Kimsey v. Kimsey

• Decision Date: 12 March 1998
• Docket Number: No. 08-95-00279-CV,08-95-00279-CV
• Citation: 965 S.W.2d 690
• Parties: Dale B. KIMSEY, Appellant, v. Roy Edwin KIMSEY, Jr., Appellee.
• Court: Texas Court of Appeals

Page 690

965 S.W.2d 690

Dale B. KIMSEY, Appellant, v. Roy Edwin KIMSEY, Jr., Appellee.

No. 08-95-00279-CV.

Court of Appeals of Texas El Paso.

March 12, 1998.

J. Michael Cunningham, Kerr & Ward, Midland, for appellant.

Bill G. Alexander, Law Offices of Bill Alexander, P.C., John W. Cliff, Jr., John W. Cliff, Jr., P.C., Odessa, for appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Dale B. Kimsey (Wife) and Roy Edwin Kimsey, Jr. (Husband) both appeal from a final decree of divorce following a jury trial. Wife alleges post-trial error in eight points of error. Husband raises six points of error challenging the legal and factual sufficiency of the evidence to support a reimbursement award and one point of error alleging that the trial court's division of property constitutes an abuse of discretion. We modify the judgment in certain respects, vacate other portions, and remand for further proceedings in accordance with this opinion. The remainder of the judgment, as modified, is affirmed.

SUMMARY OF THE CASE

The Kimseys married on June 19, 1975. They separated in July 1992 and Wife filed a petition for divorce. The parties have one child who attained majority during the pendency of the divorce. The case was tried to a jury from May 1 through May 12, 1995. Pertinent to this appeal, the jury found that the community estate was entitled to reimbursement for improvements made to two parcels of real estate owned by Husband's separate estate in the amount of $185,000 and $392,670. The trial court rendered a decree of divorce on July 19, 1995. Complaining of numerous aspects of the judgment as being vague and incapable of implementation or enforcement, Wife filed a motion to modify the judgment. Husband filed a motion for new trial alleging, among other things, that the evidence is legally and factually insufficient to support the jury's reimbursement findings. The trial court overruled those motions and both parties timely perfected appeal.

WIFE'S POINTS OF ERROR

Judgment for Attorney's Fees

In Point of Error No. One, Wife contends that the trial court erred in awarding judgment against her and in favor of her trial attorneys for fees incurred in their representation of her. Specifically she alleges that there are no pleadings to support this award. Each party sought an award of attorney's fees against the other party, and this issue was submitted to the jury. The jury determined, however, that the parties should pay their own attorney's fees. The trial court ordered Wife to pay her attorney's fees in the sum of $42,734 and ordered Husband to pay his attorney's fees in the sum of $67,542.90. The court further awarded a money judgment to the trial attorneys against their respective clients. Since the entry of this judgment, Wife's trial attorneys have made application for a turnover order since Wife failed to post a supersedeas bond. Husband concedes that the trial court had discretion to order both parties to each pay their own attorney's fees as part of the overall division of the marital estate, but it lacked authority to grant judgment against Wife in favor of her attorneys. See Douthit v. Anderson, 521 S.W.2d 127, 128 (Tex.Civ.App.--Dallas 1975, no writ)(divorce court had no authority to make a valid adjudication between attorney and client with respect to attorney's fees in the absence of any pleadings to support such an award; allegations in petition that wife had been compelled to hire an attorney and had agreed to pay a reasonable fee and which prayed for judgment against husband did not invoke court's jurisdiction to decide amount of fee as between wife and her attorney). Accordingly, Wife's first point of error is sustained and the judgment is reformed to delete the provisions which award judgment for attorney's fees to the trial attorneys for both parties. See TEX.R.APP.P. 43.2(b); Beavers v. Beavers, 675 S.W.2d 296, 300 (Tex.App.--Dallas 1984, no writ)(divorce decree modified to delete unauthorized award of attorney's fees).

Unenforceability of the Divorce Decree

In Points of Error Nos. Two through Six and in Point of Error No. Eight, Wife challenges certain aspects of the judgment on the ground that it is so vague as to be incapable of implementation or enforcement. Husband does not address the merits of any of Wife's contentions, but simply argues that the trial court is the "more appropriate forum" in which to raise these complaints, and that Wife must first attempt to enforce the decree before seeking clarification. We disagree.

As a general rule, a judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994). A divorce decree must delineate the terms of compliance in clear, specific, and unambiguous terms so that the parties will readily know exactly what duties are imposed on them. Smith v. Rabago, 672 S.W.2d 38, 40 (Tex.App.--Houston [14th Dist.] 1984, no writ). The language of the decree should inform the parties of their obligations without calling on them for inferences or conclusions about which persons might well differ. Ex parte Slavin, 412 S.W.2d 43, 44-45 (Tex.1967). When a divorce decree is not a consent decree or agreed judgment, the normal rules applicable to the construction of judgments apply to its interpretation. Harvey v. Harvey, 905 S.W.2d 760, 763-64 (Tex.App.--Austin 1995, no writ); see Biaza v. Simon, 879 S.W.2d 349, 355 (Tex.App.--Houston [14th Dist.] 1994, writ denied). Thus, where a decree is unambiguous, the trial court has no authority to issue an order altering or modifying the original disposition of property. Harvey, 905 S.W.2d at 764; Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex.App.--El Paso 1993, writ denied). If the property division in the original divorce decree is ambiguous, however, or not specific enough to be enforceable by contempt, the court may enter a clarifying order to enforce compliance with the original division of property. Harvey, 905 S.W.2d at 764; Pearcy v. Pearcy, 884 S.W.2d 512, 514 (Tex.App.--San Antonio 1994, no writ); see TEX.FAM.CODE ANN. § 9.006(a)(Vernon Pamph.1998) (clarification order in connection with enforcement action); TEX.FAM.CODE ANN. § 9.008(b) (clarification order in connection with contempt action). While the Family Code authorizes the trial court to clarify its judgment, it does not prohibit our review of Wife's complaints that the judgment is vague and unenforceable, nor is there any authority which suggests that an enforcement action is a prerequisite to raising a complaint on appeal. Further, appellate review is appropriate here since Wife presented her complaints about the judgment to the trial court in post-trial motions, and those complaints were overruled. Therefore, we will review the merits of Wife's contentions.

IRS OBLIGATIONS

In Point of Error No. Two, Wife alleges that the portion of the judgment pertaining to the payment of federal income tax obligations is vague and incapable of implementation. Within the body of this same point of error, she also alleges that the trial court abused its discretion in ordering her to pay one-half of the federal income tax liability because she did not have control of the income or access to the documents necessary to file tax returns for the tax years 1990 through 1995. We note at the outset that the Kimseys have not filed a federal income tax return since 1989. We further note that there was no evidence presented with regard to the parties' potential tax liability. As a result, the trial court determined that the tax liability, if any, would be divided equally between the parties. Without knowing the extent of the liability, or the likelihood of a refund, we are unable to determine whether the equal division of liability so skewed the overall division of the community estate as to constitute a manifest abuse of discretion.

Turning our attention to the remaining argument found in this point of error, the provision pertaining to the preparation of the parties' federal income tax returns and payment of any taxes owed reads as follows:

The Court finds the parties separated on or about July 1, 1992 and that Federal Income Tax has not been filed or paid since 1989. The Court therefore ORDERS Petitioner and Respondent to each get their own tax preparer and file all past due taxes consistent with the rules and regulations of the Internal Revenue Service. In the event the two tax preparers cannot agree, the tax preparers for the parties shall appoint a neutral third party tax preparer to arbitrate the differences.

In her post-judgment motion, Wife requested that the trial court clarify this portion of its judgment and she attached a suggested form found in the Texas Family Law Practice Manual. In its findings of fact and conclusions of law, the trial court found that both parties had the benefit of the parties' income both prior to the filing of the divorce petition (July 1, 1992) and during the pendency of the divorce in 1992, 1993, and 1994 by virtue of Husband's payment of expenses, child support, and temporary support to Wife. Neither the judgment nor the court's findings address the tax liability of the parties for the year of divorce, 1995.

The trial court correctly found that income tax liability is a matter of federal law and controlled by the Internal Revenue Code. State law, however, controls whether income is separate or community property. United States v. Mitchell, 403 U.S. 190, 91 S.Ct. 1763, 29 L.Ed.2d 406 (1971); Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249 (1930). The general rule is that any income that is characterized by Texas law as community income is taxed one-half to each spouse; that is, the community income...