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									                             05-09-00811-CV

                       IN THE COURT OF APPEALS

                        FOR THE FIFTH DISTRICT

                             DALLAS, TEXAS




                 IN THE MATTER OF THE MARRIAGE OF

THOMAS FRANCIS MOROCH AND CHRISTY CALVERT (MOROCH) COLLINS




 From a Post-Divorce Petition heard in the 301 st Judicial District Court of

                           Dallas County, Texas,

                        P. Lynn Cherry, Presiding.

                         Cause No. DF 99-19687-T




           APPELLANT CHRISTY CALVERT COLLINS’S BRIEF

                       ORAL ARGUMENT REQUESTED




                                                     Submitted by:
                                                     Paula J. Gaus
                                                     P O Box 7696
                                                     Dallas, TX 75209
                                                     972-252-2626
                            05-09-00811-CV

                      IN THE COURT OF APPEALS

                       FOR THE FIFTH DISTRICT

                            DALLAS, TEXAS




                     In the Matter of the Marriage of

      Thomas Francis Moroch and Christy Calvert Collins Moroch




From a Post-Divorce Petition heard in the 301 st Judicial District Court of

                          Dallas County, Texas,

                       P. Lynn Cherry, Presiding.

                        Cause No. DF 99-19687-T




                          APPELLANT’S BRIEF

                      ORAL ARGUMENT REQUESTED




                                                    Submitted by:
                                                    Paula J. Gaus
                                                    P O Box 7696
                                                    Dallas, TX 75209
                                                    972-252-2626
Identity of Parties and Counsel

The following is a list of all parties and all counsel in this matter:

Appellant:                        CHRISTY CALVERT (f/k/a MOROCH) COLLINS

Attorney for Appellant:           Paula J. Gaus
                                  P O Box 7696
                                  Dallas, TX 75209

Appellee:                         THOMAS FRANCIS MOROCH

Attorney for Appellee:            CHRISTOPHER WEILL
                                  1601 Elm Street, Suite 1900
                                  Dallas, TX 75201

Intervenor:                       LUKE GUNNSTAKS
                                  15150 Preston Road, Suite 300
                                  Dallas, Texas 75248




                                                i
Table of Contents

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Appellant’s Brief--Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

                    Issue 1           Validity of the May 4, 2009 Order. . . . . . . . . . . . . . 15

                    Issue 2           Intervenor’s Attorney Fees. . . . . . . . . . . . . . . . . . . 18

                     Issue 3          Enforcement of Personal Property Provisions. . . . . 24

                     Issue 4          Losses During Appeal. . . . . . . . . . . . . . . . . . . . . . . 29

                    Issue 5.          Attorney Fees to Appellant . . . . . . . . . . . . . . . . . . . 32

                              Prayer

                              Certificate of Service

                              Certificate of Compliance

         Appendix Index

         Appendix

                                                                ii
INDEX OF AUTHORITIES

Texas Cases

     Baugh v Myers, 694 S.W .2d 64 (Tex. App. –Corpus Christi, 1985) . . . . 30

     Beyer v Templeton, 147 Tex. 94, 212 S.W .2d 134 (1948) . . . . . . . . . . . . 31

     Black Lake Pipe Line Co. V Union Const. Co.
           538 S.W . 2d 80, 86 (Tex. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

     Brown v Fullenwelder, 52 S.W .3d 169 (Tex. 2001) . . . . . . . . . . . . . . . . . 19

     Burford v Inge Construction Co., 279 S.W . 513, 9Tex Civ. App 1925) . . 20

     C & W Manhattan Assoc. V Attorney’s Title Co.
          614 S.W . 2d 883, 884-885 (Civ. Appl. – Tyler, l981) . . . . . . . . . . 23

     Craddock v Sunshine Bus Lines, 133 S.W .2d 124 (Tex. 1939) . . . . . . . . 33

     Ehlert v Indianapolis Life Ins. Co.,
            84 S.W . 2d 898 (Tex. App. –Dallas, 1935 . . . . . . . . . . . . . . . . . . . 29

     Director v Evans, 889 S.W . 2d 266, 270 (Tex. 1994) . . . . . . . . . . . . . . . . 33

     Farah v First Nat’l Bank,
     624 S.W . 2d 341(Tex. App. — Fort W orth, 1981) . . . . . . . . . . . . . . . . . . 27

     Fennell v Troel, 226 S.W . 442 (Tex. Civ. App. 1920) . . . . . . . . . . . . . . . . 20

     General American Reserve Ins. Co. v Britton,
          406 S.W . 2d 901 (Tex, l966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

     Groves v Western Realty Co., 84 S.W .2d 835 (Tex. App. – Dallas, 1935).30

     Guaranty Fed. Sav. Bank v Horshoe Operating Co,
          793 S.W .2d 652 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

     Hargrove v Insurance Investment Corp.,
           142 Tex. 111, 176 S.W . 2d 744,747 (l947) . . . . . . . . . . . . . . . . . . 28

                                                    iii
Industrial Life Insurance Co. v Finley, 382 S.W . 2d 100 (Tex., 1964)                       20,21

In re Lynd Co., 195 S.W .3d 682, 686 (Tex. 2006). . . . . . . . . . . . . . . . . . 17

Ex parte Lohmuller, 103 Tex. 474, 129 S.W . 834 (Tex.1910) . . . . . . . . . 28

McCarty v Humphrey, Tex. Comm. App., 261 S.W . 1014 (1924) . . . . . . 20

McCormack v Guillot, 597 S.W .2d 345 (Tex. 1980) . . . . . . . . . . . . . . . . . 16

McWilliams v McWilliams, 531 S,W . 2d 392
     (Tex. App. – Houston [14 th Dist.]) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Moroch v Collins, 174 S.W .3d 849 (Civ. Appeal–Dallas, 2005 . . . . . . . . . 3

Murray v Murray, 276 S.W .3d 138
     (Tex. App. – Fort W orth 2008, pet filed) . . . . . . . . . . . . . . . . . . . . . 25

Oil Field Hauler Ass’n v Railroad Commission,
      381 S.W .2d 183, 191 (Tex. l965) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Ortiz Oil Co. V Geyer, 138 Tex 373, 159 S.W . 2d 494 (l941) . . . . . . . . . . 20

Parsons v. Watley, 492 S.W . 2d 61, 63 (Tex. App. -- Eastland, 1973).. . .28

Payne v Loughlin, 486 S.W . 2d 192, 194
           (Tex. App. — Dallas 1972, no writ) . . . . . . . . . . . . . . . . . . . . 32

Phillip v Phillips, ____ S.W . 3d _____, (W L 792757)
        (Tex. App.–El Paso, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Robertson v National Spiritualists’ Ass’n, 25 S.W .2d 889
     (Tex. Civ App. 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Roylex, Inc. v S & B Engineers, Inc.,
     592 S.W .2d 59, (Tex. App, – Texarkana, 1979) . . . . . . . . . . . . . . . 21

Schwartz v Jefferson, 520 S.W .2d 881 (Tex.1975) . . . . . . . . . . . . . . . . . 28



                                                   iv
     Simms Oil Co. V American Refining Co.,
          Tex. Comm. App., 288 S.W . 163 (1926) . . . . . . . . . . . . . . . . . . . . 20

     Schwartz v Jefferson, 520 S.W .2d 881 (Tex. 1975) . . . . . . . . . . . . . . . . . 25

     Ex parte Slavin, 412 S.W .2d 43 (Tex. 1967) . . . . . . . . . . . . . . . . . . . . . . 25

     Stuart Title Guar. Co. V Sterling, 822 S.W .2d 1, 12 (Tex. 1991). . . . . . . 32

     Texas & Pacific Ry. Co. V Poe, 131 Texas 337, 115 S.W . 2d 591 (l938). 20

     Texas Trunk R.R. v Jackson, 85 Tex. 605, 22 S.W . 1030, 1031 (1898)....30

     Wachendorfer v Wachendorfer, 615 S.W .2d 852
         (Tex. App. --Houston [1 st Dist] 1981, no writ) . . . . . . . . . . . . . . . . . 32

     Yale v Heard, 26 Tex 639, 640-641 (1863) . . . . . . . . . . . . . . . . . . . . . . . 31


Texas Code

     Tex. R. App. P. 24.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

     Tex. Business & Comm. Code § 3.311 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

     Tex. Civ. Prac. & Rem Code § 38.001. . . . . . . . . . . . . . . . . . . . . . . . . . . 32

     Tex. Fam. Code § 7.001-.007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,27

     Tex. Fam. Code, § 9.001-9.014 . . . . . . . . . . . . . . . . . . . . . . . . 18,24,25,32

     Tex. R. Civ. Pro. Rule 306a . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,14,16,17

     Tex. R. Civ. Pro. Rule 306c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

     Tex. R. Civ. Pro. 308.          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25




                                                v
                                    STATEMENT OF THE CASE

       This is post-divorce enforcement of a January 15, 2003 Decree of Divorce,

which Decree has previously been appealed and affirmed. During Appeal,

Husband failed to post a supersedeas bond and refused to cooperate in the sale

of the residence subject of the appeal until ordered to do so in June 2004. W ife

is seeking damages for the depreciation in value of the property, accrued taxes,

interest and penalties, and for real estate commission. Personal property is also

missing from the residence which Wife claims was awarded to her. Wife seeks

attorney fees for enforcement of the Decree. Court initially entered a default

judgment.1 After Motion for New Trial, the Court ultimately determined that no damages

were incurred by Wife and the personal property provisions in the Decree are to vague

to be enforced. 2

       Wife’s trial attorney intervened in the case, and ultimately Wife was ordered to

pay his fees in spite of “accord and satisfaction” and other legal defenses.




       1
           Clerk’s Record, (“C.R.” hereafter), p. 142 ff.

       2
           C.R., p. 296 ff.
______________
Appellant’s Brief                                                              Page 1 of 37
                                   INTRODUCTION

TO THE HONORABLE COURT OF APPEALS:

       This case is related to a previous appeal in this Court, 05-03-0829

(Moroch v Collins, 174 S.W .3d 849 (Civ. Appeal–Dallas, 2005) pet. denied,

which was timely filed by Husband THOMAS MOROCH in April 2003

complaining of the Decree of Divorce signed by the Court on January 15, 2003.

That appeal was related predominantly to a residential property (the “Deloache

property’) which was owned by the parties, awarded to W ife CHRISTY CALVERT

(f/k/a MOROCH) COLLINS Appellant herein by virtue of her economic

contribution award. Upon Husband’s request, a supersedeas bond was set at

$1,250,000.00, but the bond was not posted. Nevertheless, Wife was unable to

sell the house and substantial losses and damages resulted. Husband does not

believe that he should be obligated to pay for losses or damages incurred while

the case was on appeal. The Court agreed with Husband. Husband also failed

to deliver certain personal property located at the residence, stating that it is his.

       In the process, W ife’s trial attorney (who declined to act as her appellate

attorney) alleges that W ife incurred substantial additional attorney fees, which

W ife feels are neither reasonable nor necessary. Wife wrote Attorney a “Final

Payment” Check, which Intervenor Attorney cashed after crossing out “Final”.”

Attorney was awarded $55,000.00 in post-divorce attorney fees against W ife,

which W ife finds objectionable.
______________
Appellant’s Brief                                                           Page 2 of 37
       The Court entered a default judgment when Husband did not appear for

trial. Husband’s attorney was aware of the judgment before it was signed, but did

not file a Motion for New Trial or take any action to have the judgment set aside

until almost 90 days after the judgment was signed.



                           ISSUES PRESENTED

       1.      W hether the Court could grant THOMAS MOROCH’s Tex.R.Civ.Pro.
               306a motion when he had actual notice of the trial date and the
               Court’s default judgment before the Order was signed, but failed to
               take any steps to protect himself from the judgment until the Clerk’s
               belatedly sent him a copy of the Judgment.


       2.      W hether Attorney C. Luke Gunnstaks is a proper Intervenor and
               whether Appellant’s defenses of “accord and satisfaction” and “no
               contract” should have defeated Intervenor’s attorney’s fees in the
               amount of $55,400.0, which were awarded to him against CHRISTY
               CALVERT COLLINS.

       3.      W hether the Court erred when it found the personal property
               provisions of the Decree of Divorce were ambiguous and
               unenforceable, and that Appellant could not be compensated for her
               personal property losses.


       4.      W hether the Court erred when it failed to award CHRISTY
               CALVERT COLLINS a judgment for damages for the depreciation in
               value, taxes accrued, and real estate commission incurred for the
               real property at issue pending THOMAS MOROCH’s unsuccessful
               appeal.

       5.      W hether the Court erred when it failed to award any attorney’s fees
               to Appellant when Appellee Husband failed and refused to return
               personal property awarded to Appellant, and when he failed to pay
               her damages for the period of the pendency of the previous appeal.

______________
Appellant’s Brief                                                         Page 3 of 37
                                      STATEMENT OF FACTS

Attorney Fees Dispute

       Mr. Gunnstaks, attorney for W ife CHRISTY CALVERT (MOROCH)

COLLINS, testified at the divorce trial that Wife had incurred $99,408.01 in

attorney fees through October 2002, the last month before the trial actually

ended.3 Mr. Gunnstaks did not testify prospectively regarding his estimated fees

to get from the trial, through the rendition(s), to a signed decree and all post-trial

proceedings up to the Husband’s appeal. The Trial Court awarded Mr.

Gunnstaks fees of $99,408.01 taxed 100% against Husband for the Divorce

Litigation. Husband THOMAS MOROCH appealed the attorney’s fees award,

among other complaints, and the award was affirmed on appeal.

       Mr. Gunnstaks apparently accrued an additional $20,408.25 from the

October 2002 invoice until the Divorce Decree was signed 4 and another

$10,000.00 (approx.) before post-trial proceedings concluded.5 Mr. Gunnstaks’

contract with Appellant specified that scope of his engagement was “divorce with

custody; no tax, criminal, bankruptcy or appellate representation.” 6 When

THOMAS MOROCH appealed the Divorce Decree, Appellant hired Appellate


       3
            Court Reporter’s Record (“C. Rep. R.” hereafter) Supp., Vol. 8, pp. 109-110, Lines 23 ff. - 5.

       4
           C. Rep. R.,   Vol. 5, Intervenor’s Exhibit 2.
       5
           C. Rep. R., Vol 2, p. 6, Lines 5 - 8; p. 7, Lines 1 - 7. Also see, Clerk’s Record, (“C.R.” hereafter), p. 90 .

       6
           C.R., p. 80, final paragraph .
______________
Appellant’s Brief                                                                                         Page 4 of 37
Counsel. Thereafter, Mr. Gunnstaks “assisted” with the Appeal, which involved

reviewing the appellate brief for accuracy and appearing at oral argument. After

receiving invoices for those services which total an additional $27,000.00

(approx.), W ife terminated Mr. Gunnstaks’ services, wrote a “Dear Luke” letter7

and delivered a “Final Payment” check in the amount of $2,000.00. Mr.

Gunnstaks crossed out “Final” and deposited the check, which is not in dispute.8

Mr. Gunnstaks then withdrew from further representation.9

       During the same appellate time period, the attorney who actually wrote the

Appeal and Mandamus briefs, crafted the successful arguments, prepared the

substantive oral arguments, billed Appellant W ife the sum of $ 27,563.86.10

Appellant CHRISTY CALVERT COLLINS paid fees to her Appellant Attorney.

W hen Appellant received monies by virtue of a post-appeal garnishment of

Husband’s accounts for the amounts due under the Decree, Appellant kept the

amounts garnished to compensate her for the fees she had paid.11 Mr.

Gunnstaks objects to Appellant’s retention of those funds, though he did not




       7
            C. Rep. R., Vol. 5, Intervenor’s Exhibit 11.

       8
            C.R., p. 93 and C. Rep. R., Vol. 5, Exhibit 2. Testimony from Appellant, C. Rep. R., Vol.3. p.59.

       9
            C. Rep. R., Vol. 5, Intervenor’s Exhibit 12.

       10
            C. Rep. R .Supp. , Vol. 8, p. 71, lines 13-19.

       11
            C. Rep. R. Supp.., Vol. 8, p. 90, lines 1-4.
______________
Appellant’s Brief                                                                                     Page 5 of 37
garnish the accounts in order to assist Ms. Collins in obtaining funds due her.12

        A Motion to Strike the Intervention and/or a Motion for Partial Summary

Judgment13 on the issues of attorney’s fees due Mr. Gunnstaks, based upon

“accord and satisfaction” and upon his lack of contract were rejected by the

Court.14

        The Appellant W ife argued that Mr. Gunnstaks has no standing to

intervene in this case, but the court found that he was a proper party.15 Although

counsel for Appellant asked to proceed only on the Motion to Strike Intervention,

the Court over her objection, proceeded to take up the matter of the Motion for

Summary Judgment.16 Later, it appears that Appellee Husband also argues that

Mr. Gunnstaks has no standing to intervene in the case.17 It also appears from

Mr. Gunnstaks’ records that the $99,408.00 awarded in the Decree was actually

paid by Ms. Collins, and then some.18 Intervenor rejected the argument that he



        12
              C. Rep. R. Supp., Vol. 8, p. 107, lines 1-2.

         13
              C.R., p. 51 -106.

        14
           C.R., p. 131 & 132. Note that the Order is entitled “Order Granting Motion to Strike,” but the Motion is
in fact DENIED.

        15
              C. Rep. R., Vol. 2, p. 23, lines 17-22.

        16
              C. Rep. R., Vol. 2, pp. 23-24, lines 24 ff.

        17
           C. Rep. R. Supp., Vol. 8, p. 92, line 16; p. 105, line 5-6 & 24-25. Apparently Appellee’s brief was
handed to Intervenor during final argument, but it does not appear in the record.

         18
           C.R., p. 83. A payment on January 9, 2003, months after the October 2002 final fees determination
shows that Ms. Collins had a credit of $1,498.98.
______________
Appellant’s Brief                                                                                     Page 6 of 37
received the “final payment” check as final payment, triggering accord and

satisfaction defenses, stating that he understood the accompanying letter to

mean that Ms. Collins was paying him for appearing at Oral Argument only. He

did not seek any explanation from CHRISTY CALVERT COLLINS; he cashed the

modified check. Mr. Gunnstaks did not explain why he felt compelled to cross

out “final” in the memo section of the check.19



The DeLoache Residence

       W hile the Appellate lawyer was diligently representing her client in this

Court, the Deloache residence was deteriorating, diminishing in value, and

accruing taxes. The Decree of Divorce did not require THOMAS MOROCH,

Appellee, to sign a warranty deed and while the appeal was pending, the Decree

was insufficient to convey insurable title. THOMAS MOROCH refused to sign a

warranty deed while the Appellate case was pending and even after this Court

granted partial mandate to Trial Court which required the signing of a deed,

THOMAS MOROCH filed a Lis Pendens 20 which had to be set aside by the

Court.21 In a word, THOMAS MOROCH obstructed the sale both actively and

passively.


       19
            C. Rep. R., Vol. 2.

       20
            C. Rep. R. Supp., Vol. 9, Pet. Exhibit 3.

       21
            C. Rep. R. Supp., Vol. 9, Pet. Exhibit 4.
______________
Appellant’s Brief                                                          Page 7 of 37
        In this case, it is very easy to determine the value of the losses and

damages. In a strange twist of fate, Mr. and Mrs. J.D. Dell offered to purchase

the house from the owner, Appellant CHRISTY CALVERT COLLINS, for

$2,000,000.00 at the time of the entry of the Decree of Divorce–January 15,

2003. W hen W ife was unable to convey insurable title, they withdrew their offer

and proceeded to buy another property. However, Mr. and Mrs. Dell actually

purchased the DeLoache residence after it was listed for sale in July 2004. By

the listing date, the condition of the house had depreciated, the market had

changed, and the taxes and real estate commissions ate up a significant portion

of Appellants profits. The gross difference to CHRISTY CALVERT COLLINS

was $250,000.00 based upon the difference between the sales price in the first

                                    22
contract (2,000,000.00)                  and the sales price in the second contract

($1,750,000.00).23 Other key differences between the net proceeds available to

Appellant between the two contracts included the $35,000.00 real estate

commission paid under the terms of the second contract, and the accrued taxes.

The 2002 taxes of $38,211.04 were to be paid by W ife pursuant to the terms of

the Decree of Divorce, even though THOMAS MOROCH lived in the residence

throughout the entire 2002 year. If the closing on the first contract had taken

place in February 2002, those would have been the only taxes due. By


        22
             C. Rep. R. Supp., Vol. 9, Resp. Exhibit 26, Affiant’s Exhibit 1.

        23
           C. Rep. R., Vol. 5, Exhibit 1A.
______________
Appellant’s Brief                                                                     Page 8 of 37
September 10, 2004, CHRISTY CALVERT COLLINS paid $27,227.83 for the

period of January 1, 2004 to September 10, 2004 24 and $117,090.91 in taxes,

                                                           25
penalties and interest for the tax years 2002 and 2003,         as well as court costs

and attorney fees related to the tax suit ($514.00). The total taxes paid by wife

were $144,318.54. Her total demonstrable losses related to the real property

stand at $394,832.74, at a minimum.



Personal Property

        CHRISTY CALVERT COLLINS also complains of certain personal property

not delivered by Husband in compliance with the terms of the Divorce Decree, or

more specifically not remaining in the residence at the time that Husband finally

vacated the residence. The Decree26 provided in relevant part as follows:

       “It is ORDERED AND DECREED that the wife CHRISTY CALVERT COLLINS
MOROCH is awarded the following as her sole and separate property and the husband
is divested of all right, title, interest and claim in and to that property:

       W-1. Property listed on the attached Exhibit “B” per terms fo the Post-nuptial
Agreement, signed on October 30, 1987, incorporated herein by reference, confirmed
as her separate property...

       W-4. Personal property as listed on the attached Exhibit ‘E” incorporated herein
by reference.”

        Exhibit “B” states that CHRISTY CALVERT COLLINS owns separate property


        24
             C. Rep. R., Vol. 5, Pet. Exhibit 1A .

        25
             C. Rep. R., Vol. 5, Pet. Exhibit 1B .

        26
           C. Rep. R. Vol. 5, Resp. Exhibit 2A.
______________
Appellant’s Brief                                                             Page 9 of 37
including “(5) all furniture, furnishing and fixtures located at 5106 DeLoache, Dallas,

Texas.”

       Exhibit “E” states that Wife is awarded ...”all property in her possession, all

property in, that’s currently in the house on DeLoache, with the exception of the box

springs and the three compressors. And she is awarded the two suits of armor, if they

are found, the tapestries, the pole arms and the chainmail suit. The Husband is

ordered to write a letter to the entity or person in possession of the tapestries,

requesting their immediate return to Ms. Moroch...”

       And further recites with regard to the award to Husband:

         “It is ORDERED AND DECREED that the husband THOMAS MOROCH is
awarded the following as his sole and separate property and the wife is divested of all
right, title, interest and claim in and to that property:

       H-1. Property listed on the attached Exhibit “C” per terms fo the Post-nuptial
Agreement, signed on October 30, 1987, incorporated herein by reference, confirmed
as his separate property.

       H-2. Personal property as listed on the attached Exhibit ‘F” incorporated herein
by reference; and

       H-3. No other property.” [emphasis added]

       Exhibit C lists specific property including the valuable interest in Moroch and

Associates which is not in contention.

       Exhibit F specifies that THOMAS MOROCH is awarded “all property in the

possession of THOMAS MOROCH AND the three air conditioner compressors

and 2 box springs in the DeLoache home.”

       Wife alleges that Husband has failed and refused to deliver the property that was

“currently in the house on DeLoache...and two suits of armor, if they are found, the
______________
Appellant’s Brief                                                               Page 10 of 37
tapestries, the pole arms, and the chainmail suit.” Wife alleges that the following items

from the house on DeLoache were removed prior to the Husband’s vacating the

residence: 2 griffins from gate, 2 bronze statues by fireplace, 12 Disciple chandelier,

her father’s desk, moose head, entry hall hat holder, 2 chairs from the dining set, filing

cabinet from office, 1 night stand from master bedroom suite, her furniture from the

Grassmere residence, 3 boxes from house labeled “most precious possessions”.

Cantoni cocktail table, glass Cantoni table, and Leroy Nieman portrait of Duke the

Dog.27

         Mr. J.D. Dell testified that certain items were present when he first inspected the

house in October 2002 before Husband moved out, but were not present after the

house was vacated in January 2003:28 one suit of armor, two griffins at the gate, two

bronze statues, 12 apostles chandelier (remained for a period and then disappeared

prior to the closing). His affidavit29 further indicates that four antique chairs were

present and then went missing. He further testified that the house improved

immediately after Husband vacated it due to “dollars and effort” spent by Ms. Collins,

but that it then declined,30 diminishing its purchase price.

         THOMAS MOROCH offered his handwritten and typed inventories of the

personal property at the house.31 THOMAS MOROCH testified that he removed certain

         27
              C. Rep. R., Vol. 3, pp. 31 - 36.

         28
              C. Rep. R. Supp., Vol. 6, p. 59 - 70.

         29
              C. Rep. R. Supp., Vol. 9, Resp. Exhibit 28.

         30
              C. Rep. R. Supp., Vol. 6, p. 71- 73, lines 16 ff. to line 1.

         31
           C. Rep. R. Supp., Vol. 9, Resp. Exhibits 5 & 5A respectively.
______________
Appellant’s Brief                                                                Page 11 of 37
items, either to protect them or inadvertently.32 The end table, a desk, a hall tree and

“another item” were removed and retained.33 Not one of these items was confirmed as

THOMAS MOROCH’s separate property in the post-nuptial agreement or in the divorce

decree. THOMAS MOROCH assumes that he did review the divorce decree which

specifies that CHRISTY CALVERT COLLINS was awarded “all furniture, furnishings

and fixtures located at 5106 DeLoache.”34 The Court’s file does not contain a request

by Mr. Moroch to clarify what that meant. He did not ask CHRISTY CALVERT

COLLINS before removing items that are clearly covered under the broad language of

the order, such as the children’s furniture and personal property.35 CHRISTY objects to

the removal of her father’s desk, the bedside table, the Duke the Dog picture, the

moose head which THOMAS MOROCH by his own admission removed. By his own

testimony, THOMAS MOROCH removed Appellant’s father’s desk, a bedside table from

DeLoache because he thought they were his “personal.” The inventory apparently

reflects his belief that the “missing” mounted moose head is “owned by Moroch and

Associates,”36 though CHRISTY CALVERT COLLINS had previously testified that it

came from an antique sale.37 The “Duke the Dog’ picture CHRISTY seeks38 is currently


         32
              C. Rep. R. Supp., Vol. 8, p. 25, lines 3 - 7.

         33
              C. Rep. R. Supp., Vol. 8, p. 25, lines 21-23.

         34
              C. Rep. R. Supp., Vol. 8, pp. 42-43, lines 23 - 4.

         35
              C. Rep. R. Supp., Vol. 8, p. 46, lines 17-24.

         36
              C. Rep. R. Supp., Vol. 9, Resp. Exhibit 5 , p.1.

         37
              C. Rep. R., Vol. 3, p.35, lines 5 - 11.

         38
           C. Rep. R., Vol. 3, p. 38, lines 14-22.
______________
Appellant’s Brief                                                             Page 12 of 37
at THOMAS MOROCH’s stepson’s house.39 He does not cite to any portion of the

Divorce Decree awarding him those items or the post-nuptial agreement affirmed in the

Divorce Decree allocating to him those items.40 Both of those legal documents

specifically do not award him those items. THOMAS MOROCH’s attitude is well

represented by the inventories he prepared. Although he was clearly awarded “two box

springs and three air conditioner compressors” from the residence, he determined that

the “bed (4 post - new)... the billboard/pool table...(Christy’s “missing”) entry way clothes

rack.... antique box..... oil painting of Tom/Christy ....leather couch and chairs with

ottomans...large screen TV, DVD player.....iron table.....washer and dryer...lazy boy

chairs...1987 Porsche and 1990 limo” were all located at the residence on DeLoache

but they were “ * Thomas Moroch personal.” The personal property furniture,

furnishings and fixtures items awarded to THOMAS MOROCH in the Decree were in his

possession at any location except the DeLoache residence. Many of the items

removed from the residence are/were not disputed by CHRISTY CALVERT COLLINS,

but to the extent that any of the items constituted “furniture, furnishings or fixtures

currently in the house on DeLoache,” they were awarded to CHRISTY and not to

THOMAS. The Court erred when it seemed to indicate that the items she did seek

were not significant enough to argue over.41




         39
              C. Rep. R. Supp., Vol. 8, p. 48, lines 12-15.

         40
              C. Rep. R. Supp., Vol. 8, p. 48, lines 5-15 and lines 19- 22.

         41
           C. Rep. R. Supp., Vol. 8, p. 46, lines 8-10.
______________
Appellant’s Brief                                                                Page 13 of 37
                         SUMMARY OF THE ARGUMENT

       The Court erred when it granted THOMAS MOROCH’s Tex.R.Civ.Pro.

306a Motion.

       The Court erred in finding that C. LUKE GUNNSTAKS attorney fees gave

him standing to intervene in this case, and in granting a judgment for fees which

were not contractual, reasonable or necessary, and after he cashed a “final

payment” check.

       The Court erred in finding that the decree did not require THOMAS

MOROCH to leave all ‘furniture, furnishings and fixtures currently located in the

house on DeLoache” except for those which he was specifically awarded and in

not awarding judgment for the value of those items retained by him.

       The Court erred in failing to award CHRISTY CALVERT COLLINS a

judgment against THOMAS MOROCH for damages incurred while the divorce

case was on appeal, where the judgment was affirmed on every issue, and there

was not supersedeas bond posted.

       The Court erred in not awarding attorney fees on the enforcement issues

and for the privilege of having a default judgment set aside.




______________
Appellant’s Brief                                                      Page 14 of 37
                                                ARGUMENT

ISSUE 1.            THOMAS MOROCH did not appear for Trial and once notified that
                    the trial had been commenced and concluded in his absence, did not
                    file a Motion for New Trial or otherwise timely protect himself from
                    the default judgment.

         On November 27, 2008, the Motion to Strike Intervention and/or for Partial

Summary Judgment was heard. Neither THOMAS MOROCH nor his attorney

appeared.42 The Trial Court wished to set the final trial, having ruled against

Appellant on both motions. The Court called CHRISTOPHER W EIL to determine

his availability for trial. The trial was set for April 10, 2009 at 1:30 in compliance

with Mr. W eil’s’ schedule. The Court specifically related to Mr. W eil that he and

his client were important and should appear for the trial on April 10, 2009 at 1:30

p.m.,43 which was noted on the Court’s docket sheet.44

         On April 10, 2009 at 1:30 and 2:00 p.m., the Court called the case and

neither Mr. W eil nor THOMAS MOROCH appeared.45 The trial commenced and

was concluded. On April 28, 2009, Christopher Weil wrote a letter to the Court

indicating that he was aware that a default judgment had been taken against his

client, and requesting that the Court refuse to sign an order until a hearing is




         42
              C. Rep. R., Vol. 3, p. 12, lines 4 - 15.

         43
              C. Rep. R. Supp., Vol. 9, Pet. Exhibit 1.

         44
              C. Rep. R., Supp., Vol. 9, Int. Exhibit 1. Note that the docket sheet in the C.R., p.5 ff. is incomplete.

         45
           C. Rep. R., Vol. 3, p. 6, lines 15-23.
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Appellant’s Brief                                                                                          Page 15 of 37
held.46 He also noted that the docket sheet reflected that a Proposed Order was

to be delivered to the Court by April 30, 2008 at 4:00 p.m. He alleged that he had

not been given notice of a trial setting, though he was given the same notice as

the other parties to the telephone conference setting.     An Enforcement Order

was signed on May 6, 2008.47 The Court retains jurisdiction to set aside that

order, modify that order or grant a new trial for thirty days. See, McCormack v

Guillot, 597 S.W.2d 345 (Tex. 1980). See, Tex.R.Civ.Pro. 306a.

        The District Clerk reportedly failed to send a copy of the signed

Enforcement Order to THOMAS MOROCH, although a Certificate of Last Known

Address was timely filed by Appellant.48 Tex. R. Civ. Pro. 306a(3) specifies that

“the clerk of the court shall immediately give notice to the parties or their attorney

of record by first-class mail advising that the judgment or order was signed.

Failure to comply with the provisions of this rule shall not affect the periods

mentioned in paragraph (1) of this rule [establishing periods of the court’s plenary

power to vacate or modify a judgment, or grant new trial], except as provided in

paragraph (4).” Nevertheless, no Motion to Vacate the Judgment, Motion for New

Trial or to Set Aside Default Judgment was filed until August 8, 2008. Rather,

THOMAS MOROCH waited until August 4, 2009, ninety days after the signing of



        46
             C.R. Supp., p. 126.

        47
             C.R., p. 142.

        48
           C.R., p. 141.
______________
Appellant’s Brief                                                           Page 16 of 37
the Court’s Order to obtain a ruling on the Application of Rule 306a(4).49

        There is no argument with THOMAS MOROCH’s contention that he did not

receive a copy of the Enforcement Order within 20 days. However, Tex. R. Civ.

Pro. 306(a)(5) requires that “to establish the application of paragraph (4), the

party adversely affected is required to prove in the trial court, on sworn motion

and notice, the date on which the party or his attorney first either received a

notice of the judgment or acquired actual knowledge of the signing and that this

date was more than twenty days after the judgment was signed.”

        Based upon the April 28, 2009 letter written by Mr. W eil, it appears that he

had “notice of the judgment” before it was even signed, since that is what his

letter states. Tex. R. Civ. Pro. 306c specifically contemplates that a Motion for

New Trial prematurely filed will be considered filed on the date of but subsequent

to the signing of the judgment the motion assails. But no Motion was filed.

        Appellant CHRISTY CALVERT COLLINS asserts that THOMAS MOROCH

and CHRISTOPHER W EIL had actual knowledge of the judgment on April 28,

2008, so that the Court lost jurisdiction to vacate or modify its Enforcement Order

on June 5, 2009. The Court was without jurisdiction to set a hearing on a Motion

for New Trial and any order signed by the Court granting a new trial is void. In re

Lynd Co., 195 S.W .3d 682, 686 (Tex. 2006).



        49
            C..R., p. 151. Although designated an “agreed order”, attorney for Appellant was not present due to a
conflict which had been presented to the Court in a Motion for Continuance.
______________
Appellant’s Brief                                                                                   Page 17 of 37
ISSUE 2.       If the Court finds that the Enforcement Order of May 4, 2009 is not
               the valid Order of the Court, the Trial Court erred when it entered
               Attorney’s Fees’ judgment for C. Luke Gunnstaks, Intervenor, in the
               amount of $55,400.00 against Appellant CHRISTY CALVERT
               COLLINS.

Intervention

        Intervenor was not a proper party to this suit who could have brought all or part

of the same action in his own name. (See, Guaranty Fed. Sav. Bank v Horseshoe

Oper. Co., 793 S.W. 2d 652, at 657 (Tex. 1990). The case before the trial court was a

case related to the failure of Respondent THOMAS MOROCH to deliver personal

property and failure to provide for adequate protection to real property during an

appeal. The issues in this case are related to personal losses of Petitioner. A claim is

properly severable if (1) the controversy involves more than one cause of action,

(2) the severed claim is one that would be the proper subject of a lawsuit if

independently asserted, and (3) the severed claim is not so interwoven with the

remaining action that they involve the same facts and issues.

       Specifically, Intervenor was suing to obtain attorney’s fees from either his

own client or from THOMAS MOROCH, or if THOMAS MOROCH was ordered to

pay a sum to CHRISTY CALVERT COLLINS that some or all of those funds be

assigned for his benefit. Intervenor was not a proper party to this enforcement

suit, suing for his causes of action as this suit is an enforcement of a final divorce

decree under Tex. Fam. C. § 9.001; his action was a new cause of action and the

court’s jurisdiction was improperly invoked to proceed to judgment on the

______________
Appellant’s Brief                                                             Page 18 of 37
Intervenor’s claims. See, Brown v Fullenwelder, 52 S.W .3d 169 (Tex. 2001).

The judgment for attorney’s fees to Mr. Gunnstaks should be vacated and the

intervention dismissed.

Accord and Satisfaction

       Appellant raised the affirmative defense of ACCORD AND SATISFACTION to

Intervenor's claim. Tex. Bus. & Comm. Ann. § 3.311 (Vernon Supp. 2001) provides

that a claim is discharged where the claim is subject to a bona fide dispute, a person in

good faith tenders an instrument as full satisfaction of the claim and the other party

then obtains payment on the instrument, i.e. cashes the check.

       In simple terms, Appellant is required to prove

       1. There was a bona fide dispute existing between the parties regarding a

financial obligation;

       2. That the evidence shows that a good faith tender of an instrument of a lesser

amount was tendered in full satisfaction of the claim, with conspicuous statement to the

effect that the instrument was tendered in full satisfaction of the claim; and

       3. That the evidence shows that the other party cashed the check.

       Under those circumstances, the claim is discharged, unless, the creditor

proves

       (1) that he notified the creditor that communications were to be sent to a

designated person, office or place and the instrument or communication was not

received by that designated person, office or place, or

       (2) the creditor proves that within 90 days after payment of the instrument, the

______________
Appellant’s Brief                                                                Page 19 of 37
creditor tendered repayment to debtor..

          Neither of those events occurred, as the affidavit of CHRISTY CALVERT

COLLINS attached to the Motion for Partial Summary Judgment attests. 50

          This law codifies previous case law, as it had been applied to summary judgment

on this issue. The relevant case law takes the position that the cashing of the check

establishes “an assent of the parties to an agreement that the amount” paid by the

debtor to the creditor “was in full satisfaction” of the “entire claim.” Simms Oil Co. V

American Refining Co., Tex. Comm. App., 288 S.W. 163 (1926), quoted with approval

in Ortiz Oil Co. V Geyer, 138 Tex 373, 159 S.W. 2d 494 (l941); McCarty v Humphrey,

Tex. Comm. App., 261 S.W. 1014 (1924); all cited in Industrial Life Insurance Company

v Finley, 382 S.W. 2d 100 (Tex., 1964). In that case, the court further cited the

instance where the court held there was no issue of fact where a draft was accepted

and cashed by an injured party containing the provision “In full and complete settlement

and payment for personal injuries and damages received at Sweetwater, Texas,

November 23, 1931.” Texas & Pacific Ry. Co. V Poe, 131 Texas 337, 115 S.W. 2d 591

(l938).        “The same effect are the cases of Fennell v Troel, 226 S.W. 442 (Tex. Civ.

App. 1920, no writ) in which the check notation “Payment of account in full” was marked

out before cashing, but such fact was not communicated to the debtor in advance of the

deposit; Robertson v National Spiritualists’ Ass’n, 25 S.W.2d 889 (Tex. Civ App. 1929,

Writ dism.), in which the check carried the notation ‘In full of all demands....’; Burford v

Inge Construction Co., 279 S.W. 513, 9 Tex Civ. App 1925, no writ.....” Industrial Life



          50
           C.R., page 106.
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Appellant’s Brief                                                                Page 20 of 37
Insurance Company, supra, at 105. In Roylex, Inc. v S & B Engineers, Inc., 592

S.W.2d 59, (Tex. App, – Texarkana, 1979), a company president exchanged a check

with a restrictive notation on the back for a cashier’s check, without endorsing the

check, and then sued for the balance. “Roylex, by accepting and negotiating the check,

did so under the restrictive conditions contained on the check and thus an accord and

satisfaction was effected, “ citing to Industrial Life Insurance Co. V Finley, supra, at 60.

“When Roylex received this check it was given the choice, either to accept the check as

full payment of the debt, or to return same, unaccepted and sue S & B for its full claim.”

Roylex at 60.

       When C. Luke Gunnstaks received a “Final Payment” check, he was given a

choice: either to accept the check as full payment of the debt, or to return same,

unaccepted and sue for his full claim. However, he improperly modified the check,

cashed it and sued for the remaining balance. Appellant’s letter was sufficiently clear

that she did not accept his invoices and that a fee dispute was imminent. For an

experienced and noted attorney to disregard the obvious dispute language in the letter

and to proceed to treat such a check as a payment on account stretches the law. For

him to deface the check before cashing it does not support his position.       Appellant

testified that she thought by cashing the check, Mr. Gunnstaks was agreeing to the final

payment and did not intend for him to apply it to her account.51




       51
            C. Rep. R., Vol. 3, p. 57, lines 15-25.
______________
Appellant’s Brief                                                               Page 21 of 37
No Contract Claim

         The contract C. LUKE GUNNSTAKS relies upon, which is attached to his Motion

to Intervene as Exhibit A52 recites that the scope of engagement: “DIVORCE and

CUSTODY. NO TAX, CRIMINAL, BANKRUPTCY OR APPELLATE

REPRESENTATION.” The bulk of C. Luke Gunnstaks’ fees are for appellate

representation.

         At the time of the conclusion of the divorce on January 15, 2003, Appellant had

a credit balance of $1,498.98. At that time, that would have covered all the attorneys

fees to that date. Intervenor testified that through October 2002 attorneys fees totaled

$99,408.01. CHRISTY CALVERT COLLINS was granted a judgment for attorneys fees

with interest for legal work in her divorce through the date of the divorce based on

Intervenor’s trial testimony that such fees were due for the divorce representation,,

payable and reasonable and necessary. No other fees were presented as evidence. If

additional fees had been presented, it seems likely that the Court would have

awarded judgment for the additional fees to CHRISTY CALVERT COLLINS and

against THOMAS MOROCH.

Sworn Account

         The sworn account post-divorce is based upon a contract for services which

does not apply to the services rendered: appellate representation. According to the

billing records of C. LUKE GUNNSTAKS all the contracted divorce fees were paid in full

through January 15, 2003, the Date of the Decree.


         52
           C.R., p. 34.
______________
Appellant’s Brief                                                             Page 22 of 37
Quantum Meruit

       To prevail in an action in quantum meruit, the court must find that there was no

contract, because recovery under quantum meruit presumes that a valid contract does

not exist. If the court has determined based upon C. LUKE GUNNSTAKS proffered

contract that no contract for appellate representation exists, then the court may

consider a quantum meruit claim.

       A right to recover in quantum meruit is based on a promise implied by law to pay

for beneficial services rendered and knowingly accepted. See, Black Lake Pipe Line

Co. V Union Const. Co. 538 S.W. 2d 80, 86 (Tex. 1976).

     In order to prevail, C. LUKE GUNNSTAKS must show that

               1. Valuable services were rendered;

               2. The services were rendered for the recipient sought to be charged;

               3. The services were accepted by the person sought to be charged; and

               4. The services were accepted under such circumstances as reasonably

               notified the recipient that the plaintiff expected to be paid.

       The intervenor must establish that the services were valuable from the

perspective of CHRISTY CALVERT COLLINS. If the services do not confer a benefit

on her, there can be no recovery for the value of a benefit conferred because the

services are not deemed valuable. See. C & W Manhattan Assoc. V Attorney’s Title

Co. 614 S.W. 2d 883, 884-885 (Civ. Appl. – Tyler, l981, ref. n.r.e.).      The affidavit of

CHRISTY CALVERT COLLINS establishes that she did not need services from C.

LUKE GUNNSTAKS because she had appellate counsel who would and could and did

handle all aspects of the appeal. Her letter to C. LUKE GUNNSTAKS reiterated that
______________
Appellant’s Brief                                                                 Page 23 of 37
she had appellate counsel and did not require services for that matter. She did not

perceive that the services provided were valuable.

         The Judgment for attorney fees should be vacated and the Intervenor’s cause

dismissed.



ISSUE 3.          The Court erred when it found the personal property provisions of the
                  Decree of Divorce were ambiguous and unenforceable. The Court
                  erred when if failed to find that THOMAS MOROCH should
                  compensate CHRISTY CALVERT COLLINS for removing items from
                  the residence beyond those awarded to him: to wit, 2 box springs
                  and 3 air conditioner compressors.

         It was error for the Trial Court to find that the Divorce Decree was too

vague to be enforced. 53 The Trial Court had previously divided the parties’

property in a Decree of Divorce signed on January 15, 2003, pursuant to the

provisions of Tex. Fam. Code § 7.001. The Court has the authority to enforce

the Decree. Tex. Fam. Code § 9.002. The Enforcement requested by Appellant

is timely.

         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 § 9.006. On the request of a party or on the

Court’s own motion, the court may render a clarifying order before a motion for

contempt is made or heard...” Tex. Fam. Code § 9.008(a). On finding by the




         53
           C. Rep. R. Supp., Vol. 8, p. 96, lines 2-11.
______________
Appellant’s Brief                                                           Page 24 of 37
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. Tex.

Fam. Code § 9.008(b). W hen read in conjunction with Tex. Fam. Code § 7.001,

where the Court “shall order a division of the estate of the parties in a manner

that the Court deems just and right...” it appears that the Court may not simply fail

to determine the ownership interest of certain personal property that at least one

party finds has especial value. See also, Tex.R.Civ.Pro. 308. CHRISTY

CALVERT COLLINS requested such a clarification if necessary.54 Schwartz v

Jefferson, 520 S.W .2d 881 (Tex. 1975); Murray v Murray, 276 S.W.3d 138 (Tex.

App. – Fort W orth 2008, pet filed).

         The Court references “Slavic”55 which is probably a typographical error

reference to Ex parte Slavin, 412 S.W .2d 43 (Tex. 1967), which is appropriate to

reference when the issue is child support contempt. In this case, Appellant is

seeking damages. If the decree is too vague to be enforced, as for example, if

there is no date certain for delivery of property as alleged, the Court may clarify

that order to give a date certain, but should not simply disregard the property

division incorporated into an Order of the Court. Tex. Fam. Code, § 9.008.

         This honorable court has previously referred to the Post-nuptial agreement


         54
              C.R., p. 138, #10.

         55
           C. Rep. R. Suppl, Vol. 8, p. 95, line 2.
______________
Appellant’s Brief                                                            Page 25 of 37
paragraph 6.01 which provided that “All property not listed on any schedule attached to

this agreement will be owned by [Christy] as separate property. [Thomas] grants,

conveys and assigns to [Christy] an undivided one hundred percent (100%) interest in

any such unlisted property owned in the name of either party.”56 This Court has

previously found that this provision granted to CHRISTY CALVERT COLLINS every

asset which existed at the time of the agreement, which was not specifically awarded to

THOMAS MOROCH. 57 None of the listed missing items were specifically awarded to

THOMAS MOROCH, but THOMAS MOROCH testified that he removed items from the

residence anyway.
                                        58
        The Divorce Decree,                  page 28, awarded property to the W ife: (W -1) :

“property listed on the attached Exhibit “B” per the terms of the Post-nuptial

agreement...”, and (W -4) “personal property as listed on attached EXHIBIT “E”,

incorporated by reference.”

         Exhibit E specifies that the CHRISTY CALVERT COLLINS is awarded...all

property in her possession, all property that is “currently in the house on

DeLoache, with the exception of the box springs and the three compressors. And

she is awarded the two suits of armor, if they are found, the tapestries, the pole

arms and the chainmail suit.” [emphasis added]

        The Divorce Decree, page 29, awarded property to Husband: (H-1)


        56
             C. Rep. R. Supp., Vol. 9, Resp. Exhibit 23.

        57
             Moroch v Collins, 174 S.W .. 3d 849 (Civ.App.– Dallas, 2005) at 859.

        58
           C. Rep. R. Supp., Vol. 9, Resp. Exhibit 2A.
______________
Appellant’s Brief                                                                    Page 26 of 37
“property listed on the attached Exhibit “C” per the terms of the Post-nuptial

agreement..., (H-2) personal property as listed on the attached Exhibit “F”..., (H-3)

No other property. [emphasis added]

        Exhibit F specifies that THOMAS MOROCH is awarded “all property in the

possession of THOMAS MOROCH AND the three air conditioner compressors

and 2 box springs in the DeLoache home.”

        Clearly, the Order gave THOMAS MOROCH five items from the DeLoache

home: 2 box springs and 3 air conditioner compressors. The other items in

THOMAS MOROCH’s possession were in his possession at any other location

than the DeLoache residence, since those items were awarded to CHRISTY

CALVERT COLLINS. The items awarded to him from the residence were clearly

set forth, and the specific award to CHRISTY CALVERT COLLINS is clear and

unambiguous. If the Court finds there to be an ambiguity, it can clarify the Order.

        This Court is referred to the same Post-nuptial Agreement which was

stipulated as valid and unambiguous in its terms, upon which the Divorce Decree

is based.59 Although the Post-nuptial agreement is referenced in the Decree, the

Decree does still divide property as of the date of the decree pursuant to Tex.

Fam. Code § 7.001-.006. Parties may stipulate to some undisputed facts,

permitting the trial court to make any findings and indulge any inferences

supported by the evidence. Farah v First Nat’l Bank, 624 S.W. 2d 341, 345 (Tex.


        59
           C. Rep. R. Supp., Resp. Exhibit 9.
______________
Appellant’s Brief                                                        Page 27 of 37
App. — Fort W orth, 1981, writ ref’d n.r.e.); Parsons v. Watley, 492 S.W . 2d 61,

63 (Tex. App. -- Eastland, 1973, no writ). The parties agreed at the time of the

Divorce trial that the items divided by the post-nuptial agreement were divided

separate property. W hat remained in dispute, the Court determined and the

Court determined that all “property currently located in the House on DeLoache”

were awarded to Appellant.” per Exhibit E. THOMAS MOROCH certainly knew

how to appeal that decision, and he did not. He simply vacated the residence

taking with him what he unilaterally decided was his. The Decree of Divorce has

become final and the Court has no authority to change the substantive provisions

relating to the property adjudication. The court does have the authority to make

orders necessary to carry the judgment into execution in a manner which is

consistent with the provisions and finality of the judgment. Hargrove v Insurance

Investment Corp., 142 Tex. 111, 176 S.W . 2d 744,747 (l947); Ex parte Lohmuller,

103 Tex. 474, 129 S.W. 834 (Tex.1910); Schwartz v Jefferson, 520 S.W .2d 881

(Tex.1975). CHRISTY CALVERT COLLINS has shown herself entitled to

judgment for the value of items removed by THOMAS MOROCH from the

residence on DeLoache, acknowledged by him to be at the residence and

removed by him without court authority. Since those items were awarded to

CHRISTY CALVERT COLLINS, the Court should either order the items returned

to her or give her the value in damages.



______________
Appellant’s Brief                                                       Page 28 of 37
ISSUE 4.        The Court erred when it failed to award CHRISTY CALVERT
                COLLINS a judgment for damages for her losses incurred pending
                THOMAS MOROCH’s unsuccessful appeal.

       The situation with the residence located on DeLoache is well known to this

Court from previous proceedings.60 The fact that a supersedeas bond was not

posted is undisputed. Tex. R. App. P. § 24.2 specifies that when a judgment is

for the recovery of real property, the security must be at least the value of the

property interest’s rent or revenue. The rental value of the property is suggested

to be $10,000.00 a month. The Court set a supersedeas bond of $1,250,000.00

presumably in anticipation of the losses to be incurred by CHRISTY CALVERT

COLLINS. The bond must state that the sureties are liable for all damages and

costs that may be awarded against the Appellant, up to the amount of the bond.

The bond must be conditioned so that if the judgment of the Court is affirmed, as

it was in this case, that the bond will pay the Appellee damages and costs if

Appellant does not pay appellee “the value of the property interest’s rent or

revenue during the pendency of the appeal.” Ehlert v Indianapolis Life Ins. Co.,

84 S.W . 2d 898 (Tex. App. –Dallas, 1935, no writ). The Trial Court had the

authority under Tex. R. App. P. 24.1(e) to “make any order necessary to

adequately protect the judgment creditor against loss or damage that the appeal

may cause.” See, Phillip v Phillips, ____ S.W. 3d _____, (W L 792757) (Tex.

App.–El Paso, 2009). Eventually the Court exercised that right, pursuant to a


       60
            C. Rep. R. Supp., Vol. 9, Resp. Exhibits 3, 6, 7, 8, 9.
______________
Appellant’s Brief                                                         Page 29 of 37
partial mandate from this Court, but not before CHRISTY CALVERT COLLINS

had experienced demonstrable and significant losses.

       The underlying purpose of the bond is to protect the Appellee from the

damages incurred while a case is on appeal. CHRISTY did not rent the house

because she desperately needed to sell it. She had a willing buyer but could not

convey insurable title.

       This Court found affirmed the Trial Court in every respect and the Supreme

Court declined the Petition for Review. CHRISTY CALVERT COLLINS’ judgment

was effective from the date of the signing of the Decree of Divorce on January 15,

2003, not from the date of the affirmance. McWilliams v McWilliams, 531 S.W .

2d 64 (Tex. App. – Houston [14 th Dist.], 1975); see also, Groves v Western Realty

Co., 84 S.W .2d 835 (Tex. App. – Dallas, 1935). The effect of an affirmance is

implement the rights of the parties as they were determined by the Trial Court at

the time its judgment was rendered.

       There can be no doubt that a person who has obtained a judgment
       afterwards affirmed on appeal is entitled to all benefits that would have
       resulted from it had there been no appeal, for the affirmance gives effect to
       the original judgment... Texas Trunk R.R. v Jackson, 85 Tex. 605, 22
       S.W . 1030, 1031 (1898).

       A person who has obtained a judgment, later affirmed on appeal, is entitled

to all the benefits that would have resulted if there had been no appeal. Baugh v

Myers, 695 S.W . 2d 64 (Tex. App.–Corpus Christi, 1985). In the Baugh case,

there was a disagreement about the ownership interest in a piece of real

______________
Appellant’s Brief                                                        Page 30 of 37
property. The Trial Court awarded the property to Ms. Myers, but Mr. Baugh

appealed. The judgment was affirmed, the real property was surrendered to Ms.

Myers. She then filed suit to recover taxes which had accrued during the appeal

of the prior suit, the fair market value of the rent which had accrued, and the cost

of repair of damage done to the property. Mr. Baugh then appealed that

damages judgment, which was again affirmed. That is similar to this case in that

no bond was posted, but demonstrable losses and damages were accrued and

were ordered by the Trial Court to be paid.

         Although CHRISTY was prevented from exercising her right to sell the

property awarded to her until the Court intervened, when the judgment was

affirmed, affirmance of that judgment neither altered her rights nor affected their

application from the time they were determined. Beyer v Templeton, 147 Tex. 94,

212 S.W .2d 134 (1948); Yale v Heard, 26 Tex 639, 640-641 (1863). These

principles of law are not novel or difficult. Just because there are few situations

where the situation arises does not mean that these long held principles do not

apply.

         It defies reason that an Appellant would believe that he could tie up a piece

of real property valued at least $1,500,000.00 plus for thirty-five months and there

would be no negative effect on him. The effect of the appeal on CHRISTY

CALVERT COLLINS was to deny her $394,832.74 in depreciated value, taxes

and real estate commissions, at least. The issue should not be whether or not

______________
Appellant’s Brief                                                         Page 31 of 37
damages should be awarded, but how much CHRISTY CALVERT COLLINS can

show herself entitled to. CHRISTY CALVERT COLLINS has shown herself

entitled to at least $394,832.74.

ISSUE 5.            The Court erred when it failed to award any attorney’s fees to
                    Appellant when Appellee Husband failed and refused to leave certain
                    personal property awarded to Appellant in the residence, and when
                    he failed to pay her damages for the period of the pendency of the
                    appeal.


         An award of attorney’s fees must be based upon some statutory or

contractual authority. Tex. Civ. Prac. & Rem Code § 38.001.                                      In this case,

Texas Family Code § 9.014 permits the Court to award reasonable attorney’s

fees and costs.

         It is elementary that an award of attorney’s fees must be requested in order

to be awarded. CHRISTY COLLINS MOROCH requested attorney’s fees in her

Original Petition for Enforcement61 Respondent Husband did not plead for

attorney’s fees until after the Enforcement Order of May 6, 2008.62 A party

cannot properly be awarded a judgment on a theory not disclosed by his

pleadings. Payne v Loughlin, 486 S.W . 2d 192, 194 (Tex. App. — Dallas 1972,

no writ). See also, Oil Field Hauler Ass’n v Railroad Commission, 381 S.W .2d

183, 191 (Tex. l965); Wachendorfer v Wachendorfer, 615 S.W .2d 852 (Tex. App.



         61
              First Amended Original Petition for Enforcement, C.R., p. 139, # 18, 19, 20, 21.

         62
          Original Answer, C.R. p. 19; First Amended Original Answer, C.R., p. 290.
______________
Appellant’s Brief                                                                                      Page 32 of 37
--Houston [1 st Dist] 1981, no writ).

       The standard of review of a trial court’s award granting attorney’s fees is

sufficiency of the evidence. Stuart Title Guar. Co. V Sterling, 822 S.W .2d 1, 12

(Tex. 1991). It is settled that the reasonableness of attorney’s fees is a question

of fact to be determined by the trier of the facts and must be supported by

competent evidence. General American Reserve Ins. Co. v Britton, 406 S.W . 2d

901 (Tex, l966).

       In this case, a default judgment was rendered and signed, and costs were

assessed, and even though a Motion for New Trial was partially granted, no

attorney’s fees were awarded to Appellant or to Intervener for their appearances

and the review and entry of an order. See, Craddock v Sunshine Bus Lines, 133

S.W .2d 124 (Tex. 1939). In this case, THOMAS MOROCH alleged that he had no

notice, but in fact it is obvious that he did. The movant in a Motion for New Trial

asking the court to set aside a after answer default judgment must state that he is

ready for trial so as not to cause delay, and is willing to reimburse plaintiff for all

reasonable expenses incurred in getting the default judgment. Although an offer

to pay expenses is not a prerequisite to a new trial, it is a factor to consider.

Director v Evans, 889 S.W . 2d 266, 268 (Tex. 1994). The additional day of trial,

almost a year after the Enforcement Order was signed, clearly constituted delay

and resulted in additional attorney fees for Appellant. No fees were awarded.



______________
Appellant’s Brief                                                           Page 33 of 37
                                         Prayer

       CHRISTY CALVERT COLLINS respectfully prays that the Trial Court’s judgment

be vacated and the May 6, 2008 Enforcement Order be reinstated; in the alternative

that her defenses to Intervenors’ claims be determined and Judgement against

THOMAS MOROCH for removal or personal property and losses sustained through

Appeal of the Divorce Decree; that this Court remand for clarification and enforcement

those portions of the decree that could be considered vague, if any; that all costs be

assessed against Appellee; and that she be awarded any other and further relief to

which she has shown herself entitled.

                                                       Respectfully submitted,

                                                       Law Office of Paula J. Gaus
                                                       SBN 07767025
                                                       4424 W. Lovers Lane
                                                       P O Box 7696
                                                       Dallas, Texas 75209
                                                       972-252-2626



                                                       _/s/_______________________
                                                       By: Paula J. Gaus




______________
Appellant’s Brief                                                            Page 34 of 37
                             CERTIFICATE OF SERVICE

       I certify that on the 4th day of November, 2009, a full and complete copy of this brief was

delivered to the following by the means indicated:

CHRISTOPHER WEILL                                              via first class mail postage prepaid
Attorney for THOMAS MOROCH, Appellee
1601 Elm Street, Suite 1900
Dallas, TX 75201

LUKE GUNNSTAKS
Attorney Pro Se, Intervenor                                    via first class mail postage prepaid
15150 Preston Road, Suite 300
Dallas, Texas 75248



                                                     /s/______________________________
                                                     Paula J. Gaus




______________
Appellant’s Brief                                                                    Page 35 of 37
                     CERTIFICATE OF COMPLIANCE

       I certify that this submitted CD or e-mail attachment of the brief complies with the
following requirements of the Court:

       1. The brief is submitted on a CD or by e-mail attachment;

       2. The CD or e-mail attachment is labeled with the following information:
             A. Case Name:                            Collins v Moroch
             B. The Appellate Case Number:            05-09-00811-CV
             C. The Type of Brief:                    Appellant’s Brief
             D: Party for whom the
             brief is being submitted:                CHRISTY CALVERT COLLINS
             E. The Word Processing Software and Version Used to Prepare the Brief:
                     Word Perfect 12 publish to PDF

       3. The CD or e-mail attachment contains only an electronic copy of the brief and
       the appendix. The documents in the appendix conform to the requirements of
       Texas Rules of Appellate Procedure 9.8 and 38.1(k).

       4. The CD or e-mail attachment is free of viruses or any other files that would be
       disruptive to the Court=s computer system. The following software, if any, was
       used to ensure the brief is virus-free: __Norton Security .

       5. I understand that a copy of this brief may be posted on the Court=s website
       and that the electronically filed copy of the brief becomes part of the Court=s
       record.

       6. Copies have been sent to all parties associated with this case.


       _/s/____________________________________________________________
       (Signature of filing party and date)

       Paula J. Gaus_____________________
       (Printed name)

       Law Office of Paula J. Gaus________ __
       (Firm)




______________
Appellant’s Brief                                                             Page 36 of 37
                   APPENDIX INDEX


1.   May 4, 2009 Judgment

2.   Rules and Statutes on which Argument is Based

     A.     Tex. Bus. & Comm. Code § 3.311

     B      Tex. Fam. Code § 7.001 - 7.006

     C.     Tex. Fam. Code § 9.001 -9.014

     D.     Tex. R. Civ. Pro. 306a & 306c, 308.

     E.     Tex. Civ. Prac. & Rem Code § 38.001.

3.   “Final Payment” Check
                   APPENDIX INDEX 



1.   May 4,2009 Judgment

2.   Rules and Statutes on which Argument is Based

     A.     Tex. Bus. & Comm. Code 5 3.311

     B      Tex. Fam. Code 5 7.001 - 7.006

     C.    Tex. Fam. Code 5 9.001 -9.014

     D.    Tex. R. Civ. Pro. 306a & 306c, 308.

     E.    Tex. Civ. Prac. & Rem Code Ej 38.001.

3.   "Final Payment" Check
                         NO. DF99-19687-T 

CHRISTY CALVERT   COLLINGO0 0 7
                         0        5      IN THE DISTRICT COURT

                                  S
     Plalntlff,                   S
                                  §
v.                                S      301ST IJUDICIAL DISTRICT
                                  8
THOMAS MOROCH,                    5
                                  5
     Defendant.                   S      DALLAS COUNTY, TEXAS
        FINAL ORDER IN POST-JUDGMENT SUIT FOR ENFORCEMENT 

     On Aprll 10, 2008, January 29, and March 13, 2009, the Court 

heard this cause, having considered the "First Amended Petltion for 

Enforcement of Property Division to Recover Taxes Accrued and 

Losses Incurred Pending Appeal" filed by Christy Calvert Collins on 

March   25, 2008, the   "Flrst Amended Answer     to Petitlon for 

Enforcementu filed by Thomas F. Moroch on about November 4, 2008, 

and the 'lOrlglna1 Petltlon In Intervention for Attorneys1 FeesM 

                  Gunnstaks on about April 5, 2007, all in the
filed by C. llLukell

above styled and numbered cause, the evidence, and argument of
counsel, is of the opinlon that the Petltlon for Enforcement f lled
by Chrlsty Calvert Collins should be denied, and the relief sought
by C. "LukeuGumstaks should be granted In part. Accordingly, ~t


     ORDERED that all rellef sought by Christy Calvert Collins in
her "First Amended Petltlon for Enforcement of Property Division to
Recover Taxes Accrued and Losses Incurred Pendlng Appeal" 1s
denied, and Chrlsty Calvert Colllns shall take nothlng by her sult .
The Court confirms its denlal of Christy Calvert Colllns Motlon for
Summary Judgment and it is

FINAL ORDER IN POST-JUDGMENT SUIT FOR ENFORCEMENT - Page 1
       ORDERED that C. llLukew
                             Gunnstaks is awarded a judgment against
Chrlsty Calvert Colllns in the amount of $55,376.16, with post-
judgment interest accruing thereon at the statutory rate of 6
percent (6%) slmple Interest per annum, compounded annually, from
the date of slgning of thls Final Order until pald, for whlch let
execution issue upon request, and Christy Calvert Colllns (formerly
known as Christy Moroch, 1s ORDERED to pay said judgment with
interest as specifled above to C. l1LukeI1Gunnstaks, who shall
recover such ]udgment,                   for which all wrlts and processes for
enforcement and collection of this -Judgmentmay issue as necessary
wlthout further order; and it 1s also
        ORDERED that each party shall otherwise pay h1s or her own
costs of court and attorneys' fees Incurred as a result of this
lltlgation.
                                               all claims agalnst all partles and 

                                              granted herein is expressly denied. 

        Signed                          2009. 





APPROVED AS TO FORM                                                           u
Paula M ~ a u s , ~ s ~                       Christopher M Wed, Esq      ,

Attorney for Chnsty Calven Coll~ns            Attorney for Thomas F Moroch



C "Luke"Gunnstaks, Esq , Intervenor, pro se




FINAL ORDER IN POST-JUDGMENT SUIT FOR ENFORCEMENT - Page 2
A. Tex. Bus. & Comm. Code § 3.311 

    BUSINESS AND COMMERCE CODE    CHAPTER 3. NEGOTIABLE INSTRUMENTS 




                      BUSINESS AND COMMERCE CODE 


                   TITLE 1. UNIFORM COMMERCIAL CODE 


                  CHAPTER 3. NEGOTIABLE INSTRUMENTS 


     ...
    Sec. 3.311.   ACCORD AND SATISFACTION BY USE OF 


INSTRUMENT. (a) Subsections (b)-(d) apply if a person against 


whom a claim is asserted proves that: 


           (1) that person in good faith tendered an instrument 


to the claimant as full satisfaction of the claim; 


           (2) the amount of the claim was unliquidated or 


subject to a bona fide dispute;   and 


           (3) the claimant obtained payment of the instrument. 


     (b) Unless Subsection (c) applies, the claim is discharged 


if the person against whom the claim is asserted proves that the 


instrument or an accompanying written communication contained a 


conspicuous statement to the effect that the instrument was 


tendered as full satisfaction of the claim. 


     (c) Subject to Subsection (d), a claim is not discharged 


under Subsection (b) if either of the following applies: 


           (1) The claimant, if an organization, proves that: 


                (A) within a reasonable time before the tender, 


the claimant sent a conspicuous statement to the person against 


whom the claim is asserted that communications concerning 

disputed debts, including an instrument tendered as full 


satisfaction of a debt, are to be sent to a designated person, 


office, or place;   and 


               (B) the instrument or accompanying communication 


was not received by that designated person, office, or place. 


          (2) The claimant, whether or not an organization, 


proves that within 90 days after payment of the instrument, the 


claimant tendered repayment of the amount of the instrument to 


the person against whom the claim is asserted.   This subdivision 


does not apply if the claimant is an organization that sent a 


statement complying with Subdivision (1)(A). 


     (d) A claim is discharged if the person against whom the 


claim is asserted proves that within a reasonable time before 


collection of the instrument was initiated, the claimant, or an 


agent of the claimant having direct responsibility with respect 


to the disputed obligation, knew that the instrument was tendered 


in full satisfaction of the claim. 


Added by Acts 1995, 74th Leg., ch. 921, Sec. 1, eff. Jan. 1, 


1996. 

B Tex. Fam. Code 5 7.001 - .006 

FAMILY CODE   CHAPTER 7. AWARD OF MARITAL PROPERTY 




                              FAMILY CODE 


                TITLE 1. THE MARRIAGE RELATIONSHIP 


                SUBTITLE C. DISSOLUTION OF MARRIAGE 


               CHAPTER 7. AWARD OF MARITAL PROPERTY 


     Sec. 7.001. GENERAL RULE OF PROPERTY DIVISION. In a decree of 


divorce or annulment, the court shall order a division of the 


estate of the parties in a manner that the court deems just and 


right, having due regard for the rights of each party and any 


children of the marriage. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 7.002.    DIVISION AND DISPOSITION OF CERTAIN PROPERTY 


UNDER SPECIAL CIRCUMSTANCES. (a)     In addition to the division of 


the estate of the parties required by Section 7.001, in a decree of 


divorce or annulment the court shall order a division of the 


following real and personal property, wherever situated, in a 


manner that the court deems just and right, having due regard for 


the rights of each party and any children of the marriage: 


          (1) property that was acquired by either spouse while 

domiciled in another state and that would have been community 


property if the spouse who acquired the property had been domiciled 


in this state at the time of the acquisition;    or 

           (2)   property that was acquired by either spouse in 


exchange for real or personal property and that would have been 


community property if the spouse who acquired the property so 


exchanged had been domiciled in this state at the time of its 


acquisition. 


     (b)   In a decree of divorce or annulment, the court shall 


award to a spouse the following real and personal property, 


wherever situated, as the separate property of the spouse: 


           (1)   property that was acquired by the spouse while 


domiciled in another state and that would have been the spouse's 


separate property if the spouse had been domiciled in this state at 


the time of acquisition;     or 


           (2) property that was acquired by the spouse in exchange 


for real or personal property and that would have been the spouse's 


separate property if the spouse had been domiciled in this state at 


the time of acquisition. 


     (c)   In a decree of divorce or annulment, the court shall 


confirm the following as the separate property of a spouse if 


partitioned or exchanged by written agreement of the spouses: 


           (1)   income and earnings from the spouses' property, 


wages, salaries, and other forms of compensation received on or 


after January 1 of the year in which the suit for dissolution of 


marriage was filed;   or 


           (2)   income and earnings from the spouses' property, 


wages, salaries, and other forms of compensation received in 

another year during which the spouses were married for any part of 


the year. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 


Amended by Acts 1999, 76th Leg., ch. 692, Sec. 4, eff. Sept. 1, 


1999;   Acts 2001, 77th Leg., ch. 838, Sec. 4, eff. Sept. 1, 2001; 


Acts 2003, 78th Leg., ch. 230, Sec. 4, eff. Sept. 1, 2003. 




     Sec. 7.003. DISPOSITION OF RETIREMENT AND EMPLOYMENT BENEFITS 


AND OTHER PLANS. In a decree of divorce or annulment, the court 


shall determine the rights of both spouses in a pension, retirement 


plan, annuity, individual retirement account, employee stock option 


plan, stock option, or other form of savings, bonus, profit- 


sharing, or other employer plan or financial plan of an employee or 


a participant, regardless of whether the person is self-employed, 


in the nature of compensation or savings. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 7.004.   DISPOSITION OF RIGHTS IN INSURANCE. In a decree 


of divorce or annulment, the court shall specifically divide or 


award the rights of each spouse in an insurance policy. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec.     7.005.     INSURANCE   COVERAGE   NOT   SPECIFICALLY 


AWARDED. (a) If in a decree of divorce or annulment the court does 


not specifically award all of the rights of the spouses in an 

insurance policy other than life insurance in effect at the time 


the decree is rendered, the policy remains in effect until the 

policy expires according to the policy's own terms. 


     (b)    The proceeds of a valid claim under the policy are 


payable as follows: 

            (1) if the interest in the property insured was awarded 


solely to one former spouse by the decree, to that former spouse; 


            (2) if an interest in the property insured was awarded 


to each former spouse, to those former spouses in proportion to the 


interests awarded;   or 


            (3) if the insurance coverage is directly related to the 


person of one of the former spouses, to that former spouse. 


     (c)    The failure of either former spouse to change the 


endorsement on the policy to reflect the distribution of proceeds 


established by    this section does not    relieve the   insurer of 


liability to pay the proceeds or any other obligation on the 


policy. 


     (d) This section does not affect the right of a former spouse 


to assert an ownership interest in an undivided life insurance 


policy, as provided by Subchapter D, Chapter 9. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 

Tex. Fam. Code § 9.001 -9.014 

FAMILY CODE          CHAPTER 9. POST-DECREE PROCEEDINGS



                                            FAMILY CODE

                         TITLE 1. THE MARRIAGE RELATIONSHIP

                        SUBTITLE C .        DISSOLUTION OF MARRIAGE

                         CHAPTER 9. POST-DECREE PROCEEDINGS

                       SUBCHAPTER A .          SUIT TO ENFORCE DECREE

        Sec. 9.001.          ENFORCEMENT OF DECREE.                 (a)     A p a r t y a f f e c t e d by

a   decree      of    divorce       or    annulment        providing         for    a   division        of

p r o p e r t y a s p r o v i d e d by C h a p t e r 7 may r e q u e s t e n f o r c e m e n t o f t h a t

d e c r e e by f i l i n g a s u i t t o e n f o r c e a s p r o v i d e d by t h i s c h a p t e r i n

t h e court t h a t rendered t h e decree.

        (b)     Except a s o t h e r w i s e p r o v i d e d i n t h i s c h a p t e r , a s u i t t o

e n f o r c e s h a l l b e g o v e r n e d by t h e Texas R u l e s o f C i v i l P r o c e d u r e

a p p l i c a b l e t o t h e f i l i n g of an o r i g i n a l l a w s u i t .

        ( c ) A p a r t y whose r i g h t s , d u t i e s , p o w e r s , o r l i a b i l i t i e s may

b e a f f e c t e d by t h e s u i t t o e n f o r c e i s e n t i t l e d t o r e c e i v e n o t i c e by

c i t a t i o n and s h a l l b e      commanded t o a p p e a r by               filing a         written

answer.        Thereafter,         t h e p r o c e e d i n g s s h a l l be a s i n c i v i l c a s e s

generally.

Added by A c t s 1997, 7 5 t h L e g . ,          c h . 7, S e c . 1, e f f . A p r i l 1 7 , 1 9 9 7 .



        Sec. 9.002.         C O N T I N U I N G AUTHORITY TO ENFORCE DECREE. The c o u r t

t h a t r e n d e r e d t h e d e c r e e o f d i v o r c e o r a n n u l m e n t r e t a i n s t h e power

t o e n f o r c e t h e p r o p e r t y d i v i s i o n a s p r o v i d e d by C h a p t e r 7 .
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.003.     FILING DEADLINES. (a)    A suit to enforce the 


division of tangible personal property in existence at the time of 


the decree of divorce or annulment must be filed before the second 


anniversary of the date the decree was signed or becomes final 


after appeal, whichever date is later, or the suit is barred. 


     (b) A suit to enforce the division of future property not in 


existence at the time of the original decree must be filed before 


the second anniversary of the date the right to the property 


matures or accrues or the decree becomes final, whichever date is 


later, or the suit is barred. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec.   9.004.     APPLICABILITY   TO   UNDIVIDED   PROPERTY.   The 


procedures and limitations of this subchapter do not apply to 


existing property not divided on divorce, which are governed by 


Subchapter C and by the rules applicable to civil cases generally. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.005.     NO JURY. A party may not demand a jury trial if 


the procedures to enforce a decree of divorce or annulment provided 


by this subchapter are invoked. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 

    Sec. 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except 


as provided by this subchapter and by the Texas Rules of Civil 


Procedure, the court may render further orders to enforce the 


division of property made in the decree of divorce or annulment to 


assist in the implementation of or to clarify the prior order. 


     (b)   The 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. 


     (c)   An order of enforcement does not alter or affect the 


finality of the decree of divorce or annulment being enforced. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.007.   LIMITATION ON POWER OF COURT TO ENFORCE. (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. 

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.008.   CLARIFICATION ORDER. (a)   On the request of a 


party or on the court's own motion,      the court may   render a 


clarifying order before a motion for contempt is made or heard, in 


conjunction with a motion for contempt or on denial of a motion for 


contempt. 


     (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. 


     (c) The court may not give retroactive effect to a clarifying 


order. 


     (d) The court shall provide a reasonable time for compliance 


before enforcing a clarifying order by contempt or in another 


manner. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.009. DELIVERY OF PROPERTY. To enforce the division of 


property made in a decree of divorce or annulment, the court may 


make an order to deliver the specific existing property awarded, 


without regard to whether the property is of especial value, 


including an award of an existing sum of money or its equivalent. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 

    Sec. 9.010.    REDUCTION TO MONEY JUDGMENT. (a)    If a party 


fails to comply with a decree of divorce or annulment and delivery 


of property awarded in the decree is no longer an adequate remedy, 


the court may render a money judgment for the damages caused by 


that failure to comply. 


     (b) If a party did not receive payments of money as awarded 


in the decree of divorce or annulment, the court may        render

judgment against a defaulting party for the amount of unpaid

payments to which the party is entitled.

     (c)   The remedy of a reduction to money judgment is in

addition to the other remedies provided by law.

     (d)   A money judgment rendered under this section may be 


enforced by any means available for the enforcement of judgment for 


debt. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 




     Sec. 9.011. RIGHT TO FUTURE PROPERTY. (a) The court may, by 


any remedy provided by this chapter, enforce an award of the right 


to receive installment payments or a lump-sum payment due on the 


maturation of an existing vested or nonvested right to be paid in 


the future. 


     (b) The subsequent actual receipt by the non-owning party of 


property awarded to the owner in a decree of divorce or annulment 

c r e a t e s a f i d u c i a r y o b l i g a t i o n i n f a v o r o f t h e owner a n d i m p o s e s a

c o n s t r u c t i v e t r u s t on t h e p r o p e r t y f o r t h e b e n e f i t o f t h e owner.

Added by A c t s 1997, 7 5 t h L e g . ,         c h . 7, S e c . 1, e f f . A p r i l 1 7 , 1 9 9 7 .



        Sec. 9.012.            CONTEMPT.     (a)     The c o u r t may e n f o r c e by c o n t e m p t

a n o r d e r r e q u i r i n g d e l i v e r y o f s p e c i f i c p r o p e r t y o r a n award o f a

right t o future property.

        (b)      The c o u r t may n o t         e n f o r c e by contempt          a n award i n a

d e c r e e o f d i v o r c e o r a n n u l m e n t o f a sum o f money p a y a b l e i n a lump

sum o r i n f u t u r e i n s t a l l m e n t payments i n t h e n a t u r e o f d e b t , e x c e p t

for:

                 (1)     a sum o f money i n e x i s t e n c e a t t h e t i m e t h e d e c r e e

was r e n d e r e d ;    or

                 (2)     a m a t u r e d r i g h t t o f u t u r e payments a s p r o v i d e d by

S e c t i o n 9.011.

         (c)      This       subchapter      does      not    detract       from     or    limit    the

g e n e r a l power     of     a   court    to   enforce        an   order     of    the    court     by

a p p r o p r i a t e means.

Added by A c t s 1997, 7 5 t h L e g . ,         c h . 7, S e c . 1, e f f . A p r i l 1 7 , 1997.



        Sec. 9.013.            COSTS. The c o u r t may award c o s t s i n a p r o c e e d i n g

t o enforce a p r o p e r t y d i v i s i o n under t h i s subchapter a s i n o t h e r

c i v i l cases.

Added b y A c t s 1997, 7 5 t h L e g . ,          c h . 7 , S e c . 1, e f f . A p r i l 1 7 , 1 9 9 7 .
     Sec. 9.014. ATTORNEY'S FEES. The court may award reasonable 


attorney's fees as costs in a proceeding under this subchapter. 


The court may order the attorney's fees to be paid directly to the 


attorney, who may enforce the order for fees in the attorney's own 


name by any means available for the enforcement of a judgment for 


debt. 


Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997. 

D. Tex. R. Civ. Pro. 306a & 306c, 308. 

                       TEXAS RULES OF CIVIL PROCEDURE

RULE 306a. PERIODS TO RUN FROM SIGNING OF JUDGMENT

 1. Beginning of Periods. The date of judgment or order is signed as shown of record shall
determine the beginning of the periods prescribed by these rules for the court's plenary power
to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing
in the trial court the various documents that these rules authorize a party to file within such
periods including, but not limited to, motions for new trial, motions to modify judgment,
motions to reinstate a case dismissed for want of prosec~~tion,    motions to vacate judgment
and requests for findings of fact and conclusions of law; but this rule shall not determine
what constitutes rendition of a judgment or order for any other purpose.
2. Date to Be Shown. Judges, attorneys and clerks are directed to use their best efforts to cause
all judgments, decisions and orders of any kind to be reduced to writing and signed by the
trial judge with the date of signing stated therein. If the date of signing is not recited in the
judgment or order, it may be shown in the record by a certificate of the judge or otherwise;
provided, however, that the absence of a showing of the date in the record shall not invalidate
any judgment or order.
3. Notice of Judgment. When the final judgment or other appealable order is signed, the clerk
of the court shall immediately give notice to the parties or their attorneys of record by firstclass
mail advising that the judgment or order was signed. Failure to comply with the
provisions of this rule shall not affect the periods mentioned in paragraph (I) of this rule,
except as provided in paragraph (4).
4. No Notice of Judgment. If within twenty days after the judgment or other appealable order
 is signed, a party adversely affected by it or his attorney has neither received the notice
required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with
respect to that party all the periods mentioned in paragraph (1) shall begin on the date that
 such party or his attorney received such notice or acquired actual knowledge of the signing,
 whichever occurred first, but in no event shall such periods begin more than ninety days after
 the original judgment or other appealable order was signed.
 5. Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this
 rule, the party adversely affected is required to prove in the trial court, on sworn motion and
 notice, the date on which the party or his attorney first either received a notice of the
judgment or acquired actual knowledge of the signing and that this date was more than
twenty days after the judgment was signed.
 6 . Nunc Pro Tunc Order. When a corrected judgment has been signed after expiration of the
 court's plenary power pursuant to Rule 3 16, .the periods mentioned in paragraph (1) of this
 rule shall run from the date of signing the corrected judgment with respect of any complaint
 that would not be applicable to the original document.
 7. When Process Served by Publication. With respect to a motion for new trial filed more
 than thirty days after the judgment was signed pursuant to Rule 329 when process has been
 served by publication, the periods provided by paragraph (1) shall be computed as if the
judgment were signed on the date of filing the motion.
RULE 306c. PREMATURELY FILED DOCUMENTS

No motion for new trial or request for findings of fact and conclusions of law shall be held
ineffective because prematurely filed; but every such motion shall be deemed to have been filed
on
the date of but subsequent to the time of signing of the judgment the motion assails, and every
such
request for findings of fact and conclusions of law shall be deemed to have been filed on the date
of
but subsequent to the time of signing of the judgment.
                               Texas Rules of Civil Procedure


RULE 308. COURT SHALL ENFORCE ITS DECREES

The court shall cause its judgments and decrees to be carried into execution; and where the
judgment is for personal property, and it is shown by the pleadings and evidence and the verdict,
if any, that such property has an especial value to the plaintiff, the court may award a special writ
for the seizure and delivery of such property to the plaintiff; and in such case may enforce its
judgment by attachment, fine and imprisonment.
E. Tex. Civ. Prac. & Rem Code § 38.001. 

CHAPTER 38. ATTORNEY'S FEES - Texas Civil Practice & Remedies Code - Texas C... Page 1 of 1




                           CIVIL PRACTICE     &   REMEDIES CODE


                             CHAPTER 38. ATTORNEY'S FEES 




         § 38.001. RECOVERY OF ATTORNEY'S FEES.  A person may
  recover reasonable attorney's fees from an individual or
  corporation, in addition to the amount of a valid claim and costs,
  if the claim is for:
                (1) rendered services; 

                (2) performed labor; 

                (3) furnished material; 

                (4) freight or express overcharges; 

                (5) lost or damaged freight or express; 

                (6) killed or injured stock; 

                (7) a sworn account; or 

                (8) an oral or written contract. 


  Acts 1985, 69th Leg., ch. 959,         §   1, eff. Sept. 1, 1985.
                                             Page I of 1



xxxxxx83 3 $ 	   Check Number   1130               1
                 Post Date      11/19/2004
                 Amount         $2,000.00

								
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