Kerr v. Kerr (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Yates)
post-divorce enforcement of property division, no modification of substance of decree)
AFFIRMED: Opinion by
Justice Brock Yates    
Before Chief Justice Hedges, Justices Brock Yates and Frost  
14-08-00529-CV In The Matter of the Marriage of Don Scott Kerr and Gabriella A. Kerr   
Appeal from 246th District Court of Harris County
Trial Court Judge:
Jim York  

M E M O R A N D U M   O P I N I O N

Appellant Don Scott Kerr ("Scott") appeals from the trial court's order enforcing the property division in his
divorce decree and awarding his ex-wife, appellee Gabriella A. Kerr, a money judgment for $46,000.  Scott
contends that the trial court's enforcement order is void because it constituted a modification to the decree
and was entered more than thirty days after the trial court signed the decree.  Scott also contends the
evidence is legally and factually insufficient to support a portion of the trial court's award.  We affirm.

The trial court entered a final decree of divorce between Scott and Gabriella on September 13, 2007.  In
the decree, the trial court ordered Scott to pay the $22,000 debt owed  on a Chase Credit Visa credit card.  
The decree awarded Gabriella ownership of the marital home, ordered Scott (who had been living there) to
vacate the property by September 23, 2007 or pay holdover rent to Gabriella, and enjoined Scott from
"causing damage to the property or otherwise reducing the value or use of the property."  

Scott did not pay the credit card debt, which Gabriella had to pay herself to protect her credit rating.  Scott
also did not vacate the marital home on September 23, 2007, and he did not pay holdover rent, instead
delivering play money to Gabriella's father.  Gabriella had to institute eviction proceedings, and when Scott
finally vacated the home in late October 2007, she discovered a wide variety of damage, including (1) the
air conditioning system was inoperable because the new condenser, which had been installed in August
2007, had been replaced with a smaller, inoperable condenser, (2) the window coverings and custom
blinds had been removed, (3) the dishwasher had been replaced with an old, rusted inoperable
dishwasher, (4) the ceiling fans in several rooms had been replaced with less-expensive light fixtures with
no fans, and (5) some of the carpets, cabinets, and walls had been damaged.  This damage rendered the
home unsellable, and Gabriella spent over $9,000 to repair the damage and replace the fixtures to prepare
the house for sale.

On December 4, 2007, Gabriella filed a petition for enforcement of the decree, which the trial court
granted.  The trial court's enforcement order awarded Gabriella a money judgment for $46,000, which
included $22,000 for the credit card debt Gabriella paid and $9,200 to compensate Gabriella for replacing
fixtures and repairing the marital home.[1]  This appeal followed.

In his first issue, Scott argues that the trial court's enforcement order is void because it constituted a
modification, rather than enforcement, of the decree and was made more than thirty days after the final
decree was signed.  The trial court can render enforcement orders to clarify or assist in the implementation
of a property division made in a divorce decree and can render a money judgment for damages caused by
the failure to comply.  See Tex. Fam. Code Ann. §§ 9.006(a), 9.010 (Vernon 2006).  
However, once the trial court's plenary power expires, which in this case was thirty days after the divorce
decree was signed, the trial court may not "amend, modify, alter, or change the division of property made
or approved in the decree of divorce."  See id. §  9.007(a); Tex. R. Civ. P. 329b(a); Brown v. Brown, 236
S.W.3d 343, 346 n.1 (Tex. App.- Houston [1st Dist.] 2007, no pet.).  Thus, any order in an enforcement
proceeding that constitutes a modification of the decree is void if entered after the trial court's plenary
power expires.  See Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003); Bass v. Bass, 106 S.W.3d
311, 318 (Tex. App.- Houston [1st Dist.] 2003, no pet.).

As to the credit card debt, Scott asserts that ordering a money judgment to reimburse Gabriella's payment
constitutes a modification because she had used that credit card prior to the decree to pay her attorney
and the decree states that each party is responsible for its own attorney's fees.  

We reject this argument.  

The decree states, with unmistakable clarity, that Scott is responsible for the debt owed on the Chase
Credit Visa account.  If Scott believed the trial court erred in assigning that debt to him in the decree, his
remedy was direct appeal.  See Shanks, 110 S.W.3d at 449.  Scott did not pursue that option, and he
cannot now collaterally attack the decree as a defense to an enforcement proceeding.  See id.  The trial
court's enforcement order did nothing more than require him to reimburse Gabriella for a debt Scott was
explicitly obligated to pay, and thus it did not constitute a modification.
As to the damage to the marital home and replacement of fixtures, Scott appears to argue that because the
decree awarded him all "fixtures, . . . appliances, and equipment in the possession of the husband or
subject to his sole control," he had the right to replace appliances and fixtures from the marital home with
less expensive or non-functioning items.  Thus, according to Scott, the trial court's enforcement order that
requires him to reimburse Gabriella for the cost of repairs and replacement modifies that portion of the

Again, we disagree.

When interpreting a divorce decree, we construe it as a whole to harmonize and give effect to the entire
decree.  Id. at 447.  If the decree is subject to only one reasonable interpretation, we apply that
interpretation as a matter of law.  See id.  The decree plainly and undisputedly awarded ownership of the
marital home to Gabriella, required Scott to vacate by a certain date or pay rent to Gabriella, and enjoined
Scott from damaging the property or taking any action to reduce its value.  It would be unreasonable to
interpret the decree as awarding Gabriella the home and enjoining Scott from damaging or decreasing the
value of the home while simultaneously allowing him to take such actions as removing fixtures and making
the air conditioning unworkable, which rendered the home unsellable.  The trial court's order merely
enforced the decree according to the decree's only reasonable interpretation.

Because the trial court's enforcement order enforced rather than modified the decree, the trial court had
authority to enter the order.  We overrule Scott's first issue.

In his second issue, Scott argues that the evidence is legally and factually insufficient to support the trial
court's implied finding that he caused damage to the marital home or reduced the value of the property.  
A trial court's decision to grant or deny the relief requested in a post-divorce motion for clarification or
enforcement is reviewed for an abuse of discretion.  See Hollingsworth v. Hollingsworth, 274 S.W.3d 811,
815 (Tex. App.- Dallas 2008, no pet.).  When, as here, the trial court did not file findings of fact and
conclusions of law, we imply that the trial court made all findings necessary to support the judgment and will
uphold those findings if supported by sufficient evidence.  See Holt Atherton Indus., Inc. v. Heine, 835
S.W.2d 80, 83-84 (Tex. 1992); Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.- Dallas 2005, no pet.).
Under the abuse of discretion standard, sufficiency of the evidence is not an independent ground of error
but rather is a relevant factor in assessing whether the trial court abused its discretion.  Beck, 154 S.W.3d
at 902; In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.- Houston [14th Dist.] 2002, no pet.).

Scott contends that as to each item Gabriella claims damaged or decreased the value of the house, there
was insufficient evidence either that the action actually decreased the value of the house or of the date on
which the action occurred, which is significant because he was not enjoined from damaging or reducing the
value of the house until the decree was entered.  When acting as fact finder, the trial court is the sole
judge of witnesses' credibility and can draw reasonable inferences from the facts.  See Beck, 154 S.W.3d
at 901.  

Gabriella testified that (1) the damage to the house and its fixtures made it unsellable, (2) she knew the
blinds and window coverings were taken down after the decree because she saw them when she
repeatedly drove by the house to see if Scott had vacated, and (3) a brand new compressor for the air
conditioning system had been installed in August 2007, which was shortly before the decree was entered.  
The trial court could have believed Gabriella's testimony and further inferred that all the damage and
fixture replacement occurred after the decree based on this testimony and other circumstances in the case
indicating that Scott was angry at being forced to move from the marital home, including his refusal to move
until Gabriella had him evicted and sending her fake money to pay holdover rent.  

Further, it is reasonable to infer that Scott removed the ceiling fans and made the air conditioning system
inoperable shortly before he moved out (which was several weeks after the decree) because it is unlikely
that he would have lived in a house in Houston in the summer with no air conditioning or ceiling fans.  
Based on this evidence, we conclude the trial court did not abuse its discretion in determining that Scott
damaged and otherwise reduced the value of the marital home in violation of the decree.  We overrule his
second issue.

Having overruled Scott's two issues, we affirm the trial court's judgment.

Leslie B. Yates

Panel consists of Chief Justice Hedges and Justices Yates and Frost.
[1]  Scott did not appeal the other items included in the $46,000 money judgment.