      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-11-00803-CV



                                     Michael Sheldon, Appellant

                                                    v.

                                      Karen Sheldon, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
    NO. 10-0757-F425, HONORABLE MARK J. SILVERSTONE, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Michael Sheldon appeals the trial court’s judgment in a post-divorce suit for division

of property not divided by the Agreed Final Divorce Decree. In three issues, he challenges the trial

court’s exclusion of expert testimony, division of property, and award to Karen of certain property

alleged to be his separate property. For the reasons that follow, we affirm the trial court’s judgment.


                       FACTUAL AND PROCEDURAL BACKGROUND

                Michael and Karen1 were married in 1986.2 Two daughters were born during the

marriage, but both were over 18 years of age when Karen filed for divorce in 2010. Through

discussions based in part on a spreadsheet drafted by Michael outlining the marital assets, Michael



       1
           We refer to the parties by their first names for clarity.
       2
           The facts stated herein are taken from the record on appeal. We accept as true the facts
stated in the parties’ briefs unless another party contradicts them. See Tex. R. App. P. 38.1(g).
and Karen reached an oral agreement concerning the division of marital property and obtained an

Agreed Final Divorce Decree. In relevant part, the decree awarded each party a 50% interest in

Michael’s employee savings plan, identified as “the Emerson Employee Savings Investment Plan,”

and the furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment

in his or her possession. In addition, the decree awarded the marital home to Michael. In a separate

agreement not incorporated into the decree, Michael agreed to pay Karen $320,411.64 in cash and

a promissory note for approximately $108,000. Michael made the payments as agreed, and Karen

applied a portion of the cash payment to the purchase of a new home. Neither party appealed the

divorce decree.


Suit for Post-divorce Division of Property Filed

               In the process of obtaining a Qualified Domestic Relations Order (QDRO)

recognizing Karen’s right to receive a portion of Michael’s benefits payable under the employee

savings plan, see I.R.C. § 414(p); 29 U.S.C. § 1056(d)(3)(B)(i), Karen discovered that Michael had

an additional employer pension plan, identified as “the Emerson Electric Co. Retirement Plan for

Salaried Employees of Fisher Controls” (the pension plan), valued at approximately $500,000.

Karen sought a second QDRO pertaining to the pension plan and filed suit seeking a post-divorce

division of the benefits under the pension plan. See Tex. Fam. Code § 9.201(either former spouse

may file suit to divide property not divided in divorce decree). Disputes arose between the parties,

and Karen amended her petition to request division of additional property, including the parties’

antique cars, lawn tools and equipment, a “college fund” designated for the parties’ daughters,

proceeds from a pending lawsuit, a coin collection, a 16-foot trailer, horses, and antique furniture

                                                 2
“to be designated for the parties’ children.” Michael filed a counter-petition seeking division of

additional marital property, including Karen’s financial account containing the $320,411.64 cash

payment, the home Karen purchased using those funds, horses and a horse trailer, proceeds from

loans to Karen’s sister and Michael’s brother, and the college fund. Michael also sought to have

declared as his separate property the antique cars, the lawn tools and equipment, any proceeds from

the pending lawsuit, the coin collection, the 16-foot trailer, and the antique furniture. Michael

subsequently filed a motion for continuance and request for an appraisal of the marital home that had

been awarded to him in the divorce decree. In the motion, Michael stated that Karen claimed the

marital home had a value of $550,000 but that he had obtained an appraisal valuing the home as of

the date of the divorce at $457,000. He requested that the court appoint an appraiser to appraise the

home or accept his current appraisal of $457,000 as the value of the home. Immediately prior to the

final hearing, the trial court denied Michael’s motion for continuance and request for appraisal.


Final Hearing

                At the final hearing, the trial court heard the testimony of Karen and Michael

concerning their agreement that was incorporated into the divorce decree and the assets they sought

to be divided. Karen testified that she and Michael had an agreement to divide the marital assets and

offered into evidence what she stated was the final version of the spreadsheet Michael prepared

outlining their assets. The spreadsheet listed Michael’s cash assets, Karen’s cash assets, and joint

assets to be divided. There was a separate listing for the college fund. The marital home was valued

at $550,000, including a tractor valued at $10,000. Three antique cars were listed, and their values




                                                 3
were followed by question marks.3 There was a listing for “horse stuff,” but there was no stated

value. There was a listing for furniture with a stated value of $10,000 followed by a question mark,

but there was no listing for antique furniture. There were no listings for lawn equipment and tools,

any pending lawsuit proceeds, or loans to family members.

                Karen testified that at the time the divorce decree was signed, she was living in the

marital home, Michael was living in an apartment, and the lawn equipment and tools, the antique

cars, “everything” was in her possession. She stated that for her interest in the home, she received

cash and other items. She testified as to the parties’ agreed value for the antique cars and the parties’

agreement and her request to the court as to the division of the other assets. She testified that she

hoped that the horses and horse trailer would “certainly [go to their] daughters” and that the antique

furniture “eventually, hopefully, will go to my daughters.” On cross-examination, Karen disputed

certain values Michael assigned to assets divided in the divorce decree and was unable to place

values on some of the previously-divided assets.

                Concerning the value of the marital home, Karen referred to the spreadsheet and

testified that she and Michael had agreed on a value of $550,000. She offered into evidence emails

from a realtor offering to put the house on the market for $600,000–640,000, from a second realtor

stating the home could be “competitively priced in the $550–575,000 range,” and from Michael

referring to a value of “$560,000 or $600,000.” Karen testified that Michael had expressed an

opinion that the home was worth $1.2 million, revised to $640,000 after they decided it would go




        3
         Two of the cars were valued at $30,000 and $15,000, but the value of the third car is
unreadable in the record.

                                                   4
to him. She testified that another realtor had valued the house at close to the tax appraisal value,

which was $404,000, but indicated it would increase to $500,000 within a few years, and that the

house was insured for approximately $300,000 because Michael “didn’t like to pay insurance.”

               Michael testified that he and Karen “could never come to an agreement,” that on a

number of occasions, he suggested they sell all of their assets and split the proceeds, and that he

believed their assets should be split 50–50. He also testified that he was awarded the lawn

equipment and tools under the provision in the divorce decree that each party was awarded the

property in his or her possession and was awarded the antique cars pursuant to the agreement with

his wife. On cross-examination, Michael agreed that the divorce decree awarded each party the

property in his or her possession and that the lawn equipment and tools and the antique cars were

in Karen’s possession at the time of the divorce.

               Michael also attempted to offer the testimony of an appraiser who had appraised the

home two months prior to the hearing, but the trial court sustained Karen’s objection to the

admission of new evidence of the value of an asset previously divided in the divorce decree. The

trial court admitted the appraisal valuing the home at $457,000 “as of July 15, 2010” as a bill

of proof.


Post-hearing Matters

               Following the final hearing, the trial court issued a letter ruling. Karen filed a motion

to enter judgment and Michael filed a “Motion to Fix Amount of Security.” At a hearing on both

motions, the trial court admitted an appraiser’s testimony as to the values of the antique cars,

modified its letter ruling, and rendered judgment valuing the antique cars at $65,250, awarding them

                                                    5
to Michael, and ordering Michael to pay Karen one-half of the appraised value. The judgment

awarded each party 50% of the pension plan benefits, the employee savings plan benefits, the college

fund, the lawn equipment and tools, and the community property interest in the pending lawsuit and

the monies previously distributed to each party from the marital bank accounts, and any assets

purchased with such funds, including the house Karen purchased. The judgment also awarded

Michael any proceeds from the loan to his brother and the 16-foot trailer, and confirmed the coin

collection as his separate property. Karen was awarded any proceeds from the loan to her sister, and

the horses, the horse trailer, and the antique furniture “for the benefit of the parties’ children.”

                Michael requested, and the trial court entered, findings of fact and conclusions of law.

Michael filed a motion for new trial and alternative motion to modify judgment, which the trial court

denied. This appeal followed.


                                    STANDARD OF REVIEW

                Michael challenges the trial court’s division of previously undivided property. In a

post-divorce suit to divide marital property, the trial court must divide the property in a manner it

deems just and right, having due regard for the rights of the parties and any children of the marriage.

Tex. Fam Code § 9.203; Brown v. Brown, 236 S.W.3d 343, 347 (Tex. App.—Houston [1st Dist.]

2007, no pet.). Courts have broad discretion in dividing the marital estate, and we presume the trial

court properly exercised its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Bell

v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). Under an abuse of discretion standard in a family law case,

legal and factual insufficiency are not independent grounds for reversal but are instead

relevant factors in assessing whether the trial court abused its discretion. Zeifman v. Michels,

                                                   6
212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). An appellate court will correct the trial

court’s division of marital property only when a clear abuse of discretion has been established.

Murff, 615 S.W.2d at 698; Bell, 513 S.W.2d at 22. A clear abuse of discretion is shown when the

division of the property is manifestly unjust. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).

The party challenging the division of property has the burden to show that it was not just and right.

Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied); Holmes v. Holmes,

No. 03-08-00791-CV, 2010 Tex. App. LEXIS 8156, at *23 (Tex. App.—Austin Oct. 5, 2010, no

pet.) (mem. op.).

               Michael also challenges the trial court’s exclusion of expert testimony. We review

the trial court’s exclusion of evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575

(Tex. 2005) (per curiam). A trial court abuses its discretion when it makes a decision that is arbitrary

or unreasonable or that is without reference to any guiding rules and principles.              Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We must uphold the district

court’s evidentiary ruling if there is any legitimate basis for it. See Owens-Corning Fiberglass Corp.

v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Additionally, Michael complains that the trial court

erred in awarding his separate property to Karen. The trial court’s broad discretion in dividing

marital property does not extend to awarding the separate property of one spouse to the other.

Shanks v. Treadway, 110 S.W.3d 444, 448 (Tex. 2003) (citing Eggemeyer v. Eggemeyer,

554 S.W.2d 137, 142 (Tex. 1977)). We must also construe the divorce decree. An agreed divorce

decree is controlled by rules of construction applicable to ordinary contracts. Allen v. Allen,

717 S.W.2d 311, 313 (Tex. 1986); Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex. App.—Austin



                                                   7
1995, no writ). Whether a divorce decree is ambiguous is a question of law, and we must adhere to

the literal language of an unambiguous decree. Hagen v. Hagen, 282 S.W.3d 899, 901–02

(Tex. 2009).


                                           DISCUSSION

Exclusion of Appraiser’s Testimony

                In his first issue, Michael argues that the trial court erred in excluding expert

testimony regarding the appraised value of the marital home.4 The trial court excluded the

appraiser’s testimony, sustaining Karen’s objection on the ground that any determination of a new

value for the marital home was barred by res judicata.5 Res judicata bars the relitigation of a claim

or cause of action that has been finally adjudicated or that the claimant could have raised in the prior

suit. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 628–29, 631 (Tex. 1992). Michael argues that res judicata does not apply

       4
         Karen contends that Michael has waived this issue by failing to “particularize” its relevance
in making his offer of proof. The record shows that Michael offered the appraiser’s testimony on
the ground that the value of the property awarded in the divorce decree was a relevant factor in
determining a just and right division of property not divided in the decree, and he asserted error in
the exclusion of the appraiser’s testimony in his motion for new trial. On this record, we do not
find waiver.
       5
            Citing Texas Rule of Procedure 94, Michael argues that Karen waived her res judicata
objection to the appraiser’s testimony by failing to plead it as an affirmative defense. See Tex. R.
Civ. P. 94. However, Rule 94 lists affirmative defenses that must be set forth “[i]n pleading to a
preceding pleading.” Id. Here, Michael did not assert the issue of a new value in a pleading but
raised it for the first time at the final hearing. Therefore, there was no “preceding pleading” to which
Karen was required to assert an affirmative defense. In addition, Michael did not object to Karen’s
oral assertion of res judicata in the trial court and has therefore waived this argument on appeal. See
Tex. R. App. P. 33.1; Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.)
(affirmative defense not waived where party orally raised it during argument to court and opposing
party did not object to lack of pleading).

                                                   8
to a post-divorce property division when the divorce decree failed to dispose of a marital asset.

While that argument is correct, see Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex. 1987); Eddy

v. Eddy, 710 S.W.2d 783, 785 (Tex. App.—Austin 1986, writ ref’d n.r.e.), it does not apply here

where the divorce decree expressly disposed of the asset in question, the marital home. Michael also

argues that res judicata does not apply because he is not seeking to relitigate the division of assets

but seeks only to establish the value of the home because in issuing the divorce decree, the trial court

made no finding of fact concerning the value of the home. He contends that because the trial court

is permitted to consider how the property was divided in the divorce decree in making a just and

right division of the undivided property, the trial court must establish a value for the marital home

and erred in excluding the appraiser’s testimony as to its value.

                However, although some appellate courts have held that a trial court is permitted to

consider the prior division of property as one of the factors in determining a just and right division

of undivided property, see Forgason v. Forgason, 911 S.W.2d 893, 896 (Tex. App.—Amarillo 1995,

writ denied); Haynes v. Clark, 776 S.W.2d 784, 788 (Tex. App.—Corpus Christi 1989, writ denied),

Michael has cited no authority, and we have found none, for the proposition that a trial court must

re-value a previously divided asset when there is evidence of the value upon which the parties’ prior

agreed division was based. Michael cites Forgason for the rule that a just and right post-divorce

division of property requires reappraisal of the “ultimate division” of property. See 911 S.W.2d at

896. We find Michael’s reliance on Forgason in this context misplaced. In Forgason, neither party

offered testimony as to the value of the assets in question. Id. at 897. The court concluded that




                                                   9
“[w]ithout evidence reflecting the value of the property previously divided, we cannot determine

whether the division here pertinent was manifestly unjust . . . .” Id.

               In contrast, in this post-divorce proceeding, Karen offered undisputed email evidence

indicating the value range discussed by the parties and a spreadsheet prepared primarily by Michael

indicating the agreed value of the home. She also testified as to the value for the home to which she

and Michael agreed, which fell within the value range discussed.6 In a bench trial, the trial court is

the sole judge of the credibility of the witnesses and the weight to be given their testimony and may

believe one witness, disbelieve others, and resolve inconsistencies in any witness’s testimony.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Seasha Pools, Inc. v. Hardister,

391 S.W.3d 635, 639 (Tex. App.—Austin 2012, no pet.). As the sole judge of the credibility of the

witnesses and the weight to be given to their testimony, the trial court could have reasonably

believed Karen, especially in light of the undisputed documentary evidence. See McGalliard,

722 S.W.2d at 696; Seasha Pools, 391 S.W.3d at 639.

               Further, Michael agreed to the divorce decree awarding the marital home and did not

raise the issue of its value during the divorce proceeding. Had he disputed the values placed on the

home by the realtors and discussed by the parties or the agreed-to value, he could have sought an

appraisal before the entry of the final decree or sought relief in post-judgment proceedings and direct




       6
          Michael argues that Karen “opened the door” to expert appraisal testimony by offering
evidence and giving testimony concerning the home’s value. However, Michael failed to assert this
argument or object to Karen’s evidence or testimony in the trial court and has therefore waived it.
See Tex. R. App. P. 33.1. Further, Karen did not offer the evidence and testimony to establish the
value of the home but to prove that the parties had obtained valuations, discussed them, and agreed
on a value.

                                                  10
appeal of the divorce decree. On this record, we cannot conclude that the trial court had no

legitimate basis for excluding the testimony of the appraiser. See Malone, 972 S.W.2d 35, 43. We

overrule Michael’s first issue.


Just and Right Division of Previously Undivided Property

               In his second issue, Michael contends that the trial court abused its discretion because,

in the absence of valuations for all the marital assets, the trial court lacked sufficient evidence to

make a just and right division of the property, and the division of the previously undivided property

was therefore not supported by legally and factually sufficient evidence. Karen first contends that

Michael has not properly presented this issue as a ground for reversal because he raises a challenge

to the sufficiency of the evidence rather than an argument that the trial court abused its discretion,

which is the standard in a family law case. We do not find this argument persuasive. Although

Michael states his issue in terms of sufficiency of the evidence, he argues that the trial court abused

its discretion by dividing the property without legally and factually sufficient evidence. We therefore

conclude that Michael has properly asserted an abuse of discretion complaint. See Tex. R. App. P.

38.9; Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (courts are to construe rules on briefing

liberally and consider parties’ arguments and not merely wording of issues).

               Karen also argues that Michael has failed to preserve this issue for appeal. Having

construed Michael’s issue as a complaint that the trial court abused its discretion, we agree. To

preserve a complaint for appellate review, including a complaint that the trial court abused its

discretion, a party must have presented to the trial court a timely request, objection, or motion. Tex.

R. Civ. P. 33.1; Knight v. Knight, 301 S.W.3d 723, 730 (Tex. App.—Houston [14th Dist.] 2009, no

                                                  11
pet.) (wife waived complaints that trial court’s valuation of certain asset and refusal to reimburse her

for loan proceeds were abuse of discretion by failing to present complaints to trial court); In re

A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, no pet.) (father waived complaint that trial

court abused discretion in ordering sanctions where he did not object to announcement of ruling or

file motion for new trial). Although Michael raised the issue of the valuation of the marital home

at the final hearing and in his motion for new trial, in neither—nor in any other request, objection,

or motion—did he complain of the lack of evidence as to the values of any other assets. Having

failed to raise this complaint by timely objection or motion, Michael has waived this issue. See Tex.

R. App. P. 33.1.

                Even if Michael had not waived this issue, we would conclude that he has failed to

meet his burden, as the party challenging the trial court’s property division, of showing it was

manifestly unfair and the trial court abused its discretion. See Pletcher, 9 S.W.3d at 446; Holmes,

2010 Tex. App. LEXIS 8156, at *23. Michael argues that a just and right division required probative

evidence establishing the value of every community asset. Thus, he contends, because Karen

produced no evidence of the values of the Harley-Davidson motorcycle, Tahoe, pickups, antique

furniture, and lawn equipment and tools and was unsure of the value of the horses and horse trailer,

the trial court lacked sufficient information to make a just and right division and abused its discretion

in dividing the property.

                However, Michael also failed to present evidence of the values of the antique

furniture and pickups, as well as other assets the trial court divided—the 16-foot trailer, community




                                                   12
expenses related to the pending lawsuit, and loan to his brother.7 “[W]hen a party does not provide

values for property to be divided, that party may not complain on appeal that the trial court lacked

sufficient information to properly divide property.” Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex.

App.—Dallas 2003, no pet.); see Aduli v. Aduli, 368 S.W.3d 805, 820 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (“[E]ach party in a divorce proceeding has a burden to present sufficient

evidence of the value of the community estate to enable the trial court to make a just and right

division.”); Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.] 1992, no writ)

(“It is the responsibility of the parties to provide the trial judge with a basis upon which to make the

division.”). Having failed to present evidence of assets to be divided, Michael cannot now complain

that the trial court lacked sufficient information to divide the marital property. We overrule

Michael’s second issue.8


Division of Antique Furniture

                In his third issue, Michael argues that the trial court erred in awarding the antique

furniture to Karen. Michael contends that Karen introduced evidence that conclusively proves that

the antique furniture is his separate property and that the trial court could not divide his separate



       7
          Michael testified only that he considered the loan to Karen’s sister and the loan to his
brother “a wash.”
       8
          Michael also argues that the trial court could not make a just and right division in the
absence of probative evidence establishing the value of the marital home and that the trial court’s
exclusion of the testimony of the appraiser resulted in a manifestly unfair division. As we have
already concluded, the trial court had sufficient evidence of the prior agreed-to value for the marital
home and did not abuse its discretion in excluding the appraiser’s testimony. We therefore also
conclude that the exclusion of the appraiser’s testimony did not preclude a just and right division of
the property. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).

                                                  13
property or transfer it from him to Karen. See Shanks, 110 S.W.3d at 448 (“Texas law prohibits

courts from divesting spouses of their separate property.”). However, “res judicata applies to a final

divorce decree to the same extent it applies to any other final judgment[,]” and “[i]f an appeal is not

timely perfected from the divorce decree, res judicata bars a subsequent collateral attack.” Baxter

v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). “A judgment finalizing a divorce and dividing marital

property bars relitigation of the property division even if the decree incorrectly characterizes or

divides the property.” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam); see

Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (trial court has jurisdiction to characterize

community property even if it does so incorrectly and where trial court incorrectly characterized all

pension benefits as community property, judgment was voidable if properly appealed, but absent

appeal, became final and could not be collaterally attacked).

               Errors other than lack of jurisdiction render a judgment merely voidable, and it must

be attacked within the prescribed time limits. Hagen, 282 S.W.3d at 902; Baxter, 794 S.W.2d at

762. A post-divorce suit to divide undivided marital property is a new suit. See Tex. Fam. Code

§ 9.201. An appeal from a post-divorce suit to divide property may not collaterally attack an

unappealed divorce decree. See Reiss, 118 S.W.3d at 443 (having failed to appeal divorce decree,

husband could not challenge divestiture of alleged separate property in appeal from order entering

QDRO); Coleman v. Coleman, No. 01-09-00615-CV, 2010 Tex. App. LEXIS 10166, at *4 (Tex.

App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.) (in appeal from order on motion to

enforce, husband could not collaterally attack unappealed divorce decree). Further, parties are

entitled to make agreements as to a division of property even if the trial court would be unable to



                                                  14
order the same division. Baxter, 794 S.W.2d at 763. When the parties agree to a division, that

agreement will be enforced, and the subsequent judgment binds the parties. Id.

               Here, the divorce decree made no express reference to the antique furniture but

awarded each party the “household furniture [and] furnishings” in his or her possession.9 Karen

testified, and Michael did not dispute, that at the time of the divorce, she was living in the marital

home, Michael was living in an apartment, and “all the items in terms of the lawn equipment, the

tools, the cars, everything” was in her possession. (Emphasis added.) Thus, the uncontroverted

evidence established that the antique furniture was in Karen’s possession at the time of the divorce.

Under the unambiguous terms of the agreed divorce decree and the undisputed facts, the antique

furniture was awarded to Karen by the divorce decree.10 See Hagen, 282 S.W.3d at 901. Even

assuming that the antique furniture was Michael’s separate property and the divorce decree

incorrectly characterized and divided his separate property, Michael, having failed to appeal the

       9
         Although Michael contends the parties’ agreement to divide the marital estate on a “50-50
basis” was incorporated into the divorce decree and Karen testified that she believed the division
should be “equal,” they offered conflicting views of the values of the assets and which assets were
awarded to each party. We must rely on the unambiguous language of the final agreed divorce
decree. See Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009).
       10
           Although Karen sought post-divorce division of the antique furniture as property that had
not been divided, and the parties argue this issue as one decided in the suit for post-divorce division,
the trial court’s award in the post-divorce proceeding was merely redundant of the unambiguous
divorce decree. See id. at 902; Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex. App.—Austin 1995,
no writ). To the extent Karen sought an award of the antique furniture, the proceeding is more
accurately characterized as an action to enforce or assist in the implementation of the property
division than a suit for post-divorce division of undivided property. See Tex. Fam. Code
§ 9.006 (enforcement of division of property); In re Kalathil, No. 14-10-00933-CV,
2010 Tex. App. LEXIS 8051, at *3–4 (Tex. App.—Houston [14th Dist.] Oct. 5. 2010, orig.
proceeding) (mem. op.) (characterizing wife’s suit for post-divorce division of previously
undisclosed assets as action to enforce division of property agreed to in mediated settlement
agreement and divorce decree).

                                                  15
divorce decree, cannot now collaterally attack the decree. See Pearson, 332 S.W.3d at 363; Hagen,

282 S.W.3d at 902; Reiss, 118 S.W.3d at 443. We overrule Michael’s third issue.11


                                          CONCLUSION

               Having overruled Michael’s issues, we affirm the trial court’s judgment.



                                               _______________________________________
                                               Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: November 22, 2013




       11
            Karen has filed a motion for leave to file surreply and proposed surreply brief. In the
surreply, Karen argues that Michael has waived the argument that Karen lacks standing to seek the
antique furniture for the children, who are over 18 years of age and did not intervene, because he did
not raise it until his reply brief. See Tex. R. App. P. 38.1. The motion for leave to file surreply is
granted. However, we note that even if Michael had asserted this argument in his opening brief, it
would not have succeeded. The divorce decree awarded the furniture to Karen without reference to
the children. Likewise, despite the language “for the benefit of the parties’ children,” the judgment
for post-divorce division of property awards the antique furniture to Karen, not to the children.

                                                 16
