Frank C. Garcia, Jr. v. Emily Ann Mills (f/K/A Emily Ann Garcia) ( 2003 )

MEMORANDUM OPINION   No. 04-02-00790-CV Frank C. GARCIA, Jr. Appellant v. Emily Ann MILLS, f/k/a Emily Ann Garcia, Appellee From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 1980-CI-03877 Honorable Patrick J. Boone, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 13, 2003

AFFIRMED

Frank C. Garcia, Jr. and Emily Ann Mills were married May 1, 1960 and divorced August 19, 1980 by an agreed Decree of Divorce, which incorporates by reference the parties' Agreement Incident to Divorce. Section II(A), Schedule 1 and section II(C) of the Agreement awards Mills "[t]he sum of twenty-five (25%) percent of [Garcia's] civil service retirement benefits, if as and when he receives the same." However, Section II(E) of the Agreement further provides that "[a]ll provisions of this section ... are intended to effect only the partition of the community property of the parties."

Garcia retired April 3, 2001 but failed to pay Mills any part of his retirement benefits. On January 15, 2002, Mills filed a petition for enforcement. After a hearing, the trial court signed an order ruling that Section II of the Agreement was "clear and unambiguous as a matter of law" and entitles Mills to "25% (plus cost of living or other increases thereon) of the gross retirement pay received by [Garcia] and not 25% (plus cost of living or other increases thereon) of the community property interest in [Garcia's] Civil Service Retirement Benefits as of the date of the parties' divorce." On appeal, Garcia argues this ruling is in error because section II(E) of the Agreement makes clear that all that was being partitioned in Section II was the parties' community property. We disagree. A very similar argument was recently considered and rejected by the supreme court in its decision in Reiss v. Reiss, No. 01-0251, 2002 WL 32122828 (Tex. June 26, 2003).

The Reisses' divorce decree states in pertinent part:

The Court finds that the parties own community property which should be divided in an equitable manner. It is therefore ORDERED that the community property owned by the parties shall be divided as follows:

....

The Court further finds that the parties own as community ... a Pension Plan at Goodyear Tire & Rubber Company, where [Edwin] is employed at its Houston, Texas plant, which Pension Plan the parties have a vested interest in.

....

It is further ORDERED, ADJUDGED AND DECREED that if and when Respondent, Edwin F. Reiss, retires and/or receives a pension from Goodyear Tire & Rubber Company, or for any other reason becomes entitled to receive retirement or pension benefits from Goodyear Tire & Rubber Company, then, and in such event, [Gloria] shall receive fifty percent (50%) of such retirement or pension benefit to which Edwin F. Reiss is entitled to receive from Goodyear Tire & Rubber Company.

Id. at *1. The court held that the decree awards Gloria "half of the total benefits," because it "in effect mistakenly classif[ies] all of the benefits Edwin was entitled to receive under the plan as community property and divid[es] them as such." Id. at *2. In doing so, the court rejected the dissent's argument that "[t]he decree's structure and plain language, from beginning to end, evidence an intent to divide only the couple's community property." Id. at *5 (Jefferson, J., dissenting).

In accordance with Reiss, we affirm the trial court's judgment.
  

Sarah B. Duncan, Justice