                                                               ACCEPTED
                                                           06-15-00039-CV
                                                SIXTH COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                                                     10/13/2015 2:07:37 PM
                                                          DEBBIE AUTREY
                                                                    CLERK
            NO. 06-15-00039-CV


           *************               FILED IN
                                6th COURT OF APPEALS
     INTHE COURT OF APPEALS       TEXARKANA, TEXAS
                                10/13/2015 2:07:37 PM
SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
                                         Clerk
         AT TEXARKANA, TEXAS


                *******
            IN THE INTEREST

                 OFT.N.L.

                 A CHILD


                *******

Appealed from the 307TH Family District Court
            Gregg County, Texas
       Trial Court No. 2008-353-DR


         BRIEF OF APPELLEE
          CARLOS LANIER



                  JESSICA A. KROSCHER
                  State Bar # 24070879
                  Attorney at Law
                  P.O. Box 1228
                  Longview, TX 75606
                  Telephone: (903) 553-0085
                  Facsimile: (903) 553-9448
                  jessica@longviewlegal.com

                  ATTORNEY FORAPPELLEE


  APPELLEE WAIVES ORAL ARGUMENT
                                 NO. 06-15-00039-CV


                                IN THE INTEREST OF

                                         T.N.L.

                                       A CHILD




                     IDENTITY OF PARTIES AND COUNSEL
                           Pursuant to T.R.A.P. 38.1 (a)



Appellant:           SAMUEL LANIER                 Marshall, Texas
                     Father of T.N.L.


Appellant's          EBB B. MOBLEY                 P.O. Box2309
trial counsel:       Attorney at Law               Longview, Texas 75606


Appellant's       EBB B. MOBLEY                    P.O. Box 2309
counsel on appeal Attorney at Law                  Longview, TX 75606


Appellee:            CARLOS LANIER                 Longview, Texas
                     Mother of T.N.L.


Appellee's trial     JESSICA KROSCHER              P.O. Box 1228
counsel:             Attorney at Law               Longview, Texas 75606


Appellee's        JESSICA KROSCHER                 P.O. Box 1228
counsel on appeal Attorney at Law                  Longview, Texas 75606

Trial Judge:          TIM WOMACK                   101 East Methvin, Suite 463
                 307th Family District Judge       Longview, Texas 75601




                                      Page 1of12
                                              TABLE OF CONTENTS                                                              Page

 IDENTITYOFPARTIESANDCOUNSEL ............................................... l

 TABLE OF CONTENTS ........................................................................................... 2

 INDEX OF AUTHORITIES ........................................... .............. .. .. .............. ........... 3

 STATEMENT OF THE CASE .................................................................................. 4

 STATEMENTOFFACTS ..................................................................................... 4-6

ISSUE ......................................................................... ............. ....................................... 6

           Did the trial court abuse his discretion by rendering a judgment against a
     defaulting party for the amount of unpaid payments to which the opposing party is
     entitled to under the final decree of divorce?


             SUMMARY OF THE ARGUMENT ........................................................... 7

             ARGUMENT ............................................................................................. 7-11

PRAYER ....................................................................................................................... 11

CERTIFICATE OFCOMPLIANCE ........................................................................ 12

CERTIFICATE OFSERVICE .................... .. ........................................................... 12




                                                SCRIVENER'S NOTE

      The parties are referred to as "Samuel", "former husband", or"appellant", and
"Carlos", "former wife", or " appellee".

      The residence in question located at 2308 Nixson in Longview, Gregg County,
Texas is referred to as "the house."




                                                         Page 2of12
                                    INDEX OF AUTHORITIES

Cases

Forney v. Jorrie, 511S.W.2d379
(Tex.Civ.App.-San Antonio 1974, writ refd n.r.e.) ............................................... 10

In Re Marriage ofPyrtle, 433 S.W.2d 152
(Tex.App.-Dallas 2014, pet. denied) ........................................................................ 10



Statutes

Texas Family Code §9.002 ............................................................... 8

Texas Family Code §9.006 ............................................................... 7

Texas Family Code §9.007(b) ....... ............. ............................. ............ 8

Texas Family Code §9.010 ................................................................ 7

Texas Family Code §9.0lO(b) ....................... ................................. 8,9,10




                                                Page 3of12
                                 STATEMENT OF THE CASE

        This is an appeal from a ruling in a post-divorce proceeding that was brought by a former

wife due to her former husband's failure to meet his financial obligations ordered in the final decree

of divorce. The trial court rendered a judgment against the former husband for the amount of

unpaid payments to which the former wife was entitled.



                                   STATEMENT OF FACTS

        The parties were divorced on September 26, 2008 and the final decree was entered on

November 17, 2008 (Reporter's Record Vol. 2 Page 6)(Clerk's Record Page 24). The final decree

specifically ordered Samuel to pay the house note, insurance premiums and property taxes on the

house in lieu of child support for the minor child T.N.L. (Clerk's Record Page 13). The final

decree further ordered that Samuel was responsible for fifty percent of all maintenance expenses

for the house over the amount of five hundred dollars ($500.00) (Clerk's Record Page 22).

       At a bench trial held on January 28, 2015, Carlos asked the court to award a judgment in

the amount of Samuel's unpaid financial obligations that were ordered in the final decree

(Reporter's Record Vol. 2 Page 9)(Clerk's Record Page 34). Carlos testified that after the divorce,

she was the one who made the mortgage payments, property payments and tax payments and that

Samuel did not make a single payment (Reporter's Record Vol. 2 Page 10). Carlos further testified

that after the final decree was entered, the house nearly went into foreclosure proceedings, due to

Samuel's nonpayment, until Carlos finally caught up the delinquent amount and began making the

payments (Reporter's Record Vol. 2 Page 12). Carlos stated that she had to work two jobs just to

be able to make the house payments every month. (Reporter's Record Vol. 2 Page 13).




                                           Page 4of12
        Carlos further testified that Samuel didn't pay her for one half the cost of a new air

conditioner for the house, and that Samuel's responsibility for the air conditioner totaled one

thousand five hundred ninety seven dollars and fifty cents ($1,597.50) (Reporter's Record Vol. 2

Page 18). The totality of Samuel's financial responsibility under the final decree that remained

unpaid at the time of trial was forty three thousand three hundred fifty three dollars and twelve

cents ($43,353.12) (Reporter's Record Vol. 2 Page 18). Giving Samuel credit toward his financial

obligations for the twenty one thousand nine hundred and forty eight dollar ($21,948.00) payment

that Carlos received from the social security administration, the total amount Samuel was

delinquent at the time of trial was twenty one thousand four hundred and five dollars and twelve

cents ($21,405.12) (Reporter's Record Vol. 2 Page 18).

       Carlos testified that she made all of the mortgage payments from November 11, 2008, the

date of the divorce, through June 1, 2014, when their daughter graduated from high school, for a

total of forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62)

(Reporter's Record Vol. 2 Page 17).

       The final decree specifically gave Carlos the exclusive use of the house until: T.N.L. turned

18 years of age; graduated high school; or the sale of the residence by mutual agreement of Carlos

and Samuel (Clerk's Record Page 22). At that time, the decree orders Carlos to either sell the

house; or purchase Samuel's portion of the equity. In the event of a buyout, Carlos was to order

an appraisal on the home, and pay Samuel for his one-half interest in and to the equity in said

property, over and above outstanding liens thereon (Clerk's Record Page 22-23).

       Carlos testified that she ordered an appraisal on the house and it appraised for sixty nine

thousand dollars ($69,000.00) (Reporter's Record Vol. 2 Page 18). Carlos further testified the




                                          Page 5of12
mortgage payoff as of June 30, 2014 was twenty eight thousand six hundred seventy six dollars

and thirty six cents ($28,676.36) (Reporter's Record Vol. 2 Page 19).

        Samuel testified that he was unable to inquire about the mortgage because his name was

not on the deed (Reporter's Record Vol. 2 Page 33). It was later shown that both Carlos and

Samuel were named on the deed of the house (Reporter's Record Vol. 2 Page 3)(Clerk's Record

Page 81).

        Samuel ultimately conceded that the only proof he had as to whether he met any of the

financial obligations ordered in the final decree were the "words I'm telling you" (Reporter's

Record Vol. 2 Page 39). Samuel further testified to the court that he did not make any payments

required under the divorce decree from either September 11, 2010 or September 11, 2011 forward

(Reporter's Record Vol. 2 Page 48).

       After the bench trial on January 28, 2015, the order was signed on June 4, 2015 (Clerk's

Record Page 106).

       The court's findings of fact and conclusions of law was signed by the trial judge on July

29, 2015 (Clerk's Record Page 119).



                                              ISSUE

       Did the trial court abuse his discretion by rendering a judgment against a defaulting party

for the amount of unpaid payments to which the opposing party is entitled to under the final decree

of divorce?




                                          Page 6of12
                               SUMMARY OF THE ARGUMENT

        The trial court's ruling was not an alteration of the original property division, it was a

judgment against Samuel in the amount of the unpaid payments to which Carlos is entitled to under

the final decree of divorce.



                                          ARGUMENT

Applicable Statutes

Texas Family Code §9.006 provides:

       (a) Except as provided by this subchapter and by the Texas Rules of Civil Procedure, the
       court may render further orders to enforce the division of property made or approved in the
       decree of divorce or annulment to assist in the implementation of or to clarify the prior
       order.

       (b) The court may specify more precisely the manner of effecting the property division
       previously made or approved if the substantive division of property is not altered or
       changed.

       (c) An order of enforcement does not alter or affect the finality of the decree of divorce or
       annulment being enforced.

Texas Family Code §9.010 provides:

       (a) 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.

       (b) If a party did not receive payments of money as awarded in the decree of divorce or
       annulment, the court may render judgment against a defaulting party for the amount of
       unpaid payments to which the party is entitled.

       (c) The remedy of a reduction to money judgment is in addition to the other remedies
       provided by law.

       (d) A money judgment rendered under this section may be enforced by any means available
       for the enforcement of judgment for debt.




                                           Page 7of12
Analysis

        Under section 9.002 of the Texas Family Code, the trial court retains jurisdiction to render

further orders to enforce the division of marital property. However, it is beyond the power of the

trial court to render a ruling after the divorce decree has been entered if it "amends, modifies,

alters, or changes the actual, substantive division of property made or approved in a final decree

of divorce." Tex.Fam.Code §9.007(b).

        Moreover, if a party did not receive payments in accordance with the decree of divorce, the

court may render judgment against a defaulting party for the amount of unpaid payments to which

the party is entitled. Tex.Fam.Code §9.0IO(b).

        The final decree of divorce was entered on November 17, 2008 (Clerk's Record Page 24).

The final decree set aside the house for the exclusive use and benefit of Carlos and T.N.L. until

the earliest of: 1) T .N .L. attaining eighteen years of age or finishing high school; or 2) the sale of

the house by mutual agreement of Carlos and Samuel (Clerk's Record Page 22). During this period

of exclusive occupancy, Samuel was ordered to pay the house note, insurance premiums and

property taxes in lieu of child support (Clerk's Record Page 13).          Additionally, Samuel was

ordered to pay fifty percent of all maintenance expenses associated with the house that were above

five hundred dollars ($500.00) (Clerk's Record Page 22).

        Since T.N.L. has both reached the age of eighteen and graduated from high school, it is

undisputed that under the final decree, the house must be either sold or Carlos must purchase

Samuel's interest in the property (Clerk's Record Page 22-23). In accordance with the final decree,

Carlos began the proceedings to purchase Samuel's interest in the house. She had the property

appraised, and a value of sixty nine thousand dollars ($69,000.00) was attributed to the house

(Reporter's Record Vol. 2 Page 18). Carlos' testimony and the court's ruling follow Carlos'




                                            Page 8of12
summary ofrequested relief found in the Clerk's Record Page 34:

                                   Summary of Requested Relief

Mortgage Payment Mr. Lanier should have made                                        $41,755.62
(beginning 11111/2008 through 06/01/2014)
Repairs Mr. Lanier should have reimbursed                                            $1,597.50
Total owed by Mr. Lanier                                                            $43,353.12

Amount child received from Social Security Administration                           -$21,948.00
Amount remaining owed by Mr. Lanier                                                 $21,405.12

Value of home (Ct. ordered appraisal attached as exhibit "C")                       $69 000.00
Mortgage payoff through 06/30/2014                                                  -$28,676.36
Total Equity                                                                        $40 323.64

Amount still owed by Mr. Lanier                                                      $21,405.12
Each Yz Equity (approximate)                                                        -$20,161.82
Difference owed by Mr. Lanier                                                        $1,243.30


        The trial court's adoption of the above listed requested relief in its ruling was a judgment

against a defaulting party for the amount of unpaid payments to which the party is entitled, which

is permitted under Texas Family Code §9.0lO(b).

        Samuel presented no tangible proof at trial that he met any of his financial obligations

under the final decree. Samuel did claim to have made some cash payments before he stopped

working in September of 2010 or 2011, but conceded to the court that he had made no payments

since he stopped working (Reporter's Record Vol. 2 Page 48). The court was not persuaded by

Samuel's testimony and lack of tangible evidence and ultimately made a finding that he made no

payments (Clerk's Record Page 121-122). As a result of his nonpayment, the court found that

Carlos paid forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62)

in mortgage, tax and insurance payments that Samuel should have made (Clerk's Record Page

121).

        In addition to not paying the mortgage note, insurance or the taxes on the house, Samuel




                                           Page 9of12
failed to pay for his one half of the maintenance expense related to a new air conditioner. Samuel

once again offered no proof of meeting his financial obligation and the court found that he had not

paid any portion of the three thousand one hundred ninety five dollar ($3,195.00) maintenance

expense (Clerk's Record Page 121).

           The ruling of the court regarding Samuel's nonpayment of his financial obligations under

the final decree establishes Samuel as a party in default under Texas Family Code §9.lOl(b).

Further, it is undisputed that Samuel was ordered to make these payments under the final decree.

By making the payments that Samuel was ordered to make, Carlos is entitled to a judgment in the

amount of the unpaid payments under Texas Family Code §9.lOl(b). Accordingly, the court did

not abuse his discretion by entering a judgment against Samuel in the amount of his default. It has

been established that it is entirely permissible to reduce delinquent monthly payments to a

judgment. Forneyv. Jorrie, 511S.W.2d379, 385 (Tex.Civ.App.-SanAntonio 1974, writref'd

n.r.e.).

           Moreover, Texas courts have ruled that if a party "does not comply with the portion of the

property division in the decree ... the trial court ha[ s] the authority to reduce the property division

made in the divorce decree to a money judgment." In Re Marriage of Pyrtle, 433 S.W.2d 152,

165 (Tex.App.-Dallas 2014, pet. <Enied). That is what the court has done in the present situation

and as a result, there has been no impermissible amendment, modification, alteration or change to

the substantive division of property found in the decree. Id.

           It is important to note that even though Samuel claims Carlos violated the final decree by:

1) allowing other persons to occupy the home; and 2) not distributing her Skeeter retirement

account, Samuel had no affirmative pleadings on file with the court at the time of trial.

           As previously discussed, the final decree set aside the house for the exclusive use and




                                             Page 10of12
benefit of Carlos and T.N.L. It is Carlos that is the one to determine what use and benefits she

derives from the property, not her ex-husband. The fact that other people were living in the house

was not prohibited nor even addressed in the final decree of divorce. In any event, additional

persons living in the house with Carlos and T.N.L. would not waive any of Samuel's financial

obligations under the final decree.

        Samuel also has a contention concerning Carlos' Skeeter retirement account. If this is

indeed accurate, the appropriate remedy for Samuel would be to file a Qualified Domestic

Relations Order in order to obtain his portion of the account. In fact, as has been the case

throughout the present situation, it is Samuel's inaction that is the primary source of his contention

with Carlos' retirement account. The only appropriate remedy, that continues to be available to

Samuel, is a Qualified Domestic Relations Order.



                                                PRAYER

       WHEREFORE, PREMISES CONSIDERED, Carlos Lanier, respectfully requests that the

Court affirm the judgment of the trial court.


                                                 Respectfully submitted,

                                                 JESSICA A. KROSCHER
                                                 Attorney at Law
                                                 State Bar# 24070879
                                                 P.O. Box 1228
                                                 Longview, TX 75606
                                                 Telephone: (903) 553-0085
                                                 Facsimile: (903) 553-9448
                                                 jessica@longviewlegal .com


                                                 Isl JESSICA A. KROSCHER
                                                 JESSICA A. KROSCHER
                                                 ATTORNEY FORAPPELLEE




                                           Page 11 of 12
                             CERTIFICATE OF COMPLIANCE

I certify that this brief contains 2, 164 words according to the computer program used to prepare
the document.

                                             /s/ JESSICA A. KROSCHER
                                             JESSICA A. KROSCHER


                                CERTIFICATE OF SERVICE

      A copy of this brief was sent to counsel for the Appellant Ebb Mobley, at P.O. Box 2309,
Longview, TX 75606, on the 13th day of October, 2015 by efile.

                                             /s/ JESSICA A. KROSCHER
                                             JESSICA A. KROSCHER




                                         Page 12of12
