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.

 

 

 

 

 

 

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