                                    NO. 07-02-0285-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                FEBRUARY 25, 2004
                          ______________________________

                  IN THE MATTER OF THE MARRIAGE OF LAURIE
                 LYNNETTE SORUM CLARK AND JAMES LEE CLARK
                       _________________________________

          FROM THE 221ST DISTRICT COURT OF MONTGOMERY COUNTY;

             NO. 98-07-02427-CV; HON. KATHLEEN STONE, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

       Laurie Lynnette Sorum Clark appeals from a judgment awarding her ex-husband

James Lee Clark $18,000. The latter represents the sum of money he allegedly overpaid

her under the terms of a promissory note. The note was executed by James pursuant to

the terms of an “Agreement Incident to Divorce.” Of the 11 issues now asserted by Laurie

on appeal, we need only address that which questions whether the trial court had the

jurisdiction to modify the “Agreement Incident to Divorce” and whether the jury’s finding that

James owed her nothing enjoyed factually sufficient evidentiary support. We reverse and

remand.
                                        Background

      On August 8, 1988, the district court for the 257th Judicial District of Harris County

signed a decree ending the marriage of James and Laurie.                In it, the trial court

acknowledged that “the parties ha[d] consented to [the decree’s] . . . terms . . . and

stipulated it is a contract.” So too did the court find that the litigants “entered into an

Agreement Incident to Divorce” (Agreement). The latter was then approved by the court

and expressly made part of the decree.

       Next, James and Laurie signed the decree, expressing that they both “approved and

consented to” its provisions. The provision underlying the dispute at bar appears after the

heading “Promissory Note.” There the parties agreed and the court

       . . . ORDERED . . . that for the purpose of the just and right division of the
       property, that JAMES . . . shall execute and deliver to LAURIE . . . a
       Promissory Note in the face amount of Two Hundred Forty Thousand and
       No/100 Dollars . . . of even date herewith bearing interest at seven percent
       . . . and in the event of default at prime as quoted by First Interstate Memorial
       plus 2 points and providing for one hundred nineteen . . . monthly payments
       of Two Thousand . . . Dollars . . . each and a final payment of all unpaid
       principal and interest due on the One Hundred and Twentieth . . . month
       immediately following the date of the Note . . . . If Respondent [James]
       defaults on the payment of this Promissory Note, then [his] claim to a portion
       of the sales proceeds from the Homestead . . . shall be extinguished without
       credit . . . .

A virtually identical provision appeared in the Agreement. However, rather than being

ordered to execute the promissory note, James simply agreed to sign and deliver it to

Laurie. The instrument which he signed and delivered designated Laurie as payee,

mentioned the principal amount to be “Two hundred Forty Thousand and No/100 Dollars

($240,000),” provided for “Annual Interest . . . on Unpaid Principal from Date” at “7%,”

alluded to “119 equal payments of $2000" and one final payment “of all unpaid principal


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and interest due and owing,” and obligated James “to pay to the order of Payee . . .

according to the terms of payment the principal amount plus interest at the rates stated . . .”

therein. For purposes of this opinion, we refer to this instrument as the Note.

       It is undisputed that James was aware of the manner in which the parties described

his promissory obligation in 1) the Note itself, 2) the Agreement, and 3) the divorce decree

when he signed each document. Similarly clear is that he made payments which totaled

$258,000. Problem arose, however, when Laurie indicated that he owed her an additional

sum exceeding $100,000. The latter allegedly represented the outstanding principal and

seven percent interest which accumulated thereon through the years. James refused to

pay it. He argued that despite the terms of the Note, the Agreement, and the divorce

decree (all of which he signed), the parties had actually agreed during negotiations prior

to their divorce that interest would not be paid. So, in his estimation, the duty imposed

upon him under the Note purportedly consisted of paying 120 installments of $2000 each

for a total of $240,000.

       To effectuate his supposed understanding, James initiated suit in the district court

for the 221st Judicial District for Montgomery County to reform the Note and obtain a

declaration that the debt represented by it was satisfied. Laurie counterclaimed seeking

what she believed to be the arrearage and an order quieting title of the homestead (i.e.

declaring that James no longer had an interest in the proceeds from the sale of the

homestead since he breached his promise to pay the Note).




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        The parties tried their dispute to a jury. The latter concluded that James had been

fraudulently induced to sign the promissory note.1 However, it also found that 1) James

had sufficient knowledge of facts before July 1, 1994, that would have required a

reasonably prudent person “to make inquiry that, if pursued, would lead him to discover that

Laurie . . . intended him to pay seven percent interest on the promissory note,” and 2) no

balance was due from him to Laurie. Thereafter, the 221st District Court entered judgment

declaring that Laurie take nothing from James. So too did it order Laurie to pay James

$18,000 (the sum allegedly representing overpayment of his debt) plus attorney’s fees,

court costs, and interest.

                                     Issue One - Jurisdiction

        In her first issue, Laurie argues that the trial court had no jurisdiction to “eliminate

the seven-percent interest from the property division in the 1988 Agreed Decree.” We

agree and sustain the issue.

        Statute prohibits a court from amending, modifying, altering, or changing the division

of property made or approved in a decree of divorce. TEX . FAM . CODE ANN . §9.007(a)

(Vernon 1998). In other words, while orders may issue which are necessary to effectuate

or clarify the court’s prior division of property, the court may not change the division once

its plenary jurisdiction over the decree expires. In re Reinauer, 946 S.W.2d 853, 861 (Tex.

App.–Amarillo 1997, pet. denied); Spradley v. Hutchison, 787 S.W.2d 214, 218 (Tex.

App.–Fort Worth 1990, writ denied); see TEX . FAM . CODE ANN . §9.007(b) (Vernon 1998)




        1
        W e do not address whether James was party to fraud upon the 257 th Judicial District Court given the
apparent misrepresentation to that court regarding the terms of the Note.

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(stating that an order changing the actual, substantive division of property approved in a

final decree “is beyond the power of the divorce court” and “is unenforceable”).

        Here, the divorce decree directed James to execute a promissory note in the

principal amount of $240,000 and bearing interest at seven percent per annum. The duty

was imposed upon him, as stated in the judgment, for the purpose of securing a just

division of the marital estate. Furthermore, that the plenary jurisdiction of the 257th Judicial

District Court over its August 1988 judgment expired long before James sued in the 221st

Judicial District Court is beyond conjecture.2 So, both the decree and the obligations

imposed therein to secure an appropriate division of the marital estate were final and

immutable when James petitioned a neighboring district court for relief. And, given that the

decree was final and immutable, the court which he petitioned had no power to alter them,

even if he believed their terms differed from an agreement purportedly reached while

negotiating the division of the marital estate. See Callaway v. Elliott, 396 S.W.2d 242, 244-

45 (Tex. App.–Tyler 1965, writ dism’d w.o.j.) (holding that an attempt to change the

property division approved by the court and to which the parties agreed constituted an

impermissible collateral attack upon the judgment, even though the ex-husband argued that

he never agreed to transfer the property described in the divorce decree).

        We acknowledge James’ argument that he is simply attacking the Note as opposed

to the divorce decree and, thus, his efforts do not constitute an attempt to change that

decree. Yet, one cannot escape from the fact that the terms of the Note (including those


        2
         That a substantial difference exists between the payment of $240,000 over ten years without interest
and the payment of $240,000 over ten years with interest at seven percent per annum is similarly beyond
conjecture. Thus, insulating James from the duty to pay such interest would indeed have impact upon the
previous division of the marital estate by the 257th Judicial District Co urt.

                                                     5
pertaining to the payment of interest) and its execution were mandated by the decree. So,

to relieve him from performing an aspect of the Note mandated by the decree is nothing

short of relieving James from an obligation imposed by the decree. And, logically, if he is

relieved from performing an obligation imposed by the decree, then the decree has, for all

practical purposes, been changed. Irrespective of the legal semantics used to frame the

result attained below, the outcome is one which we cannot countenance given §9.007 of

the Family Code, Reinauer, Spradley, and Callaway. Simply put, James cannot do

indirectly that which he cannot do directly.

       In sum, the trial court at bar lacked jurisdiction to enter a judgment relieving James

from paying the interest mandated by the divorce decree. And, in doing so, it erred.

Furthermore, the error is harmful since it permitted the jury to calculate the arrearage due

Laurie via a formula other than that imposed by the decree through the Note. Indeed,

unless the jury was permitted to calculate the arrearage via a formula relieving James from

paying interest, the jury’s determination that he owed Laurie “0.00" would lack, at the very

least, factually sufficient evidentiary support. This is so because while he made payments,

no evidence illustrates that the $258,000 paid equals principal of $240,000 plus interest

accruing at seven percent on the outstanding balance over ten years. And, although

question was raised below regarding whether Laurie’s expert accurately credited James

with certain payments (which could affect the amount of interest payable), the

overwhelming weight of evidence depicted that a substantial balance remained outstanding

at the end of the ten-year term. Similarly, the trial court’s decision to award James $18,000

cannot be justified unless one concludes that he had no duty to pay interest.



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Consequently, the error at issue permeates not only the jury’s findings but also the trial

court’s judgment.3

         Our disposition of issue one relieves us from having to consider the others asserted.

Accordingly, we reverse the judgment of the trial court and remand the cause for further

proceedings.




                                                               Brian Quinn
                                                                 Justice




         3
          Under her ninth issue, Laurie argues that the trial co urt erred in refu sing to quiet title to the marital
homestead. This is allegedly so because Ja mes defaulted in paying the Note. Thus, she asks us to rule “as
a matter of law,” that he forfeited his interest in the proceeds from the sale of the hom estead. W e overrule
the issue as being improperly briefed. Laurie cited to no authority as required by Rule 38.1(h) of the Texas
Rules of Ap pellate Proced ure. See Plumm er v. Reeves, 93 S.W.3d 930, 931 (Tex . App .--Am arillo 2003, pet.
denied) (holding that one must accompany argument with citation to authority). Furthermore, no one has
provided us w ith either argu me nt or autho rity illustrating whethe r or not an attem pt to secure a judicial
declaration that one need not perform a purported contractual duty before time to perform has arrived
constitutes a de fault “as a matter of law.” And, we are under no duty to create or find either for the litigants.



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