Post-Divorce Division: Opinions, June 12, 2018

The First District Court of Appeals released a memorandum opinion in Hazelwood v. Hazelwood, No. 01-17-00147-CV, concerning post-divorce division of property.

Husband and wife divorced in 2011. They signed an MSA and a decree was entered. In 2015, wife discovered documents that suggested husband had concealed several retirement accounts and other assets during the divorce. She filed a petition for post-divorce division of the omitted assets and then a supplemental petition for bill of review alleging husband committed fraud. In October 2016 they signed a second MSA which awarded all omitted property to wife, except for two Woodforest bank accounts, one of which belonged to his mother. After the second MSA was signed, husband discovered that his mother’s bank account number was incorrect in the MSA. He executed an affidavit regarding the mistake and how it should be corrected.

On November 7, 2016, the trial court entered a final order based on the MSA, which included the wrong account number. The next day, the parties’ attorneys filed an agreed motion to reform the final order to correct the error. On December 2, 2016, the trial court entered the reformed order, correcting the bank account digits.

In mid-December, wife’s attorney withdrew from representing her. Wife then filed a pro se motion for new trial, asserting she did not agree to the reformed order, that it decreased her award, and that her lawyer lacked authority to represent her when the agreed motion to reform the final order was filed. She also alleged that she discovered new evidence after the court signed the final order on November 7, 2016 indicating husband received oil production distributions during the marriage, despite husband’s representation in the 2011 MSA that he never received distributions or royalties from his oil production partnership. Wife also alleged husband transferred some retirement and life insurance assets to the partnership but she did not attach any evidence to the MNT in support of this assertion. A hearing was held on the MNT. Wife made arguments but no evidence was introduced at the hearing and the MNT was denied. Wife appealed.

Wife brought eleven issues on appeal. The first, that the 2011 divorce decree did not comport with the first MSA, was waived because wife did not make the argument in trial court and the error was not preserved. Her second, third, ninth, tenth, and eleventh issues were inadequately briefed and were thus waived.

As for issues four, five, and six, the COA found wife failed to demonstrate error. In her fourth issue, she argued the trial court erred by failing to vacate her supplemental petition, the one which included the bill of review, because she did not authorize the filing of the petition. But the trial court denied the request for bill of review, so it was unclear how the alleged error impacted the final order.

In her fifth issue, wife argued the trial court erred by failing to send her notice that the final order was signed on November 7, 2016, but she acknowledged that her attorney received notice of the final order and reformed final order.

In her sixth issue, she alleged her attorney lacked authority to represent her when he filed the agreed motion to reform the final order because the scope of the engagement excluded post-judgment work. The Court of Appeals found she failed to rebut the presumption that an attorney acts on behalf of a client with authority.

Wife’s seventh and eighth issues pertained to the trial court’s denial of the MNT. In her seventh issue wife alleged “that the court should have given her some relief from the agreed reformed order because her attorney acted without authority in filing the agreed motion to reform, because she had no notice of the entry of the final order or the agreed motion to reform, and because [husband]’s affidavit about the account number of Woodforest Bank account was made in bad faith.” In her eighth issue, she alleged the trial court erred by failing to hold a hearing on the allegation of newly discovered evidence she raised in her MNT.

A hearing on her MNT was held on February 9, 2017, at which she did not introduce any evidence to controvert husband’s affidavit, rebut the presumption that her husband lacked authority to act on her behalf, or any evidence to justify a new trial based on newly discovered evidence. The issues were overruled and the trial court was affirmed.








Overcoming a Premarital Agreement: Opinions, June 7, 2018

The Fourteenth Court of Appeals released a memorandum opinion in In re Veldekens, No. 14-16-00770-CV, primarily regarding a premarital agreement and the evidence necessary to overcome its separate property provisions.

The day before the parties married in 2007, they executed a premarital agreement which precluded the accumulation of community property during the marriage. Seven years later, wife filed for divorce. After a bench trial, the marital residence was confirmed as wife’s separate property. The husband appealed.

In his first issue, husband argued the trial court erred in ruling the marital property was wife’s separate property because he presented evidence that wife sold a one-half interest in the property to him, including a sales contract and a hand-written note acknowledging husband’s one-half interest. However, it appears from the opinion that either the husband did not provide or admit into evidence a copy of the purported sales contract or the sales contract itself failed to convey a one-half interest in the property to wife. Wife evidently testified that she did not intend to sell a one-half interest in the property to husband and the trial court could have determined her testimony was credible. And the trial court reasonably could have determined that the $50,000 paid by husband to wife was a gift. The Court of Appeals affirmed the trial court’s finding that the property was wife’s separate property and overruled the husband’s first issue.

This also led the COA to overrule the husband’s second issue. Under the terms of the premarital agreement, the parties were barred from making a claim for any property designated as separate property and making such a claim could entitle the other party to attorney’s fees for defending the claim. The Court of Appeals affirmed the trial court’s finding of attorney’s fees for wife in defending against husband’s claim for the marital property.

Finally, in his third issue, the husband alleged the trial court abused its discretion in not awarding him a full SPO. He made the novel argument that “[i]t is well past the time for Texas courts to discard the undefined legal vernacular of ‘best interest’ in resolving conservatorship issues and set forth viable guidelines for determining when a trial court can strip a parent of its alienable right to statutorily mandated periods of possession with his or her children.” The COA cited the Holley factors and then recited the trial court’s findings of fact that the husband uses abusive language around the children, calls the mother inappropriate and extremely vulgar names in the presence of the children, he becomes more frustrated and abusive toward the mother the longer his visitation period lasts, he is stressed by getting the children ready for school in the morning, the children are often stressed when the father participates in the morning routine, husband tended to exercise his possession at his parents’ house which was forty miles from the school, and for these reasons the children should not have overnights on Sunday or Thursday nights. The COA affirmed.