law-divorce-decree

DIVORCE DECREE CASELAW

Hagen v. Hagen, No. 07-1065 (Tex. May 1 2009)(Johnson)
(
family law, divorce decree, postjudgment clarification order, retirement disability benefits division, res
judicata, claim preclusion, relitigation, collateral attack)

As with other final, unappealed judgments which are regular on their face, divorce decrees and
judgments are not vulnerable to collateral attack. Berry, 786 S.W.2d at 673. The decree must be void,
not voidable, for a collateral attack to be permitted. Id. Errors other than lack of jurisdiction over the
parties or the subject matter render the judgment voidable and may be corrected only through a direct
appeal. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).

The Family Code provides that trial courts may enter orders of enforcement and clarification to enforce
or specify more precisely a decree’s property division. Tex. Fam. Code § 9.006(a) (“[T]he 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.”). But courts may not “amend, modify, alter,
or change the division of property” originally set out in the decree. Id. § 9.007(a). Attempting to obtain
an order that alters or modifies a divorce decree’s property division is an
impermissible collateral
attack
. See Reiss, 118 S.W.3d at 442 (holding that a trial court’s correct construction of a divorce
decree’s award “does not impermissibly ‘amend, modify, alter, or change the division of property made
or approved in the decree of divorce’” (quoting Tex. Fam. Code § 9.007(a))).


09-0545          
JAMES KENNETH COLLINS v. STACEY LEIGH COLLINS; from Montgomery County;
13th district (
13-07-00240-CV, ___ SW3d ___, 03-12-09)(clarification of divorce decree, right of first
refusal)
motion to dismiss petition for review denied  
This appeal arises from a motion to enforce and clarify a divorce decree filed by appellee, Stacey Leigh
Collins. Appellant, James Kenneth Collins, contends the trial court erroneously interpreted a provision in
the divorce decree. We reverse the complained-of portion of the trial court's clarification order and
remand the cause for further proceedings consistent with this opinion.
We interpret divorce decree language as we do other judgments of courts. Shanks v. Treadway, 110 S.
W.3d 444, 447 (Tex. 2003). We construe the decree as a whole to harmonize and give effect to the
entire decree. Id. If the decree is unambiguous, the Court must adhere to the literal language used. Id. If
the decree is ambiguous, however, the decree is interpreted by reviewing both the decree as a whole
and the record. See Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997) (per curiam). Whether a
divorce decree is ambiguous is a question of law. Shanks, 110 S.W.3d at 447.