in the Matter of the Marriage of Sylvester Anderson and Diona Marie Anderson and in the Interest of S.E.A. and B.T.W.A., Children ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00361-CV

In the Matter of the Marriage of

Sylvester Anderson

and

Diona Marie Anderson

and

in the Interest of S.E.A. and B.T.W.A., Children

From the 378th District Court

Ellis County, Texas

Trial Court No. 69,730-D

Dissenting  Opinion

            Sylvester and Diona Anderson were married in 1982 while they were members of the United States Marine Corps. They signed a post-nuptial agreement in 1984.  A judgment of divorce was signed in 2006, ending their marriage of almost 24 years.  Because the parties have not shown that the trial court erred in dividing the parties’ retirement benefits or in finding Sylvester to be underemployed, the judgment should be affirmed.

Post-Nuptial Agreement[1]

            Sylvester argues in his first issue that the trial court improperly interpreted the parties’ post-nuptial agreement and erred in awarding a one-half interest in Sylvester’s retirement income to Diona.  The agreement is made up of twenty sections.  Section II of the agreement, Division of Community Property, contains five subsections. Subsection (a) contains a list of property that Diona agreed to transfer to Sylvester as his sole and separate property in the event the parties separate pending dissolution of their marriage.  Subsection (b) contains a list of property that Sylvester agreed to transfer to Diona as her sole and separate property in the event the parties separate pending dissolution of their marriage.  Subsection (c) provides for a division of any other property not divided by subsections (a) and (b) and provides for a division of a house if one is owned by the parties at the time of separation.  Subsection (e) provides that separate property at the time of marriage remains separate, including specific real property in Mississippi.  Subsection (d), the specific provision of the agreement interpreted by the trial court, provides as follows:

d.  Husband is a Sergeant and the Wife is a Corporal in the U.S. Marine Corps and their active service for purposes of retirement began on December 28, 1977 for the Husband and February 4, 1982 for the Wife.  The parties have agreed that they do expressly waive all rights they may have in and to said retirements.

            The agreement provides that it will be construed under the laws of the State of California.  Neither party has argued that there is a difference between California and Texas law.  Neither party has argued that the agreement in general or any provision of the agreement is unenforceable as being in violation of the law except as discussed in Diona’s cross point discussed below.

            The trial court made findings of fact and conclusions of law, including two findings regarding the post-nuptial agreement and the division of the parties’ retirement benefits.  The trial court found that the “parties entered into a pre [sic] nuptial agreement which was received into evidence by the Court but did not dispose of the parties[‘] retirement account.”  It also found that the agreement “did not sufficiently separate the retirement benefits and the parties should each be awarded 50% of the retirement benefits earned by either of them during the marriage.”  At the time of the divorce, Diona was not receiving military retirement benefits. 

            In construing a written contract such as this post-nuptial agreement, the courts must ascertain the true intentions of the parties as expressed in the instrument.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).  Courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the agreement so that none will be rendered meaningless.  Id.  No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument.  Id.  If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the writing as a matter of law.  Id.  A contract, however, is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning.  Id.  Whether a contract is ambiguous is a question of law that must be decided by looking at the contract as a whole in light of the circumstances present when the contract was entered.  Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996); Id. at 394.

            Neither party mentioned or presented any evidence regarding the division of the retirement benefits at trial.  After the presentation of evidence, the trial court raised a question about the ambiguity of section II(d).  Even after a new trial was granted, the parties did not present evidence regarding the division of the retirement benefits. The only complaint on appeal about the division of the benefits is that the division is not in compliance with section II(d) of the post-nuptial agreement.  After reading the agreement as a whole, there are three initial or primary interpretations of subsection (d).  First, it may mean that the parties waived all their interest in both of their retirement benefits, in effect giving it back to the government.[2] Second, it may mean that the parties agreed to waive their interest in their own benefits and give the other party all of their interest in their own retirement benefits.[3] Third, it may mean that the parties each agreed to waive their interest in the other party’s retirement benefits. 

            But it is in the trial court’s effort to implement the most likely of these meanings that the real ambiguity of the provision rears its ugly head.  There are temporal, or timing, problems as well as character issues with these interpretations.  Specifically, when did the parties mean to waive their interest?  Is the waiver effective as of the date of the agreement?  Is the waiver effective as of the date of separation?  Is the waiver effective as of the date of the divorce?  It reads as a current waiver, unlike the other provisions of the agreement that specifically state the effective date—separation.  Further, what interest did the parties waive? Did they waive the community property portion between the date of marriage and any of the three dates mentioned above (agreement – separation – divorce)?  Did they waive the claim to a separate property portion that accrued prior to their marriage?  Or, did they waive everything they owned on the date of the agreement?

            At some point an agreement becomes so indefinite or lacking in clarity as to be unenforceable.  I believe this is such an instance.  If the parties had intended to transfer, or require a future transfer, to the other of all their community interest in the other party’s retirement account, it would have been a simple matter to list this asset under section II(a) and (b) of the agreement.  They did not.  We cannot write the agreement for them.

            The trial court did not err in awarding one half of the retirement benefits earned by the parties to each other.  Sylvester’s first issue should be overruled.

Underemployment

            In his second issue, Sylvester contends the trial court improperly set child support above the statutory guidelines based on an erroneous finding that Sylvester was underemployed.  The trial court set child support at $450 per month based, in part, “on the earnings that Sylvester…has the potential of earning if he were not intentionally underemployed….”

            A trial court may order a parent to pay child support beyond the amount the parent's income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to.  Garner v. Garner, 200 S.W.3d 303, 306 (Tex. App.—Dallas 2006, no pet.); Tex. Fam. Code Ann. § 154.066 (Vernon 2002).  A child support obligor qualified to obtain gainful employment may not avoid his support obligation by voluntarily remaining unemployed or underemployed.  Id. 

            For the trial court to make a finding of intentional underemployment or unemployment, there must be evidence the parent reduced his income for the purpose of decreasing his child support payment.  Id. at 306-307.  The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent's education, economic adversities, business reversals, business background, and earning potential. Id. at 307.

            The first decree signed by the trial court on March 2, 2006 set the child support at $600 per month.  A new trial was granted on the issues of visitation and support and another hearing was held.  The trial court signed a new final decree on August 14, 2006, setting the child support at $450 per month.  There was evidence that, after separation but before the first decree, Sylvester showed Diona $50,000 that he had from the sale of old cars that he had rebuilt.  After the first decree, Sylvester sold two cars for $2,400.  At the first hearing, Sylvester testified that he was 60% disabled due to neck injuries he received while on the power lifting team in the Marines.  He worked for Greyhound after leaving the Marines but lifting luggage aggravated his injuries.  He made $2,500 a month while working for Greyhound.  At the second hearing, Sylvester testified that he was 70% disabled.  Also after the first decree, Sylvester decided to enroll in a local community college. 

            After reviewing the record, there is evidence Sylvester reduced his income for the purpose of decreasing his child support payment.  The trial court did not err in finding Sylvester to be underemployed.  Sylvester’s second issue should be overruled.

Diona’s Cross-Points

            Diona brings two cross-points on appeal.  She did not file a separate notice of appeal.  First she complains that Sylvester is precluded from attacking the divorce decree because he was remarried prior to the rendition of the June 6th final decree.  There is no evidence in the record before us that Sylvester had remarried.[4] Her first cross-point is overruled. 

            Second, Diona complains that the post-nuptial agreement is invalid because Sylvester cannot prove that Diona had independent legal counsel before signing the agreement.  In a memorandum of law submitted to the trial court after the hearing but prior to the court’s signing of the first decree, Diona suggested that the post-nuptial agreement was invalid and asked the court to declare the agreement void.  No order was rendered regarding this memorandum.  The decree was then signed, and only Sylvester filed a motion for new trial.  Diona did not.  The validity of the post-nuptial agreement was not raised at the hearing on new trial.  Now, Diona wants only the retirement provision struck.  Diona did not re-urge her initial argument to the trial court after a new trial was granted and did not make this particular argument to the trial court.  She has not preserved this issue for our review, and it is overruled.[5]  Tex. R. App. P. 33.1.

Divorce and Property Division Generally

            When, as here, the parties leave the trial court with little or no guidance, much less evidence, regarding the marital estate, I am very reluctant to disturb the trial court’s judgment.  As explained above, neither party attempted to assist the trial court in resolving the meaning of the provision.  The Court thinks it knows what the provision means but does not attempt to address the various meanings that could be attributed to the provision when the temporal issues are overlaid onto the text of the provision.

            Further, the trial court must make some division of the community estate.  When the parties do not empower the trial court with information about that estate and the value thereof, I cannot be critical of a trial court that did what had to be done, divide the estate and determine child support, based on the information provided by the parties.

            Likewise, I cannot be critical of the parties or their lawyers.  On limited resources there is only so much research of the law and the facts that the parties can afford.  Frequently, the divorce and just and right divisions of the marital estates of marriages with smaller total assets have the more significant legal issues.  The parties, however, cannot afford to have the lawyer research every legal issue or present evidence of the value of every asset, as well as prove the marital property character thereof.

            For all these reasons, the trial court is necessarily empowered with a tremendous amount of discretion in the division of the property of the parties.  This is not an appeal in which I believe the parties have shown an abuse of that discretion.

Conclusion

            Having overruled all issues presented on appeal, the trial court’s judgment should be affirmed.  Because it is not, I dissent.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissenting opinion delivered and filed November 14, 2007

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[1] I pause to note the seeming inconsistency in that the Court first analyzes the validity and the meaning of the agreement under Texas law.  It then analyzes the enforceability of the agreement under California law.  Maj. Op. at pg 5. (“By its own terms, the agreement is governed by California law.”).

[2] This is actually what the literal words of the agreement say.  I am willing to look for other meanings because that, alone, would appear to most people to be an absurd result.

[3] This may initially appear almost as absurd as the first, but due to the question of what interest is being waived, community property or separate property character and the question of when that interest was being waived, as will be more fully discussed below, this is not so likely to lead to an absurd result. It is certainly no more absurd than either of them giving up all their interest to which they would be entitled as a portion of the community retirement benefits. 

[4] Diona attaches evidence to her brief; but we do not consider any evidence attached to a brief that was not included in the official record.  See Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394 (Tex. App.—Texarkana  2002, no pet.).

[5] It could be argued that by this cross-point Diona is seeking a more favorable judgment than she obtained at trial.  We, however, believe the effect of her cross-point is the same as the trial court’s determination that the military retirement benefits were not divided by the post-nuptial agreement and could, therefore, be divided in the just and right division of the property.  For this reason, Diona was not required to file a separate notice of appeal to give us jurisdiction to consider this issue.  See Tex. R. App. P. 25.1(c).