                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-18-00123-CV


DALE WAYNE MOSELEY                                                APPELLANT

                                       V.

DIANNA RUTH GANDEE                                                  APPELLEE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2012-50467-367

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                        MEMORANDUM OPINION 1

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      Appellant Dale Wayne Moseley appeals the trial court’s orders granting

Appellee Dianna Ruth Gandee’s motion to enforce the parties’ divorce decree,

appointing a receiver, and denying Moseley’s motion to enforce. We affirm.




      1
      See Tex. R. App. P. 47.4.
                                   Background

      Moseley and Gandee married in 2003. The trial court rendered a final

divorce decree in May 2015. Under the headings “Reimbursement Claims” and

“Equalization Judgment,” the decree included the following:

      Reimbursement Claims

             The Court finds that the husband DALE WAYNE MOSELEY is
      entitled to reimbursement from DIANNA RUTH GANDEE’s separate
      property estate in the sum of $38,000.00 for pre-marriage payments
      to reduce the debt on wife’s separate McReynolds[] house.

            The Court finds that the community estate is entitled to
      reimbursement from DIANNA RUTH GANDEE’s separate property
      estate in the amount of $22,000.00 for community payments to
      reduce the debt on wife’s separate property McReynolds[] house.

             The Court finds that wife DIANNA RUTH GANDEE is entitled
      to a reimbursement from the community estate in the amount of
      $217,000.00 for her separate property contribution to the purchase
      of the Crow Wright house.

      Equalization Judgment

          IT IS DECREED AND ORDERED that . . . the wife DIANNA
      RUTH GANDEE is awarded a judgment of $45,441 against DALE
      WAYNE MOSELEY as part of the fair and equitable division of the
      community estate.

      Moseley requested findings of fact and conclusions of law. In July 2015,

the trial court made the following conclusion of law, among others:

      Conclusions of Law – 50/50 Division of Community

            . . . After taking into account the value of all personal and real
      property awarded to each party and then applying the requisite
      reimbursement claims, a judgment in the amount of $45,441.00
      against Dale Wayne [Moseley] in favor of Dianna Ruth Gandee was
      required to equalize the distribution of the community estate.


                                         2
      In August 2015, the trial court rendered its “First Amended Final Decree of

Divorce.” The only difference between the original decree and the first amended

decree is the substitution of the words “[t]he Court ORDERS AND DECREES” for

the words “[t]he Court finds” in the “Reimbursement Claims” paragraphs quoted

above.

      Gandee filed a motion to enforce the amended decree’s equalization

judgment and to appoint a receiver in February 2016. Moseley filed a response,

alleging that the amended decree’s reimbursement paragraphs and equalization

judgment were ambiguous and requesting a clarifying order. Moseley also filed

his own motion for enforcement, alleging that Gandee failed to reimburse his

separate property estate and the community property estate as ordered by the

amended decree.

      In April 2016, the trial court issued an order appointing a receiver,

essentially granting Gandee’s motion to enforce the decree. In May 2016, the

trial court denied Moseley’s motion for enforcement.     Moseley filed a timely

notice of appeal.




                                       3
                                  Discussion

1.    The trial court did not abuse its discretion or impermissibly alter the
      amended decree by granting Gandee’s motion to enforce and
      denying Moseley’s.

      In his first two issues, Moseley argues that the trial court abused its

discretion and impermissibly altered the amended decree by denying his motion

to enforce while granting Gandee’s.

      We review a trial court’s ruling on a motion for enforcement under an

abuse-of-discretion standard. In re M.K.R., 216 S.W.3d 58, 61 (Tex. App.—Fort

Worth 2007, no pet.); Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas

2005, no pet.).    A trial court abuses its discretion if the court acts without

reference to any guiding rules or principles, that is, if the act is arbitrary or

unreasonable.     Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

      If a divorce decree does not arise from an agreement of the parties, it is

construed according to the same rules as other judgments, as opposed to the

law of contracts, which is applied to consent or agreed judgments. Soto v. Soto,

936 S.W.2d 338, 340 (Tex. App.—El Paso 1996, no writ) (op. on reh’g). If a non-

consent decree is unambiguous under the law in effect at the time the judgment

was rendered, it is construed in accordance with its literal language. Wilde v.

Murchie, 949 S.W.2d 331, 332 (Tex. 1997); Soto, 936 S.W.2d at 340–41;

Barnard v. Barnard, 863 S.W.2d 770, 772 (Tex. App.—Fort Worth 1993, no writ).

But if a non-consent divorce judgment is ambiguous, the reviewing court must


                                       4
look both to the decree as a whole and to the record to determine the meaning of

the judgment. Wilde, 949 S.W.2d at 332–33; Soto, 936 S.W.2d at 341.

      Judgments, like other written instruments, are to be construed as a whole

toward the end of harmonizing and giving effect to all the court has written.

Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976). “Conclusive effect

is not to be given the use or not at a particular point in the judgment of the

commonly employed decretal words, and what the court had adjudicated is to be

determined from a fair reading of all the provisions of the judgment.” Id.

      “Decretal” means the granting or denying of the remedy sought. Envtl.

Procedures, Inc. v. Guidry, 282 S.W.3d 602, 620 n.21 (Tex. App.—Houston [14th

Dist.] 2009, pet. denied) (op. on reh’g).     The factual recitations or reasons

preceding the decretal portion of a judgment form no part of the judgment itself.

Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth 2001,

no pet.); see also Redwine v. Peckinpaugh, 535 S.W.3d 44, 49 (Tex. App.—Tyler

2017, no pet.); Hines v. Villalba, 231 S.W.3d 550, 553 (Tex. App.—Dallas 2007,

no pet.); Crider v. Cox, 960 S.W.2d 703, 705 (Tex. App.—Tyler 1997, writ

denied).   Moreover, where there appears to be a discrepancy between the

judgment’s recital and decretal paragraphs, recitals preceding the decretal

portions of the judgment do not determine the rights and interests of the parties.

Alcantar, 47 S.W.3d at 823. Rather, the decretal provisions in the judgment

control. Id.




                                         5
      The provisions of the amended decree at issue here are the

“Reimbursement Claims” and the “Equalization Judgment.”                 The three

reimbursement-claim paragraphs employ the same verbal formula: “The Court

ORDERS AND DECREES that” one party or estate “is entitled to reimbursement”

from another party or estate. [Emphasis added.]        The equalization-judgment

paragraph uses slightly different language: “IT IS DECREED AND ORDERED

that [Gandee] is awarded a judgment of $45,441 against [Moseley] as part of the

fair and equitable division of the community estate.” [Emphasis added.]

      As noted above, the decree’s inclusion of the commonly used decretal

verbs “order” and “decree” are not conclusive in our interpretation of the relevant

provisions’ meaning. See Constance, 544 S.W.2d at 660. The more significant

verbs in these provisions are “entitled” in the reimbursement paragraphs and

“awarded” in the equalization paragraph.

      The meaning of “awarded” in the equalization paragraph is unambiguous.

The meaning of “entitled” in the reimbursement claims is less so. “Award” means

to “grant by formal process or by judicial decree.” Award, Black’s Law Dictionary

164 (10th ed. 2014). “Entitle,” however, can mean either to “grant a legal right to”

or “[to] qualify for.”   Entitle, Black’s Law Dictionary 649.        One possible

interpretation is that the decree uses the verbs “awarded” and “entitled”

interchangeably. But an equally possible interpretation is that “entitled” as used

in the reimbursement paragraphs comports with the second possible definition of

the term, “to qualify for.”   If so, then the court used the term “entitled” to


                                         6
recognize the various estates’ rights to reimbursement while it employed the term

“awarded” in the equalization paragraph to actually effectuate the division of the

property. Under this interpretation, the reimbursement paragraphs are recitals,

and the equalization paragraph is the decretal provision.              Because the

reimbursement paragraphs are susceptible to multiple interpretations when

juxtaposed   against   the   equalization     paragraph,   we   conclude    that   the

reimbursement paragraphs are ambiguous.

      Having determined that the reimbursement paragraphs are ambiguous, we

turn to the rest of the decree and the record to determine their meaning. See

Wilde, 949 S.W.2d at 332–33; Soto, 936 S.W.2d at 341. First, we note that the

verb “entitled” appears only in the decree’s reimbursement paragraphs; the

decree uses the verb “awarded” everywhere else.

      Second, the amended decree’s headings identify the reimbursement

paragraphs as “claims” but the equalization paragraph as a “judgment.”

      Third, in its findings of fact and conclusions of law made after the trial court

signed the original decree, the trial court concluded that it awarded the

equalization judgment after “taking into account the value of all personal and real

property awarded to each party and then applying the requisite reimbursement

claims,” suggesting that the trial court did not intend the reimbursement

paragraphs to function as separate awards. [Emphasis added.] The trial court

incorporated this conclusion by reference into its response to the request for




                                          7
findings of fact and conclusions of law Moseley made after the court rendered the

amended decree.

      Fourth, at a July 2016 hearing on Moseley’s motion to reconsider the

appointment of a receiver, the parties argued about whether the reimbursement

paragraphs represented separate awards or were included in the equalization

paragraph’s award. The trial judge said she had considered all offsets when

awarding the equalization judgment.

      Considering the reimbursement paragraphs in light of the rest of the

amended decree and the record as a whole, we conclude that the reimbursement

paragraphs are not separate awards.           Rather, they are recitals that are

subsumed within the equalization judgment’s decretal language awarding

$45,441 to Gandee.      We therefore hold that the trial court did not abuse its

discretion or impermissibly alter the amended decree by granting Gandee’s

motion to enforce and denying Moseley’s.         We overrule Moseley’s first and

second issues.

2.    The trial court did not abuse its discretion by appointing a receiver.

      In his third issue, Moseley argues the trial court abused its discretion by

appointing a receiver to enforce the equalization judgment.

      A trial court has broad powers to enlist the aid of a receiver to effectuate its

orders and judgment. Young v. Young, 765 S.W.2d 440, 444 (Tex. App.—Dallas

1988, writ denied) (citing Elliott v. Elliott, 422 S.W.2d 757, 758 (Tex. Civ. App.—




                                         8
Fort Worth 1967, writ dism’d w.o.j.)). The appointment of a receiver is left to the

discretion of the trial court. Id.

       Moseley argues that the trial court abused its discretion when it appointed

a receiver because he acted in good faith when he “sought and followed the

advice of two attorneys in interpreting the terms of the Decree” when he failed to

pay the $45,441 equalization judgment. 2       Moseley cites no authority for the

proposition that a party’s good-faith failure to comply with a divorce decree takes

the appointment of a receiver outside the trial court’s discretion. Moseley cites

one case—Cook v. Cameron, 733 S.W.2d 137, 141 (Tex. 1987) (op. on reh’g)—

for the idea that a party should not be punished for a good-faith interpretation of a

decree. But we do not find that case instructive under the circumstances present

here, as it did not involve the appointment of a receiver (it involved the legal

interpretation of a decree’s contingent-escalation clause), and it was not decided

under the abuse-of-discretion standard. See id. at 140–41.

       Under the circumstances presented by the record before us, we hold that

the trial court did not abuse its broad discretion by appointing a receiver to

effectuate the decree’s equalization judgment. See Young, 765 S.W.2d at 444.

We overrule Moseley’s third issue.



       2
       We note that the record before us contains no evidence that Moseley
consulted with two attorneys or what those attorneys advised him to do. Moseley
relies on his own unsworn supplemental motion for reconsideration of
appointment of a receiver to support his argument.


                                         9
                                  Conclusion

      Having overruled all of Moseley’s issues, we affirm the trial court’s orders.

See Tex. R. App. P. 43.2(a).

                                                  /s/ Bonnie Sudderth

                                                  BONNIE SUDDERTH
                                                  CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

DELIVERED: June 21, 2018




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