Eugene Mosley v. Pamely Mosley (Davis) and Allette B. Williams--Appeal from 387th District Court of Fort Bend County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00425-CV

__________

EUGENE MOSLEY, Appellant

V.

PAMELA MOSLEY (DAVIS) AND ALLETTE B. WILLIAMS, Appellees

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-120562

MEMORANDUM OPINION

Appellant, Eugene Mosley ( Mosley ), appeals the trial court s order granting a motion to compel filed by his ex-wife, Pamela Mosley Davis, and her attorney, Allette B. Williams, appellees (collectively Davis ). The order sanctioned Mosley $1,000 for his failure to comply with the final decree of divorce. Mosley argues that the trial court erred in awarding sanctions. We affirm.

Background

On February 11, 2003, the trial court entered a divorce decree for Davis and Mosley. Mosley was ordered to give Davis, among other things, a Promissory Lien Note for $6,244.50 and the keys and remote to the couple s Nissan van. Following the divorce, Davis sent numerous letters to Mosley concerning the turnover of these items, but rarely obtained a response. On December 15, 2003, Davis filed a motion to compel requesting that the trial court order Mosley to comply with its divorce decree and also requesting reasonable attorney s fees. Although the title of the motion was a motion to compel, the body of the pleading complied with the statutory requirements of a motion for the enforcement of a divorce decree under the Texas Family Code and included a notice of oral hearing. // Mosley was served with a copy of this pleading and a citation to appear. Mosley filed an answer and a motion for sanctions against Davis.

A hearing was held on February 27, 2004, 21 days after Mosley was served with citation. At the hearing, attended by counsel for both Mosley and Davis, the trial court ruled in favor of Davis and ordered that he comply with the Decree of Divorce. Davis also requested attorney s fees of approximately $4,000, and the court heard testimony from Davis s attorney regarding attorney s fees. The trial court questioned whether it had the authority to grant attorney s fees on a motion to compel that was not related to discovery. The trial court stated that, if Davis was interpreting the proceeding as a motion for enforcement and, if that was the basis for requesting attorney s fees, then the court would have to reset that portion of the hearing and get [Mosley] down here and give him an opportunity to respond as to whether he should be held in contempt and/or whether attorney s fees should be assessed.

During the hearing, Davis s counsel testified regarding her repeated attempts to resolve the dispute without court intervention. She also submitted all the letters sent to Mosley s counsel requesting that Mosley comply with the Decree of Divorce. When the court asked Mosley s counsel why her office had not responded to these numerous requests, she responded I understand, Your Honor, and I cannot speak for anything that happened before I got my hands on the file. The court stated that the entire proceeding might have been avoided had Mosley s counsel simply responded to Davis s written requests for compliance with the Decree of Divorce in a timely manner. After confirming that Mosley had been served with citation and a copy of Davis s pleading, and had received the notice of the hearing, the trial court ordered sanctions against Mosley in the amount of $1,000 for failing to comply with the Decree of Divorce. Pursuant to the court s order, the $1,000 was payable directly to Davis s attorney.

In his sole point of error, Mosley argues that the trial court erred in awarding sanctions in this case for three reasons. // First, Mosley argues that the court had no authority to enforce the decree and, thus, it had no authority to sanction him for failing to comply with the decree. Second, Mosley argues that the sanction award violates his due process rights. Finally, he argues that there was no evidence supporting the award of sanctions in this case.

Authority to Enforce Property Division

First, Mosley argues that the court did not have the authority to enforce the decree because Davis did not file a suit to enforce pursuant to section 9.001(a) of the Texas Family Code. Mosley argues that, without this pleading before it, the trial court could not enter an order enforcing the decree and thus it had no authority to sanction him for not complying with the decree. We disagree.

Whether a trial court has subject matter jurisdiction over a matter presents a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). We review questions of law de novo. Id.

The Family Code authorizes trial courts to act on their own motion to enforce property divisions in divorce decrees. Section 9.001(a) provides that a property division in a divorce decree may be enforced by the filing of a suit for enforcement by any party affected by the decree. Tex. Fam. Code Ann. 9.001(a) (Vernon 1998). Trial courts, however, are not required to wait until the filing of a suit to enforce before issuing orders enforcing a divorce decree. Pursuant to sections 9.006 and 9.009, a trial court may, on its own motion, order the delivery of existing property from one party affected by the divorce decree to another party. See Burton v. Burton,734 S.W.2d 727,728 (Tex. App. Waco 1987, no writ). Section 9.006 provides the court with the authority to enforce a decree on its own motion and states in pertinent part that: Further orders may be entered to enforce the [property] division, but these orders shall be limited to orders in aid of or in clarification of the prior order. Tex. Fam. Code Ann. 9.006(b) (Vernon 1998). Similarly, section 9.009 provides in pertinent part that: To enforce the division of property made in a suit of divorce or annulment, the court may make an order to deliver the specific existing property awarded. Id. 9.009. Accordingly, the trial court had the authority to issue an order enforcing the Decree of Divorce.

Sanctions

Mosley next argues that the sanctions award violated his constitutional due process rights. Although (1) Mosley received 15 days written notice that a hearing would be held concerning his failure to comply with the Decree of Divorce and (2) Mosley s counsel was present at the hearing and presented his own motion for sanctions against Davis, Mosley argues that he was not given adequate notice of the hearing and the opportunity to defend himself against sanctions.

A trial court s imposition of sanctions is reviewed under an abuse of discretion standard. In re Max Bennett, 960 S.W.2d 35, 40 (Tex. 1997); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex. 1992). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985).

Under Texas Rule of Appellate Procedure 33.1(a), in order to preserve a complaint for appellate review, a party must have presented a request, objection, or motion to the trial court stating specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). A ruling from the trial court on the request, objection, or motion must be obtained. Id. This rule applies, inter alia, to constitutional challenges. See, e.g., City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986); Cannon v. Lemon,843 S.W.2d 178, 183 (Tex. App. Houston [14th Dist.] 1992, writ denied). Here, Mosley never complained to the trial court that he had no or inadequate notice that sanctions could be imposed against him. Instead, the first time he makes this complaint is on appeal, and, thus, the complaint is waived. // See Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App. Houston [1st Dist.] 1996, no writ) (finding waiver because attorney never gave trial court opportunity to correct alleged error of imposing sanctions without notice).

Evidence Supporting SanctionsFinally, Mosley argues that there was no evidence to support the exercise of the trial court s inherent power to sanction him. Specifically, Mosley argues that there was no evidence to support a finding that he or his counsel acted with bad faith or interfered with any of the core functions of the court. We disagree.Trial courts have the inherent power to, sua sponte, sanction parties and their attorneys for certain types of wrongful conduct. Kutch v. Del Mar College, 831 S.W.2d 506, 511 (Tex. App. Corpus Christi 1992, no writ). This inherent power is strongest when the conduct complained of interferes with one of the core functions of the judiciary. Id. The violation of a court order relating to the court s management and administration of a particular legal claim is a significant interference with one or more of the judiciary s core functions. Id. In the instant case, the trial court heard evidence (1) that Mosley failed to comply with the divorce decree after multiple requests to do so, (2) that his counsel s failure to timely respond to these requests prevented both the court and Davis from concluding this litigation, and (3) that his counsel had no explanation for the delay in her office s response to Davis s requests. Such conduct is a significant interference with the administration of justice and is sanctionable. Accordingly, we hold the evidence in this case supports the trial court s assessment of some sanction against Mosley for his conduct based on its inherent power.Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.