                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00604-CV

                                            Cary WILKE,
                                              Appellant

                                                  v.
                                Vickie Phillips a/k/a Vickie Phillips-
                           Vickie PHILLIPS a/k/a Vickie Phillips-Wilke,
                                              Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                        Trial Court No. 8347
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 13, 2013

REVERSE AND REMAND

           On July 21, 1997, the trial court signed the Final Decree of Divorce between appellant,

Cary Wilke, and appellee, Vickie Phillips. The decree awarded appellee the house located at 104

West Mulberry, Fredericksburg, Texas. The decree also awarded appellant “[t]he sum of $40,000

to be paid by [appellee] when the real property at 104 West Mulberry, Fredericksburg, Texas is

sold from the proceeds of the sale. Such sale shall be at the sole discretion of [appellee].” Fifteen

years have passed and appellee has not paid the $40,000 to appellant because she has not sold the

house and continues to reside in it. Appellant filed suit on January 6, 2012, seeking appointment
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of a receiver and enforcement of the divorce decree through a petition for enforcement of property

division by contempt. Appellee responded by filing her answer and a motion to dismiss. The trial

court granted appellee’s motion to dismiss. We reverse and remand.

                                  STANDARD OF REVIEW

       We review the trial court’s ruling on a motion to dismiss under an abuse-of-discretion

standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).

To determine whether the trial court abused its discretion, we must decide whether the trial court

acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985). Even if a reviewing court would have decided the issue

differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and

unreasonable. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

                                           ANALYSIS

       In his first issue, appellant contends the trial court erred in granting appellee’s motion to

dismiss. In its order granting appellee’s motion to dismiss, the trial court stated “[appellee’s]

Petition for Enforcement of Property Division by Contempt is hereby dismissed in accordance

with Texas Family Code [section] 9.003.” In its Findings of Fact and Conclusions of Law, the

trial court found appellant’s “suit/claims/motions” were “barred under the provisions of [s]ection

9.0[0]3 (a) and/or (b) of the Texas Family Code.” Section 9.003 provides:

       (a) A suit to enforce the division of tangible personal property in existence at the
       time of the decree of divorce or annulment must be filed before the second
       anniversary of the date the decree was signed or becomes final after appeal,
       whichever date is later, or the suit is barred.

       (b) A suit to enforce the division of future property not in existence at the time of
       the original decree must be filed before the second anniversary of the date the right
       to the property matures or accrues or the decree becomes final, whichever date is
       later, or the suit is barred.

TEX. FAM. CODE ANN. § 9.003 (West 2006).
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       Appellant argues section 9.003(a) is not applicable here because there was no “tangible

personal property” in existence on July 21, 1997. Appellee responds the suit is barred under

section 9.003(a) “if the award is perceived as tangible personal property.” Both appellant and

appellee contend section 9.003(b) is not applicable because appellant’s right to the $40,000 has

yet to accrue because it is contingent upon the sale of the house, which has yet to occur.

       “Tangible personal property” is not defined in the Texas Family Code. The Texas Tax

Code, however, defines it as “personal property that can be seen, weighed, measured, felt, or

touched or that is perceptible to the senses in any other manner . . . .” TEX. TAX CODE ANN.

§ 151.009 (West 2008). Although the $40,000 awarded to appellant came from a specific source—

the future sale of the house at 104 West Mulberry—it was a monetary award. The divorce decree

did not award appellant an interest in the house itself. Although “goods” are considered tangible

personal property, see TEX. FIN. CODE ANN. § 371.003 (West 2006), money is not considered a

“good” or “tangible chattel,” but is instead “a currency of exchange that enables the holder to

acquire goods.” Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 174 (Tex. 1980). We conclude

the $40,000 monetary award does not constitute tangible personal property under section 9.003(a).

See Gentile v. Gentile, No. 13-04-167-CV, 2007 WL 271144, at *1 (Tex. App.—Corpus Christi

2007, pet. denied) (mem. op.) (“Because cash is intangible property, rather than tangible personal

property, the two-year limitations period in section 9.003(a) is inapplicable.”); see also Ford v.

Ford, No. 14-99-00246-CV, 2000 WL 1262469, at *2 (Tex. App.—Houston [14th Dist.] 2000, no

pet.) (mem. op.) (holding section 9.003 inapplicable to monetary award).

       Additionally, even if an award of money were considered tangible personal property, it

would not be considered “in existence” at the time the divorce decree was signed because the

divorce decree specifies the $40,000 is to be paid from the “proceeds” of the sale of the house.

“Proceeds” are not considered to be in existence until after disposition of the property occurs. See
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Chavez v. Chavez, 12 S.W.3d 563, 564 (Tex. App.—San Antonio 1999, no pet.) (holding proceeds

from sale of stock constituted future property not in existence at time of divorce decree).

Accordingly, we conclude appellant’s $40,000 award constituted future property not in existence

at the time the divorce decree was signed. As a result, section 9.003(a) does not apply in this case.

       With respect to section 9.003(b), a suit to enforce the division of future property must be

filed within two years “of the date the right to the property matures or accrues . . . or the suit is

barred.” TEX. FAM. CODE § 9.003(b) (emphasis added). Here, the issue is when appellant’s cause

of action would accrue. The divorce decree provides appellant is to receive $40,000 from the

proceeds of the sale of the house, and that such sale is at the “sole discretion” of appellee. The

decree provides no date by which the sale was to occur.

       Appellant and appellee both cite to Chavez in support of their arguments that section

9.003(b) does not apply. The circumstances in Chavez involved the proceeds of the sale of stock.

Chavez, 12 S.W.3d at 564. Like the decree in this case, Chavez’s decree did not specify when the

sale of the stock was to occur. Id. This court recognized Chavez’s right to the proceeds was

subject to a condition precedent that the stock must first be sold. See id. Similarly, appellant’s

right to the proceeds of the sale of the house is also subject to the condition precedent that the

house must first be sold. Only upon the sale of the house will appellant’s right to the monetary

award mature or accrue. Thus, we agree with appellant and appellee that section 9.003(b) does

not apply in this case.

       Because section 9.003 does not apply, the trial court erred in granting appellee’s motion to

dismiss. Therefore, we reverse the trial court’s order of dismissal.

       In appellant’s Petition for Enforcement of Property Division by Contempt, he alleged as

follows:



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         The understanding of [appellant] was the payment of the $40,000, a percentage of
         the $86,387.99 of economic contribution from [appellant’s] separate property
         would be paid shortly after the divorce. Further, the delay in payment of the
         $40,000 by [appellee] was provided to allow [appellee] to seek refinancing or to
         pay off the first mortgage not to indefinitely delay the payment.

         Since the divorce was final, [appellee] paid off the first mortgage on 104 West
         Mulberry, Fredericksburg, Texas. This is evidence[d] by the execution of release
         of lien executed August 10, 2006 and filed of record September 22, 2006 by
         American Bank of Texas.

         [Appellee] has made no effort to satisfy the $40,000 award due [appellant].
         [Appellee] has made no contact and taken no action that [appellant] is aware of
         toward satisfaction of the debt.

Among other things, appellant asked the trial court to enter a “clarifying order more clearly

specifying the duties imposed on [appellee] and giving [appellee] a reasonable time within which

to comply.” In his Motion for Appointment of Receiver, appellant contended he and appellee

could not agree on the terms of sale of the property, and unless a receiver was appointed, he would

suffer irreparable harm in addition to losses already incurred. The appellee responds that the

divorce decree provides the sale of the house is “in her sole discretion.” Because the trial court

erred in dismissing the case pursuant to section 9.003, we must remand this case for consideration

of the merits of appellant’s request for relief. 1

                                                 CONCLUSION

         We reverse the trial court’s order granting the motion to dismiss and remand the case to

the trial court for further proceedings.


                                                           Sandee Bryan Marion, Justice




1
 In issues two and three, appellant raises issues regarding the merits of his underlying claim. As stated, these issues
are for the trial court to consider upon remand. Therefore, we do not address them on appeal. See TEX. R. APP. P.
47.1.


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