Garza v. Garza, 04-85-00191-CV
| Decision Date | 26 March 1986 |
| Docket Number | No. 04-85-00191-CV,04-85-00191-CV |
| Citation | 713 S.W.2d 123 |
| Parties | Carmen Keever De GARZA, Appellant, v. Simon T. GARZA, Appellee. |
| Court | Texas Court of Appeals |
Thomas Rocha, Jr., San Antonio, for appellant.
J. Elaine Watson, Pat Maloney, Jr., San Antonio, for appellee.
Before ESQUIVEL, BUTTS, and BISSETT, * JJ.
This is an appeal by Carmen K. Garza from an order enforcing a judgment rendered in a prior divorce proceeding between her and Simon T. Garza. Carmen K. Garza will be referred to as "appellant" and Simon T. Garza will be referred to as "appellee."
This appeal marks the parties' third appearance before this Court in the protracted history of their divorce litigation. Twice before appellant has unsuccessfully appealed the action of the trial court in dividing the couple's community property. Those prior appeals will hereafter be designated Garza I, 608 S.W.2d 260 (Tex.Civ.App.--San Antonio 1980, writ dism'd) and Garza II, 666 S.W.2d 205 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.).
In Garza I, the trial court rendered a final judgment on June 6, 1980. Under the terms of the judgment, the parties were divorced and their community property was divided. The real property located at 8122 and 8106 Hausman Road, in San Antonio, Texas, was set apart in severalty to appellant as her separate property, subject, however, to the following provisions contained in the judgment:
... The award of this item of real property to Respondent is made to her subject to an option hereby granted to Petitioner, SIMON T. GARZA, to buy this item of real property from Respondent, CARMEN KEEVER de GARZA, for the sum of One Hundred Eleven Thousand Six Hundred and no/100 Dollars ($111,600.00) and the assumption of the debt thereon, which option must be exercised within ninety days (90) after the entry of this judgment....
* * *
* * *
Additionally, it is ORDERED, ADJUDGED and DECREED that the law firm of Foster, Lewis, Langley, Gardner and Banack, Inc. is awarded judgment of Fifty-Nine Thousand Two Hundred and 42/100 Dollars ($59,215.42), plus interest at the judgment rate of nine percent (9%) per annum from the date of judgment hereon to the date paid, against the Respondent, CARMEN KEEVER de GARZA, which judgment shall be secured by a judgment lien on the real property at 8122 and 8106 Hausman Road, New City Block 14615, Lots P-9, P-10 and P-11A, and the real property on Wild Eagle, University Hills, San Antonio, Bexar County, Texas, New City Block 14470, Block 15, Lots 12 and 13, plus all other properties awarded to Respondent in this Decree; provided, however, if Petitioner, SIMON T. GARZA, exercises his option to purchase the Hausman Road property, then the first Fifty-Nine Thousand Two Hundred Fifteen and 42/100 Dollars ($59,215.42), plus interest as set forth hereinabove, of the One Hundred Eleven Thousand Six Hundred and No/100 Dollar ($111,600.00) sum set as part of the purchase price of this realty under the option created hereinabove shall be paid directly to the law firm of Foster, Lewis, Langley, Gardner & Banack, Incorporated, thereby releasing the aforesaid Langley lien, with the remaining proceeds of the option sale to be paid directly to Respondent, CARMEN KEEVER de GARZA, and for which let execution issue....
This Court, on October 8, 1980, affirmed on certificate the judgment of the trial court in Garza I when appellant failed to timely file the records.
On March 30, 1981, appellee filed a motion to enforce the judgment in an attempt to compel appellant to convey the Hausman property to him. The trial court granted the motion and rendered a judgment enforcing the judgment which had previously been rendered on June 6, 1980. Thereafter, on May 6, 1981, the trial court signed an order denominated "Amended Order Enforcing Judgment." This order, in pertinent part, provided:
1. CARMEN KEEVER de GARZA is ORDERED to execute all instruments necessary to effect the conveyances as ordered by the Final Judgment and Decree signed by Judge Fred Shannon on June 6, 1980, in the 225th Judicial District Court, filed in the 225th Judicial District Court.
2. It is ORDERED that Respondent, DR. SIMON T. GARZA'S, option to purchase real property at 8122 and 8106 Hausman Road, more fully described in Paragraph NO. 3, Page 2, of the Final Judgment and Decree of Divorce, is valid and binding, and CARMEN KEEVER de GARZA is ORDERED to execute all instruments necessary to effect the option; and that SIMON T. GARZA be allowed to purchase said property subject to the lien on the property.
3. It is ORDERED that SIMON T. GARZA be allowed a credit for all monies he has paid to sustain mortgage payments this [sic] property and more particularly described in Exhibit 'D' of the Motion to Enforce Judgment. This amount is to be deducted from the option price of One Hundred Eleven Thousand Six Hundred Dollars ($111,600.00); no offset being allowed for improvements made by SIMON T. GARZA to said land.
4. It is ORDERED that CARMEN KEEVER de GARZA is to be allowed a credit for any rental funds received by DR. GARZA on the property located at 8122 and 8106 Hausman Road. This amount is to be added to the option price of One Hundred Eleven Thousand Six Hundred Dollars ($111,600.00).
Appellant appealed that judgment. This Court, in Garza II, affirmed the judgment, and, as noted, our Supreme Court refused to grant appellant's application for a writ of error with the notation "no reversible error."
Appellant refused to comply with the judgments rendered in Garza I and Garza II. After the application for writ of error was refused by the Supreme Court in Garza II and mandate was duly issued by this Court, both appellant and appellee filed several pleadings concerning the prior judgment. Each filed a motion to enforce the judgment; and a motion "for Clarifying Order Coupled with Order of Enforcement."
Hearings were held on the several motions on December 14, 1984. No witnesses testified for either party and no documents were introduced in evidence. The hearings consisted solely of arguments made by the attorneys and statements made by them to the judge, and observations made by the judge. At the hearing on December 17, 1984, appellant testified on a bill of exception. In summary, she testified that appellee had never tendered the $111,600.00 to her, and had never deposited the option price into the registry of the court. She does not complain of the action of the trial court in refusing to permit appellant to testify at the hearing in chief. Therefore, the action by the trial court is not before us in the appeal as there is no point of error directed at such action.
An order was signed by the judge on February 8, 1985. It decreed:
It is accordingly, ORDERED, ADJUDGED and DECREED that Respondent's motion for enforcement of judgment is hereby GRANTED; that the terms and conditions of the Amended Order Enforcing Judgment of May 6, 1981, is hereby deemed enforceable; and that subject to the tendering of the monies as calculated by the Amended Order Enforcing Judgment if Carmen Keever de Garza fails to abide by the terms and conditions of this Order she will be found to be in contempt of this Court.
On March 1, 1985, appellant filed a motion for new trial. In addition to other complaints lodged against the order of February 8, 1985, appellant complained that the order "is so vague as to be unenforceable." She further stated:
Both parties had asked in their pleadings for a clarification order under Section D of the Family Code but the trial court failed to enter such order.
Thereafter, on March 7, 1985, appellee filed a "Notice of Tender of Funds" in the trial court. An "Amended Notice of Tender of Funds" was filed on March 12, 1985. In the amended notice, appellee agrees that under the prior judgments, the option price for the Hausman property was the sum of $111,600.00 and the assumption by him of the debt on the property. He stated therein that the $111,600.00 should be offset by certain sums of money, pursuant to the terms of the original judgment of June 6, 1980 (Garza I) and the terms of the order of May 6, 1981 (Garza II). Those sums of money were stated to be:
1. To the law firm of Foster, Lewis
Langley, Gardner & Banack, Inc...... $59,215.42
2. Interest to the above law firm on
the above sum of money ............. 25,391.24
3. Offsets ............................ 4,445.22
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Total .......................... $89,051.88
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In summary, the total amount of money to be deducted from the option price of $111,600.00 is $89,051.88. The sum to be actually paid to appellant after allowing the above deduction is $22,548.12.
Appellant's motion for new trial was heard on March 11, 1985, and was overruled by order signed on April 1, 1985. The order overruling the motion for new trial...
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