COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

TERESA MAL ANOSKI

THOMAS, Appellant,

v. BRUCE EUG ENE THO MAS, Appellee

. § § § § § § No. 08-08-00051- CV

Appea l from 65th District Court of El Paso County , Texas (TC # 2005CM6706)

O P I N I O N This is an appea l from a post-divorc e enf orce ment proce eding . Tere sa Thomas complains of a tur nover order ; a money judgme nt pay able to her former husband, Br uce Thomas; attorney ’s fee s assessed ag ainst her; and contempt order s enter ed ag ainst h er . W e h ave not been favor ed with responsive br iefing by

Br uce. F or the re asons that follow, we aff irm in part and r ever se in part.
F ACTUAL AND P ROCEDURAL SUMM ARY The parties wer e divorce d on October 11, 2006. Under the terms of the decr ee, Tere sa was

awa rded the community residenc e and a 2004 Dodg e Carava n. She was order ed to pay the mortg ag e

on the homestead, and the balanc e due on the promissory note to Wells Fa rg o for the purcha se of the

van. T h e b an k re tained a lien on the vehicle and Tere sa’s obliga tion on the car note was “to be

secur ed by [Bruce ’s] rete ntion of the title and Power of Attorney to Transf er Vehicle until the loan is paid in full.” The decr ee order ed that Tere sa “shall indemnify and hold [Bruce ] and his proper ty harmless from any failure to so discharg e” these debts. I t a lso r equire d that Tere sa execute a deed of assumption to secure title.
On Marc h 20, 2007, Br

uce filed a petition for enfor ceme nt of proper ty division by contempt.He alleg ed that Tere sa had failed to make the car pay ments for nine months and that she had failed
to execute and deliver the deed o f as s u m p tion to secur e title. I n terms of relief , he soug ht (1) an order direc ting her to either pay the arr ear ag es or return the vehicle to him; (2) an order that she sign and deliver the deed of trust; (3) an order that she be held in contempt, jailed, and fined for eig hteen months or until she complied with the decr ee; (4) a clar ify ing order if the decr ee wer e not sufficie ntly specific to enfor ce by contempt; (5) a money judgme nt of $5,000 to compensa te Br uce for damag e to his credit ra ting; and ( 6) attorne y ’s fe es. Following a hear ing, the associate judge (1) found Tere sa g uilty of contempt on all violations alleg ed; (2) order ed her to deliver the Carava n to Br uce at a date and time cer

tain; (3) awa

rded Br uce $1,917 in monthly pay

ments of $213 repr esenting the past-due car pay ments; and (4) order ed her to
pay $78 7

. 5 0 in attorney ’s fee s, pay able to Br uce’ s lawy er at the rate of $100 per month. Tere sa
appea led to the ref

err ing court. J udg e Alfre do Chavez aff irmed the finding s of the associate judge in all respec ts. This appeal follows.
TURNOVER OF DODG E CARAVA N
I n her fi rs t issue for revie w, Tere sa complains that the trial court lacke d subject matter jurisdiction to order Tere sa to turn over the Carava n. We ag ree . There is no dispute that the decr ee

awa rded the vehicle to T er es a. Nor do the parties dispute that the t rial court’s plenar y power had long expired. A court may not amend, modify , alter, or chang e the division of proper ty made in the decr ee of divorce

. T E X .F A M .C O D E AN N
. § 9.007(a) (Ve rnon 2006). Enforc ement order s are limit ed
to order s in aid or clar ification of the prior order

. Id

. ; De chon v. Dec hon , 909 S.W .2d 950, 956 (Tex.App.--El Paso 1995, no writ). An order that modifies or alters the actua l, substantive division of proper ty is bey ond the power of the court. T E X .F A M .C O D E AN N
. § 9.007(b). Whil e we rec og nize that Br uce executed the power of attorney to transfe r title and his attorney held it in trust until Tere sapaid the note, he had no rig ht to a turnover order g iving him possession of an asset awa rded to her.
We are unpersua ded by

the ar g ument urg ed by

Br uce’ s counsel in the trial c ourt. As authority for the turnover

order , she direc ted J udg e Chave z to S ection 9.009, which pr ovides:
To enfor ce t he division of proper ty made in a decr ee of divorce

. . . the court may make an order to deliver the specific exis t i n g p roper ty awa rded, without reg ard to whether the prope rty

is of espec ial value, including an aw ard of an existi ng sum of money or its equivalent.
T E X .F A M .C O D E AN N
. § 9.009. This provision allows a court to require one spouse to deliver
proper ty awa rded to the other spouse by a date an d t i me cer tain. Strahan v. Strahan , No. 01-01- 00614-CV, 2003 WL 22723432 *3 (Tex.App.--Houston [1st Dist.] Nov. 20, 200 3 , n o p et .)(not desig nated f

or publication). B ruce cannot rely on this statute to support the court’s order taking a

van awa rded to Tere sa and awa

rding it to him. That is not t o say he lacke d a reme dy , which we addre ss below. We sustain I ssue One.

JUDG MENT F OR F AILURE TO PAY CAR NOTE
I n her second issue, Tere sa complains that the trial court enter ed a money judgme nt ag ainst her and in favor o f Br u ce for $1,917, which repr esents the nine delinquent car pay ments of $213

eac h. We firs t n o t e t h at even Br uce admitted that he asked for the return of the car OR a money judgme nt, but not both. He did believe it was justifiabl e, h o we v er , beca use his cre dit has been
“tar nished.”
Texas jurisprudenc e clea

rly holds that a divorce decr ee mere ly divides responsibility for the
pay ment of indebtedness as betwee n the spouses. Blake v. A mo co F ederal Credit Union , 900
S.W .2d 108, 111 (Tex.App.--Houston [14t h Dist.] 1995, no writ). The divorce court cannot disturb the rig hts of a cre ditor to collect from either of the d i v o rc i n g p ar t i es on a joint obliga tion. Id. A division of t he communit y estate may not prejudice the rig hts of a cr editor to satisfy a communitydebt. Id., citing Rush v. Montgomery W ard , 757 S.W .2d 521, 523 (Tex.App.--Houston [14t h Dist.] 1988, writ denied)

. Consequently , indemnity ag ree ments are widely used to pr otect the cre dit of a spouse who shar es joint liabili ty on a community

debt.
An i n d emnity ag ree ment arises from a promise by the i ndemnitor to safe g uard or hold the indemnitee harmless ag ainst either ex isting or future loss or l iability , or bot h. Licata v. L icata, 11
S.W .3d 269, 276 (Tex.App.--Houston [14t h Dist.] 1999, pet. denied) , citing Dresser Indus., Inc. v. Page Petroleum, I

nc ., 853 S.W .2d 505, 508 (Tex. 1993). The ag ree ment cre ates a potential cause of action in the indemnitee ag ainst the indemnitor. See id. ; Russell v. Lemons , 205 S.W .2d 629, 631 (Tex.Civ.App.--Amarillo 1947, writ ref ’d n.r.e.)

. Under an indemnity ag ree ment, the rig ht to indemnity does not arise until the judgme nt is either rende red or paid. See Bayoud v. Bayoud, 797
S.W .2d 304, 317 (Tex.App.--Da llas 1990, writ d enied), citing Pate v. Tellepsen Constr. Co., 596
S.W .2d 548, 552 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref ’d n.r.e .).
We find some proce dural g uidance in Lavender v. Lavender , 29 1 S.W .3d 19 (Tex.App.-- Texarkana 2009, n.p.h.) which pr esents a r emar kably simil ar fac t pa

ttern. Michelle L avende r was

awa rded a substantial part of the community estate, much of which was encumbe red by community indebtedness. Id. She was awa rded the community residenc e and a vehicle and order ed to pay the
notes and taxes as a part of the division of the community estate. Id. at 20. The decr ee included an indemnification clause but no secur ity instruments w ere executed. The awa rd of proper

ty was not conditioned upon Michelle’s satisfac tion of the debts. As the court noted, “ther e was appar ently no other nonjudi cial means to secure Sam [ L avende r] in the pay ment of the de bts.” Id. Shortly afte r the di vorce , Michelle moved out of t he family home and stopped making pay ments on sever al of the s ecur ed assets. Concerne d about fore closure, Sam paid t he delinquent mortg ag e, utilit y bills, truck pay ments, and the unpaid ad valore m tax es. The truck was reposse ssed. Sam the n filed suitag ainst Michelle to rec over under the indemnification cla use in the dec ree . Id. He a lleg ed he ha d paid more than $4,000 to discharg e debts that Michelle had been order ed to pay , that he had incurre d

an additional $356 in expenses in an eff ort to prese rve his cre dit rating , and that the truck
reposse ssion resulted in a defic iency of $7,059 which was being pursued ag ainst him by the lender

. Id. Whil e the appellate court reve rsed beca use the trial court had enter ed t h re e s ep ara te y et purportedly final orders, t h e procedura l lesson is appar ent. Sam L avende r paid off the debts, was defe nding ag ainst a defic iency judgme nt, and took aff irmative steps to clea

r his cre dit. He suffe red quantifiable out-of

-pocke t losses. Whil e we most cer

tainly do not con d o n e Tere sa’s conduct, it is clea r t hat Bruce sat on his hands. Whil e he mentioned rec eiving a statement from the bank indicating the loan was delinquent, there was no evidenc e that Wells F arg o had attempted to reposse ss the vehicle. Br uce specific ally d en ied m aking any pay

ments on the van post-divorce

. He suffere d no out-of-poc ket l osses. T h i s bring s us to the reme dies available

. L ike S am L av ender, he could have paid the balanc e due and then sued Tere sa pursuant to the indemn i t y p ro v i s i o n in the decr ee. I n that instance, a money judgme nt would be proper . A turnover order might even be a proper reme dy for Tere sa’s failure to
pay the money judgme nt. Fines could be imposed for contumacious conduct. I nstead, Br uce obtained possession of the van and a money judgme nt with no require ment that he tender the monthly pay ments to W ells Fa

rg o. W e ar e not persua ded by the arg uments of Br uce’ s counsel in the trial court in which sh e
arg ued that the money judgme nt was permissible pursuant to Section 9.010. Relevant to our inquiry , that statute provides (1) that if a party fails to comply with a decre e and delivery of property is no longe r an adequate reme dy , the court may rende r a money judgme nt for the damag es cause d by that failure to comply , and (2) if a party did not rec eive pay ments of money as awa

rded in the decr ee, thecourt may

rende r judg ment ag ainst a defa ulting party for the amount of unpaid pa y ments to which
t h e p ar ty is entitled. T E X .F A M .C O D E AN N
. §§ 9.010(a) , (b). These provisions are inapplicab l e. Subsection (a) ref

ers to a money judgme nt to compensa te Spouse A for Spouse B’ s failure to deliver
proper ty awa rded to Spouse A. Strahan , 2003 WL 2 2 7 2 3 432 at *3 (husband awa rded money judgme nt for $7,000 beca use wife sold SUV which was awa rded to husband). Br

uce has not alleg ed that he was awa

rded proper t y t hat Tere sa has ref used to deliver. Subsection (b) allows a court to rende r judgme nt for monies awa rded to a spouse that have not been transfe rre d. Fo r ex am p l e, a husband who is awa

rded $10,000 from a community acc ount in wife’ s name can obtain a money judgme nt if wife does not transfe r the funds. The stat u t e does not mean that beca use Tere sa defa ulted on the car note, Br

uce can obtain a money judgme nt ag ainst her. Her defa ult was rela ted
to a third party promissory note, not to pay ments of money awa

rded to Br uce in the decr ee. Be cause the trial court cra fted impermissible reme dies in an enfor ceme nt proce eding , we sustain I ssue Two.
ATTORNEY’S FEES
I n I ssue Three, Teresa challeng es t he asse ssment of $787 in attorney ’s fees. She contends that the trial court lacke d jurisdiction to order her to deliver the Carava n to her former husband and
to order her to pay him $1,917 in car pay ments that she failed to make. I t follows, she continues, that since the fee awa

rd was based in part on illega l order s, it should be vacated as an abuse of discretion.
We have sustained her direc t attacks on these issues. Howeve r, Br uce also asked that Tere sa be held in contempt for failure to make the car pay ments and failure to execute the deed of trust to secur e assumption with reg ard to the home mortg ag e. The trial court specific ally found her in contempt for these violations. Although she complains of the contempt finding s with reg ard to the car pay ments in I ssue Four , she has not disputed the contempt finding for her failure to execute the deed of trust. Attorney ’s fees ar e statutorily permissible in an enforce ment proce eding

. T E X .F A M .C O D E A N N
. §9.014 (Ve rnon 2006 and Supp. 2009). Since Tere sa has not challeng ed the amount of the fee s or the

sufficie ncy

of the e vidence to support them, we over rule I ssue Thre e. CONTEMP T
I n I ssue Four , Tere sa complains that the trial court abused its discretion in finding her g uilty of contempt for failing to make monthl y pay ments on the W ells Fa

rg o note because the provision imposing the obliga tion was to g ener al too be enfor ced by contempt. Contempt orders ar e n o t revie wable by ap p ea l. Norman v. N orman , 692 S.W .2d 655 (Tex. 1985). Habe as corpus relief is available for a contemnor who has been incar cer ated or is otherwise restra ined. Ex parte W illiams , 690 S.W .2d 243 (Tex. 1985). Where the contemnor is not restra ined, the appropr iate reme dy is by petition for writ of mandamus. Rosser v. Squier , 902 S.W .2d 962 (Tex. 1995). To the extent Tere sa attempts to appea l the contempt judgme nt, we lack jurisdiction. I ssue Four is overr uled. Norman , 692 S.W .2d at 655.
CONCLUSION
We have sustained I ssues One and Two and ove rruled I ssues Thre e and F our. We reve rse and re nder judg ment that the orde rs re quiring turnover of the van and imposing the $1,917 money judgme nt are vaca

ted and set aside. We aff

irm the order to the extent that it awa rds attorney ’s fee s.

Fe bruar y 17, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.