Raj Kamar Vats v. Smrita Vats

Opinion issued June 7, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-12-00255-CV ——————————— RAJ KAMAR VATS, Appellant V. SMRITA VATS, Appellee On Appeal from the 311th District Court Harris County, Texas Trial Court Case No. 2007–22213 MEMORANDUM OPINION Raj Kamar Vats challenges the trial court’s order rendered in a post-divorce proceeding to enforce the decree.[1] In two issues, Raj asserts (1) the trial court’s order improperly modifies the divorce decree and (2) the trial court did not have subject matter jurisdiction to render the order. We affirm. Background Summary Raj Kumar Vats (“Raj”) and Smrita Vats (“Smrita”) were divorced in 2008. The trial court signed the Agreed Final Decree of Divorce (“the decree”) on June 27, 2008. The decree awarded, to each spouse, a 50 percent interest in two parcels of real property located in India. The language of the decree makes clear that it was the intent of the parties that the two pieces of real property would be sold. In this regard, the decree provides, in relevant part, as follows: Agreement as to the Sale of Certain Property in India The Court finds the parties have agreed to the following terms regarding the sale of property owned by the parties in India, and adopts the agreement as the ORDER of this Court as follows: 1. The parties shall not make duplicate originals of any document for the purpose of obstructing the sale of the property or to remove assets from the jurisdiction of the court in violation of the agreement or the divorce decree which will be issued by this court. 2. Mrs. Vats will name Anil Verma or a successor to sell property, as her agent. Mr. Vats will name Col. Manmohan Sindhi (ret’d) as his agent or a successor to sell property in India, at the highest reasonable price. The agents for the parties will split the commission or compensation resulting from their sale of the India property. The parties are ordered to exchange addresses and phone numbers within five days (7-2-08) [with] the other attorneys. 3. The parties are enjoined from hindering the sale of the India property whether actively or passively and whether directly or by agent. The parties will make good faith effort to sell the property. . . . . 9. The real estate agents in India shall be ordered to sell [and], after the sale of the land, instruct the purchaser to write two separate checks. 50% of the proceeds shall be awarded to Mr. Raj Kumar Vats. 50% of the proceeds shall be awarded to Ms. Smrita Vats within 10 days of sale. (Emphasis added.) On February 2, 2011, Smrita filed her “Second Amended Petition for Enforcement of Property Division by Contempt for Clarification and for Disposition of Property.” Among her allegations, Smrita asserted that Raj “ha[d] failed to make a good faith effort to sell the property in violation” of the decree and “has made every effort to impede the sale of the property.” She claimed that Raj had “instructed his agent not to cooperate with [her] agent in selling the property and [Raj] has continually impeded such attempts to sell the property.” In support of the petition, Smrita attached a copy of an opinion letter written by an Indian attorney. Smrita had retained the attorney to opine regarding “the means of implementation and enforcement of the final decree of divorce” with respect to the sale of the two Indian properties. In the letter, Indian counsel stated that a foreign judgment is enforceable in India if it is issued by a court in a “reciprocating territory.” The attorney stated that under Indian law, the United States is not a “reciprocating territory,” as defined in the Indian Code of Civil Procedure. The attorney informed Smrita that a non-reciprocating territory’s judgment can be enforced in India by filing a lawsuit in an Indian court. The attorney advised that, in the Indian suit, the foreign judgment would be considered “as evidentiary.” He stated that a party has three years from the date of the foreign judgment to file the suit in Indian court. The attorney also informed Smrita that because the Indian courts are overburdened, it generally takes six to ten years to obtain a decree in India. The attorney also informed Smrita that the property could not be partitioned. The Indian attorney suggested that Smrita ask the Texas trial court to order the parties to sell the property within 90 days. If that did not work, he suggested that Smrita file suit in India to enforce the judgment. He knew of no other alternative. Smrita asked the trial court to request and to authorize the Indian court “to appoint a receiver in India to take control of the properties . . . and to sell or auction such properties and proceed to closing and to distribute the proceeds in accordance with the terms of the Final Decree of Divorce.” Smrita represented that the Indian court would honor a request from the trial court should the parties’ agents fail to sell the properties in 90 days. The trial court signed an order entitled “Order on Smrita Vats’ Request for Appropriate Orders for Disposition of Property” (“the order”) on July 11, 2011. The order provides in relevant part as follows: IT IS ORDERED that SMRITA VATS’ Request for Appropriate Orders for Disposition of Property is hereby GRANTED. IT IS THEREFORE ORDERED that the Civil Court in Gurgaon and Rohini, India and/or any other court of competent jurisdiction in India are hereby requested and authorized to order the parties to direct their agents to sell the below described properties within 90 days of receipt of this Order and failing to so sell, to appoint a Receiver in India to take possession and control of the properties and to sell or auction such properties and proceed to closing: A. DLF Qutab Enclave; plot of land 855 square meters (1022 square yards) GM17, DFL Complex, Phase 2, Gurgaon, Haryana, India B. Plot 582, Pocket I, Block A, sector 29, 60 square meters, MIG Category Delhi Development Authority, New Delhi, India IT IS ORDERED that, upon disposition, the proceeds should be distributed equally between the Petitioner and the Respondent in accordance with the terms of the Final Decree of Divorce. Raj now appeals the order, raising two issues.[2] Raj requests that we reverse the order and declare it “void ab initio.” Enforcement of Decree In his first issue, Raj asserts, “The order is beyond the lawful authority of the court in that it results in an inappropriate and unauthorized modification of the underlying decree of divorce.” A. Relevant Legal Principles The court that renders a divorce decree retains the power to enforce the property division. Tex. Fam. Code Ann. § 9.002 (Vernon 2006); see Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011); In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding). Family Code section 9.006, entitled Enforcement of Division of Property, provides that “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) (Vernon 2006). The court also “may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed.” Id. § 9.006(b); see Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.—El Paso 1995, no writ). Section 9.007, entitled Limitation on Power of Court to Enforce, limits the trial court’s authority, in relevant part, as follows: (a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. 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 . . . is beyond the power of the divorce court and is unenforceable. Tex. Fam. Code Ann. § 9.007(a), (b) (Vernon 2006). We consider a trial court’s order of enforcement under an abuse of discretion standard. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); see Garcia v. Alvarez, No. 14–11–00089–CV, 2012 WL 1232009, at *2 (Tex. App.—Houston [14th Dist.] Apr. 12, 2012 no pet. h.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We have previously noted that “[t]he Texas Legislature confers upon the trial court wide discretion in the enforcement of property divisions subsequent to a decree of divorce.” Dade v. Dade, No. 01–05–00912–CV, 2007 WL 1153053, at *1 (Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem. op.). B. Analysis In support of his first issue, Raj argues that the trial court’s order is improper because “the trial court has purported to order the parties to engage the jurisdiction of a foreign court and cause that court to take specific action to enforce its own order.” Raj contends that “[s]uch a directive cannot even remotely be argued as something contemplated or allowed under the Decree of Divorce and is clearly a substantial modification of that decree.” Raj further asserts, In addition to attempting to compel the court of a foreign jurisdiction to take some fashion of judicial action, the trial court purports to have the authority to cause the appointment of a receiver in another country. None of those directives are in any fashion contained within the terms of the party’s decree of divorce nor is there any section of the Texas Family Code that would invest a Texas court with that type of judicial power. The action of the trial court constitutes an abuse of the trial court’s discretion and should be declared void and of no force and effect. We disagree with Raj’s characterization of the trial court’s order. The order does not “order the parties to engage the jurisdiction of a foreign court and cause that court to take specific action to enforce its own order,” as Raj claims. Nor does the order direct the Indian court to appoint a receiver. Instead, the order is permissive in nature. It states that the Indian court is “requested and authorized” to order the parties to sell the properties. It orders neither the Indian court nor the parties to take action. When read in conjunction with the opinion letter of the Indian attorney and Smrita’s petition for enforcement, the order seeks to expedite a ruling by the Indian court—should Smrita file suit there to enforce the agreed decree—without requiring her to wait the six to ten years that it usually takes to obtain a judgment in India. Raj’s assertion that the order is a “substantial modification” of the decree is also incorrect. The language of the decree makes clear that sale of the real property in India was intended by the parties. As mentioned, a court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed. Tex. Fam. Code Ann. § 9.006(b). Here, the order does not change or alter the substantive division of property. Nor have the liabilities or the duties of the parties been changed by the order. Rather, the order specifies a more precise manner of effecting the property division set forth in the decree. See id; cf. Tugman v. Tugman, No. 13–08–194–CV, 2008 WL 2151451, at *4 (Tex. App.—Corpus Christi May 22, 2008, no pet.) (mem. op.) (concluding that order appointing a receiver did not amend, modify, or alter the divorce decree’s property division but “simply specifies the precise manner of carrying out the property division previously ordered, i.e., the sale of the property”). In other words, the order serves to facilitate and to assist in the implementation of the decree’s provisions pertaining to the sale of the property, which is a permissible purpose. See Tex. Fam. Code Ann. § 9.007(a); see also McLaurin v. McLaurin, 968 S.W.2d 947, 949–50 (Tex. App.—Texarkana 1998, no pet.) (concluding that order merely changing mode of payment due to spouse did not change duties or liabilities under the agreed judgment, but merely changed source of agreed payments; thus, it was a permissible order to assist in the implementation of the prior order as allowed by section 9.007(a)). In sum, Raj’s arguments offered in support of his first issue do not demonstrate that the trial court abused its discretion in rendering the order. Accordingly, we overrule Raj’s first issue. Jurisdiction over Property In his second issue, Raj contends that “the order is beyond the lawful authority of the court in that the Texas trial court has no subject matter jurisdiction over the property in question or the independent judicial tribunal of a foreign country.” To support this issue, Raj reiterates the arguments he asserts in support of his first issue. In addition, he contends that the trial court “has no subject matter jurisdiction over either the real property in a foreign country or the independent judicial tribunal of a foreign country.” Although a trial court does not have in rem jurisdiction over property outside Texas, “[t]here is ample authority for the proposition that a trial court may require parties over whom it has in personam jurisdiction to execute a conveyance of real estate located in another state.” Dankowski v. Dankowski, 922 S.W.2d 298, 303 (Tex. App.—Fort Worth 1996, writ denied); see also Griffith v. Griffith, 341 S.W.3d 43, 57 (Tex. App.—San Antonio 2011, no pet.) (holding that trial court had jurisdiction to divide community property situated in Florida); Franyutti v. Franyutti, No. 04–02–00786–CV, 2003 WL 22656879, at *5 (Tex. App.—San Antonio Nov. 12, 2003, no pet.) (affirming divorce decree in which trial court order conveyance of real property in Mexico); In re Glaze, 605 S.W.2d 721, 724 (Tex. Civ. App.—Amarillo 1980, no writ) (explaining that while a Texas court does not have, and cannot acquire, in rem jurisdiction over real estate lying outside Texas, it can, if it has personal jurisdiction over the nonresident, order one party to execute a conveyance of the out-of-state property to the other party). In any event, the language of the order does not indicate that the trial court is asserting in rem jurisdiction over the Indian property, nor is it asserting jurisdiction over the Indian court. As discussed, the order serves to facilitate and to assist in the implementation of the decree’s provisions pertaining to the sale of the property and to effect the property division. In short, Raj’s arguments in support of his second issue are without merit. Accordingly, we overrule Raj’s second issue. Conclusion We affirm the “Order on Smrita Vats’ Request for Appropriate Orders for Disposition of Property,” signed by the trial court on July 11, 2011. Laura Carter Higley Justice Panel consists of Justices Higley, Sharp, and Huddle. [1] It is not disputed that the order signed by the trial court in this case is a final and appealable order. See Allen v. Allen, 717 S.W.2d 311, 312–13 (Tex. 1986) (holding post-judgment order disposing of all matters placed before trial court in post-judgment motion is final and appealable); Reynolds v. Reynolds, 860 S.W.2d 568, 570 (Tex. App.—Dallas 1993, writ denied) (providing that post-judgment orders in aid and clarification of divorce decrees are appealable, provided they are final orders). Moreover, section 9.001 of the Family Code permits a party to file a suit to enforce a divorce decree and provides that “the proceedings shall be as in civil cases generally.” Tex. Fam. Code Ann. § 9.001 (Vernon 2006). Because the proceedings are “as in civil cases generally,” the trial court’s order enforcing the divorce decree is appealable. See Christensen v. Christensen, No. 04–03–00095–CV, 2003 WL 22897120, at *1 (Tex. App.—San Antonio Dec. 10, 2003, pet. denied) (mem. op.) (concluding order enforcing divorce decree was appealable); see, e.g., Dechon v. Dechon, 909 S.W.2d 950 (Tex. App.—El Paso 1995, no writ) (involving appeal of 1993 order in action seeking enforcement of property settlement agreement in 1971 divorce decree); Gonzales v. Gonzales, 728 S.W.2d 446 (Tex. App.—San Antonio 1987, no writ) (concerning appeal of 1985 order in action seeking enforcement of 1975 divorce decree). [2] Raj also challenged the order in a petition for writ of mandamus, which this Court denied. In re Vats, No. 01–11–00602–CV, 2011 WL 2923880, at *1 (Tex. App.—Houston [1st Dist.] July 21, 2011, orig. proceeding) (mem. op.).