In the

Court of Appeals

Second Appellate District of Texas

at Fort 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.

Memorandum Opinion by Justice Bassel

SHAHRAM SHAKOURI, Appellant

V.

FARIBA BADIYAN SHAKOURI, Appellee
2

MEMORANDUM OPINION

Appellant Shahram Shakouri appeals the trial court’s issuance of two qualified 

domestic relations orders (QDROs). The QDROs relate to the division and 

distribution of retirement benefits set out in the 2011 divorce decree between

Shakouri and his ex-wife Fariba Badiyan. Shakouri contends that (1) the trial court 

lacked jurisdiction to enter the QDROs, (2) the QDROs substantively changed the 

division of property ordered in the divorce decree, (3) the trial court abused its 

discretion by denying his motion for continuance, and (4) that Badiyan committed a 

fraud on the trial court to obtain the 2011 divorce decree. For the reasons discussed 

below, we affirm the trial court’s judgment.

I. Facts

Shakouri and Badiyan were married in 1978. On July 30, 2003, Badiyan filed 

for divorce. Over the next eight years, Shakouri and Badiyan engaged in extensive 

litigation but were eventually divorced in June of 2011. During the eight years of 

litigation, the trial court signed three final divorce decrees and granted two motions

for new trial.

The 2011 divorce decree divided Shakouri’s two retirement accounts. 

Specifically, the decree awarded Badiyan 50% of Shakouri’s retirement benefits in his 

EDS/Hewlett Packard retirement 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 “more particularly defined in a Qualified Domestic Relations Order to 
3

be signed by the Court,” however the trial court did not issue the orders at the time it 

entered the divorce decree.

In March 2020, Badiyan filed a petition to enter the QDROs. In August 2020, 

after a hearing, the trial court entered two QDROs to effectuate division of the 

retirement benefits as specified in the 2011 divorce decree. Shakouri appeals the trial 

court’s issuance of the QDROs.

II. Jurisdiction

In his first point, Shakouri contends the trial court erred in issuing the QDROs 

because the orders enforce a void divorce decree, namely the 2011 divorce decree. 

Shakouri claims that the 2011 decree is void because the trial court issued it after it 

lost its plenary power over the divorce proceedings. We disagree. We will succinctly 

describe the chronology of events that gave the trial court continuing jurisdiction over 

this case from 2003 until it entered the final divorce decree in 2011. Before we start, 

however, we will set out the law as it pertains to the extension of a trial court’s plenary 

power.

A. Extending a trial court’s plenary power

A trial court’s “plenary power” is its power to dispose of any matter properly 

before it. See Plenary Power, Black’s Law Dictionary (11th ed. 2019). Generally, a trial 

court may correct or revise its judgment only during the period of its plenary power,

see Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Albertson’s Inc., No. 2-08-205-CV, 2009 

WL 736694, at *1 n.2 (Tex. App.—Fort Worth Mar. 19, 2009, no pet.) (per curiam)
4

(mem. op.), which is within thirty days after the judgment. Tex. R. Civ. P. 329b(d). 

But that period is extended if, within the thirty days, a motion assailing the judgment

is filed. Tex. R. Civ. P. 329b(e) (“If a motion for new trial is timely filed by any party, 

the 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 after all such timely-filed motions are overruled, either by a written and signed 

order or by operation of law, whichever occurs first.”). The rule specifically mentions 

motions for new trial or to modify, correct, or reform the judgment but includes 

anything else that has the same effect. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 

10 S.W.3d 308, 313 (Tex. 2000) (holding “a motion seeking a substantive change will 

extend the . . . court’s plenary power under Rule 329b(g)”); Gomez v. Tex. Dep’t of Crim. 

Justice, 896 S.W.2d 176, 176–177 (Tex. 1995) (treating an instrument filed as a “bill of 

review” as assailing the judgment and thus extending the time for perfecting appeal 

and the trial court’s plenary jurisdiction to alter its judgment); see also Kirschberg v. Lowe, 

974 S.W.2d 844, 847–48 (Tex. App.—San Antonio 1998, no pet.) (treating a motion 

for judgment non obstante veredicto as assailing the judgment and concluding that “the 

filing of any postjudgment motion or other instrument that (1) is filed within the time 

for filing a motion for a new trial and (2) ‘assail[s] the trial court’s judgment’ extends 

the appellate timetable”). The “nature of a motion is determined by its substance, not 

its caption.” In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. 

proceeding).
5

While a trial court has plenary power, its power to modify its judgment is 

virtually absolute. In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.]

2009, no pet.) (combined appeal & orig. proceeding).

We review jurisdiction questions de novo. See Tex. Ass’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, no pet.).

B. The trial court’s jurisdiction to enter the 2011 divorce decree

1. The April 2006 decree

On April 21, 2006, the trial court signed the first final divorce decree between 

Shakouri and Badiyan. Thus, the trial court had thirty days from April 21, 2006, to 

correct or revise its judgment. Tex. R. Civ. P. 329b(d). On April 24, 2006, Badiyan 

filed a timely motion asking the trial court to grant all sixteen of the objections she 

asserted in her April 4, 2006 First Amended Objections to Proposed Decree or to 

“grant the alternative relief requested in that same document.” Badiyan attached a 

copy of the April 4, 2006 objections to her motion and stated that the document was 

“incorporated herein by reference for all purposes as if fully set forth at length.” In 

her April 4, 2006 motion, Badiyan requested the trial court give her “her day in 

court.” Accordingly, we construe Badiyan’s April 24, 2006 motion, which 

incorporates her April 4, 2006 motion, as a request for a new trial. See Tex. R. Civ. P. 

329b(a), (g); see also Gomez, 896 S.W.2d at 176–77. Badiyan’s April 24, 2006 motion 

extended the trial court’s plenary power until such time that it ruled on her motion or 
6

until the motion was deemed overruled by operation of law—seventy-five days after 

the divorce decree was signed. Tex. R. Civ. P. 329b(c). The trial court never ruled on 

Badiyan’s motion; therefore, it was overruled by operation of law on July 5, 2006. Id. 

The trial court’s plenary power was then extended to August 4, 2006—thirty days 

after Badiyan’s motion was overruled by operation of law. See Tex. R. Civ. P. 329b(e);

Tex. R. Civ. P. 306a(1).

On July 28, 2006, before the trial court’s plenary power expired on August 4, 

2006, the trial court granted a new trial on its own motion. See Tex. R. Civ. P. 320 

(stating that a trial court may grant a new trial on its own motion). Once the trial 

court granted the new trial, the court’s plenary power was not subject to a deadline. 

See In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230–31 (Tex. 2008) (orig. 

proceeding) (holding that when a new trial is granted, the case stands on the trial 

court’s docket “the same as though no trial had been had”).

2. The September 2006 decree

On September 27, 2006, the trial court signed a reformed final divorce decree. 

Shakouri then filed a timely motion for new trial on October 26, 2006. The clerk’s 

record does not reflect that the trial court ruled on the new-trial motion. Accordingly, 

because the trial court did not rule on Shakouri’s motion for new trial, the trial court’s 

plenary power was extended to January 10, 2007—seventy-five days (to rule on 

motion) plus thirty days after the motion was overruled by operation of law. See Tex. 

R. Civ. P. 329b(c), (e), (g); 306a(1). On November 17, 2006, before the trial court’s 
7

plenary power expired, the trial court again granted a new trial on its own motion, and 

the trial court’s plenary power was no longer subject to a deadline.

1

 See Tex. R. Civ. P. 

320; Baylor Med. Ctr. at Garland, 280 S.W.3d at 230–31.

3. The June 2011 decree

On June 23, 2011, the trial court signed the final decree of divorce. See Baylor 

Med. Ctr. at Garland 280 S.W.3d at 230–31.

4. The associate judge’s report was not a final order.

Shakouri claims that the June 2011 divorce decree is void because the true and 

valid divorce decree was entered on October 31, 2005, when the district court judge

signed an associate judge’s handwritten report. Badiyan, however, argues that the 

associate judge’s report was not a final order because (1) it did not contain the 

required information needed to render it a final order, (2) it lacked an indicia of 

finality, and (3) neither of the parties nor the district court judge treated the report as 

a final order. Specifically, Badiyan asserts

[h]ere, 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 include the names or any information about the children, 

Appellant filed a motion to enter that the court set for hearing, the 

associate judge heard objections to the proposed decree and ruled on 

them, the district judge signed the associate judge’s ruling, Appellant 

filed a second motion to enter that was also set for hearing and then 

1

We held that the trial court had plenary power to grant its November 17, 2006 

new trial motion when we dismissed Shakouri’s 2007 appeal as moot. See Shakouri v. 

Shakouri, No. 2-06-365-CV, 2007 WL 495182, at *1 (Tex. App.—Fort Worth Feb. 15, 

2007, no 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 both 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 that it finally disposes of all claims and all 

parties, that it is final, or that it is appealable. See In 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 not a final order. 

The Family Code recites that a final order affecting the parent–child 

relationship must contain certain information to qualify as a final order. See Tex. Fam. 

Code Ann. § 105.006(d). As we will discuss, a missing required element does not 

conclusively negate finality, but a failure to include multiple required 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 report because it lacks 

language that it finally disposes of all claims and parties and is appealable.

Family Code Section 105.006(a) entitled “Contents of Final Order,” provides 

that a final order in a proceeding involving minor children “must contain” the parties’

drivers’ licenses and social security information, current home and work addresses,

and telephone numbers. Tex. Fam. Code Ann. § 105.006(a)(1)–(2). Additionally, 

Section 105.006(b) requires a trial court’s final order to direct each party subject to the

order to notify the court, the other parties, and the state case registry of changes in the 

parties’ identifying information, for as long as any party is obligated to pay child 

support or is entitled to possession or access to the child. Id. § 105.006(b). Section 
9

105.006(d) further provides that final orders must prominently feature statutory 

warnings stating the legal consequences for failing to comply with the order.

2

 Id. 

§ 105.006(d). And the order must provide a statutory notice to peace officers of the 

order’s enforceability.3 Id. § 105.006(e-1). Additionally, an order addressing child 

2

Specifically, Section 105.006(d) provides:

An order in a suit that orders child support or possession of or access to 

a child must contain the following prominently displayed statement . . . :

“FAILURE TO OBEY A COURT ORDER FOR CHILD 

SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD 

MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE 

ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF

CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL 

FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH 

VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF

ATTORNEY'S FEES AND COURT COSTS.”

“FAILURE OF A PARTY TO MAKE A CHILD SUPPORT 

PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED 

BY A COURT ORDER MAY RESULT IN THE PARTY NOT

RECEIVING CREDIT FOR MAKING THE PAYMENT.”

“FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES 

NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED 

POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A 

PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD 

DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED 

CHILD SUPPORT TO THAT PARTY.”

Id. § 105.006(d).

3

Specifically, Section 105.006(e-1) states:

An order in a suit that provides for the possession of or access to a child 

must contain the following prominently displayed statement . . . :
10

support must prominently include the circumstances in which a court may modify 

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

“NOTICE TO ANY PEACE OFFICER OF THE STATE OF 

TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENFORCE 

THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS 

ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF 

A COURT ORDER AND THE OFFICER’S AGENCY ARE 

ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY 

CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER’S 

GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE 

OFFICER’S DUTIES IN ENFORCING THE TERMS OF THE 

ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON 

WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN 

ORDER THAT IS INVALID OR NO LONGER IN EFFECT 

COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY 

CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND 

A FINE OF AS MUCH AS $10,000.”

Id. at § 105.006(e-1).

4

Specifically, Section 105.006(e-2) states:

An order in a suit that orders child support must contain the following 

prominently displayed statement . . . :

“THE COURT MAY MODIFY THIS ORDER THAT 

PROVIDES FOR THE SUPPORT OF A CHILD, IF:

(1) THE CIRCUMSTANCES OF THE CHILD OR A PERSON

AFFECTED BY THE ORDER HAVE MATERIALLY AND 

SUBSTANTIALLY CHANGED; OR

(2) IT HAS BEEN THREE YEARS SINCE THE ORDER

WAS RENDERED OR LAST MODIFIED AND THE MONTHLY 

AMOUNT OF THE CHILD SUPPORT AWARD UNDER THE 

ORDER DIFFERS BY EITHER 20 PERCENT OR $100 FROM THE 

AMOUNT THAT WOULD BE AWARDED IN ACCORDANCE 

WITH THE CHILD SUPPORT GUIDELINES.”
11

Id. § 105.006(e-2). In sum, Section 105.006 provides a framework for what 

information must be included in a final order affecting the parent–child relationship.

Added to this statutory framework is our finality jurisprudence. A judicial 

decree is final when it disposes of all issues and all parties in the record. See Lehmann 

v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Because a court order need not be 

in any particular form, “whether a judicial decree is a final judgment must be 

determined from its language and the record in the case.” Id. When an order “finally 

disposes of all claims and all parties” in “clear and unequivocal” language, it is a final 

order. In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding). If, 

however, an order’s finality is not “clear and unequivocal,” then a reviewing court 

must examine the record to determine whether the trial court intended the order to be 

final. Id. at 827.

To the extent that the associate judge’s 2005 report is an order, it is an order

affecting the parent–child relationship because the report designates Badiyan as sole 

managing conservator and sets out Shakouri’s child-support obligation. See Tex. Fam. 

Code Ann. § 101.032(a) (stating that a suit “affecting the parent–child relationship” is 

one in which a party requests the appointment of a managing conservator or support 

of a child). Again, an order failing to meet the requirements of Section 105.006 

suggests ambiguity as to the order’s finality. R.R.K., 590 S.W.3d at 542.

Id. at § 105.006(e-2).
12

This report lacks many of Section 105.006’s requirements for final orders and 

contains none of the statutorily required warnings and advisories. Specifically, the 

report does not contain Shakouri’s or Badiyan’s driver’s license or social security 

information, current home and work addresses, or telephone numbers. See Tex. Fam. 

Code Ann. § 105.006(a)(1)–(2). Nor does the report direct Shakouri and Badiyan to 

notify the court, each other, and the state case registry of changes in their respective 

identifying information, for as long as either is obligated to pay child support or is 

entitled to possession or access to the child. Id. § 105.006(b). Further, the report 

does not contain the (1) statutory warnings stating the legal consequences for failing 

to comply with the order, (2) statutory notice to peace officers of the order’s 

enforceability, or (3) the circumstances in which a court may modify court-ordered 

child support. Id. § 105.006(d), (e-1), (e-2).

As noted, a failure to comply with every aspect of Section 105.006, alone, is not

fatal to a finality determination. See R.R.K., 590 S.W.3d at 542. And we also note that 

the associate judge’s report includes “Mother Hubbard” language—a recitation that

“[a]ll other relief requested & not specifically granted is denied.” See Lehmann, 39 

S.W.3d at 192. But the Mother Hubbard language in the report is not the type of 

clear and unequivocal language that establishes finality beyond doubt. R.R.K., 590 

S.W.3d at 540–41; Elizondo, 544 S.W.3d at 825.

Therefore, due to the report’s omissions of elements required by Section 

105.006 and its failure to include “clear and unequivocal” language that it disposes of
13

all claims and all parties and is appealable—we have doubts about the order’s finality. 

R.R.K., 590 S.W.3d at 540–41; see also Dejean v. Brown, No. 01-17-00949-CV, 2018 WL 

2011668, at *1 (Tex. App.—Houston [1st Dist.] May 1, 2018, no pet.) (per curiam) 

(mem. op.) (“[T]his docket entry neither was memorialized as a signed order, nor is it 

a ‘final order’ under Title 5 of the Family Code because it does not contain the items 

required under Section 105.006 and it does not state that it disposes of all parties and 

claims.”); Qutiefan v. Safi, No. 01-17-00925-CV, 2018 WL 1189667, at *1 (Tex. App.—

Houston [1st Dist.] Mar. 8, 2018, no pet.) (per curiam) (mem. op.) (“[T]his is not a 

‘final order’ under Title 5 of the Family Code because it does not contain the several 

items required under Section 105.006 and it does not state that it disposes of all 

parties and claims.”). Accordingly, we must examine the record to determine the trial 

court’s intent. Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (“If there is any 

doubt as to the judgment’s finality, then ‘[f]inality must be resolved by a determination 

of the intention of the court [as] gathered from the language of the decree and the 

record as a whole, aided on occasion by the conduct of the parties.’” (quoting 

Lehmann, 39 S.W.3d at 203)).

As the quote from Appellee’s brief demonstrates, the parties did not treat the 

associate judge’s report as a final order but instead litigated the contents of a final 

decree for months. Moreover, after the district judge signed the 2005 report, it 

granted two motions for new trial and set aside two final divorce decrees before it 

entered the June 2011 decree.
14

The actions of the parties and the trial court following the trial court’s signing 

of the associate judge’s 2005 report demonstrates that no one intended the report to 

be the final judgment in this case. See R.R.K., 590 S.W.3d at 544 (holding 

memorandum not a final order because after memorandum was issued parties entered 

into agreement in anticipation of final order being drafted, trial court held hearing on 

parties’ motions to enter final order, and final order was more specific and thorough 

than memorandum).

For the reasons set forth above, we hold that the June 23, 2011 divorce decree 

is not void. We overrule Shakouri’s first point of error.

III. The trial court did not abuse its discretion by entering the QDROs.

In his second, third, and fourth points, Shakouri argues that the trial court

abused its discretion by entering the QDROs because (1) the statute of limitations to 

divide marital property had run, (2) the orders altered the division of property made in

the divorce decree, and (3) Badiyan’s motion for the QDROs was an impermissible

collateral attack on the division of property contained in the 2005 associate judge’s 

report.5

 We disagree.

5

In his second point of error, Shakouri also argues that the trial court abused its 

discretion in issuing the QDROs because he had entered into a contract with Badiyan 

in which she had agreed to forfeit any entitlement to his retirement benefits. This 

claim, however, is an impermissible collateral attack on the 2011 divorce decree. 

Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009); Armentor v. Kern, 178 S.W.3d 147, 

149 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
15

A. Standard of review

A QDRO is a species of post-divorce enforcement or clarification order. 

Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. 

denied) (op. on reh’g). We review the trial court’s ruling on a motion for enforcement 

or clarification of a divorce decree under an abuse of discretion standard. In re 

Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana 2003, pet. denied). 

The trial court abuses its discretion when it (1) acts unreasonably, arbitrarily, or 

without reference to any guiding rules or principles or (2) erroneously exercises its 

power by making a choice outside the range of choices permitted the court by law. Id.

B. The statute of limitations does not apply to a trial court’s issuance 

of a QDRO.

Shakouri claims that the statute of limitations for the division of the marital 

property was triggered when the district court judge signed the associate judge’s 

report in 2005 and expired two years later. Section 9.003 of the Texas Family Code 

imposes a deadline of two years to enforce the division of tangible personal property. 

Tex. Fam. Code Ann. § 9.003. But a trial court retains “continuing, exclusive 

jurisdiction,” “[n]otwithstanding any other provision of this chapter,” to render a 

QDRO based on a previous division of property when no QDRO existed before. 

Tex. Fam. Code Ann. §§ 9.101, 9.103. Accordingly, no statute of limitations applies

to a request to enter a QDRO. See Watret v. Watret, 623 S.W.3d 555, 563 (Tex. App.—

El Paso Apr. 26, 2021, no pet.) (holding that statute of limitations provision contained 
16

in Section 9.003 does not apply to a request 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 did not alter the division of property made in the 

divorce decree. 

Next, Shakouri claims that the QDROs impermissibly altered the division of 

property set out in the divorce decree. We disagree. A court rendering a final divorce 

decree may render an enforceable QDRO “permitting payment of pension, retirement 

plan, or other employee benefits divisible . . . to an alternate payee or other lawful 

payee.” Tex. Fam. Code Ann. § 9.101(a); Marshall, 99 S.W.3d at 156. The June 2011 

divorce decree awarded Badiyan 50% of Shakouri’s EDS/Hewlett Packard retirement 

benefits and 100% of the funds in any other of Shakouri’s retirement plans. The two 

QDROs conformed to the division of property as set out in the June 2011 divorce 

decree.

Shakouri’s argument that the QDROs altered the division of property is 

grounded on his claim that the 2005 associate judge’s report is the final divorce 

decree. But, as discussed, the 2005 associate judge’s report is not the final divorce

decree; the 2011 divorce decree is the final decree. And the QDROs simply 

effectuate the division of the retirement accounts as set out in the 2011 divorce 

decree. The trial court did not abuse its discretion by entering the QDROs.
17

D. Badiyan’s motion to enter the QDROs was not a collateral attack 

on the divorce decree.

In his fourth point of error, Shakouri claims that Badiyan’s motion for the 

QDROs is an impermissible collateral attack on the division of property set out in the 

2005 associate judge’s report. Again, 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 operate to avoid the effect of the divorce decree—they effectuate the division of

the retirement accounts as set out in the 2011 divorce decree. See Armentor, 178 

S.W.3d at 149.

We overrule Shakouri’s second, third, and fourth points of error.

IV. Shakouri’s motion for continuance

In his sixth point of error, Shakouri claims that the trial court abused its 

discretion by failing to grant his motion for continuance.

A. Standard of review

A trial court’s ruling on a motion for continuance is reviewed for an abuse of 

discretion. Sayles v. Senior Care Res., Inc., No. 02-20-00124-CV, 2021 WL 62130, at *4 

(Tex. App.—Fort Worth Jan. 7, 2021, no pet.) (mem. op.). The denial of a motion for 

continuance should only be overturned if the trial court’s decision was “so arbitrary 

and unreasonable as to amount to a clear and prejudicial error of law.” Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). “The test is whether the 
18

trial court acted without reference to guiding rules or principles.” Sayles, 2021 WL 

62130, at *4.

B. The trial court did not abuse its discretion by denying Shakouri’s 

motion for continuance.

Shakouri asked for a continuance during the hearing on Badiyan’s QDRO 

motion. Shakouri urged the trial court to grant his motion in order to provide the 

court with additional time to consider his pre-trial motions and to extend his time to

conduct discovery. First, we note that after allowing Shakouri a generous amount of 

time to argue his motions, the trial court overruled them.

6

 Nothing in the record 

indicates that the trial court needed additional time to consider Shakouri’s motions. 

And as to Shakouri’s request for additional time to conduct discovery, we note that 

Badiyan filed her petition to obtain the QDROs on March 10, 2020, but the hearing 

did not take place until July 24, 2020. Shakouri, however, did not seek any discovery

from Badiyan until July 15, 2020, a mere nine days before trial. Shakouri failed to 

diligently utilize the rules of civil procedure for discovery purposes. State v. Wood Oil 

Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (holding that when a party is prevented 

from obtaining discovery because he failed to act timely, that is a “predicament of its 

own making” and the “risk” a party takes by not “diligently pursuing discovery”); D.R. 

6

In his fifth point of error, Shakouri claims that the trial court violated his due 

process rights by “ignoring” his timely filed pre-trial motions. Shakouri is wrong; the

trial judge indicated that he had read over Shakouri’s motions prior to the hearing, and 

the trial judge allowed Shakouri ample time to argue the merits of his motions at the 

QDRO hearing. We overrule this point of error.
19

Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort 

Worth 2013, no pet.). Accordingly, the trial court’s decision to deny the motion was 

not “so arbitrary and unreasonable as to amount to a clear and prejudicial error of 

law.” See Joe, 145 S.W.3d at 161. We overrule Shakouri’s sixth point of error.

V. Fraud and breach of fiduciary duties allegations

In his last point of error, Shakouri argues that Badiyan obtained the 2011 

divorce decree by committing fraud on the court and by breaching her fiduciary duties 

to him. Shakouri’s claims are an impermissible collateral attack on the 2011 divorce 

decree. See Tex. Fam. Code Ann. § 9.007; cf. In re A.B., 207 S.W.3d 434, 439 (Tex. 

App.—Dallas 2006, no pet.) (holding that the exclusive remedy available to attack a 

final divorce decree is a bill of review).

A collateral attack seeks to avoid the effect of a judgment. Armentor, 178 

S.W.3d at 149. To prevail on a collateral attack, a party to the original judgment must 

show that the complained-of judgment is void, not simply voidable. Id. A judgment 

is void only when the court rendering judgment “had no jurisdiction of the parties, no 

jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity 

to act as a court.” Gainous, 219 S.W.3d at 105; see also Hagen, 282 S.W.3d at 902

(holding that errors other than lack of jurisdiction over the parties or the subject 

matter render the judgment voidable and may be corrected only through a direct 

appeal); cf. Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 899 (Tex.

App.—Houston [1st Dist.] 1995, no writ) (holding party’s claim that default judgment 
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was rendered as result of fraud did not allege jurisdictional deficiency, but rather 

sought to render judgment merely voidable, and therefore was an impermissible 

collateral attack).

As discussed extensively above, the 2011 divorce decree is not void. Therefore, 

Shakouri’s collateral attack is not permitted.7

 See Hagen, 282 S.W.3d at 902. 

Additionally, once Badiyan hired counsel to file her petition to divorce, she no longer 

owed Shakouri fiduciary duties. Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex. App.—Fort 

Worth 2002, no pet.) (holding that the fiduciary duty arising from the marriage 

relationship does not continue when a husband and wife each hire independent 

professional counsel to represent them in a contested divorce proceeding).

We overrule Shakouri’s seventh point of error.

VI. Conclusion

Having overruled all of Shakouri’s points of error, we affirm the trial court’s

issuance of the QDROs.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: January 20, 2022

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We also note that Shakouri failed to file a bill of review challenging the divorce 

decree.