O'Carolan v. Hopper
| Decision Date | 12 November 2013 |
| Docket Number | No. 03–10–00407–CV.,03–10–00407–CV. |
| Citation | 414 S.W.3d 288 |
| Parties | Renee Sheree O'CAROLAN, Appellant v. Gary D. HOPPER, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Sam D. Colletti, Noelke English Maples St. Leger Blair, LLP, Austin, TX, for Appellee.
Wanda J. Harkness, Law Offices of Wanda J. Harkness, Austin, TX, for Appellant.
Before Justices PURYEAR, GOODWIN, and FIELD.
We withdraw the opinion and judgment dated June 21, 2013, and substitute the following opinion and judgment in their place. We deny appellant's motion for rehearing.
Renee Sheree O'Carolan appeals from three pretrial orders, the order denying her motions for new trial and to modify and correct the judgment, and the final judgment rendered by the trial court on her remanded claim for division of community property. The remand followed an appeal from the parties' divorce, which became final on May 1, 2000. This Court had remanded O'Carolan's claim for property division in 2002, holding that the trial court erred by awarding appellee, Gary D. Hopper, all of the community property and only awarding spousal maintenance to O'Carolan. O'Carolan v. Hopper, 71 S.W.3d 529, 535 (Tex.App.-Austin 2002, no pet.).
On remand, the trial court awarded 55% of the community property to O'Carolan and 45% to Hopper. In six issues, O'Carolan challenges the trial court's: (1) dismissal of her claim for enforcement of the original spousal-maintenance award, (2) dismissal of her request for a new order on spousal maintenance, (3) grant of summary judgment in Hopper's favor on her third-party fraud claim, (4) valuation of property as of the time of the divorce, (5) award of title to the real property to Hopper retroactive to the date of the divorce, and (6) assessment of penalties and attorneys' fees in the amount of $2,000 as sanctions.1 We will reverse and remand in part because we conclude that O'Carolan's claim for enforcement of the spousal-maintenance order was not barred by limitations. We will affirm in part because the trial court (1) properly dismissed O'Carolan's claim for continuing spousal maintenance and (2) did not abuse its discretion by valuing the community estate as of the time of the divorce, awarding the title to and the debt on the real property and any equitable rights arising in the property after 2000 to Hopper, and awarding Hopper $2,000 in attorneys' fees as sanctions for a discovery dispute. Our affirmance of the trial court's award of the equitable rights arising in the property after 2000 to Hopper renders O'Carolan's fraud claim moot on appeal.
We provide here a brief overview of the procedural history of this case and will provide a more detailed explanation of various events within our discussion of the issues. As mentioned above, the parties' divorce became final on May 1, 2000. In the divorce decree, the trial court awarded the marital residence (the “Dripping Springs property”), the vehicles, the life insurance policy, and numerous items of personal property to Hopper. The decree also awarded all retirement funds, IRAs, and pensions from Hopper's employment to him, although he had testified that they had no remaining value. Id. at 532. Hopper was ordered to pay the debt against the house and vehicle and any debt that he incurred after the parties' separation. O'Carolan was awarded various items of personal property. She was assigned any debt that she had incurred after the parties' separation, including $60,000 in medical expenses. Id. The trial court ordered Hopper to pay O'Carolan $36,000 in spousal maintenance over a two-year period on the following schedule: $1,000 per month for three months; $1,500 per month for the next eighteen months; and $2,000 per month for the last three months.
O'Carolan appealed. In 2002, this Court found that not only did the record “show a total absence of evidence to support an unequal division of property in Hopper's favor, the majority of factors would support a disproportionate division in O'Carolan's favor.” Id. at 532. In particular, we noted the disparity in the parties' income, earning capacity, and business opportunities, as well as the evidence of O'Carolan's serious health issues. We stated that Id. at 532–33. We explained that while O'Carolan's health problems and lack of earning capacity may have made her a proper candidate for spousal maintenance, “such an award should not be made in lieu of any interest in the available community property.” Id. at 534. Accordingly, we reversed the part of the trial court's judgment dividing the community property and remanded for a new property division.
The record does not reflect what, if anything, happened with the remanded case between 2002 and 2008. Hopper's attorney for the remanded case testified that she took over as counsel for Hopper in late fall 2008 after O'Carolan's attorney had contacted Hopper's prior counsel. Below is a timeline of dates that relevant pleadings were filed, pretrial hearings occurred, and orders were entered (appealed orders appear in boldface type):
March 11, 2009 O'Carolan's second amended answer and counterpetition
May 6, 2009 Hopper's first amended petition for divorce (one of his live pleadings at time of trial)
May 20, 2009 Hopper's motion to strike pleadings
June 5, 2009 Hearing on Hopper's motion to strike pleadings and motion to compel discovery and for sanctions; trial court reserved determination on motion to compel until June 15, 2009 pretrial hearing; trial court orally ruled that (1) O'Carolan's request for enforcement of spousal maintenance is barred by statute of limitations and dismissed claim with prejudice; (2) O'Carolan's request for a new order of spousal maintenance is barred by res judicata; and (3) O'Carolan's pleadings for intentional misrepresentation, conversion, and conspiracy were allowed to stand, but no determination was made as to whether those claims would be within the scope of remand
June 12, 2009 O'Carolan's proposed disposition of issues
June 15, 2009 O'Carolan's motion for rehearing of motion to strike
June 15, 2009 Hearing on Hopper's motion to compel discovery and for sanctions and O'Carolan's motion for rehearing of Hopper's motion to strike and her reurging of her motion for continuance; oral ruling granting in part and denying in part motion to compel and for sanctions, denying motion for rehearing, and granting motion for continuance
July 29, 2009 Order from June 15, 2009 pretrial hearing
August 10, 2009 O'Carolan's fifth amended counterpetition and second amended third-party petition (her live pleading at time of trial)
August 10, 2009 Letter ruling from trial court regarding O'Carolan's claim for current spousal maintenance
August 10, 2009 Order entered on Hopper's motion to compel discovery and for sanctions and motion to strike pleadings from June 5, 2009 hearing
August 31, 2009 Hopper's answer to O'Carolan's fifth amended counterpetition and second amended third-party petition (one of his live pleadings at time of trial)
September 18, 2009 Hopper's motion for partial summary judgment
September 23, 2009 Hopper's first amended proposed disposition of issues October 6, 2009 O'Carolan's response to motion for partial summary judgment
October 6, 2009 O'Carolan's objection to Hopper's summary-judgment evidence
October 6, 2009 O'Carolan's second motion for rehearing of motion to strike
October 9, 2009 Hearing on Hopper's motion for partial summary judgment, O'Carolan's objection to Hopper's summary-judgment evidence, her second motion for rehearing of motion to strike, and her motion for leave to file sixth amended original counterpetition and third amended original third-party petition
October 15, 2009 Order entered on motions from October 9 hearing
A trial was held in November 2009, and a jury heard testimony on the issue of the value of the community estate and made findings on the value of the various items of property as of May 1, 2000. The trial court then heard additional evidence on other factors relevant to a just and right division of the community property. After hearing all the evidence and considering the jury findings on the values of the community property, the trial court found that the total value of the community estate to be divided was $68,500. Specifically, the Dripping Springs property had been valued by the jury at $132,000, less the mortgage amount of $82,000, making the net value $50,000 as of the date of the divorce. The trial court found that a disproportionate distribution of 55% of the community property to O'Carolan and 45% to Hopper was a fair and just allocation of the community estate. When making its award, the trial court further considered the evidence about the various items of property in the possession of each party and also deducted $2,000 from O'Carolan's share for attorneys' fees awarded to Hopper for a pretrial discovery dispute. The trial court found that Hopper should pay O'Carolan $28,875 and awarded the Dripping Springs property to Hopper as his separate property. In addition, the trial court ordered that the community debt related to the Dripping Springs property, i.e., the balance due on the property's mortgage, was awarded to Hopper, and it confirmed “[a]ny and all equitable claims or equitable interest in the real property awarded to [Hopper] above, arising out of [Hopper's] conduct at any time after May 1, 2000” as Hopper's separate property.
O'Carolan filed a motion for new trial and a motion to modify and correct the judgment. The trial court denied both motions. This appeal followed.
O'Carolan's first three issues on appeal concern rulings of the trial court related to Hopper's motion to strike and motion for partial summary judgment. In...
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