Efeogor L. Abada v. Bridgette L. Abada

Affirm and Opinion Filed October 7, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00273-CV

EFEOGOR L. ABADA, Appellant
V.
BRIDGETTE L. ABADA, Appellee

On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-19787

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Nowell
Appellant Efeogor L. Abada (Husband) appeals the trial court’s March 9,

2023 order clarifying and enforcing the property division of a home as set forth in a

2017 divorce decree (2017 Order). Husband argues the trial court’s order

improperly modified the 2017 Order and awarded appellee Bridgette L. Abada

(Wife) part of Husband’s separate property, which resulted in an inequitable division

of the community estate. We affirm.
Background

Wife filed a pro se petition for divorce on September 13, 2016, and Husband

subsequently filed a pro se answer. The trial court entered an agreed judgment on

October 2, 2017, stating in relevant part, that Husband and Wife receive the

following community property: “1/2 proceeds from sale of 7845 Fox Horn after

mortgage is paid off and expenses of sale are deducted.”

Wife continued living in the home post-divorce. Wife repeatedly asked

Husband to sell the home so she could move forward with her life, but he refused.

It is undisputed Husband paid $194,000 in expenses after the divorce, which

included all the mortgage payments, most of the utilities, and other home expenses.

On September 14, 2021, Wife filed a petition for enforcement of property

division alleging Husband refused to sell the home “to comply with the divorce

decree dividing the sale proceeds.” Wife requested the court to order Husband to

sell the property and if he failed to do so, then to appoint a receiver to determine the

sale price, to sell the property, and to divide the proceeds. Husband answered and

argued the 2017 Order was not enforceable because it did not provide a specific date

or time to sell the home. Husband further asserted he was entitled to reimbursement

for the mortgage payments and other expenses he paid post-divorce.

On August 4, 2022, Father filed a motion to modify the 2017 Order, or in the

alternative, for clarification of the property division because “several disputes” had

arisen between Husband and Wife concerning the interpretation of the property

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division of the home post-divorce. Wife gave Husband time to refinance and

purchase the home, but he never obtained financing.

The court held a hearing on May 10, 2022 wherein Husband and Wife

testified. Based on property value and an amortization schedule, the home could sell

for approximately $355,000 with $200,000 in equity.

On March 9, 2023, the trial court signed a clarification order of the 2017

Order. It provided in relevant part:

The Court orders the property at 7845 Fox Horn Drive . . . be placed for
sale by July 1, 2022. . . . [Husband] shall have the option to purchase
the property until July 1, 2020 [sic]. The property shall be purchased
by [Husband] for the price of $350,000.00. It is ordered that if
[Husband] does not purchase the house by July 1, 2022 the house shall
be listed for sale for $357,000.00.

The title company is ordered to pay each party one-half of the sale price
after the loan on the property is paid off and all closing costs are paid.

Husband appeals the March 9, 2023 order.

Discussion
Husband argues the trial court erred by awarding him half of the present-day

value of the home after the sale instead of half of the value of the home at the time

of the 2017 Order. By doing so, Husband maintains the trial court abused its

discretion by allowing Wife to receive part of the equity earned by him, as his

separate property post-divorce, and resulted in a $100,000 windfall to Wife. Wife

responds the trial court did not abuse its discretion because the plain language of the

2017 Order entitled each party to receive one-half of the proceeds from the sale of

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the home without limiting language as to time. Further, to the extent Husband sought

reimbursement, he refused to sell the home and voluntarily paid mortgage payments

post-divorce.

We review the trial court’s ruling on a post-divorce motion for enforcement

or clarification of a divorce decree under an abuse-of-discretion standard. Matter of

Marriage of Manor, No. 07-16-00143-CV, 2018 WL 1415407, at *1 (Tex. App.—

Amarillo Mar. 21, 2018, pet. denied) (mem. op.). Under the family code, the trial

court that renders a divorce decree retains jurisdiction to clarify and to enforce the

decree’s property division. Perry v. Perry, 512 S.W.3d 523, 527 (Tex. App.—

Houston [1st Dist.] 2016, no pet.). However, after its plenary power expires, the

trial court may not amend, modify, alter, or change the property division in the

decree. Id. “An order . . . that amends, modifies, alters, or changes the actual,

substantive division of property made or approved in a final decree of divorce . . . is

beyond the power of the divorce court and is unenforceable.” TEX. FAM. CODE ANN.

§ 9.007(b).

The 2017 Order provides Husband and Wife would receive “1/2 proceeds

from sale of 7845 Fox Horn after mortgage is paid off and expenses of sale are

deducted.” But the provision did not specify by when or for how much the home

must be sold. Under the rules of contract construction, “when construing an

agreement to avoid forfeiture, we may imply terms that can reasonably be implied.”

Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 239 (Tex. 2016). Thus, if a divorce decree

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orders that property be sold, but fails to specify a price, “the law presumes that the

parties . . . intended a reasonable price.” Perry, 512 S.W.3d at 528. Likewise, if the

decree fails to specify a time for performance, “the law implies a reasonable time.”

Id. Because the 2017 Order did not specify when or for how much the home must

be sold, the law provides these two missing terms: The home must be sold at a

reasonable time and for a reasonable price. Id. However, Husband refused to sell

the home after the divorce. Wife’s motion to enforce the decree was a request to

“assist in the implementation of or to clarify the prior order,” not to modify the 2017

Order of property division. See, e.g., Noyes v. Noyes, No. 04-08-00627-CV, 2009

WL 2520972, at *4 (Tex. App.—San Antonio Aug. 12, 2009, no pet.) (mem. op.);

see also TEX. FAM. CODE ANN. § 9.006(a). We reject Husband’s argument to the

contrary.

The trial court clarified the 2017 Order by providing the deadline for Husband

to purchase the home, and if he did not, then ordering sale of the home and stating a

reasonable price. It also included language, similar to the 2017 Order, that Husband

and Wife were each entitled to “one-half of the sale price after the loan on the

property is paid off and all closing costs are paid.”

To the extent Husband asserts the trial court abused its discretion by not

granting each party half of the home’s value at the time of the divorce, we reject his

argument. We recognize the value of community property is generally determined

on the date of divorce or as close to that date as possible. VanHeerden v.

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VanHeerden, 321 S.W.3d 869, 880 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

However, the 2017 Order did not include language for the division of the home’s

sale proceeds based on its value at the time of the divorce. Instead, it unambiguously

provided for each to receive “1/2 proceeds from sale” of the home. “[W]hen the

language of the decree is unambiguous, as it is here, we interpret the judgment

literally.” Reiss v. Reiss, 118 S.W.3d 439, 441–42 (Tex. 2003); see also Wagner v.

Davis, No. 02-19-00249-CV, 2020 WL 241381, at *3 (Tex. App.—Fort Worth Jan.

16, 2020, no pet.) (mem. op.) (reversing trial court’s order “rewriting” divorce

decree that awarded wife fifty percent of equity in the home at the time of the divorce

when the unambiguous language stated equity should be valued at the date of the

sale). As such, the trial court did not impermissibly amend, modify, alter, or change

the characterization of the property in the 2017 Order thereby allowing a “windfall”

to Wife. TEX. FAM. CODE ANN. § 9.007(a)-(b). Instead, it acted within its discretion

by rendering the clarification order to assist in the implementation of the 2017 Order.

Id. § 9.06(a). We overrule Husband’s first and second issues.

In reaching this conclusion, we reject any claim for reimbursement of the

$194,000 in mortgage payments and other expenses Husband paid after moving out

of the home in 2017.1 The 2017 Order did not provide for Husband’s right to

reimbursement for ongoing mortgage payments made before the sale of the home,

1
Husband sought this relief in the trial court; however, it is unclear whether he is seeking such relief
on appeal. Wife maintains Husband is not entitled to such relief. Broadly construing Husband’s brief, we
shall address whether Husband is entitled to reimbursement.
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though it easily could have done so. Cf., In re Owsley, No. 2:20-CV-00171, 2021

WL 3033120, at *9 (S.D. Tex. July 17, 2021) (“[T]he Final Decree unambiguously

requires Jimie Owsley to continue making mortgage payments without any provision

for a right of reimbursement” and had the parties intended for reimbursement, the

decree could have easily included one); cf., Campbell v. Campbell, No. 01-10-

00562-CV, 2011 WL 2436513, at *2 (Tex. App.—Houston [1st Dist.] June 16, 2011,

no pet.) (mem. op.) (expressly ordering that any party making pre-sale mortgage

payments would be reimbursed). And, because Husband did not appeal the 2017

Order, he is bound by its terms. See In re Staley, 320 S.W.3d 490, 502 (Tex. App.—

Dallas 2010, no pet.) (“Res judicata applies to a final divorce decree to the same

extent that it applies to any other final judgment.”) (citing Baxter v. Ruddle, 794

S.W.2d 761, 762 (Tex. 1990)). Accordingly, Husband is not entitled to

reimbursement for post-divorce mortgage payments and other expenses.

Finally, because we affirm the trial court’s March 9, 2023 clarification order,

Husband is not entitled to remand for equitable division of the community estate.

Husband’s third issue is overruled.

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Conclusion

We affirm the trial court’s March 9, 2023 clarification order.

230273f.p05
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EFEOGOR L. ABADA, Appellant On Appeal from the 301st Judicial
District Court, Dallas County, Texas
No. 05-23-00273-CV V. Trial Court Cause No. DF-16-19787.
Opinion delivered by Justice Nowell.
BRIDGETTE L. ABADA, Appellee Justices Reichek and Carlyle
participating.

In accordance with this Court’s opinion of this date, the trial court’s March
9, 2023 clarification order is AFFIRMED.

It is ORDERED that appellee BRIDGETTE L. ABADA recover her costs
of this appeal from appellant EFEOGOR L. ABADA.

Judgment entered this 7th day of October, 2024.

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