Yoshiko Chaisson v. Aubin Joseph Chaisson, Jr.--Appeal from 274th District Court of Comal County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00422-CV
Yoshiko Chaisson, Appellant
v.
Aubin Joseph Chaisson, Jr., Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C93-0182C, HONORABLE JACK ROBISON, JUDGE PRESIDING

Yoshiko Chaisson appeals from a decree dissolving her marriage to Aubin Joseph Chaisson, Jr., and dividing their property. We will reverse the decree and remand the cause to the trial court.

 
THE CONTROVERSY

The cause was tried before a judge without a jury. At a hearing on September 15, 1994, evidence was adduced to support the trial court's jurisdiction to render a dissolution of the marriage. Both parties testified they had settled and compromised their disputes relating to property and liabilities, that they had reduced to writing their agreement in that regard, and that they requested the judge to approve the agreement, making it part of the judgment in the cause. The parties signed the agreement. See Tex. R. Civ. P. 11; Tex. Fam. Code Ann. 3.631 (West 1993). The trial judge announced that he approved the property-settlement agreement and that he "rendered" judgment of divorce. The hearing adjourned.

A disagreement arose between the parties concerning the terms of the written divorce decree to be submitted to the judge for his signature. Aubin moved that the judge sign an instrument proposed by Aubin, entitled "Final Agreed Decree for Divorce." Yoshiko moved also that the judge sign Aubin's proposed instrument, but with specified "changes" in its terms. One of Yoshiko's requested changes proposed the addition of other provisions to the instrument. These new provisions would have required Aubin to make certain elections regarding his civil-service retirement benefits and would have given Yoshiko an ownership in them. The other new provisions would have required Aubin to obtain a life-insurance policy at Yoshiko's cost and for her benefit. After a hearing on the parties' respective motions regarding the proposed decree, the judge sustained Aubin's motion, overruled Yoshiko's and over her objection signed the instrument as proposed by Aubin. About sixteen days afterwards, the judge signed on Aubin's motion a post-divorce order confirming his sale of the parties' former home. Yoshiko's motion for new trial was overruled by operation of law. She brings five points of error.

 
DISCUSSION AND HOLDINGS

In point of error one, Yoshiko contends the trial court erred in signing the decree because it contains additional and different terms from that of the settlement agreement in violation of the rule that a final judgment based on a settlement agreement must be in strict or literal compliance with the agreement. See Vickery v. American Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976); In re Ames, 860 S.W.2d 590, 593-94 (Tex. App.--Amarillo 1993, no writ). Aubin rejoins that Yoshiko waived error regarding the discrepancies because she invited the alleged error on which she relies. We reject the waiver theory.

It is true that a party may not, on appeal, complain of a judgment she induced the trial court to render. See Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984); Bayoud v. Bayoud, 797 S.W.2d 304, 312 (Tex. App.--Dallas 1990, writ denied); R.B. Butler, Inc. v. Henry, 589 S.W.2d 190, 192 (Tex. Civ. App.--Waco 1979, writ ref'd n.r.e.). Yoshiko, however, moved for the signing of a decree that differed materially from the decree ultimately signed by the trial judge; her motion to sign Aubin's proposed decree requested, as summarized above, certain substantial changes. The trial judge refused her requested changes and overruled her motion for a decree on the terms she requested. Yoshiko, therefore, is not appealing a favorable ruling on her motion. We hold Yoshiko has not waived her claim of error.

Among the eight discrepancies complained of, Yoshiko invites our attention to that portion of the settlement agreement awarding her 47% of Aubin's "military retirement benefits." The decree, in contrast, awards Yoshiko 47% of Aubin's "Disposable Retirement pay" as defined by the Uniformed Services Former Spouses Protection Act. See 10 U.S.C. 1408 et seq. (West 1983 & Pamph. 1996) (the "Act"). The Act provides that "disposable retired pay" is the total monthly retired pay less amounts that are owed to the government for overpayments or are deducted as the result of certain forfeitures, waivers, elections, or the payment of disability benefits. See Act 1408(a)(4). Insertion of the new word "disposable" has a potential to reduce, possibly by a significant amount, the retirement benefits awarded to Yoshiko in the settlement agreement. (1) We reject Aubin's theory that the trial judge was, in any event, without power to award Yoshiko a percentage of gross military retirement benefits. It is true that a court may divide, incident to a divorce, only the service member's "disposable retired pay." See id.; Mansell v. Mansell, 490 U.S. 581, 588-89 (1989); Elliot v. Elliot, 797 S.W.2d 388, 390 (Tex. App.--Austin 1990, no writ). However, parties in a divorce may, between themselves, agree to a division of property that could not have been ordered had the trial court divided the property. See Tex. Fam. Code Ann. 3.631(a) (West 1993); Traylor v. Traylor, 789 S.W.2d 701, 702-03 (Tex. App.--Texarkana 1990, no writ); Alexander v. Alexander, 701 S.W.2d 48, 51 (Tex. App.--Dallas 1985, writ ref'd n.r.e.).

Yoshiko also complains of a discrepancy in that part of the decree awarding Aubin his personal effects. The settlement agreement awards Yoshiko 100% of any other "cash, bank accounts, certificates of deposit, boats, cars, property or anything other than [Aubin's] personal effects" that she can discover. The decree contains a similar residuary clause and orders that Yoshiko receive 100% of "any property . . . other than personal effects . . . not otherwise disposed of by this Decree." In addition to awarding Aubin his personal effects, however, the decree awards him all "miscellaneous personal property in his possession or subject to his control" not specifically awarded to Yoshiko. Yoshiko contends the addition of that provision negates in effect the residuary clause. We agree. The term "personal effects" refers to items of personal property bearing an intimate relation to the person who possesses them. Teaff v. Ritchey, 622 S.W.2d 589, 592 (Tex. App.--Amarillo 1981, no writ). The term "personal property," however, refers to all property other than real estate, such as goods, chattels, money, notes, stocks, and bonds, including intangible property. See Black's Law Dictionary 1217 (6th ed. 1990); see generally 59 Tex. Jur. 3d Property 3 (1988); cf. Ritchey, 622 S.W.2d at 592. In direct contradiction of the settlement agreement, the decree awards Aubin any undisclosed personal property in his possession, including financial assets, and Yoshiko's personal effects remain undivided. See Carreon v. Morales, 698 S.W.2d 241, 245 (Tex. App.--El Paso 1985, no writ) (agreement awarding husband all remaining property in his possession and control effected award of insurance policy and retirement benefits).

Yoshiko also objects to language in the decree awarding her $13,800 "from" Aubin's individual retirement account ("IRA"). The settlement agreement provided that she "will receive the sum of $13,800.00 to equalize the value between her vehicle and his vehicle and the IRA's." Yoshiko contends that instead of receiving the sum in cash as intended by the agreement, she will, as a result of the decree, receive a share in the individual retirement account equal to $13,800. See Internal Revenue Code, 26 U.S.C. 408(d)(6) (West Supp. 1996) (providing that transfer upon divorce of one spouse's interest in IRA to other spouse creates IRA for receiving spouse). That is, she argues, not the same thing. Should she elect to withdraw her $13,800, it will be reduced by a 10% penalty and the amount of income tax she must pay on it as ordinary income. (2) See Internal Revenue Code, 26 U.S.C. 72(t), 408(d)(1) (West Supp. 1996). Aubin contends that his IRA was the only source from which the sum could be paid. We nevertheless agree with Yoshiko that this provision in the decree plainly does not comport with the terms of the settlement agreement.

We, therefore, hold the divorce decree added terms and provisions outside the parties' written agreement that the judge had approved previously in rendering the divorce decree. A trial judge is without power to add such provisions to a decree based on a settlement agreement. See Matthews v. Looney, 123 S.W.2d 871, 872 (Tex. 1939); Ames, 860 S.W.2d at 593. Furthermore, because the addition of those provisions effected a substantive change in the division of the parties' property, we may not, as Aubin proposes, modify the decree to correct "clerical" errors. See Dikeman v. Snell, 490 S.W.2d 183, 185-86 (Tex. 1973); Newsom v. Petrilli, 919 S.W.2d 481, 483 (Tex. App.--Austin 1996, no writ); cf. Catlett v. Catlett, 630 S.W.2d 478, 481 (Tex. Civ. App.--Fort Worth 1982, writ ref'd n.r.e.). A remand is therefore required. See Vickery, 532 S.W.2d at 292; Ames, 860 S.W.2d at 593; Vineyard v. Wilson, 597 S.W.2d 21, 23 (Tex. Civ. App.--Dallas 1980, no writ). We need not address Yoshiko's remaining points of error.

For the reasons given, we sustain point of error one, reverse the divorce decree, and remand the cause to the trial court for proceedings not inconsistent with our opinion.

 

John Powers, Justice

Before Justices Powers, Jones and B. A. Smith

Reversed and Remanded

Filed: September 18, 1996

Do Not Publish

1. Aubin contends, however, that because the settlement agreement awarded him all of his disability benefits while awarding Yoshiko 47% of only the retirement benefits, inclusion of the word "disposable" accurately reflects the terms of the agreement. We need not address this contention except to note that "disposable retired pay" as defined in section 1408(a)(4) is the net sum remaining after the deduction of certain sums including but not limited to disability benefits. See Act 1408(a)(4).

2. Both the settlement agreement and the decree provide that the parties are individually responsible for the indebtedness owed on any property awarded to them and for their respective income tax liability.

The term "personal property," however, refers to all property other than real estate, such as goods, chattels, money, notes, stocks, and bonds, including intangible property. See Black's Law Dictionary 1217 (6th ed. 1990); see generally 59 Tex. Jur. 3d Property 3 (1988); cf. Ritchey, 622 S.W.2d at 592. In direct contradiction of the settlement agreement, the decree awards Aubin any undisclosed personal property in his possession, including financial assets, and Yoshiko's personal effects remain undivided. See Carreon v. Morales, 698 S.W.2d 241, 245 (Tex. App.--El Paso 1985, no writ) (agreement awarding husband all remaining property in his possession and control effected award of insurance policy and retirement benefits).

Yoshiko also objects to language in the decree awarding her $13,800 "from" Aubin's individual retirement account ("IRA"). The settlement agreement provided that she "will receive the sum of $13,800.00 to equalize the value between her vehicle and his vehicle and the IRA's." Yoshiko contends that instead of receiving the sum in cash as intended by the agreement, she will, as a result of the decree, receive a share in the individual r