Votzmeyer v. Votzmeyer

• Decision Date: 05 February 1998
• Docket Number: No. 13-96-265-CV,13-96-265-CV
• Parties: Theresa Marshanette VOTZMEYER, Appellant, v. Charles Albert VOTZMEYER, Jr., Appellee.
• Court: Texas Court of Appeals

Page 315

964 S.W.2d 315

Theresa Marshanette VOTZMEYER, Appellant, v. Charles Albert VOTZMEYER, Jr., Appellee.

No. 13-96-265-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 5, 1998.

Jerry N. Dennard, San Antonio, for Appellant.

Kim Cox, Cox & Robinson, Corpus Christi, Ann E. Coover, Coover & Coover, Corpus Christi, for Appellee.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and RODRIGUEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellant, Theresa Marshanette Votzmeyer ("Theresa"), and appellee, Charles Albert Votzmeyer, Jr. ("Charles"), divorced in 1985. Theresa was granted an equitable interest in $175,000 worth of community property which Charles was ordered to turn over in regular installments. A few months later, Charles filed for bankruptcy and unsuccessfully endeavored to have his obligations under the divorce decree discharged. Although Theresa and Charles made a private agreement modifying Charles' obligations to Theresa, Charles retained exclusive possession of all the property, delivering nothing to Theresa until he was briefly incarcerated in 1989, as a sanction for his willful failure to comply with the terms of the divorce decree. Thereafter, the court suspended Charles' commitment on condition that he make up his overdue obligations and completely deliver to Theresa her share of the marital estate. Charles complied until mid-1995. Theresa, determining that Charles had not fully performed as decreed, asked the court to revoke the order suspending commitment and to compel Charles to produce certain documents which she had requested. Charles then sought clarification of his obligations and declaratory relief, claiming he had turned over all that was due to Theresa. The trial court granted Charles' motions and denied Theresa's motions. By four points of error, Theresa complains that the trial court erred (1) in modifying the property division ordered by the court in the final divorce decree, (2) in granting a declaratory judgment for Charles, (3) in denying her motion for discovery, and (4) in denying her motion to revoke the order suspending commitment. We affirm in part and reverse and remand in part.

On May 30, 1985, the trial court signed a final decree of divorce, ending Theresa and Charles' marriage. In dividing the parties' property, the trial court stated:

"It is further ORDERED, ADJUDGED AND DECREED by the Court, having found and considered "alimony factors" accruing in favor of [Theresa], such as the disparity of earning power of the parties, as well as their business opportunities, the physical condition of the parties, probable future need for support and educational background, that in lieu of all other interest in the community estate, [Theresa] is entitled to receive from [Charles] and [Charles] is ordered to pay to [Theresa] the sum of One Hundred and Seventy Five Thousand and No/100 ($175,000) Dollars, bearing interest at the rate of 6% per annum and payable at the rate of $3,000 per month, beginning on the 1st day of June, 1985 and a like payment shall be due and payable on the same day of each succeeding month thereafter until said $175,000 with interest has been fully paid.... It is further the finding of the Court that said $175,000 obligation hereinbefore ordered is expressly referable to [Theresa's share of the community property]."

Theresa's interest in the $175,000 was secured by an equitable lien on the property awarded to Charles. Because a tax debt on community income for 1982 and 1985 was outstanding, Charles was granted an offset of one-half of all taxes, penalties, and interest paid by him against the $175,000 obligation if he paid the taxes, penalties, and interest to the Internal Revenue Service (IRS) in full and presented proof of such payment to Theresa.

Charles made payments to Theresa totaling $27,750. In October 1985, he filed for bankruptcy and attempted to discharge the remainder of the obligation. Theresa moved to block the discharge. On February 29, 1988, Theresa and Charles stipulated in the bankruptcy case that the payments were "for purposes of this cause" agreed to be "in the nature of alimony." They also agreed that the outstanding balance on the obligation was $147,250 and that the payments should be reduced from $3,000 to $1,500 for 98 months, with one final payment of $250. The first payment was due on March 1, 1988, and it was expressly agreed that the offset provision for any payments made on the back taxes still applied. No interest rate was mentioned. After reviewing the stipulated facts, the bankruptcy court found the payments due Theresa were "in the nature of alimony," i.e., for her support, and as such were nondischargeable in bankruptcy. 11 U.S.C. § 523(a)(5) (1986). After the bankruptcy court's judgment in March 1988, Charles did not make any payments to Theresa.

In 1988, Theresa filed a motion for contempt with the divorce court. After a hearing on September 6, 1988, the trial court found:

... that [Charles] was ordered to pay to [Theresa] $175,000, bearing interest at the rate of 6% per annum and payable at the rate of $3,000 per month, beginning on the 1st day of June, 1985, and a like payment to be due and payable on the same day of each succeeding month thereafter until said $175,000 with interest has been fully paid. Further, the Court finds that the aforementioned $175,000 obligation was expressly referable to the property of the parties which was owned by the parties and in the possession of [Charles] at the date of the entry of the Decree of Divorce and that said property was apportioned by the Court and that the $175,000 sum awarded to [Theresa] was a part of the settlement of the marital estate to her in the divorce and that it was expressly the holding of the Court that with respect to the $175,000 obligation [Charles] was designated a constructive trustee for [Theresa] in holding the community assets particularly insofar as the $175,000 share was concerned that was awarded to [Theresa].

The court found that Charles had failed to make the ordered payments from February 1, 1986 through September 1, 1988, and that he was in arrears in the amount of $81,000. The court found Charles in contempt and ordered that he be committed to the county jail for six months. A writ of commitment was issued on March 17, 1989, and Charles was taken into custody on April 3, 1989.

A Motion to Suspend Commitment was subsequently filed by Charles and joined by Theresa. ¹ The court heard the joint motion on April 10, 1989, and signed an Order Suspending Enforcement of Contempt Order on April 11, 1989. ² The contempt order was suspended on the following terms and conditions:

(1) That [Charles] pay to [Theresa] the sum of $3,000.00 in cash, the receipt of which is acknowledged by [Theresa].

(2) That [Charles] reduce the $78,000 arrearage ... by paying to [Theresa] the sum of $1,500 per month, beginning on the 20th day of May, 1989, and [continuing with such monthly payments] until the remaining arrearage of $78,000 has been fully paid.

(3) [address at which payments were to be delivered to Theresa]

(4) All other payments required pursuant to the Decree of Divorce are suspended until the entire arrearage of $81,000 is paid as provided herein at which time any balance then remaining for the obligation pursuant to the Decree of Divorce shall be paid at the rate of $1,500 per month until paid in full.

Charles made monthly payments totaling $114,000, before ceasing payments in August 1995. Theresa then demanded that he continue paying because, according to her calculations, he had not met his obligation. In October 1995, Theresa filed a motion to revoke the Order of Suspension. In November 1995, she filed a motion to compel discovery.

In October 1995, Charles filed a motion for clarification and for declaratory relief. Charles asked the divorce court: (1) to consider the stipulated agreement, and its acceptance by the bankruptcy court, to be a modification of the divorce decree, (2) to allow him credit for payments on the marital tax debt, and (3) to find that he had fully paid the obligation set out in the divorce decree. Moreover, Charles claimed that he had overpaid his obligation by nearly $15,000 and requested reimbursement for that sum.

On March 14, 1996, the trial court heard the parties' motions. After hearing all the evidence and examining all the exhibits, the court denied Theresa's motion to revoke the Order of Suspension and motion to compel discovery. The court granted Charles' motion for clarification and for declaratory relief.

Although Charles had requested modification, not clarification, of the divorce decree to comport with the terms of the stipulated facts made in conjunction with his bankruptcy filing, the trial court decided that the Order of Suspension needed clarification. The court made and filed Findings of Fact and Conclusions of Law. Finding number nine states:

9. Pursuant to Judge Margarito Garza's order of April 1, 1989, ³ no interest accrued on the $147,250.00 balance due until $81,000 was paid on such unpaid balance. Credits for tax payments for the years 1982 and 1985 are allowed on the balance as paid. After $81,000.00 had been paid, interest at the rate of six percent (6%) per annum from October 21, 1992 until paid.

Additional findings determine (1) the outstanding balance as of the date of the prior order to be $147,250, (2) Charles was due credit for settling the marital tax debts, and (3) Charles overpaid Theresa by $1,305.30.

Charles initially argues that the bankruptcy court's finding--that the payments due Theresa were "in the nature of alimony"--changed the payments into alimony. Because the bankruptcy code ⁴ provides that payments functioning to support or maintain the recipient may be based on a property settlement agreement or other order of a court of record, we conclude the bankruptcy court's finding did not transmute the payments from Theresa's share of the parties' property...