                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                  §
  HECTOR GOMEZ,                                                   No. 08-18-00136-CV
                                                  §
                                    Appellant,                       Appeal from the
  v.                                              §
                                                                   383rd District Court
  SUSANA GOMEZ,                                   §
                                                                of El Paso County, Texas
                                     Appellee.    §
                                                                  (TC# 2011-CM-3393)
                                                  §

                                         OPINION

       In this dispute over the division of retirement funds in a divorce, Appellant Hector Gomez

challenges a money judgment entered against him and in favor of his ex-wife, Appellee Susana

Gomez. Their divorce decree had divided two retirement accounts held in Hector’s name, but

while the divorce was pending and in violation of a court order, Hector withdrew and spent all of

the retirement funds. Susana filed suit to enforce the property division, TEX.FAM.CODE ANN.

§§ 9.001-.014, and she also alleged fraud on the community, see id. § 7.009. The trial court entered

judgment based on both grounds alleged by Susana, and Hector challenges each on appeal.

       We overrule each of Hector’s three issues relating to Susana’s enforcement action. The

judgment did not impermissibly alter or change the substantive division of community property in

the divorce decree, it was not precluded as a matter of res judicata, and there was no abuse of
discretion in the determination of the amount of damages awarded. Because the judgment is valid

as enforcement of the divorce decree, we need not separately analyze Hector’s challenges to the

judgment based on the allegations of fraud, and accordingly we affirm.

                                           Background

       Susana Gomez filed for divorce from her then-husband, Hector. It is undisputed that in the

course of the divorce proceedings, Hector submitted an inventory and appraisement, which was

subsequently amended. Both inventories referenced two retirement accounts held in Hector’s

name and administered by his employer, FedEx. The inventories did not specify the amount of

funds held in the retirement accounts. It is further undisputed that Hector and Susana were ordered

to preserve their assets pending the conclusion of the divorce. Yet without informing the trial court

or Susana, Hector closed one of his FedEx retirement accounts in September 2012, and he closed

the other one in October 2012. In each case, the funds were transferred directly to his personal

account and then spent on living expenses.

       In the final divorce decree, the trial court awarded to Susana 50% of the two FedEx

retirement accounts, together with any interest, dividends, gains, or losses on those amounts arising

since the date of their marriage, as would be more particularly defined in a subsequent qualified

domestic relations order. The trial court later issued two QDROs, informing the plans’ trustees

that Susana was entitled to receive 50% of Hector’s accrued benefit under each plan. After the

QDROs were filed with the plans’ trustees, Susana learned that Hector had withdrawn all of the

funds from the retirement accounts.

       Susana then filed a petition for enforcement of the trial court’s property division. She

alleged that Hector had withdrawn all funds from the retirement accounts, and as a result delivery

of her 50% interest in the retirement plans was no longer an adequate remedy. She asked the trial



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court to reduce her award to a money judgment. TEX.FAM.CODE ANN. § 9.010(a). The petition

also alleged that Hector’s depletion of the retirement accounts constituted actual or constructive

fraud. See id. § 7.009(b).

       During the enforcement hearing, Hector testified that he had withdrawn approximately

$75,000 from his retirement accounts, admitting that he had not informed Susana or any trial judge

of his actions and that he had not transferred any of the retirement funds to Susana. Due to being

unemployed, he spent all of the withdrawn funds on rent, medical expenses, and other living

expenses.

       Hector’s 2012 federal tax return, filed as a married individual filing separately, covered a

period while the divorce was pending and reported pension income of $114,127. Hector testified

that he did not prepare the document, he did not think the reported pension income was accurate,

and he asserted that he did not “take out that much.” However, he admitted that he had never

amended the return to correct the amount of pension income reported.

       A 2011 quarterly statement for one of the retirement accounts was entered into evidence,

and it showed an account balance of $90,140.38. In sworn answers to interrogatories, Hector

stated that in September 2012 he closed one FedEx retirement account and withdrew $65,839.13,

and in October 2012 he closed the other FedEx retirement account and withdrew $8,986.97. Those

funds were deposited directly into Hector’s bank account.

       Susana testified that while married to Hector she reviewed documents relating to the

retirement accounts and discussed them with him. She said she knew that one of the retirement

accounts had a balance of $90,000 and the other had a balance of $60,000. She confirmed that she

never received any of the retirement account funds that the trial court had awarded to her.




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       At the conclusion of the enforcement hearing, the trial court declared that it had jurisdiction

over the parties and the dispute, found in favor of Susana on her enforcement and fraud claims,

and awarded to Susana a money judgment in the amount of $57,063.50, pre- and post-judgment

interest, and attorney’s fees. The appellate record does not reflect any findings of fact or

conclusions of law in connection with the judgment. See TEX.R.CIV.P. 296. Hector filed a notice

of appeal.

                                             Analysis

       Hector challenges the judgment as an enforcement of the divorce decree’s division of

property on three distinct grounds. First, he contends that because there were no funds remaining

in the retirement accounts when the trial court awarded half of those accounts to Susana, the

judgment improperly altered the substantive division of property as provided in the divorce decree.

Second, he argues that the enforcement action is barred by res judicata. Finally, he submits that

the amount of damages awarded was not supported by legally sufficient evidence.

       A trial court that rendered a divorce decree retains power to enforce the decree’s property

division. TEX.FAM.CODE ANN. §§ 9.002, 9.006(a); Everett v. Everett, 421 S.W.3d 918, 920

(Tex.App.—El Paso 2014, no pet.). The ruling on a post-divorce motion for enforcement of a

divorce decree is generally reviewed for abuse of discretion. Everett, 421 S.W.3d at 920. A trial

court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to any

guiding rules or principles, or when it erroneously exercises its power by making a choice outside

the range of choices permitted by law. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985); Everett, 421 S.W.3d at 920.




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I.     Limitation on power of court to enforce divorce decree

       In the context of enforcing a divorce decree, a trial court may not amend, modify, alter, or

change the property division made or approved in the decree. TEX.FAM.CODE ANN. § 9.007(a).

Hector relies on this limitation on the trial court’s enforcement power to support his contention

that the trial court’s award of money damages impermissibly changed the substantive property

division because the retirement accounts had a zero balance when the trial court entered the final

divorce decree awarding half of those accounts to Susana.

       In the absence of findings of fact and conclusions of law, we imply all findings supported

by the record that support the trial court’s judgment. See, e.g., Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990). Based on the evidence presented in the enforcement proceeding, the trial

court would have acted within its discretion to find that by withdrawing and spending all of the

funds in the FedEx retirement accounts, Hector violated the court’s order prohibiting him from

depleting the community’s assets while the divorce was pending. Accordingly, we conclude that

under these circumstances Susana was entitled to seek, and the trial court was authorized to render,

a money judgment as enforcement of the property division in the divorce decree.

       The Family Code provides: “If a party fails to comply with a decree of divorce or

annulment and delivery of property awarded in the decree is no longer an adequate remedy, the

court may render a money judgment for the damages caused by that failure to comply.”

TEX.FAM.CODE ANN. § 9.010(a). In her amended petition, Susana sought an award of money

because Hector had failed to comply with the divorce decree because he had previously withdrawn

all of the funds in the retirement accounts, thereby rendering the award of a one-half interest in the

those accounts an inadequate remedy. When issuing the original decree, the trial court was

required to order a division of the estate of the parties in a manner that it deemed just and right,



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having due regard for the rights of each party. Id. § 7.001. In so doing, the court was required to

determine the rights of both spouses in any retirement plans, see id. § 7.003, including the two

FedEx retirement accounts listed on Hector’s inventory. Hector was prohibited by court order

from depleting the retirement accounts while the divorce was pending, and the divorce decree

awarded half of the amounts that had been in those accounts to Susana.

       The divorce decree and its allocation of retirement funds were not unilaterally transformed

into a null award by Hector’s prior, surreptitious violation of the court’s order. Likewise, the

court’s enforcement of the divorce decree by reducing Susana’s share of the retirement accounts

to a money award did not violate the rule that a division of property may not be later amended

under the guise of an enforcement action. We overrule Hector’s first issue.

II.    Res judicata

       Hector invokes the doctrine of res judicata as an alternative argument that Susana’s petition

to enforce the allocation of retirement assets in the divorce amounted to a collateral attack on the

division of property in the original decree. See, e.g., Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.

1990) (res judicata applies to a final divorce decree to the same extent it applies to any other final

judgment, even if the divorce decree improperly divided the property). However, as explained

above, we reject Hector’s fundamental premise of characterizing Susana’s enforcement action as

an attempt to alter the original division of property. To the contrary, the trial court enforced the

original property division by reducing Susana’s share of the retirement accounts to a money

judgment. TEX.FAM.CODE ANN. § 9.010. The trial court acted within its discretion because it

could have determined that the discovery of Hector’s withdrawal and expenditure of the retirement

funds in violation of the court’s order rendered the decree as written inadequate to ensure that




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Susana received the property to which she was entitled and which she had been awarded. See id.

The doctrine of res judicata did not apply, and we overrule Hector’s second issue.

III.   Sufficiency of evidence to support damages

       Finally with respect to the enforcement action, Hector contends that the damages awarded

by the trial court were improper because they were supported by no evidence, or by legally

insufficient evidence. He argues that he withdrew approximately $75,000 from the retirement

accounts, and that the money judgment improperly awarded Susana approximately 76% of that

amount. To the extent Hector argues again in this context that the award of money damages was

legally impermissible for the reasons asserted in his first two issues, we reject those arguments for

the reasons explained above. Hector further contends that the award of $57,063 is neither based

on nor rationally linked to the evidence elicited at trial, and in the absence of additional evidence,

the judgment is based solely on speculation and conjecture.

       Appellate courts will sustain a legal sufficiency or “no-evidence” challenge if the record

shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the

opposite of the vital fact. Wheeling v. Wheeling, 546 S.W.3d 216, 223 (Tex.App.—El Paso 2017,

no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). As fact finder, the

trial court was permitted to evaluate the credibility of witnesses and to assign the weight to be

given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003). The trial court may believe one witness, disbelieve another, and resolve inconsistencies in

the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

However, because a ruling on the enforcement of a petition to enforce a property division is



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reviewed for abuse of discretion, merely demonstrating legal sufficiency of the evidence is

inadequate; it must also be shown that the alleged error was harmful. See Wheeling, 546 S.W.3d

at 224 (citing TEX.R.APP.P. 44.1(a)(1)).

       Hector’s argument assumes the truth of his own contested testimony about the amount of

retirement assets he withdrew and spent, and it ignores the evidence that tended to support the

judgment. The trial court received a tax return into evidence, and that document showed that

Hector reported $114,127 of pension income in 2012. Susana was awarded half of the retirement

accounts, and the amount awarded to her in the enforcement action was half of what Hector

reported as pension income in the same year that he admitted to withdrawing all funds from the

FedEx retirement accounts. Although Hector disputed the accuracy of his tax return, it was the

trial court’s duty to resolve discrepancies in the evidence.

       The evidence supported a rational fact finder’s conclusion that half of the income from

retirement accounts reported by Hector on his 2012 tax return—approximately $57,063—would

have been delivered to Susana pursuant to the trial court’s property division and in accordance

with its qualified domestic relations orders if Hector had not wrongfully withdrawn the entirety of

the retirement accounts while the divorce was still pending. Hector argues that no evidence was

adduced to support an unequal division of assets considering the factors guiding the exercise of

discretion in that context outlined in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981), but the task

before the trial court was enforcement of an existing decree, not a fresh determination of a just-

and-right division of assets. We thus conclude that the ruling was supported by legally sufficient

evidence, and the court did not abuse its discretion when it rendered a money judgment in the

amount of $57,063. We overrule Hector’s third issue.




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                                           Conclusion

       Having overruled all of Hector’s challenges to the judgment as an enforcement of the

divorce decree, we need not separately address his challenge to the judgment to the extent it was

also supported by a determination of fraud. See TEX.R.APP.P. 47.1; Long v. Long, 144 S.W.3d 64,

67 (Tex.App.—El Paso 2004, no pet.) (“When findings of fact and conclusions of law are not

properly requested and none are filed, the judgment of the trial court must be affirmed if it can be

upheld on any legal theory that finds support in the evidence.”). His only other remaining issue

was an attorney’s-fee challenge that was contingent upon successfully invalidating the trial court’s

award both as a matter of enforcement and with respect to fraud, which he has failed to do.

       The trial court properly exercised its discretion in reducing Susana’s one-half share of

community retirement accounts to a money judgment.             See TEX.FAM.CODE ANN. § 9.010.

Accordingly, we affirm the judgment of the trial court.



March 25, 2020
                                              MICHAEL MASSENGALE, Visiting Justice

Before Alley, C.J., Palafox, and Massengale, JJ.
Massengale, Visiting Justice (Sitting by Assignment)




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