Clarifying Order Must Be Consistent With Divorce Decree

Family Court Judge Exceeded Her Limited Power to Clarify Property Provisions of Final Decree of Divorce. Divorce court retains jurisdiction to clarify and enforce its prior order, but may not modify the property division.

Metzger v. Metzger Westbo (Tex.App.- Houston -1st. Dist.] Jun. 7, 2007)(Taft)(post-divorce suit for clarification order, limited continuing jurisdiction)

In this appeal from a post-divorce clarification order, the reviewing court, in an opinion authored by Justice Tim Taft, deletes certain elements of the order purportedly clarifying the provisions of a divorce decree, finding that they altered the substance of the underlying final decree, rather than merely adding specificity to aid enforcement. The divorce court may not revisit the property division and change it in a clarification order. To the extent property was omitted from the decree, a post-divorce partition suit is the proper vehicle. To the extent a dispute exists as to compliance with the mediated settlement agreement, the complaining party may pursue a breach of contract claim against the ex-spouse. The appellate court declines to set aside the mediation agreement as void.

Legal lingo: divorce decree, binding mediated settlement agreement, revocation and withdrawal of consent, property division, marital estate, separate property, community property, post-divorce partition suit, clarification order, continuing jurisdiction of court granting divorce

Disposition: Trial court judgment modified and affirmed as modified
Opinion author: Justice Tim Taft
Panel memers: Justices Taft, Alcala and Hanks
Appellate cause no.: 01-04-00893-CV
Style: Mark A. Metzger, Jr. v. Patricia Metzger Westbo
Trial Court: 247th District Court of Harris County (Judge Bonnie Hellums)

Res Judicata Did Not Bar Former Spouse's Post-divorce Partition Suit

Former wife prevails in suit for post-divorce division of property; gets 50% share in retirement money not addressed in decree

Ezirike v. Ezirike (Tex.App.- Houston [1st Dist.] May 17, 2007)(Alcala)(retirement plan)

Former wife successfully sued to partition retirement funds not addressed by divorce decree. Court of Appeals affirms, finding that the 401K and retirement plan were community property not divided by the final decree of divorce. The court further holds that the parties' Rule 11 settlement agreement regarding child support overpayment and arrears did not constitute a property settlement agreement, and thus did not constrain the trial's court discretion to divide the parties' property. Unremarkably, the court also holds that a docket sheet entry does not control and cannot contradict the date shown on the judgment, and that denial of the husband's motion for summary judgment may not be appealed where, as here, it was followed by a trial on the merits. The ex-husband had unsuccessfully sought dismissal of the wife's partition action on the basis of res judicata and collateral estoppel.

Legal lingo: family law, divorce, suit for post-divorce division of community property, retirement benefits, claim preclusion, res judicata, collateral estoppel, prior judgment