in Re: Max B. Hanson

Court of Appeals of Texas·Decided April 9, 2015·No. 12-14-00015-CV·Published

Opinion

ACCEPTED 12-14-00015-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 4/9/2015 5:09:48 PM CATHY LUSK CLERK

No. 12-14-00015-CV FILED IN 12th COURT OF APPEALS In the TYLER, TEXAS 4/9/2015 5:09:48 PM Twelfth Court of Appeals CATHY S. LUSK Clerk

Tyler, Texas

In re Max B. Hanson, Relator

Relator’s Motion for Rehearing

Max Hanson brought this proceeding because the trial court, over two

years ago, refused to sign a decree implementing the parties’ Mediated

Settlement Agreement. This Court found an abuse of discretion and granted

Max relief. But yesterday the Court issued an opinion dismissing the case. It did

so because the trial court, on Monday, signed a divorce decree. Respectfully, the

document the trial court signed, see Attachment 1, is incomplete, improper, and

not possibly enforceable as a final decree, for a cascade of reasons.

• It delegates judicial duties to third parties.

• It demands the impossible, prospectively ordering the parties to do things

in the past. • It refuses to acknowledge the parties’ actual conduct and fails to find

whether that conduct meets the standard of the MSA.

• It does not award property.

• It is fatally vague and non-specific in material respects.

• It omits referenced exhibits.

• And, while parroting MSA terms, it several times omits to order the

specific actions necessary to effectuate them.

This proceeding should be reinstated, oral argument should be granted (see “The

Court’s analysis would benefit from oral argument,” infra) and the trial court

should be directed to sign a new decree that actually confronts the facts and

implements the MSA. Otherwise, this proceeding will have accomplished little.

The current decree shies away from necessary determinations.

A decree entered on a settlement agreement should make all rulings

necessary to fully implement that settlement. In a case like this one, involving a

two-year delay between the settlement and judgment, the decree inevitably will

also need to adjudge whether the parties’ intervening conduct has complied with

the agreement and will need to adjust for any failures or changed circumstances.

This is the role of a court. The trial court’s decree does not undertake it. Instead,

the decree mindlessly waives a judicial hand and mechanically tells the parties to

go “carry out your settlement, but don’t bother the court with the details.” This

Relator’s Motion for Rehearing Page 2 is an obviously wrong approach which, in this case, fosters rulings that make no

sense.

For example, on page 10, the decree purports to order something that is

impossible: it calls on Max, prospectively, to pay sums of money at specific times in

the past. Specifically, it orders Max to make a series of six monetary payments at

various dates in 2012 and 2013. Decree, p. 10-11. When the parties signed their

MSA, the agreed series of payments was then entirely proper, because the

payments were then all in the future. But to now order Max to make payments in

the past is nonsense, the equivalent of a forbidden ex post facto order. This error

renders the decree invalid.

Equally important, the trial court’s decree does not tell Max or anyone

else whether the payments he has in fact made are or are not sufficient to vest

the property rights he was supposed to receive under the MSA. Decree, p. 11

(“If MAX HANSON does not pay the entire $62,500 then the escrow agent

does not deliver the transfer documents to Max and Marie maintains her

ownership in the Alberta property.”) Max has paid the $62,500, in U.S. dollars.

But Marie nonetheless has alleged that the payment obligation wasn’t met,

apparently on the basis that some sort of bank transfer fee may have been

imposed in the fund transfer. Max’s valuable real-property rights---a key to

component of the entire property settlement---should not be held hostage to this

Relator’s Motion for Rehearing Page 3 quibble, with zero guidance on the matter. But that is exactly what the current

decree does.

Rather than thoughtlessly state that Max is now “ordered” to “make”

certain payments back in 2012 and 2013 or give a third party the power to

determine whether those payments were fully made, a proper decree would (1)

acknowledge the MSA’s terms as respects the obligation to pay money in the

past, (2) make findings of fact as to whether Max’s past conduct met his

payment obligation under the MSA, and (3) declare the legal consequences of

that conduct. But such a decree would not prospectively order a thing to be

done before the decree is signed because that could make performance

impossible. Here, a proper decree would state that Max has fulfilled his

MSA payment obligations and thus would order the necessary execution

and exchange of specific documents transferring property. The proposed

decree that Max gave the trial court does this. As does the amended decree Max

now proposes. See Attachment 2.

The decree is impermissibly vague and improperly delegates judicial duties.

Also, on page 10, the current decree simply repeats statements from the

MSA, with some editorial commentary about “all security documents” and about

signing “all documents to transfer title.” Specifically, the decree gives Max 10

days to sign “all security documents . . . to provide for the wife’s protection in

Relator’s Motion for Rehearing Page 4 the event [he] defaults on” mortgages upon the Canadian properties awarded

him in the decree. Decree, p. 10. Then, the decree orders that the unspecified

documents, whatever they might be, should be sent to the mediator, Bobby

Freeman, to hold. This is inadequate, because it leaves the parties to speculate on

what is required and foments dispute. Under the decree, Max has no clue as to

exactly what form of documents he should sign, what form of documents Mr.

Freeman will think he should have signed, or what framework Freeman may use

in going about grading Max’s actions. Everyone instead must fly blind, with Max

left to suffer the consequence---the potential permanent loss of property rights

the MSA had earmarked for him. It should not be this way.

Judgments, to be enforceable, “must be sufficiently definite and certain to

define and protect the rights of all litigants . . . to the end that ministerial officers

can carry the judgment into execution without ascertainment of facts not therein

stated.” Kimsey v. Kimsey, 965 S.W.2d 690, 694 (Tex. App.—El Paso 1998, pet.

denied). Divorce decrees are no different. To be effective, they likewise must

spell out the details of compliance in “clear, specific, and unambiguous terms”

so that the parties “will readily know exactly what duties or obligations are

imposed.” Ex parte Linder, 783 S.W.2d 754, 757 (Tex. App.—Dallas 1990, no

pet.); citing Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967). A proper decree in this

case thus would specify the material terms of the documents required to be

signed or order the signing of identified documents (as Max’s proposed decree

Relator’s Motion for Rehearing Page 5 would do). Max repeatedly has requested just such a decree. But the trial court

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