Summary
In Shultz v. Shultz, this Court examined whether a trial court improperly modified the final decree of divorce by allowing the sale of the formal marital residence to one of the former spouses without a mutual agreement on the price.
Summary of this case from Hancock v. HancockOpinion
No. 05-18-00876-CV
06-18-2019
PAUL YODER SHULTZ, JR., Appellant v. JENNIFER ROYAL SHULTZ, Appellee
On Appeal from the 330th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-16-13529
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Richter, and Justice Rosenberg,
Opinion by Justice Rosenberg
The Hon. Martin Richter, Senior Justice, sitting by assignment
The Hon. Barbara Rosenberg, Justice, sitting by assignment
In this post-divorce proceeding, Paul Yoder Shultz, Jr. appeals the trial court's orders appointing a receiver and confirming the sale of real property. The dispositive issue is whether the trial court improperly modified the final decree of divorce by allowing the sale of the former marital residence to his ex-wife, Jennifer Royal Shultz, without a mutual agreement on the price. We conclude it did. Accordingly, we vacate the trial court's orders appointing a receiver and confirming the sale of property and remand the cause for further proceedings.
BACKGROUND
Paul and Jennifer divorced after fourteen years of marriage. The final decree of divorce, rendered after a bench trial, included provisions for the sale of the marital residence. Specifically, the decree provided:
1. The Marital Residence shall be placed on the market within forty-five (45) days from October 5, 2017.The property was not listed by the required date, and the court appointed Amberson receiver.
2. Paul Yoder Shultz Jr. and Jennifer Royal Shultz must agree on a realtor to list the Marital Residence on or before the close of business on October 13, 2017. If there is no agreement in writing as set forth, Respondent shall choose three realtors and submit such names to Petitioner by October 16, 2017. Petitioner shall choose from said list on or by October 18, 2017 and notify Respondent of the chosen realtor in writing on or by October 18, 2017. Respondent has chosen Matthew Edwards as the realtor.
3. If the Marital Residence is not listed within the prescribed period of time, Joe Amberson is appointed as the receiver to sell the home and Paul Yoder Shultz Jr. and Jennifer Royal Shultz shall split such costs 50/50.
4. The property shall be sold for a price that is mutually agreeable to Petitioner [Jennifer] and Respondent [Paul].
5. [Deleted by the parties.]
6. The net sales proceeds (defined as the gross sales price less cost of sale and full payment of any mortgage indebtedness or liens on the property) shall be distributed as follows: Each party is to receive fifty percent of the net sales proceeds.
The order appointing receiver, signed on February 22, 2018, required Amberson to take charge of the marital residence. He was ordered to file with the court, within thirty days after entry of the order, a preliminary report setting out the identity, location, and value of the receivership assets. The receiver was "authorized to employ employees, accountants, and attorneys and others that are necessary and proper for the collection, preservation, maintenance and operation of the Receivership Assets." He was given the authority to, in his discretion, sell assets with less than a $1500 value. He was entitled to a 10% fee from which any sales commission would be paid. A $500 bond was required.
Amberson filed his bond on June 26, 2018. On July 2, 2018, he filed the Oath of Receiver and Receiver's Report of Sale and Motion for Confirmation. In the report of sale, Amberson asked that the court confirm the sale of the marital residence to Jennifer for $900,000. Although the final divorce decree required that the property be sold for a price mutually agreeable to both Jennifer and Paul, Amberson did not seek Paul's assent to the sales price. The confirmation hearing was set for July 26.
Before filing his the bond and executing the oath, Amberson hired a real estate agent and obtained an appraisal of the property. He did not file with the trial court his determination of value. Before he filed his oath, he signed the contract for sale.
Paul filed objections to the report and a motion for continuance because the discovery he sought was unanswered and Jennifer filed six motions to quash the subpoenas issued to obtain information from third parties. The confirmation hearing was reset to July 24 before an associate judge. Paul objected to the associate judge hearing the motion, and the case was reset before the trial judge for the following day. Paul filed an emergency motion for continuance seeking discovery on the purchase price. Paul asserted that higher offers for the property had been tendered and he needed evidence to show the marital residence should not be sold for the receiver-agreed price. Paul attached a copy of the offer to his motion. The trial court denied the motion.
The confirmation hearing consisted of Amberson's reasoning for accepting a sales price of $900,000 instead of accepting a $965,000 offer. The lower offer was accepted three days after the property was listed. Paul testified that he was not kept informed on the sale of the house and was not allowed to inspect the house so that he could determine the value. A real estate agent testified that she had clients interested in the property, but neither Amberson nor his agent returned her calls or answered her inquiries. The trial court confirmed the sale of the property. This appeal followed.
MODIFICATION OF THE DIVORCE DECREE
In his first issue, Paul asserts that the trial court erred in appointing a receiver with authority to set the sales price because such an order is not in conformance with the divorce decree.
We review a trial court's order appointing a receiver for an abuse of discretion. Spiritas v. Davidoff, 459 S.W.3d 224, 231 (Tex. App.-Dallas 2015, no pet.). "It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles, or to rule without supporting evidence." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (citations omitted); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Under the Texas Family Code, the trial court that renders a divorce decree retains jurisdiction to clarify and to enforce the decree's property division. Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) (citing TEX. FAM. CODE §§ 9.002, .008). However, after its plenary power expires, the trial court may not amend, modify, alter, or change the substantive division of property in the decree. TEX. FAM. CODE § 9.007(a), (b); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003); Harleaux v. Harleaux, 154 S.W.3d 925, 928 (Tex. App.—Dallas 2005, no pet.). "An order . . . that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce . . . is beyond the power of the divorce court and is unenforceable." TEX. FAM. CODE § 9.007(b).
Section 7.001 of the family code grants a trial court broad authority to divide marital property in a manner that it deems just and right upon the dissolution of marriage. TEX. FAM. CODE § 7.001; Rusk v. Rusk, 5 S.W.3d 299, 306 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). That broad authority sometimes includes the power to enlist the aid of a receiver to effectuate the trial court's orders and judgments. Rusk, 5 S.W.3d at 306-07.
Here, the decree provided for the appointment of a receiver if the property was not listed by a certain date. Paul does not complain that the trial court appointed the receiver; rather, he asserts the trial court did not have the authority to appoint the receiver with the power to set the sales price. He argues that the decree provides that the residence is to be sold at a price "that is mutually agreeable to Petitioner and Respondent." Neither the order appointing the receiver nor the order confirming the sale addressed that provision. Jennifer responds that the provision has no applicability after the receiver was appointed. Thus, to determine whether the trial court improperly empowered the receiver, we must decide which of these two interpretations controls the circumstances of the sale.
We interpret a divorce decree like any other judgment, reading the decree as a whole and "effectuat[ing] the order in light of the literal language used" if that language is unambiguous. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.1997)). If, when read as a whole, the divorce decree's terms are unambiguous, we must give effect to the order in light of the actual language used. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). On the other hand, if the divorce decree's terms are ambiguous, that is, subject to more than one reasonable interpretation, we must review the record along with the decree to aid in interpreting the judgment. Id. Mere disagreement over the meaning of a provision does not make it ambiguous. Treadway v. Shanks, 110 S.W.3d 1, 6 (Tex. App.—Dallas 2000), aff'd, 110 S.W.3d 444 (Tex. 2003). "Neither conflicting interpretations nor conflicting expectations are sufficient to create an ambiguity." Id. Whether a divorce decree is ambiguous is a question of law. Hagen, 282 S.W.3d at 901-02.
Neither party claims that the decree is ambiguous, and we agree that it is not. When the decree is unambiguous, the court must adhere to the literal language used. Id. An expectation that a receiver would have authority to set a price does not make the decree ambiguous or control the interpretation of the literal language of the decree. The divorce decree includes six provisions related to the sale of the marital residence—one that was modified and one that was deleted by handwritten initials. These provisions are set out in separate paragraphs. The provisions set a date for placing the marital residence on the market, require the parties' agreement on a realtor, allow for the appointment of a receiver if the property is not listed, require that the sales price be mutually agreeable to Paul and Jennifer, and provide that each party is to receive half of the net proceeds. The provision appointing the receiver does not give the receiver the power to set the price; rather the decree requires mutual agreement on the price. This provision is particularly relevant to the division of the property when Jennifer is the buyer. Failure to adhere to the value imposed on property in the decree improperly modifies the division of the property. See Perry v. Perry, 512 S.W.3d 523, 528-29 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (authorizing receiver to sell house "in his sole discretion . . . upon terms and conditions determined by him . . . ." instead of for "a reasonable price" modified the division of property).
We conclude that the provisions of the final decree, read as a whole, are subject to only one reasonable interpretation: the property, whether sold by a realtor or the receiver, shall be sold for a price that is mutually agreeable to Paul and to Jennifer. The receivership order does not provide for the mutual agreement on price, and the confirmation order allowed the receiver to set the price. Neither order required the price to be mutually agreeable as provided in the decree. Accordingly, we conclude that the receivership order modifies the division of property set forth in the final decree of divorce. We therefore sustain appellant's first issue. Our disposition of this issue makes it unnecessary to address the remaining issues.
We vacate the trial court's orders appointing a receiver and confirming the sale of real property and remand this cause for further proceedings consistent with this opinion.
/Barbara Rosenberg/
BARBARA ROSENBERG
JUSTICE, ASSIGNED 180876F.P05
JUDGMENT
On Appeal from the 330th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-16-13529.
Opinion delivered by Justice Rosenberg; Chief Justice Burns and Justice Richter participating.
In accordance with this Court's opinion of this date, the trial court's orders appointing a receiver and confirming sale of real property are VACATED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant PAUL YODER SHULTZ, JR. recover his costs of this appeal from appellee JENNIFER ROYAL SHULTZ. Judgment entered this 18th day of June, 2019.