AFFIRMED and Opinion Filed August 12, 2024
S In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00428-CV
MARCUS JARROD PAYNE, Appellant V. STACY ELEY (PAYNE), Appellee
On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-00663
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Carlyle Marcus Payne appeals pro se from the trial court’s judgments awarding Stacy
Eley attorney’s fees and sanctions against him in connection with post-divorce
litigation. On appeal, Mr. Payne requests that we vacate the associate judge’s
sanctions order and the district court’s order granting attorney’s fees. We affirm in
this memorandum opinion. See TEX. R. APP. P. 47.4.
A December 2019 agreed divorce decree in case number DF-19-09267
provided, among other things, that: (1) Mr. Payne would receive portions of three of Ms. Eley’s retirement accounts, pursuant to Qualified Domestic Relations Orders (QDROs) that the court would enter either upon or after entering the decree;
(2) Mr. Payne would be required to “pay 100% for cost of QDRO drafting and submission”; and
(3) to “effect an equitable division of the estate of the parties and as a part of the division, each party shall be responsible for his or her own attorney’s fees, expenses, and costs incurred as a result of legal representation in this case.”
Mr. Payne filed this lawsuit in January 2020, seeking entry of post-divorce
QDROs. Ms. Eley objected to Mr. Payne’s proposed QDROs, arguing that they were
incomplete and inconsistent with the divorce decree. She thus submitted her own
proposed QDROs. After a hearing, the trial court rejected Mr. Payne’s proposed
QDROs, entered Ms. Eley’s proposed QDROs, and ordered Mr. Payne to pay
$13,456.00 in attorney’s fees.
Mr. Payne contested Ms. Eley’s request to enter judgment on the fee award.
As a result, in addition to the initial $13,456.00 fee award, the court entered
judgments awarding Ms. Eley an additional $4,853.36 in fees and costs related to
Ms. Eley’s second motion to enter judgment and $1,100 in fees related to Ms. Eley’s
third motion to enter judgment. The trial court later adopted the associate judge’s
recommendation to sanction Mr. Payne an additional $5,000, finding that Mr.
Payne’s actions in the case had “been groundless and for purposes of harassment.”
Mr. Payne lodges several complaints, generally claiming the trial court
erroneously modified the divorce decree to improperly shift Ms. Eley’s attorney’s
–2– fees for preparing the QDROs to him. He also argues the trial court erred when it
“failed to set forth a statutory and legal basis in its order awarding attorney’s fees
[of $13,456] to Appellee.” His complaints stem from a misreading of the decree.
We read agreed divorce decrees as contracts, subject to the usual rules of
contract construction, including harmonizing and giving effect to all provisions of
the entire decree so none will be rendered meaningless. See McGoodwin v.
McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984); Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983). The decree here first includes a provision specific to the QDRO
process, stating that “Husband shall pay 100% for cost of QDRO drafting and
submission.” Seven pages later, the decree includes a general provision, “Attorney’s
Fees,” which states: “To effect an equitable division of the estate of the parties and
as a part of the division, each party shall be responsible for his or her own attorney’s
fees, expenses, and costs incurred as a result of legal representation in this case.”
In order to avoid rendering a provision meaningless, which Mr. Payne’s
interpretation would require, we conclude the QDRO-drafting-specific cost
provision must prevail over the more general fee provision. See In re W.L.W., 370
S.W.3d 799, 805–06 (Tex. App.—Fort Worth 2012, orig. proceeding) (citing Wells
Fargo Bank, Minn., N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.
App.—Dallas 2006, pet. denied)). Ordering Mr. Payne to pay this specific type of
fee does not rewrite the more general decree language saying each party would pay
its own fees, and it does not implicate Family Code § 9.007; instead, it properly gives
–3– voice to a specific fee provision for QDRO “drafting and submission.” See id.;
Coker, 650 S.W.2d at 393.
For this reason too, our conclusion does not implicate the preclusion or
estoppel principles Mr. Payne suggests it does. Nor does it implicate Family Code
§ 9.014, as he suggests, applicable only to suits to enforce a decree. See In re
Marriage of Spahn, No. 10-09-00254-CV, 2010 WL 2432089, at *1 (Tex. App.—
Waco June 16, 2010, no pet.) (mem. op.). Lastly, though Mr. Payne timely filed a
request for findings of fact and conclusions of law, see TEX. R. APP. P. 296, he failed
to file a notice of late findings of fact. See TEX. R. CIV. P. 297. Mr. Payne has thus
waived any complaint that the trial court failed to enter findings of fact and
conclusions of law. See id.; Burns v. Burns, 116 S.W.3d 916, 922 (Tex. App.—
Dallas 2003, no pet.). We overrule Mr. Payne’s issues regarding fee shifting and
decree modification.
Further, neither the Family Code nor the decree precluded Ms. Eley from
either filing her own proposed QDROs or seeking attorney’s fees as a sanction for
violations of the Texas Rules of Civil Procedure. Mr. Payne points us to Family
Code sections 9.103 and 9.104, which he claims prohibited Ms. Eley from filing her
own QDROs after he filed his and allowed only a “plan administrator or other person
acting in an equivalent capacity” to determine his proposed QDROs were
unsatisfactory.
–4– Section 9.103 allows “[a] party” to petition a court to render QDROs, but
contains no exclusionary language as to who could provide proposed QDROs and
no language prohibiting both parties from providing proposed QDROs. Section
9.104 merely provides a court continuing, exclusive jurisdiction if a plan
administrator determines a domestic relations order fails to satisfy requirements for
a QDRO. It does nothing to limit a court’s power or discretion to evaluate initial
proposed orders before it, such as those before the court in this case.
Next, Mr. Payne argues the trial court’s sanctions orders were “conclusory,
threadbare, and unsupported” and that it improperly adopted the associate judge’s
reports. He further complains the trial court erred when it failed to describe his
conduct warranting sanctions, failing to comply with Texas Civil Practice and
Remedies Code Chapter 10 and Texas Rule of Civil Procedure 13 in adopting the
orders awarding fees to Ms. Eley.
But Family Code § 9.106 states that a court, with regards to post-decree
QDROs, “may award reasonable attorney’s fees.” The word “may” in this context
provides the court discretion to award fees. See TEX. GOV’T CODE § 311.016(1).
Section 9.106 contains no provision requiring the court to set forth the basis for a fee
award and we find no abuse of that discretion in this fee award. See Bowles v.
–5– Bowles, No.
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AFFIRMED and Opinion Filed August 12, 2024
S In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00428-CV
MARCUS JARROD PAYNE, Appellant V. STACY ELEY (PAYNE), Appellee
On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-00663
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Carlyle Marcus Payne appeals pro se from the trial court’s judgments awarding Stacy
Eley attorney’s fees and sanctions against him in connection with post-divorce
litigation. On appeal, Mr. Payne requests that we vacate the associate judge’s
sanctions order and the district court’s order granting attorney’s fees. We affirm in
this memorandum opinion. See TEX. R. APP. P. 47.4.
A December 2019 agreed divorce decree in case number DF-19-09267
provided, among other things, that: (1) Mr. Payne would receive portions of three of Ms. Eley’s retirement accounts, pursuant to Qualified Domestic Relations Orders (QDROs) that the court would enter either upon or after entering the decree;
(2) Mr. Payne would be required to “pay 100% for cost of QDRO drafting and submission”; and
(3) to “effect an equitable division of the estate of the parties and as a part of the division, each party shall be responsible for his or her own attorney’s fees, expenses, and costs incurred as a result of legal representation in this case.”
Mr. Payne filed this lawsuit in January 2020, seeking entry of post-divorce
QDROs. Ms. Eley objected to Mr. Payne’s proposed QDROs, arguing that they were
incomplete and inconsistent with the divorce decree. She thus submitted her own
proposed QDROs. After a hearing, the trial court rejected Mr. Payne’s proposed
QDROs, entered Ms. Eley’s proposed QDROs, and ordered Mr. Payne to pay
$13,456.00 in attorney’s fees.
Mr. Payne contested Ms. Eley’s request to enter judgment on the fee award.
As a result, in addition to the initial $13,456.00 fee award, the court entered
judgments awarding Ms. Eley an additional $4,853.36 in fees and costs related to
Ms. Eley’s second motion to enter judgment and $1,100 in fees related to Ms. Eley’s
third motion to enter judgment. The trial court later adopted the associate judge’s
recommendation to sanction Mr. Payne an additional $5,000, finding that Mr.
Payne’s actions in the case had “been groundless and for purposes of harassment.”
Mr. Payne lodges several complaints, generally claiming the trial court
erroneously modified the divorce decree to improperly shift Ms. Eley’s attorney’s
–2– fees for preparing the QDROs to him. He also argues the trial court erred when it
“failed to set forth a statutory and legal basis in its order awarding attorney’s fees
[of $13,456] to Appellee.” His complaints stem from a misreading of the decree.
We read agreed divorce decrees as contracts, subject to the usual rules of
contract construction, including harmonizing and giving effect to all provisions of
the entire decree so none will be rendered meaningless. See McGoodwin v.
McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984); Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983). The decree here first includes a provision specific to the QDRO
process, stating that “Husband shall pay 100% for cost of QDRO drafting and
submission.” Seven pages later, the decree includes a general provision, “Attorney’s
Fees,” which states: “To effect an equitable division of the estate of the parties and
as a part of the division, each party shall be responsible for his or her own attorney’s
fees, expenses, and costs incurred as a result of legal representation in this case.”
In order to avoid rendering a provision meaningless, which Mr. Payne’s
interpretation would require, we conclude the QDRO-drafting-specific cost
provision must prevail over the more general fee provision. See In re W.L.W., 370
S.W.3d 799, 805–06 (Tex. App.—Fort Worth 2012, orig. proceeding) (citing Wells
Fargo Bank, Minn., N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.
App.—Dallas 2006, pet. denied)). Ordering Mr. Payne to pay this specific type of
fee does not rewrite the more general decree language saying each party would pay
its own fees, and it does not implicate Family Code § 9.007; instead, it properly gives
–3– voice to a specific fee provision for QDRO “drafting and submission.” See id.;
Coker, 650 S.W.2d at 393.
For this reason too, our conclusion does not implicate the preclusion or
estoppel principles Mr. Payne suggests it does. Nor does it implicate Family Code
§ 9.014, as he suggests, applicable only to suits to enforce a decree. See In re
Marriage of Spahn, No. 10-09-00254-CV, 2010 WL 2432089, at *1 (Tex. App.—
Waco June 16, 2010, no pet.) (mem. op.). Lastly, though Mr. Payne timely filed a
request for findings of fact and conclusions of law, see TEX. R. APP. P. 296, he failed
to file a notice of late findings of fact. See TEX. R. CIV. P. 297. Mr. Payne has thus
waived any complaint that the trial court failed to enter findings of fact and
conclusions of law. See id.; Burns v. Burns, 116 S.W.3d 916, 922 (Tex. App.—
Dallas 2003, no pet.). We overrule Mr. Payne’s issues regarding fee shifting and
decree modification.
Further, neither the Family Code nor the decree precluded Ms. Eley from
either filing her own proposed QDROs or seeking attorney’s fees as a sanction for
violations of the Texas Rules of Civil Procedure. Mr. Payne points us to Family
Code sections 9.103 and 9.104, which he claims prohibited Ms. Eley from filing her
own QDROs after he filed his and allowed only a “plan administrator or other person
acting in an equivalent capacity” to determine his proposed QDROs were
unsatisfactory.
–4– Section 9.103 allows “[a] party” to petition a court to render QDROs, but
contains no exclusionary language as to who could provide proposed QDROs and
no language prohibiting both parties from providing proposed QDROs. Section
9.104 merely provides a court continuing, exclusive jurisdiction if a plan
administrator determines a domestic relations order fails to satisfy requirements for
a QDRO. It does nothing to limit a court’s power or discretion to evaluate initial
proposed orders before it, such as those before the court in this case.
Next, Mr. Payne argues the trial court’s sanctions orders were “conclusory,
threadbare, and unsupported” and that it improperly adopted the associate judge’s
reports. He further complains the trial court erred when it failed to describe his
conduct warranting sanctions, failing to comply with Texas Civil Practice and
Remedies Code Chapter 10 and Texas Rule of Civil Procedure 13 in adopting the
orders awarding fees to Ms. Eley.
But Family Code § 9.106 states that a court, with regards to post-decree
QDROs, “may award reasonable attorney’s fees.” The word “may” in this context
provides the court discretion to award fees. See TEX. GOV’T CODE § 311.016(1).
Section 9.106 contains no provision requiring the court to set forth the basis for a fee
award and we find no abuse of that discretion in this fee award. See Bowles v.
–5– Bowles, No. 08-23-00311-CV, 2024 WL 1834375, at *4 (Tex. App.—El Paso Apr.
26, 2024, no pet.) (mem. op.). We overrule this issue.1
Mr. Payne also argues the trial court abused its discretion when it disregarded
his objections to Ms. Eley’s creation of QDROs (1) in violation of the divorce decree
and (2) despite his pending motion to recuse. We have already concluded the
language in the divorce decree did not preclude Ms. Eley from filing her own
proposed QDROs. In any event, Mr. Payne did not brief the alleged impropriety of
the trial court’s ruling despite his pending motion to recuse and thus has presented
the court nothing for review. See TEX. R. APP. P. 38.1(i).
Finally, regarding Mr. Payne’s request to vacate the associate judge’s $5,000
“sanctions order,” the associate judge’s report is not a final order or decree and we
lack jurisdiction to review it. In re A.G.D.M., 533 S.W.3d 546, 547 (Tex. App.—
Amarillo 2017, no pet.). Mr. Payne also failed to include the district court’s May 14,
2021 order adopting this associate judge report in his notice of appeal, and for that
reason too we would lack jurisdiction to review that order. See Brashear v. Victoria
Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545–46 (Tex. App.—Dallas 2009,
no pet.).
1 Even so, after an evidentiary hearing, the trial court concluded that Payne’s objections “were groundless and brought in bad faith or for the purpose of harassment”; this is all that is necessary to support a rule 13 sanctions award. See TEX. R. CIV. P. 13; Barnes v. Kinser, 600 S.W.3d 506, 510 (Tex. App.— Dallas 2020, pet. denied) (“[T]he focus of a sanctions inquiry is the conduct of the party or lawyer at the time the pleading was filed . . . The question is whether, using an objective standard, the party and its counsel made a reasonable inquiry into the legal and factual basis of the claim before filing it.”). –6– Having overruled Mr. Payne’s arguments on appeal, we affirm the judgment
of the trial court.
/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE 210428F.P05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARCUS JARROD PAYNE, On Appeal from the 303rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DF-20-00663. No. 05-21-00428-CV V. Opinion delivered by Justice Carlyle. Justices Partida-Kipness and STACY ELEY (PAYNE), Appellee Pedersen, III participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee STACY ELEY (PAYNE) recover her costs of this appeal from appellant MARCUS JARROD PAYNE.
Judgment entered August 12, 2024
–8–