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Texas Court Finds Clarification Order Not Improper Modification of Divorce Decree

In Texas divorce cases, understanding procedure is very important.  Missing a deadline can have serious and irreparable consequences.  In a recent case, an ex-husband attempted to challenge a clarification order more than four years after it was issued.

The trial court signed a final divorce decree in April, 2011.  The ex-wife moved for clarification of some of the divorce decree provisions.  In August 2011, the court signed a clarification order.  The court subsequently signed two orders of contempt and an income withholding order.

The ex-husband filled a bill of review more than four years after the clarification order was signed.  The ex-husband alleged the clarification order was void because it was an improper modification of the divorce decree pursuant to Texas Family Code Section 9.007.  The ex-wife argued the ex-husband’s position was barred because it was outside the statute of limitations and the clarification order was not void. The trial court denied the petition, and the ex-husband appealed. He argued that the trial court erred in denying the petition because he had shown the clarification order was void.

A petition for a bill of review must generally be filed within four years of the order.  It is usually considered a direct attack on the judgment, but may be a collateral attack if it fails as a direct attack.  A judgment is only subject to collateral attack if it is void.  A judgment may be void if there was a lack of jurisdiction or if the court did not have the capacity to act.  In a collateral attack, there is a presumption the order is valid.  The party challenging the order has the burden of proving it is void.

The reviewing court may review the record to determine if it shows a lack of jurisdiction in the trial court.  The judgment is void where the record “affirmatively demonstrates” that the trial court did not have subject matter jurisdiction or violation of due process due to deficiencies in personal jurisdiction.

Here, the ex-husband argued that the order was void under Texas Family Code 9.007, which provides that an order that “amends, modifies, alters, or changes the actual, substantive division of property” is beyond the trial court’s power.  The court does, however, have the power to issue an order clarifying the property division order.

The ex-wife had moved for a clarifying order.  She specifically sought clarification of the following language in the original order: full entitlement to (FEHB) all 04-17-00557-CV – 5 – to be paid by Respondent.  The clarification order stated the court had reviewed the record, judges notes, and arguments and clarified the prior order to require the ex-husband “to cover or timely pay the health care benefits for [the ex-wife]” as set forth in the clarification order.

The ex-husband argued clarification was not appropriate because the order was unambiguous.  The appeals court disagreed, finding the order was ambiguous in failing to state when, where, and to whom the husband was supposed to make payments for the ex-wife’s health care benefits.

He also argued the clarification order modified the terms of the divorce degree.  He argued that the decree required him to provide health insurance through his employer, but the clarification order required the ex-wife to get health insurance through another source.  The appeals court noted that the clarification order did not state the benefits were to be from another source, nor did the record show the source of the benefits.  The appeals court found the record did not affirmatively demonstrate a substantive modification to the original decree’s terms.

The husband also argued that the clarification order imposed additional obligations on him and therefore was beyond the trial court’s power.  The appeals court found that the clarification order did not impose new obligations.  The obligations set forth in the clarification order were encompassed within the language in the decree awarded the ex-wife “full entitlement” to federal health benefits.

The appeals court also rejected the husband’s argument that the clarification order improperly found him in arrears for unpaid health care premiums and ordered him to pay the arrearage at a set rate.  He argued there was no language in the decree that gave the trial court the authority to find him in contempt or order repayment of the arrearage.  The appeals court also found that these items were part of the obligations included in the original decree’s requirement that he pay for the ex-wife’s health care benefits.

The appeals court found the clarification order was not an impermissible modification of the divorce decree.  The record did not affirmatively demonstrate the order was void, and it was therefore not subject to collateral attack.  The appeals court affirmed the trial court’s order denying the petition for bill of review.

Because the petition was filed more than four years after the order was signed, the ex-husband could only succeed by showing that the order was void.  If you are facing divorce, an experienced Texas divorce attorney can help you navigate through the process.  Call McClure Law Group at 214.692.820 to schedule a consultation.

More Blog Posts:

Texas Court Denies Post-Divorce Property Division

Clarification of an Ambiguous Texas Divorce Decree

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