in the Matter of the Marriage of Don Scott Kerr and Gabriella A. Kerr

• Court: Court of Appeals of Texas
• Decided: September 22, 2009
• Docket: 14-08-00529-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed September 22, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00529-CV

____________

IN THE MATTER OF THE MARRIAGE OF

DON SCOTT KERR AND GABRIELLA A. KERR

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2006-07658

M E M O R A N D U M   O P I N I O N

Appellant Don Scott Kerr (AScott@) appeals from the trial court=s order enforcing the property division in his divorce decree and awarding his ex-wife, appellee Gabriella A. Kerr, a money judgment for $46,000.  Scott contends that the trial court=s enforcement order is void because it constituted a modification to the decree and was entered more than thirty days after the trial court signed the decree.  Scott also contends the evidence is legally and factually insufficient to support a portion of the trial court=s award.  We affirm.

The trial court entered a final decree of divorce between Scott and Gabriella on September 13, 2007.  In the decree, the trial court ordered Scott to pay the $22,000 debt owed  on a Chase Credit Visa credit card.  The decree awarded Gabriella ownership of the marital home, ordered Scott (who had been living there) to vacate the property by September 23, 2007 or pay holdover rent to Gabriella, and enjoined Scott from Acausing damage to the property or otherwise reducing the value or use of the property.@ 

Scott did not pay the credit card debt, which Gabriella had to pay herself to protect her credit rating.  Scott also did not vacate the marital home on September 23, 2007, and he did not pay holdover rent, instead delivering play money to Gabriella=s father.  Gabriella had to institute eviction proceedings, and when Scott finally vacated the home in late October 2007, she discovered a wide variety of damage, including (1) the air conditioning system was inoperable because the new condenser, which had been installed in August 2007, had been replaced with a smaller, inoperable condenser, (2) the window coverings and custom blinds had been removed, (3) the dishwasher had been replaced with an old, rusted inoperable dishwasher, (4) the ceiling fans in several rooms had been replaced with less-expensive light fixtures with no fans, and (5) some of the carpets, cabinets, and walls had been damaged.  This damage rendered the home unsellable, and Gabriella spent over $9,000 to repair the damage and replace the fixtures to prepare the house for sale.

On December 4, 2007, Gabriella filed a petition for enforcement of the decree, which the trial court granted.  The trial court=s enforcement order awarded Gabriella a money judgment for $46,000, which included $22,000 for the credit card debt Gabriella paid and $9,200 to compensate Gabriella for replacing fixtures and repairing the marital home.^[1]  This appeal followed.

In his first issue, Scott argues that the trial court=s enforcement order is void because it constituted a modification, rather than enforcement, of the decree and was made more than thirty days after the final decree was signed.  The trial court can render enforcement orders to clarify or assist in the implementation of a property division made in a divorce decree and can render a money judgment for damages caused by the failure to comply.  See Tex. Fam. Code Ann. '' 9.006(a), 9.010 (Vernon 2006).  However, once the trial court=s plenary power expires, which in this case was thirty days after the divorce decree was signed, the trial court may not Aamend, modify, alter, or change the division of property made or approved in the decree of divorce.@  See id. ' 9.007(a); Tex. R. Civ. P. 329b(a); Brown v. Brown, 236 S.W.3d 343, 346 n.1 (Tex. App.CHouston [1st Dist.] 2007, no pet.).  Thus, any order in an enforcement proceeding that constitutes a modification of the decree is void if entered after the trial court=s plenary power expires.  See Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003); Bass v. Bass, 106 S.W.3d 311, 318 (Tex. App.CHouston [1st Dist.] 2003, no pet.).

As to the credit card debt, Scott asserts that ordering a money judgment to reimburse Gabriella=s payment constitutes a modification because she had used that credit card prior to the decree to pay her attorney and the decree states that each party is responsible for its own attorney=s fees.  We reject this argument.  The decree states, with unmistakable clarity, that Scott is responsible for the debt owed on the Chase Credit Visa account.  If Scott believed the trial court erred in assigning that debt to him in the decree, his remedy was direct appeal.  See Shanks, 110 S.W.3d at 449.  Scott did not pursue that option, and he cannot now collaterally attack the decree as a defense to an enforcement proceeding.  See id.  The trial court=s enforcement order did nothing more than require him to reimburse Gabriella for a debt Scott was explicitly obligated to pay, and thus it did not constitute a modification.

As to the damage to the marital home and replacement of fixtures, Scott appears to argue that because the decree awarded him all Afixtures, . . . appliances, and equipment in the possession of the husband or subject to his sole control,@ he had the right to replace appliances and fixtures from the marital home with less expensive or non-functioning items.  Thus, according to Scott, the trial court=s enforcement order that requires him to reimburse Gabriella for the cost of repairs and replacement modifies that portion of the decree.  Again, we disagree.  When interpreting a divorce decree, we construe it as a whole to harmonize and give effect to the entire decree.  Id. at 447.  If the decree is subject to only one reasonable interpretation, we apply that interpretation as a matter of law.  See id.  The decree plainly and undisputedly awarded ownership of the marital home to Gabriella, required Scott to vacate by a certain date or pay rent to Gabriella, and enjoined Scott from damaging the property or taking any action to reduce its value.  It would be unreasonable to interpret the decree as awarding Gabriella the home and enjoining Scott from damaging or decreasing the value of the home while simultaneously allowing him to take such actions as removing fixtures and making the air conditioning unworkable, which rendered the home unsellable.  The trial court=s order merely enforced the decree according to the decree=s only reasonable interpretation.

Because the trial court=s enforcement order enforced rather than modified the decree, the trial court had authority to enter the order.  We overrule Scott=s first issue.

In his second issue, Scott argues that the evidence is legally and factually insufficient to support the trial court=s implied finding that he caused damage to the marital home or reduced the value of the property.  A trial court=s decision to grant or deny the relief requested in a post-divorce motion for clarification or enforcement is reviewed for an abuse of discretion.  See Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.CDallas 2008, no pet.).  When, as here, the trial court did not file findings of fact and conclusions of law, we imply that the trial court made all findings necessary to support the judgment and will uphold those findings if supported by sufficient evidence.  See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83B84 (Tex. 1992); Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.CDallas 2005, no pet.). Under the abuse of discretion standard, sufficiency of the evidence is not an independent ground of error but rather is a relevant factor in assessing whether the trial court abused its discretion.  Beck, 154 S.W.3d at 902; In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.CHouston [14th Dist.] 2002, no pet.).

Scott contends that as to each item Gabriella claims damaged or decreased the value of the house, there was insufficient evidence either that the action actually decreased the value of the house or of the date on which the action occurred, which is significant because he was not enjoined from damaging or reducing the value of the house until the decree was entered.  When acting as fact finder, the trial court is the sole judge of witnesses= credibility and can draw reasonable inferences from the facts.  See Beck, 154 S.W.3d at 901.  Gabriella testified that (1) the damage to the house and its fixtures made it unsellable, (2) she knew the blinds and window coverings were taken down after the decree because she saw them when she repeatedly drove by the house to see if Scott had vacated, and (3) a brand new compressor for the air conditioning system had been installed in August 2007, which was shortly before the decree was entered.  The trial court could have believed Gabriella=s testimony and further inferred that all the damage and fixture replacement occurred after the decree based on this testimony and other circumstances in the case indicating that Scott was angry at being forced to move from the marital home, including his refusal to move until Gabriella had him evicted and sending her fake money to pay holdover rent.  Further, it is reasonable to infer that Scott removed the ceiling fans and made the air conditioning system inoperable shortly before he moved out (which was several weeks after the decree) because it is unlikely that he would have lived in a house in Houston in the summer with no air conditioning or ceiling fans.  Based on this evidence, we conclude the trial court did not abuse its discretion in determining that Scott damaged and otherwise reduced the value of the marital home in violation of the decree.  We overrule his second issue.

Having overruled Scott=s two issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

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^[1]  Scott did not appeal the other items included in the $46,000 money judgment.