Perry v. Perry
| Decision Date | 13 December 2016 |
| Docket Number | NO. 01–16–00156–CV,01–16–00156–CV |
| Citation | 512 S.W.3d 523 |
| Parties | William PERRY, Appellant v. Vickie Reams PERRY, Appellee |
| Court | Texas Court of Appeals |
R.J. Parham, Hempstead, TX, for Appellant.
John Carroll Boudreaux, Kingwood, TX, for Appellee.
Panel consists of Justices Jennings, Keyes, and Brown.
William Perry appeals from a post-divorce order appointing a receiver to sell, "in his sole discretion ... upon terms and conditions determined by him," certain real property in Hockley, Texas (the "House").
The House is the former community property of William and his ex-wife, Vickie Reams Perry. The decree from William and Vickie's divorce awarded possession of the House to William and awarded William and Vickie each one-half of the profits of the sale of the House.
Under the Texas Family Code, a trial court may not modify the division of property made in a decree of divorce. TEX. FAM. CODE § 9.007(a). William contends that the trial court improperly modified the division of property made in William and Vickie's decree of divorce. We vacate the trial court's order and remand for further proceedings.
The trial court enters the divorce decree
William and Vickie divorced in 2012. The division of property in their final decree of divorce included two provisions relating to the House: one that was part of the form divorce decree, and one that was added in handwriting by William and Vickie.
The provision from the form awarded the House to William and divested the House from Vickie:
The handwritten provision granted Vickie one-half of the profits of the sale of the House:
William Perry agrees to grant Vickie Perry 50% of the profit of the [sale] of the currently community property of [the House.]
The trial court subsequently appoints a receiver to sell the House
Several years after William and Vickie's divorce, William, appearing pro se, filed suit to enforce the divorce decree. William alleged that Vickie had violated the decree by failing to sign a deed transferring her interest in the House to him. William requested that the trial court order Vickie to transfer her interest in the House to him. William alleged that Vickie's refusal to sign a deed was preventing him from selling the House to a prospective buyer.
Vickie answered and counterclaimed for a clarifying order. Vickie requested that the trial court determine each party's rights and duties under the divorce decree and clarify any ambiguity in the decree's property division. Vickie alleged that William had told her that he was going to sell the House but was not going to give her one-half of the profits.
Vickie also moved the trial court to appoint a receiver to sell the House. Vickie alleged that the House was at risk of foreclosure and therefore contended that appointing a receiver would protect both parties' interests in the House. Vickie did not verify the allegations in her motion or support them with evidence. Nor did she state the legal basis for appointing a receiver under these circumstances or cite to any supporting legal authority for her requested relief. William did not file a response to Vickie's motion.
The trial court held two hearings on Vickie's receiver motion. At the first hearing, William, again appearing pro se, informed the trial court that he opposed the appointment of a receiver because the House was not in danger of foreclosure. The trial court suggested that he and Vickie prepare an agreed order requiring that the proceeds of the sale of the House be paid into an escrow account until the parties or the trial court determined how such proceeds would be distributed. The record does not include any evidence that William agreed to such an order.
At the second hearing, William, now appearing through counsel, again objected to the appointment of a receiver. William argued that appointing a receiver would improperly modify the divorce decree because the decree did not order William to sell the House.
The trial court stated that appointing a receiver would not harm either William or Vickie but would benefit them both. The trial court also recalled that William had agreed to sell the House at the first hearing. Again, the record does not include any evidence that William agreed to sell the House at the first hearing.
After the second hearing, the trial court signed an order appointing a receiver to sell the House. The order appointed the receiver "to take charge and possession" of the House if William failed to sell the House by February 15, 2016. If William failed to do so, the order authorized the receiver "to manage, control, and dispose" of the House "as he s[aw] fit in his sole discretion ... upon terms and conditions determined by him ...."
William timely appealed.
In three issues, William argues that the entry of the receivership order was an abuse of discretion because (1) neither the receiver nor Vickie were required to post a bond,1 (2) the order improperly modified the divorce decree's division of property, and (3) a receivership to sell the House is not a remedy available under Section 64.001 of the Civil Practice and Remedies Code. William did not raise the first and third issues below, so we do not consider them here.2 We therefore turn to William's second issue, and determine whether the trial court's receivership order improperly modified the division of property in William and Vickie's divorce decree.
Vickie argues that William failed to preserve error on his second issue because he failed timely to object to the appointment of a receiver. We disagree.
Preservation of error is a prerequisite for appellate review. TEX. R. APP. P. 33.1(a). To preserve error, a party must (1) raise the issue before the trial court in a manner that is timely, complies with the Rules of Civil Procedure, and informs the trial court of what the party requests and the basis for the request, and (2) obtain a ruling from the trial court or object to the trial court's refusal to rule. Id. ; see In re Commitment of Hill , 334 S.W.3d 226, 229 (Tex. 2011). Appellate courts may not review issues that are not preserved for appeal. TEX. R. APP. P. 33.1(a).
At both hearings, William objected to the appointment of a receiver. He specifically argued that appointing a receiver would improperly modify the divorce decree because the decree did not order William to sell the House. We hold that William preserved error on his second issue.
We review a trial court's interlocutory order appointing a receiver for an abuse of discretion. Abella v. Knight Oil Tools , 945 S.W.2d 847, 849 (Tex. App.–Houston [1st Dist.] 1997, no writ) ; see also Howard v. Howard , 490 S.W.3d 179, 183 (Tex. App.–Houston [1st Dist.] 2016, pet. denied) ().
"A trial court abuses its discretion only if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law." Howard , 490 S.W.3d at 184. When, as here, the trial court makes no separate findings of fact or conclusions of law, we draw every reasonable inference supported by the record in favor of the trial court's judgment. Gainous v. Gainous , 219 S.W.3d 97, 103 (Tex. App.–Houston [1st Dist.] 2006, pet. denied).
The trial court's order must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id.
1. Family Code
Under the Family Code, the trial court that renders a divorce decree retains jurisdiction to clarify and to enforce the decree's property division. Pearson v. Fillingim , 332 S.W.3d 361, 363 (Tex. 2011) (per curiam) (citing TEX. FAM. CODE §§ 9.002, .008). However, after its plenary power expires, the trial court may not amend, modify, alter, or change the property division in the decree. Howard , 490 S.W.3d at 185 (). "An order ... that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce ... is beyond the power of the divorce court and is unenforceable." TEX. FAM. CODE § 9.007(b).
2. Appointment of receiver
Chapter 64 of the Civil Practice and Remedies Code sets forth the circumstances under which a trial court may appoint a receiver. TEX. CIV. PRAC. & REM. CODE §§ 64.001 et seq. Under Section 64.001, a trial court of competent jurisdiction may appoint a receiver under six different circumstances, including cases "in which a receiver may be appointed under the rules of equity." Id. § 64.001(a).
The appointment of a receiver is a harsh, drastic, and extraordinary remedy, which must be used cautiously. Benefield v. State , 266 S.W.3d 25, 31 (Tex. App.–Houston [1st Dist.] 2008, no pet.). "[A] trial court should not appoint a receiver if another remedy exists, either legal or equitable." Id. "[R]eceivership is warranted only if the evidence shows a threat of serious injury to the applicant." Id. In determining whether the trial court erred in appointing a receiver, "[o]ur review focuses on whether the pleadings and evidence are sufficient to justify a receivership." Id.
William argues that the trial court's receivership order is "beyond the power" of the trial court because it modifies the "actual, substantive division of property" in the divorce decree. According to William, the order modifies the decree's property division...
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