Herbert v. Herbert
| Citation | 699 S.W.2d 717 |
| Decision Date | 27 November 1985 |
| Docket Number | No. 2-84-197-CV,2-84-197-CV |
| Parties | Dorothy HERBERT, Appellant, v. Hansel Kay HERBERT, Appellee. |
| Court | Court of Appeals of Texas |
Raymond D. Noah & Associates, Raymond D. Noah and Brenda B. Herrera, Richardson, for appellant.
Gayle E. Oler, Dallas, for appellee.
Before FENDER, C.J., and JOE SPURLOCK, II and HUGHES, (Retired), JJ.
The prior opinion and judgment in this cause, dated August 7, 1985, are hereby withdrawn, and the following substituted therefor. In our original opinion we reversed and remanded for a new trial; however, because we now hold that appellant failed to preserve the error of which she complains on appeal, and which this Court previously used as the basis for reversal, we grant appellee's motion for rehearing.
This is an appeal from a take-nothing judgment rendered against appellant, Dorothy Herbert, in her suit to enforce the property settlement agreement and judgment in a prior divorce decree between the parties. Appellee, Hansel Kay Herbert, answered asserting the affirmative defense that appellant had materially breached the agreement herself, thereby excusing further performance on his part, i.e. payment to appellant of one-half of appellee's military retirement benefits. Upon the jury's finding that appellant had not substantially complied with the duties and obligations required of her under the property settlement agreement contained in the divorce decree, the trial court rendered a take-nothing judgment against appellant. From this judgment appellant raises seven points of error.
We reverse and remand because we find the jury's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.
A brief discussion of the procedural history of this case is necessary. In August of 1977, the parties were divorced by decree of a Dallas County court after many years of marriage. The property adjudication One-half of the monthly retired pay to be paid by the United States Navy with respect to the military service of HANSEL KAY HERBERT, said retired pay eligibility commencing upon application at age sixty (60) years of HANSEL KAY HERBERT in accordance with the provisions of Title 10, U.S.Code, Chapter 67, as the pay is paid each month.
decree of the court was based entirely upon a property settlement agreement entered into by the parties. This multi-page document set out in very specific detail which party was to receive each item of personal property owned by the parties, jointly or severally, at the time of the divorce. The agreement, which was incorporated verbatim into the decree of the court, awarded appellant as her sole and separate property various items including:
A dispute arose almost immediately after the divorce as to whether appellant, who had remained in complete and sole possession of the house, had turned over to appellee all of his personal property. Appellee sent a three-page list to appellant of items he claimed appellant wrongfully retained. Some, but not all, of the items were sent to or retrieved by appellee at later dates. Appellee and his attorney wrote appellant and her attorney that these items (military service memorabilia, family papers and photographs, specific records from appellee's extensive jazz collection, slides, an 8mm movie, etc.), were of great personal value to appellee, and were a material part of the property divided in the divorce. Appellee further notified appellant that her failure to surrender the items would be considered a major breach of the contract, and appellee would in turn consider himself not obligated to pay to appellant her one-half of the military retirement benefits if and when they became due.
During February, 1982, appellee began receiving military retirement pay but refused to send any portion of these benefits to appellant. On August 9, 1982, appellant sought to enforce this provision of the divorce decree by filing a contempt action in the Dallas Court which had divorced the parties. The motion was dismissed because the court held that the decree was not specific enough to be enforced by contempt. When appellant filed a motion to clarify the judgment, appellee filed a plea of privilege and counterclaim; the Dallas court dismissed the motion to clarify, granted the plea of privilege, and transferred the cause to Tarrant County where appellee resided.
Appellant thereupon filed suit in Tarrant County seeking: a money judgment against appellee in an amount representing one-half of all military retirement benefits actually received by appellee up to that time; judgment for monthly payments unpaid but to be received by appellee who, appellant alleged, was acting as constructive trustee for appellant; and attorney's fees for the Dallas actions as well as for the Tarrant County suit.
Appellee answered contending: appellant's action was barred by the principle of res judicata; to the extent that appellant's suit was based on a written contract, the written instrument was without consideration, or the consideration of same had failed in whole or in part; appellant was not entitled to any equitable relief because she had failed to comply with the provisions of the property settlement agreement/judgment, and came into court with unclean hands; and appellant was not entitled to specific performance because she materially breached the property settlement agreement/judgment by withholding and refusing to deliver to appellee certain items of personalty.
Appellee additionally filed a counterclaim seeking: specific performance of the property settlement agreement/judgment; entry of an order stating the items being wrongfully retained by appellant are held by her in a constructive or resulting trust; and delivery of these personal items as a condition precedent to the payment by appellee of any military retirement benefits. Alternatively, appellee sought rescission of the property settlement provisions of the divorce decree or a money judgment After a full jury trial on the merits, both parties requested special issues which were refused by the trial court. The sole issue presented to the jury was whether appellant had substantially complied with the duties and obligations required of her under the property settlement agreement which was contained in the divorce decree. The jury answered that she had not. The trial court rendered a take-nothing judgment against appellant, decreeing appellant was not entitled to recover any portion of the monthly retirement pay which had been paid in the past or which would be paid in the future by the United State's Navy with respect to appellee's military service.
against appellant for the value of the items, an amount in excess of $20,000.00.
In her first two points of error, appellant contends the trial court erred in re-adjudicating the property division in the divorce judgment by divesting appellant of her one-half interest in appellee's military retirement benefits and allowing appellee to raise impermissible contractual defenses to collaterally attack the final divorce judgment. Appellee's position is that the property settlement agreement is to be treated as a contract, not as a judgment, and the contractual defense of subsequent material breach (lack of substantial compliance) is not a collateral attack. Therefore, he argues, the jury's finding that appellant failed to substantially comply with the property settlement agreement precluded her recovery, and excused appellee's continued performance under the contract.
At this junction we must discuss a procedural dilemma with which we are confronted. Appellee's affirmative defense of material breach was properly plead by him, and evidence was introduced at trial concerning this theory. Apparently, both parties and the trial court proceeded under the theory that if appellee proved appellant had not substantially complied with the duties and obligation specified in the property settlement agreement/judgment, she had materially breached the agreement and was not entitled to enforce its provisions. Although on appeal appellant argues quite strenuously that appellee's affirmative defense was an impermissible collateral attack on a final judgment, for the reasons stated herein we unfortunately must find that appellant acquiesed in the submission of this theory to the jury and, therefore, appellant is precluded from challenging its validity.
At trial, appellant requested the submission of numerous special issues. Several of these issues concerned questions regarding appellee's receipt and non-payment of his military retirement benefits; several dealt with whether appellant had failed to deliver any items (and inquired as to which) to appellee as required by the divorce decree; and one requested issue inquired whether appellant had failed to perform the duties and obligations required of her under the divorce decree. Lastly, appellant requested the following special issue:
(2) Do you find from a preponderance of the evidence that Plaintiff substantially complied with the duties and obligations required of her under the Decree of Divorce?
You are further instructed that if the answer to the foregoing Issue is "We do", that substantial compliance with the specified requirements is the legal equivalent of compliance.
The trial judge wrote "refused" on this requested issue, and submitted only one issue in his charge to the jury:
SPECIAL ISSUE
Do you find from a preponderance of the evidence that Dorothy Herbert substantially complied with the duties and obligations required of her under the property settlement agreement contained in the divorce decree dated August 12th, 1977.
In answering the above and foregoing Special Issue you are instructed that substantial compliance as used in this Special Issue is a performance of all important particulars and permits only such omissions or deviations from the agreement as are inadvertent and...
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