Opinion
05-23-00158-CV
05-22-2024
CARLOS ESTRABAO IBARRA, Appellant v. GABRIELA BAHAD, Appellee
On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-11421
Before Garcia, Breedlove, and Kennedy Justices.
MEMORANDUM OPINION
DENNISE GARCIA, JUSTICE.
Appellant Carlos Estrabao Ibarra and appellee Gabriela Bahad were divorced. The trial judge later rendered an order ostensibly clarifying the decree's property division. Ibarra appeals, contending that the order impermissibly modified the property division. We agree with Ibarra and accordingly vacate the trial judge's order.
I. Background
Ibarra and Bahad were married. In July 2021, Ibarra filed a petition for divorce. Bahad filed a counterpetition for divorce. According to the subsequent divorce decree, there were no children of the marriage and none were expected.
In August 2022, the parties executed a mediated settlement agreement that was then filed with the court. The divorce decree recites that a binding arbitration proceeding in this case resulted in an arbitration award issued on September 27, 2022, but we do not see the award in the appellate record.
On September 27, 2022, the trial judge signed an agreed final decree of divorce. The following provisions are germane to this appeal:
• Under the heading "Property to CARLOS ESTRABAO IBARRA," the decree awards Ibarra $60,000 to be paid by Bahad in twelve monthly installments of $5,000 each.
• The same obligation is repeated later in the decree under the heading "Debts to GABRIELA BAHAD IBARRA."
• Under the heading "Confirmation of Separate Property," the decree recites that "[t]he sum of [$47,000], payable from CARLOS ESTRABAO IBARRA to GABRIELA BAHAD IBARRA" is confirmed as the "separate liability" of Ibarra. The decree includes no express payment terms for this $47,000 sum.
• A few lines later, and still under the heading "Confirmation of Separate Property," the decree also recites that "[t]he sum of [$47,000], payable from CARLOS ESTRABAO IBARRA to GABRIELA BAHAD IBARRA" is confirmed as the "separate property" of Bahad. This provision also includes no express payment terms.
On October 13, 2022, Bahad filed a Petition for Clarification of Property Division. She averred that Ibarra had not paid the $47,000 "separate liability," and she asked the trial judge to add terms specifying the place of payment, manner of payment, and deadline for Ibarra to pay this liability.
Ibarra appeared pro se at the hearing on Bahad's petition. His position was not entirely clear, but he appeared to assert that Bahad never loaned him $47,000 or that there was no agreement for him to repay it. Bahad's counsel argued that (1) Ibarra's argument was moot because he signed the mediated settlement agreement and the agreed divorce decree, and (2) in any event, Bahad did loan Ibarra that sum before they were married, and Ibarra was refusing to pay it. Counsel then suggested that the trial judge could offset Ibarra's $47,000 debt to Bahad against the decree's provision confirming that Bahad owed $60,000 payable in twelve monthly installments of $5,000. Counsel further represented, and on appeal Ibarra agrees, that only $50,000 of that debt was still outstanding at the time of the hearing. Ibarra stated that he would not agree to that offset. The trial judge then said that she would offset the two debts, leaving Bahad with a $3,000 debt to Ibarra. On December 14, 2022, the judge signed an order on Bahad's petition that offset the two debts and required Bahad to pay Ibarra $500 per month until her remaining $3,000 debt was paid in full.
Ibarra obtained counsel and timely filed a motion for new trial objecting that the clarification order was an improper modification of the property division in the divorce decree. After a hearing, the judge denied Ibarra's new-trial motion.
Ibarra timely perfected this appeal.
II. Analysis
A. Issue Presented and Standard of Review
In his sole issue, Ibarra argues that the trial judge's clarification order impermissibly modified the property decree.
We review a post-divorce clarification order under an abuse-of-discretion standard. Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.-Dallas 2008, no pet.). An abuse of discretion occurs when either (1) the trial judge fails to analyze or apply the law correctly, or (2) with regard to factual matters or matters committed to its discretion, the trial judge could reasonably reach only one decision and failed to do so. VSDH Vaquero Venture, Ltd. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.).
B. Applicable Law
During the period of a trial court's plenary power, its power to modify its judgment is virtually absolute. DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.-Dallas 2008, no pet.). Generally, a trial court's plenary power over its judgment expires 30 days after the judgment is signed. See Tex. R. Civ. P. 329b(d). A timely motion for new trial or motion seeking a substantive change in a judgment will extend the trial court's plenary power. DeGroot, 260 S.W.3d at 662. But a motion for clarification of a property division does not extend plenary power unless it requests a substantive change in the divorce decree. See id. at 663-64.
After a trial court's plenary power over a final divorce decree expires, the court loses the power to alter, amend, or modify the substantive property division. See id. at 662; see also Tex. Fam. Code Ann. § 9.007(a). An order "that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable." Fam. § 9.007(b); see also Byrnes v. Byrnes, No. 05-21-00338-CV, 2022 WL 2437531, at *2 (Tex. App.-Dallas July 5, 2022, no pet.) (mem. op.) ("After the trial court's plenary power expires, the trial court may not alter, amend, or modify the substantive division of the property in the divorce decree."). Section 9.007 is jurisdictional, and an order that violates § 9.007 is void. DeGroot, 260 S.W.3d at 663; see also In re O.E.S., No. 05-22-01162-CV, 2023 WL 2887620, at *1 (Tex. App.-Dallas Apr. 11, 2023, no pet.) (mem. op.) ("[A]ny orders signed outside the trial court's plenary jurisdiction are void.").
But after plenary power expires, the trial court retains limited jurisdiction for specific purposes prescribed in Chapter 9 of the Family Code. See DeGroot, 260 S.W.3d at 662. For example, the trial court retains jurisdiction to enforce and to clarify the property division. See id.; see also Fam. §§ 9.006(a), 9.008. Chapter 9 gives some guidance as to how to distinguish between permissible clarification orders and impermissible modification orders. Section 9.006(b) provides: "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." Fam. § 9.006(b). And § 9.008(b) provides: "On a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property." Id. § 9.008(b).
C. Application of the Law to the Facts
In his sole issue on appeal, Ibarra argues that the trial judge's clarification order impermissibly modified the property division in the divorce decree. For the following reasons, we agree.
1. Plenary Power
At the outset, we note that Ibarra's argument assumes that the trial court's plenary power over the September 27, 2022 divorce decree expired before the judge signed the clarification order 78 days later on December 14, 2022. See DeGroot, 260 S.W.3d at 662 (noting that a trial judge has virtually absolute power to modify a judgment during plenary power). Bahad does not challenge this assumption in her brief.
Ibarra's assumption is correct. The trial court's plenary power expired on October 27, 2022, unless a motion that extended plenary power was filed on or before that date. See Tex. R. Civ. P. 329b. Bahad's petition for clarification of the property division is the only instrument that was filed before the deadline to extend plenary power, and that petition sought only the addition of terms prescribing the time, place, and manner of Ibarra's payment of his $47,000 obligation. That petition did not seek a substantive change in the divorce decree, so it did not extend the trial judge's plenary power. See DeGroot, 260 S.W.3d at 663-64 (holding that a motion for clarification did not extend plenary power because it did not seek a substantive change in the final divorce decree).
Accordingly, the trial court's plenary power expired on October 27, 2022, and we must determine whether the December 14, 2022 clarification order was a permissible clarification or an impermissible modification of the property division.
2. Analysis of the December 14, 2022 Order
First, we recap the facts. The divorce decree required Bahad to pay Ibarra $5,000 per month for a total of $60,000. And it required Ibarra to pay Bahad $47,000, both as a "separate liability" of Ibarra and as "separate property" of Bahad. The $47,000 award included no express time, place, or manner of payment terms. The December 14, 2022 order on Bahad's petition for clarification offset the two awards. The judge found that Bahad had already paid Ibarra $10,000 of the original $60,000 award, and she reduced Bahad's remaining $50,000 obligation to $3,000 payable in monthly payments of $500 each.
Considering all of the facts and circumstances, we conclude that the December 14, 2022 order impermissibly modified the divorce decree. Before the order was signed, Bahad owed Ibarra $50,000, payable in specific amounts at specific times; after it was signed, she owed Ibarra only $3,000, payable on a different schedule. Moreover, the order changed Ibarra's obligation to Bahad from $47,000 to zero.
Thus, the December 14 order did not clarify details about the property division; it changed the division itself.
Our conclusion is further supported by the fact that the order does not accomplish either of the two purposes of a clarification order set forth in Chapter 9.
First, the order does not "specify more precisely the manner of effecting the property division," Fam. § 9.006(b), as it would have if it had simply added time, place, and manner of payment terms to the $47,000 award as Bahad originally requested in her petition for clarification. Rather, it changes the manner of effecting the property division by (1) changing Bahad's $50,000 liability, payable in $5,000 monthly installments, into a $3,000 liability payable in $500 monthly installments, and (2) eliminating rather than specifying the details of Ibarra's $47,000 liability.
Second, the order does not "set[] forth specific terms to enforce compliance with the original division of property." Id. § 9.008(b). Again, this could have been accomplished by adding time, place, and manner terms to the $47,000 award against Ibarra. Instead, the order sets forth a new division of property-it relieves Ibarra of a $47,000 liability, and it changes Bahad's $50,000 liability to a $3,000 liability.
In sum, we conclude that the December 14, 2022 order impermissibly modifies the property division set forth in the final divorce decree.
Bahad's arguments to the contrary do not change our conclusion.
First, Bahad urges us to reject one of Ibarra's arguments for lack of preservation in the trial court-specifically, an argument that the clarification order failed to account for the time value of money. We do not rely on this argument, so we need not address Bahad's waiver point.
Next, Bahad argues at some length that the divorce decree's provisions regarding the $47,000 award against Ibarra were eligible for clarification because they were not specific enough to be enforced by contempt. But we need not decide whether this premise is correct to dispose of this appeal. Even assuming that the decree is eligible for clarification under Chapter 9, we conclude that the December 14, 2022 order impermissibly modified rather than clarified the decree's property division.
Bahad also cites a recent case from the Amarillo Court of Appeals for the premise that Chapter 9 authorizes a trial judge to clarify a property division by offsetting liabilities. In Gonzales v. Pounds, a divorce decree's property division (1) required Pounds to pay her former husband Gonzales $770,000 in monthly installments as an "equalization judgment," (2) required Pounds to pay the first $60,000 of the couple's tax liability for 2017, and (3) required the parties to pay equally any remaining taxes, penalties, and interest for 2017. No. 07-21-00088-CV, 2022 WL 348403, at *1 (Tex. App.-Amarillo Feb. 4, 2022, no pet.) (mem. op.). Pounds defaulted on her installment payments, and Gonzales failed to pay his share of the 2017 taxes, penalties, and interest. Id. at *2. In the resulting enforcement litigation, the trial judge rendered an order awarding Gonzales the unpaid part of the equalization judgment, offset by the amount he failed to pay towards the couple's 2017 taxes. Id. at *3. On appeal, Gonzales argued that this offset impermissibly modified the property division. Id. at *6. The court of appeals disagreed, reasoning that the order was a permissible clarification because (1) the order did not impose any new financial obligations and (2) the divorce decree did not specify how the parties were to make the required payments towards the couple's 2017 tax liability. Id. Thus, the court concluded that the order "simply clarified and enforced the obligation already set forth in the decree." Id.
Gonzales may be distinguishable from the instant case because in Gonzales the trial judge was required to devise a proper remedy for dueling defaults under the property division rather than merely to interpret or clarify the divorce decree. In any event, to the extent Gonzales is inconsistent with our analysis above, we decline to follow it. Although the December 14, 2022 order in this case did not impose any new obligations on Ibarra, it had the effect of reducing one of Bahad's obligations- and thus one of Ibarra's benefits-under the original property division. The fact that the December 14, 2022 order simultaneously eliminated one of Ibarra's obligations does not change our view: the December 14 order did not clarify the obligations set forth in the decree but instead modified them by reducing one obligation and eliminating another one entirely. Cf. In re R.Y.C., No. 05-21-00837-CV, 2022 WL 3054101, at *2 (Tex. App.-Dallas Aug. 3, 2022, no pet.) (mem. op.) (stating that a clarification order rendered in a Chapter 157 SAPCR constitutes an impermissible substantive change if it removes an obligation previously imposed on a party).
Finally, Bahad argues that Ibarra is collaterally estopped from arguing on appeal that his $47,000 obligation to Bahad is a "loan" in contrast to Bahad's $50,000 obligation to him, which is a "payment." To the extent Ibarra attempts to draw such a distinction, we do not rely on it. Accordingly, we need not address Bahad's collateral-estoppel argument.
D. Disposition
We sustain Ibarra's sole issue on appeal and conclude that the December 14, 2022 order is void. See DeGroot, 260 S.W.3d at 663. Accordingly, we vacate that order and dismiss the appeal for lack of jurisdiction. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Our disposition leaves the September 27, 2022 divorce decree intact and leaves Bahad's October 13, 2022 Petition for Clarification of Property Division pending for disposition.
In Regeci v. Regeci, we concluded that an order impermissibly modified a property division but affirmed because the error was harmless. No. 05-13-00501-CV, 2014 WL 2743192, at *6-7 (Tex. App.- Dallas June 16, 2014, pet. denied) (mem. op.). Regeci's disposition conflicts with our prior holding in DeGroot that this kind of error is jurisdictional, so we must follow DeGroot. See Mitschke v. Borromeo, 645 S.W.3d 251, 256-58 (Tex. 2022) (explaining stare decisis).
III. Conclusion
We vacate the trial court's December 14, 2022 Order on Petition for Clarification of Property Division and dismiss the appeal.
JUDGMENT
Justices Breedlove and Kennedy participating.
In accordance with this Court's opinion of this date, the trial court's December 14, 2022 Order on Petition for Clarification of Property Division is VACATED and the appeal is DISMISSED.
It is ORDERED that appellant Carlos Estrabao Ibarra recover his costs of this appeal from appellee Gabriela Bahad.
Judgment entered.