Constance v. Constance, 12412
| Decision Date | 12 May 1976 |
| Docket Number | No. 12412,12412 |
| Citation | 537 S.W.2d 488 |
| Parties | Grace Carol CONSTANCE, Appellant, v. Ray CONSTANCE, Appellee. |
| Court | Texas Court of Appeals |
William Dickson, Dickson & Associates, Houston, for appellant.
Charles E. Blackley, Austin, Bartram, Reagan & Burrus, New Braunfels, for appellee.
The sole question before this Court is whether reference to the disposition of certain community property in the 'opinion' or 'findings' portion of a decree of divorce and not contained in the decretal part of the decree is an adjudication of ownership of that property.
Appellant and appellee were married in September, 1952, and lived together as husband and wife until April 6, 1967, when they were divorced. Appellee served in the U. S. Army and completed 20 years' service thus becoming eligible for retirement in February, 1965. He did not actually retire until May 1, 1967, ome month after being divorced from appellant.
The divorce decree rendered in April, 1967, introduced into evidence in the case at bar, made certain findings, one of which, was: '. . . And it further appearing to the Court that the Defendant is being retired as a Sergeant from the U. S. Army on a 20 year retirement plan and will receive approximately $220.00 per month as retired pay at this time, and that plaintiff has spent approximately fifteen years of the twenty years upon which the retirement is based as his wife, And inasmuch as no award is being made to Plaintiff for any portion of the retired pay, the Court finds that the sum of $200.00 per month for child support is reasonable And it is accordingly ORDERED by the Court that the Defendant contribute the sum of $200.00 per month toward the support and maintenance of said minor children . . .' (Emphasis added)
The decree then refers to a voluntary property agreement entered into between the parties, sets out the agreement, then decrees: '. . . it is therefore ORDERED, ADJUDGED, AND DECREED by the Court that the above enumerated property settlement agreement be and is hereby awarded to Plaintiff and Defendant as herein set out.'
There is no mention of the retirement benefits in the partition agreement, nor does the decree contain a residuary clause providing for disposition of community property not specifically adjudicated therein.
In October, 1973, appellant brought this suit for a partition of all funds received and to be received by appellee from the United States Army under the retirement benefit plan, maintaining that such benefits, having been vested at the time of divorce in 1967, were community property which, having been lift unawarded by the divorce decree, have been held jointly by appellant and appellee as tenants in common.
Appellee answered with a general denial and a plea of Res judicata asserting that the 1967 divorce decree reciting that 'no award is being made to Plaintiff for any portion of the retired pay . . .' constituted a prior adjudication of the matter in controversy. Appellee further pleaded the four-year statute of limitations, stale demand and laches on the part of appellant.
The trial court sustained appellee's plea of Res judicata and rendered judgment that appellant take nothing. Appellant perfected her appeal to this Court, and here asserts that the trial court erred in sustaining appellee's plea of Res judicata. We sustain this point.
Both parties agree that retirement benefits which have vested during the marriage constitute community property, and that where a divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof. Busby v. Busby, 457 S.W.2d 551 (Tex.1970), Wilson v. Wilson, 507 S.W.2d 916 (Tex.Civ.App.1974, no writ).
We hold that the portion of the divorce decree stating that 'no award is being made to Plaintiff for any portion of the retired pay . . .' constitutes nothing more than an opinion or finding by the court, and makes no adjudication of the retirement benefits. Consequently, these benefits were not awarded by the 1967 divorce decree and have since and are now held jointly by the appellant and appellee as tenants...
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Fenlon v. Jaffee
...function in a judgment." In Constance v. Constance, 544 S.W.2d 659 (Tex.Sup.1976) reversing the Austin Court of Civil Appeals' opinion at 537 S.W.2d 488, the Supreme Court held: "Judgments . . . are to be construed as a whole toward the end of harmonizing and giving effect to all the court ......
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Constance v. Constance
...his plea of res judicata. The Court of Civil Appeals ruled otherwise and reversed the judgment of the trial court and remanded the cause. 537 S.W.2d 488. The parties were married in September 1952 and were divorced on April 6, 1967. There were three sons born of the marriage who were betwee......