the children with clothing, food, ·I' shelter, and medical and dental care nol involving an invasive procedure; :.. 3. the right to consent for the children to medical and dental care not involving an invasive procedure; 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that, during her respective periods of possession, TRISHA ANN PARRISH, as parent joint managing conservator, shall have the following rights and duties: I. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; 3. the right to consent for the children to medical and dental care not involving an invasive procedure; and 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights and duty: I. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 3. the independent right to consent to psychiatric and psychological treatment of the children; 4. the independent ri~ht to represent the children in h.:gal action and to make other decisions of substantial legal sigmficance concerning the children; 5. the independent right to consent to marriage and to enlistment in the anned forces of the United States; ·
F~nnl Do~ree ot Dlvor~~ T:l'.O:H"/ P.UR:51-1 .,, ';'itliHA ;.."'N PARR.i:.SH Page-l
' 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian ofthe children's estates or a guardian or auorney ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. IT IS ORDERED that TRISHA ANN PARRISH, as a parent joint managing conservator, shall have the following rights and duty: l. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 2. the independent right to consent to psychiatric and psychological treatment of the children; 3. the exclusive right to receive and give receipt for periodic payments for the suppon of the children and to hold or disburse these funds for the benefit of the children; 4. the independent right to represent the children in legal action and to make other decisions of substantial legal significance concerning the children; 5. the independent right to consent to marriage and to enlistment in the armed forces of the United States; 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian of the children's estates or a guardian or allomey ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. Geographical Restriction IT IS ORDERED and THE PARTIES AGREE that a geographical restriction is in effect limiting the residence of the panies to a 100 mile radius of Bell County, Texas for five years from the entry ofthis order.
PAMISH, TIMOTHY II·IIIT.,.. AC
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Without affecting the finality of the Final Decree of Divorce or this Domestic Relations Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO ORDERED.
SIGNED on f'(uv~ /'2., 2ol'f