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., Appellee
2

DISSENTING MEMORANDUM OPINION

I would hold that the divorce court has exclusive jurisdiction over this action 

and that to construe the statute as the majority has would lead to an absurd result. 

Family Code Section 9.201(a) provides that a former spouse “may file a suit” in 

the divorce court. Tex. Fam. Code Ann. § 9.201(a). I agree with the majority that the 

word “may” is permissive, not mandatory, language but I disagree with the majority’s 

conclusion.

The statute provides that a former spouse “may file a suit as provided by this 

subchapter.” Id. (emphasis added). The subchapter in question is Subchapter C, “PostDecree Division of Property,” which is found in Family Code Chapter 9, “PostDecree Proceedings.” See generally id. §§ 9.201–.205. Within this subchapter,

Section 9.203(a) provides that “[i]f a court of this state failed to dispose of property 

subject to division in a final decree of divorce or annulment even though the court 

had jurisdiction over the spouses or over the property, the court shall divide the 

property . . . .” Id. § 9.203(a) (emphasis added). In context, the phrase “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 divorce.” See id.

In other words, the filing of a suit to divide property that was not divided or 

awarded to a spouse in a final decree of divorce is permitted as provided by 

Chapter 9, Subchapter C of the Family Code. See id. §§ 9.201–.205. And Chapter 9, 

Subchapter C of the Family Code authorizes the court that failed to dispose of 
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property to do so post-decree. See id. Long-standing common law tenants-incommon principles notwithstanding, when the Legislature enacted Chapter 9, 

Subchapter C, it supplanted common law principles in favor of a statutory scheme. 

Cf., e.g., In re S.T., 467 S.W.3d 720, 725–27 (Tex. App.—Fort Worth 2015, orig. 

proceeding). On its face, this statute does not authorize any court—other than the 

court that failed to dispose of the property in the first place—to dispose of property 

that was otherwise subject to division in a final divorce decree.

1

 

The majority holds that the “dealer’s choice” result forced by its interpretation 

is not an absurd one. I disagree. It would be absurd, indeed, to allow a party who hid 

assets during a divorce proceeding

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 right” division of the assets 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 later seek a more advantageous distribution through 

forum-shopping.

For these reasons, I respectfully dissent.

1To the extent that this interpretation is in conflict with our earlier decision in 

Huey-You v. Kimp, No. 02-16-00172-CV, 2018 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.
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/s/Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: April 9, 2020