## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________

___________

_____ No. 02

- 19

- 00168

- CV

___________________________

On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067

- 285252

- 16
Dissenting Memorandum Opinion by Chief Justice Sudderth 

### M.B., INDIVIDUALLY AND AS NEXT FRIEND OF 

### I.C., Appellant

V


### . S.C. , Appellee2 DISS ENTING MEMORANDUM OPINIO N
I would hold that the d ivorce cou r t has exclusi ve jur isdiction over this action
and that to construe the s tatute as the majority has would lead to an a bsurd result. Family C ode Sectio n 9.201(a) provides tha t a former spouse “ ma y file a suit ” in
the di vorce court. Tex. Fam. Code Ann. § 9.201(a)

. I agree with t he majority that the
word “ may ” i s permissive, not mandatory , lan guage but I disagree with the majority ’ s conclusion

. T he statute provides that a form er spouse “ may file a suit a s provided by thi s subchap ter

. ” Id

. (emphasis added

). The subchapter i n question is Subchap ter C, “ Post

De cree Division of Pro perty, ” which is found in Family Code Chapter 9, “ P ost

Decree Proceedings. ” See generally id. §§ 9. 201

– .205. W ithin thi s subchap t er , Section 9. 203 (a) provides that “ [ i ] f a court of this state failed t o di spose of property subject to division in a final decree of divorce or annulment even though the court had jurisdiction over the spous es or over the pr op erty, the court shall divide th e property
. . . . ” Id. § 9.203(a) (emphasis added). In context, th e ph rase “ the court ” in Section 9.203(a) refers to “ a court of this state [ that ] failed to dispose of property subject to division in a final decree of di vo rc e . ” See id.
In oth er words, the filing of a suit to divide pro perty that was not divided or awarded to a spouse in a final decree of divorce is permitted as provided by Chapter 9, Su bchap ter C of the Family Code

. See id. §§ 9.201

– .205. And Chapter 9 , Subchapter C of the F amily Code authorizes t he cour t th at failed to d ispose of3

property to do so post

- decree

. See id. Long

- standing common law tenants

- in

common princi ples notwithsta nding, when the Legislature enacted Chapter 9, Subchapter C , it suppla nt ed common law princip les in favor of a statutory scheme

. Cf. , e.g. , In re S.T. , 467 S.W.3d 720, 725

– 27 (Tex. App.

— For t Worth 2015 , orig. proceeding

)

. On its face , this statute does not authorize any court

— other than the court that failed to dispose of th e property in the fir st place

— t o dispose of property that was oth erwise subject to division in a final divorce decre e . 1
The majority holds that the “ dealer ’ s choice ” result f orced by i ts interpretation
is not an absurd one. I disagree

. It would be ab su rd, indeed, to allow a party who hid assets during a divorce proceedin g 2 to get a second bite at the apple post

- divorce by unilaterally filing in the court of his or her choice when the Legislature has provided that the party shall receive a “just and ri gh t” division of the as sets by the divorce court exercising its jurisdiction over the case. See id. §§ 7.001, 9.203(a) (emphasis added). The majority’s reading creates an incentive for a bad actor to hide assets pending
divorce so that he or she can late r seek a more advantage ous distribution through
forum

- shopping.
For th ese reasons, I respectfully dissent.

1 To the extent that this interpretation is in conflict with our earlier dec ision in Hue y
- You v. K

imp , No. 02

- 16

- 00 172

- CV, 2 018 WL 359633 (Tex. App.

— Fort Worth Jan. 11, 2018, pet. denied ) (mem. op. ) , we should overrule Huey

- You

.

2 I do not mean to imply that the hiding of assets occurred here.4 /s/Bonnie Sudderth
Bonn ie Sudderth Chief Justice
Delivered: April 9, 2020