Changing Community Debt Into Maintenance Isn’t Mere “Clarification” of a Decree

Upon divorce, by agreement, the trial court awarded the marital residence to the wife, with the proviso that she “secure financing to purchase the residence” within one year. Otherwise, the house would be listed for sale. The husband was ordered to pay all ad valorem taxes on the residence for thirty-six months. In addition, the husband was ordered to pay maintenance for thirty-six months at $800 per month for one year, $700 per month for the second year and $500 per month for the third year.

The former wife did not secure financing. The former husband petitioned the trial court to order the house sold. The court ordered the house sold but also “clarified” the divorce decree: The trial court ordered the former husband to pay a pro-rated portion of the ad valorem taxes on the house for the full thirty-six months even if the house were sold in the meantime. The trial court believed that the decree required clarification because in its view, the parties intended the former wife to receive thirty-six months of financial assistance “whether in the form of property tax payments or additional spousal maintenance and that its order clarified this intent.”

The El Paso Court of Appeals reversed the trial court’s order and rendered judgment setting that order aside. The court observed that Texas Family Code section 9.007* prohibits a trial court from amending, modifying, altering or changing the final division of property in a divorce decree. Clarifying a final decree, under Texas Family Code section 9.008(b),** is permissible only when the trial court finds that the original decree is insufficiently specific to be enforceable by contempt. Accordingly, the trial court abused its discretion when it transformed the obligation to pay ad valorem taxes into maintenance. Everett v. Everett, No. 08-12-00035-CV (Tex. App. – El Paso Jan. 29, 2014).

* Texas Family Code section 9.007:

(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.

(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.

** Texas Family Code section 9.008(b):

(b) On 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.

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