ROBERT C. MINER, JR. v. MARY MINER--Appeal from 148th District Court of Nueces County

NUMBER 13-01-659-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  -  EDINBURG

ROBERT C. MINER, JR.,   Appellant,

v.

MARY MINER, Appellee.

On appeal from the 148th District Court

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Appellant, Robert Miner, Jr., appeals from the district court=s clarification and enforcement of a divorce award of shared profits from a software program. Mr. Miner argues through two issues that the court lacked jurisdiction to make substantive changes to the final decree of divorce. We affirm.

Robert Miner, Jr., and Mary Miner were married for twenty-six years preceding their divorce in October of 1996. The marital estate was divided between Mr. and Mrs. Miner in the final decree. Regarding E-file, a program developed by Mr. Miner, Ms. Miner was awarded a A20% net profits interest in E-File, Gas Measurement and Gauging Program, or if such asset is sold, 20% of net profit of sale.@ Ms. Miner filed suit seeking to hold Mr. Miner in contempt for failure to make any distributions from E-file. At the motion to enforce, Mr. Miner stated he had changed the system from its original format and argued that those changes were Athe same as a Model T becoming a Suburban.@

The trial court found that certain terms of the prior order were not specific enough to warrant contempt. The court, in the Order on Motion for Enforcement and Order Clarifying Prior Order, clarified Ms. Miner=s award with the following excerpt:

a 20 percent net profit ownership in the E-File software program and its successors, including but not limited to [sic] 1099 Express or any other name for 1099 software programs. The Anet profit@ will be computed as follows: The gross sales receipts less those expenses normally and ordinarily allowed as deductions by the Internal Revenue Services equals the net profit. MARY MINER will have a right to be paid 20 percent of the net profit on a semi-annual basis. MARY MINER will further have the right to audit any books and records of accounts reflecting income or expenses for such software sales and services. MARY MINER is also awarded 20 percent of the proceeds of sale of the software if, as, when it may be sold.

This appeal ensues from that clarification order.

Jurisdiction

Mr. Miner argues through two issues that the trial court exceeded its statutory authority when it made substantive changes to the final decree of divorce after it had lost jurisdiction to do so.[1]

After a judgment has become final and the trial court has lost its plenary power, the trial judge has only limited specific authority to change the judgment in any way. Tex. R. Civ. P. 329b. The court may not alter the division of property in a divorce decree except as provided in the rules of procedure and the enforcement subchapter of the family code. Tex. Fam. Code Ann. '' 9.006-9.012 (Vernon 1998 & Supp. 2002). If a court finds that the original form of the division of property is ambiguous or not specific enough to be enforceable by contempt, the court may enter a clarifying order to enforce compliance with the way the property was originally divided. Tex. Fam. Code Ann. ' 9.008 (Vernon Supp. 2002). Whether the trial court=s order is a clarification or an improper modification is a question of law subject to de novo review. See Tyler v. Tyler, 742 S.W.2d 740, 743 (Tex. App.BHouston [14th Dist.] 1987, writ denied).

Mr. Miner characterizes the clarification order as an improper modification. We find that the order does not impose an obligation where no such obligation previously existed. See McGehee v. Epley, 661 S.W.2d 924, 925-26 (Tex. 1983). Mr. Miner acquired no new liabilities. Rather, the order clarified ambiguities as to how net profits were to be computed and as to what programs were included in the final decree=s reference to E-file.

More specifically, Mr. Miner requested that his salary be included in the computation of net profits. The trial court declined to do so, recognizing that the proceeds from E-File had already been distributed on a A20 - 80 percent split.@ The clarification order stated that net profits will be computed by taking Agross sales receipts less those expenses normally and ordinarily allowed as deductions by the Internal Revenue Services.@ As for what programs were included in the final decree=s reference to E-file the court ordered that Mrs. Miner was awarded a A20% net profit ownership in E-File software program and its successors, including but not limited to [sic] 1099 Express or any other name for 1099 software programs.@

Accordingly, we hold that the clarification order did not alter the twenty percent originally awarded to Ms. Miner, nor the eighty percent awarded to Mr. Miner in the Final Decree of Divorce. The trial court did not change the respective liabilities or duties of the parties. See McLaurin v. McLaurin, 968 S.W.2d 947, 950 (Tex. App.BTexarkana 1998, no pet.). This order merely clarified how net profits were to be computed with regards to E-file.

As for appellant=s contention that inclusion of successive versions of E-File was improper, we find the holding in Rodrigue v. Rodrigue, 218 F.3d 432, 442-43 (5th Cir. 2000), cert. denied, 532 U.S. 907 (2001), to be informative on the issue of whether Ms. Miner maintains economic rights from Mr. Miner=s derivative works.

In that case, Mr. Rodrigue became a widely acclaimed and highly successful painter. He created numerous paintings both during the marriage and after, a number of which depicted a stylized and easily recognizable image of a blue dog. Notwithstanding the extensive analysis in Rodrigue concerning pre-emption between federal copyright law and Louisiana community property law, the Fifth Circuit Court of Appeals held that Ms. Rodrigue did own economic rights with respect to copyrights at issue and Afrom any derivatives thereof.@ Id. at 442-43

In the present case, when Mr. Miner was asked, in comparison of the two programs, whether Athe seed is there@ and it had Ato be cultivated,@ he answered in the affirmative. Notwithstanding the name change of the program, Mr. Miner admitted that both E-file and the Anew@ program printed out 1099s. The record also shows that initially Mr. Miner testified that E-file and the subsequent 1099 Express were the same and there was no difference between the two programs. Upon further questioning, however, he contended there were Anumerous@ differences as to format, such as changing from DOS to windows, and the name change.

In light of this evidence, we hold the trial court did not err in allowing reference to E-File to include successive versions. See Id. at 443-44. As such, we find no error in the trial court=s order clarifying the distribution of community property.

Accordingly, we hold the clarification order was not an improper modification. We hold it was issued to correct ambiguities found in the original final decree and enabled the terms of the original division of property to be enforced. See McGehee, 661 S.W.2d at 925-26; see also Tex. Fam. Code Ann. ' 9.008 (Vernon Supp. 2002) (Aon a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property@).

Appellant=s two issues challenging the clarification order are overruled.

We affirm the trial court=s clarification order.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 8th day of August, 2002.

[1] Both of appellant=s issues challenge whether the trial court=s clarification order was an improper modification. The second issue focuses on the order=s reference to E-File.