Thomas Andrew Clakley v. Linda Fay Richardson ( 2004 )

In The Court of Appeals

Ninth District of Texas at Beaumont

____________________ NO. 09-04-222 CV ____________________

THOMAS ANDREW CLAKLEY, Appellant

V.

LINDA FAY RICHARDSON, Appellee

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On Appeal from the 1-A District Court Newton County, Texas Trial Court Cause No. 3382-D

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MEMORANDUM OPINION  

On September 16, 2003, the trial court signed an agreed Final Decree of Divorce between Thomas Andrew Clakley and Linda Fay Richardson which provided for the division of community property of the parties, and awarded Richardson the following:

• Any and all sums of cash in the possession of or subject to the control of [Richardson]; including money on account in any financial institution standing in [Richardson's] name or from which [Richardson] has the right to withdraw funds, subject to the provisions of the following subparagraph; and,
• Gross funds totaling $55,000.00 to be withdrawn from the following accounts in the order listed below, and [Clakley] is hereby ORDERED to transfer and/or release such funds to [Richardson] within fifteen (15) days from the date of signing of this Decree, with any remaining funds from said accounts after payment of said $55,000.00 to [Richardson] being hereby awarded to [Clakley] as his sole and separate property as hereinabove provided:

a) Vanguard Growth Index Fund Account #9921279209 standing in the names of [Clakley] and [Richardson];

• Westvaco Savings & Investment Plan for Hourly Employees Account standing in [Clakley's] name;



• First Bank and Trust Savings Account #220000365 standing in [Clakley's] name;



• Savings account #5040 at Eastex Employees Federal Credit Union standing in [Clakley's] name; and,



• Rollover out of the Vanguard Prime Money Market Fund Account #09940254917 standing in [Clakley's] name.

Neither party perfected an appeal from the divorce decree, and the judgment became final. Clakley delivered $3,000 in cash to Richardson, and executed documents allowing Richardson to withdraw $9,150.62 from the Vanguard Growth Index Fund, which stood in the name of both parties. On February 25, 2004, Richardson filed a Motion for Enforcement of Judgment. On March 4, 2004, Clakley filed a Motion to Enter Qualified Domestic Relations order requesting the trial court enter a qualified domestic relations order in the form required by the plan administrator to enforce the division of community property set forth in the Final Decree of Divorce. The trial court signed the qualified domestic relations order submitted by Clakley's attorney. Neither party filed a motion for clarification of the Final Decree of Divorce. On April 26, 2004, the trial court signed an Order on Motion for Clarification of Final Decree of Divorce. The order found that Clakley owed $47,424.69 on the $55,000 awarded to Richardson in the divorce decree. Clakley appeals the order. In his first issue, Clakley says the court erred because the order did not give Clakley credit for the total sum paid to Richardson from the Vanguard Growth Index Fund, and erroneously awarded Richardson net funds after taxes rather than gross funds. In his second issue, Clakley argues the trial court erred in modifying the division of property after its plenary jurisdiction expired. We will address issues one and two together.

We review the trial court's order for an abuse of discretion. A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).   

A marital property agreement which is incorporated into a divorce decree is construed under the law of contracts. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).

An unambiguous contract must be enforced as written, examining the entire document and giving terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.

Rampart Capital Corp. v. Egmont Corp., 18 S.W.3d 318, 322 (Tex. App.--Beaumont 2000, no pet.) (citing Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)). If there is no ambiguity, the court must give literal effect to the decree as written. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990). In addition, when a divorce decree is unambiguous, the trial court lacks authority to enter an order altering or modifying the original disposition of property. See Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). Whether an ambiguity exists is a question of law for the court. See National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); see also Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex. App.--Houston [1^st Dist.] 1997, no pet.). A contract is ambiguous if its meaning is uncertain or it is reasonably susceptible to more than one meaning. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). A court may not alter a judgment after the expiration of its plenary power, and an order attempting to do so is void. See Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.--Tyler 1998, pet. denied); see also Tex. Fam. Code Ann. § 9.007(b) (Vernon 1998).   

Subparagraph 6 on page 11 of the Final Decree of Divorce states Richardson is to receive money on account in any financial institution standing in Richardson's name or from which Richardson has the right to withdraw funds, subject to the provisions of the following subparagraph. Subparagraph 7 of the decree lists the Vanguard Growth Index Fund as the first account from which withdrawals are to be made. This provision of the decree is not ambiguous. The trial court had no authority to modify the decree and only allow Clakley credit for one-half of the account balance of the Vanguard Growth Index Fund against the gross funds of $55,000 awarded to Richardson. Clakley should have received credit for the full sum of $9,150.62 withdrawn from the account to be applied against the gross funds awarded to Richardson.

Subparagraph 7 on page 11 of the decree states that Richardson is to receive "Gross funds totaling $55,000.00 to be withdrawn from the following accounts in the order listed below." This provision of the decree is not ambiguous, and does not award Richardson net funds totaling $55,000.00 after taxes as modified in the clarification order. The word "gross" generally means whole, entire, total, or without deduction. See Fire Ass'n of Philadelphia v. Love, 101 Tex. 376, 108 S.W. 158, 160 (1908). The phrase "gross funds totaling $55,000.00" as used in the decree here is not ambiguous, and clearly means total funds of $55,000.00 prior to any deductions for taxes or any other charges. The trial court had no authority to modify the substantive division of property contained in the decree to alter the agreement of the parties from "gross funds totaling $55,000.00" to net funds after taxes of $55,000.00. Clakley's first and second issues are sustained.

In his third issue, Clakley says the trial court erred in failing to enter a qualified domestic relations order to enforce the division of community property. The divorce decree provides the Westvaco Savings & Investment Plan is the next account from which funds are to be withdrawn to satisfy the balance due Richardson. See Tex. Fam. Code Ann. § 9.103 (Vernon 1998). It appears Clakley cannot withdraw the funds from the defined contribution plan without a proper qualified domestic relations order. A qualified domestic relations order is authorized under sections 9.103 and 9.104 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 9.103, 9.104 (Vernon 1998). It appears the trial court signed a qualified domestic relations order submitted by Clakley's attorney. However, the trial court subsequently signed the clarification order at issue. The clarification order appears inconsistent with the qualified domestic relations order, and essentially rendered the qualified domestic relations order ineffective. This was error. Clakley's third issue is sustained.

The order on motion for clarification is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

PER CURIAM

Submitted on October 1, 2004

Opinion Delivered December 9, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.