Hesser v. Hesser

• Decision Date: 05 November 1992
• Docket Number: Nos. 01-91-01137-C,01-92-00026-CV,s. 01-91-01137-C
• Citation: 842 S.W.2d 759
• Parties: Susan J. HESSER, Appellant, v. James Craig HESSER, Appellee. Susan J. HESSER, Relator, v. The Honorable Henry G. SCHUBLE III, Judge of the 245th District Court of Harris County, Texas, Respondent. (1st Dist.)
• Court: Texas Court of Appeals

Page 759

842 S.W.2d 759

Susan J. HESSER, Appellant, v. James Craig HESSER, Appellee.

Susan J. HESSER, Relator, v. The Honorable Henry G. SCHUBLE III, Judge of the 245th

District Court of Harris County, Texas, Respondent.

Nos. 01-91-01137-CV, 01-92-00026-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 5, 1992.

Rehearing Denied Jan. 7, 1993.

Shawn Casey, Houston, for appellant.

Randall B. Wilhite, Houston, for appellee.

Before COHEN, SAM BASS and JONES, JJ.

OPINION

COHEN, Justice.

Relator, Susan J. Hesser, seeks a writ of mandamus compelling the respondent, Judge Henry Schuble III, to set aside his order of November 8, 1989, awarding James Hesser damages of $60,000. ¹ Ms. Hesser attacked the same judgment in a bill of review, but the trial judge granted a summary judgment denying all relief, from which she appeals. We ordered the two cases consolidated.

FACTS

The trial judge signed an agreed judgment granting the Hessers a divorce on August 24, 1989. It required Ms. Hesser to make the payments on the $227,561.09 mortgage on the family residence she received in the distribution of property. Within the first weeks after the divorce, Ms. Hesser failed to make the first two mortgage payments, totalling $5,580.12. Mr. Hesser, still obligated under the mortgage, timely filed a motion for new trial, and, in the alternative, asked that Ms. Hesser be ordered to obey the specific terms of the decree, which required her to deposit $30,000 with a trustee to secure her mortgage payments. He also requested that Ms. Hesser be required to deposit an additional $30,000 with the trustee, for a total of $60,000, to serve as security for her payment on the mortgage.

The hearing on the motion for new trial was scheduled for October 10, 1989, with proper notice to Ms. Hesser and her attorney. However, before the hearing and at Ms. Hesser's request, her attorney withdrew, and Ms. Hesser proceeded pro se. On October 10, Ms. Hesser called Mr. Hesser's attorney, and said she knew about the hearing, but would not attend. At the hearing on October 10, 1989, the trial judge did not rule on the motion for new trial, but ordered Ms. Hesser to deposit $60,000 with the trustee by October 17, 1989. The order was delivered to Ms. Hesser, and she signed for it. Nonetheless, Ms. Hesser still did not pay either the mortgage payments or the trustee.

On October 19, 1989, Mr. Hesser filed a motion for a show cause hearing to determine whether Ms. Hesser had complied with the court order by paying $60,000 to the trustee by October 17.

On October 20, 1989, Mr. Hesser attempted to notify Ms. Hesser of the hearing, though not by citation issued by the court. Privately prepared notices were sent by hand delivery to her home and her office, but she refused them. On the copy sent to her home, Ms. Hesser wrote on the envelope, "Dear Randy, please grow up and leave me alone. Susan Hesser."

On October 25, 1989, Ms. Hesser failed to appear at the show cause hearing to determine whether she had deposited the $60,000 with the trustee. The trial judge reviewed the sworn allegations in the motion for new trial, heard Mr. Hesser's argument, and orally rendered a $60,000 default judgment in favor of Mr. Hesser. At this hearing, no additional pleadings were filed and no other evidence was introduced.

On November 7, 1989, seventy-five days after the signing of the divorce decree, Mr. Hesser's motion for new trial was overruled by operation of law. TEX.R.CIV.P. 329b(c). On November 8, 1989, still within the trial court's 30-day period of plenary power after the overruling of the motion for new trial, the trial judge signed the $60,000 default judgment against Ms. Hesser. That judgment stated that it was granted pursuant to TEX.FAM.CODE ANN. § 3.74 (Vernon 1989). ²

On November 10, 1989, the district clerk sent proper notices of the default judgment to Ms. Hesser, pursuant to TEX.R.CIV.P. 239a and 306a.

On February 2, 1990, Ms. Hesser was deposed. She admitted receiving various legal documents, but claimed to have thrown away all mail related to the legal action without reading it. She was then shown a copy of the $60,000 judgment, and was questioned about it.

On September 13, 1990, approximately 10 months after the default judgment, Ms. Hesser rehired her attorney. The same day, her attorney filed a motion to set aside the default judgment as void. Mr. Hesser responded, and claimed that because the period of plenary power had expired, the judge could set aside the judgment only through a bill of review. Agreeing, the trial judge ruled he had no power to set the judgment aside, and dismissed Ms. Hesser's motion.

On December 31, 1990, Ms. Hesser filed an equitable bill of review. On July 24, 1991, the bill of review was tried on stipulated facts, and the trial judge denied all relief.

Ms. Hesser requests a writ of mandamus to compel the trial judge to set aside the default judgment and also appeals the bill of review summary judgment.

MANDAMUS

On September 13, 1990, the trial judge denied Ms. Hesser's request to set aside the default judgment. This request came more than 10 months after the judge had signed the default judgment. Despite notice of the default judgment, Ms. Hesser never moved for new trial, never appealed, and never filed a writ of error. TEX.R.APP.P. 45. It is undisputed that at the time of her request, September 13, 1990, the trial court had lost plenary power. TEX.R.CIV.P. 329b.

A trial judge may not set aside a judgment after the period of plenary power has expired, unless (1) he signed the judgment after plenary power over the parties expired, TEX.R.CIV.P. 329b(f); or (2) the court did not have subject matter jurisdiction when it signed the judgment. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985); Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex.1983); Deen v. Kirk, 508 S.W.2d 70, 71-72 (Tex.1974); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 711 (1961). Here, it is undisputed that the trial judge signed a default judgment before the period of plenary power expired. The remaining question is whether the trial court had subject matter jurisdiction to render judgment for damages when Ms. Hesser failed to comply with the divorce decree.

Ms. Hesser asserts that mandamus should issue because, under TEX.FAM.CODE ANN. § 3.74, the trial court was powerless to grant a judgment that changed the division of property in the agreed decree of divorce. She relies on TEX.FAM.CODE ANN. § 3.71 (Vernon 1989), which provides:

(a) Except as provided by this subchapter and by the Texas Rules of Civil Procedure, a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. Further orders may be entered to enforce the division, but these orders shall be limited to orders in aid of or clarification of the prior order. The court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed. An order of enforcement does not alter or affect the finality of the decree of divorce or annulment being enforced.

(b) An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court to enter and is unenforceable.

(Emphasis added.)

Ms. Hesser contends that, under section 3.71(b), the trial court lacked subject matter jurisdiction because the $60,000.00 default judgment changed the division of property in a final divorce decree and thus, in the words of the statute, it was "beyond the power of the divorce court to enter and is unenforceable." We disagree.

Section 3.71(a) allows a change in the property division that is made "as provided by this subchapter...." The subchapter referred to is subchapter D of chapter 3 of the Family Code. Subchapter D includes section 3.74, titled "Reduction to Money Judgment." It provides:

(a) If a party fails to comply with a decree of divorce or annulment and delivery of property awarded in the decree is no longer an adequate remedy, the court may enter a money judgment for the damages caused by that failure to comply.

(b) On the motion of any party who did not receive payments of money as awarded in a decree of divorce or annulment, the court may enter judgment against a defaulting party for the amount of unpaid payments to which the movant is entitled. The remedy of a reduction to money judgment is in addition to all other remedies provided by law....

Section 3.74(b) gave Judge Schuble the power to grant judgment against the defaulting party, Ms. Hesser, for the amount of unpaid payments ($30,000.00) that the trustee for Mr. Hesser was entitled to receive under the agreed divorce decree. Judge Schuble did that in the first paragraph of his October 10, 1989 order by requiring Ms. Hesser to pay that amount to the trustee within seven days. We hold that he had subject matter jurisdiction under section 3.74(b) to do so.

Judge Schuble also ordered an additional deposit of $30,000.00 cash to the trustee by Ms. Hesser "as additional security for her performance of the obligations as set forth in the Decree of Divorce." This was a new obligation on Ms. Hesser, in addition to the other obligations she had assumed in the agreed divorce decree. Because it was an order for an additional sum, it was not justified under section 3.74(b) because, in regard to the additional $30,000.00, Ms. Hesser was not, on October 10, 1989, "a defaulting party" and the additional $30,000.00 was not an amount that Mr. Hesser or the trustee was entitled to receive under the agreed divorce decree.

We hold, however, that Judge Schuble had subject matter jurisdiction under section 3.74(a) to require $30,000.00 in additional security. By October 10, 1989, Ms. Hesser had failed to comply with the divorce decree ordering her to deposit...