in Re Diana Ruth Lovell

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed May 5, 2011. In The Fourteenth Court of Appeals NO. 14-11-00197-CV In Re Diana Ruth Lovell, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 246th District Court Harris County, Texas Trial Court Cause No. 2009-18060 MEMORANDUM   OPINION On March 8, 2011, relator Diana Ruth Lovell filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable James York, presiding judge of the 246th District Court of Harris County to vacate his order signed March 3, 2011. We conditionally grant the writ. Background Relator and the real party in interest Chris Martin were divorced on December 11, 2009. The parties entered into an agreement incident to divorce in which they agreed, among other things, to sell the property located at 5823 Shady River Drive in Houston. As part of the agreement the parties agreed to sell the property “for a price that is mutually agreeable to Husband and Wife; however, the property shall not be sold for less than $931,830.00.” They further agreed that, “Wife’s share of the net sales proceeds shall in no event be lower than 70% of the 2009 HCAD value of this property ($931,482.00).” On May 14, 2010, Chris filed a motion in aid of the agreement incident to divorce. In the motion he stated that the house was priced too high to sell and requested that the court reform the agreement to permit an offer within three percent of the listing price. On November 21, 2010, the trial court ordered the property to be sold by December 11, 2010 at a price agreed upon by the parties. The court specifically ordered clarification of the earlier agreement incident to divorce. The court determined that December 11, 2010 was a reasonable deadline for compliance, and the “clarifying order may be enforced by contempt if the parties fail to comply by the date specified.” If the property did not sell at a price agreed upon by the parties, the court determined that “upon the application of either party, the Property shall be sold under terms and conditions determined by a court-appointed receiver, and the receiver shall sell the Property for fair market value.” The December order repeated the portion of the original agreement, which stated that Diana’s share of the proceeds would be no less than 70% of $931,483.00 or the actual sales price, whichever is greater, less the mortgage balance, closing costs, and realtor fees. Diana filed a motion for reconsideration of the December order, which was overruled by operation of law. On January 19, 2011, she filed a notice of appeal, which was assigned to this court and docketed as cause number 14-11-00055-CV. On December 13, 2010, Chris filed a motion seeking to appoint a receiver or to partition the property because the property did not sell by December 10. In the motion, Chris averred that the property did not sell because the list price was too high. On January 14, 2011, the trial court ordered an appraisal. The court held a hearing on February 24, 2011 after the appraisal was completed. On March 3, 2011, the court signed an order requiring the property to be sold at the MAI appraised value within 30 days of the order. It is from the March order that Diana seeks mandamus relief. Mandamus Standard Mandamus relief is available when the trial court abuses its discretion and there is no adequate remedy at law, such as by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004). If we determine that an order is void, relator need not show she did not have an adequate appellate remedy. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 604 (Tex. 2000). Trial Court’s Jurisdiction to Enter Clarification Order Diana contends the trial court did not have jurisdiction to enter the order clarifying the sale of the property because it was entered after expiration of the trial court’s plenary power, and in violation of the Family Code, which abates further proceedings while an appeal is pending. Chris responds that the order at issue here is merely a ministerial act of enforcement of the judgment. A court has inherent judicial authority to enforce its orders and decrees. Cook v. Stallcup, 170 S.W.3d 916, 920 (Tex .App.—Dallas 2005, no pet.); Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App.—Houston [14th Dist.] 1993, orig. proceeding). When the judgment has not been superseded, the trial court has jurisdiction to hear a motion to enforce, even though the judgment has been appealed. See In re Crow–Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003). A court that rendered a divorce decree generally retains continuing subject-matter jurisdiction to enforce and to clarify the property division. See Tex. Fam. Code Ann. §§ 9.002 & 9.008; In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding). Section 9.007 of the Family Code provides in relevant part: (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. * * * * * (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. Tex. Fam. Code Ann. § 9.007. This section deprives the trial court of subject-matter jurisdiction to enter an order clarifying the property division during the pendency of an appeal. See Gainous v. Gainous, 219 S.W.3d 97, 107–08 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); English v. English, 44 S.W.3d 102, 106 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (The trial court is prohibited from implementing and clarifying the property division by way of further order). Neither the parties’ compliance, nor the ministerial act of execution of the judgment are proscribed under this section. In re Fischer–Stoker, 174 S.W.3d 268, 272 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). Therefore, while the court maintained jurisdiction to issue an order enforcing its prior order, the court is prohibited from issuing orders assisting in the implementation of the decree’s property division or clarifying the property division. See Sheikh v. Sheikh, 248 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In this case, the trial court issued an order dated November 2, 2010, requiring the property to be sold at fair market value and stating Diana’s share of the proceeds of the property. On January 14, 2011, Diana timely appealed that order. At that time the power of the court to clarify the property division by way of further order was abated. See Tex. Fam. Code Ann. § 9.007(c). The order issued March 3, 2011 attempts to clarify the November order that was appealed. Therefore, at the time the court issued the March 3, 2011 order the trial court did not have jurisdiction to do so. See Fisher–Stoker, 174 S.W.3d at 272, English, 44 S.W.3d at 106. Chris argues that the March order is merely a ministerial enforcement of the November order. The March order, however, changed the potential sales price for the property. By changing the sales price, the order also changed the proceeds Diana would receive as a result of the sale. The March order is not an enforcement order, but an attempt to clarify the property division, which is prohibited pending appeal of the November order. We hold that, under section 9.007(c) of the Family Code, the power of the trial court to issue an order clarifying the terms of the property sale is abated during the pendency of the related appeal. We withdraw our March 15, 2011 order staying the March 3, 2011 order and conditionally grant writ of mandamus. We are confident the trial court will vacate its order of March 3, 2011; if the court fails to do so, the writ will issue. /s/ Sharon McCally Justice Panel consists of Justices Anderson, Seymore, and McCally.