Lohse v. Cheatham
| Decision Date | 15 January 1986 |
| Docket Number | No. 04-84-00435-CV,04-84-00435-CV |
| Citation | 705 S.W.2d 721 |
| Parties | Al LOHSE, Appellant, v. Sharon CHEATHAM, Appellee. |
| Court | Texas Court of Appeals |
F.J. Stenburg, San Antonio, for appellant.
Terry Weeks, Weeks, Chapman & Buford, Ann S. Taylor, Austin, for appellee.
Before BUTTS, CANTU and REEVES, JJ.
Al Lohse, appellant, brought a declaratory judgment suit against his former wife, Sharon Cheatham, appellee, previously known as Sharon Lohse, seeking to have the court construe the divorce decree previously entered to determine the ownership of certain property and the respective obligations, liabilities and duties of the parties under the decree of divorce.
Appellant's petition alleged that a dispute had arisen between the parties with respect to whether appellee was solely obligated to pay and indemnify and hold appellant harmless from any failure to discharge an indebtedness in the approximate amount of $56,000.00 to Seguin Savings Association.
The petition further alleged that a dispute had arisen as to the rights of appellant in appellee's future retirement program and whether appellant's interest therein was to be construed as having the effect of increasing appellant's percentage in appellee's future retirement program as appellee's number of months upon which such retirement was based increases.
The petition additionally alleged that a dispute had arisen as to ownership of various items of personal property awarded in the decree, i.e., what constitutes "miscellaneous tools."
The petition further alleged that a dispute had arisen between the parties with respect to a portion of the proceeds derived from the sale of certain realty.
The decree of divorce recited, with respect to the items in contention:
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Petitioner (appellee) is awarded the following as Petitioner's sole and separate property, and Respondent (appellant) is hereby divested of all right, title, and interest in and to such property:
(1) All household furnishings, appliances, fixtures, goods, appliances and equipment in Petitioner's possession or subject to Petitioner's control except the parties' grandfather clock, miscellaneous tools, one set of stainless steel service for 8, Mixmaster, two complete place settings from the chinaware set in the possession of Petitioner which are awarded to Respondent....
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Respondent is awarded the following as Respondent's sole and separate property, and Petitioner is hereby divested of all right, title, and interest in and to such property:
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(2) The following property presently in Petitioner's possession: Grandfather clock, miscellaneous tools, one set of stainless steel service for 8, Mixmaster, and two complete place settings from the chinaware set in the possession of Petitioner.
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(8) An interest in Petitioner's Teacher Retirement Program if, as, and when received by or paid to Petitioner, based upon her participation in such retirement plan, to be determined by the following formula:
At the time benefits become payable under the terms of this Decree, the formula for determining Petitioner's part shall be expressed as follows:
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2 x (Number of months in program x $ amount
of benefits paid.)
For example, if at the time of retirement the monthly benefit is $500.00 and the number of months upon which such entitlement is based is 400 months, the entitlement of the other party shall be expressed as:
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---- ----
2 x 400 x $500.00 = $22.50
Petitioner is ordered to pay such sum as determined by this formula within five (5) days of receipt by depositing such sum with the District Clerk of Guadalupe County, at Seguin, Texas 78155. The remaining portion is awarded to Respondent.
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It is Decreed that Petitioner shall pay, as a part of the division of the estate of the parties, the following debts and obligations and shall indemnify and hold Respondent harmless from any failure to so discharge such debts and obligations:
(1) The mortgage payments on the family residence at Seguin Savings Association in the approximate amount of $56,000.00.
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It is Ordered and Decreed that Petitioner and Respondent shall each have an undivided one-half interest in the family residence located at 104 Hampton West, Seguin, Guadalupe County, Texas, with the exclusive right of possession in Sharon Bell Lohse to the exclusion of Alfred Charles Lohse, Jr. In addition, Alfred Charles Lohse, Jr. shall have no right of partition so long as Sharon Bell Lohse remains unmarried and for a period of 18 months thereafter, or until the last child is emancipated. Sharon Bell Lohse shall have the right, in her sole discretion, to place such real estate on the market at any time and Alfred Charles Lohse, Jr. is Ordered to cooperate in any such sale. During the period of co-ownership, Sharon Bell Lohse shall be responsible for paying property taxes and insurance on the property with the exception of 1981 tax and insurance payments which are to be a joint responsibility of Petitioner and Respondent. At the time of sale of the property Respondent shall be responsible for reimbursement to Petitioner for one-half of the cost of all reasonable necessary capital improvements and one-half the cost of reasonable and necessary repairs to the premises as determined by Petitioner, ordinary wear and tear excepted. Petitioner is ordered to furnish an annual accounting to Respondent of all claimed improvements and repairs.
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Appellee in her first amended original answer and counterclaim urged that the divorce decree was ambiguous as to the nature of property passing to the parties under the decree and as to the obligations, liabilities and duties of the parties created by the decree and asked the court to construe the decree.
Appellee asserted in her counterclaim that the decree should be construed so as to effectuate the intent of the parties and asked that it be treated and construed as a contract between the parties under the law of contracts when dealing with ambiguities.
The trial court entered its judgment which recites that the decree was construed with the benefit of evidence in order to effectuate the intent of the parties at the time of the entry of the divorce decree. The trial court then declared the meaning of the various contested provisions and adjudged and decreed them into effect. The judgment in pertinent part reads:
It is ORDERED, ADJUDGED & DECREED that one certain certificate of deposit on account with the Independence Savings and Loan Institution, 615 Saint Paul, Gonzales, Texas, bearing account # 11-002518-9, originally issued January 25, 1983, and held in the names of Edward B. Rather and F.J. Stenberg as trustees for Sharon Cheatham and Al Lohse under the terms of certain trust agreements entered into by the parties pursuant to the sale of the family home according to a Decree of Divorce in this cause be and it is hereby ORDERED, ADJUDGED & DECREED to be the property of Sharon Cheatham along with all interest accrued on the said certificate of deposit to date and in the future until such time as the certificate is redeemed by the issuing institution.
II.
It is further ORDERED, ADJUDGED & DECREED that the "miscellaneous tools" awarded to husband in the Decree of Divorce are the tools set out on the attached Plaintiff's Exhibit # 15 which Exhibit is incorporated herein by reference as fully as if set out verbatim and Al Lohse is entitled to their possession, if he does not already have possession of said tools and if Sharon Cheatham has them. Sharon Cheatham is ORDERED to surrender such tools to Al Lohse at her home at 2:00 o'clock p.m. on the first Saturday after 30 days after the judgment becomes final.
III.
The Court finds that the ceiling fans, microwave oven, and chandelier specifically requested by the husband in this cause are the property of Sharon Cheatham and his claim to such property is hereby denied and it is so ORDERED, ADJUDGED & DECREED.
IV.
Upon the application of the Plaintiff for a construction of the portion of the original Decree of Divorce dealing with retirement, the Court construes the judgment in light of the entire document to mean that the husband's percentage share is to decrease as the wife's number of months in the teacher retirement increases so that the husband's portion of her retirement is to be one-half of thirty six divided by the total number of months she has of service credit in the teacher retirement system at the time of her retirement or disbursement of the retirement funds or benefits multiplied times the monthly benefits, if paid monthly, or times the disbursement as the benefits are withdrawn. The order construing the entitlement of Al Lohse to a portion of Sharon Cheatham's retirement benefits is made because of the ambiguity in the numbered paragraph VIII, beginning on page 4 of the Decree of Divorce and ending on page 5, of the Decree of Divorce.
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Appellee admits in her brief that the court entertained the testimony of the parties and attorneys and relied upon proof that the parties intended to have a fifty/fifty division of the property. Appellee further admits that the decree was declared to be ambiguous and required clarification because it did not, in light of the entire document, effectuate a fifty/fifty division.
The trial court filed Findings of Fact and Conclusions of Law. They recite:
FINDINGS OF FACT
The Court makes the following Findings of Fact relative to the Divorce Judgment and the agreement of the parties in this cause:
1. A controversy exists between the parties to this cause as to the meaning of certain language in the Decree of Divorce between the parties and as to disposition of assets ordered in the original Divorce Decree.
2. Each party has sought clairifcation [sic] or...
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Kent v. Holmes
...a divorce decree should be declared "in light of the literal meaning of the language used." Id. (quoting Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex.App.-San Antonio 1986, writ dism'd)). Under Texas common law, the beneficial interest of an insurance policy may be terminated by the divorce ......
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Kent v. Holmes, No. 06-03-00071-CV (TX 6/9/2004)
...a divorce decree should be declared "in light of the literal meaning of the language used." Id. (quoting Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex. App.—San Antonio 1986, writ dism'd)). Under Texas common law, the beneficial interest of an insurance policy may be terminated by the divorce......
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