in the Matter of Marriage of Larry Don Bivins and Carmen Martinez Bivins
393 S.W.3d 893
Tex. App.2012Background
- Bivins and Martinez Martinez divorced in 2006; during divorce, Bivins had exclusive possession of the residence under Temporary Orders.
- They mediated a settlement in February 2006; Bivins agreed to vacate the residence by April 1, 2006 and the decree later incorporated terms.
- Martinez took possession on August 19, 2006 after Bivins vacated; the house was in severely deteriorated condition.
- Martinez filed an original petition for damages and enforcement in December 2006 seeking repairs and attorney fees; the trial court awarded damages and fees in 2010.
- The focus decree provision required Bivins to deliver the property in workmanlike repair; the court later awarded damages under Texas Family Code section 9.010 to enforce the decree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars Martinez's damages claim under Chapter 9 | Martinez's claim arises from the decree and was not litigated earlier | The claim could have been decided in the prior suit | Res judicata does not bar the damages claim; damages under 9.010 are proper when delivery is no longer adequate |
| Whether the trial court exceeded its authority enforcing the MSA and decree under Chapter 9 | MSA and decree are enforceable as the judgment of the court | Decree cannot be modified or clarified to support damages | Court had authority under Family Code section 9.010 to enforce and award damages |
| Whether the measure of damages and the use of non-scientific expert testimony were proper | Damages should reflect the cost of repairs supported by experts | Experts lack qualifications or reliability | Cost of repairs is proper; experts properly qualified and their testimony admissible and credible |
| Whether attorney fees were properly awarded under Chapter 9 | Fees were necessary and reasonable | Fees should be limited and properly segregated | Attorney fees awarded under 9.014; proper under the record and segregation principles |
Key Cases Cited
- Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992) (transactional approach to claims preclusion)
- Ex parte Gorena, 595 S.W.2d 841 (Tex. 1979) (agreement incorporated into decree has independent judgment status)
- Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987) (good and workmanlike standard for repair)
- In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007) (expert testimony may use otherwise hearsay evidence in forming opinions)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (necessity of segregating recoverable fees from unrecoverable fees)
- Pasadena State Bank v. Isaac, 288 S.W.2d 127 (Tex. 1950) (proper measure of damages as cost of repairs)