TERRY MAUREEN POLASEK v. MARCUS WAYNE POLASEK--Appeal from 156th District Court of San Patricio County

NUMBER 13-03-101-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

TERRY MAUREEN POLASEK, Appellant,

v.

MARCUS WAYNE POLASEK, Appellee.

___________________________________________________________________

On appeal from the 156th District Court

of San Patricio County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

This is a suit to clarify and enforce a provision of a 1998 divorce decree awarding appellee, Marcus Wayne Polasek, as part of the division of the marital estate, "[o]ne-[h]alf ( ) interest in [appellant's] pending lawsuit concerning [fen/phen]." After a bench trial, the court concluded the language at issue was not ambiguous. It found that the language was intended to refer to the sole claim appellant, Terry Maureen Polasek, had for damages asserted in her 1999 fen/phen lawsuit. The court also concluded that this construction assisted in the implementation and clarification of the divorce decree and did not amend, modify, alter, or change the substantive division of property made and approved in the decree. By two issues appellant contends the trial court erred (1) in not according "pending lawsuit concerning [fen/phen]" its plain meaning after concluding that provision was not ambiguous, and (2) in amending, modifying, and/or changing a substantive division of property. We affirm.

I. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.II. Analysis

A. Ambiguity

By two issues, appellant asserts that, having concluded the language of the divorce decree was not ambiguous, the trial court was required to give that language its plain meaning and failed to do so. Appellant contends that the plain meaning of the phrase, "pending lawsuit," includes, at the very least, that a lawsuit has been filed, not that one might be filed at some later date.

"Whether the decree is ambiguous and in need of clarification is a question of law that we review do novo." Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex. App. Corpus Christi 2000, no pet.); see Nat'l Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (whether contract is ambiguous is question of law for court to decide). Moreover, because the divorce decree at issue in this case is an agreement by the parties, contract principles control. Appleton v. Appleton, 76 S.W.3d 78, 84 (Tex. App. Houston [14th Dist.] 2002, no pet.) (citing McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984) (holding marital property settlement agreement incorporated into final divorce decree is governed by law of contracts)).

"The determination of whether a contract is ambiguous is made by looking at the contract as a whole in light of the circumstances present when the parties entered the agreement." Wright, 32 S.W.3d at 894 (citing Nat'l Union, 907 S.W.2d at 520); see Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). "Conflicting interpretations of a contract, and even unclear or uncertain language, do not necessarily mean a contract is ambiguous." Id. (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994)). A contract is ambiguous only if there is uncertainty as to which of two meanings is correct. Kurtz v. Jackson, 849 S.W.2d 609, 611 (Tex. App. Houston [1st Dist.] 1993, no writ). If there is only one reasonable interpretation of the contract, it is unambiguous, id., and the court will construe the contract as a matter of law. Wright, 32 S.W.3d at 894 (citing Nat'l Union, 907 S.W.2d at 520). "Just because the parties disagree about the proper construction of a contract does not mean that the contract is ambiguous." Appleton, 76 S.W.3d at 84 (citing Forbau, 876 S.W.2d at 134). "Courts should not strain to find an ambiguity in a contract if, in doing so, they defeat the probable intentions of the parties." Id. (citing Licata v. Licata, 11 S.W.3d 259, 277 (Tex. App. Houston [14th Dist.] 1999, pet. denied)).

At the time of the divorce in 1999 appellant had a fen/phen claim. Appellant had taken fen/phen during her marriage to appellee. She sought recourse and signed a contract with a lawyer in 1997, before her divorce from appellee. The lawyer made appointments for appellant to see a physician and later, in 1998, to see a cardiologist. The divorce decree was signed on July 9, 1998. Appellant asserted her fen/phen claim in a lawsuit filed on July 7, 1999. The lawsuit subsequently settled, and appellant netted $650,000 from the settlement. Appellant did not have any other fen/phen claims. It is undisputed that the trial court found the fen/phen claim accrued during the marriage of appellant to appellee and before the decree of divorce. The court also found that the language in the decree relating to fen/phen was intended to refer to the claim for damages from fen/phen asserted by appellant in her lawsuit. //

Looking at the divorce decree as a whole in light of the circumstances present when the parties entered the agreement, Wright, 32 S.W.3d at 894 (citing Nat'l Union, 907 S.W.2d at 520); see Coker, 650 S.W.2d at 393, the uncertain language, specifically "pending lawsuit," does not, in this case, mean the decree is ambiguous. See Wright, 32 S.W.3d at 894. We will not strain to find ambiguity in the decree because in so doing we would defeat the probable intent of the parties. See Appleton, 76 S.W.3d at 84. Therefore, we conclude the divorce decree is not ambiguous as it relates to appellant's fen/phen claim.

Furthermore, even if we were to determine that the decree is ambiguous because there was uncertainty as to which of two meanings was correct, whether the language referred to appellant's pending claim or a lawsuit that had not yet been filed, see Kurtz, 849 S.W.2d at 611, contract law provides that the property settlement agreement may be reformed to correct a mutual mistake and to reflect the true intent of the parties. See Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App. El Paso 1995, no writ) (citing Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986)). As set out above, the trial court clearly sought the intention of the parties when it construed the language of the decree. It resolved the ambiguity, if any, by determining that the intent of the parties was to award one-half interest in appellant's pending claim regarding fen/phen. B. Clarification

Appellant also contends that by failing to give the language its plain meaning, the trial court rewrote the agreement and committed reversible error by altering, modifying and/or changing the division of property in the divorce decree. We disagree.

Under section 9.006 of the Texas Family Code, the court may render "further orders to enforce the division of property made in the decree of divorce . . . to assist in the implementation of or to clarify the prior order." Tex. Fam. Code Ann. 9.006(a) (Vernon 1998). Under section 9.007, the trial court does not have authority to "amend, modify, alter, or change the division of property made or approved in the decree of divorce" or "alter or change the substantive division of property." Id. 9.007(a). Here, as a prerequisite to enforcement, the trial court clarified a prior order. See Dechon, 909 S.W.2d at 957-58 & 961 (discussing clarification of divorce decree by interpreting "benefits" to mean "gross benefits" instead of "net benefits"). The clarification was made to conform the language of the decree to the intent of the parties. The trial court did not change or alter the substantive division of property made in the divorce decree; it clarified the decree. See Tex. Fam. Code Ann. 9.006, 9.007 (Vernon 1998).

Accordingly, appellant's first and second issues are overruled.

III. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 28th day of April, 2005.