John R. Sturm v. Mary Jo Sturm--Appeal from 218th Judicial District Court of Wilson County

No. 04-97-01005-CV
John R. STURM,
Appellant
v.
Mary Jo STURM,
Appellee
From the 218th Judicial District Court, Wilson County, Texas
Trial Court No. W-87-02-0038-CV
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 23, 1998

AFFIRMED

John R. Sturm appeals from the trial court order enforcing the consent decree in his divorce from Mary Jo Sturm. The sole issue on appeal is whether the trial court correctly interpreted the provision governing the disbursement of proceeds from the sale of the family home. We affirm.

Background

During their marriage, the Sturms acquired 71.54 acres of land on which they lived. The decree provided that 50.54 acres of this land could be sold immediately and ordered Mary Jo to make the note payments, for which she would ultimately be reimbursed, during the "pendency of the sale."

However, the remaining 21 acres, which included the family home, could not be sold until the youngest Sturm child reached majority. The decree further ordered Mary Jo to make all note payments on this property "during the pendency of the minority of the parties' children and the pendency of the sale." However, the decree failed to define either period. The decree provided the Sturms would divide the sale proceeds equally, but Mary Jo would be reimbursed for "principal payments made on notes during pendency of sale." Mary Jo made the final principal payment before her youngest child reached majority.

Mary Jo sold this property when her youngest child turned eighteen, deposited the sale proceeds into the court registry, and filed a "Motion to Disburse Funds and Enforce Decree" because she and John could not agree on how to divide the proceeds. The trial court granted the motion, divided the $163,239.48 in proceeds, and ordered John to reimburse Mary Jo $15,396.50 for principal payments made during the pendency of the sale, unpaid child support, and unpaid medical bills. As revealed by its findings of fact and conclusions of law, the trial court calculated Mary Jo's reimbursement by adding the principal paid from the date of the decree to the date of sale.

Discussion

John argues the trial court erroneously interpreted the provision governing Mary Jo's reimbursement for principal paid on the remaining 21 acres. In particular, he claims the court misconstrued the time period covered by the term "pendency of sale" as beginning on the date of divorce and ending on the date the property sold. Under John's interpretation, the "pendency of sale" refers to the period of time beginning with the date his youngest child reached majority, triggering the decree's order to sell, and ending when the sale closed. John contends "pendency of sale" cannot include "pendency of the minority" because the decree refers to these terms as discrete periods of time:

[Mary Jo] shall continue to make all payments of principal, interest, taxes, and insurance on the property during the pendency of the minority of the parties' children and the pendency of the sale and [Mary Jo] shall have the exclusive right to enjoy the use and possession of the premises until closing.

Furthermore, because the reimbursement clause directs Mary Jo be paid "50% plus principal payments made on notes during pendency of sale" without referring to payments made during "pendency of the minority," John argues he need not reimburse Mary Jo for principal paid during "pendency of the minority."

Mary Jo contends that John's interpretation is contrary to the intent of the parties as revealed by the decree. She contends the clause ordering her to pay principal on the remaining property was intended to assure the children's ability to stay in their home, not to direct the distribution of sale proceeds. In addition, she argues it would be grossly unfair to require her to make post-divorce mortgage payments from her sole income only to remit one-half of that amount to her ex-husband.

Although a trial court lacks authority to alter the property division of a divorce decree, it may issue a clarifying order to enforce compliance with the original judgment. Harvey v. Harvey, 905 S.W.2d 760, 763 (Tex. App.--Austin 1995, no writ). To be valid, the order must be consistent with and merely enforce the controlling settlement agreement. Young v. Young, 810 S.W.2d 850, 851 (Tex. App.--Dallas 1991, writ denied). Additionally, the trial court may not clarify a decree unless it is ambiguous. Pearcy v. Pearcy, 884 S.W.2d 512, 514 (San Antonio--1994, no writ). Whether this divorce decree is ambiguous is a question of law, which we decide by examining the decree as a whole. See Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex. App.--Houston [1st Dist.] 1997, no pet.); see also Miller v. Miller, 721 S.W.2d 842, 844 (Tex. 1986). Finally, a decree is ambiguous if it lends itself to more than one reasonable interpretation. See Hurley, 960 S.W.2d at 288.

Although John maintains the decree is unambiguous, his dispute with Mary Jo reveals otherwise. Under John's reading of the decree's plain language, "pendency of sale" might cover a time period distinct from "pendency of the minority." Mary Jo, however, concludes "pendency of sale" must cover the entire time between divorce and sale. Because the decree failed to define either period, the trial court appropriately entered a clarifying order. See Cohen v. Cohen, 663 S.W.2d 617, 21 (Tex. App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). We next consider whether the trial court correctly interpreted the decree.

When interpreting the decree, we strive to effectuate the parties' intent as expressed by the written agreement. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Furthermore, we consider the entire contract and read all parts of it together to ascertain the parties' agreement. See id. Finally, we must give effect to each part of the contract, without isolating any one phrase or section from its setting for consideration apart from the remaining provisions. See id. at 133-34.

The provision granting Mary Jo a right of reimbursement for principal payments made during the first tract's "pendency of sale" indicates the parties intended Mary Jo would recover her separate property contribution to a community asset. The decree further granted Mary Jo a right of reimbursement for principal payments made on the remaining property by using identical language. Presumably, the parties intended to divide the proceeds in the same manner on both occasions. No other language in the decree indicates a contrary intent. Most importantly, the decree reveals no reason why Mary Jo should increase the value of a community asset with her own separate property for the benefit of her ex-spouse. Because the trial court reasonably construed the decree, we affirm the judgment.

Paul W. Green, Justice

DO NOT PUBLISH

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