Jenkins v. Jenkins

BURGESS, Justice,

dissenting.

I respectfully dissent. The trial judge and the majority hold that appellee’s retirement benefits were awarded to him in the 1984 divorce decree by virtue of the language: “[a]ny and all wearing apparel, jewelry and other personal effects in the possession of Respondent or subject to his control”. While the retirement account may have been subject to his control, to say it is “wearing apparel, jewelry or other personal effects” is ludicrous. What the majority wants the residual clause to say is: “Respondent is awarded all community property not specifically awarded Petitioner”. It simply does not say that. The retirement benefits were not divided in the 1984 decree.

Where a divorce decree fails to provide for the division of community property, the husband and wife become tenants in common or joint owners thereof. Mooney v. Glasspool, 602 S.W.2d 364 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r.e.). The trial court erred in not going forward with a division of appellee’s retirement benefits.¹ Had he done so and awarded Appellee 100% of his retirement benefits, we would be confronted with an entirely different question.² However, he did not and we are not.

Consequently, I would reverse and remand with instructions to the trial court to make some disposition of appellee’s retirement benefits.

1 . Under Tex.Fam.Code Ann. § 3.91(a) (Vernon 1993) the court shall divide the property in a manner that the court deems just and right.

2 . This is not to imply that such a division is a proper one, but it achieves the trial court's purpose.