                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00177-CV


GROVER C. GIBSON                                                APPELLANT

                                        V.

LEHOMA JOYCE GIBSON                                               APPELLEE


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          FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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      Appellant Grover C. Gibson appeals from the divorce decree dividing the

parties’ marital estate and awarding attorney’s fees to Appellee Lehoma Joyce

Gibson. In one point, Grover complains that the trial court erred by awarding

attorney’s fees to Lehoma. We affirm.




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

         This is the second appeal relating to the parties’ divorce.       Grover and

Lehoma were married in 1955, and Lehoma filed for divorce in 1998. The case

proceeded to trial in September 2000. On May 26, 2003, the trial court issued a

letter ruling setting forth its decision regarding the division of the marital property.

The letter ruling provided that each party was to pay his or her own attorney’s

fees and court costs. The trial court entered a corrected final divorce decree on

January 5, 2004, dividing the marital estate. The corrected decree also stated

that each party was responsible for his or her own attorney’s fees, expenses, and

costs.

         Grover appealed. This court affirmed the portion of the judgment granting

the parties a divorce but reversed the trial court’s judgment as to the property

division because the final decree awarded to Lehoma specific partnership

property owned by GCG Partners, L.P., a limited partnership in which Grover

owned a fifty percent community property interest, rather than awarding her an

interest in the partnership. Gibson v. Gibson, 190 S.W.3d 821, 822–23 (Tex.

App.—Fort Worth 2006, no pet.) (op. on reh’g). This court remanded the case to

the trial court to redivide the parties’ community estate. Id. at 823.

         After remand, the trial court entered two orders sanctioning Grover for

failing to respond to Lehoma’s interrogatories and requests for production

regarding Grover’s current assets and liabilities.       Each of these orders, one

signed April 8, 2011, and the other signed September 16, 2011, ordered Grover

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to pay $15,000.00 in attorney’s fees to Lehoma’s attorneys.           Grover paid

$30,000.00 in discovery sanctions pursuant to these orders.

      On January 24, 2012, the case was called for trial.          The trial court

announced on the record that the parties had reached an agreement regarding

the division of the marital property, but the parties had not reached an agreement

regarding Lehoma’s request for attorney’s fees.       Lehoma and Grover each

testified that they agreed to divide the marital assets as set forth in the trial

court’s May 26, 2003 letter ruling.     Attorneys for both Lehoma and Grover

testified regarding the reasonable and necessary attorney’s fees incurred by their

respective clients.    The trial court approved the agreement of the parties

regarding the division of the marital assets and adopted the May 26, 2003 letter

ruling as the rendition of the court with respect to the marital assets but delayed

its ruling on attorney’s fees.

      The trial court signed the final divorce decree on April 5, 2012. In addition

to dividing the marital property in accordance with the parties’ agreement, the

order awarded Lehoma $92,867.00 in attorney’s fees and $27,500.00 in

conditional appellate attorney’s fees. The trial court issued findings of fact and

conclusions of law, finding that the division of the marital assets in accordance

with the May 26, 2003 letter ruling agreed to by the parties was a just and right

division of the marital estate. The trial court further found that Grover failed to

produce any evidence of his current assets and liabilities and that “the effect of

[Grover’s] actions after the credit for the $30,000.00 he paid pursuant to

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discovery sanction orders was to deplete [Lehoma’s] assets awarded to her on

May 26, 2003 by the costs she incurred in this litigation.” The court also found

that Lehoma incurred $92,867.00 in reasonable and necessary attorney’s fees

and expenses after March 26, 2003 and that Lehoma should be awarded

judgment against Grover for these fees as a result of Grover’s conduct and as a

just and right division of the marital estate as well as under chapter 9 of the

Texas Family Code.      The trial court additionally found that $27,500.00 were

reasonable and necessary appellate attorney’s fees.

                                   II. Analysis

      In his only point on appeal, Grover complains the trial court erred by

awarding attorney’s fees to Lehoma. Grover argues that the trial court had no

authority to award attorney’s fees as part of a just and right division of the

community estate because the property was divided by an agreement of the

parties rather than the court. Grover further argues that the trial court was not

authorized to award attorney’s fees to Lehoma under family code sections 9.014

or 9.205 because the proceeding after remand was not a post-divorce

proceeding. See Tex. Fam. Code Ann. §§ 9.014, 9.205 (West Supp. 2013).

      In its conclusions of law, the trial court concluded that it had the authority

to award Lehoma attorney’s fees as part of the division of the parties’ estate and

as an equitable division or, in the alternative, under chapter 9 of the family code.

We agree with Grover’s argument that neither section 9.014 nor section 9.205 is

applicable in this case. Section 9.014 permits a trial court to award reasonable

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attorney’s fees in a proceeding to enforce a divorce decree, while section 9.205

allows a trial court to award reasonable attorney’s fees in a proceeding to divide

property previously undivided in a divorce decree. See id. The original divorce

decree in this case disposed of the parties’ property, but the decree did not

become final as to the property division because of Grover’s appeal and remand

by this court. See Goetz v. Goetz, 567 S.W.2d 892, 894 (Tex. Civ. App.—Dallas

1978, no writ). As in Goetz, “[o]ur limited remand of the property division issue

did not change the essential marital character of the dispute.” Id. The dispute

remained a matter of disposition of the marital estate, not a matter of disposition

of undivided property or the enforcement of a decree.          See id.; see also

O’Carolan v. Hopper, 414 S.W.3d 288, 313 (Tex. App.—Austin 2013, no pet.)

(op. on reh’g); Wilson v. Wilson, 44 S.W.3d 597, 599–600 (Tex. App.—Fort

Worth 2001, no pet.).       Therefore, application of marital-property law was

required. See O’Carolan, 414 S.W.3d at 313; Wilson, 44 S.W.3d at 599–600;

Goetz, 567 S.W.2d at 895.

      In a divorce proceeding, a trial court is charged with dividing the

community estate in a “just and right” manner, considering the rights of both

parties. Tex. Fam. Code Ann. § 7.001 (West 2006); Watson v. Watson, 286

S.W.3d 519, 522 (Tex. App.—Fort Worth 2009, no pet.).           While there is no

statute specifically authorizing an award of attorney’s fees in a divorce

proceeding, a trial court may consider reasonable attorney’s fees, along with the

parties’ circumstances and needs, in effecting a just and right division of the

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estate.   See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981); Mandell v.

Mandell, 310 S.W.3d 531, 541 (Tex. App.—Fort Worth 2010, pet. denied); see

also Tedder v. Gardner Aldrich, LLP, 56 Tex. Sup. Ct. J. 557, 2013 WL 2150081,

at *3–4 (May 17, 2013). The trial court has the equitable power to award either

spouse attorney’s fees as a part of the just and right division of the marital estate.

Mandell, 310 S.W.3d at 541.

      Grover concedes that the trial court may award attorney’s fees as part of

its just and right division of the parties’ marital estate, but he maintains that the

trial court could not award attorney’s fees as a just and right division in this case

because the division of the community estate was not in controversy and was

divided by agreement.      Grover does not cite nor have we found any legal

authority to support this contention. Because the trial court has equitable power

to award either spouse attorney’s fees as a part of the just and right division of

the marital estate, we conclude the trial court did not err by awarding attorney’s

fees to Lehoma. Accordingly, we overrule Grover’s sole point.




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                                III. Conclusion

     Having overruled Grover’s only point, we affirm the trial court’s judgment.



                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: January 23, 2014




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