                                           NO. 07-08-0144-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL C

                                           DECEMBER 3, 2009

                                ______________________________


                             IN THE MATTER OF THE MARRIAGE OF

                    RITA LACKEY FILLINGIM AND WILLIS DAN FILLINGIM

                             _________________________________

                FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;

                   NO. 4,330;1 HONORABLE STEVEN R. EMMERT, JUDGE

                               _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION ON REHEARING


        On March 24, 2009, this Court issued its original Memorandum Opinion in this case.

Appellee filed a motion for rehearing on April 15, 2009, complaining of, among other things,



        1
          Although a final Decree of Divorce was previously entered in this cause on June 9, 1981, the parties
agreed to consolidate the declaratory judgm ent action filed April 28, 2006, in Cause No. 6,397, styled W illis
Dan Fillingim vs. Rita Lackey Fillingim, with the petition for clarifying order filed April 28, 2006, in Cause No.
4,330, styled In the Matter of the Marriage of Rita Lackey Fillingim and W illis Dan Fillingim. The Final
Judgment entered on February 5, 2008, in the consolidated action, is the judgm ent being appealed.
this Court’s analysis as to whether the residuary clause contained within the decree of

divorce encompassed the disputed mineral interests at issue.                          Having considered

Appellee’s Motion for Rehearing, Appellant’s Objection to Opinion Granting Motion for

Rehearing and Conditional Motion for Rehearing, Appellant’s Response to Motion for

Rehearing, and Appellee’s Reply to Appellant’s Response on Rehearing, we hereby grant

Appellee’s motion for rehearing, withdraw our opinion and judgment dated March 24, 2009,

and issue this opinion in lieu thereof.


        Appellant, Rita Lackey Fillingim (Rita), appeals from a judgment rendered in favor

of Appellee, Willis Dan Fillingim (Dan), declaring certain mineral properties acquired during

their marriage to be his sole and separate property and finding that the Decree of Divorce

entered on June 9, 1981, did not divide or partition that property. By three issues, Rita

asserts the trial court erred (1) in determining that their Decree of Divorce did not preclude

Dan’s suit under the doctrine of res judicata; (2) in finding jurisdiction existed to alter the

original property division; and (3) by declaring that Dan established his separate property

ownership of the mineral rights by clear and convincing evidence. We affirm.


                                               Background


        Rita and Dan were married in 1970. During their marriage, by four separate

instruments, Dan’s parents deeded certain mineral interests to Dan, as grantee.2 One of


        2
          Three of the four instrum ents also nam ed Dan’s sister, Mary Louis Fillingim , as a grantee. None of
the four instrum ents nam ed Rita as a grantee.

                                                      2
the four deeds recited as consideration “$10.00 cash in hand paid and the love and

affection which we have for our children . . . .” Although the other three deeds did not

contain language indicating that the conveyances were intended to be gifts, Dan contends

that the mineral interests conveyed thereby were his separate property by virtue of being

gifts from his parents. Subsequent to receipt of the deeds, but during their marriage, Rita

and Dan jointly executed oil and gas leases pertaining to the properties and, on one

occasion, they executed a warranty deed conveying an interest in mineral rights to a third

party.


         In 1981, Rita filed for divorce. It is undisputed that Dan was properly cited in

connection with the proceedings; however, during the pendency of the divorce, he did not

hire an attorney to represent him, nor did he personally appear or offer any evidence at the

final hearing. On June 9, 1981, the trial court entered a Decree of Divorce that provided,

in pertinent part, as follows:


         IT IS DECREED that the estate of the parties be divided as follows:


         Petitioner [Rita] is awarded the following as petitioner’s sole and separate
         property, and respondent is hereby divested of all right, title, and interest in
         and to such property: All property listed in Schedule A attached hereto and
         made a part hereof by reference.


         Respondent [Dan] is awarded the following as respondent’s sole and
         separate property and petitioner is hereby divested of all right, title, and
         interest in and to such property: All property listed in Schedule B attached.



                                                3
        Although Schedules A and B described certain real and personal property, there

was no mention of the mineral interests the subject of this dispute.3 Each schedule did,

however, contain a residuary clause awarding each spouse “a one-half interest in all other

property or assets not otherwise disposed of or divided herein.”


        On April 28, 2006, Dan filed two proceedings seeking to clarify his ownership of the

mineral interests transferred by the deeds from his parents. Under the cause number of

his original divorce proceeding, cause number 4330, Dan filed a Petition for Clarifying

Order, wherein he sought to invoke the jurisdiction of the divorce court to “clarify” the 1981

divorce decree. In cause number 6397, filed in the same district court, Dan also sought

a declaratory judgment pertaining to his ownership interests. On June 14, 2006, the two

proceedings were consolidated and on July 26, 2006, Dan filed his First Amended Original

Petition requesting that the trial court grant, or declare, him the sole owner of the mineral

interests deeded to him during marriage. Dan asserted that because the mineral interests

in question were his sole and separate property at the time of his divorce, the divorce court

could not, as a matter of law, partition said interests.


        On January 22, 2008, the trial court tried Dan’s suit. In addition to admitting the

aforementioned deeds into evidence, the trial court heard testimony from Dan and Rita.

Dan testified that, when he was in his teens, his father told him numerous times that he



        3
          Nothing in the record before us indicates whether the trial court, at the tim e of the divorce, was aware
of or otherwise considered the m ineral interests in dispute when dividing the estate of the parties.

                                                        4
was going to help him with gifts of land and mineral rights. He testified that he never paid

any consideration for the properties and believed the conveyances in question were the

gifts his father had spoken of years before.


       Rita testified that her only conversations with Dan’s parents regarding the

conveyances occurred when the deeds were originally given to them. Rita further testified

that each time they received a deed, she and Dan were required to sign an oil and gas

lease. She testified that Dan’s parents indicated they were giving the deeds to them both

as a married couple. She denied having any conversation with Dan regarding the mineral

interests following their divorce.


       After hearing the testimony and reviewing the various conveyances, the trial court

determined Dan’s parents executed the deeds intending gifts. As such, the trial court

found that the mineral interests were Dan’s sole and separate property. The trial court also

found that the divorce decree did not divide or partition the separate property of the parties.

Based upon those findings, the trial court entered judgment and Rita appealed.


                                 Discussion - Issue Three


       For purposes of logical discussion, we will first address Rita’s third issue wherein

she contends that the evidence offered by Dan at trial failed to establish the separate

property character of the mineral interest conveyed by three of the four deeds in dispute.




                                               5
       In the proceedings below, it was Dan’s contention that the mineral interests in

question were his separate property because they had been acquired by gift from his

parents. See Tex. Fam. Code Ann. § 3.001(2) (Vernon 2006). The degree of proof

necessary to establish that property is separate property is clear and convincing evidence.

Id. at § 3.003(b) (Vernon 2006). “Clear and convincing evidence” is that measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established. Id. at § 101.007 (Vernon 2008);

In re J.F.C. 96 S.W.3d 256, 264 (Tex. 2002). Rita contends that because the first deed

contained “gift language,” the absence of similar language in the remaining three deeds

is some evidence that the grantees did not intend to make a gift by those deeds.


       To give appropriate deference to the factfinder’s conclusions and the role of this

Court in conducting a sufficiency review, we assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so. 96 S.W.3d at 266. A

corollary to this requirement is that we also disregard all evidence that a reasonable

factfinder could have disbelieved or found to be incredible. Id. Based upon this analysis,

we are persuaded that the trial court’s finding of separate property is such that a

reasonable trier of fact could have formed a firm belief or conviction that its finding was

true. Issue three is overruled.




                                              6
                                 Discussion - Issues One and Two


        Having concluded that the trial court’s finding of separate property does not

constitute reversible error, we proceed to consider issues one and two. By issues one and

two, Rita contends that Dan’s claims are barred by the doctrine of res judicata and by the

fact that the trial court lacked jurisdiction to alter the prior divorce decree.


        A court that renders a divorce decree generally retains continuing subject-matter

jurisdiction to clarify and to enforce the decree’s property division. Tex. Fam. Code Ann.

§§ 9.002, 9.008 (Vernon 2006).4 Specifically, the court has continuing jurisdiction to

“render further orders to enforce the division of property made in the decree of divorce . . .

to assist in the implementation of or to clarify the prior order.” § 9.006(a).5


        There are limitations, however, on the enforcement and clarification powers of the

court that rendered the divorce decree. For example, “[t]he court may specify more

precisely the manner of effecting the property division previously made if the substantive

division of property is not altered or changed. § 9.006(b) (emphasis added). More

specifically, the Family Code provides, in pertinent part, as follows:




        4
         For convenience, provisions of the Texas Fam ily Code will hereinafter be cited as “§____” and/or
“Section____”.

        5
          Clarifying orders m ay m ore precisely specify the m anner of carrying out a previously ordered property
division so long as the substantive division of the property is not altered. See McPherren v. McPherren, 967
S.W .2d 485, 490 (Tex.App.–El Paso 1998, no pet.).

                                                        7
         (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 divorce or annulment is beyond the power of
         the divorce court and is unenforceable.


§ 9.007 (a)-(b) (emphasis added). See Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex.

2003).


         Section 9.007 is jurisdictional and orders violating its restrictions are void. Gainous

v. Gainous, 219 S.W.3d 97, 107-08 (Tex.App.–Houston [1st Dist.] 2006, pet. denied).

Thus, where one party seeks to claim a share of an asset that has already been divided

in the divorce decree, the claim is barred. Brown v. Brown, 236 S.W.3d 343, 349

(Tex.App.–Houston [1st Dist.] 2007, no pet.).6


         As such, a clarifying order cannot be used to make a substantive change in the

decree’s property division even if the decree contains a substantive legal error. Brown,

236 S.W.3d at 349. Clarification also requires a finding, express or implied, that the

original form of the division of property lacks sufficient specificity to be enforced by


         6
           Not only is there no jurisdiction for an order altering the substantive division of property, a judgm ent
finalizing a divorce and partitioning the property represents res judicata to any attem pt to relitigate the division
of property at a later tim e. Reiss v. Reiss, 118 S.W .3d 439, 443 (Tex. 2003); Day v. Day, 603 S.W .2d 213,
215 (Tex. 1980). The doctrine of res judicata applies to a final divorce decree to the sam e extent that it
applies to any other final judgm ent. Mayes v. Stewart, 11 S.W .3d 440, 449 (Tex.App.–Houston [14 th Dist.]
2000, pet. denied) (citing Baxter v. Ruddle, 794 S.W .2d 761, 762 (Tex. 1990)).

                                                         8
contempt. § 9.008(b). If a divorce decree is unambiguous, the court has no authority to

alter or modify the original disposition of the property. Haworth v. Haworth, 795 S.W.2d

296, 300 (Tex.App.–Houston [14th Dist.] 1990, no writ]. Here, the trial court made no

finding, express or implied, that the divorce decree was ambiguous or needed clarification.


       Therefore, the critical determining factor here is whether the mineral rights conveyed

to Dan during the marriage were divided by the original divorce decree. Jacobs v. Cude,

641 S.W.2d 258, 260 (Tex.App.–Houston [14th Dist.] 1982, writ ref’d n.r.e.). Rita contends

that because all property acquired during marriage is presumed to be community property,

and because Dan did not rebut the community property presumption at the time of divorce,

then the mineral interests in question were community property. Rita further contends that

even though those interests were not specifically listed in the property schedules

incorporated in the divorce decree, the interests were encompassed within the terms of the

residuary clause contained within those schedules. By contrast, Dan contends that the

plain language of the decree’s “division clause” limits the scope of the residuary clause to

the “estate of the parties,” and because the phrase “estate of the parties” is limited to the

community property of the marital estate and does not include separate property, the

residuary clause did not operate as to award Rita an interest in the minerals. Simply

restated, Rita contends that the decree already divided the mineral interests, whereas Dan

contends that the decree did not divide the mineral interests because they have always

been his separate property.



                                             9
        When interpreting a divorce decree, courts apply the general rules regarding

construction of judgments. Shanks, 110 S.W.3d at 447. Judgments are construed as a

whole to harmonize and give effect to the entire decree. Gainous, 219 S.W.3d at 110. If

the decree is unambiguous as to the property’s disposition, we must effectuate the order

in light of the literal language used. Shanks, 110 S.W.3d at 447. If the decree is

ambiguous, we should review the record along with the decree to aid in interpreting the

judgment. Id. Whether a divorce decree is ambiguous is a question of law. Id.7


        The plain and unambiguous language of the “division clause” confines the

application of the residuary clause to the “estate of the parties.” The term “estate of the

parties” means the community estate of the parties and does not encompass the separate

property of the parties. Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982);

Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). Because a decree of

divorce using the term “estate of the parties” makes a division of the community estate

only, we find the residuary clause at issue did not encompass any separate property

owned by the parties. Therefore, in the final analysis, it comes down to this: Did the trial

court, at the time of divorce, intend to award Rita an interest in any undisclosed separate

property belonging to Dan? Based upon the foregoing construction, we find that the trial

court did not. Accordingly, issues one and two are overruled.




        7
        A divorce decree is am biguous when it is uncertain, doubtful, or reasonably susceptible to m ore than
one m eaning. McKnight v. Trogdon-McKnight, 132 S.W .3d 126, 131 (Tex.App.–Houston [14 th Dist.] 2004, no
pet.).

                                                     10
                                Conclusion


We affirm the judgment of the trial court.



                                             Patrick A. Pirtle
                                                 Justice




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