                      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


            Before Sudderth, C.J.; Gabriel and Bassel, JJ.
             Memorandum Opinion by Justice Gabriel
    Dissenting Memorandum Opinion by Chief Justice Sudderth
                            MEMORANDUM OPINION

       In this permissive appeal we are asked to decide whether the trial court that

rendered a final divorce decree (the divorce court) has exclusive jurisdiction to

determine a postdecree action to divide community property that was not divided in

the decree or whether such an action may be filed as a partition action in a different

court. Based on the plain language of the pertinent Family Code provisions, we

conclude that the divorce court does not have exclusive jurisdiction over such an

action, allowing an aggrieved party to file a partition action in a different trial court.

                                  I. BACKGROUND

       In 2012, appellant M.B. (Wife) filed a petition for divorce against S.C.

(Husband).    On December 13, 2013, Husband and Wife executed an agreement

incident to divorce (AID), arising from a mediated settlement agreement (MSA). See

Tex. Fam. Code Ann. § 7.006. The MSA, which allegedly was incorporated into the

AID, apparently divided several real-estate interests that Husband had disclosed in an

inventory as being part of the community estate.1 See, e.g., id. § 6.502(a)(1). The AID

included a tail provision regarding undivided real-estate interests: “In the event

[Husband], The Woodmont Company, or any related entity had an interest in any real

estate on October 15, 2013, (Date of the MSA) that had not closed as of that date,




       1
       Neither the MSA nor the complete AID is included in the appellate record.

                                              2
[Son and Daughter2] shall each have a 12.5% profit interest in such a transaction(s)

that close[s] within 24 months following October 15, 2013.” The divorce court

approved and incorporated the AID into an agreed, final divorce decree. In the

decree, the divorce court expressly reserved the right to make clarification orders and

to enforce the decree. See id. §§ 9.002, 9.008

      Three years later, Wife filed suit against Husband in a civil district court (the

district court), asserting that four community-estate, real-estate partnerships had not

been included in Husband’s inventory and, therefore, had not been divided by the

divorce court.3 Wife raised claims for (1) breach of the MSA, the AID, and the

divorce decree by “failing to divide” and “refusing to convey” the profits to Son and

Daughter in the real-estate transactions closed by the partnerships after the date of the

MSA pursuant to the tail provision; (2) money had and received (MHAR) for failing

to distribute to Wife “at least half” of the $700,000 in distributions attributable to one

of the partnerships; (3) a declaratory judgment that Daughter was entitled to a 12.5%

interest in the partnership interests and that Wife has “at least a 50% interest” in the


      2
       Son was born in 1996, and Daughter was born in 2000. The parties continue
to use aliases to identify them, and we will follow suit. Se Tex. Fam. Code Ann.
§ 109.002(d); Tex. R. App. P. 9.9(a)(3).
      3
       The partnerships were “(i) Woodmont Duncanville, LP; (ii) Woodmont
Southlake, LP; (iii) an entity in Bismarck, North Dakota; and (iv) a Walgreens
development in East Dallas.” Husband swore in an affidavit that there were only two
partnerships subject to the tail provision in the AID: Woodmont Duncanville and
Woodmont Southlake.

                                            3
four partnerships; and (4) a partition of the undivided community partnership

interests.4 Tex. Civ. Prac. & Rem. Code Ann. §§ 37.003–.004; Tex. Prop. Code Ann.

§ 23.001. In her partition claim, Wife alleged that she and Husband, during their

marriage, obtained partnership interests in four partnerships. But because they were

not divided in the final decree or the AID, Wife asserted that she and Husband

remained joint owners of the partnership interests. Wife requested a partition of

these jointly owned interests based on her community-estate share.

      Husband filed a plea to the jurisdiction regarding Wife’s MHAR, declaratory-

judgment, and partition claims and argued that the divorce court, not the district

court, had exclusive jurisdiction under the Family Code to divide undivided

community assets postdecree.      See Tex. Fam. Code Ann. §§ 9.201, 9.203.         Wife

responded that the Family Code does not vest exclusive subject-matter jurisdiction in

the divorce court, allowing her to choose her remedy and court. The district court

granted Husband’s plea to the jurisdiction and dismissed for lack of jurisdiction Wife’s

claims for partition, for a declaratory judgment, and for MHAR involving “the alleged

undivided properties.” The district court granted Wife’s unopposed motion to file a

permissive appeal, finding that whether Family Code Section 9.201 provides the


      4
        Based on Husband’s refusal to allow Wife to transfer her interest in a business
entity that had been divided in the divorce, Wife also raised a breach-of-contract claim
against the business entity. This claim remains pending in the district court along with
Wife’s claim against Husband for breach of the MSA, the AID, and the divorce
decree. These claims are not at issue in this permissive appeal.

                                           4
exclusive remedy to divide previously undivided community property is a controlling

question of law as to which there is a substantial difference of opinion. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.014(d). But the district court identified only the

partition claim brought under the Property Code as part of the controlling question

and did not identify the declaratory-judgment or MHAR claims.5 See Tex. R. Civ.

P. 168. Therefore, although we granted the petition, we will confine ourselves to a

determination of jurisdiction over Wife’s partition claim, as identified by the district

court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(f); Tex. R. App. P. 28.3(k); see

also Lakes of Rosehill Homeowners Assoc. v. Jones, 552 S.W.3d 414, 418 (Tex. App.—

Houston [14th Dist.] 2018, no pet.).

                      II. JURISDICTION TO PARTITION

      By urging a plea to the jurisdiction, Husband asserted that the district court

lacked subject-matter jurisdiction over Wife’s partition claim. Whether a trial court

has subject-matter jurisdiction is a question of law that we review de novo. Harris Cty.

      5
       The district court clearly limited the controlling question to Wife’s claims
under the Property Code:

      Does the Court which rendered a decree of divorce have exclusive
      jurisdiction under Texas Family Code Secs. 9.201–203 to make a post-
      divorce division of community property when the Court which issued
      the decree had jurisdiction of the parties and the alleged property at the
      time of the decree? Or, does a district court hold jurisdiction over a
      cause of action brought under Texas Property Code § 23.001 et seq. to
      divide community property that was not divided in the divorce?

The parties likewise limit their appellate arguments to Wife’s partition claim.

                                            5
v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). In this review, we are guided solely by the

allegations in Wife’s petition, taking them as true and construing them in her favor.6

See Tex. Dep’t of Crim. Justice v. Rangel, No. 18-0721, 2020 WL 596876, at *4 (Tex.

Feb. 7, 2020). Wife had the burden to allege facts affirmatively showing that the

district court had subject-matter jurisdiction over her partition claim. See Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

      A district court has “exclusive, appellate, or original jurisdiction of all actions,

proceedings, and remedies, except in cases where exclusive, appellate, or original

jurisdiction may be conferred by [the Texas] Constitution or other law on some other

court, tribunal, or administrative body.” Tex. Const. art. V, § 8. In addition to this

constitutional jurisdiction, the Legislature has provided that district courts “may hear

and determine any cause that is cognizable by courts of law or equity.” Tex. Gov’t

Code Ann. § 24.008.       Thus, the district court here had jurisdiction over Wife’s

partition action unless exclusive jurisdiction had been conferred on the divorce court.

See Huey-You v. Kimp, No. 02-16-00172-CV, 2018 WL 359633, at *2 (Tex. App.—Fort

Worth Jan. 11, 2018, pet. denied) (mem. op.).

      Pointing to the absence of any exclusivity terms in the plain language of the

Family Code, Wife argues that she could choose between two available remedies—a


      6
       Husband did not challenge the existence of jurisdictional facts in his plea; thus,
we do not consider any submitted evidence. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

                                            6
common-law right to partition the assets under Property Code Section 23.001 or a

just and right division under Family Code Sections 9.201(a) and 9.203(a). Husband

responds that the plain meaning of Section 9.203(a) confers exclusive jurisdiction on

the divorce court to divide undivided community-estate assets.

      The Family Code provides a remedy, subject to a just-and-right-division

standard, if community-estate assets were not divided in the divorce decree: “Either

former spouse may file a suit as provided by [Sections 9.201–.205] to divide property

not divided or awarded to a spouse in a final decree of divorce or annulment.” Tex.

Fam. Code Ann. § 9.201(a); see also id. §§ 7.001, 9.203(a). Interpreting similar “may”

language in a decree-enforcement action under Section 9.001(a), we held that subject-

matter jurisdiction was permissive and not mandatory or exclusive based on its

language that a party “may request enforcement of that decree by filing a suit to

enforce.” Huey-You, 2018 WL 359633, at *2 (quoting and emphasizing Tex. Fam.

Code Ann. § 9.001(a)). We pointed out that other Family Code provisions expressly

provided for continuing, exclusive jurisdiction but that similar language was not

included in Section 9.001(a). Id. (referring to Sections 9.101(a) and 155.001 and the

express grant of “continuing, exclusive jurisdiction” in those sections).

      Similarly, Section 9.201(a) contains no language mandating exclusive

jurisdiction in the divorce court. See generally 33 John F. Elder, Texas Practice: A Quick

Reference Guide to the Family Code § 10:27 (2019) (“Prior to [the passage of Sections

9.201–.205 in] 1987, the method available to accomplish the division of undivided
                                            7
property was a suit to partition, and this method seems to remain as an available

option . . . .”). Instead, Section 9.201(a) provides that a former spouse “may file a

suit” in the divorce court, which is permissive, and includes no exclusivity language

even though the Legislature included such language in other Family Code provisions.

Tex. Fam. Code Ann. § 9.201(a) (emphasis added); cf. Huey-You, 2018 WL 359633, at

*2.   Because our first and best statutory-interpretation tool is the statute’s plain

language, see Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019), we conclude

that the Legislature did not intend to vest exclusive jurisdiction in the divorce court

when enacting this division remedy under the Family Code.              See Haas v. Otto,

392 S.W.3d 290, 292 (Tex. App.—Eastland 2012, no pet.); Mayes v. Stewart, 11 S.W.3d

440, 448 (Tex. App.—Houston [14th Dist.] 2000, pet. denied), disapproved of on other

grounds by Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019);

Phillips v. Phillips, 951 S.W.2d 955, 957 (Tex. App.—Waco 1997, no pet.).7

       Husband argues that the “shall” language in Section 9.203(a) regarding a

divorce court’s duty to divide undivided property under a just-and-right rubric shows

that the Legislature’s intent was to vest exclusive jurisdiction over postdecree divisions

in the court that rendered the divorce decree. He relies on this court’s opinion in

       7
        Other courts have held that Section 9.201’s predecessor supplanted the
common law such that a just and right division applied to a postdecree suit to
partition undivided community property held as joint owners. See, e.g., In re Marriage of
Moore, 890 S.W.2d 821, 839–40 (Tex. App.—Amarillo 1994, no writ). But as Wife
points out, these cases do not address whether Section 9.201 vests exclusive
jurisdiction of such a suit in the court that rendered the divorce decree.

                                            8
Schuchmann v. Schuchmann, 193 S.W.3d 598 (Tex. App.—Fort Worth 2006, pet. denied).

There, a husband sued for divorce in a divorce court and then sued his wife and

others in a probate court in connection with inter vivos trusts that had been

established by the husband’s father. Id. at 600. After the divorce was final, the ex-

husband filed a postdecree action in the divorce court under Section 9.201(a), alleging

that certain community property had not been divided in the decree. Id. at 601. The

ex-wife asked the probate court to transfer the ex-husband’s postdecree action to the

probate court, but the ex-husband argued the probate court did not have jurisdiction

over that action. Id. After the probate court transferred ex-husband’s postdecree

action to itself and denied his plea to the jurisdiction, we concluded that there was no

relationship between the probate court’s ancillary jurisdiction over the inter vivos

trusts and the ex-husband’s postdecree action under Section 9.201(a). Id. at 603.

Thus, we held that the probate court lacked jurisdiction over the ex-husband’s

postdecree action, which he had filed in the divorce court as allowed under Section

9.201(a). Id. at 605.

       But here, Wife, as did the ex-husband in Schuchmann, picked her forum. This

forum prevails unless Husband can establish exclusive jurisdiction in the divorce

court. Our holding in Schuchmann does not establish that exclusive jurisdiction over an

action under Section 9.201(a) resides in the divorce court; Schuchmann addressed

whether a probate court’s transfer was proper under the statute governing the probate

court’s jurisdiction.
                                           9
       We recognize that a “dealer’s choice” interpretation under these circumstances

triggers several ancillary consequences:

       The Family Code provisions offer some advantages. They permit a just
       and right division, permitting the court to consider the customary
       reasons to divide property equally or unequally. The statutes also permit
       recovery of attorney fees. On the other hand, a suit to partition does not
       authorize attorney fees, presupposes a tenancy in common, suggesting a
       50–50 division, and requires a division in kind if possible. One
       disadvantage of the Family Code provisions is the existence of a two-
       year statute of limitations which does, however, have a tolling provision.

Elder, supra at § 10:27. But these differences do not overcome the plain, permissive

language of Section 9.201 and do not lead to an absurd result. See Molinet v. Kimbrell,

356 S.W.3d 407, 411 (Tex. 2011) (“The plain meaning of text is the best expression of

legislative intent unless . . . the plain meaning leads to absurd or nonsensical results.”).

The tension between a postdecree division action and a partition action reveals no

more than the Legislature’s prerogative to enact statutes as well as its power to

address any unintended or unacceptable consequences. See id. at 414–15 (“It is the

Legislature’s prerogative to enact statutes; it is the judiciary’s responsibility to interpret

those statutes according to the language the Legislature used . . . .”); McIntyre v.

Ramirez, 109 S.W.3d 741, 748 (Tex. 2003) (“Our role . . . is not to second-guess the

policy choices that inform our statutes or to weigh the effectiveness of their results;

rather, our task is to interpret those statutes in a manner that effectuates the

Legislature’s intent.”).




                                             10
                               III. CONCLUSION

      We conclude that the district court had subject-matter jurisdiction over Wife’s

partition action because the plain language of Family Code Section 9.201 does not

vest exclusive jurisdiction of a postdecree division action in the divorce court.

Therefore, the district court erred by granting Husband’s plea to the jurisdiction

regarding Wife’s partition claim.   We reverse that portion of the district court’s

amended order granting Husband’s plea to the jurisdiction as to Wife’s partition claim

and remand that claim to the district court with instructions to deny this portion of

Husband’s second plea to the jurisdiction and for further proceedings. See Tex. R.

App. P. 43.2(d), 43.3(a).

                                                    /s/ Lee Gabriel

                                                    Lee Gabriel
                                                    Justice

Delivered: April 9, 2020




                                         11
