Cook v. Cameron

703 S.W.2d 690, 1985 Tex. App. LEXIS 11668
CourtCourt of Appeals of Texas
DecidedJune 13, 1985
DocketNo. 13-84-267-CV
StatusPublished
Cited by4 cases

This text of 703 S.W.2d 690 (Cook v. Cameron) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Cameron, 703 S.W.2d 690, 1985 Tex. App. LEXIS 11668 (Tex. Ct. App. 1985).

Opinion

OPINION

KEITH, Justice.

This is an appeal from an order entered in response to motions filed by both parties for enforcement and/or clarification of a final decree of divorce. We affirm.

The parties were initially divorced on March 29, 1979. The trial court’s decree of divorce granted the divorce, appointed managing conservatorship for a minor child, provided fpr support of that child and divided the property of the parties. Among the property rights divided by this decree was appellee’s military retirement benefits. We reversed this judgment; one of the reasons being the manner in which it divided the retirement benefits. Cameron v. Cameron, 608 S.W.2d 748 (Tex.Civ.App.—Corpus Christi 1980). Our decision was appealed to the Texas Supreme Court, which subsequently reversed our opinion and, among other actions, “render[ed] judgment awarding [appellant] her share of the military retirement pay....” Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982).

On April 20, 1983, appellant filed, in the District Court, both a “Motion for Contempt and Motion in Aid and Clarification of Judgment” and a “Motion to Authorize Release from the Registry Interest Due Movant on the Judgment.” On July 25, 1983, the trial court entered an Order on appellant’s “Motion for Contempt and Motion in Aid and Clarification of Judgment.” By its Order, it expressly reserved hearing and ruling on her “Motion to Authorize Release from the Registry Interest Due Movant on the Judgment.” This second motion was severed from the first motion in order that a separate hearing could later be held on it.

On November 16, 1983, appellant filed an Amended Second Motion for Contempt and Motion to Enforce Judgment. In this new motion she sought: 1) to have appellee held in contempt of court for failing to pay the full sum due her under the decree awarding her 35% of his gross retirement benefits; 2 2) to increase her entitlement to ap-pellee’s retirement benefits from 35% to 45%;3 3) judgment for arrearages; and 4) attorney’s fees. Appellee responded to this motion and filed a Reply to the Amended Second Motion for Contempt and Motion to Enforce Judgment and for Clarification and Respondent’s Motion for Relief in Connection with Prior Judgments and Orders.

In his motion, appellee sought to: 1) have the trial court clarify the Supreme Court’s judgment and mandate, concerning whether appellant was entitled to receive either 35% of his gross retirement benefits, or only 35% of his disposable retirement benefits; 2) have the trial court’s order of [692]*692July 25, 1983, set aside; 3) have the trial court issue a clarifying order declaring void the provision in the divorce decree which allowed it to increase appellant’s interest in appellee’s retirement benefits from 35% to 45%; and 4) recover attorney’s fees.

A hearing was conducted on appellant’s Amended Second Motion on December 16, 1983. On May 3, 1984, the trial court ordered that:

[T]he Amended Second Amended Motion for Contempt and Motion in Aid and Clarification of Judgment filed herein by Sue Akers Cook, formerly Sue Akers Cameron, together with all relief requested therein, be and the same is hereby denied.
[T]he Motion of Respondent, Paul Cameron, that the Court vacate and set aside the order of July 25, 1983 be and the same is hereby denied.
[T]he Motion of Respondent, Paul Cameron, that the Court find the provisions in the judgment of March 29, 1979 providing for a contingent increase in Movant’s share of Respondent’s retirement pay to be null and void be and the same is hereby denied.
Costs are ordered adjudged against the party by whom incurred.

Appellant, by direct appeal, and appellee, by cross-points, both attack this Order of the trial court.

JURISDICTION

This case is back in our Court today by virtue of an appeal from a proceeding brought before the trial court under the authority granted it by Tex.Fam.Code Ann. §§ 3.70-3.77 (Vernon Supp.1985). These sections relate to the clarification and enforcement of a final decree of divorce by the court issuing said decree. At the outset we note that an appeal does lie from an order entered in response to a motion in aid and clarification of a judgment. In Starr v. Starr, 690 S.W.2d 86 (Tex.App.1985) (not yet reported), the Court squarely addressed this issue. They concluded, and we agree, that an order which completely disposes of all issues contained by a motion in aid and clarification of a judgment, filed by either or both parties to a divorce, is an appealable order. However, since the final decree of divorce, which is the subject matter of this suit, has been reviewed and passed upon by the Texas Supreme Court, we now hold that sections 3.70-3.77 of the Texas Family Code will only act to revest limited jurisdiction to the trial court.

In part of its mandate, issued November 18, 1982, the Supreme Court ordered:

2) That part of the judgment of the Court of Civil Appeals which held that Paul Cameron could not be divested of his title to thirty-five percent of his separate property military retirement benefits is reversed, and judgment is rendered effective February 1, 1983 that Sue Akers Cameron receive thirty-five percent of the military retirement pay from June 25, 1981 all in accordance with the opinion of this Court. [Emphasis ours.]

Because of this partial rendition by the Supreme Court, the trial court lacked jurisdiction to enter a clarifying order with respect to appellant’s interest in appellee’s retirement benefits, awarded her as part of the parties’ community property.

Rule 502, Tex.R.Civ.P. provides:

Upon the rendition by the Supreme Court of any such judgment or decree ... it shall not be necessary for the lower court from which the cause was removed to make any further order or decree therein, but the clerk of said lower court, on receipt of the mandate of the Supreme Court or the Court of Appeals, shall proceed to issue execution thereon as in other cases.

As set out in Conley v. Anderson, 164 S.W. 985 (Tex.1913):

[The Supreme Court] having entered final judgment in that case, no district court had jurisdiction to review that judgment, nor to interpret and enforce it, but must observe it as it was framed by this court. The interpretation and en[693]*693forcement of that judgment belongs exclusively to this court, and no interference with its enforcement will be tolerated.

See Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952); Bilbo Freight Lines, Inc. v. State, 645 S.W.2d 925 (Tex.App.—Austin 1983, writ ref’d n.r.e.); and Myers v. Myers, 515 S.W.2d 334 (Tex.Civ.App.—Houston, [1st Dist.] 1974, writ dism’d).

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Related

Cook v. Cameron
733 S.W.2d 137 (Texas Supreme Court, 1987)
Noe v. State
654 S.W.2d 701 (Court of Criminal Appeals of Texas, 1983)

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Bluebook (online)
703 S.W.2d 690, 1985 Tex. App. LEXIS 11668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-cameron-texapp-1985.