Frank C. Garcia, Jr. v. Emily Ann Mills (f/k/a Emily Ann Garcia)--Appeal from 150th Judicial District Court of Bexar County

CONCURRING OPINION

No. 04-02-00790-CV

Frank C. GARCIA, Jr.

Appellant

v.

Emily Ann MILLS, f/k/a Emily Ann Garcia,

Appellee

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 1980-CI-03877

Honorable Patrick J. Boone, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 13, 2003

I concur in the judgment because of the Supreme Court's recent decision in Reiss v. Reiss. I write separately, however, because I agree with the dissent in Reiss. I believe the dissent is correct when it states that, when construing a decree, we must look at the decree as a whole. See Reiss v. Reiss, No. 01-0251, 2002 WL 32122828, *4 (Tex. June 26, 2003) (Jefferson, J., dissenting). Here, the Agreement Incident to Divorce states clearly that "All provisions of this section are intended to effect only the partition of the community property." (Emphasis added.) This provision must be read together with the award to Mills of "twenty-five (25%) percent of the Husband's civil service retirement benefits, if[,] as, and when he receives the same." The portion of the retirement benefits accruing after the divorce is Garcia's separate property and, in my opinion, it is unreasonable to conclude that the decree awards Mills part of his separate property. However, because we are bound by Supreme Court decisions, I concur.

Sandee Bryan Marion, Justice