                      In the
                 Court of Appeals
         Second Appellate District of Texas
                  at Fort Worth
               ___________________________
                    No. 02-19-00168-CV
               ___________________________

M.B., INDIVIDUALLY AND AS NEXT FRIEND OF I.C., Appellant

                              V.

                        S.C., Appellee



             On Appeal from the 67th District Court
                    Tarrant County, Texas
                Trial Court No. 067-285252-16


    Dissenting Memorandum Opinion by Chief Justice Sudderth
                   DISSENTING MEMORANDUM OPINION

       I would hold that the divorce court has exclusive jurisdiction over this action

and that to construe the statute as the majority has would lead to an absurd result.

       Family Code Section 9.201(a) provides that a former spouse “may file a suit” in

the divorce court. Tex. Fam. Code Ann. § 9.201(a). I agree with the majority that the

word “may” is permissive, not mandatory, language but I disagree with the majority’s

conclusion.

       The statute provides that a former spouse “may file a suit as provided by this

subchapter.” Id. (emphasis added). The subchapter in question is Subchapter C, “Post-

Decree Division of Property,” which is found in Family Code Chapter 9, “Post-

Decree Proceedings.”       See generally id. §§ 9.201–.205.   Within this subchapter,

Section 9.203(a) provides that “[i]f a court of this state failed to dispose of property

subject to division in a final decree of divorce or annulment even though the court

had jurisdiction over the spouses or over the property, the court shall divide the

property . . . .” Id. § 9.203(a) (emphasis added). In context, the phrase “the court” in

Section 9.203(a) refers to “a court of this state [that] failed to dispose of property

subject to division in a final decree of divorce.” See id.

       In other words, the filing of a suit to divide property that was not divided or

awarded to a spouse in a final decree of divorce is permitted as provided by

Chapter 9, Subchapter C of the Family Code. See id. §§ 9.201–.205. And Chapter 9,

Subchapter C of the Family Code authorizes the court that failed to dispose of

                                             2
property to do so post-decree.       See id.       Long-standing common law tenants-in-

common principles notwithstanding, when the Legislature enacted Chapter 9,

Subchapter C, it supplanted common law principles in favor of a statutory scheme.

Cf., e.g., In re S.T., 467 S.W.3d 720, 725–27 (Tex. App.—Fort Worth 2015, orig.

proceeding). On its face, this statute does not authorize any court—other than the

court that failed to dispose of the property in the first place—to dispose of property

that was otherwise subject to division in a final divorce decree.1

       The majority holds that the “dealer’s choice” result forced by its interpretation

is not an absurd one. I disagree. It would be absurd, indeed, to allow a party who hid

assets during a divorce proceeding2 to get a second bite at the apple post-divorce by

unilaterally filing in the court of his or her choice when the Legislature has provided

that the party shall receive a “just and right” division of the assets by the divorce court

exercising its jurisdiction over the case. See id. §§ 7.001, 9.203(a) (emphasis added).

The majority’s reading creates an incentive for a bad actor to hide assets pending

divorce so that he or she can later seek a more advantageous distribution through

forum-shopping.

       For these reasons, I respectfully dissent.



       1
        To the extent that this interpretation is in conflict with our earlier decision in
Huey-You v. Kimp, No. 02-16-00172-CV, 2018 WL 359633 (Tex. App.—Fort Worth
Jan. 11, 2018, pet. denied) (mem. op.), we should overrule Huey-You.
       2
       I do not mean to imply that the hiding of assets occurred here.

                                               3
                               /s/Bonnie Sudderth

                               Bonnie Sudderth
                               Chief Justice

Delivered: April 9, 2020




                           4
