Opinion
NUMBER 13-16-00636-CV
02-01-2018
ADRIANA MORENO F/K/A ADRIANA MORENO RODRIGUEZ, Appellant, v. VICTORIANO C. RODRIGUEZ, Appellee.
On appeal from the 357th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellee Victoriano Rodriguez filed a "Petition for Enforcement of Property Division by Contempt," seeking complete transfer of a certificate of deposit (CD) from appellant Adriana Moreno to Rodriguez as set out in the divorce decree. Additionally, Rodriguez filed a "Motion to Clarify Pursuant to Family Code Sec. 9.008." Rodriguez obtained a Clarification Order (Order) of his and Moreno's divorce decree, and Moreno was ordered to "appear, cooperate and execute or produce all documents necessary, to fully transfer the Certificate of Deposit...." By five issues Moreno appeals the order instructing her to transfer the CD. Moreno argues: (1) the trial court abused its discretion in entering the order; (2) the trial court abused its discretion by denying her limitations defense; (3) the trial court did not have subject matter jurisdiction to render the order; (4) the order alters and changes the property division in the divorce decree; and (5) the trial court abused its discretion in denying her attorney's fees. We affirm.
I. BACKGROUND
In December of 2008, the trial court held a hearing to effectuate the divorce of Rodriguez and Moreno. The divorce was orally pronounced and rendered at the hearing, and the trial court signed the final decree on March 30, 2009. Among other things, the decree ordered that a CD held by Moreno for the benefit of their then minor daughter, Victoria C. Rodriguez, in the amount of $4,666.00 be placed under the sole and exclusive control of Victoriano Rodriguez. The decree did not specify as to how or when this was to occur. Moreno subsequently physically turned over the CD to Rodriguez.
On or about September 23, 2016, Rodriguez filed a "Petition for Enforcement of Property Division by Contempt." The petition essentially alleged that Moreno had failed to deliver the CD and requested that she be ordered to do so. Moreno answered, alleging that Rodriguez's petition was barred under the statute of limitations contained in the Texas Family Code. See TEX. FAM. CODE ANN. § 9.003 (West, Westlaw through 2017 1st C.S.). She further stated that there was no basis in fact or law for Rodriguez's action. Moreno also filed a counter-claim seeking monetary sanctions for the filing of a frivolous lawsuit.
A hearing was held on October 27, 2016, in which Moreno clarified she turned over the CD to Rodriguez. However, Rodriguez alleged he was unable to receive the benefits of the CD for their daughter without Moreno's cooperation at the bank. During the hearing, the parties discussed the CD which is the basis of the petition and a second certificate of deposit also mentioned in the decree. The hearing was continued to allow Moreno to gather documentation to support her statements regarding the status of the certificates and any money withdrawn.
On October 28, 2016, prior to the next hearing, Rodriguez filed a "Motion to Clarify Pursuant to Family Code Sec. 9.008," seeking an order that would clarify a deadline by which Moreno must have complied with the divorce decree by delivering and/or executing any necessary documentation to effectuate the transfer of the account Rodriguez's name. See id. § 9.008 (West, Westlaw through 2017 1st C.S.) (allowing a party to request a clarifying order setting forth specific terms to enforce compliance with an original division of property in a divorce decree). On November 10, 2016, following hearings on the motion to clarify and Rodriguez's original petition, the trial court found the provision sought to be clarified lacked the substance to provide both parties with notice of deadlines, time, date, and manner in which the transfer of property to Rodriguez should be made and the trial court judge rendered the Order of Clarification ordering appellant to "appear, cooperate and execute or produce all documents necessary, to fully transfer the Certificate of Deposit . . . to Victoria Rodriguez." This appeal followed.
II. ORDER OF CLARIFICATION
A. Evidentiary Challenges and Effect of Order on Divorce Decree
By her first issue, Moreno argues that the trial court abused its discretion by signing the Order. Moreno states that (1) there was legally or factually insufficient evidence that Rodriguez did not have the certificate of deposit or its proceeds, (2) there was legally or factually insufficient evidence that either Rodriguez or their daughter are unable to obtain the proceeds of the certificate without Moreno's assistance, and (3) the Order changed the terms of the divorce decree.
Moreno, however, provides no authorities or supporting case-law to support these arguments. See TEX. R. APP. P. 38.1(i). Without more, we conclude that Moreno inadequately briefed these general arguments and presents nothing for our review. See id. Moreno's first issue is overruled.
B. Limitations Defense
By her second issue, Moreno argues that the trial court abused its discretion when it denied her limitations defense. Moreno refers to the family code and generally argues that Rodriguez's petition was barred by the statute of limitations.
Moreno provides no case law in support of this argument that might relate to the facts of this case. See id. Without more, we conclude that Moreno inadequately briefed this general argument and presents nothing for our review. See id. Moreno's second issue is overruled.
C. Subject Matter Jurisdiction
By her third issue, Moreno argues that the Order is void because the trial court lacked subject matter jurisdiction. Moreno argues that there was no subject matter jurisdiction because (1) the dispute was moot and (2) Rodriguez lacked standing.
1. Standard of Review
Whether a court has subject matter jurisdiction is a legal question that is reviewed de novo. See Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.). Both the mootness doctrine and issues of standing implicate subject matter jurisdiction. See id.; see also Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998).
2. Applicable Law
An appellate court is prohibited from deciding a moot controversy. See Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Trulock, 277 S.W.3d at 923. This prohibition is rooted in the separation of powers doctrine in the Texas and United States Constitutions that prohibits courts from rendering advisory opinions. See Nat'l Collegiate, 1 S.W.3d at 86; Trulock, 277 S.W.3d at 923-24. The mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events. Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982).
"In Texas, 'standing' denotes the presence of a real controversy between the parties that will actually be determined by the judicial declaration sought." Freeman v. Harleton Oil & Gas, Inc., 528 S.W.3d 708, 748 (Tex. App.—Texarkana 2017, pet. filed) (reh'g overruled). When we review a trial court's order regarding standing, our analysis begins with the plaintiff's live pleadings, and we construe the pleadings in favor of the plaintiff. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (citing Huston v. Fed. Deposit Ins. Corp., 663 S.W.2d 126, 129 (Tex. App.—Eastland 1983, writ ref'd n.r.e.)). We must then consider evidence that the parties offered and relied on "to resolve the jurisdictional issues raised, as the trial court is required to do." Tex. Dep't of Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)); see also In re B.A.G., No. 11-11-00354-CV, 2013 WL 364240, at *3 (Tex. App.—Eastland Jan. 31, 2013, no pet.) (mem. op.).
3. Discussion
Moreno contends that the delivery of the physical certificate to Rodriguez satisfied her requirements under the divorce decree and thus renders his petition moot. We are not persuaded that her obligations were satisfied under the decree. The original decree orders that the certificate of deposit being held for the benefit of Victoria C. Rodriguez be placed under the sole and exclusive control of Victoriano Rodriguez. The original decree, in relevant part, states:
"IT IS ORDERED that the following custodial account now held by ADRIANA MORENO RODRIGUEZ for the parties' children, DANIELA C. RODRIGUEZ (First Community Bank - CERTIFICATE OF DEPOSIT - ACCOUNT NUMBER XXXXXXXXXX) VICTORIA C. RODRIGUEZ (First Community Bank - CERTIFICATE OF DEPOSIT - ACCOUNT NUMBER XXXXXXXXXX) is placed under the sole and exclusive control of VICTORIANO RODRIGUEZ."Additionally, the "Property to Husband" section of the decree reiterates that as a result of the decree the following becomes property of Rodriguez: "a. CERTIFICATE OF DEPOSIT FOR DANIELA C. RODRIGUEZ IN THE AMOUNT OF $4666.00; and b. CERTIFICATE OF DEPOSIT FOR VICTORIA C. RODRIGUEZ IN THE AMOUNT OF $4666.00." Mere physical possession of the document evidencing the CD did not grant Rodriguez control of the account. We find general authority describing the relationship between certificates of deposit and the benefit of the funds helpful to our analysis:
It is important to distinguish between the right of negotiation or enforcement of the CD's themselves and beneficial ownership of the funds the CD's represent. See Kenneth McLaughlin, Jr., Joint Accounts, Totten Trusts, and the Poor Man's Will, 44 TEX. B.J. 871, 875 (1981). A CD constitutes intangible personal property which is a record of the debt owed by the bank to the holder(s) but does not establish ownership of the funds evidenced by the CD. See Edwards v. Pena, 38 S.W.3d 191, 197 (Tex. App.—Corpus Christi 2001, no pet.); May v. Walter, 956 S.W.2d 138, 142 (Tex. App.—Amarillo 1997, pet. denied); see also TEX. TAX CODE ANN. § 1.04(6) (Vernon 2008).Nipp v. Broumley, 285 S.W.3d 552, 557 (Tex. App.—Waco 2009, no pet.) Mere physical possession of the CD did not give Rodriguez the ability to enforce the certificate.
Moreover, the parties' post-divorce conduct may be considered in determining the parties' intent. Consol. Eng'g Co. v. S. Steel Co., 699 S.W.2d 188, 192-93 (Tex. 1985). Based on her prior behavior with the account for their older daughter, Moreno was aware that some action was required on her part to properly transfer control of the accounts. Moreno notes that she went with her older daughter, Daniela, to transfer the certificate of deposit being held for Daniela by opening a new account jointly with her daughter. Rodriguez contends the physical transfer of the certificate to Rodriquez was not enough, just as there was a need for Moreno to be present for Daniela to get the funds from the certificate being held on Daniela's behalf, the same would be true for transfer of control of the certificate being held on behalf of Victoria. Because Moreno chose not to assist in the transfer of the control of the CD, Moreno left Rodriguez with no choice but to seek enforcement of the decree. Thus, the physical transfer of the certificate was not enough to render Moreno's obligation under the decree as complete; Moreno needed to completely effectuate the transfer to Rodriguez by signing the necessary paperwork required to transfer control to Rodriguez pursuant to the decree. Therefore, the physical transfer alone did not render this dispute moot.
Moreno further contends that Rodriguez lacked standing to bring the claim on behalf of his daughter. We do not construe Rodriguez as having brought this claim on behalf of his daughter, but instead, the Petition for Enforcement of Property Division by Contempt shows that Rodriguez is simply trying to enforce a provision of the divorce decree as between himself and Moreno. As a party to the decree, Rodriguez has standing in this matter. We overrule Moreno's third issue.
D. Order's Effect on Property Division
By her fourth issue, Moreno argues the Order alters and changes the property division of the divorce decree in violation of the Texas Family Code. TEX. FAM. CODE ANN. § 9.007(a) (West, Westlaw through 2017 1st C.S.).
1. Standard of Review
We review the trial court's ruling on a post-divorce motion for clarification or enforcement of a divorce decree for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to any guiding rules or principles. Id.
2. Applicable Law
A trial court may enter orders of enforcement and clarification to enforce or specify more precisely a divorce decree's property division. TEX. FAM. CODE ANN. § 9.006(a) (West, Westlaw through 2017 1st C.S.). But a trial court is prohibited from amending, modifying, altering, or changing the division of property originally set out in the decree. See id. § 9.007(a). See Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.—El Paso 1995, no writ) (holding that clarification orders may more precisely specify the manner of carrying out the property division previously ordered so long as the substantive division of the property is not altered).
In interpreting the language of a decree, we construe the decree as a whole to harmonize and give effect to the entire decree. See Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). If the decree is unambiguous, we interpret it by adhering to the literal language used in the decree. Id. If the decree is ambiguous, however, we interpret it by reviewing both the decree in its entirety and the record. Id. Whether a divorce decree is ambiguous is a question of law. Id. at 901-02; see Douglas v. Douglas, 454 S.W.3d 591, 596 (Tex. App.—El Paso 2014, no pet.). However, if we conclude the decree is ambiguous, that is, subject to more than one reasonable interpretation, then the decree must be construed to give effect to the parties' true intent as expressed in the written instrument. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Agreed judgments are interpreted according to the law of contracts. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986) (marital property agreement incorporated into a final divorce decree is interpreted as a contract); see also Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex. App.—San Antonio 2005, no pet.). When a contract is ambiguous, the parties' intent is a question of fact. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983); Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). "No one phrase, sentence or section [of a contract] should be isolated from its setting and considered apart from the other provisions." Forbau, 876 S.W.2d at 134 (quoting Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938)); see Guerrero, 165 S.W.3d at 782-83.
3. Discussion
Moreno contends that the Order impermissibly modifies the property division contained in the divorce decree. We disagree.
The trial court did not change or alter the substantive division of property made in the divorce decree; it clarified the decree. See Dechon, 909 S.W.2d at 956; see also Polasek v. Polasek, No. 13-03-00101-CV, 2005 WL 977565, at *2 (Tex. App.—Corpus Christi Apr. 28, 2005, no pet.) (mem. op.) (holding that a clarification made to conform the language of the decree to the intent of the parties is not an impermissible modification). In the original divorce decree, the trial court ordered Moreno to transfer control of the CD to Rodriguez. When questions arose about the means of effectuating transfer, the trial court rendered an order clarifying the specific procedure by which Moreno was to legally transfer the CD.
Under section 9.006 of the Texas Family Code, the 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). Here, the trial court found that the divorce decree did not adequately set forth the necessary procedures for transferring the certificate as originally intended by the parties and the decree. The trial court, having found that there was ambiguity in the decree, ordered Moreno to: "appear, cooperate, and execute and produce all documents necessary, to fully transfer the Certificate of Deposit Account number XXXXXXXXXX, along with all balances at the time of entering of the Final Decree of Divorce on December 10, 2008 AND with all interest earned on said account to date, to Victoria Rodriguez."
"Similarly, if the property settlement agreement is ambiguous, and if the clarification statute permits the trial court to clarify a division of property effectuated through either a court ordered division or an agreement incident to divorce, and if the trial court resolves the ambiguity by determining the intent of the parties and clarifies the division in accordance with the intent of the parties. Then we fail to see how the clarification order has impermissibly altered the substantive division of property."Dechon, S.W.2d at 958. The decree awards Rodriguez control of the CD being held for the benefit of Victoria. Moreno argues this is not ambiguous because it required her to physically transfer control of the CD, which she did. However, to the contrary, Rodriguez argues the decree did not simply award him physical possession of the CD, but rather control of the funds and the benefits of the CD. The decree fails to ascribe meaning to the term "control." Further, the decree gives no manner by which Moreno is required to transfer control of the CD. We, therefore, find the decree is subject to more than one reasonable interpretation and thus, is ambiguous. See Guerrero, 165 S.W.3d at 784.
The trial court did not modify the judgment, it merely provided for enforcement of an order within the original decree. See id. Accordingly, Moreno's fourth issue is overruled.
III. ATTORNEY'S FEES
By her fifth issue, Moreno argues that the trial court erred by denying her counter-claim for attorney's fees. Moreno, however, provides no authorities or supporting case-law to support these arguments. See TEX. R. APP. P. 38.1(i). Without more, we conclude that Moreno inadequately briefed this argument and presents nothing for our review. See id. Moreno's fifth issue is overruled.
IV. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Delivered and filed the 1st day of February, 2018.