SQUIRES v. SQUIRES

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Docket Number

No. 13-83-502-CV.

Attorney(S)

Charles R. Manning, Beeville, for appellant. Richard E. Rudeloff, Beeville, for appellee.

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Smart Summary

Factual and Procedural Background

This appeal arises from a proceeding to reduce certain military retirement benefits to judgment following a divorce decree entered on September 28, 1976. The decree awarded appellee (former wife) 97/240 of the military retirement benefits accrued during the marriage, which equated to $177.93 monthly. On May 19, 1983, appellee filed a motion for contempt alleging appellant (former husband) had secreted or dissipated her share of retirement payments from October 1976 through the date of the motion. Appellant was served and responded by raising defenses including statute of limitations and inability to pay. Appellee then filed an amended motion to reduce debt to judgment seeking $15,479.91 in back payments. The trial court denied appellant’s motion for a jury trial as untimely, overruled his special exceptions and motion to sever, and entered judgment for appellee awarding past due installments, interest, attorney’s fees, and costs. Appellant appealed the denial of the jury trial and other rulings.

Legal Issues Presented

Whether appellant’s request for a jury trial was timely under TEX.R.CIV.P. 216.
Whether the trial court erred in overruling appellant’s special exceptions to appellee’s amended motion for contempt and to reduce debt to judgment.
Whether the trial court abused its discretion in denying appellant’s motion to sever the contempt action from the action to reduce debt to judgment.
Whether appellant holds the retirement benefits as a constructive trustee for appellee, and if there was evidence to support that.
Whether appellee’s cause of action was barred by the applicable statutes of limitations.

Arguments of the Parties

Appellant's Arguments

The request for a jury trial was timely because it was made within five days after service of the amended motion, and thus before appearance day under TEX.R.CIV.P. 216.
The amended motion for contempt and to reduce debt to judgment did not state a valid cause of action, warranting special exceptions.
The contempt action should have been severed from the debt reduction action to avoid prejudice and procedural confusion.
There was no evidence to support a constructive trust, and thus appellant should not be held as a constructive trustee of the retirement benefits.
The claim was barred by either the two or four year statutes of limitations.

Appellee's Arguments

The relevant date for the timeliness of the jury trial request was May 20, 1983, the date appellant was first served with the original contempt motion, making the jury request untimely.
The amended motion gave fair notice of the claim and was a proper pleading, so special exceptions were not warranted.
The trial court did not abuse its discretion in denying severance as the combined hearing was permissible until it was discovered no contempt finding was possible.
Appellant holds the retirement benefits as a constructive trustee by operation of law.
The cause of action was not barred because the suit was to revive the judgment within the ten-year statutory period for revival, not an independent debt claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ex parte White, 149 Tex. 155, 229 S.W.2d 1002 (1950)	Proper invocation of contempt jurisdiction and notice requirements.	Confirmed the trial court followed proper procedure in issuing order to show cause and serving appellant.
Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154 (1953)	Clarification on contempt proceedings and notice.	Noted that Ex parte White was no longer controlling on other grounds but supported proper notice.
Union Producing Co. v. Allen, 297 S.W.2d 867 (Tex.Civ.App. 1957, no writ)	Jury trial fee payment timing and right to jury trial.	Supported that appellant’s jury fee payment was timely and trial court had no discretion to deny jury trial.
Ex parte Gorena, 595 S.W.2d 841 (Tex. 1979)	Validity of contempt and related procedural matters; constructive trust principles.	Upheld appellee’s motion as giving fair notice; recognized appellant holds funds as constructive trustee as a matter of law.
Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex.Civ.App. 1978, writ ref'd n.r.e.)	Standard for abuse of discretion on procedural rulings.	Supported that trial court did not abuse discretion in denying severance and overruling special exceptions.
Pitts v. Ashcraft, 586 S.W.2d 685 (Tex.Civ.App. 1979, writ ref'd n.r.e.)	Standard for abuse of discretion on procedural rulings.	Supported trial court’s procedural rulings.
Allison v. Arkansas Louisiana Gas Co., 624 S.W.2d 566 (Tex. 1981)	General principles on severance and procedural discretion.	Confirmed trial court’s discretion regarding severance rulings.
Ex parte Sutherland, 526 S.W.2d 536 (Tex. 1975)	Constructive trust for retirement benefits in divorce context.	Supported holding appellant as constructive trustee of retirement benefits.
Huff v. Huff, 648 S.W.2d 286 (Tex. 1983)	Application of statutes of limitations to revival of judgments.	Supported that appellee’s action to revive judgment was timely under ten-year statute.

Court's Reasoning and Analysis

The court first analyzed the timeliness of appellant's jury trial request under TEX.R.CIV.P. 216. Although the trial court considered May 20, 1983—the date appellant was served with the original contempt motion—as the relevant date, the court found that appellee’s amended motion to reduce debt to judgment should be treated as an original petition. Appellant’s jury fee payment five days after service of the amended motion was timely as a matter of law because appearance day for that suit was July 11, 1983. Therefore, the trial court erred in denying the jury trial.

Regarding appellant’s special exceptions, the court held that appellee’s amended motion gave fair notice of the claim in compliance with procedural rules and thus the exceptions were properly overruled.

On the motion to sever, the court found no abuse of discretion. The court explained it was permissible to hear the contempt and debt reduction motions together until it became clear no contempt finding was possible due to the absence of a specific order to pay.

Concerning the constructive trust, the court relied on precedent establishing that appellant holds the military retirement benefits as a constructive trustee by operation of law, even if no direct evidence of a trust was presented.

Finally, the court rejected appellant’s statute of limitations defense, explaining that the action was to revive a prior judgment within the ten-year statutory period, not an independent debt claim barred by shorter statutes.

Holding and Implications

The court REVERSED the trial court’s judgment and REMANDED the case for a new trial.

The direct effect is that appellant is entitled to a timely jury trial on appellee’s motion to reduce debt to judgment. The court’s rulings on special exceptions, severance, constructive trust, and statute of limitations were upheld. No new precedent was established; the decision primarily clarifies procedural rights regarding jury trial timeliness and confirms the proper treatment of motions in this context.

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In the Matter of the Marriage of Richard Allen SQUIRES, Appellant, v. Emelina SQUIRES, Appellee.

OPINION

GONZALEZ, Justice.

This is an appeal from a proceeding reducing certain military retirement benefits to judgment. Appellee, (former wife) filed a "Motion to Reduce Debt to Judgment" and appellant (former husband) requested a jury trial. The trial court denied appellant's request for a jury trial on the basis that the request was not timely. We disagree and reverse and remand the case.

Pursuant to a decree of divorce entered September 28, 1976, appellee was awarded 97/240 (or $177.93 monthly) as her portion of the military retirement benefits that accrued to the community during the marriage.

The relevant portion of the divorce decree provided as follows:

The Court finds that the parties own community property which should be divided in an equitable manner.

IT IS THEREFORE ORDERED that the community property owned by the parties shall be divided as follows:

Petitioner is awarded the following property:

(7) 143/240 (or $262.30 monthly) of retirement benefits which have accrued to the community as a result of Petitioner's service in the Armed Forces of the United States.

Respondent is awarded the following property:

(2) 97/240 (or $177.93 monthly) of retirement benefits which have accrued to the community as a result of Petitioner's service in the Armed Forces of the United States;

On May 19, 1983, appellee filed a motion for contempt in the trial court, alleging that appellant had disobeyed and continued to disobey the commands of the court in that he had secreted or dissipated her share of the retirement payments for the months of October, 1976, through the month the motion was filed. In that motion, appellee only requested appellant to show cause why he should not be held in contempt.

Appellant was served on May 20, 1983. On June 9, 1983, appellant filed his response to the motion for contempt. By that response, he excepted to appellee's motion, and raised defenses, including the statute of limitations and inability to pay.

On June 16, 1983, appellee filed her "Petitioner's First Amended Motion for Contempt and to Reduce Debt to Judgment." In that instrument, she renewed her complaint that appellant continued to refuse to pay over those portions of the retirement

benefits awarded her in the divorce decree, and requested that she receive $15,479.91, representing 87 months of back payments.

Appellant was personally served with the amended motion on June 17, 1983. On June 22, 1983, appellant filed an "Original Answer to Motion to Reduce Debt to Judgment" and a "Motion for Severance and for Jury Trial."

Appellee's amended motion was heard on June 22, 1983. At that hearing, the court overruled appellant's motion to sever the contempt action from the "Motion to Reduce Debt to Judgment," and his special exceptions. As previously noted, the trial court also ruled that appellant's request for a jury was untimely and proceeded to hear the case. The trial court entered a judgment awarding appellee $14,234.00, representing past due installments, interest on each installment at the rate of 9% per annum from the month after each was received by appellant from the Government, attorney's fees of $500.00, and costs of court.

Jury Trial

By his third point of error, appellant complains of the trial court's action in overruling his motion for a jury trial. To evaluate this point of error it is helpful to examine the nature of the case that confronted the trial court. Appellee commenced these proceedings by her motion to have appellant held in contempt for retaining her share of the retirement benefits. Jurisdiction of the court was properly invoked by her sworn complaint informing the accused of the accusation against him. See Ex parte White, 149 Tex. 155, 229 S.W.2d 1002, 1003 (1950).

In response to appellee's motion, the trial court issued an order for appellant to appear and show cause why he should not be held in contempt. The clerk of the court was ordered to issue notice to appellant, to be served by any sheriff or constable, directing him to appear at the courthouse on June 10, 1983, at 9:30 o'clock a.m. This process issued by order of the court was duly served. The above mentioned court ordered process was served on appellant on May 20, 1983. The proper practice had been followed. See Ex parte White, 149 Tex. 155, 229 S.W.2d 1002, 1003 (1950), held no longer controlling on other grounds, Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 158 (1953).

In addition to this authorized process of the court, appellant also received on May 20, 1982 (at the same time) a citation that commanded appellant to appear by filing a written answer to appellee's motion for contempt at or before ten o'clock a.m. of the Monday next after twenty days after the date of service of citation. See TEX.R.CIV.P. 101. Inspection of a calendar reveals appellant's answer day to appellee's citation to be Monday, June 13, 1983. Appellant's court-ordered appearance was set for the preceding Friday.

The court-scheduled contempt hearing was postponed until June 22, 1983. On the morning of June 22nd, appellant paid a jury fee. Appellant argues the fee was timely because he was not served with the amended motion seeking to reduce the debt to judgment until June 17, 1983. Appellee takes the position that May 20, 1983, is the relevant date for purposes of applying Rule 216.

TEX.R.CIV.P. 216 states:

No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee of five dollars if in the district court, and three dollars if in the county court, be deposited by the applicant with the clerk to the use of the county on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance. The clerk shall promptly enter a notation of the payment of such fee upon the court's docket sheet.

Before we can correctly apply the rule, we must first examine appellee's pleading. Appellee's motion to reduce debt to judgment was a misnomer. The document should have been properly designated "Plaintiff's Original Petition." See TEX.R.CIV.P. 71.

Appellant's request for a jury came only five days after he was served, and was therefore timely as a matter of law. The court has no discretion to refuse a trial by jury if the fee is paid on or before appearance day. See Union Producing Co. v. Allen, 297 S.W.2d 867, 872 (Tex.Civ.App. — Beaumont 1957, no writ). Appellant's appearance day on the suit to reduce the debt to judgment was not until Monday, July 11, 1983. Appellant's third point of error is sustained.

Special Exceptions

In his first point of error, appellant complains that the trial court erred in overruling his special exceptions to appellee's first amended motion for contempt and to reduce debt to judgment because, according to appellant, there is "apparently . . . no such cause of action." This argument is without merit. See Ex parte Gorena, 595 S.W.2d 841 (Tex. 1979). In the instant case, appellee's amended motion gave the requisite fair notice of the claim involved, see TEX.R.CIV.P. 47(a); therefore, the court did not err in refusing appellant's special exceptions. Appellant's first point of error is overruled.

Severance

In his second point of error, appellant alleges the court erred in denying his motion to sever the contempt action from the action to reduce debt to judgment.

The trial court's rulings on both the special exceptions and the motion to sever will not be disturbed absent a showing of an abuse of discretion. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex.Civ.App. — Corpus Christi 1978, writ ref'd n.r.e.) and Pitts v. Ashcraft, 586 S.W.2d 685, 698 (Tex.Civ.App. — Corpus Christi 1979, writ ref'd n.r.e.), respectively.

Concerning appellant's motion to sever, we hold the court did not abuse its discretion in ruling on this procedural matter. See generally Allison v. Arkansas Louisiana Gas Co., 624 S.W.2d 566, 568 (Tex. 1981). Until the court discovered there could be no finding of contempt (because there was no specific order to pay) it was permissible for it to hear the combined motions. Ex parte Gorena, supra.

The court's error was in failing to dismiss the motion for contempt when it subsequently discovered there was no order to pay — not in its initial ruling on the motion to sever. Appellant's second point of error is overruled.

In his fifth point of error, appellant alleges the trial court erred in finding that appellant has received retirement benefits as a constructive trustee of such funds for the benefit of appellee, because there was no evidence giving rise to a constructive trust. Appellant holds the funds as trustee as a matter of law. Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex. 1979); Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex. 1975). Appellant's fifth point of error is overruled.

Statute of Limitations

In his sixth point of error, appellant complains that the court erred in not barring appellee's cause of action because of either the two or four year statutes of limitations.

In the instant case, the decree of divorce was signed September 28, 1976. Appellee's "amended motion to reduce the debt to judgment" was filed June 16, 1983. Appellant pled the affirmative defense of limitations, alleging that all or part of appellee's claim was barred by the two and four year statutes of limitations.

Appellant is mistaken in characterizing the action as one for debt. The suit was actually one to revive the judgment that ordered a division of the property. Such an action comes within the purview of TEX.REV.CIV.STAT.ANN. art. 5532 (Vernon 1958), which provides:

"A judgment in any court of record, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias

or an action of debt brought thereon within ten years after date of such judgment, and not after."

Appellee was well within the ten year period during which she could revive the judgment. Appellant's sixth point of error is overruled. Cf. Huff v. Huff, 648 S.W.2d 286 (Tex. 1983).

Because of our dispositions of these points of error, it is unnecessary to address the other points. The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial.