                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00539-CV

                                     Randall Carlton ORNDOFF,
                                              Appellant

                                                  v.

                                         Terri Lee ITALIAN,
                                               Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 04-1876-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: July 15, 2015

AFFIRMED

           Robert Carlton Orndoff appeals the trial court’s order clarifying the divorce decree from

his and Terri Italian’s second marriage. Orndoff argues (1) the trial court erred in finding the

December 2005 order was a nullity; (2) the trial court erred by granting a “clarification” of a prior

unambiguous order; (3) the trial court erred in ordering arrearages because Italian is estopped from

obtaining an arrearage judgment; (4) the trial court’s clarification order is impermissibly

retroactive; and (5) Italian’s attorney’s fees award was not supported by sufficient evidence. We

affirm.
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                       FACTUAL BACKGROUND & PROCEDURAL HISTORY

       Orndoff and Italian were first divorced on August 4, 1988. The 1988 divorce decree

awarded Italian 22.5% of Orndoff’s military retirement pay and 22.5% of all cost of living

adjustments to which Orndoff became entitled. The divorce decree provided that Italian’s portion

was to be calculated as if Orndoff retired in 1996 as an E-7 with twenty years of service. Orndoff

and Italian remarried but divorced again in March 2005 and a new divorce decree was entered. At

that time, the trial court “confirmed” Italian’s entitlement to 22.5% of Orndoff’s military

retirement benefits as set forth on page 11 of the 1988 divorce decree and ordered Orndoff to

“resume payments starting March 2005.”

       In December 2005, a hearing took place on Italian’s motion to enforce payment of her share

of Orndoff’s military retirement benefits. The trial court ordered Orndoff to pay Italian the monthly

amount of $111.71 in addition to $100 until the arrearage of $1,117.10 was paid in full.

       In July 2012, Italian filed a petition to enforce the 2005 divorce decree, alleging Orndoff

actually owed her a larger amount per month. Orndoff and Italian signed a “Stipulation by the

Parties,” which the trial court approved in January 2014. The stipulation provided, “The parties

stipulate as evidenced by their signatures below that 22.5% of the retired pay of an E7 with 20

years of service is $254.40. (not including COLAs).” The trial court issued a letter ruling dated

February 18, 2014, stating “the appropriate amount of the retired pay is $254.40,” and awarding

Italian attorney’s fees and court costs. The trial court did not order Orndoff to pay arrearages. The

letter stated the December 2005 order was unenforceable. In response, Orndoff filed a

“Clarification of Stipulation” asserting the $254.40 figure was the correct amount only “as of

January 3, 2014.” Italian did not sign the Clarification of Stipulation.




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       On April 22, 2014, the trial court signed a final clarification order and ruled that the correct

monthly amount Orndoff was to pay was $254.40, plus cost of living adjustments. It is this order

from which Orndoff appeals.

       In this court, Orndoff filed a motion to abate, which we granted to allow the trial court to

enter findings of fact and conclusions of law. The trial court did so and found the December 2005

order was unenforceable and a nullity. It also imposed a constructive trust on past arrearages.

                         ISSUES BASED ON THE DECEMBER 2005 ORDER

       In Orndoff’s first three issues, he argues the trial court erred by (1) finding the December

2005 order was a nullity; (2) granting a “clarification” of a prior unambiguous order; and (3)

ordering arrearages because Italian is estopped from challenging the December 2005 order.

       A trial court lacks jurisdiction to modify a division of property in a divorce decree. See

TEX. FAM. CODE ANN. § 9.007(b) (West 2006); Joyner v. Joyner, 352 S.W.3d 746, 749 (Tex.

App.—San Antonio 2011, no pet.). An order that modifies a division of property in a divorce

decree is void and unenforceable. See Joyner, 352 S.W.3d at 749. In its findings of fact and

conclusions of law, the trial court found the March 2005 divorce decree awarded Italian a monthly

payment of $254.40, plus cost of living adjustments, as per the parties’ stipulation. It also found

the December 2005 order required Orndoff to pay only $111.71 on a monthly basis, plus cost of

living adjustments. The trial court concluded the December 2005 order was “unenforceable and a

nullity” because it altered or changed the divorce decree’s division of property as to the amount of

Italian’s monthly share of Orndoff’s military retirement. In other words, the December 2005 order

changed Italian’s monthly award from $254.40 to $111.71.

       Orndoff asserts he stipulated the monthly payment of $254.40 was the correct amount, but

only “as of January 3, 2014.” However, the parties’ stipulation was not so limited, and the trial

court did not take any action on Orndoff’s Clarification of Stipulation or hear any evidence on the
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matter. Because the December 2005 order changed Italian’s monthly award from $254.40 to

$111.71, the December 2005 order is a modification and not a clarification. As a modification of

the division of property in Orndoff and Italian’s divorce decree, the December 2005 order is void

and unenforceable and the trial court lacked jurisdiction to enter that order. See id. at 749.

       Orndoff argues the trial court erred by clarifying the December 2005 order, a prior

unambiguous order, because Italian did not appeal that order. However, a trial court’s lack of

subject matter jurisdiction may be raised at any time. Uvalde County Hosp. Auth. v. Garcia, 452

S.W.3d 1, 7 (Tex. App.—San Antonio 2014, no pet.). Because Italian challenged the trial court’s

subject matter jurisdiction to enter the December 2005 order, Italian properly raised that challenge

to the December 2005 order in the trial court. See id. We overrule Italian’s second issue.

       Orndoff also argues the trial court erred by ordering arrearages because Italian is estopped

from challenging the December 2005 order. However, subject matter jurisdiction cannot be

conferred by estoppel. Castle & Cooke Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d

684, 687 (Tex. App.—San Antonio 2010, no pet.). Because the trial court lacked subject matter

jurisdiction to enter the December 2005 order, Italian may not be estopped from challenging it.

See id. We overrule Orndoff’s third issue and now turn to Orndoff’s fourth issue.

                                          RETROACTIVITY

       Orndoff contends the trial court erred by giving the April 22, 2014 clarification order

retroactive effect. The trial court’s clarification order did not award Italian any arrearages or hold

Orndoff in contempt. Instead, the trial court ordered Orndoff to start paying Italian what he owed

her under the 2005 divorce decree beginning from that date moving forward.

       We abated the appeal for the trial court to enter findings of fact and conclusions of law,

which were filed after the trial court’s plenary power expired. In its findings of fact and conclusions

of law, the trial court purported to impose a constructive trust on arrearages owed by Orndoff. We
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note the trial court lacked jurisdiction to impose the constructive trust on arrearages after its

plenary power expired. See Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 310

(Tex. 2000); see also Permian Oil Co. v. Smith, 129 Tex. 413, 434, 73 S.W.2d 490, 499 (1934)

(“Findings of fact are no part of a court’s judgment. They are required to be made for the purpose

of an appeal.”). However, the Family Code’s prohibition against giving a clarification order

retroactive effect is limited to preventing a trial court from enforcing the clarification order “in

such a way as to subject a party immediately to contempt.” Zeolla v. Zeolla, 15 S.W.3d 239, 242

(Tex. App.—Houston [14th Dist.] 2000, pet. denied). When the trial court ordered Orndoff to start

making monthly payments of $254.40, plus cost of living adjustments, the trial court did not

subject Orndoff immediately to contempt. Therefore, the trial court did not give its clarification

order any impermissible retroactive effect. See id. We overrule Orndoff’s fourth issue.

                                        ATTORNEY’S FEES

       Orndoff argues Italian’s attorney’s fees award of $2,651.90 is not supported by the

evidence. He contends her request for a qualified domestic relations order was frivolous, as was

the discovery pertaining to that request. Furthermore, Orndoff argues he agreed his monthly

obligation under the divorce decree was $254.40 a month and he attempted to settle the matter.

       An award of attorney’s fees must be supported by legally and factually sufficient evidence.

See City of Laredo v. Montano, 415 S.W.3d 1, 3 (Tex. App.—San Antonio 2012, no pet.). When

reviewing a legal sufficiency challenge, we review the evidence in the light most favorable to the

finding and determine whether the finding is supported by more than a mere scintilla of evidence.

City of Keller v. Wilson, 168 S.W.3d 802, 813, 822 (Tex. 2005). When reviewing a factual

sufficiency challenge, we consider and weigh all the evidence, and set aside the award only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
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       Jonathan D. Fischer, counsel for Italian, testified Italian’s attorney’s fees totaled $2,651.90.

He testified about his experience, hourly rate, and about his work on the case, which included

covering hearings on Italian’s motion to compel and special exceptions. On cross-examination,

Fischer testified Orndoff came to his office and tried to settle the matter, but explained Orndoff

told him that “$111.71 was all he was required to pay and all he was willing to pay.” Justine Daly,

counsel for Orndoff, testified Fischer made numerous legal mistakes, and drove up costs by

seeking a qualified domestic relations order. Daly attempted to ask about the necessity of Italian’s

discovery requests, but the trial court did not permit the question, ruling it was argumentative.

       Fischer’s testimony supports the trial court’s award of $2,651.90. See City of Keller, 168

S.W.3d at 813, 822. Furthermore, even considering Daly’s testimony, we cannot say the trial

court’s attorney’s fees award is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Because the trial court’s award of

attorney’s fees is supported by sufficient evidence, we overrule Orndoff’s fifth and final issue. See

Montano, 415 S.W.3d at 3.

                                           CONCLUSION

       We affirm the trial court’s judgment.

                                                       Luz Elena D. Chapa, Justice




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