In the Matter of the Marriage of Barba Joy McCarty and James Thomas McCarty--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00132-CV

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IN THE MATTER OF THE MARRIAGE OF

BARBA JOY MCCARTY AND

JAMES THOMAS MCCARTY

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 62167

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

James Thomas McCarty and Barba Joy McCarty were married in 1975 and separated in 1995. On October 16, 1995, they signed a written agreement concerning their property, which included a provision "requesting that divorce proceedings filed in May 1995 be closed." However, the divorce proceeding remained in effect. Barba became very ill and ultimately received a liver transplant. James testified he agreed to remain married so Barba would have insurance coverage and be able to afford the liver transplant. James alleges that the parties entered into an oral agreement whereby he would retain the entirety of his 401(k) account in exchange for property Barba was to receive. After the hearing was conducted in this case, James' attorney asked to submit a brief letter argument for the court; Barba made the same request, which the trial court granted. Barba submitted a letter brief argument, but James did not. Later, the trial court set out its findings of fact and conclusions of law, and entered a judgment granting the divorce and dividing the community property. The judgment divided equally between the parties the retirement benefits and the 401(k) account, which had been accumulated during the marriage due to James' employment at Campbell Soup. James appeals, raising two issues: (1) the trial court failed to enforce the agreed property division, constituting an erroneous conclusion of law, and (2) the trial court improperly considered Barba's letter brief in its decision. We affirm the judgment of the trial court.

1. Did the trial court fail to enforce the agreed property division constituting an erroneous conclusion of law?

Each party introduced a document as the property settlement agreement. James introduced Respondent's Exhibit 2, which he alleges represents an unsigned agreement of the parties made in July 1995. The agreement lists in detail all property received by each of the parties. In this agreement, James was to receive the "Campbell Soup 401[(k)]." Barba countered with a signed agreement of the parties entered in October 1995, which divided the retirement benefits at Campbell Soup equally.

James argues that the July 1995 "gentleman's agreement" was entered in exchange for his continuing to pay bills for Barba. He alleges he spent over $130,000.00 over the years in supporting Barba, paying bills and other things for her. After listing all of the items received by each party, Respondent's Exhibit 2 states, "BARBA ENTERED HOUSE MONTHS AFTER MOVING OUT AND TOOK A NUMBER OF SAVINGS BONDS FROM THE SAFE. I TALKED TO THE INDIVIDUAL THAT WAS WITH HER AT THE TIME. SHE LEFT THINGS DISTURBED IN THE HOUSE, THAT'S HOW I KNEW SHE HAD BEEN THERE." Further in the document, it is stated that "EVERYTHING ABOVE WAS AGREED ON AS A 50 / 50 SPLIT BY BOTH PARTIES. HOWEVER, SHE IS GOING TO DISPUTE THE FULL AMOUNT OF THE 401K GOING TO JAMES AT THE TIME OF THE SPLIT. . . . . THE 401[(K)] WAS WORTH 108,970 AT THE TIME--IN HIND SIGHT, IT WOULD HAVE BEEN BETTER TO HAVE GIVEN HER HALF OF IT IN '95."

Barba introduced the only signed agreement of the parties. During the questioning of Barba, she stated she had a copy of the signed agreement at her house; the trial court allowed Barba to retrieve the agreement over the lunch hour. After the recess, Barba produced the October 16, 1995, signed agreement. Among other things, the agreement states, "James McCarty agrees to Barba McCarty receiving 50% of his Campbell Soup retirement." Barba referred to this agreement as an agreement to "live by, married, so I would have insurance." The trial court in its findings of fact and conclusions of law recognized the October 16, 1995, agreement of the parties. James complains the trial court did not enforce the oral agreement, which he claims is memorialized by Respondent's Exhibit 2 the July 1995 document. As the July 1995 document was not signed by the parties, and since Barba produced another document signed by the parties, which she claimed was their agreement, the court was within its discretion in recognizing only the signed agreement.

In dividing the community property, the trial court considered the signed October 16, 1995, agreement. The trial court found it divided only a portion of the community property, and some interpretation was required with respect to the Campbell Soup retirement account. Interpretation was necessary since James actually had a retirement account at Campbell Soup, as well as a 401(k) plan; the agreement divided the retirement plan equally between the parties, but the 401(k) plan was not specifically mentioned in the October 16, 1995, agreement. The trial court ordered that each of the parties receive fifty percent of the Campbell Soup retirement account, and fifty percent of the 401(k) plan, as of the date the divorce became final.

The trial court did not err in recognizing the October 16, 1995, agreement and considering it in dividing the community property. Most of the property that the parties had acquired was divided by them before the divorce hearing. The trial court has broad discretion in dividing the parties' community estate. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). In its findings of fact, the trial court recognized the disparity in the health and earning capacity of the parties and found that James had a substantial inheritance. We hold that the trial court properly considered the October 16, 1995, agreement, did not err in declining to enforce the June 1995 document as representing an oral property division, and did not abuse its discretion in its division of the remaining community property.

2. Did the trial court consider evidence not properly admitted?

At the end of the divorce hearing, the trial court authorized James and Barba to submit a brief letter argument. James alleges that Barba's letter constituted improperly submitted evidence. He argues that such document represented a change in the testimony of Barba, which must have been considered as evidence by the trial court. We disagree.

Specifically, James urges that, at trial, Barba did not claim any right to the 401(k) account. We have carefully reviewed James' references to the record, together with all other parts of the reporter's record, and do not find any such concession. James further alleges that Barba conceded that the 401(k) account had been divided by a contractual agreement by the two as a part of a larger division of assets, citing page 45 of the reporter's record for that proposition. Once again, after examining page 45 and other parts of the record, we do not find that this allegation is supported. Specifically, the reference on page 45 concerns the October 16, 1995, agreement, which divides the "Campbell Soup retirement" but makes no reference to the 401(k) account. Barba agreed that most of the provisions of the October 1995 agreement had been completed, but she maintained that the "401(k) and the retirement was going to be our retirement. Those are both retirements, . . . ." Nowhere in the record do we find that Barba conceded she had either signed an agreement or entered an oral agreement whereby she gave up any right to a 401(k) account.

Nothing in the record indicates that the trial court considered the letter written by Barba as evidence. Counsel for James initially requested permission to submit a letter brief. As Barba was representing herself, she was also allowed to submit a legal argument by letter. We find no error in the trial court allowing the parties to submit a letter brief or argument at the close of the evidence.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: June 2, 2005

Date Decided: June 10, 2005