                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00231-CV

                                       James W. CARROLL,
                                             Appellant

                                                 v.

                                         Joan CASTANON,
                                              Appellee

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 1998-CI-09347
                           Honorable John D. Gabriel Jr., Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 10, 2014

REVERSED AND REMANDED

           James W. Carroll appeals the trial court’s order awarding Joan Castanon a $1,000,000.00

monetary judgment in an action to enforce a divorce decree. Carroll raises numerous issues on

appeal, primarily asserting that the trial court’s order impermissibly modified the divorce decree.

Carroll also contends the order does not reassess attorney’s fees as previously directed by this

court. We reverse the portions of the trial court’s order awarding the monetary judgment and

attorney’s fees and remand the cause to the trial court for further proceedings.
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                                          BACKGROUND

         In a final divorce decree signed on November 16, 1999, Carroll was ordered to designate

Castanon as a “former spouse beneficiary” under Carroll’s Survivor Benefit Plan (“SBP”).

Castanon was ordered to pay the premiums for the SBP. When Carroll retired from the military

in February 2004, he applied for the SBP and designated Castanon as the beneficiary; however,

his application was denied.

         In November 2004, Castanon filed a motion to enforce and clarify the divorce decree,

raising issues regarding Carroll’s military retirement pay and the SBP. In June 2006, the trial court

signed an order providing the following with regard to the SBP:

                 The Court finds that Movant is entitled to be named as the former spouse
         beneficiary under Respondent’s Armed Services Survivor Benefit Plan and that if
         able, Respondent should make application to enroll Movant at full value of fifty-
         five percent (55%) and in a timely manner. The Court further finds that all costs
         associated with the voluntary enrollment in Respondent’s Armed Services Survivor
         Benefit Plan shall be paid by Movant. The Court further finds that if Movant cannot
         be enrolled in Respondent’s Armed Services Survivor Benefit Plan or if she deems
         it necessary to purchase any number of life insurance policies insuring the life of
         Respondent during the two year period it takes for the Armed Services Survivor
         Benefit Plan to become effective, or, if she deems, any number of life insurance
         policies in lieu of the Armed Services Survivor Benefit Plan, that Respondent shall
         allow Movant to carry any life insurance policy or policies on him at her own
         expense and upon written notification by Movant, to attorneys of record,
         Respondent shall submit to any physicals or other requirements required by the life
         insurance company or companies to name Movant as beneficiary of said policies
         insuring the life of Respondent.

Pursuant to this order, Carroll signed an application for a USAA life insurance policy in July 2006;

however, he subsequently withdrew the application after the trial court granted his motion for new

trial.

         In October 2007, the trial court held another hearing on Castanon’s motion and

subsequently signed an order that stated the following with regard to the life insurance policy:

         IT IS THEREFORE ORDERED, that Respondent shall immediately deliver to
         Movant a completed Life Insurance Application(s) required in order to obtain a One
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       Million Dollar ($1,000,000.00) death benefits coverage, twenty (20) year term life
       insurance policy(s) insuring the life of Respondent, James W. Carroll, and naming
       Movant, Joan Castanon, as owner of said policy. The Court finds that Movant had
       previously agreed to pay the premiums to maintain said policy in full force and
       effect at her sole cost and expense and therefore IT IS SO ORDERED. Respondent
       is ORDERED to comply with all requirements necessary to maintain said policy in
       full force and effect, during the 20 year term of said policy, including, but not
       limited to Respondent submitting to any and all physicals or other requirements
       imposed by the Insurance Policy provider of said policy. IT IS SO ORDERED.

Carroll appealed this order.

       On appeal, Carroll argued that “the trial court’s order inappropriately modified the divorce

decree by directing him to apply for and maintain a $1,000,000 life insurance policy in favor of”

Castanon. Carroll v. Carroll, No. 04-08-00063-CV, 2009 WL 89704, at *4 (Tex. App.—San

Antonio Jan. 14, 2009, no pet.) (mem. op.) (“Carroll I”). Carroll further argued that he “made a

reasonable effort to comply with the terms of the divorce decree by applying for the Survivor

Benefit Plan at the time of his retirement when he was eligible. However, his application was

denied because more than one year had passed since the divorce decree had been signed and

[Castanon] had not filed for a deemed election within one year of the divorce as required by federal

law.” Id. Instead of addressing whether the order modified the divorce decree, this court noted

that the record reflected that Carroll “agreed to apply for a life insurance policy to replace the

Survivor Benefit Plan.” Id. This court quoted Carroll’s attorney as stating, “So, we agreed on the

record, Mr. Carroll agreed on the record that he would apply for a life insurance policy at the

movant’s expense insuring his life to replace the SBP policy.” Id. Based on the record, this court

concluded, “Thus, [Carroll] agreed that he would apply for a life insurance policy listing

[Castanon] as a beneficiary.” Id. Holding that Carroll could not lead the trial court into error by

agreeing to apply for the life insurance policy and then complain about it later on appeal, this court

affirmed the portion of the trial court’s order regarding the life insurance policy. Id. This court

also, however, reversed the portion of the trial court’s order relating to the division of Carroll’s
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military retirement benefits, holding the order “improperly made substantive changes to the

decree” with regard to the retirement benefits. Id. at *2-4. Noting that the trial court would be

required to recalculate the retirement benefit payments and reconsider the award of attorney’s fees,

the case was then remanded to the trial court for further proceedings. Id. at *4.

       In December 2010, Castanon filed a motion for finalization of enforcement. After a hearing

on Castanon’s motion in March 2011, Carroll provided applications for twelve different life

insurance policies; however, all of the applications were ultimately denied because of Carroll’s

health issues. Additional hearings were held regarding the finalization of enforcement in June and

August 2012. After those hearings, the trial court awarded Castanon a $1,000,000.00 monetary

judgment because Carroll failed to deliver a $1,000,000.00 life insurance policy to Castanon.

Carroll appeals this order.

                                     STANDARD OF REVIEW

       A trial court’s ruling on a post-divorce motion for enforcement is reviewed under an abuse

of discretion. In re Marriage of Pyrtle, 433 S.W.3d 152, 159 (Tex. App.—Dallas 2014, pet.

denied). “A trial court abuses its discretion if it acts without reference to any guiding rules and

principles or acts arbitrarily or unreasonably.” DeGroot v. DeGroot, 369 S.W.3d 918, 922 (Tex.

App.—Dallas 2012, no pet.).       Under this standard, sufficiency of the evidence is not an

independent ground of error; however, it is a relevant factor in assessing whether the trial court

abused its discretion. Pyrtle, 433 S.W.3d at 159; see also Gardner v. Gardner, 229 S.W.3d 747,

751 (Tex. App.—San Antonio 2007, no pet.) (“Under an abuse of discretion standard, challenges

to the legal and factual sufficiency of the evidence are not independent grounds of error.”). When

reviewing the legal sufficiency of the evidence, the court must consider the evidence in the light

most favorable to the trial court’s order and indulge every reasonable inference that supports it.

City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If there is some evidence with
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substantial or probative character to support the decision, then the trial court does not abuse its

discretion. Pyrtle, 433 S.W.3d at 159.

                                         LAW OF THE CASE

       Ordinarily, a court of appeals is bound by its initial decision if there are subsequent appeals

in the same case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). “The ‘law of

the case’ doctrine is defined as that principle under which questions of law decided on appeal to a

court of last resort will govern the case throughout its subsequent stages.” Hudson v. Wakefield,

711 S.W.2d 628, 630 (Tex. 1986). As previously noted, in Carroll I, this court overruled Carroll’s

issues challenging the portion of the trial court’s order regarding the life insurance policy, holding

Carroll “agreed to apply for a life insurance policy to replace the Survivor Benefit Plan.” 2009

WL 89704, at *4. This court’s holding was based on the legal principle that “‘a party cannot lead

a trial court into error and then complain about it later on appeal.’” Id. (quoting Hudson v. City of

Houston, No. 14-03-00565-CV, 2005 WL 3995160, at *6 (Tex. App.—Houston [14th Dist.] Jan.

6, 2005, no pet.) (mem. op.)). Therefore, under the law of the case doctrine, Carroll is bound by

this court’s decision in Carroll I that he agreed to apply for a life insurance policy to replace the

SBP, and accordingly, any issues he raises in this appeal contending that this requirement modifies

the divorce decree are overruled.

                                      MONETARY JUDGMENT

       Carroll’s primary complaint in this appeal is that the trial court was without authority to

modify the 2007 order by awarding a monetary judgment to Castanon. Carroll asserts that “[t]his

order would provide [Castanon] the immediate benefit of an incredible amount of money, not

contemplated by the divorce decree, more than double the total amount of the community assets

that were divided at the time of the divorce, regardless of whether she dies before him.” Carroll

further asserts the SBP “provides no immediate benefits to the former spouse and should the former
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spouse predecease the military member no benefits whatsoever will accrue to the former spouse.

SBP is a contingent annuity with no present value.” 1 Castanon responds that the trial court

properly “substituted a money judgment (as authorized by section 9.010) for a life-insurance policy

that had become an inadequate remedy.”

        Section 9.010(a) of the Texas Family Code states that “[i]f 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.” 2 TEX. FAM. CODE ANN. § 9.010(a) (West 2006). In the trial court’s 2007 order which

Castanon was seeking to enforce, Carroll was ordered to “deliver to [Castanon] a completed Life

Insurance Application(s) required in order to obtain a One Million Dollar ($1,000,000) death

benefits coverage, twenty (20) year term life insurance policy(s) insuring the life of Respondent,

James W. Carroll, and naming Movant, Joan Castanon, as owner of said policy.” In Carroll I, this

court affirmed this portion of the 2007 order on the basis that Carroll had “agreed to apply for a

life insurance policy.” 2009 WL 89704, at *4.

        In the findings of fact issued by the trial court in support of the $1,000,000.00 judgment,

the trial court found that Carroll “failed to obtain and maintain a life insurance policy as agreed;”

however, the only “property” Carroll agreed to and was ordered to deliver was an application or

applications for a life insurance policy. In its findings of fact, the trial court further found that

Carroll “failed to cooperate in obtaining a life insurance policy,” and that by failing to cooperate

in obtaining a life insurance policy he breached his representation to the court. As this court held




1
  In a separate issue, Carroll challenges the award of $1,000,000.00, noting Castanon was not required to pay the
premiums for the life insurance policy; therefore, her damages were necessarily less than $1,000,000.00. We do not
reach this issue because its resolution is not necessary to the disposition of this appeal. TEX. R. APP. P. 47.1.
2
  Section 9.010(b) addresses the failure to deliver monetary payments awarded in the decree. TEX. FAM. CODE ANN.
§ 9.010(b) (West 2006).

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in Carroll I, however, the only “representation” or agreement Carroll made was to “apply for a life

insurance policy.” Following this court’s February 2009 opinion in Carroll I and the trial court’s

hearing in March 2011 on the motion filed by Castanon in December 2010, Carroll complied with

the 2007 order by delivering the required application(s). In fact, Carroll applied directly for three

different policies and indirectly for nine others. Although all twelve applications were denied,

Carroll did not “fail to comply” with the trial court’s order because he delivered the “property” he

was required to deliver. TEX. FAM. CODE ANN. § 9.010 (West 2006). 3

         Moreover, under section 9.010(a), a monetary judgment may be awarded when the

“delivery of property” awarded in a decree is no longer an adequate remedy. Id. § 9.010(a). In

section 9.009 of the Family Code, the legislature refers to “delivery of property” as the delivery of

“specific existing property awarded.” TEX. FAM. CODE ANN. § 9.009 (West Supp. 2014). In this


3
  While not relevant to the application of section 9.010(a) in this case, the trial court also found that Carroll knew he
was uninsurable in 2007 when he agreed to apply for the policy. There is no evidence in the record to support this
finding. In fact, at the March 2011 hearing, the expert witness called by Castanon was asked about Carroll’s
insurability as follows:
                    Q.        Do you have an opinion as to whether or not Mr. Carroll would or would not be
          insurable or is it a waste of time to do this process?
                    A.        That’s not a decision that I am qualified [to] make. That is a decision that the
          carrier underwriters make. Based on my experience and based on my conversations with the two
          underwriters that I spoke with, I would say that he’s borderline. And it would be largely dependent
          on a particular carrier, if they feel comfortable with that particular condition and agreed to write it,
          or if they would decline to provide coverage.
                    Q.        Have you seen in your practice that a person was not insurable in 2009 may
          become insurable simply by the period of longevity showing that the medical condition that they
          had cardiac-wise in this case, may have resolved itself?
                    A.        That is entirely possible. And even though the condition may not have resolved
          itself, which typically with a cardiac conditions [sic], cancer, conditions of that nature, never
          completely go away at least in an underwriter’s opinion. The longer from the date of onset or
          diagnosis that the person is under treatment, takes medication, has some sort of attention to that
          condition, the more stability that the carrier is going to identify in that particular condition and
          treatment.
                    So that basically they know that the treatment was doing what is was intended to do, then
          it becomes more likely that the insurer would be eligible for coverage at some point in the future
          where they would not be eligible perhaps or obtain a higher premium offer closer to the date of
          diagnosis.
If the expert witness could not opine as to whether Carroll was insurable in 2011 because the decision had to be made
by the carrier underwriters, Carroll could not have known that he was uninsurable when he agreed to apply for the
policy in 2007 simply based on his cardiac condition. The record does establish that Carroll believed he was
uninsurable for the first time in 2009 when his application for his own USAA life insurance policy was denied.

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case the only “specific existing property awarded” in the trial court’s order is a life insurance

application or applications, which distinguishes this case from other cases in which section 9.010

has been applied. For example, in In re Marriage of Bivins, the trial court applied section 9.010

to award money damages to the former wife because the former husband failed to deliver the

marital residence in good repair as required by the divorce decree. 393 S.W.3d 893, 898-99 (Tex.

App.—Waco 2012, pet denied). Similarly, in Fambro v. Eddleman, the trial court properly applied

section 9.010 to award a monetary judgment against a former husband who failed to deliver the

livestock he was required to deliver under the decree. No. 11-02-00190-CV, 2004 WL 68747, at

*3-5 (Tex. App.—Eastland Jan. 15, 2004, no pet.) (mem. op.); see also Strahan v. Strahan, No.

01-01-00614-CV, 2003 WL 22723432, at *2-4 (Tex. App.—Houston [1st Dist.] Nov. 20, 2003,

no pet.) (mem. op.) (awarding monetary judgment under section 9.010 based on former wife’s

failure to deliver vehicle); cf. Fowler v. Fowler, No. 02-07-00274-CV, 2008 WL 2330987, at *3-

4 (Tex. App.—Fort Worth June 5, 2008, no pet.) (mem. op.) (holding trial court did not abuse its

discretion in refusing to award monetary judgment based on former husband’s failure to deliver

furniture where evidence did not establish former husband failed to comply with the decree);

Mosley v. Mosley, No. 01-04-00425-CV, 2006 WL 3316974, at *1-2 (Tex. App.—Houston [1st

Dist.] Nov. 16, 2006, no pet.) (mem. op.) (affirming trial court’s order enforcing delivery of a

promissory note and the keys and remote to a vehicle under section 9.009). As is readily apparent

from these examples, section 9.010(a) is intended to be applied when a party fails to deliver

tangible personal or real property that is existing at the time of the divorce and specifically awarded

in the decree. See TEX. FAM. CODE ANN. §§ 9.009, 9.010(a) (West 2006 & Supp. 2014).

        In this case, Carroll agreed to apply for a life insurance policy to replace the SBP, and the

trial court ordered Carroll to deliver the application(s) and Castanon to pay any premiums to

“maintain” any policy that was issued. Accordingly, the only “property” that Carroll was required
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to deliver was the application(s). Because Carroll complied with the trial court’s order by

delivering this “property,” the trial court abused its discretion in awarding the monetary judgment.

                                        ATTORNEY’S FEES

       The issue of attorney’s fees must be reconsidered by the trial court due to the disposition

of this appeal. When a judgment is reversed on appeal, an award of attorney’s fees may no longer

be equitable and just. Boerschig v. Sw. Holdings, Inc., 322 S.W.3d 752, 768 (Tex. App.—El Paso

2010, no pet.). In light of our disposition of this case, we reverse the award of attorney’s fees and

remand this issue so the trial court can reconsider the award of attorney’s fees.

                                           CONCLUSION

       Because the trial court abused its discretion in awarding the monetary judgment, we reverse

the portions of the trial court’s order awarding a monetary judgment and attorney’s fees and

remand the cause to the trial court for further proceedings consistent with this opinion.

                                                  Luz Elena D. Chapa, Justice




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