Roy Franklin Edmonds v. Martha Edmonds Gray--Appeal from 321st District Court of Smith County

NO. 12-07-00258-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROY FRANKLIN EDMONDS, APPEAL FROM THE 321ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

MARTHA EDMONDS GRAY,

APPELLEE SMITH COUNTY, TEXAS

NO. 12-07-00270-CV

IN RE: ROY EDMONDS ORIGINAL PROCEEDING

MEMORANDUM OPINION

Roy Franklin Edmonds brings a parallel interlocutory appeal and mandamus proceeding complaining of the trial court s order appointing a receiver and awarding Roy $6,000.1 In the interlocutory appeal, we affirm in part and dismiss for want of jurisdiction in part. We also conditionally grant Roy s petition for writ of mandamus in part and deny it in part.

Background

Roy and Martha Edmonds Gray were divorced on March 10, 2006. In the agreed final decree of divorce and contract, the parties agreed that the real property and house located on Lake Tyler East ( Lake Tyler East property ) should be sold for a mutually agreed upon price. The net sales proceeds of the Lake Tyler East property were to be divided as follows: (1) one-half of the sales proceeds or the sum of $600,000, whichever was greater, to Martha; (2) the sum of $150,000 to Martha for her interest in real property awarded to Roy as his separate property; (3) the sum of $22,550 to Martha, being one-half of the appraised value of real property awarded to Roy as his separate property; (4) one-half of the value of an annuity account to Martha, which account was awarded to Roy as his separate property; and (5) the rest, residue, and remainder from the net sales proceeds to Roy. More specifically, Roy was awarded the rest, residue, and remainder, if any, of the sales proceeds from the sale of the Lake Tyler East property as his separate property. His portion was to be determined in accordance with the above provisions pertaining to the sale of the property. Finally, the trial court specifically reserved the right to enter further orders to clarify and enforce the decree, including all relief afforded by sections 9.001 through 9.014 of the Texas Family Code.

On July 28, 2006, the trial court signed an agreed protective order, finding that a threat of family violence had occurred and that a threat of family violence was likely to occur in the future. In particular, the protective order prohibited Roy from communicating in any manner with Martha except through his attorney. On October 26, 2006, Martha filed a petition for enforcement of the property division and a motion for appointment of a receiver and/or a judicial foreclosure of the owelty of partition and lien created by the trial court to equalize the property division. In her motion, Martha alleged that she and Roy could not agree on the terms of sale for the Lake Tyler East property. Further, she stated that, unless a receiver was appointed immediately to take charge and control of the property, the Lake Tyler East property would not be sold because of Roy s actions and omissions. If the property was not sold, Martha states, she would not receive the money awarded to her in the divorce decree. Roy filed a general denial and a plea to the jurisdiction alleging that it was beyond the power of the trial court to amend, modify, alter, or change the substantive division of property approved in the divorce decree.

On May 8, 2007, the trial court held a hearing on the motion to appoint a receiver. Martha testified that she and Roy had not been able to sell the property. Further, she stated that she had not been able to have any type of communication or physical contact with Roy. The protective order against Roy was still in full force and effect. On cross examination, Martha stated that the property was listed in January 2006 for approximately $1.3 million. The Lake Tyler East property included a 6,000 square foot house. At one point, she and Roy agreed to lower the list price to $999,999 for ninety days. Then, the price was to go back to the original listing price. However, when the ninety day contract was up, Martha stated that she did not want the listing price to be raised. She admitted that Lake Tyler was substantially below normal levels when the property was initially listed for sale. Martha stated that she had no reason to believe that the house was not in good shape or not being properly maintained. She admitted that they had not had any offers on the property. According to Martha, the realtor believed it was because of the housing market and the water level in Lake Tyler. Martha stated that although the water level in Lake Tyler had risen, the housing market was still down. She stated that the realtor believed the listing price should be lowered to around $950,000. Martha stated that she wanted a receiver so that the property would sell faster.

Jason Gregory, the realtor for the Lake Tyler East property, testified that he did not believe it was unusual for a house or property of this type to be on the market for approximately eighteen months without an offer. According to Gregory, this property was representative of less than three percent of the market. He stated that, out of six showings of the house, five realtors did not like the nontraditional floor plan. Although Gregory admitted the water level in the lake was a problem in the past, he stated that the water level was close to normal. Gregory stated that the property s appraisal value was approximately $1.1 million. If he wanted to sell the house and property quickly, he would lower the price to $999,000. Although there were no offers when the price was initially lowered to that amount, Gregory blamed that on the lack of water in Lake Tyler. However, even at the lower listing price, he could not guarantee how long the house and property would remain on the market. If Gregory wanted to sell the property in thirty days, the listing price would have to be lowered dramatically, such as to the trial court s suggested $750,000 listing price, or the property would have to be sold at auction. He admitted that there was no reason the property could not be sold in the traditional manner, but said that he could not guarantee when it would be sold.

Roy testified that Lake Tyler s water level directly affected the sale of the property. According to Roy, selling the property within the next thirty days was very unreasonable. Further, he stated that if the trial court ordered a fire sale of the property by a receiver, it would be financially devastating to him and he would not get any money. Roy stated that they had an opportunity to sell the house because Lake Tyler was only two feet below normal. He also stated that he was paying $7,000 a month to maintain the property and that he was currently living in the house. Based on his knowledge of properties in the area and the lake level, Roy believed that the property could sell for close to the original listing price.

Danny Burks, a broker associate with Coldwell Banker United Realtors in Tyler, Texas, testified that the property was a limited inventory property, or one of few such properties. In order to sell quickly, he stated, the house needed to be professionally furnished and staged. He believed that if the decorations and furnishings that were in the house before Martha moved out were restored to the property, the sales price would increase by two to seven percent. In Burks s opinion, the lack of furnishings along with the lake levels and the time of year may have combined to delay the sale of the property. However, he agreed that eighteen months without a sale was a long time. He believed that if the property were not staged, it would need to be listed below $1 million. Further, Burks testified that sixty days would not be a reasonable time in which to sell the property.

At the conclusion of the hearing, the trial court granted Martha s motion for appointment of a receiver. On June 22, 2007, the trial court signed an interlocutory order on the petition for enforcement finding that it had jurisdiction over the subject matter and parties in this case. Further, the order included findings that certain terms of the divorce decree were not specific, that the trial court had the power to enforce the divorce decree pursuant to section 9.001 of the Texas Family Code, and that the relief granted by the court was authorized pursuant to sections 9.002, 9.006, 9.007, and 9.008 of the Texas Family Code. Thus, the trial court ordered that a receiver be appointed and found that appointment of a receiver was necessary to sell the property.

The trial court also signed an interlocutory order appointing a receiver. The trial court ordered the receiver to take charge and exclusive use and possession of the property and sell the property, as is, for the best price in no less than 180 days.2 Further, the trial court ordered that Roy receive $6,000 off the top of the sale proceeds as reimbursement for maintaining the property and that neither party initiate any contact or communication with the receiver, ordering that all communication with the receiver be made through the parties attorneys. Finally, the trial court ordered that any contract for sale be presented to the court through a receiver s report of sale and motion for confirmation. Roy brought a parallel interlocutory appeal and mandamus proceeding complaining of the trial court s order appointing a receiver and awarding Roy $6,000 as reimbursement for maintenance of the property. We stayed the trial court proceedings pending our resolution of the issues raised here. We consolidate the interlocutory appeal and the mandamus proceeding for purposes of this opinion.

Interlocutory Appeal or Mandamus

We must first determine whether interlocutory appeal or mandamus is the appropriate avenue for review. Roy argues in both proceedings that the trial court lacked jurisdiction to order the appointment of a receiver. He also argues in both proceedings that the trial court lacked jurisdiction to award him $6,000 as reimbursement for maintenance of the property. Consequently, he concludes, the order is void in its entirety.

Mandamus is an extraordinary remedy available to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002). However, if an order is void, a relator need not show it did not have an adequate appellate remedy. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).

As a general rule, only final judgments are appealable. Tex. Civ. Prac. & Rem. Code Ann. 51.012 (Vernon 1997). One exception to this rule is an interlocutory order [appointing] a receiver or trustee. Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(1) (Vernon Supp. 2007). However, we construe this statute strictly because it is a narrow exception to the general rule that only final judgments and orders are appealable. Montgomery Cty. v. Fuqua, 22 S.W.3d 662, 665 (Tex. App. Beaumont 2000, pet. denied)(quoting Tex. Dep t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App. Austin 1999, no pet.)).

To the extent that Roy challenges the appointment of a receiver, the trial court s order is appealable. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(1). Accordingly, we review this portion of the order by interlocutory appeal. The monetary award neither depends upon, nor relates to, the appointment of a receiver. Therefore, the provision awarding $6,000 to Roy as reimbursement for maintenance of the property is not within the parameters of appointing a receiver. Because this award is not one of the interlocutory orders made appealable by section 51.014, mandamus is the proper avenue for review. Accordingly, we review by mandamus the provision of the trial court s order awarding $6,000 to Roy as reimbursement for maintenance of the property.

Appointment of Receiver

In his first issue in the interlocutory appeal, Roy contends that the trial court exceeded its authority in appointing a receiver, which renders void that portion of the trial court s order. More specifically, he argues that the trial court s order appointing a receiver is a substantive modification of the property division, and that the order to sell the property in no less than 180 days defeats his property rights because his portion of the sales proceeds will, in all likelihood, be reduced. Further, Roy contends that the evidence is legally and factually insufficient to support the appointment of a receiver. Martha disagrees, arguing that the trial court had jurisdiction to enforce its decree by appointing a receiver and that there was sufficient evidence to support the trial court s exercise of discretion as a matter of law to support the appointment of a receiver.

Jurisdiction of Trial Court to Appoint Receiver

The court that rendered the decree of divorce retains the power to enforce the property division. Tex. Fam. Code Ann. 9.002 (Vernon 2006). A court may render further orders to enforce the division of property made in the decree of divorce to assist in the implementation of or to clarify the prior order. Tex. Fam. Code Ann. 9.006(a) (Vernon 2006). However, a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. Tex. Fam. Code Ann. 9.007(a) (Vernon 2006). Such orders may more precisely specify the manner of carrying out the property division previously ordered. Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App. El Paso 1995, no writ).

Receivership is an extraordinarily harsh remedy and one that courts are particularly loathe to utilize. Rusk v. Rusk, 5 S.W.3d 299, 306 (Tex. App. Houston [14th Dist.]1999, pet. denied). However, section 7.001 of the Texas Family Code grants a trial court broad authority to divide marital property in a manner that it deems just and right upon the dissolution of marriage. Tex. Fam. Code Ann. 7.001 (Vernon 2006); Rusk, 5 S.W.3d at 306. That broad authority sometimes includes the power to enlist the aid of a receiver to effectuate the trial court s orders and judgments. Rusk, 5 S.W.3d at 306-07.

In this case, the trial court, as the court that rendered the divorce decree, retained the power to enforce the property division. See Tex. Fam. Code Ann. 9.002. Both parties agreed in the divorce decree that the Lake Tyler East property would be sold for a mutually agreed upon price. Further, Roy agreed that he would receive the rest, residue, and remainder of the net sales proceeds, if any, after the monetary awards to Martha were taken from the proceeds. Contrary to his argument, Roy never agreed on a specific monetary award or, in fact, any award at all from the net sales proceeds. Further, since the divorce decree, the parties had been unable to sell the property and their relationship had become governed by a protective order. As such, the trial court found that appointment of a receiver was necessary to effectuate the sale of the property. We cannot conclude that appointment of a receiver amends, modifies, or alters the substantive division of property. See Tex. Fam. Code Ann. 9.007(a). In this case, the appointment of a receiver simply specifies the precise manner of carrying out the property division previously ordered, i.e., the sale of the property. See Rusk, 5 S.W.3d at 306; Dechon, 909 S.W.2d at 956. Because the appointment of a receiver does not amend, modify, alter, or change the substantive division of property in the divorce decree, the trial court had the power to appoint a receiver.

Appointment of Receiver

We review an appointment of a receiver for an abuse of discretion. Sheikh v. Sheikh, No. 01-05-01022-CV, 2007 WL 4387249, at *3 (Tex. App. Houston [1st Dist.] Dec. 13, 2007, no pet. h.). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Id. at 241-42. In other words, we must determine whether the act was arbitrary or unreasonable. Id. at 242. The mere fact that a trial court may decide a matter within its discretionary authority in a manner different from that of an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

Under the abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds, but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P., 98 S.W.3d 312, 313 (Tex. App. Houston [1st Dist.] 2003, pet. dism d); Farish v. Farish, 921 S.W.2d 538, 542 (Tex. App. Beaumont 1996, no writ). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App. Houston [1st Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App. San Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.

Because the decree of divorce was agreed to by both Martha and Roy, its construction is governed by the law of contracts. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App. San Antonio 2002, no pet.). When construing an agreement incident to divorce, a court must look to the intentions of the parties as they are manifested in the written agreement. Id. at 879-80. If a contract is unambiguous, the courts will give effect to the intention of the parties as expressed in the agreement. Chandler v. Chandler, 991 S.W.2d 367, 396 (Tex. App. El Paso 1999, pet. denied). Every attempt must be made to harmonize all the provisions within the agreement. Id. A contract is ambiguous only if there is uncertainty as to which of two meanings is correct and is a question of law for the court. Id.

Generally, where no time for performance is stated in a contract, the law will imply a reasonable time. Cherco Prop., Inc. v. Law, Snakard & Gambill, 985 S.W.2d 262, 266 (Tex. App. Fort Worth 1999, no pet.). What is reasonable depends on the facts and circumstances as they existed at the date of the contract. Id. Factors include the nature and character of the action and the difficulty of accomplishing it, as well as the purpose of the agreement. Pearcy v. Envtl. Conservancy of Austin and Cent. Tex., Inc., 814 S.W.2d 243, 246 (Tex. App. Austin 1991, writ denied). Where the material facts are undisputed, the question of what is a reasonable time is a matter of law. Id.

Here, both parties intended to sell the Lake Tyler East property as evidenced in the divorce decree. Since the divorce, the parties had been unable to sell the property or garner any offers. Because there was no timetable for the sale of the property in the divorce decree, we will imply a reasonable time. See Cherco Prop., Inc., 985 S.W.2d at 266. To determine what time is reasonable, we must examine the relevant facts and circumstances on the date of the divorce decree, the purpose of the agreement, the nature and character of selling the property, and the difficulty in accomplishing the sale. See Pearcy, 814 S.W.2d at 246.

According to the parties and two realtors, Gregory and Burks, there were a variety of reasons for the delay in selling the property. First, the level of Lake Tyler East at the time of the divorce was substantially below normal. Second, the housing market was down. Third, the floor plan of the house on the property was nontraditional and was representative of only three percent of the housing market, or a limited inventory property. Gregory blamed the lake levels for the lack of offers when the listing price was lowered in the past. Although the purpose of the agreement was to sell the house and award Martha certain sums from the net sales proceeds, the low lake levels, housing market, and nontraditional floor plan made selling the property at the time of divorce extremely difficult.

Martha testified that she agreed to lower the listing price in order to sell the house faster even though lowering the price previously did not help sell the property. Burks testified that eighteen months on the housing market was a long time, but stated that sixty days was not a reasonable time in which to sell the property. He also stated that, without professional furnishings and staging, the house would not sell quickly. Roy stated that a thirty day timetable was very unreasonable, and believed that the property could sell for close to the listing price. Gregory and Martha agreed that, in order to sell the property quickly, the listing price would have to be lowered and, in Gregory s opinion, dramatically lowered if the sale was to be within thirty days. Gregory also admitted that there was no reason the property could not be sold, but he could not guarantee when it would be sold. At the time of the hearing, the lake levels were close to normal. We also note that the relationship between Roy and Martha had become governed by a protective order, thus making communication between the parties without their respective attorneys impossible.

At the close of the hearing, the trial court ordered the receiver to sell the property, as is, for the best price in no less than 180 days, or six months.3 Thus, the sale of the property was to take place, at a minimum, two years after the divorce decree. All parties agreed that the house could be sold, even if the listing price had to be lowered. Moreover, one of the major factors that all parties agreed contributed to the lack of a sale, the low lake level, was no longer regarded as a hindrance. Even accepting the difficulty of selling the house based on the initial low lake levels, nontraditional floor plan, lack of furnishings and staging, and housing market, a minimum of two years in which to sell the property after the divorce seems reasonable. See Cherco Prop., Inc., 985 S.W.2d at 266. Because there was some evidence of a substantive and probative character to support the trial court s order appointing a receiver, the trial court did not abuse its discretion. See Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18. Accordingly, we overrule Roy s first, second, and third issues.

Monetary Award

In his petition for writ of mandamus, Roy argues that the provision in the trial court s order awarding him $6,000 as reimbursement for maintenance of the property is a substantive modification of the property division in the divorce decree. Therefore, he concludes, the provision is void for lack of subject matter jurisdiction.

Award of $6,000 to Roy

Mandamus is not available absent an abuse of discretion by the trial court. See In re J.D. Edwards World Solutions Co., 87 S.W.3d at 549. A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. Although a court may render further orders to enforce the division of property made in the decree of divorce to assist in the implementation of or to clarify the prior order, it may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. Tex. Fam. Code Ann. 9.006(a), 9.007(a). An order that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce is beyond the power of the divorce court and is unenforceable. Tex. Fam. Code Ann. 9.007(b). Section 9.007 of the Texas Family Code applies to a court s subject matter jurisdiction, and orders violating its restrictions are void. Gainous v. Gainous, 219 S.W.3d 97, 107-08 (Tex. App. Houston [1st Dist.] 2006, pet. denied).

The divorce decree specified in great detail the division of the net sales proceeds of the Lake Tyler East property, awarding Martha specific sums of money from those proceeds first before awarding Roy the rest, residue, and remainder, if any, of those proceeds. The award of $6,000 off the top of the sales proceeds to Roy as reimbursement for maintenance of the property substantially modifies and changes the division of property made or approved in the divorce decree. See Tex. Fam. Code Ann. 9.007(a). Therefore, the trial court abused its discretion in ordering the award, and mandamus is appropriate.4

Conclusion

Having overruled Roy s first, second, and third issues in his interlocutory appeal, we affirm the trial court s interlocutory order on motion for appointment of receiver insofar as it pertains to the appointment of a receiver. Because mandamus is the proper avenue for review of the award of $6,000 to Roy, we dismiss for want of jurisdiction the portion of Roy s interlocutory appeal pertaining to the provision awarding $6,000 to Roy as reimbursement for maintenance of the property.

Because Roy has an adequate remedy by appeal to challenge the portion of the trial court s order appointing a receiver, we deny Roy s petition for writ of mandamus insofar as it seeks an order compelling the trial court to vacate this portion of its order. However, we conditionally grant Roy s petition in part insofar as it seeks an order compelling the trial court to vacate the portion of its order that requires an award to Roy of $6,000 off the top of the sales proceeds as reimbursement for maintenance of the property.

We trust that the trial court will promptly vacate the portion of its June 22, 2007 order that awards $6,000 to Roy as reimbursement for maintenance of the property. The writ will issue only if the trial court fails to comply with this court s opinion and order within ten days. The trial court shall furnish this court within the time for compliance with this court s opinion and order, a certified copy of its order evidencing such compliance. Our stay of the trial court proceedings is lifted.

SAM GRIFFITH

Justice

Opinion delivered February 29, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The respondent is the Honorable Carole W. Clark, Judge of the 321st Judicial District Court, Smith County, Texas. The real party in interest is Martha Edmonds Gray.

2 In its oral pronouncement appointing a receiver, the trial court ordered the sale of the property in no more than 180 days. However, if there is a conflict between oral pronouncements made by a trial court and its written order, the matters set forth in the written order control. See In re JDN Real Estate - McKinney L.P., 211 S.W.3d 907, 914 n.3 (Tex. App. Dallas 2006, no pet.) Thus, the trial court s stipulation that the property be sold in no less than 180 days is controlling.

3 See footnote 2.

4 In determining whether mandamus should issue, we need not address the second prerequisite to mandamus, the availability of an adequate remedy by appeal, because we have concluded that this portion of the trial court s order is void. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605 (relator need not show that it has no adequate remedy by appeal if order is void). However, in determining the proper avenue for reviewing this portion of the order, we concluded that this portion of the order is not appealable. Had we been presented with a petition for writ of mandamus only, our consideration of appealability would have been unnecessary. See id.