Wright, Thomas v. Wright, Judy--Appeal from 383rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THOMAS WRIGHT, )

) No. 08-01-00361-CV

Appellant, )

) Appeal from the

v. )

) 383rd District Court

JUDY WRIGHT, )

) of El Paso County, Texas

Appellee. )

) (TC# 92-11954)

)

MEMORANDUM OPINION

This appeal is from the denial of a turnover order sought by the Appellant pursuant to Tex.Civ.Prac.&Rem.Code Ann.' 31.002(b)(1)(Vernon Supp. 2003).

The Wrights were divorced in 1993. Judy Wright was awarded a portion of Thomas Wright=s retirement benefits from the El Paso Fireman and Policeman=s Pension Fund. In July 2001, Appellee petitioned for enforcement and clarification claiming that Appellant had failed to pay the amounts she was entitled to pursuant to the divorce decree and a qualified domestic relations order (QDRO) and seeking a modification of the QDRO to provide for direct payment to her from the pension plan. On the day of the hearing on Appellee=s motion, Appellant filed a counter-claim for enforcement of a prior judgment and for a turnover action, effectively seeking to offset any arrearage or amounts payable under the QDRO. The motion was denied by the trial court.

Appellant brings a single issue which we understand to be that the evidence is legally insufficient. That is, he asserts that there is no evidence that his pension plan was a Aqualified@ plan and subject to an exemption under Tex.Civ.Prac.&Rem.Code Ann. ' 31.002.

In a bench trial, factual and legal sufficiency challenges to the trial court=s findings of fact are reviewable under the same standards that are applied in reviewing evidence supporting a jury=s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In considering a Ano evidence,@ or legal insufficiency point, we consider only the evidence that tends to support the jury=s findings and disregard all evidence and inferences to the contrary. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Leibman v. Grand, 981 S.W.2d 426, 429 (Tex.App. -El Paso 1998, no pet.). If more than a scintilla of evidence exists to support the questioned finding, the Ano evidence@ point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App. El Paso 1994, writ denied).

We review a turnover order under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). In conducting this review, we engage in a two pronged analysis: (1) Did the trial court have sufficient information upon which to exercise its discretion?; and (2) Did the trial court err in its application of discretion? Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App. El Paso 1998, no pet.). The traditional sufficiency of the evidence review, articulated above, comes into play when considering the first question. Id. at 592. We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision, or whether it is arbitrary and unreasonable. Id. The question is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); Lindsey, 965 S.W.2d at 592.

Appellant filed his application for turnover relief pursuant to Section 31.002(a) of the Texas Civil Practice and Remedies Code, which provides:

(a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:

(1) cannot readily be attached or levied on by ordinary legal process; and

(2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

Tex.Civ.Prac.&Rem.Code Ann. ' 31.002(a).

A court may not, however, enter or enforce an order that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute. Tex.Civ.Prac.& Rem.Code Ann. ' 31.002(f). The statute requires a factual showing that the judgment debtor has non exempt property that is not readily subject to ordinary execution. Schultz v. Fifth Judicial Dist. Court of Appeals of Dallas, 810 S.W.2d 738, 740 (Tex. 1991)(orig. proceeding). Upon proof of the necessary facts, it authorizes the trial court to order affirmative action by the judgment debtor and others to assist the judgment creditor in subjecting such non exempt property to satisfaction of the underlying judgment. Id.

There are no findings of facts and conclusions of law in the record before us. We therefore presume that the trial court made all necessary findings to support its judgment, and we will affirm based upon any legal theory finding support in the evidence. Tate v. Tate, 55 S.W.3d 1, 4 (Tex.App.--El Paso 2000, no pet.).

Appellant=s sole contention is that there is no evidence that his policeman=s pension was a qualified plan under ERISA or the Internal Revenue Code that would make Appellee=s rights in Appellant=s pension exempt from attachment, execution, and seizure in satisfaction of debt under Tex.Prop.Code Ann. ' 42.0021(a)(Vernon 2000). He relies on Rucker v. Rucker, 810 S.W.2d 793, 795-96 (Tex.App--Houston [14th Dist.] 1991, writ. denied)(It is the burden of a party seeking exemption from the turnover statute to prove entitlement to the exemption.). He ignores, however, that it was his initial burden to show that the debt owed him Acannot readily be attached or levied on by ordinary legal process.@ Tex.Civ.Prac.&Rem.Code Ann. ' 31.002(a). The trial court may only issue turnover order against a judgment debtor where Afactual showing@ is made that the judgment debtor (1) has property not readily subject to ordinary execution, and (2) has non exempt property. Schultz, 810 S.W.2d at 740; Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex.App.--San Antonio 2001, no pet.). There was simply no factual showing made by Appellant that would support a turnover order and the trial court properly refused to issue the order. We overrule the issue and affirm the judgment of the trial court.

August 15, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.