Elia Hernandez v. Pete Hernandez ( 1998 )

No. 04-97-00025-CV

Elia HERNANDEZ, Appellant

v.

Pete HERNANDEZ, Appellee

From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 91-CI-14162 Honorable Charles A. Gonzalez, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 12, 1998

REVERSED AND REMANDED

This appeal is reinstated on the docket after being abated by our order of June 19, 1998.

Elia Hernandez appeals from a clarification order and a Domestic Relations Order interpreting the divorce decree of her and her ex-husband, Pete Hernandez. On appeal, her primary contention is that the order is an impermissible modification of the original decree. We agree and we reverse the trial court's order.

Factual and Procedural Background

On August 12, 1992, the parties entered into an agreed divorce decree which dissolved their marriage and divided their marital property. As part of the property division, the parties' retirement benefits were divided in the following manner:

[Pete Hernandez] is awarded the following as [his] sole and separate property:

* * * * * * *

4. All right, title, and interest in and to 50% of the United States Army disposable retired or retainer pay to be paid as a result of Pete Hernandez's service in the United States Army . . . or other reasons, if, as, and when received.

5. 50% of all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of [Elia Hernandez's] past employment with Federal Aviation Authority as of July 17, 1992.

* * * * * * *

[Elia Hernandez] is awarded the following as [her] sole and separate property:

* * * * * * *

5. All right, title, and interest in and to that portion of the United States Army disposable retired or retainer pay to be paid as a result of Pete Hernandez's service in the United States army not awarded in this decree to Pete Hernandez.

6. 50% of all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of [Pete Hernandez's] past employment with the United States Army.

The decree also stated that the parties' marriage lasted 19 years and 6 months, during which time Pete served 19 years and 10 months of creditable service toward retirement at an E-7 pay scale.

In the fall of 1996, Pete retired from the military and Elia began receiving disbursement checks. Elia received 50% of Pete's retirement pay. Pete filed a motion to clarify the original decree asking the court to enter an order "to prevent Elia from receiving any benefit of his separate property." The parties' attorneys appeared before the court and presented argument. At the hearing, counsel for Pete argued that the reference to his pay scale at the time of divorce coupled with the reference to "past employment with the United States Army" indicated the parties' intent to divide only those benefits accumulated through the date of divorce. He contended that the reference to "past employment" does not contemplate his service after the date of the divorce, nor does the reference to an E-7 pay scale contemplate a promotion with a corresponding increase in pay scale. Pete's attorney thus urged that the decree awarded Elia 50% of the retired pay of an E-7 with 19 years and 6 months of service towards retirement plus any cost of living increase.

By contrast, Elia's counsel maintained that the awarding paragraphs, not the reference to Pete's pay scale at the time of divorce, controlled. Specifically, he focused on the date limitation contained in the paragraph awarding Pete an interest in Elia's retirement benefits, and noted there is date limitation in Elia's awarding paragraph. Elia's attorney argued that the omission of the limiting date indicated that her award was not to be calculated from the date of divorce, but rather when received by Pete. Elia's attorney further argued that the parties intended Elia to receive monies from any promotions Pete earned after the divorce because the decree states that Elia is entitled to 50% of all increases from Pete's benefits.

After hearing argument from both sides, the trial court entered a clarification order and a separate Domestic Relations Order. The Domestic Relations Order contains a formula calculating Elia's portion of Pete's retirement benefits at the time of divorce, not from the date of Pete's retirement. Specifically, it states:

[Elia Hernandez shall] have judgment against and recover from [Pete Hernandez] the sum equal to 50% (of the monthly disposable retire pay of an E-7 with 19 years 6 months of creditable service towards retirement) times the fraction (percentage) which results from dividing the sum equal to the monthly disposable retired pay of an E-7 with 19 years 6 months of creditable service towards retirement by the amount of the disposable retired pay which [Pete Hernandez] is entitled to receive at divorce, August 12, 1992, thereby obtaining the percentage awarded [Elia Hernandez] of [Pete Hernandez's] disposable retired pay at retirement, payable IF, AS, and WHEN received by [Pete Hernandez].

Elia filed a motion for new trial, motion to modify judgment, and motion to clarify, arguing that the trial court's order modified the 1992 decree in violation of section 3.71 of the Family Code which prohibits a court from altering the substantive division of property. These motions were denied. On appeal, Elia asserts six points of error. Our discussion begins with points of error two and three.

Clarification versus Modification

Points of error two and three attack the clarification order as an impermissible modification of the original decree. In point of error number two, Elia argues that the trial court erred as a matter of law in substantively changing the express terms of the decree by granting her something other than her original interest in violation of section 3.71 (b) of the Texas Family Code. Point of error number three posits that the trial court erred as a matter of law in substantively changing the express terms of the decree because such change is barred by the doctrine of res judicata.

The Texas Family Code governs enforcement of a property division ordered in a divorce decree. Specifically, section 3.71(a) of the Code provides in part:

A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. Further orders may be entered to enforce the division, but these orders shall be limited to orders in aid or in clarification of the prior order. The court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed.

Tex. Fam. Code Ann. § 3.71 (a) (Vernon 1993).⁽¹⁾ Subsection b states that 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 unenforceable. Id. (b). A clarification order is proper only if the court finds the original decree ambiguous or so unspecific that it is unenforceable by contempt. Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex. App.--El Paso 1993, writ denied). Whether the trial court's clarification order was a modification or an enforcement of the original decree is a question of law which this court reviews de novo. See Able v. Able, 725 S.W.2d 778, 779 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Stated differently, this court determines whether the decree contained an ambiguity in the first instance.

The parties entered into an agreed divorce decree and, therefore, it is treated as a contract with the law of contract interpretation guiding our analysis. See Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.--El Paso 1995, no writ). Where an agreement can be given a definite legal meaning or interpretation, it is not ambiguous and the court will construe the agreement as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Merely because the parties present differing interpretations of an agreement does not give rise to an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). The agreement must be reasonably susceptible to more than one interpretation for it to be considered ambiguous. See Coker, 650 S.W.2d at 393.

Here, the decree states that Pete is to receive 50% of the United States Army disposable retired or retainer pay to be paid as a result of his service if, as, and when received. Elia is to receive the remaining 50% of Pete's retirement pay from his past employment with the United States Army. We find this language unambiguous. The decree unambiguously awards Elia 50% of Pete's retirement benefits resulting from his past employment with the United States Army as they are paid to him. See Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990); Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex. App.--Houston [1st Dist.] 1997, no writ); Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.--Houston [14th Dist.] 1994, writ denied). As recognized by the First Court of Appeals, the phrase "if, as, and when received" is a term of art which ties the valuation of the award to the date of receipt, not to the date of divorce. Hurley, 960 S.W.2d at 289. The inclusion of the phrase "past employment" in Elia's awarding paragraph does not alter this conclusion. This phrase simply describes the type of benefits Elia is entitled to receive -- the benefits resulting from Pete's past employment with the United States Army. If the parties intended to limit Elia's share of Pete's retirement benefits to the value that had accured at the time of divorce, they could have expressly done so. See id. at 288-89 (citing Pate, 874 S.W.2d at 188). Indeed, the division of Elia's retirement benefits is expressly limited to the benefits that had accrued up to the date of divorce.

Thus, we find there is only one reasonable interpretation of the decree: Elia is entitled to 50% of all Pete's retirement benefits, which includes the sums that accrued after the date of divorce. That the effect of such agreement results in Elia's receipt of Pete's separate property is not in dispute, but courts must enforce unambiguous agreements as written. See Baxter, 794 S.W.2d at 763. Because the agreement is not ambiguous, the trial court was without the authority to modify the parties' agreement to reflect an award that calculated Elia's percentage of Pete's benefits from the date of divorce. See id. We sustain points of error two and three. In light of our disposition of these points of error, we need not address Elia's remaining arguments. See Tex. R. App. P. 47.1.

The order of the trial court is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

Catherine Stone, Justice

DO NOT PUBLISH

1. Effective April 17, 1997, the Legislature recodified the Family Code by reenacting Title 1. Former section 3.71 was reenacted as Tex. Fam. Code Ann. § 9.007 (Vernon Pamp. 1998).

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