## In the Court of Appeals Second Appellate Di strict of Texas a t For t Worth

___________________________ No. 02

- 20

- 00297

- CV

___________________________

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231

- 354200

- 03
Before Sudderth, C.J.; Bassel and Walker, JJ. Me morandum Opinion by Justice Bassel



### S HAHRAM 

### S HAKOURI 

### , Appellant

V


### . F ARIBA 

### B ADIYAN 

### S HAKOURI 

### , Appellee2 MEMORANDUM OP INION
A ppellant S hahram S hakouri appeals the trial court ’ s issuance of tw o qualified
domestic relations order s (QDROs)

. Th e QDROs rel ate to the d ivision and
distribution of retir ement be nefits set out in th e 2 011 divorce dec ree between
Shakouri and his ex

- wif e Fariba Badiy an. Shakouri contends that (1) the trial court
lacked juri sdi ction to enter the QDRO s, (2) the QD RO s substantive ly change d t he division of prop erty o rdere d in the divorce decree , (3) th e t rial court abus ed its
di scr etion by den ying h is motion for continuance , and (4) that Badiyan com mitted a
fraud on the trial court to obtain the 2011 div orce de cree . For the reasons dis cu ssed below, we affirm the trial cou rt ’s judgment

. I. F acts S h akouri and Badiyan were m arried in 1978. On July 30, 2003, Ba diyan filed
for divorc e . Over the next ei ght years , Shakouri and Badi yan en gaged in extensive litigation but were eventually divorced in June o f 2011. Du ri ng the eight year s of
liti gation , the tr ial cour t signed three f inal divorce decrees a nd granted two motion s for new trial

. T he 2011 d ivorce decree divided Shakouri’s two retirement accounts. Specifically, t he decree awarded Badiyan 50% of Shakouri’ s reti rement benefits in his
E DS/Hewlett Packard retir ement plan and 100% of funds in any 401K plan arising
out of Shakouri’ s employment with other employers. The decree stated that the
divisions were “mo re particularly defined in a Qualified Dom estic Relations Order to3 be si gned by the Court , ” however the t r ial court did not i ssue t he order s at the ti me it
entered the divorce decree

. I n March 2020, Badiyan filed a petition to en ter the QDRO s. In August 2020,
after a hearin g, the trial court entered two QDR Os to effectuate division of the retirement benefits as specified in the 2011 divorce decree

. Shakouri appeals the trial

court ’s issuance of the QDRO s. II. J urisdi ct ion
I n his first point , Shakouri contend s the tria l cou rt erred in issuing the QDRO s because th e orders enforce a void div orce decree , namely the 20 11 divorce decree.
Shakouri claims that the 2011 decree is voi d because the trial court issued it aft er it
los t it s p l enary power over the di vorce proceeding s. We d isagree. We will su ccinctly
describ e the chronology of events that ga ve the trial cour t co nti nuing juri sdiction ove r th is case from 2003 until it e ntered the final divo r c e decree i n 2 011

. B efor e we start, however, we will set ou t the la w as it pert ains to the extension of a trial court ’s plenary
power . A
. Extendi ng a tr i al court ’ s plenary power A tri al court ’s “ plenary power ” is its power to dispose of an y matt er properl y before i t. See Ple nary Power , B lack ’s Law Dictionary ( 1 1 t h ed. 20 1 9 )

. Generally, a trial

c ou rt may correct or revise its judgment only during the period of its plenary p ower,

s ee Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Albertson’s Inc. , No . 2

- 08

- 205

- CV, 20 09 WL 736694, at *1 n. 2 (Tex. App.

— Fort Worth Mar. 19, 2009 , no pet.) (per curiam)4 (mem. op.) , w hi ch is within thirty days after the judgment

. Tex. R. Civ. P. 329 b(d). But that period is extended if, within the thirty days, a motion a ssailing the judgment
is filed. Tex. R. Civ. P. 329b(e) (“If a motion for new trial is time ly filed by any party,

t he trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days a fter all such timely

- filed motions are overruled, ei th er by a written and si gned order or by operation of law, whichever occurs first.”). The rule specifically mentions motions for new trial or to modify, correct, o r reform the judgment but includes anyth ing else that has the same effect. See Lane Bank Eq ui p. Co. v. Smith S. Equ ip., Inc. , 10 S.W.3d 308, 313 (Tex. 2000) (holding “a motion seekin g a substantive change will extend the . . . court’s plenary power under Rule 329b(g)”); Gomez v. Tex. Dep’t of Crim. Jus tice , 896 S.W.2d 176, 176

– 177 (Tex. 1995) (treating an instrument filed as a “bill of review” as assailing the judgment and thus extend ing the time for perfecting appeal and the trial court’s pl enary jurisdiction to alter its jud gment ); see al so Kirschberg v. Lowe , 974 S.W .2d 844, 847

– 4 8 (Tex. App.

— San Anton io 1998, no pet.) (treating a motion for judgment non obstante ver e dict o as assail ing the judgment and concluding that “the filing of any po st judgment motion or other instrumen t tha t (1) is filed within the time
for fili ng a motion f o r a new trial and (2) ‘ assail[s] the trial court’s judgment’ extends the appellate timetable ”). The “na ture of a motion is determined by its substance, not
its caption.” In re Brookshire Grocery C o. , 250 S.W. 3d 66, 72 (Tex. 2008) (orig

. proceeding)

.5 W hile a t rial court h a s p lena ry power, its po wer to modify its judgment is virtually absolute. In re Provin e , 312 S.W.3d 824 , 829 (Tex. App.

— Houston [ 1 st Dist. ]
2 009 , no pet.) (combined appeal & orig. proceeding)

. W e review jurisdiction questions de novo

. See Tex. A ss ’ n of Bus. v. Tex. Air
Control Bd. , 852 S. W

. 2d 440, 443 (Tex. 1993 ); Marshall v. Priess , 99 S. W.3d 150, 156 (Tex. App

. — Houston [14th Dist.] 2002, n o pet.).
B
. The trial court ’s juri sdict ion to e nter the 2011 divorce decree
1. T he Apri l 2 006 decree
O n April 2 1, 2006, the trial court signed the first f i nal divorce decree bet ween Shakouri and Badi yan . T hus , the t rial court had thirty days from Ap ril 21, 2006, t o

correct or rev ise its judgment

. Tex. R. Civ. P. 329b(d). On April 24, 2006, Badi ya n filed a timely motion asking the t rial c o u rt to g rant all sixtee n of the objections she
asserted in her Ap ri l 4, 2006 First A mended Objections to Proposed De cre e or to

“ grant the alter nati ve relief requested in that same document. ” Badiy a n attached a copy of the April 4, 2006 o bje c t ions to her motion and stated that the docu ment was

“ in corporated herein by refer ence for all purp oses as if fully set forth a t leng th

. ” In
her A pril 4, 2006 motion , Badi yan requested t h e trial court give her “ her day in

cour t. ” According ly, we construe Ba di yan ’ s Ap ril 24, 2006 motion , which incorporates her Apri l 4, 2006 motion, as a request for a new tr ial. See T e x. R. Civ. P. 329b(a), ( g) ; see al so Gome z , 896 S.W.2d at 176

– 77

. B adiyan ’s April 24 , 2006 motion

e xtended t he t rial court ’s plenary power until such ti me that it rul ed on her motion o r6 until the mot ion was deemed over ru led by o peration of law

— seventy

- fiv e days after
the divorce decree was sig ne d

. Te x. R. Civ . P. 329b(c). T he trial c our t never rule d on Badiyan ’s motion ; therefore , it was overruled by operation of law on July 5, 2006

. Id.
T he trial court ’s plenary powe r wa s th en e xte nd ed to August 4, 2006

— thirty day s after Badiyan ’s motion w as overruled by operation of law

. See Te x. R

. C iv. P. 329b (e) ; Tex. R . Ci v. P. 306a(1).
O n July 28, 2006, before the trial court ’s plen ary power exp i red on Aug ust 4,
2006 , the t rial court g ran ted a new tri al on its own mo tion. See Tex. R . Ci v. P. 320 (stat ing that a trial co urt may g r ant a new trial on its own motion). On ce the trial court granted the new trial, the court ’s plenary power w as not sub jec t to a deadline

. See I n re Ba ylo r Med. Ctr. at Gar land , 280 S.W.3d 2 2 7, 230

– 31 (Te x. 2 008 ) (orig.
pr oceeding) (holding that w hen a new trial is grante d , the case stands on th e tri al

court ’ s docket “the same as though no trial had bee n had ”).
2. T he S eptember 2006 decree
O n S eptemb er 27, 2006, the trial court signed a reforme d final divorce decree.
S ha kouri t hen filed a timely motion for n e w trial on October 26, 2006. The clerk ’s

rec ord doe s not reflect th a t the trial court ruled on the new

- tria l moti on . Ac cordin gly , because the trial c ourt did not rule on Shakouri ’s motion for n ew t r ial, the trial court ’ s plenary power was e xtended to January 10, 2007

— seve nty

- five days (to rule on motion) plus thirty days after the motion was overruled by oper ation o f law

. See Tex. R. Civ. P. 329b(c), (e) , (g) ; 306a(1). On November 17, 2006, b efore the trial court’s7 plenary power expired , the trial court again grant ed a new trial on its own motion , and
the trial cou rt ’s plenary power was no longer su bject to a deadl ine

. 1 See Tex. R. Civ. P.
320 ; Baylo r Med. Ctr. at Garland , 280 S.W.3d at 230

– 31

. 3. T he June 20 1 1 decree
O n J une 23, 2011, the tria l cou rt signed the final decree of divorce

. See Baylor
Med. Ctr. at Garland 280 S.W.3d at 230

– 31

. 4. T he asso ciate judge ’s report was not a final or der.
S ha kouri cl a ims that th e June 201 1 d ivorce decree is voi d because th e true and
valid divorce decr ee was e ntered on October 3 1, 2005, wh e n the distric t cou rt j udg e signed an associat e judge ’s handwritten re port
. Badiyan , howeve r, argues that the associate judge’s re po rt was not a final order becaus e (1) it did not contain the required information needed to render it a final order, (2) it lacked an indicia of finality, and (3) neith er of the parties n or the district court judge treated the report as
a final order. Sp ec ifica lly, Badiyan asserts [ h] er e, the October 28, 2005 associate judge’s report was not the final order, even though it was signed by the district judge on October 31, 2005, because it did not contain the requirements of Section 105.006 , it did not even in clude the names or any in fo rmation about the children , Appellant filed a motion to enter that the court set for hearing , the associate judge heard objec tions to the proposed decree and ruled on them , the district ju dge signed the associate judge ’s ru ling , Appellant filed a second motion to enter that was also set for he aring and then

1 We h eld tha t the t rial co u rt had pl enary power to grant its November 17, 2006 new trial motion when we d ismissed Shakour i ’ s 2007 appe al a s moot
. See Shakouri v. S hakouri , No. 2

- 06

- 365

- CV , 2007 W L 4 95 182 , a t *1 ( Tex. App.

— F ort Worth Feb. 15, 200 7, n o pet.) (per curiam) (mem. op.)

.8 continued , the associate judge set a deadline for written objections to the form of the decree , objections were filed , the associate judge ruled on those objections , and then b ot h the associate judge and the district judge signed the final decree of divorce in April 2006 . Further, the associate judge’s report does not state th at it fin al ly disposes of all claims and all parties, that it is final, or that it is appealab le. See I n re R.R.K ., 590 S.W.3d 535, 542

– 43 (Tex. 2019). [Record references omitted.] We agree that the associate judge ’ s October 31, 2005 report was no t a final order.
T he Family Code recites that a final order affecting the parent

– child relationship must cont ain certain information to qualify as a final order. See Tex. Fam. Code Ann. § 10 5

. 006(d)

. As we w ill discuss, a missing requ i red element does not
conclusivel y negate finality, but a failure to include multiple requ ired elements suggests ambiguity as to the trial court ’ s intent. R. R

. K. , 590 S.W.3d at 542. In this case, that ambiguity is not otherwise resolved on the face of the re p ort because it lacks language th at it finally disposes of all claims and parties and is appealable. Family Cod e Section 105. 006(a) e ntitled “C ontents of Final Order,” provides
that a final or der in a proceeding involving minor children “must contain” the partie s ’ driver s ’ license s and social se cu rity information, current home and work ad dresses, and telephone numbers

. T ex . F am . C ode Ann. § 105. 006(a)(1)

– (2). Add itionally,
Section 105.006(b) require s a trial court ’s final order to direct each party subject to th e orde r to notify the court, the other pa rties, and the sta te case registry of chan ges in the parties ’ identifying inf ormation, for as l ong as any party is obligated to pay child support or i s entitled to possession or access to the child. Id . § 105.006(b)

. S ec t ion9 105.006(d) further provides th at final o rders mu st prominently f eature s tatutory warnings stating the lega l consequences for failing to comply with the order

. 2 Id

. § 105.006(d). And t he order must provide a statutory notice to pe ace officers of the

o rde r ’ s enforceability. 3 Id . § 1 05.006(e

- 1)

. Addi tionally, an orde r a ddress ing child

2 S p ec ifically, S e ction 105.006 ( d) pr ovides: An order in a suit that orders child suppor t or possession of or access t o a chil d must contain the following prominently dis played state me nt
. . . :

“ FAILURE TO OBEY A C OURT ORDER FOR CHILD SUPPORT OR FO R POSSE S S ION OF OR ACCES S TO A CHILD MAY RE SULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INC LUDING CONTEMPT OF COURT. A FI ND ING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO S IX MON THS, A FINE OF UP TO $5 00 FO R EACH VIOLATION, AND A MONEY JUDGME N T FOR PAYMENT OF ATTORNEY'S FEES AN D COURT COSTS. ”

“ FAILURE OF A PARTY TO MAKE A CHILD SU PPORT PAYMENT TO THE PLACE A ND I N THE MANNER REQUIRED BY A COURT ORDER MAY RESUL T IN THE PAR TY N OT RECEI VING CREDIT F OR MAKIN G THE PAYMENT. ”

“ FAILURE OF A PARTY TO PA Y CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT

- ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY T O ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAIL UR E TO PAY COURT

- ORDE RED CHIL D SUP PORT TO THAT PARTY. ” Id

. § 105.006(d )

.

3 Specific ally, Section 105.006 (e

- 1) states: An order in a suit that provides for the possession of or a ccess to a child must contai n th e foll owing prominently displaye d statemen t
. . . :10 sup port m ust prominently include the circu mstances in which a court may modify

court

- ordered child support, using language provided by the statute. 4

“ NOTICE TO A NY P EACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE R E ASONABLE EF FORTS TO ENFORCE THE TER MS OF CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORD ER A ND THE OFFICER ’ S AGENCY ARE ENTI TLED TO THE A PPLICABLE IMMUNIT Y AG AI NST ANY CLAIM , CIVIL OR OTHERWISE, REGAR DING TH E O FFICER ’ S GO OD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER ’ S DUTIES IN ENFORCING THE TERMS OF THE ORDE R THAT RELATE TO CHILD CUSTO DY

. ANY PE RSON WHO KNOWINGLY PRESENT S FOR ENFOR CE MENT AN ORDER THA T IS I NVAL ID OR NO LONGER IN EFFECT COMMITS AN OFFE NSE T HAT MAY BE PUNISHABLE BY CONFINEMEN T IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000. ” Id

. at § 105.006 (e

- 1).

4 Speci fically, S ection 105 .0 06 (e

- 2) states : An order in a suit that orders chi ld support mu st c ontain the following promin ently displayed statement
. . . :

“ T HE COURT MAY MODIFY THIS ORDER THAT PROVIDES FOR THE SUPPORT OF A CHILD, IF: (1) THE CIRCUMS TAN CES OF THE CHILD OR A PERSON A FF ECTED BY THE ORDER HAVE MATERIALLY AND SUBSTANTIA LLY CHANGED; OR ( 2) IT HAS BEEN THREE YEAR S SINCE THE ORDER WAS RENDERED OR LAST MODIFIED AND THE MONTHL Y AMOUNT OF THE CHILD SUPPORT AWARD UNDER THE ORDER DIFFERS BY EITHE R 2 0 PERCENT OR $100 FROM THE A MO UN T THAT WOULD BE AWARDED IN ACCORDANCE WITH THE CH ILD SUPPORT G UI DE LINES. ”11 Id

. § 105.006(e

- 2). In su m, Section 105.00 6 pro vi de s a fra mework f or what
information must be in cluded in a f inal order affecting th e parent

– child relationship.
A dded to this statutory framework is our finality jurisprudence. A judicial
d ecree is final when it disposes of a ll issues and all parti es in t he record

. See L ehmann
v. Har

- Con C orp. , 39 S.W.3d 191, 195 (Tex. 2001)

. Becau se a court or der n eed not be in any particular form , “whether a judicial decree is a final judgment must be
determined fr om its language and the r ecord in the case.” Id

. When a n order “finall y disposes of all c laims and all parties” in “clear and unequiv oca l ” language, i t is a final
order. In re Elizondo , 544 S.W.3d 824, 827

– 28 (Tex. 2018) ( orig. proceeding )

. If, however, an o rder ’s finality is not “ clear and unequivocal,” then a re viewing court

m us t examine the record to determine whether the trial cou rt intend ed the or der to be
final

. I d

. at 827.
T o the exten t that the associate judge ’s 2005 report is an order , i t is an order affecting the par ent

– c hild relationship becaus e t h e r ep ort designates B adi yan as sole managing conservator and sets out S hakour i ’s child

- supp ort obligation

. See Tex. Fam. Code Ann. § 101.032(a) (stating that a suit “affecting the parent

– child relationshi p” is

one in wh ich a party requests the appoin t m ent of a ma nagi ng conservator or support of a chil d )

. Again, an order failing t o meet the require ments of Section 105.006 suggest s ambiguity as to the o rder ’s finality. R .R.K. , 590 S.W.3d at 542.

Id

. at § 105.006( e
- 2).12 T his r epo rt lacks many of Sec tion 105 .006 ’ s req uirement s for final o r de rs and contains none of the statutorily required warnings and advis ories. Specific al ly, t h e report does not contain Shakouri ’ s or Badi y an ’s driver’s license or social security
info rmation, current home and work addre sses, o r teleph one numb ers. S ee Tex . F am. Code Ann. § 105.006(a)(1)

– (2)

. Nor does the report direct Shak ouri and Badiya n t o noti fy the court, each other, and the state case registry of changes in the ir respective ident ifying information, for as long as e ither is obliga ted to p ay child supp ort or is entitled to possession or access to the child. Id . § 105.00 6(b). Furth er, th e repo rt do es not contain the (1) statutory warnings stating the legal consequences for failing to comply with the order , (2) statut ory n ot ice to p eace off icers of th e ord er’s enforceability , or (3) the circumstances in which a court may modify court

- order ed
chi ld support

. Id

. § 105.006 (d), (e

- 1), (e

- 2).
As noted, a failure to comply with ever y aspect of Section 105.006, alone, i s not fatal to a final ity determinat ion

. See R.R.K ., 590 S.W.3d at 542

. And w e also note that
the as sociate j udge ’s report inclu de s “Mother Hubbard” language

— a recitation that

“ [ a ] ll other relief req ueste d & not specifically granted is den ied

. ” See Leh mann , 39
S.W.3 d at 192

. But t h e M other Hubbard language in the report is not th e type of
clear and unequivocal language that estab lishe s fin ality bey ond doubt

. R.R.K. , 590 S.W.3d at 540

– 41; Elizon do , 544 S.W.3d at 82 5

. T herefore, due to the re po rt ’s om issions of e lements required by Section
105.006 and it s failure to incl ude “clear and unequivocal” language that i t disposes of13 all c laims and all parties and is appealable

— we have doubts about the order ’ s finality.
R.R. K. , 590 S.W.3d at 5 4 0

– 41 ; se e also De jean v. Brown , No. 01

- 1 7

- 00949

- CV, 2018 WL 2011668, at *1 (Tex. App.

— Houston [1st Dist.] May 1, 2018, no pet.) ( per curiam) ( mem. o p.) (“[T]his docket entry neither was m emorialized as a signed order, nor is it
a ‘final o rder’ un der Title 5 of t he Family C ode because it does not contain the items required und er Section 105.006 and it does not state that it disposes of all partie s and claims.”) ; Qutiefan v. Safi , No. 01

- 17

- 00925

- CV, 2018 WL 1189667, at *1 (Tex. App.

— Houston [1st Di st.] Mar. 8, 201 8, no pet.) (per curiam) (mem. op. ) (“[T]his is not a
‘final orde r’ under Title 5 of the Family Code because it does not co ntain the sev eral
i tems required under Section 105.006 and it does not state that it disposes of all parties and clai ms.”)

. A ccordin gl y, we must examine the record to determine the trial

court ’s in ten t. Vaughn v. Drennon , 324 S.W.3d 560, 56 3 (Tex. 2010) (“If there is any d oubt as to the judgment ’s finality, the n ‘[f]inality must be resolved by a determination

o f the i n tention of the c ou rt [as] gat hered from the langu a g e of the decree and the
record as a whole, aided on occasion by the conduct of the parti es.’ ” (quotin g Lehm ann , 39 S.W.3d at 203)).
A s the quote from Appellee ’s brief demo nst rates , the parties did no t treat the
associate judge ’s report a s a final order b ut instead litigated the conte n ts of a final
decree for months. Moreover, after the dis tr ict judge sig ned th e 2005 report, it granted two motio ns for new trial and set aside two final divorce de cre es b e fore it
entered the June 2011 decree.14 T he actions of the parties and the trial c our t following the trial court’s signing of the associate judge ’s 2005 repor t demo nstrates that no one intended th e report to be the final judgment in this case. Se e R.R.K

. , 590 S.W.3d at 544 (holding
memorandum not a final o rder because after memorandum was issued parties entered into agreement in anticipation of fi nal order bei ng dra fted, trial court held hearing o n parties’ motions to enter final order, a nd final order w a s more specific and thorough than memorandum).
F or t h e reasons set forth above, we hol d that the June 23, 2011 divorce decree is not void. We ove rrule Shakour i’s fi rst point of error.
III. T he trial c our t did not abuse it s discretion by entering the QD RO s. I n hi s secon d , t hird , and fourth points , Shakour i argues that the trial court

a bus ed its discretion by entering the QDRO s because (1) the statute of limit a tions to div ide marital pro perty had ru n , (2) the orders alter ed the division of property made in
the divorce de c ree , and ( 3) Badi yan ’s mo tio n for th e QDROs was an impermissible

co lla teral attack on the di vision of property contained in the 2005 ass ociate j udg e ’ s repo rt. 5 We disagree

.

5 I n hi s second point of error, S hakouri also argues that t he trial cou rt abu sed its discretion in issuing the QDROs because he had entered into a c ontract with Badiyan in w hic h sh e ha d agreed to forfeit any e ntit lement to his retirement benefi ts. This
c lai m , however, is an impermissibl e collateral attack on t he 2011 divorce decree. Hagen v. Hagen , 282 S.W.3d 899, 902 (Tex. 2009 ) ; Armentor v. Kern , 178 S.W .3d 147, 1 49 (Tex. App.

— Houst o n [1st Dist.] 2005, no p et.).15 A
. Sta ndard of rev iew
A QDR O is a specie s o f post

- d ivorce enf orcement or clarif ication order.
Gainous v. Gainous , 219 S.W .3d 97, 103 (Tex. App.

— Houston [1st Dist.] 200 6, pet. denied) (op. on reh ’ g)

. We review the tria l court ’ s rul ing on a motion for enforcement
or clarification of a divorce decre e under an ab u se of disc retion standa rd. In re Marriage of McDonald , 118 S.W.3d 829, 832 ( Tex . App.

— Texarkana 2003, pet. denied). The trial court abuses its discretion when i t (1) acts u n reason ably, arbi trarily, or without reference to any guiding rules or principles or (2 ) err oneously exer cises its power by maki ng a choice outside the range o f c hoices permitted the court by law. Id

. B
. The s tatute of lim it ations does not app ly to a trial court ’ s issuan c e of a QDRO
. S hakouri c laims t hat the statute of limitations f o r the divi sion of the m arital property was tri ggered when the district court j ud ge signed the associate judg e ’s report in 2005 and expire d two years later. Sectio n 9.003 of th e Texa s Family Code imposes a deadline of two years to enf o r ce t he di vision of tan gible personal property

. Tex. Fam. Code Ann. § 9.003. B ut a trial court retains “continuing, exclusive jurisdiction , ” “[n]otwithstanding any other provision of this chapter , ” to render a QDRO based on a previous d ivision of pr o p erty whe n no QDRO exis ted be fore.
Tex. Fam. Code Ann. §§ 9.101, 9.103. Acc ord ingly, no statute of limitation s applies to a request to enter a QDRO

. See Watret v. Watret , 623 S.W.3d 555 , 56 3 (Tex. A pp.

— El Paso Apr

. 26, 2021, no pet. ) (ho ld ing that s t atut e of lim itations provision contained16 in Section 9.003 does not apply to a r equest for an order clarifying the divorce decree

as to retirement benefits ) ; Murray v. Murray , 276 S.W.3d 138, 144 (Tex. App

. — Fort Worth 2008, pet. dism’d).
C
. The QDROs d id not al ter the div ision of property made i n the divorce decree
. N ext, S hako uri claims that the QDROs impermissibly alte red the division of
p ro perty set ou t in the di vo rce decree

. We disagree. A court ren dering a fin al divorce
de c re e may re nder an enf orceable QDRO “permittin g pay ment of pension, retiremen t pl an, or other employee benefits divisible

. . . to an alternate payee or other lawful payee.” Tex. Fam. Code An n. § 9.101(a); Marshall , 9 9 S.W.3d at 1 56

. T he Jun e 2 011 divorce decree awa r ded B a diy an 5 0% of Shakouri ’s EDS/Hewlett Packard retirement benefits an d 100% of the funds in any other of Shakouri ’s r etirement plans. The two QDROs conformed to the divisi o n of pro pe rty as se t out in t he June 2011 div orc e decree.
S hakouri ’s argument that the QDROs altered the division of property is grounded on his claim that the 2005 assoc iate judge’s report is the final divorce
decree. But, as discu s se d, the 2 005 assoc iate judge’s report is not the final d ivorce decre e; the 2 011 divorce decree is the final decree . And the QDROs simply
effectuate the division of the retirement ac counts a s set out in the 2011 divorce
decree. The tr ial co urt did not a b us e its di scretion by entering the Q DRO s .17 D
. Badiy an ’s mo tion t o ente r the Q D ROs was not a collateral at tack on th e di vorce decree.
I n his fourth point of error, Sha k ouri claims that Ba diya n ’s motion for the Q DRO s is an i mpermissible collat eral at tack on t he divi s ion of p r operty set out in the
2005 as s oc iate judge ’s report
. Aga i n, the 2005 associate judge’s report is not the final divorce decree; the 2011 divorce decree is the final decree

. Moreover, the QDROs do

not operat e to avoid the e ffect of the d i v or ce dec ree

— they effectuate the division of
the r etirem ent acc ounts as set out in the 2011 divorce decree

. See Armentor , 178 S.W.3d at 149

. W e overrule Sha kouri ’s second , th ird , a n d fourth points of e rr or . IV. S h a k ouri ’s motion for c o ntinuanc e I n his sixth point of err or, S ha kouri claims that the trial c our t abused its
discre ti on b y fa iling to grant his motion f or continuance.
A. S tanda rd of review
A trial court’s ruling on a motion f or continuance is r e vi ew ed fo r an abuse of
discretion. Say les v. Senior Care Res., Inc. , No. 02

- 20

- 00124

- CV, 2021 WL 62130, at * 4 (Tex. App.

— Fort W orth Jan. 7, 2021, no pet.) (mem. op.). The denial of a moti on for

con tinuance should only be overturned if the trial court’s d ec is ion w as “so arbitrary
and unreasona ble as to amount to a clear and pre judicial error of law.” Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 161 (Tex. 2004). “The test is w hether th e18 trial court acted without reference to g uiding rules or pr incipl e s.” S ayles , 2021 WL 62130, at *4.
B. T he trial court did not abuse its discretion by denyi ng Shakouri ’s mo tion for cont inu an c e . S hakou ri asked for a continuance during the hearing o n Badiyan ’s QDRO
motion

. Shakouri ur ged the trial cou rt t o g ran t his m otion in order to provide t he
court with additional time t o co nsider his pre

- trial motions and t o extend his time to condu ct dis covery. First , we note that after al lowing Shakour i a generous a mou nt of

t ime to argue his motions, t he t rial c ourt o v erruled them

. 6 Not hing in the record
indicate s th at the tr ial court needed additional time to con sider S hakouri ’s mot ions.
And a s to Sh akouri ’s request for additional time to conduct discover y, we note t hat
Badi yan f i le d her pe tition to ob tain the QDROs on March 10 , 2020, but the he aring
did not t ake pla ce until July 24, 2020. Shak ouri , ho wever, d id not seek any discov ery from Badi yan un til J uly 15, 2020 , a mere ni ne days before trial. Shako ur i failed to diligent ly utilize the rules of civi l procedure for discovery purpo ses . State v. Wood Oil Distrib., Inc. , 751 S.W.2d 863, 865 ( Tex. 1988) (holding that w hen a party i s prevente d
f

rom ob taining discovery because he failed to act timely, that is a “pred icament of i ts own making” and the “risk ” a party takes by not “diligen tly pursuing discovery ” ); D.R.

6 In his fifth p oint of error, Shakouri clai m s that the trial court violat ed his due process right s by “ignoring” his timely filed pre

- trial motions. Sha kou ri is wrong ; the t r ial judge indicated that he had read over Sha ko ur i ’ s mo tion s prior to the h eari ng , and t he trial judge allowed Shakouri ampl e time to argue the merits of his motion s at the QDRO hearing. We overrule this point of e rr or .19 Horton

- Tex., Ltd. v. Sa vannah Props. Assocs. , L.P. , 416 S.W.3d 217, 2 23 (Tex. A pp.

— Fort Worth 2013, no pet.). Acc o rdingly, the tr ial co urt ’s de ci si on to deny th e mot ion was

not “so arbitrary an d unreasonable as to amount to a cl ear and prejudicial error of
law.” See Joe , 145 S.W.3d a t 161

. We overrule Shakour i ’s six th po int o f error.
V. F raud and breach of f iduciary dut ies allegation s I n his last point o f error , Shakouri arg ues tha t Badiyan obtained the 2011 div orce decree by committ ing fraud on the court and by breach ing her fiduciar y dut ies

to him. Shakouri ’s claims are a n im permissib le col lat eral attack o n th e 20 11 divorce
decr ee. See Tex. Fam. Code Ann. § 9.007; cf. In re A.B. , 207 S .W.3 d 434, 439 (Tex. App.

— Dallas 2006, no pet.) (holding that the exclusiv e remedy available to attack a
final divorce decree is a bill of review ).
A co lla ter al attack seeks to avoid the effect of a judgment

. Armentor , 178 S.W.3d at 149

. To prevail o n a c oll ateral attack, a party to the original judgment must
show that t he com pl ained

- of judgment is void, not simply voidable. Id

. A judgmen t is void onl y wh en the court rendering judgment “ had no j urisdiction of the parties, no jurisdiction of the subject m att er, no jurisdiction to enter the judgment, or no capacity

to a ct a s a co urt. ” Gainous , 219 S.W. 3d at 105; s ee also Hagen , 282 S.W.3d a t 902 ( holdin g tha t e rrors othe r than lack of jurisdiction over the parties or the subject

matter re nder the judgment voidable and m ay be cor rected only through a direct appeal ); cf. Solomon, Lambe r t , R oth & Assocs., Inc. v. Kidd , 904 S.W.2d 896 , 899 (Tex. App.

— Ho uston [1st D ist.] 1995, n o writ) (h olding party ’s claim that default judgment20 was rendered as result of fraud did not allege jur isdict ional deficiency, but rather sought to render jud gment m er el y void able, and therefore was an impermissible
collate ral atta ck ).
A s dis c ussed ex te n s ively abov e, the 20 11 divor ce decree is not void

. Therefore,
Shakou ri ’ s collater a l attac k is not p e rmi tted. 7 S ee Hagen , 282 S.W.3d at 902.
Additiona lly, on ce Badiy an h ired c ounsel to file her petition to divorce, she no l onger

ow ed Sh a kouri fiducia ry du ties. Boyd v. Boyd , 67 S.W.3d 398, 40 5 (Tex. App.

— Fort Worth 2002, no pet.) (holdi ng that the fidu ci ar y duty arising from the marriage relationship does not continue w he n a hu sband and wife each hire independent professiona l counse l to repres e nt them in a contested divor ce proceeding )

. W e overrule Shakouri’s seventh point of error.
VI. C on clusion
H avi ng o ve rr uled a ll of S hakou ri ’ s points of error, we affirm the t rial cou rt ’s
i ssua nce of the QD ROs. /s/ Dabney Bassel
D abn ey Bassel Justice
Delive red: January 20, 2022

7 We also note that Sha kour i fa il ed to file a bill of review chall enging the divorce d e cree.