Texas Family Code section 9.007(a) does not permit a trial court to modify property division that is subject to a divorce decree. In the recent Texas appellate case of Perry v. Perry, an ex-husband appealed from a post-divorce order that appointed a receiver to sell a house that was the former community property of the ex-husband and his ex-wife.
The couple had divorced in 2012. The divorce decree awarded the husband possession of the house and each of the spouses half of the sales profits. Part of the divorce decree was on a form, and the other part was added in handwriting by the divorcing couple. Specifically, the form awarded the house to the husband, while divesting the wife of her interest. However, the handwritten part gave the wife half of the profits of the sale.
Years after the couple divorced, the husband sued to enforce the decree and claimed the wife had violated it by refusing to sign a transfer deed. He asked the trial court to order her to transfer her interest to him and claimed her refusal to sign the deed kept him from selling their former home. The wife asked the court to clarify the rights and duties of the parties. She said that her ex-husband had told her he wouldn’t give her half the profits once the house was sold and asked the trial court to appoint a receiver, claiming that since there was a risk of foreclosure, it was necessary for a receiver to protect both her interest and her husband’s.
These claims weren’t supported with evidence, but her husband didn’t respond. The court held two hearings on the motion, and in the first, the husband told the trial court that the house wasn’t in danger of foreclosure, and he didn’t want a receiver. The court asked the exes to put together an agreed order that required the proceeds to be paid into escrow until the trial court decided how to distribute them.
At the next hearing, the husband objected again to a receiver on the grounds that it was an improper modification of the divorce decree, which didn’t ask him to sell the house. The trial court told him that the appointment of a receiver wouldn’t hurt either ex-spouse but would help them. The judge remembered that the husband agreed to sell the house at the first hearing, but the record didn’t reflect the judge’s recollection. The judge appointed a receiver to take possession if the husband didn’t sell the house by a date in 2016. The receiver was authorized to manage and dispose of the house in his discretion if the husband didn’t sell.
The husband appealed, arguing that the judge’s receivership order was an abuse of discretion. The appellate court considered whether the receivership order was an improper modification of the property division from the divorce decree. It explained that the trial court that rendered a divorce decree could still clarify and enforce the property division portion of the decree, but it couldn’t alter or change it. A receiver could be appointed if it would be fair to do so, but it is considered an extraordinary remedy that shouldn’t be used unless evidence shows the threat of serious harm.
The appellate court found that the divorce decree had only one possible meaning—the husband was to take possession and be responsible for selling the house. Meanwhile, the wife lost her share, except for half of the sales profits. The house would have to be sold at a reasonable time and price. However, the receivership order authorized the receiver to sell in his sole discretion, rather than based on a reasonable time and price, which was not part of the decree. Accordingly, it found the order was a modification of the property division from the original divorce decree. The appellate court vacated the order for a receiver.
If your divorce involves matters related to property division, contact the Texas attorneys at the McClure Law Group at 214.692.8200. It is important to seek a favorable outcome on the issue of property distribution at the time of your divorce.
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