In the Interest of B.S. and A.S., Children v. the State of Texas

NUMBER 13-25-00130-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF B.S. AND A.S., CHILDREN

ON APPEAL FROM THE COUNTY COURT AT LAW
OF KLEBERG COUNTY, TEXAS

OPINION

Before Justices Silva, Peña, and Fonseca
Opinion by Justice Fonseca

This is an appeal of an order modifying the parent-child relationship following a

divorce decree. Appellant Crystal Solomon raises four issues challenging the trial court’s

decision to transfer “sole and exclusive control” of the parties’ education savings accounts

to appellee Dusty Ray Solomon. We affirm in part and reverse and render in part.

I. BACKGROUND

Crystal and Dusty were married and had two children, B.S. and A.S., born in 2007

and 2009 respectively. They were divorced in 2020. The agreed divorce decree provided
in part that both parties shall be joint managing conservators of the children, that Crystal

shall have the exclusive right to designate the children’s residence within Kleberg County

or Kenedy County, that Dusty shall have visitation as mutually agreed to by the parties,

and that Dusty shall pay $1,688 in monthly child support. The decree also stated in

relevant part:

Conservatorship

....

IT IS ORDERED that the following custodial accounts now held by the
parties for the parties’ children are placed under the sole and exclusive
control of [Crystal]: 529 Account numbers ending in 4354 and 4351. [Dusty]
is ORDERED to execute, have acknowledged, and deliver to [Crystal] all
documents necessary to effectuate [Crystal]’s sole and exclusive control of
the accounts on or before the 60th day after this Final Decree of Divorce is
rendered.

....

Division of Marital Estate

....

IT IS ORDERED AND DECREED that [Crystal] is awarded the following as
her sole and separate property, and [Dusty] is divested of all right, title,
interest, and claim in and to that property:

....

P-10. All brokerage accounts, stocks, bonds, mutual funds, and securities
registered in [Crystal]’s name, together with all dividends, splits, and
other rights and privileges in connection with them.

Finally, the decree directed the parties to sell their residence in Riviera, and it directed

the proceeds from the sale to be distributed as follows:

1. Crystal will receive first $220,000 [as her separate property]; then

2. Each party shall receive one-half of the remaining net sales
proceeds; and from the net sales proceeds received by [Dusty],
$25,000.00 will be placed into an account for [B.S.], with [Crystal]
serving as trustee of the funds and $25,000.00 will be placed into an

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account for [A.S.] with [Crystal] serving as trustee of the funds.

In June of 2023, Dusty filed a petition to modify the parent-child relationship

requesting that he be granted the exclusive right to designate the children’s primary

residence. The petition stated that the children were over twelve years old and would

advise the court in chambers as to which parent they prefer to have that exclusive right.

See TEX. FAM. CODE § 153.009(a). In August, Crystal filed a counterpetition alleging that

Dusty “has voluntarily stopped working at the job he was working [at] during the divorce

and has received substantial gifts and inheritance,” and that “the current possession

schedule is no longer workable nor in the children’s best interest.” She requested a

standard visitation order and an increase in the monthly child support amount. Dusty later

filed an amended petition for modification.

On February 13, 2024, the trial court signed temporary orders providing (1) that

“[e]ach party shall have alternating weekly visitation beginning Thursday at 6:00 p.m. and

ending on the following Thursday at 6:00 p.m.” and (2) that Crystal shall pay $1,200 in

monthly child support to Dusty during the pendency of the case.1

On August 2, 2024, Dusty filed a “Petition for Clarification of Final Decree of

Divorce” asserting that the property division terms set forth above “may not be specific

enough to be enforceable.” Dusty alleged that Crystal “has taken the position that all of

the monies in all of the 529 Accounts and Custodial Accounts for the children are hers to

spend as she sees fit.” He therefore sought an order clarifying “[t]hat all expenditures from

the 529 Accounts and the Custodial Accounts be used solely for the children’s education,”

1 The order noted that Crystal’s monthly net resources were about three times the size of Dusty’s.

See TEX. FAM. CODE § 154.130(a).

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including “college tuition, room and board, books, [and] living expenses at the beginning

of each semester.” Subsequently, Dusty filed a second amended petition to modify the

parent-child relationship, which added the following allegation and request:

The following changes in the status of the children’s property have occurred
since the prior order was rendered: Each child has money that they have
earned from work and livestock shows which have been put [in] both the
529 Accounts and Custodial Accounts that have not been accounted for.
The children have earned this money and have paid Federal Income Taxes
on this money earned as well. Any and all financial accounts which are
intended for the children[’s] education should be jointly held with equal
access by both parties. The Court should establish explicitly rules on how
and when the monies are t[o] be spent.

At the beginning of a hearing on September 17, 2024, the parties announced that

they had reached an agreement under which Dusty would be granted the exclusive right

to designate the children’s primary residence and Crystal would be obligated to pay

guidelines child support. The parties continued to disagree on certain matters, however,

including whether the decree required clarification, and how much each party would be

responsible for expenses related to the children’s extracurricular activities.

Dusty testified that the “529 accounts” were set up during the marriage to be used

for “the kids’ further education,” including college. See 26 U.S.C. § 529 (providing for tax-

favored treatment of certain “qualified tuition programs”). He said that the decree made

Crystal the “sole custodian” of the 529 accounts because she is an accountant by trade;

however, he said Crystal is now “claiming that’s her money.” He explained that there were

also two “custodial accounts” with a brokerage firm, Ameriprise, which the parties set up

after the divorce using the home sale proceeds, as required by the decree.

Crystal testified that the 529 accounts were set up in Utah to fund the children’s

“secondary education,” and, at the time of the divorce, B.S.’s 529 account had $44,000

and A.S.’s 529 account had $25,000. She said that, since the divorce, she contributed

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$77,174.95 in her separate income to those accounts. Crystal explained that the benefit

of a 529 account is that its “earnings are not subject to tax when you withdraw.” However,

if funds are withdrawn “for a purpose other than the benefit of the kids,” “there’s a 10

percent tax on the interest, just like a 401(k) would have.” She agreed that Dusty

contributed $25,000 to each of the two Ameriprise accounts, funded with his share of the

home sale proceeds, as required by the decree. Crystal said that she also contributed the

same amounts to those accounts.

According to Crystal, since the divorce, B.S. earned $15,110.42 and A.S. earned

$10,702.85 from “livestock shows” and the sales of livestock. She said that $9,846.15 of

B.S.’s earnings were deposited in his Ameriprise account; but the remainder of B.S.’s

earnings, and all of A.S.’s earnings, were deposited in the 529 accounts. Crystal stated

she is “willing to give Dusty control” of the children’s post-divorce earnings, but is “not

willing” to give him control of the 529 accounts in their entirety. She agreed that the 529

accounts were intended for “educational expenses” but, when asked on cross-

examination whether the funds would be used to pay for the children’s room and board

and books, she repeatedly said she was “not sure.” She denied that, in order to have

access to the money, the children would need to rent one of the apartments that she

owns. When asked what would happen to any “money left over” in these accounts, she

replied that she did not know.

After Crystal’s attorney concluded his questioning, the trial court expressed its

opinion that the 529 accounts are “fiduciary account[s] for the children” and that Crystal

“is just trustee” and “not owner of the funds.” At the end of the hearing, the court stated it

intended to research whether, in light of the parties’ agreement for Dusty to determine the

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children’s primary residence, Dusty should also be named the trustee for the 529

accounts.

On December 17, 2024, the trial court signed a judgment effectuating the parties’

agreement as to custody and child support, granting Dusty “sole and exclusive control” of

the 529 accounts, and stating that “all funds are to be used solely for the benefit of the

child whose name is on the account.” Later, the trial court entered findings of fact and

conclusions of law, including the following:

7. [Crystal], [Dusty], [A.S.,] and [B.S.] agreed to set up accounts for the
needs and education of the children in their future. This agreement
was made during the marriage. The monies contained in the My 529
account number [*****]4354 would be to fund [B.S.]’s educational
cost in the future. The parties and children agreed that the 529
account number [*****]4351 was to be used to fund [A.S.]’s
educational cost in the future.

8. The Divorce Decree did not award ownership of My 529 account
number [*****]4354 and My 529 account number [*****]4351 to either
party.

....

10. The provision allowing [Crystal] to manage the accounts [is] located
on page 9 [of the decree] under the heading “Conservatorship.”

....

It is the order of the court that modifying custody and financial orders
is in the best interest of the children. The court determined that a change of
custody is warranted due to a material and substantial change in
circumstances, therefore modifying financial arrangements to ensure the
child’s needs are in the best interest [sic].

The Court finds the person who has the right to determine the
residence of the children is granted the right to receive and manage child
support payments and to manage educational needs such as those in a 529
account.

Crystal filed a motion for new trial, which the trial court denied, and this appeal followed.

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II. TRIAL COURT JURISDICTION

A. Applicable Law

In a post-divorce proceeding, a trial court “may render further orders to enforce the

division of property made or approved in the decree of divorce or annulment to assist in

the implementation of or to clarify the prior order.” TEX. FAM. CODE § 9.006(a). In particular,

“[t]he court may specify more precisely the manner of effecting the property division

previously made or approved if the substantive division of property is not altered or

changed.” Id. § 9.006(b). Moreover, “[o]n a finding by the court that the original form of

the division of property is not specific enough to be enforceable by contempt, the court

may render a clarifying order setting forth specific terms to enforce compliance with the

original division of property.” Id. § 9.008(b). However,

[a] court may not amend, modify, alter, or change the division of property
made or approved in the decree of divorce or annulment. An order to
enforce the division is limited to an order to assist in the implementation of
or to clarify the prior order and may not alter or change the substantive
division of property.

TEX. FAM. CODE § 9.007(a). In other words, an order “that amends, modifies, alters, or

changes the actual, substantive division of property made or approved in a final decree

of divorce or annulment is beyond the power of the divorce court and is unenforceable.”

Id. § 9.007(b).

“Whether a trial court’s order constitutes improper modification under [§] 9.007 or

permissible enforcement of the decree turns on the text of the decree and the scope of

the relief afforded in the name of enforcement.” Morrison v. Morrison, No. 24-0053, 2026

WL 247877, at *4 (Tex. Jan. 30, 2026); see Dalton v. Dalton, 551 S.W.3d 126, 142 (Tex.

2018) (holding post-divorce order void where it “assigned to [appellee] additional interests

in . . . retirement accounts that had not previously been divided” and “created a new

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division to enforce [appellant’s] spousal-support obligation”).

B. Analysis

Crystal argues by her first issue that the trial court lacked jurisdiction to alter the

identity of the party with “sole and exclusive control” over the 529 accounts. She contends

that this ruling was, in effect, an impermissible modification of the just-and-right division

of community property which had already been finally established in the agreed divorce

decree.2 We agree.

Pursuant to § 9.007, “[a] judgment finalizing a divorce and dividing marital property

bars relitigation of the property division, even if the decree incorrectly characterizes or

divides the property.” S.C. v. M.B., 650 S.W.3d 428, 441 (Tex. 2022) (quoting Pearson v.

Fillingim, 332 S.W.3d 361, 363 (Tex. 2011)). Section 9.007 is jurisdictional and any order

violating its restrictions is void. Morrison, 2026 WL 247877, at *3 (first citing Pearson, 332

S.W.3d at 363; and then citing Dalton, 551 S.W.3d at 142).

Dusty argues that the trial court had jurisdiction to render the subject orders by

virtue of its statutory powers to enforce and clarify the divorce decree. See TEX. FAM.

CODE §§ 9.006, .008. He further contends that the decree did not in fact award

“ownership” of the 529 accounts to Crystal and, therefore, to the extent the accounts are

community property, the trial court had jurisdiction to divide them in the instant

modification proceeding. See id. § 9.201(c) (“Notwithstanding any other provision of this

chapter, the court that rendered a final decree of divorce or annulment or another final

2 Crystal also contests this provision on grounds that the trial court erred by applying the best

interest standard (Issue 2), that it erred by divesting her of her post-divorce earnings (Issue 3), and that the
provision was not supported by Dusty’s pleadings or tried by consent (Issue 4). By an additional issue,
Crystal asserts that the cause must be reversed or remanded because significant portions of the reporter’s
record are missing through no fault of her own. See TEX. R. APP. P. 34.6(f).

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order dividing property under this title retains continuing, exclusive jurisdiction to render

an order under this subchapter to divide property not divided or awarded to a spouse in

the final decree.”). Dusty observes that the provision granting Crystal “sole and exclusive

control” over the 529 accounts appears in a section of the decree entitled

“Conservatorship,” not in its section concerning the division of community property. He

further notes that this provision does not explicitly state that Crystal is “awarded” the

property or that Dusty is “divested” of it, as the decree’s other property division terms

stated.

Finally, Dusty asserts that Paragraph P-10 of the decree’s property division section

also did not award “ownership” of the 529 accounts to Crystal because the more “specific”

provision in the “Conservatorship” section controls. See Pathfinder Oil & Gas, Inc. v.

Great W. Drilling, Ltd., 574 S.W.3d 882, 889 (Tex. 2019) (“[A] specific contract provision

controls over a general one.”); see also Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex.

App.—Austin 1995, no writ) (“[W]hen a divorce decree is a consent decree or agreed

judgment, it must be interpreted as if it were a contract between the parties, and the

interpretation thereof is governed by the laws relating to contracts.”).

Dusty’s position is untenable. It is undisputed that, at the time of the decree, the

529 accounts were composed entirely of funds earned by the parties during the marriage.

Therefore, the accounts consisted of community property subject to a just-and-right

division. See TEX. FAM. CODE §§ 3.002 (“Community property consists of the property,

other than separate property, acquired by either spouse during marriage.”), 3.003(a)

(“Property possessed by either spouse during or on dissolution of marriage is presumed

to be community property.”); Pearson, 332 S.W.3d at 364 (“All property acquired during

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a marriage is presumed to be community property, and the burden is placed on the party

claiming separate property to prove otherwise.”); Zorilla v. Wahid, 83 S.W.3d 247, 251

(Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (noting “[t]he children’s education

account would have been community property had it been acquired while [appellant] was

domiciled in Texas”), disapproved of on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex.

2011). If the provision in the “Conservatorship” section of the decree did not award

“ownership” of the accounts to Crystal, as Dusty claims, then there was nothing in it which

would conflict with Paragraph P-10, which explicitly and unambiguously “awarded” to

Crystal “[a]ll brokerage accounts, stocks, bonds, mutual funds, and securities registered

in [her] name” as her “sole and separate property” and divested Dusty “of all right, title,

interest, and claim in and to that property.” Dusty does not dispute that, though the

accounts were intended to be used for the children’s education, they were assets of the

type described in Paragraph P-10,3 they were opened by Crystal, and they were

registered in Crystal’s name. We conclude that the divorce decree awarded the 529

accounts to Crystal as part of the just-and-right division of the marital estate. The trial

court’s finding to the contrary was error.4

It is important to note that, although both parties agreed that the 529 accounts

3 Under the Texas Securities Act, a “security” is defined to include an “investment contract.” TEX.

GOV’T CODE § 4000.068(a)(1)(O); see Life Partners, Inc. v. Arnold, 464 S.W.3d 660, 667 (Tex. 2015)
(holding “an ‘investment contract’ for purposes of the Texas Securities Act means (1) a contract,
transaction, or scheme through which a person pays money (2) to participate in a common venture or
enterprise (3) with the expectation of receiving profits, (4) under circumstances in which the failure or
success of the enterprise, and thus the person’s realization of the expected profits, is at least predominately
due to the entrepreneurial or managerial, rather than merely ministerial or clerical, efforts of others,
regardless of whether those efforts are made before or after the transaction.”). The 529 accounts in this
case appear to meet that definition. See TEX. EDUC. CODE ch. 54.
4 The trial court also erred to the extent it concluded that “the person who has the right to determine

the residence of the children” must also be “granted the right to . . . manage educational needs such as
those in a 529 account.” Dusty does not direct us to any authority, and we find none, supporting this
proposition of law.

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were intended to pay for the children’s education expenses, there was never any legal

impediment restricting them from using the funds in those accounts to pay non-education

expenses. A 529 account is not an irrevocable trust, the corpus of which may be

considered property of the beneficiary, and the income of which may be excluded from

community property under certain circumstances. Cf. Sharma v. Routh, 302 S.W.3d 355,

364 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[W]hen a spouse receives

distributions of trust income under an irrevocable trust during marriage, the income

distributions are community property only if the recipient has a present possessory right

to part of the corpus.”); Ridgell v. Ridgell, 960 S.W.2d 144, 147 (Tex. App.—Corpus

Christi–Edinburg 1997, no pet.) (“The beneficiaries of a valid trust become the owners of

the equitable or beneficial title to the trust property and are considered the real owners.”).

Further, a 529 account is not considered an irrevocable gift or transfer to the beneficiary,

as would be the case for an account established under the Uniform Gifts to Minors Act

(UGMA). See UTAH CODE § 75A-8-105 (“A person may make a transfer by irrevocable gift

to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the

benefit of a minor under [§] 75A-8-110.”); id. § 75-A-8-110 (providing detailed

requirements for “creating custodial property and effecting transfer” under the UGMA,

none of which were satisfied here).

Instead, as Crystal indicated in her testimony, a 529 account is merely a savings

account which remains owned by the person opening the account but is given favorable

tax treatment under the Internal Revenue Code so long as withdrawn funds are used for

certain “qualified higher education expenses.” See 26 U.S.C. § 529(c)(3)(B); UTAH CODE

§ 53H-10-208(a) (“The account owner retains ownership of funds in the account until:

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(i) funds are used to pay higher education costs for the beneficiary; (ii) funds are otherwise

disbursed; (iii) funds are transferred for administrative costs; or (iv) the account is

closed.”).5 If withdrawals are not used on such expenses, a ten percent penalty is

assessed, and any interest generated by the account is taxable to the recipient. See 26

U.S.C. § 529(c)(3)(A), (c)(6). Crucially, as the sole account “owner” and the party vested

by the decree with the “sole and exclusive” right to control the accounts, Crystal has the

discretion to elect to spend the funds (and pay any resultant taxes and penalties) as she

sees fit. See UTAH CODE § 53H-10-207 (“(1) Any account owner may cancel an account

agreement at will. (2) If an account agreement is cancelled by the account owner, the

current account balance shall be disbursed to the account owner less: (a) an

administrative refund fee . . . ; and (b) any penalty or tax required to be withheld by the

Internal Revenue Code.”); id. § 53H-10-208(a).6

The court was without jurisdiction to modify this arrangement in the modification

proceeding.7 See TEX. FAM. CODE § 9.007(a). To the extent Dusty disapproves of the

arrangement, he forfeited any complaint by agreeing to the decree and failing to appeal

it.

5 Texas has a similar statute. See TEX. EDUC. CODE §§ 54.707(a) (“An individual may open a
savings trust account to save money for the payment of the qualified higher education expenses of a
beneficiary. The individual who opens the account is the owner of the account.”).
6 See id. §§ 54.708(b) (“An account owner may withdraw all or part of the balance of an account

on prior notice as authorized by [Prepaid Higher Education Tuition Board] rules.”), 54.710 (“Nothing in this
subchapter or in any savings trust agreement entered into under this subchapter may be construed
to . . . give a beneficiary any rights or legal interest with respect to a savings trust account unless the
beneficiary is the account owner.”).
7 Dusty cites no authority, and we find none, indicating that a trial court may alter a previously-

rendered property division order if it finds a “material and substantial change in circumstances” or that the
alteration is in the children’s best interests. We note that, like the 2020 decree, the judgment on appeal
names both parties joint managing conservators of the children, grants both of them “the independent right
to make decisions concerning the children’s education,” and requires both of them to ensure the children’s
attendance at Riviera Independent School District.

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C. Summary

The judgment on appeal grants Dusty “sole and exclusive control” of the 529

accounts. This amounts to more than mere enforcement, clarification, or assistance in

implementation of the divorce decree. See id. §§ 9.006, .008. Instead, for the reasons

discussed above, this was a material change to the decree’s substantive division of

property. See id. § 9.007(a). Accordingly, the trial court exceeded its jurisdiction by

making this ruling in the modification proceeding. See id.; Morrison, 2026 WL 247877, at

*3; Pearson, 332 S.W.3d at 364.

The judgment also states that “all funds are to be used solely for the benefit of the

child whose name is on the account.” Importantly, no such language was included in the

divorce decree. Because this provision imposes restrictions on the use of distributed

community property which were not included in the decree, it also constitutes a material

change in the substantive division of community property and is void. See TEX. FAM. CODE

§ 9.007(a); Morrison, 2026 WL 247877, at *3; Pearson, 332 S.W.3d at 364.

We sustain Crystal’s first issue and reverse these provisions of the trial court’s

judgment. In light of our conclusion, we need not address her remaining issues. See TEX.

R. APP. P. 47.1.

III. CONCLUSION

The portions of the judgment awarding Dusty “sole and exclusive control” of the

529 accounts and stating that “all funds are to be used solely for the benefit of the child

whose name is on the account” are reversed, and we render judgment denying Dusty’s

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requests for such relief. The remainder of the judgment is affirmed.

YSMAEL D. FONSECA
Justice

Delivered and filed on the
5th day of March, 2026.

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