Soto v. Soto

• Decision Date: 17 October 1996
• Docket Number: No. 08-95-00222-CV,08-95-00222-CV
• Citation: 936 S.W.2d 338
• Parties: T. SOTO, Appellant, v. M. SOTO, Appellee.
• Court: Texas Court of Appeals

Page 338

936 S.W.2d 338

T. SOTO, Appellant, v. M. SOTO, Appellee.

No. 08-95-00222-CV.

Court of Appeals of Texas,

El Paso.

Oct. 17, 1996.

Rehearing Overruled Nov. 27, 1996.

Ralph William Scoggins, El Paso, for Appellant.

Ruben Bustamante, El Paso, for Appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

We overrule Appellant's Motion for Rehearing, withdraw our opinion of August 15, 1996, and substitute this opinion in its stead. This is an appeal from a judgment entered in favor of Husband ¹ after a bench trial in a post-divorce partition suit. We affirm.

SUMMARY OF THE EVIDENCE

On May 15, 1985, Wife and Husband were divorced. Regarding the estate of the parties, the divorce decree provided as follows:

IT IS DECREED that the estate of the parties be divided as follows:

Petitioner [Wife] is awarded the following as Petitioner's sole and separate property and Respondent is hereby divested of all right, title, and interest in and to such property:

All property in Petitioner's possession. ²

Respondent [Husband] 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:

All real and personal property in Respondent's possession.

All clothing, jewelry, and other personal effects in the possession of or subject to the control of Respondent.

On November 29, 1988, Wife filed suit to partition property allegedly not divided upon divorce. Following a bench trial, the trial court entered judgment against Wife, finding that "the divorce decree is not un[sic]ambiguous and therefore not subject to partition by the Plaintiff and as such partition is an inappropriate remedy."

AMBIGUITY OF DECREE

Wife attacks the judgment of the trial court in four points of error. In her first point of error, Wife contends that the divorce decree is ambiguous as a matter of law. We agree.

The Supreme Court of Texas has consistently ruled that community property not divided upon divorce is held by the former spouses as tenants in common and that partition is an appropriate remedy to effectuate a post-divorce division. Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985); Busby v. Busby, 457 S.W.2d 551, 554-55 (Tex.1970). Partition is inappropriate if the decree purports to divide the entire community estate, is unambiguous, and neither party directly appeals. Acosta v. Acosta, 836 S.W.2d 652, 654 (Tex.App.--El Paso 1992, writ denied).

A division of the community estate may be effectuated by court order following a contested evidentiary hearing or by an agreement of the parties. Where the divorce decree is not a consent or agreed judgment, it is controlled by the rules relating to the construction of judgments as opposed to the rules relating to the construction of contracts. Acosta, 836 S.W.2d at 654; Haworth v. Haworth, 795 S.W.2d 296, 298 (Tex.App.--Houston [14th Dist.] 1990, no writ). In general, a judgment should be construed in the same manner as other written instruments with a view toward harmonizing and giving effect to all that the court has written. Haworth, 795 S.W.2d at 298; Constance v. Constance, 544 S.W.2d 659, 660 (Tex.1976). Intent of the parties is immaterial in the absence of a consent or agreed judgment. Acosta, 836 S.W.2d at 654; Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex.App.--San Antonio 1986, writ dism'd). If the judgment taken as a whole is unambiguous, the trial court is required to declare the effect of the decree "in light of the literal meaning of the language used." Acosta, 836 S.W.2d at 654; Haworth, 795 S.W.2d at 298; Lohse, 705 S.W.2d at 726. If a provision is ambiguous, the court may review the record to determine its meaning. Haworth, 795 S.W.2d at 298.

On the other hand, divorcing couples may enter into agreements to facilitate property division. See TEX.FAM.CODE ANN. § 3.631(a)(Vernon 1993)("To promote amicable settlement of disputes on the divorce or annulment of a marriage, the parties may enter into a written agreement concerning the division of all property and liabilities of the parties and maintenance of either of them."). These agreements are considered contracts and their legal force and meaning are governed by contract law. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex.1986)("A marital property agreement, although incorporated into a final divorce decree, is treated as a contract and its legal force and meaning are governed by the law of contracts."); Traylor v. Traylor, 789 S.W.2d 701, 702-03 (Tex.App.--Texarkana 1990, no writ)(stating that "such agreements legal force, effect and meaning are governed by the law of contracts and not by the law of judgments"). Upon approval of the agreement, the court may include the agreement, as stipulated by the parties, in the divorce decree or incorporate it by reference. See TEX.FAM.CODE ANN. § 3.631(b)(c). When so included or incorporated, the divorce decree becomes a consent judgment, subject to the same degree of finality and binding force as a judgment rendered in an adversary proceeding. See McCray v. McCray, 584 S.W.2d 279, 280-81 (Tex.1979); Chess v. Chess, 627 S.W.2d 513, 515 (Tex.App.--Corpus Christi 1982, no writ)(stating that once the property settlement agreement was approved by the court, it was "no longer merely a contract between [the parties, but became] the judgment of the court"); see also KAZEN'S PRACTICAL FAMILY LAW MANUAL § 3.403, 3.404 (Barbara Anne Kazen ed., 1996). Therefore, the principles of res judicata and collateral estoppel apply. See Thompson v. Thompson, 500 S.W.2d 203, 208-09 (Tex.Civ.App.--Dallas 1973, no writ).

Consent judgments look for their interpretation to the law of contracts. See Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex.App.--Austin 1995, no writ)("[W]hen a divorce decree is a consent decree or agreed judgment, 'it must be interpreted as if it were a contract between the parties, and the interpretation thereof is governed by the laws relating to contracts.' ") citing Biaza v. Simon, 879 S.W.2d 349 (Tex.App.--Houston [14th Dist.] 1994, writ denied); Miller v. Miller, 700 S.W.2d 941, 951 (Tex.App.--Dallas 1985, writ ref'd n.r.e.) ("An agreed judgment must be interpreted as if it were a contract between the parties, and the interpretation of the judgment is governed by the laws relating to contracts."). When construing an agreement incident to divorce, a court must look to the intentions of the parties as they are manifested in the written agreement. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Miller, 700 S.W.2d at 951; Thompson, 500 S.W.2d at 207 (stating that the court was "bound by the express stated intent of the parties as manifested within the four corners of the instrument itself"). The entire agreement must be interpreted in such a way that all its provisions are given effect and that none are rendered meaningless. See Praeger v. Wilson, 721 S.W.2d 597, 600-01 (Tex.App.--Fort Worth 1986, writ ref'd n.r.e.); see also Coker, 650 S.W.2d at 393. In other words, every attempt must be made to harmonize all the provisions within the agreement. See Coker, 650 S.W.2d at 393. Each provision must be considered with reference to the whole agreement. Id. However, terms stated earlier in the agreement are favored over subsequent terms. Id. Finally, only if the agreement is ambiguous may parol evidence be considered. See Phillips v. Parrish, 814 S.W.2d 501, 503 (Tex.App.--Houston [1st Dist.] 1991, writ denied); Miller, 700 S.W.2d at 951. Ambiguity is a question of law for the court. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980); Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex.App.--El Paso 1993, writ denied). A party who contends that an agreement is ambiguous must prove that the agreement is uncertain, doubtful, or is susceptible to more than one meaning. Coker, 650 S.W.2d at 393; Phillips, 814 S.W.2d at 503. If a written agreement is worded so that it can be given a certain or definite legal meaning or interpretation, it is unambiguous. Id; Coker, 650 S.W.2d at 393. If the court determines that the language is ambiguous, the interpretation is a fact issue to be resolved by the fact finder.

Although Wife's signature appears on the decree, it merely approves the decree as to form. The presence of a party's signature approving the decree does not render the decree an agreed or consent judgment. Accordingly, we apply the rules pertaining to the construction of judgments. As we have noted, the divorce decree awarded Wife "all property in [her] possession" and awarded Husband "all real and personal property in [his] possession." Because the decree before us is not a consent judgment, the trial court was required to declare the effect of the literal meaning of the language used. While Wife was not awarded any real estate, Husband was awarded real estate, modified by the phrase "in his possession". We thus cannot determine whether the court awarded Husband all real estate plus the personal property in his possession or all real property in his possession and all personal property in his possession. Regrettably, the divorce decree does not itemize the real estate, much less denote which spouse was in possession of what property. It is undisputed that Husband was living in, and thus in possession of, one of the properties at the time of divorce. The other properties, however, were either vacant or rented to tenants. ³ As such, it is impossible to determine who was in actual possession of the properties at the time of divorce or otherwise ascertain the ultimate division of the community estate. We find as a matter of law that the divorce decree is ambiguous. Accordingly, we sustain Wife's Point of Error No. One. However, because the trial court made alternative findings, such error is harmless unless the court erred in reaching its alternative findings.

THE MEANING OF "POSSESSION"

In her second point of error, Wife contends that the trial...