Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Gary W. Lewis divorced his wife Sondra and the trial court signed the divorce decree Oct. 28, 2002. The divorce decree divided a 153.5-acre tract between Gary and Sondra, giving each of them an undivided one-half separate property interest in the tract. The decree further stated that either party could petition the court to partition the land. In an earlier opinion, the 6th Court of Appeals affirmed the division of property and noted explicitly that the 153.5-acre tract at issue was separate property, owned in equal, undivided shares by Gary and Sondra. The 6th Court concluded the trial court had properly determined that “each party was entitled to an undivided one-half interest in the 153.5-acre tract.” The divorce decree specifically authorized the sale of the mobile home and improvements located on the 153.5-acre tract, including a provision that, if the parties were unable to agree on the sales price, the personal property could be sold by a court-appointed receiver. The divorce decree, however, did not authorize a sale of the real estate, but only allowed each party to petition for a partition. On Dec. 1, 2006, Sondra filed a motion to clarify her own March 28, 2005, order appointing a receiver to require a bond to be posted. The receivership order entered nunc pro tunc on Dec. 5, 2006, authorized Bret Thomas to take and sell a list of property but neither the original order nor the order nunc pro tunc authorized taking possession of or selling the real estate. Nevertheless, on March 6, 2007, Thomas filed a motion for authority to sell real estate “in his hands as Receiver,” that being all of the 153.5 acres of land. However, at a hearing conducted on March 26, it was stated that the property was actually sold at auction Feb. 17, 2007. At the hearing before the trial court on March 26 (after the property was sold), counsel for the receiver stated that the property had been properly auctioned off “pursuant to an order appointing him (Bret Thomas) as receiver for this property, 153 acres, that it was the advertising and all was reasonable.” On March 26, 2007, the trial court entered an order retroactively directing the receiver to sell the property, because the receiver had actually entered a contract to sell the real estate on Feb. 17, 2007. By the time the trial court signed that order, the property had already been sold at auction. Gary then sought a writ of mandamus from the 6th Court directing the 76th Judicial District Court of Titus County to set aside its orders authorizing a receiver to sell real property. Gary also asked the 6th Court to issue a writ of prohibition to prohibit the trial court from entering any further orders allowing the sale of the property. HOLDING:The 6th Court conditionally granted Gary’s petition for a writ of mandamus. No language in the divorce decree, the court stated, authorized the real estate at issue to be sold by a receiver. The only provision in the decree regarding a possible sale of the real estate provided that each party could file for a partition, the court stated. Simply stated, the court found nothing in this record to authorize the trial court to order the sale of these two parties’ separate property. The court acknowledged that during the pendency of the divorce proceeding the trial court had broad discretion to divide the marital estate in a manner it deemed just and right. That authority included the power to appoint a receiver in appropriate circumstances. In this case, however, the court stated that the divorce action had been completed, appealed and affirmed years before the trial court allowed the appointment of a receiver to sell the property. Thus, the court found that the trial court abused its discretion by issuing orders approving the sale of Gary’s separate property real estate. OPINION:Carter, J.; Morriss, C.J., and Carter and Moseley, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.