Martinez, Maricel V. v. Martinez, Guillermo--Appeal from 103rd District Court of Cameron County

NUMBER 13-99-223-CV 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

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MARICELA V. MARTINEZ, Appellant,

v.

GUILLERMO MARTINEZ, Appellee.

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On appeal from the 103rd District Court
of Cameron County, Texas.

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O P I N I O N

Before Chief Justice Seerden, and Justices Hinojosa and Kennedy(1)

Opinion by Justice Kennedy

This case involves a suit for divorce in which the divorce was granted and orders were entered, including an order for partition of the community property. The appeal is from an order of the trial court appointing a receiver to take charge of and sell real estate belonging to the parties jointly and subsequent orders for the payment of taxes and receiver's fees by appellant. In the order for appointment of the receiver to sell the property, the judge makes a finding that "the decree of divorce entered in this cause is not clear as to the appropriate time for the sale of the property."

Appellant's brief presents four issues which, together, challenge the authority (jurisdiction) of the trial court to modify the terms of the original decree approximately fourteen months after the original decree was entered. The relief sought is that the orders of the trial court be reversed. No other brief has been filed in opposition to appellant's brief.

The issues raised in this appeal are governed by the family code, to wit:

9.006 Enforcement of Division of Property

(a) except as provided by this subchapter and by the Texas Rules of Civil Procedure, the court may render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order. (Emphasis added)

(b) the court may specify more precisely the manner of affecting the property division previously made if the substantive division of property is not altered or changed.

(c) an order of enforcement does not alter or affect the finality of the decree of divorce or annulment being enforced.

9.007 Limitation on Power of Court to Enforce

(a) a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property.

(b) an order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable. (emphasis added)

(c) the power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.

Tex. Fam. Code Ann. 9.006, 9.007 (Vernon 1998)

The final decree of divorce herein, under the provision "division of property," stated "upon sale of the [homestead] petitioner, Marisela V. Martinez shall receive 50 percent of the sale proceeds" and "upon sale of the [homestead] respondent, Guillermo Martinez shall receive fifty percent of the sale proceeds less any monies owed to his parents for monies previously advanced to Guillermo Martinez and/or Marisela V. Martinez." No more was said about the division of the real estate or the sale thereof. We hold that the trial court had the authority by virtue of section 9.006 supra to order the property sold and, of necessity, to provide for a neutral party to effectuate the sale. Because it is not reasonable to expect a third party, designated as receiver, to serve without pay, we hold that the authority granted the trial court by section 9.006 extends to authorize the awarding of a fee for the receiver's services.

We further hold that the delinquent property taxes on the real estate constitute a lien on the real estate and, because, in order to sell real property, it is necessary to remove all liens against the property, the order that petitioner, Marciela Martinez, pay these delinquent taxes is an order "to assist in the implementation, and to clarify a prior order."(2)

Therefore, we deny the relief sought by appellant. We AFFIRM the judgments of the trial court, specifically the judgments entered on September 10, 1998, November 25, 1998, and March 4, 1999.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 10th day of August, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).

2. Petitioner has had possession of the house since the original divorce decree.