Failing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division.  What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years?  A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife.  They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her.  There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .”  The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife.  He said he could not afford an attorney at the time.

The husband stayed in the house and kept paying the mortgage, ultimately paying it off in April 2019. He testified that he rented out rooms after the wife moved out.

Seven Years Later, the Wife Enforces Default Judgment

The wife petitioned for enforcement of the property division in 2018.  The husband hired an attorney and pleaded the affirmative defense of laches.  He also argued the default judgment had erred in awarding his separate property to the wife.

The husband testified he had lost his job and did not have anywhere to go if he lost the house. The wife testified she was afraid of the husband. Her attorney argued the husband was abusive.

The trial court granted the petition and found the husband in contempt for violating the decree.  The court ordered him to turn over the property and sign the deeds. It found the husband learned about the decree six months after the divorce became final and failed to take legal action.  The court further found the wife’s delay was not unreasonable.  The court also found that the husband’s mortgage payments did not result in a detrimental change in his position.

Husband Appeals; Appellate Court Affirms

The husband appealed, arguing the court abused its discretion in not applying laches.

Generally, laches does not bar a suit before the applicable statute of limitations has run.  Tex. Fam. Code § 9.003 establishes statutes of limitations for enforcing the division of tangible personal property and future property, but does not address real property. Texas case law applied the ten-year period to enforce judgments to motions to enforce property divisions prior to the enactment of the statutes of limitations in § 9.003; so, the appeals court applied it in this case where there was no other statute of limitations to enforce a division of real property.

The wife had filed the enforcement petition within the applicable ten-year period and there was no evidence of “extraordinary circumstances” that would support an exception to the general rule that laches does not apply before the statute of limitations has run. The appeals further found that case did not meet the elements of laches.  Laches requires a showing that there was an unreasonable delay by the party asserting their legal or equitable right and that the delay caused the other party to change their position in good faith and to their own detriment.

The appeals court found the husband had not shown he had changed his position as a result of the delay.  Instead, the appeals court explained, he kept doing what he had already been doing. He did not provide evidence that he would have bought a new home “years earlier” if the wife had tried to enforce the decree earlier.  Additionally, the court noted he had not shown any change of position was in good faith. He learned the decree awarded the house to the wife in 2011, but kept paying the mortgage. Furthermore, the appeal s court found the husband did not show the trial court abused its discretion in finding the husband’s change of position was not detrimental.  He argued he had financial loss, but had not proven it when he had continued living in the house and had even rented out some of the rooms.

The appeals court therefore affirmed the enforcement order.

Call the Experienced Attorneys at McClure Law Group if Dealing with a Default Divorce

This case illustrates the risk in failing to respond to a divorce petition and ignoring a default judgment. If you are served with divorce papers, a knowledgeable Texas divorce attorney can help you.  Schedule a consultation with McClure Law Group by calling our office at 214.692.8200.