Brink v. Ayre

• Decision Date: 29 April 1993
• Docket Number: No. B14-91-01278-CV,B14-91-01278-CV
• Parties: Charles J. BRINK, Appellant, v. Terry P. AYRE, et al, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 44

855 S.W.2d 44

Charles J. BRINK, Appellant, v. Terry P. AYRE, et al, Appellees.

No. B14-91-01278-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 29, 1993.

Gerald E. Hopkins, Houston, for appellant.

David N. Gray, Terry P. Ayre, Houston, for appellees.

Before MURPHY, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from the trial court's denial of turnover relief. In his single point of error, appellant contends the trial court abused its discretion in denying appellant turnover relief as authorized by TEX.CIV.PRAC. & REM.CODE ANN. § 31.002 (Vernon 1986). We affirm the decision of the trial court.

Appellee, Terry Ayre, and his wife, Dona Ayre, were divorced in December 1989. Appellant intervened in the divorce proceeding and obtained a judgment against appellee for $6,000.00. The divorce decree established a receivership in which appellee paid the receiver all of the money distributed to him by virtue of his partnership interest in his law firm. The receiver then divided the money between appellee and his wife, paid his expenses and the Ayre's 1986 federal income taxes, and then returned the balance to the Ayre's: 65% to appellee; 35% to Ms. Ayre.

On March 30, 1990, appellant filed an "Application for Turnover Relief," requesting that appellee or the receiver be ordered to pay, or turn over, to appellant, the $6,000 out of the balance of any money which the receiver returned to appellee. Appellant alleged that any funds in the 65% balance to be paid to appellee constituted non-exempt partnership income and was, therefore, subject to the judgment. Following a hearing, the trial court denied the turnover request.

Appellant contends the trial court abused its discretion by denying the turnover relief. TEX.CIV.PRAC. & REM.CODE ANN. § 31.002 entitles a judgment creditor to aid from the trial court to reach non-exempt property to satisfy the judgment, if the property cannot be readily attached or levied upon by ordinary legal process. TEX.CIV.PRAC. & REM.CODE ANN. § 31.002 (Vernon 1986). A judgment creditor may show himself entitled to relief by establishing that the judgment debtor is the owner of the property, that the property could not readily be attached, and that the property is not exempt from attachment, execution, and every type of seizure. Childre v. Great Southwest Life Ins. Co., 700 S.W.2d 284 (Tex.App.--Dallas 1985, no writ). The general rule is that current wages for personal service are exempt from attachment, execution and seizure for the satisfaction of debts. TEX.PROP.CODE ANN. § 42.001 (Vernon 1984). Once wages are received by the debtor, they cease to be current wages and are not exempt from attachment, execution or seizure for the satisfaction of liabilities. However, the rule is different with regard to attorney's fees. The term "current wages" implies a master and servant relationship. Brasher v. Carnation Co., 92 S.W.2d 573 (Tex.Civ.App.--Austin 1936, writ dism'd). We have previously held that an attorney engaged in private practice is an independent contractor and does not receive current wages. Hennigan v. Hennigan, 666 S.W.2d 322, 325 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.). Thus, attorney's fees are not current wages for purposes of the Turnover statute.

Appellant argues that the balance of appellee's distribution which is returned to him after the receiver has paid the ordered expenses is non-exempt property. We agree. Appellee is a licensed attorney actively practicing law in Texas. Hence, his legal fees would not qualify as current wages. Furthermore, even assuming arguendo that his fees did satisfy the definition of current wages, once the receiver relinquishes control of the funds and returns them to appellee, they are no longer current wages, nor are they subject to the receivership. They belong to appellee to do with as he pleases. We perceive appellant's attack to be two-fold. First, he attacks the divorce decree itself insofar as it orders the transfer to the receiver of any of appellee's partnership income which accrued after December 1989, the date of the divorce decree. He asserts that appellant's partnership income after this date is separate property, and it is unconstitutional for the trial court to automatically divest Mr. Ayre of it in a divorce proceeding. In response, we point out that appellant was an intervening party in the divorce proceeding and if he objected to the trial court's judgment, he should have challenged it by direct appeal. He neither objected to the trial court's action nor appealed the divorce judgment. Thus we lack jurisdiction to entertain a collateral attack on the final judgment.

In his second point of attack, appellant contends that under the Turnover statute he is automatically entitled to satisfy his money judgment from any funds remaining after the receiver paid the expenses and the federal income taxes in accordance with the divorce decree. A turnover of these remaining...