                           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

                                          ------------

                          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


      2
       … 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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