In re In re Pyrtle

• Decision Date: 02 June 2014
• Docket Number: No. 05–13–00359–CV.,05–13–00359–CV.
• Citation: 433 S.W.3d 152
• Parties: In the Matter of the MARRIAGE OF Ashanti Johnson PYRTLE and Frank Pyrtle, III and in the Interest of F.P., a child.
• Court: Texas Court of Appeals

433 S.W.3d 152

In the Matter of the MARRIAGE OF Ashanti Johnson PYRTLE and Frank Pyrtle, III and in the Interest of F.P., a child.

No. 05–13–00359–CV.

Court of Appeals of Texas, Dallas.

May 19, 2014.

Reconsideration En Banc Denied June 2, 2014.

Judith A. Grantham, Carrollton, for appellants.

J. Darlene Ewing, Sunnyvale, Darlene Jones Darensburg, Dallas, for appellees.

Before Justices MOSELEY, FRANCIS, and LANG.

OPINION

Opinion by Justice LANG.

In the trial court below, appellee Ashanti Johnson Turner ¹ sought “enforcement” of an agreed final decree of divorce respecting her and appellant Frank Pyrtle, III. The trial court granted, in part, the relief requested by Turner. In five issues on appeal, Pyrtle challenges the portions of the trial court's order (1) awarding Turner a money judgment in the amount of $88,400 plus interest for “past due mortgage payments” and a “judgment for attorney's fees in the amount of $1,294.00” for services rendered in connection with a separate lawsuit in Florida involving foreclosure of the mortgage on the parties' marital residence; (2) awarding Turner's counsel in this lawsuit a judgment for attorney's fees in the amount of $7,000 “taxed as additional child support”; and (3) ordering Pyrtle's employer to withhold amounts from Pyrtle's disposable earnings for payment of the attorney's fees awarded to Turner's counsel in this lawsuit.

We decide in favor of Pyrtle on a portion of his fourth issue. Pyrtle's issues are otherwise decided against him. The trial court's order is reversed in part and affirmed in part and this case is remanded to the trial court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Turner filed an “Original Petition for Divorce” in the trial court on October 6, 2008. The parties' agreed final decree of divorce (the “divorce decree”) is dated April 21, 2009, and contains several provisions respecting the parties' marital residence, a house in Florida (the “property”). Specifically, the divorce decree provides in part (1) the property shall be sold for a price that is mutually agreeable to Turner and Pyrtle; (2) Pyrtle “shall continue to make all payments of principal, interest, taxes, and insurance on the property during the pendency of the sale” and “shall have the exclusive right to enjoy the use and possession of the premises until closing”; (3) if any net sales proceeds remain after paying the costs of sale and the mortgage indebtedness or liens on the property, “[t]he first $49,000.00 of the net sales proceeds shall be divided, 40% to [Pyrtle], and 60% to [Turner]” and “any amount remaining shall be divided 50/50 between both parties with [Pyrtle] receiving 50% and [Turner] receiving 50%”; and (4) “[i]f there are not net sales proceeds remaining or the net sales proceeds is [sic] not sufficient to pay the closing costs for the sale of the residence, [Pyrtle] shall pay 60% and [Turner] shall pay 40% of the required deficit.”

On November 21, 2011, Turner filed a “Petition for Enforcement of Child Support, Medical Child Support, and Property Division” (the “petition”) in the trial court. Therein, Turner alleged Pyrtle had, among other things, failed to (1) pay child support, medical support, and medical expenses for the parties' child; (2) reimburse Turner for life insurance on the child; and (3) share tax refunds as required by the divorce decree. Additionally, Turner stated (1) “[Pyrtle] has failed and refused to sign documents necessary for the [property] to be sold”; (2) “[Pyrtle] was granted the right to live in the residence until sold, and ordered to pay the principal, interest, taxes, and insurance on the property pending sale, but [Pyrtle] has further failed to do so, and the real property is now in foreclosure”; (3) “[t]he order for ... placing the property on the market for sale, as ordered, is no longer an adequate remedy because of [Pyrtle's] refusal or failure to cooperate and take action necessary to effect a sale of the property, and further causing damage to [Turner's] credit, and loss of the equity in the property due to [Pyrtle's] willful disregard of the court's orders, and failure to maintain payment of the principal, interest, taxes, and insurance on the real property”; (4) “[Turner] has incurred additional attorneys' fees and costs of at least $1294.00 to try and stop a foreclosure of the [property]”; (5) “[Turner] prays that the Court enforce the underlying order to the extent possible, including but not limited to appointing a receiver to take and sell the property in an effort to lessen the monetary loss of the parties”; (6) “[i]n the alternative, given the time restriction on resolving the real property default issue, [Turner] requests the Court to order equitable relief ... in order to make [Turner] whole for the amounts owed and not received from [Pyrtle], and for the economic damages done as a result of [Pyrtle's] failures described herein”; and (7) “[Pyrtle] should be ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney and against [Pyrtle].”

At the hearing on the petition, Turner testified in part that she and Pyrtle had resolved the issues prior to the hearing, with the exception of attorney's fees and “the property division.” Turner stated that at the time of the divorce, the mortgage payments on the marital residence were approximately $2,500 per month. She discovered in July 2009 that Pyrtle was not making any payments on the mortgage. She testified Pyrtle told her at that time that he was “entering into a loan modification process” and “would not make [the] house note payment until the loan modification process had been completed.” According to Turner, several potential buyers made offers on the marital residence subsequent to the parties' divorce, but “[t]he offers did not go through because [Pyrtle] would not sign the offers.” Turner stated Pyrtle told her in 2009 that he “would not sign an offer if he had to bring monies to the table.” She testified all of the offers on the marital residence would have required her and Pyrtle to “bring money to the table.” She stated she “was willing to accept every offer on the home” and did not “do anything to stop any of [the] offers from going through.”

Turner testified that at the time the petition in this case was filed, the marital residence had not been “foreclosed on.” She and Pyrtle hired a Florida attorney to try to “hold off” foreclosure, but were unsuccessful in doing so. She stated that a judgment of foreclosure was subsequently rendered by a Florida court against the parties for “the entire amount of the mortgage” (the “Florida judgment”) and “the only reason the home was foreclosed on was lack of payment.”

Turner stated Pyrtle lived in the marital residence for approximately thirty-four months after the divorce without making any mortgage payments. According to Turner, Pyrtle had income from his salary and the sale of mutual funds during that time. Turner testified that a “reasonable fair market” rental value for the marital residence is $2,500 per month and half of that rental value for a thirty-four month period is approximately $42,000. Further, she stated she agreed to pay her attorney in this case an hourly rate of $250 per hour; she paid $1,294 to the Florida attorney hired by her and Pyrtle for services pertaining to “the foreclosure”; the relief sought by her against Pyrtle in this case includes the full amount of the Florida judgment, half of the rental value of the marital residence for the time period in question, and her attorney's fees and court costs “in the amount of $8,000.00 plus $1,294.00”; and her requested relief in this case is “fair and equitable.”

Additionally, Turner introduced into evidence (1) a copy of the Florida judgment, which is dated November 22, 2011, and states in part that the amount due and owing is $334,830.19 and “[j]urisdiction of this action is retained to enter further orders, as are proper, including, without limitation, a deficiency judgment” and (2) a “time line of events” compiled by Turner, which states in part that on January 27, 2010, Pyrtle informed her he had received correspondence from their mortgage holder stating “the account has been forwarded to a foreclosure attorney” and on November 1, 2011, Pyrtle “agree[d] to hire an attorney in an attempt to avoid foreclosure.”

Pyrtle testified he has been employed since August 2004 in a position that pays approximately $76,000 per year. He lived in the marital residence from April 2009 until the time the property was “foreclosed on.” Pyrtle stated the divorce decree ordered him to make the mortgage payments on the marital residence, but he made no mortgage payments on the marital residence after April 2009 because “I didn't have enough money to do it based on the priorities that I had.” He remarried in November 2011. According to Pyrtle, both he and Turner rejected the offers that were made on the marital residence in 2009. Pyrtle testified the marital residence is currently “listed for sale as a foreclosure sale” and will probably sell for approximately $230,000, which will “leave the deficiency judgment around $104,000.00 or so.”

As to attorney's fees, counsel for Turner testified in part as follows:

I'm a licensed attorney since 1982 in the State of Texas. I've incurred a total attorney's fees in this case, prior to preparing for this last hearing, of $6,008.98. I've incurred an additional eight hours for everything that I did yesterday and today in preparing for this hearing.

I'm asking the Court for a total of $8,000.00 in attorney's fees plus the $1,294.00 that my client had to pay to the Florida attorney. My total hours—total attorney's hours are twenty-four total attorney's hours, also have ten hours of paralegal time at $100.00 an hour and then I also had another four hours of doing research and that type of thing.

During argument, coun...