

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
ALBERTO CAMPOS,
 
                                   
  Appellant,
 
v.
 
RUTH FEMAT CAMPOS,
 
                                    Appellee.
  
 


 
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                  No. 08-11-00066-CV
 
                         Appeal from
 
65th District Court
 
of El Paso County,
  Texas
 
(TC # 2000CM6196)
 




 


 


 



                                                                  O
P I N I O N
 
Alberto Campos appeals from a post-divorce clarification order.  For the reasons that follow, we affirm.
FACTUAL SUMMARY
            On September 25, 2000, Ruth Femat
Campos filed a petition for divorce.  The
Honorable Jose Juarez, Associate Judge of the 65th District Court, conducted
the final hearing on June 4 and November 20, 2001 and entered findings and
recommendations on December 3, 2001.  In
those findings, he awarded an account referred to as “CONSECO account
#ON500147” to both Ruth and Alberto without specifying the percentage awarded
to each party.  Neither party appealed to
the referring court.  The referring court
adopted the findings and recommendations of the associate judge on December 10,
2001 and set January 18, 2002 as the date for entry of the decree.  The district court did not sign the final
decree of divorce until April 24, 2002.  In
the final decree, Ruth was awarded the Conseco account.  
On May 6, 2002, Alberto filed a motion for new trial which the trial
court granted.  Following a second trial
on July 25, 2002, the associate judge issued a corrected recommendation limited
to the issues raised in the motion for new trial and the district court adopted
it on July 30, 2002.  As reflected in exhibits
attached to the corrected recommendation, the court awarded the Conseco
account, valued at $6,899, to Alberto.  The
court signed the divorce decree more than two years later on August 31,
2004.  Ruth filed a motion to clarify and
a motion to set aside the second judgment on the ground that the district court
lacked jurisdiction to grant a new trial. 
The associate judge concluded that the court lost plenary power to grant
a new trial on January 9, 2002, such that the order granting the motion for new
trial, the decree signed on April 24, 2002, the findings and recommendation
adopted on July 30, 2002, and the decree signed on August 31, 2004 were
void.  Alberto appealed that ruling to
the referring court and the district judge adopted the decision of the
associate judge.  Alberto did not appeal
or otherwise challenge that ruling.
On November 7, 2008, Ruth filed a motion for clarification on the ground
that the court had not specified the percentage of the Conseco account awarded
to each party.  The associate judge heard
that motion and entered a clarification order awarding each party a one-half
interest in the Conseco account.  The
associate judge also determined that the account had a value of $18,620.77 on
the date of divorce.  No record was made
of the hearing.  The referring court
adopted the order and later entered written findings of fact and conclusions of
law.  This appeal follows.  


 
 
AUTHORITY TO ENTER
CLARIFICATION ORDER
            In his first issue, Alberto argues
that the trial court did not have authority to change the value of the account
after its plenary power expired.  Alberto
relies on Section 9.007 of the Family Code to support his argument but several
provisions inform our review of this issue. 

A
party affected by a divorce decree providing for a division of property may
request enforcement of that decree by filing a suit to enforce as provided by
Chapter 9 of the Family Code.  Tex.Fam.Code Ann. § 9.001 (West 2006).  The
court that rendered the decree of divorce retains the power to enforce the
property division.  Tex.Fam.Code Ann. § 9.002; see Pearson v. Fillingim, 332 S.W.3d
361, 363 (Tex. 2011).  If the decree is
ambiguous, the court may enter a clarification order.  Tex.Fam.Code
Ann. § 9.006(a); Pearson, 332
S.W.3d at 363.  The court may specify
more precisely the manner of effecting the property division previously made
provided that the substantive division of property is not altered or
changed.  Tex.Fam.Code Ann. § 9.006(b); see Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex.App.--El Paso 1995,
no writ).  
The section relied on by Alberto, Section
9.007, further limits the trial court’s authority:
(a)      
A court may not amend, modify, alter, or change
the division of property made or approved in the decree of divorce or
annulment.  An order to enforce the
division is limited to an order to assist in the implementation of or to
clarify the prior order and may not alter or change the substantive division of
property.
 
(b)      
An order under this section that amends,
modifies, alters, or changes the actual, substantive division of property made
or approved in a final decree of divorce or annulment is beyond the power of
the divorce court and is unenforceable.
 
Tex.Fam. Code Ann. § 9.007(a), (b).
The issue before us is whether the trial court’s order impermissibly
changed or altered the actual, substantive division of property made in the
divorce decree.  The trial court and the
parties have proceeded under the assumption that the associate judge’s
“Findings and Recommendation in Final Divorce/Annulment” adopted by the
referring court on December 10, 2001 constituted the final judgment of the
court and that the final decrees of divorce signed by the referring court on April
24, 2002 and July 30, 2002 were void.  Given
that Alberto failed to challenge the trial court’s order declaring the decrees
of divorce to be void, we likewise will look to the December 10, 2001 order as
the judgment containing the actual substantive division of property.[1]
In that order, the trial court awarded the Conseco account to Alberto and
Ruth without specifying the percentage division.  This deficiency rendered the trial court’s
judgment ambiguous and subject to clarification.  We are unable to determine whether the
clarification order changed the actual substantive division of property because
we have not been provided with a complete record of the final divorce
hearing.  The court reporter has prepared
the record of the final hearing which occurred on June 4, 2001 but the record
contains only three of the fifteen exhibits admitted during that hearing.  The court reporter has informed the court
that the remaining twelve exhibits no longer exist. Similarly, the appellate
record includes the portion of the final hearing which took place on November
20, 2001, but only five of the fifteen exhibits admitted on that date have been
included because the remaining exhibits no longer exist.  
Alberto argues that the trial court altered the property division by
determining in the clarification order that the Conseco account had a value of $18,620.77
on the date of divorce because the associate judge had previously made a
finding that it had a value of only $6,899. 
The December 10, 2001 judgment did not reflect the value of the Conseco
account.  Alberto is correct that the
associate judge’s written findings and recommendations entered after the
retrial showed the Conseco account to have a value of $6,899, but the trial
court determined that those findings were void and Alberto did not challenge
that ruling.  Consequently, we will not
consider those findings in determining whether the trial court had authority to
enter a clarification order.  Given that
the December 10, 2011 judgment did not specify percentage awards and did not
establish the value of the account on the date of divorce, we are unable to
determine from the incomplete record that the clarification order changed the
actual substantive division of property Concluding that the trial court had
authority to enter the clarification order, we overrule Issue One.
SUFFICIENCY OF THE EVIDENCE
In
Issue Two, Alberto challenges the factual sufficiency of the evidence
supporting the trial court’s finding that the account had a value of $18,620.77
on the date of divorce.[2]
Standard of Review
We
review the trial court’s ruling on a post-divorce motion for clarification of a
divorce decree under an abuse-of-discretion standard.   See In
re A.C.B., 302 S.W.3d 560, 563 (Tex.App.--Amarillo 2009, no pet.); Gainous v. Gainous, 219 S.W.3d 97, 103
(Tex.App.--Houston [1st Dist.] 2006, pet. denied).  In determining whether the trial court abused
its discretion, we engage in a two-pronged analysis:  (1) did the trial court have sufficient
information upon which to exercise its discretion; and (2) did the trial court
err in its application of discretion?  Duran v. Garcia, 224 S.W.3d 309, 313
(Tex.App.--El Paso 2005, no pet.).  The
traditional sufficiency standards apply to the first question.  Sotelo
v. Gonzales, 170 S.W.3d 783, 787 (Tex.App.--El Paso 2005, no pet.).  
The
amended clarification order recites that the parties appeared in person and
through their attorneys and that the court considered the pleadings, evidence,
and argument of counsel.  The appellate
record does not include a reporter’s record from this hearing on Ruth’s motion
to clarify.  In the absence of a
reporter’s record, the trial court’s findings of fact are conclusive.  See In
re J.C., 250 S.W.3d 486, 489 (Tex.App.--Fort Worth 2008, pet. denied).  The trial court did not make a specific finding
of fact related to its calculation or determination of the value of the Conseco
account, but the court found that Ruth discovered an error in the judgment that
granted the property to both parties with specifying the percentage awarded to
each party.  Additionally, the court
concluded that all legal prerequisites to the granting of the clarification had
been met, all property in question belonged to the community estate, a division
of the property was a just and right division having due regard for the rights of
each party, the divorce decree failed to specifically award the parties a
percentage of interest in the Conseco account, and an equal division of the
account was a just and right award.  The
court also stated that its conclusions of law could be considered a finding of
fact where applicable.  Texas Rule of
Civil Procedure 299 provides in relevant part that:
The judgment may not
be supported upon appeal by a presumed finding upon any ground of recovery or
defense, no element of which has been included in the findings of fact; but
when one or more elements thereof have been found by the trial court, omitted
unrequested elements, when supported by evidence, will be supplied by
presumption in support of the judgment.
 
Tex.R.Civ.P. 299.  Neither party requested additional findings
of fact and conclusions of law.  The
trial court’s findings include elements of Ruth’s “ground of recovery” so the
omitted finding will be supplied by presumption in support of the judgment.  That deemed finding is conclusive on the issue.  Finding no abuse of discretion, we overrule
Issue Two and affirm the judgment of the trial court.
 
 
July 25, 2012                                       ________________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Rivera, J., not
participating)




[1]  Our opinion should not be interpreted as
approval of the trial court’s determination that any rulings made after January
9, 2002, including the July 30, 2002 divorce decree, were void.
 


[2]  Alberto argues that the evidence is
insufficient but he has not specified whether he is challenging the legal or
factual sufficiency of the evidence and he does not address the standard of
review.  In the prayer, however, he
requests that the clarification order be found void, or alternatively, he asks
that the cause be remanded for a new trial. 
The first request is related to his contention in Issue One that the
trial court lacked jurisdiction or authority to enter the clarification
order.  The second request is related to
Issue Two.  Given that he has not
requested that judgment be rendered in his favor, we have interpreted Issue Two
as raising only a factual sufficiency challenge.


