Jeanette Collins Lowe v. Melvin A. Lowe, Jr.

• Court: Court of Appeals of Texas
• Decided: August 27, 2009
• Docket: 09-08-00507-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-08-00507-CV

JEANETTE COLLINS LOWE, Appellant

V.

MELVIN A. LOWE, JR., Appellee

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 05-07-06081 CV

MEMORANDUM OPINION

Jeanette Collins Lowe appealed a post-decree order of the trial court appointing a receiver to sell the marital residence. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1) (Vernon 2008). We reverse the trial court's order and remand the case to the trial court for further proceedings.

Jeanette Collins Lowe and Melvin A. Lowe divorced in 2006 and no appeal was taken from that judgment. The divorce decree awards property known as 10408 Daw Collins Road to Jeanette, and the debts awarded to her include the note secured by a deed of trust on the property. The same judgment provides that the property located at 10408 Daw Collins Road would be sold and the net proceeds divided equally between Melvin and Jeanette. In 2007, Melvin filed a motion in aid of judgment. On January 8, 2008, the trial court ordered a real estate agent to sell the property and ordered Jeanette to keep the mortgage current until the sale was completed. No appeal was taken from this order.

In 2008, Melvin filed a motion to sell the property. This motion alleged that the realtor appointed in the trial court's earlier order had not sold the property, requested appointment of another agent, asked that Jeanette be ordered to vacate the property, and requested an order dividing the proceeds from any sale, allocating 80% to Melvin and 20% to Jeanette. Melvin served Jeanette through substituted service. See Tex. R. Civ. P. 106. The server's return states that service was had on September 30, 2008.

Acting pro se, Jeanette filed a verified motion for continuance on October 3, 2008. Her motion requested additional time to hire counsel. On October 3, 2008, the trial court conducted a hearing, and Jeanette requested a continuance because she had received the motion only that Monday. The trial court denied the motion for continuance.

No evidence was received at the hearing but Melvin's counsel informed the trial court that the first realtor appointed to sell the property did not want to deal with the property because the home was in complete disarray. The trial court found that Jeanette had substantially interfered with the sale of the property, ordered her to permanently vacate the property, enjoined both Jeanette and Melvin from wasting the property, and appointed a receiver to sell the property.

On appeal, Jeanette filed a brief that does not comply with the form required for appellate briefs. See Tex. R. App. P. 38.1. Melvin did not file a brief. On May 11, 2009, we notified the parties that unless we received a request for an extension the appeal would be submitted on the appellant's brief. Although she failed to set forth discrete issues for review, we have identified several errors that are raised in her brief. See Tex. R. App. P. 38.9 ("Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient. . . ."); see also Tex. R. App. P. 2 (allowing suspension of a rule and ordering of a different procedure). The issues identifiable from the brief are as follows: (1) the trial court erred in dividing property that was inherited and given to Jeanette before the marriage; (2) Jeanette received inadequate representation by counsel in the divorce proceedings; (3) counsel for Melvin withheld information in the divorce proceedings; (4) Jeanette was not allowed to prove her disability in the divorce proceedings; (5) Jeanette cooperated with the realtors; (6) the original decree awarded Jeanette the property; (7) the trial court erred in denying Jeanette's request for a continuance; (8) the receiver appointed by the court is supposed to be an attorney but no one in the area practices law in that name; (9) Melvin damaged the home; (10) the trial court failed to order anyone to pay the mortgage and related expenses; and (11) the trial court erred in issuing a writ of possession.

The first four issues relate to divorce proceedings that are not before us at this time. See generally Kenseth v. Dallas County, 126 S.W.3d 584, 596-97 (Tex. App.-Dallas 2004, pet. denied). (An appellant in a subsequent proceeding cannot attack orders that were not timely appealed.). The remaining issues are germane to the issue of the appointment of a receiver.

In her brief on appeal, Jeanette complains that the trial court denied her request for a continuance. The return of citation shows Jeanette was served with citation on September 30, 2008. Under the rules applicable to civil cases generally, Jeanette had until the Monday next following the expiration of twenty days to file an answer. See Tex. R. Civ. P. 99(c). Jeanette filed a verified motion for continuance on the day of the hearing. See Tex. R. Civ. P. 251. The motion explained that Jeanette needed time to hire counsel. At the hearing, Jeanette informed the trial court, as follows:

I haven't properly been served any papers at all. I just received the papers for today's hearing Monday afternoon at about 12:00 o'clock in the afternoon. And I'm in the process of hiring an attorney[.] He's given me a motion to file a continuance until he can review my case."

The trial court has broad discretion to divide the marital estate in a manner it deems just and right. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). "That broad authority sometimes includes the power to enlist the aid of a receiver to effectuate the trial court's orders and judgments." Rusk v. Rusk, 5 S.W.3d 299, 306-07 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). A party affected by a divorce decree dividing property may request enforcement by filing a suit to enforce in the court that rendered the decree. Tex. Fam. Code Ann. § 9.001 (Vernon 2006). A suit to enforce is governed by the Rules of Civil Procedure applicable to the filing of an original suit and a party whose rights may be affected is entitled to receive notice by citation and command to file an answer, after which the proceedings "shall be as in civil cases generally." Id.

A contested case requires forty-five days notice of a first setting for a trial. See Tex. R. Civ. P. 245. A motion for summary judgment requires twenty-one days notice of the hearing. See Tex. R. Civ. P. 166a(c). The relief requested in Melvin's motion in aid of enforcement of judgment was the appointment of a receiver to sell the property, and the trial court made findings of fact in its order. ⁽¹⁾ Thus, the trial court conducted a hearing that was dispositive of the merits of the case without providing the respondent with sufficient notice of the hearing. We hold the trial court erred in denying Jeanette's request to continue the hearing. Because the trial court disposed of part of the merits of the case without providing the respondent with an adequate opportunity to be heard, the error was not harmless. See Tex. R. App. P. 44.1(a).

In her brief, Jeanette complains that the original decree awarded Jeanette the property. The divorce decree both awards Jeanette the property and orders that the property be sold and the proceeds be divided equally between Melvin and Jeanette. The trial court's power in a proceeding to enforce a divorce decree 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." Tex. Fam. Code Ann. § 9.007 (Vernon 2006). However, the trial court may under appropriate circumstances "render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order." Tex. Fam. Code Ann. § 9.006 (Vernon 2006). "The 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." Id. Because the trial court adjudicated the merits of the dispute without allowing the time for filing an answer and for notice of hearing required by the Texas Rules of Civil Procedure, neither the parties nor the trial court had an adequate opportunity to determine whether a clarifying order should be entered. As we have already determined that the trial court committed reversible error in conducting the hearing when it did, this issue should be considered on remand.

We reverse the trial court's order appointing the receiver and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.

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HOLLIS HORTON

Justice

Submitted on August 18, 2009

Opinion Delivered August 27, 2009

Before Gaultney, Kreger, and Horton, JJ.

1. In the prior proceedings Melvin and Jeanette were ordered to "cooperate completely" with the realtor regarding "the signing, showing, and selling of the real estate" but the trial court did not appoint the realtor to act in the capacity as a receiver.