                                                                                   ACCEPTED
                                                                               06-15-00039-CV
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                          9/18/2015 2:20:15 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                        NO. 06-15-00039-CV

                                                     FILED IN
                       *************          6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
                   IN THE COURT OF APPEALS    9/18/2015 2:20:15 PM
                                                  DEBBIE AUTREY
              SIXTH APPELLATE DISTRICT OF TEXAS       Clerk


                     AT TEXARKANA, TEXAS


                            *******

                       IN THE INTEREST OF
                              T.N.L.
                             A CHILD


                            *******


              Appealed from the 307TH Family District Court
                          Gregg County, Texas
                     Trial Court No. 2008-353-DR
__________________________________________________________________
              BRIEF OF APPELLANT SAMUEL LANIER
__________________________________________________________________


                              EBB B. MOBLEY
                              State Bar # 14238000
                              Attorney at Law
                              422 North Center Street-Lower Level
                              P. O. Box 2309
                              Longview, TX 75606
                              Telephone: (903) 757-3331
                              Facsimile: (903) 753-8289
                              ebbmob@aol.com

                              ATTORNEY FOR APPELLANT




             APPELLANT REQUESTS 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. Box 2309
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 1 of 13
                                           TABLE OF CONTENTS                                                          Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

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

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7

ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

       Did the trial court abuse his discretion by changing the actual, substantive
    division of the marital property as provided in the parties’ prior divorce
    decree?

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

         ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
APPENDIX: ORDER ON SECOND AMENDED PETITION TO MODIFY AND
          FOR ENFORCEMENT AND/OR CLARIFICATION CR-106
                                              SCRIVENER’S NOTE

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

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




                                                       Page 2 of 13
                                      INDEX OF AUTHORITIES
Cases

Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

In Re Marriage of McDonald, 118 S.W.3d 829, 831-833 (Tex.App. - Texarkana
      2003, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Pearson v. Fillingim, 322 S.W.3d 361 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . .12

Schneider v. Schneider, 5 S.W.3d 925, 929 (Tex.App. - Austin, 1999, no pet.) . . . .9


Codes
Family Code §9.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Family Code §9.006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Family Code §9.006(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Family Code §9.006(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Family Code §9.007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Family Code §9.007(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Family Code §9.008(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9




     All references to Texas statutes, rules, etc. are to the latest edition published
by West Publishing Company, unless otherwise indicated.




                                                    Page 3 of 13
                          STATEMENT OF THE CASE
      In a post-divorce proceeding, a former wife filed a petition to enforce or clarify

a provision in the parties’ 2008 divorce decree concerning the monthly house
payment ordered paid by her former husband in lieu of child support and sale of that

house once a child reached eighteen years of age. The trial court granted certain

offsets and then awarded the house to the former wife. Former husband appeals this
substantive change of distribution of property in the 2008 decree.
                            STATEMENT OF FACTS

      Two witnesses testified at a bench trial on January 28, 2015.

CARLOS RENEE LANIER
      Carlos Renee Lanier testified that the parties were divorced on September 26,

2008 and that the decree was entered on November 17, 2008. 2 RR 6. CR-4-24.

Carlos stated that she was asking the Court to require Samuel to make the house note
on the residence at 2308 Nixon in Longview, Texas, pay the insurance premiums due

on that residence, and pay the property taxes on the residence. 2 RR 7. Carlos
testified that in the divorce decree, Samuel was ordered to make those payments in

lieu of child support. Carlos further testified that she and Samuel were supposed to
split equally any maintenance expense on the house over $500. She stated that an

old air conditioning unit went out and she had to pay to have the unit repaired. 2 RR

8. She said that she paid $3,195 and that Samuel did not pay his one-half of the
maintenance. 2 RR 9. Carlos testified that it was her understanding that per the

divorce decree she was to live in the residence with her daughter and Samuel was to
make the mortgage, property and tax payments on the residence during that time. She

stated that she was the one who in fact made those payments. 2 RR 10. She said that

she made the payments from February 2009 to December 2014. 2 RR 11. Carlos


                                     Page 4 of 13
stated that the divorce decree stated that if Samuel were to get a lump sum payment

from social security, he would get a credit against whatever he owed for the mortgage
payments. 2 RR 13. Carlos testified that she did get money from social security for

her daughter T.N.L. 2 RR 14.

      Carlos further testified that according to the decree, after her daughter T.N.L.

turned eighteen, she and Samuel could either mutually agree to sell the residence or

she could buy out Samuel’s equity in the residence. She stated that she was asking
the Court to allow her to buy out Samuel’s equity and to offset whatever he owed her

for back support and unpaid expenses against that equity. She stated that she got an

appraisal on the house. 2 RR 16. Carlos testified that Samuel should have made
mortgage payments from November 2008 through June 2014 and that total payments

that Samuel should have paid would be $41,755. 2 RR 17. Carlos then asked the
Court to give her credit for the $1,597.50 that Samuel should have paid for repairs to
the air conditioner. Carlos also asked the Court to give Samuel credit for the $21,948

that Taylor received from the social security administration. She stated that the
amount due after that credit was $21,405.12. She said that the appraised value on the

house was approximately $69,000. 2 RR 18. The mortgage payoff through June 30th

2014 was $28,676.36. The total equity in the property would then have been

$40,323.64. Carlos stated that if Samuel’s one-half equity was subtracted from the

amount he owed her then he would still owe $1,243.30. She testified that she was
asking the court to give her the house as an offset against whatever Samuel owed. In

the alternative Carlos said she was asking for a judgment $21,405.12. 2 RR 19.

      Carlos further testified that she worked in home health care and cared for

people in her home. She said that she drew $1,800 per month and had done so for


                                     Page 5 of 13
two years. 2 RR 24. She stated that at the time of the divorce she was working for

Skeeter Products and quit that job in August 2009. According to the divorce decree
Samuel was supposed to get part of her pension benefit, but he did not. 2 RR 25.

Carlos testified that she rolled over about $25,000 into an IRA. 2 RR 26. She stated

that she still had the money. She stated that her older daughter had lived in the home

after the divorce and that she did not ask anyone if that was a violation of the

agreement that the occupancy of the home was to be exclusively her and the child
Taylor. 2 RR 28.

SAMUEL D. LANIER

      Samuel D. Lanier confirmed that as part of the divorce, in lieu of paying child
support for Taylor Lanier, he was ordered to pay the house note, taxes on the

property, and insurance premiums. He testified that he made cash payments to Carlos
2 RR 31. He said that Carlos called him on the Sundays before she made the

payments and he gave her cash around $650 to cover the house payment and
insurance payment. 2 RR 32. He said he would drive to the house and she would
come out to the mailbox and he would give her the money. 2 RR 33.

      Samuel stated that he did not owe Carlos one-half of the repairs for the air

conditioner. He stated that before the divorce the air conditioner was going bad and

that they remodeled the house and he gave her money for the air conditioner but she

just kept adding Freon to it every year. 2 RR 40.

      Samuel testified that he was a trucker for thirty years. Before and after the

divorce he drew truck checks and cashed them and gave the cash to Carlos. 2 RR 42.
He stated that he continued cashing those checks and giving Carlos that cash after the

divorce up until the time he injured his rotator cuff. 2 RR 43. Samuel testified that

                                     Page 6 of 13
he wanted to sell the house. 2 RR 44. Samuel stated that he guessed he last gave

Carlos cash for the house around September 2010 or 2011 when he got injured. 2 RR
48.

      The enforcement/clarification order was signed and filed on June 4, 2015. CR-
106. Samuel requested findings of fact and conclusions of law. CR-116,117. Those

findings and conclusions were signed by the trial judge on July 29, 2015. CR-119.

      Samuel appeals the judgment that awards the parties’ marital residence to

Carlos. CR-106, Brief Appendix.

                                       ISSUE
      Did the trial court abuse his discretion by changing the actual, substantive

division of the marital property as provided in the parties prior divorce decree?




                       SUMMARY OF THE ARGUMENT
      The trial court’s ruling in awarding the house to Carlos rather than ordering its

sale as previously agreed amounts to a substantial alteration of the original property

division.




                                     Page 7 of 13
                             ARGUMENT
                       PERTINENT 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 §9.007 provides:

(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.

(c) The power of the court to render further orders to assist in the
implementation of or to clarify the property division is abated while
an appellate proceeding is pending.




                               Page 8 of 13
                             STANDARD OF REVIEW
      Under the Texas Family Code, the court that renders a divorce decree retains

jurisdiction to clarify and enforce the property division within that decree. Tex.
Fam.Code §§9.002. If a decree is ambiguous, that court can enter a clarification

order. However, it is beyond the power of the court to “amend, modify, alter, or
change the division of property made or approved in the decree of divorce or

annulment.” Tex.Fam.Code §9.007(a).

      A trial court’s decision on a motion for enforcement or clarification is reviewed
for an abuse of discretion and should be reversed if the court acted unreasonably,

arbitrarily, or without reference to guiding rules and principles or acted outside the

range of allowable options. Schneider v. Schneider, 5 S.W.3d 925, 929 (Tex.App. -
Austin, 1999, no pet.). A 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.” Tex. Fam. Code §9.006(b). The court may
render an order to enforce the original division of property and to “assist in the

implementation of or to clarify the prior order,” Tex.Fam.Code §9.006(a), or may
issue a clarification order if the court finds that the original decree was not specific

enough to be enforced by contempt, Tex.Fam.Code §9.008(b). However, an order

to enforce or to clarify that modifies or changes the “actual, substantive division of
property” in the divorce decree is beyond the court’s authority. Tex.Fam.Code

§9.007(a),(b) In Re Marriage of McDonald, 118 S.W.3d 829, 831-833 (Tex.App. -

Texarkana 2003, pet. denied).




                                      Page 9 of 13
                            2008 DECREE OF DIVORCE
       In the parties’ Final Decree of Divorce the following provision at page 19 is

at issue in this case:
       Use and Sale of Family Residence

       IT IS ORDERED AND DECREED that the family residence located at 2308
Nixson, Longview, Gregg County, Texas, is set aside for the exclusive use and

benefit of CARLOS RENEE LANIER and the minor child of the marriage, until the

occurrence of the earliest of the following conditions:
       a.      The minor child of the parties have attained 18 years of age or finished

high school.

       b.      The sale of said residence by mutual agreement of CARLOS RENEE
LANIER and SAMUEL LANIER.
       IT IS ORDERED AND DECREED that during the period of exclusive

occupancy of the residence by CARLOS RENEE LANIER and the parties’ child, any
and all maintenance expenses over the total amount of $500.00 shall be split equally

between CARLOS RENEE LANIER and SAMUEL LANIER. Any maintenance
expenses under the total of $500.00 shall be paid in full by CARLOS RENEE

LANIER.

       IT IS ORDERED AND DECREED that when the period of exclusive
occupancy of CARLOS RENEE LANIER expires pursuant to the conditions

described above, that CARLOS RENEE LANIER place the house and lot located at

2308 Nixson, Longview, Gregg County, Texas, on the market for sale, listed with a

reputable real estate agent who is a member of MLS of Longview, such agent to be

approved by CARLOS RENEE LANIER, at a fair market value to be determined by

such real estate agent.

                                      Page 10 of 13
      IT IS FURTHER ORDERED AND DECREED that upon the sale of the house

and lot, the proceeds from such sale shall be disbursed in the following manner:
      FIRST: The lien indebtedness shall be paid in full.

      SECOND: All costs of sale shall be paid in full.

      THIRD: The remaining proceeds shall be divided equally between CARLOS

RENEE LANIER and SAMUEL LANIER with one-half (½) of said proceeds to be

paid to CARLOS RENEE LANIER and one-half (½) of said proceeds to be paid to
SAMUEL LANIER.
      IT IS FURTHER ORDERED that in the event CARLOS RENEE LANIER

decides not to sell the house, CARLOS RENEE LANIER is ORDERED AND

DECREED to have the house and lot located at 2308 Nixson, Longview, Texas,
appraised. CARLOS RENEE LANIER is to pay SAMUEL LANIER for his one-half
(½) interest in and to the equity in said property, over and above outstanding liens

thereon. Payment to be made by CARLOS RENEE LANIER to SAMUEL LANIER
for his interest in and to the equity of said property within 90 days of said appraisal.

CR-22-23.
                                     ANALYSIS

      Carlos admitted that she allowed other persons to occupy the home, and

collected $1800.00 per month for two years, (totaling $43,200.00) as a caregiver. She

further admitted that she had not paid Samuel his one-half (approximately
$12,500.00) share of her Skeeter retirement account. The record is silent as to why

Carlos allowed Samuel to disregard his obligation of monthly payments while failing

to disclose that she was in effect running a boarding house in violation of the
“exclusive” occupancy language in the decree.

      Samuel’s failure to get any receipts for his numerous cash payments left him

                                     Page 11 of 13
at the mercy of Carlos’ “memory”.        But Carlos’ own testimony about income

received from her caregiving and her failure to pay over Samuel’s share of the Skeeter
account provide a different economic calculation than that proposed by Carlos and

accepted by the trial judge.

      Carlos’ sought offsets as follows CR-34:

                           Summary of Requested Relief

Mortgage Payment Mr. Lanier should have made                      $41,755.62
(beginning 11/11/2008 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 due by Mr. Lanier                                $21,405.12

Value of home (Ct. ordered appraisal attached as exhibit “C”) $69,000.00
Mortgage pay off through 06/30/2014                           -$28,676.36
Total Equity                                                   $40,323.64
Amount still owed by Mr. Lanier                                   $21,405.12
Each ½ Equity (approximate)                                      -$20,161.82
Difference owed by Mr. Lanier                                      $1,243.30
      The judgment (and Carlos’ testimony) track this pleading.

      The trial court totally disregarded the financial and equitable offsets sought by

Samuel (his share of the Skeeter account and violation of the exclusive occupancy

clause). When, as here, a trial court acts unreasonably, arbitrarily and without any

reference to guiding rules or principles, an abuse of discretion is shown. Cf. Hagen
v. Hagen, 282 S.W.3d 899 (Tex. 2009) and Pearson v. Fillingim, 322 S.W.3d 361

(Tex. 2011).




                                    Page 12 of 13
                                     PRAYER
      Upon the issue and argument presented, it is submitted that the judgment of

the trial court in this case should be reversed and the case remanded for a new trial.



                                       Respectfully submitted,


                                       EBB B. MOBLEY
                                       Attorney at Law
                                       422 North Center Street-Lower Level
                                       P. O. Box 2309
                                       Longview, TX 75606
                                       Telephone: (903) 757-3331
                                       Facsimile: (903) 753-8289
                                       ebbmob@aol.com


                                       /s/ EBB B. MOBLEY
                                       EBB B. MOBLEY
                                       State Bar # 14238000
                                       ATTORNEY FOR APPELLANT


                      CERTIFICATE OF COMPLIANCE

      I certify that this brief contains 2667 words according to the computer
program used to prepare the document.

                                       /s/ EBB B. MOBLEY
                                       EBB B. MOBLEY

                         CERTIFICATE OF SERVICE


      A copy of this brief was sent to counsel for the Appellee Jessica Kroscher, at
P.O. Box 1228, Longview, Texas 75601, on the 18th day of September, 2015 by efile.


                                       /s/ EBB B. MOBLEY
                                       EBB B. MOBLEY


                                    Page 13 of 13
