### NO. 06-15-00039-CV 

## ************* INTHE COURT OFAPPEALS SIXTHAPPELLATE DISTRICT OF TEXAS AT TEXARKANA,TEXAS 

## ******* IN THE INTEREST OFT.N.L. A CHILD 

## ******* Appealed from the 307TH Family District Court Gregg County, Texas Trial CourtNo.2008-353-DR BRIEF OF APPELLEE CARLOS LANIER

JESSICA A. KROSCHER State Bar # 

### 24070879 Attorney atLaw P.O. Box 1228 Longview, TX 75606 Telephone: (903) 553-0085 Facsimile: (903) 553-9448 jessica@longviewlegal.com ATTORNEY FORAPPELLEE
APPELLEE WAIVES ORAL ARGUMENT ACCEPTED 06-15-00039-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/13/2015 2:07:37 PM DEBBIE AUTREY

CLERK

### NO. 06-15-00039-CV


### IN THE INTEREST OF T.N.L. A CHILD

IDENTITY OFPARTIESAND COUNSEL 

### Pursuantto T.R.A.P. 38.1 (a) Appellant: Appellant's trial counsel: SAMUELLANIER Father ofT.N.L. EBB B
.MOBLEY Attorney at Law Appellant's EBB B. MOBLEY counsel on appeal Attorney at Law Appellee: CARLOS LANIER Mother ofT.N.L. Appellee's trial JESSICAKROSCHER counsel: Attorney at Law Appellee's JESSICAKROSCHER counsel on appeal Attorney at Law Trial Judge: TIMWOMACK 307th Family District Judge

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### Marshall, Texas
P.O. Box2309 Longview, Texas 75606 P.O.Box2309 Longview, TX 75606 Longview, Texas

P.O. Box 1228 Longview, Texas 75606 P.O. Box 1228 Longview, Texas 75606 101 East Methvin, Suite 463 Longview, Texas 75601

### TABLE OFCONTENTS 

### Page IDENTITYOFPARTIESANDCOUNSEL
............................................... l TABLEOFCONTENTS
...........................................................................................2 INDEXOFAUTHORITIES
........................... ................ .............. .. .. .............. ...........3 STATEMENT OFTHECASE
..................................................................................4 STATEMENTOFFACTS
..................................................................................... 4-6 ISSUE
......................................................................... ............. ....................................... 6 Did the trial court abuse his discretion byrendering ajudgment against a defaulting party for the amount ofunpaid payments to which the opposing party is entitled to under the final decree ofdivorce? SUMMARY OFTHEARGUMENT
...........................................................7 ARGUMENT
............................................................................................. 7-11 PRAYER
....................................................................................................................... 11 CERTIFICATEOFCOMPLIANCE
........................................................................ 12 CERTIFICATE OFSERVICE
.................... .. ........................................................... 12

SCRIVENER'S NOTE The parties are referred to as "Samuel", "formerhusband", or"appellant", and "Carlos", "former wife", or " appellee". Theresidence in question located at2308 Nixson inLongview, Gregg County, Texas is referred to as "the house."

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### INDEX OF AUTHORITIES 

### Cases Forney v. Jorrie, 511S.W.2d379 (Tex.Civ.App.-San Antonio 1974, writ refd n.r.e.)
............................................... 10 In ReMarriage of Pyrtle, 433 S.W.2d 152 (Tex.App.-Dallas 2014, pet. denied)
........................................................................ 10


### Statutes Texas Family Code §9.002
...............................................................8 Texas Family Code §9.006
...............................................................7 Texas Family Code §9.007(b)
....... ............. ............................. ....... .....8 Texas Family Code §9.010
................................................................7 Texas Family Code §9.0lO(b)
....................... .................................8,9,10

Page 3of12STATEMENT OF THE CASE This is an appeal from a ruling in a post-divorce proceeding that was brought by a former wife due to herformer husband'sfailure to meethis financial obligations orderedinthe final decree ofdivorce. The trial court rendered ajudgment against the former husband for the amount of unpaid payments to which the former wife was entitled.

STATEMENT OF FACTS The parties were divorced on September 26, 2008 and the final decree was entered on November 17, 2008 (Reporter's Record Vol. 2 Page 6)(Clerk's Record Page 24). The final decree specifically ordered Samuel to pay the house note, insurance premiums and property taxes on the house in lieu of child support for the minor child T.N.L. (Clerk's Record Page 13). The final decree further ordered that Samuel was responsible for fifty percent ofall maintenance expenses for the house over the amount offive hundred dollars ($500.00) (Clerk's Record Page 22). At a bench trial held on January 28, 2015, Carlos asked the court to award ajudgment in the amount of Samuel's unpaid financial obligations that were ordered in the final decree (Reporter's RecordVol. 2 Page 9)(Clerk's Record Page 34). Carlos testifiedthat afterthe divorce, she was the one who made the mortgage payments, property payments and tax payments and that Samuel didnotmake a singlepayment (Reporter's Record Vol. 2 Page 10). Carlos further testified that after the final decree was entered, the house nearly went into foreclosure proceedings, due to Samuel's nonpayment, until Carlos finally caught up the delinquent amount and beganmaking the payments (Reporter's Record Vol. 2 Page 12). Carlos stated that she had to work twojobsjustto be able to make the house payments every month. (Reporter's Record Vol. 2 Page 13).

Page 4of12Carlos further testified that Samuel didn't pay her for one half the cost of a new air conditioner for the house, and that Samuel's responsibility for the air conditioner totaled one thousand five hundred ninety seven dollars and fifty cents ($1,597.50) (Reporter's Record Vol. 2 Page 18). The totality ofSamuel's financial responsibility under the final decree that remained unpaid at the time oftrial was forty three thousand three hundred fifty three dollars and twelve cents ($43,353.12) (Reporter'sRecord Vol. 2 Page 18). Giving Samuel credittowardhis financial obligations for the twenty one thousand nine hundred and forty eight dollar ($21,948.00) payment that Carlos received from the social security administration, the total amount Samuel was delinquent at the time oftrial was twenty one thousand four hundred and five dollars and twelve cents ($21,405.12) (Reporter's Record Vol. 2 Page 18). Carlos testified that she made all ofthe mortgage payments from November 11, 2008, the date ofthe divorce, through June 1, 2014, when their daughter graduated from high school, for a total of forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62) (Reporter's Record Vol. 2 Page 17). The final decree specifically gave Carlos the exclusive use ofthe house until: T.N.L. turned 18 years ofage; graduated high school; orthe sale ofthe residence bymutual agreement ofCarlos and Samuel (Clerk's Record Page 22). At that time, the decree orders Carlos to either sell the house; orpurchase Samuel's portion ofthe equity. In the event ofa buyout, Carlos was to order
an appraisal on the home, and pay Samuel for his one-halfinterest in and to the equity in said property, over and above outstanding liens thereon (Clerk's Record Page 22-23). Carlos testified that she ordered an appraisal on the house and it appraised for sixty nine thousand dollars ($69,000.00) (Reporter's Record Vol. 2 Page 18). Carlos further testified the

Page 5of12mortgage payoffas ofJune 30, 2014 was twenty eight thousand six hundred seventy six dollars and thirty six cents ($28,676.36) (Reporter's Record Vol. 2 Page 19). Samuel testified that he was unable to inquire about the mortgage because his name was not on the deed (Reporter's Record Vol. 2 Page 33). It was later shown that both Carlos and Samuel were named on the deed ofthe house (Reporter's Record Vol. 2 Page 3)(Clerk's Record Page 81). Samuel ultimately conceded that the only proofhe had as to whether he met any ofthe financial obligations ordered in the final decree were the "words I'm telling you" (Reporter's Record Vol. 2 Page 39). Samuel further testified to the court that he did not make any payments required underthe divorce decree from either September 11, 2010 or September 11, 2011 forward (Reporter's Record Vol. 2 Page 48). After the bench trial on January 28, 2015, the order was signed on June 4, 2015 (Clerk's Record Page 106). The court's findings offact and conclusions oflaw was signed by the trialjudge on July 29, 2015 (Clerk's Record Page 119).

ISSUE Did the trial court abuse his discretion by rendering ajudgment against a defaulting party for the amount ofunpaidpayments to whichthe opposing party is entitledto under the final decree ofdivorce?

Page 6of12SUMMARY OF THE ARGUMENT The trial court's ruling was not an alteration ofthe original property division, it was a judgmentagainst Samuel inthe amount ofthe unpaidpayments to which Carlos is entitledto under the final decree ofdivorce.

ARGUMENT Applicable Statutes Texas Family Code §9.006 provides: (a) Except as provided by this subchapter and by the Texas Rules ofCivil Procedure, the courtmayrenderfurther orders to enforce the division ofproperty made or approved in the decree ofdivorce or annulment to assist in the implementation ofor to clarify the prior order. (b) The court may specify more precisely the manner of effecting the property division previously made or approved if the substantive division of property is not altered or changed. (c) An order ofenforcement does not alter or affect the finality ofthe decree ofdivorce or annulment being enforced. Texas Family Code §9.010 provides: (a) Ifaparty fails to complywith a decree ofdivorce orannulment and delivery ofproperty awarded in the decree is no longer an adequate remedy, the court may render a money judgment for the damages caused by that failure to comply. (b) Ifa party did not receive payments ofmoney as awarded in the decree ofdivorce or annulment, the court may renderjudgment against a defaulting party for the amount of unpaid payments to whichthe party is entitled. (c) The remedy of a reduction to money judgment is in addition to the other remedies provided by law. (d) A moneyjudgmentrendered underthis sectionmay be enforcedby any means available for the enforcement of judgment for debt.

Page 7of12Analysis Under section 9.002 ofthe Texas Family Code, the trial court retainsjurisdictionto render further orders to enforce the division ofmarital property. However, it is beyond the power ofthe trial court to render a ruling after the divorce decree has been entered if it "amends, modifies, alters, or changes the actual, substantive division ofproperty made or approved in a final decree ofdivorce." Tex.Fam.Code §9.007(b). Moreover, ifa party did notreceive payments in accordance withthe decree ofdivorce, the courtmayrenderjudgment against a defaulting party for the amount ofunpaid payments to which the party is entitled. Tex.Fam.Code §9.0IO(b). The final decree ofdivorce was entered on November 17, 2008 (Clerk's Record Page 24). The final decree set aside the house for the exclusive use and benefit ofCarlos and T.N.L. until the earliest of: 1) T.N.L. attaining eighteen years ofage or finishing high school; or 2) the sale of thehousebymutual agreementofCarlos and Samuel (Clerk's Record Page 22). Duringthisperiod of exclusive occupancy, Samuel was ordered to pay the house note, insurance premiums and property taxes in lieu of child support (Clerk's Record Page 13). Additionally, Samuel was orderedto pay fifty percent ofall maintenance expenses associated withthe house that were above five hundred dollars ($500.00) (Clerk's Record Page 22). Since T.N.L. has both reached the age ofeighteen and graduated from high school, it is undisputed that under the final decree, the house must be either sold or Carlos must purchase Samuel'sinterestintheproperty (Clerk'sRecordPage 22-23). In accordancewiththe final decree, Carlos began the proceedings to purchase Samuel's interest in the house. She had the property appraised, and a value of sixty nine thousand dollars ($69,000.00) was attributed to the house (Reporter's Record Vol. 2 Page 18). Carlos' testimony and the court's ruling follow Carlos'

Page 8of12summary ofrequested relieffound in the Clerk's Record Page 34: Summary ofRequested Relief Mortgage Payment Mr. Lanier should have made (beginning 11111/2008 through 06/01/2014) Repairs Mr. Lanier should have reimbursed Total owed by Mr. Lanier Amount child received from Social Security Administration Amountremaining owed by Mr. Lanier Value ofhome (Ct. ordered appraisal attached as exhibit "C") Mortgage payoffthrough 06/30/2014 Total Equity Amount still owed by Mr. Lanier Each Yz Equity (approximate) Difference owed by Mr. Lanier $41,755.62 $1,597.50 $43,353.12 -$21,948.00 $21,405.12 $69 000.00 -$28,676.36 $40 323.64 $21,405.12 -$20,161.82 $1,243.30
The trial court's adoption ofthe above listed requested reliefin its ruling was ajudgment against a defaulting party for the amount ofunpaid payments to which the party is entitled, which is permitted under Texas Family Code §9.0lO(b). Samuel presented no tangible proof at trial that he met any ofhis financial obligations under the final decree. Samuel did claim to have made some cash payments before he stopped working in September of2010 or 2011, but conceded to the court that he had made no payments since he stopped working (Reporter's Record Vol. 2 Page 48). The court was not persuaded by Samuel's testimony and lack oftangible evidence and ultimately made a finding that he made no payments (Clerk's Record Page 121-122). As a result ofhis nonpayment, the court found that Carlos paid forty one thousand seven hundred fifty five dollars and sixty two cents ($41,755.62) in mortgage, tax and insurance payments that Samuel should have made (Clerk's Record Page 121). In addition to not paying the mortgage note, insurance or the taxes on the house, Samuel

Page 9of12failed to pay for his one halfofthe maintenance expense related to a new air conditioner. Samuel
once again offered no proofofmeeting his financial obligation and the court found that he had not paid any portion ofthe three thousand one hundred ninety five dollar ($3,195.00) maintenance expense (Clerk's Record Page 121). The ruling ofthe court regarding Samuel's nonpayment ofhis financial obligations under the final decree establishes Samuel as a party in default under Texas Family Code §9.lOl(b). Further, it is undisputed that Samuel was ordered to make these payments under the final decree. By making the payments that Samuel was ordered to make, Carlos is entitled to ajudgment in the amount ofthe unpaid payments under Texas Family Code §9.lOl(b). Accordingly, the court did not abuse his discretion by entering ajudgment against Samuel in the amount ofhis default. Ithas been established that it is entirely permissible to reduce delinquent monthly payments to a judgment. 

### Forneyv. Jorrie, 511S.W.2d379, 385 (Tex.Civ.App.-SanAntonio 1974, writref'd n.r.e.). Moreover, Texas courts have ruled that ifa party "does not comply with the portion ofthe property division in the decree
... the trial court ha[s] the authorityto reduce the property division made in the divorce decree to a moneyjudgment." 

### In Re Marriage of Pyrtle, 433 S.W.2d 152, 165 (Tex.App.-Dallas 2014, pet. <Enied). That is what the court has done in the present situation and as a result, there has been no impermissible amendment, modification, alteration or change to the substantive division ofproperty found in the decree. Id. Itis important to note that even though Samuel claims Carlos violated the final decree by: 1) allowing other persons to occupy the home; and 2) not distributing her Skeeter retirement account, Samuel had no affirmative pleadings on file with the court at the time oftrial. As previously discussed, the final decree set aside the house for the exclusive use and

Page 10of12benefit ofCarlos and T.N.L. It is Carlos that is the one to determine what use and benefits she derives from the property, not her ex-husband. The fact that otherpeople were living in the house
was not prohibited nor even addressed in the final decree ofdivorce. In any event, additional persons living in the house with Carlos and T.N.L. would not waive any of Samuel's financial obligations under the final decree. Samuel also has a contention concerning Carlos' Skeeter retirement account. Ifthis is indeed accurate, the appropriate remedy for Samuel would be to file a Qualified Domestic Relations Order in order to obtain his portion of the account. In fact, as has been the case throughout the present situation, it is Samuel's inactionthat is the primary source ofhis contention with Carlos' retirement account. The only appropriate remedy, that continues to be available to Samuel, is a Qualified Domestic Relations Order.

PRAYER WHEREFORE, PREMISES CONSIDERED, Carlos Lanier, respectfully requests that the Court affirm thejudgment ofthe trial court. Respectfully submitted, JESSICA A. KROSCHER Attorney atLaw State Bar# 24070879 P.O. Box 1228 Longview, TX 75606 Telephone: (903) 553-0085 Facsimile: (903) 553-9448 jessica@longviewlegal
.com 

### Isl JESSICA A. KROSCHER JESSICA A. KROSCHER ATTORNEY FORAPPELLEE

Page 11 of 12CERTIFICATE OF COMPLIANCE I certify that this briefcontains 2, 164 words according to the computerprogram used to prepare the document. /s/ JESSICA A. KROSCHER JESSICA A. KROSCHER
CERTIFICATE OF SERVICE A copy ofthis briefwas sent to counsel for the Appellant Ebb Mobley, at P.O. Box 2309, Longview, TX 75606, on the 13th day ofOctober, 2015 by efile. /s/ JESSICA A. KROSCHER JESSICA A. KROSCHER

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