Gladys Sorola Adam v. Andrew Herrera Adam, III--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00892-CV

Gladys Sorola ADAM,

Appellant

v.

Andrew Herrera ADAM, III ,

Appellee

From the 288th Judicial District Court, Bexar County, Texas

Trial Court No. 1993-CI-15404

Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sandee B. Marion, Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: January 19, 2007

AFFIRMED

This case arises from the trial court's denial of the Motion for Judgment Nunc Pro Tunc and Petition for Enforcement of Final Decree of Divorce and Enforcement by Contempt filed by Appellant Gladys Sorola Adam. Because the unambiguous terms of the divorce decree grant Appellee Andrew Herrera Adam, III all of his civil service retirement benefits, we affirm the judgment of the trial court.

BACKGROUND

The parties were married on or about December 15, 1959. In June 1985, Andrew began working at the Audie Murphy Veteran's Hospital and participated in the hospital's retirement plan until his retirement in April 2004. Gladys and Andrew were divorced on January 26, 1994. Following Andrew's retirement, Gladys filed a petition to enforce the final decree of divorce and for enforcement by contempt, asserting that the final divorce decree awarded her an interest in the civil service retirement benefits Andrew was receiving. Subsequently, on March 24, 2005, Gladys filed a motion for judgment nunc pro tunc to clarify the language of the divorce decree so as to require the issuing governmental agency to pay her portion of Andrew's civil service retirement benefits directly to her. A hearing was held wherein the parties' lawyers argued over the interpretation of the decree but no evidence was admitted. In an order dated July 29, 2005, the trial court denied Gladys' motion for judgment nunc pro tunc, motion to enforce, and motion to clarify. On appeal, Gladys claims the trial court erred in denying her motions seeking clarification and enforcement of her interest in Andrew's civil service retirement benefits.

MOTION TO CLARIFY AND MOTION TO ENFORCE

A. Standard of review

The court that enters a divorce decree has the continuing jurisdiction to enforce or clarify the decree in order to specify more precisely the manner of effecting the property division previously made, so long as the substantive division of property is not altered or changed. Tex. Fam. Code Ann. 9.002, 9.006 (Vernon 2002 & Supp. 2006). The trial court may also clarify the decree on a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt. Tex. Fam. Code Ann. 9.008(b) (Vernon 2002 & Supp. 2006).

A court may enter a clarification order if the decree contains an ambiguity within its provisions. When interpreting an agreed divorce decree, as we have here, we look to the law of contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986) (marital property agreement incorporated into a final divorce decree is interpreted as a contract). A contract is ambiguous when "its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning." Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether a decree is ambiguous is a question of law subject to de novo review. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003).

If the agreed decree, when read as a whole, is unambiguous with respect to the division of the retirement benefits, we must enforce the decree according to its literal language even if the decree improperly divided the benefits. Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex. App.--San Antonio 2005, no pet.) (citing Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990)). However, if the decree is ambiguous, then we must construe the decree to effect the parties' true intent as expressed in the contract. Id. at 782-83. Consequently, we must first review the decree to determine if it is ambiguous.

B. Analysis

The parties' divorce decree initially classifies and divides the marital estate. The divorce decree awards to Gladys, as her sole and separate property, an interest in Adam's military retirement pay, but does not award her any civil service benefits. In fact, the marital estate division of the decree awards Andrew, as his sole and separate property, and divests Gladys Sorola Adam of all right, title, interest, and claim in and to, "[o]ne hundred percent (100%) interest in and to the United States Civil Service retirement benefits as a result of the employment of Respondent at the Audie Murphy Veterans Administration Hospital as of the date of the divorce."

The dispute in this case arises from a second provision found toward the end of the decree. In this separate section entitled "Military Retirements and Benefits" the decree appoints Adam as Gladys' trustee:

to the extent of Gladys Sorola Adam's interest in the United States Civil Service Retirement pay and benefits as a result of Andrew Herrera Adam III's employment with the Audie Murphy Veterans Hospital . . . . The portion awarded to Gladys Sorola Adam is that portion attributable to the number of years of employment during the existence of the marriage as a percentage of the total retirement entitlements of Respondent, Andrew Herrera Adam III, and of such entire retirement that portion which is attributable to the benefits derived during the existence of the marriage of the parties will be determined and then one-half of said sum will be awarded and is hereby awarded to Gladys Sorola Adam.

(emphasis added)

Seemingly, these two provisions regarding Andrew's civil service retirement benefits are inconsistent. However, we must construe the decree as a whole in an effort to harmonize and give effect to the entire decree. Shanks, 110 S.W.3d at 447.

Gladys construes the second provision of the decree as awarding her an interest in Andrew's civil service retirement benefits and appointing Andrew her trustee for purposes of payment. Andrew regards the language in the section apportioning the marital estate as dispositive of his full ownership of his retirement benefits. The plain language of the decree supports Andrew's interpretation. The decree specifically recites that Andrew Herrera Adam, III is awarded one-hundred percent (100%) interest in the civil service retirement benefits as his sole and separate property. Moreover, the decree expressly divests Gladys Sorola Adam of all right, title, interest, and claim to those benefits.

Despite Gladys' arguments, giving effect to the literal language of this decree does not ignore the other provisions within the decree or give effect to one isolated portion of the decree. Adopting Gladys' position ignores the fact that the trial court expressly awarded a one-hundred percent interest to Andrew in the civil service retirement benefits. The provision purporting to award Gladys a portion of the civil service retirement benefits is limited to the "extent of Gladys Sorola Adam's interest." According to the division contained in the marital estate section, Gladys received no interest in the benefits.

The language of the final decree is unambiguous and therefore we must literally interpret the decree. Following Gladys' interpretation would impermissibly "amend, modify, alter, or change the division of property made or approved in the decree of divorce." Tex. Fam. Code Ann. 9.007(a) (Vernon 2006). As such, because the original decree in this case is unambiguous, the trial court has no authority to enter an order modifying the original apportioning of the property. Shanks, 110 S.W.3d at 449.

In an effort to explain the divorce decree, Gladys claims the trial court awarded Andrew the right to collect all of his civil service retirement benefits, but appointed him trustee to take control of the proceeds after retirement and distribute them to Gladys as set forth in the decree. This interpretation contradicts the language of the decree, and presupposes that there was some obstacle to granting Gladys an interest in the retirement benefits in the decree. The Texas Supreme Court has held "that even 'nonvested pension rights are . . . a contingent interest in property,' and 'to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding.' " See Shanks, 110 S.W.3d at 446. Thus, despite the fact that Andrew had not yet retired, the trial court could have classified the property as a community asset and awarded Gladys a portion of the same, but instead unequivocally granted Andrew one-hundred percent of his civil service retirement benefits as his separate property. Interpreting the decree as Gladys suggests is contrary to Texas law.

CONCLUSION

The divorce decree is unambiguous and awards appellee one-hundred percent of the civil service retirement benefits as his separate property. Accordingly, we affirm the judgment of the trial court.

Rebecca Simmons , Justice