Tarver v. Tarver

• Decision Date: 28 February 1990
• Docket Number: No. 21,130-CA,21,130-CA
• Citation: 557 So.2d 1056
• Parties: Stella Sanders TARVER, Plaintiff-Appellee, v. Harold Thomas TARVER, Defendant-Appellant. 557 So.2d 1056
• Court: Court of Appeal of Louisiana — District of US

Page 1056

557 So.2d 1056

Stella Sanders TARVER, Plaintiff-Appellee, v. Harold Thomas TARVER, Defendant-Appellant.

No. 21,130-CA.

557 So.2d 1056

Court of Appeal of Louisiana Second Circuit.

Feb. 28, 1990.

Writ Denied May 25, 1990.

Sanders and Sanders by Martin S. Sanders, Jr., Winnfield, for defendant-appellant.

James L. Fortson, Shreveport, for plaintiff-appellee.

Before HALL, LINDSAY and HIGHTOWER, JJ.

LINDSAY, Judge.

The defendant, Harold Thomas Tarver, appeals from a trial court judgment finding that, in a 1974 contract partitioning community property between the defendant and the plaintiff, Stella Sanders Tarver, the parties intended to evenly divide between them the defendant's retirement benefits from the Air Force, including the tax-exempt portion of those benefits attributable to the defendant's thirty percent disability. We affirm the trial court judgment.

FACTS

These parties are before this court for the third time regarding a contract, later reduced to judgment, which was executed in order to effect a settlement of their community. In one form or another, each case has included issues relating to Mr. Tarver's military retirement pay.

The background facts of this case are fully set forth in the previous opinions of this court. See Tarver v. Tarver, 441 So.2d 451 (La.App. 2d Cir.1983), writ denied, 445 So.2d 1232 (La.1984) and Tarver v. Tarver, 508 So.2d 647 (La.App. 2d Cir.1987). Briefly stated, however, the record reveals that the defendant, Harold Thomas Tarver, a career enlisted member of the Air Force, was judicially separated from the plaintiff, Stella Sanders Tarver, in 1971. On April 28, 1972, the defendant retired from the Air Force after more than twenty-two years service. He was also assessed with a thirty percent physical disability. The defendant began receiving retirement benefits in May, 1972. The portion of Mr. Tarver's pension which is based upon his disability is exempt from federal income taxation.

The parties were divorced in 1974. In conjunction with the divorce, the parties entered into an agreement which provided that the plaintiff was entitled to a portion of the defendant's military retirement benefits. Under the terms of their contract, Mr. Tarver agreed that Mrs. Tarver was the owner of an undivided one-half interest in and to all retired pay received by Mr. Tarver and that he would pay her one-half of all retired pay received by him after the date of the agreement. This agreement was incorporated into their divorce judgment of November 12, 1974.

Through the years since the execution of the agreement and the judgment based thereon, the defendant has frequently failed to make proper payments to the plaintiff. The plaintiff has filed numerous rules to make past due amounts executory.

In 1982, Mrs. Tarver filed a rule to make past amounts, due under the contract and judgment, executory. In response to this rule, the defendant argued that under McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the contract between the parties was void for error of law. This argument was rejected by the trial court, which rendered judgment against Mr. Tarver, ordering that past due amounts be made executory. Mr. Tarver appealed.

In his first appeal to this court, we found that Mr. Tarver was precluded from rescinding the agreement on the grounds of error of law. In the first Tarver appeal, supra, Mr. Tarver argued that the 1974 agreement and subsequent judgment incorporating the agreement, were void for error and lack of cause. Relying upon McCarty v. McCarty, supra, holding that military retirement benefits were not subject to state community property laws, Mr. Tarver argued that the agreement was null. This court noted that because Mr. Tarver failed to appeal from the judgment incorporating the agreement, he could not attack the validity of the agreement for error of law. Accordingly, the judgment of the trial court was affirmed.

On December 2, 1985, Mrs. Tarver again filed a rule to make past due amounts executory. The defendant answered, asserting that the plaintiff was entitled only to one-half of his "longevity retirement" and not to any portion of his tax free disability benefits.

In the trial court, the defendant contended that thirty percent of the total retirement payment which he received was a disability benefit and therefore his separate property. Only the remaining seventy percent was subject to the previous contract. Therefore, and based on these calculations, the defendant asserted that he had properly paid the plaintiff one-half of seventy percent of his net retirement benefit.

On August 4, 1986, the trial court filed a judgment granting the plaintiff one-half of the gross amount of the plaintiff's retirement which he had received since May, 1972. No exception was made for disability benefits. On September 4, 1986, the defendant appealed the trial court judgment. In the second Tarver appeal, supra, we held as follows:

Mr. Tarver is obligated to pay Mrs. Tarver 1/2 of all pay received by him from his military retirement commencing December 5, 1974, but we shall not attempt, on this record, to interpret whether 1/2 of Mr. Tarver's pay from military retirement should be construed to include the monthly amount Mr. Tarver was awarded by the Air Force for his disability.

In the interest of justice, we shall remand to allow the trial court to receive evidence on what amounts were paid and accepted under the 1974 judgment between November 12, 1974, and March 1, 1976, and determine what the litigants intended by their 1974 agreement that was incorporated into the judgment of November 12, 1974. CCP Art. 2124. The trial court may receive such evidence as to the amounts paid Mr. Tarver by the Air Force since December 5, 1974, either or both for his longevity of military service and for his disability and determine what amount, if any, Mr. Tarver may owe Mrs. Tarver under the obligation recognized in the 1974 judgment, 508 So.2d 647.

On May 26, 1988, the case was again considered by the trial court on remand and the court held:

I find that the entirety of the money that Mr. Tarver has been receiving, from 1974 to the present date, is based on his longevity calculations and therefore the entirety of that money is retirement pay and that the entirety of the money is that contemplated by the agreement of November 12, 1974 which was incorporated into a Judgement on that date.

In accordance with the directions on remand, the trial court found that the amount paid by the defendant throughout the period from November 12, 1974 through March 1, 1976 was $210 per month, representing one-half of the total of the defendant's retirement pay.

The court also found that it was the intent of the parties in their 1974 contract that the plaintiff would be paid one-half the total amount of retirement pay then received and in the future to be received by the defendant from the United States Air Force.

Accordingly, on January 23, 1989, judgment was entered awarding the plaintiff past due payments totaling $6,671, representing the amount past due from April, 1987, subject to a credit of $2,170.93 which had been paid by the defendant.

The judgment of January, 1989, is now before us on appeal. Defendant essentially argues that the court erred in failing to find that thirty percent of his monthly retirement benefit constituted a disability benefit which was not community property. Defendant argues that the parties did not intend to include the disability portion of his retirement income in the amount to be paid to plaintiff under their agreement.

INTENT OF THE PARTIES

First, we must determine whether the trial court erred in finding that the parties intended, in their 1974 agreement, for Mrs. Tarver to receive one-half of Mr. Tarver's retirement benefits, including the tax free portion of the benefits attributable to his disability. Based upon the record before us, we find the trial court ruling was correct.

As stated in the second Tarver appeal, supra, we are not dealing with the settlement of the community which formerly existed between spouses requiring a determination of a former spouse's entitlement to her ex-husband's military retirement benefits. We are called upon to construe a contract, voluntarily entered into by the parties in 1974. The purpose of this exercise is to determine the true intent of the parties when entering into that contract. Therefore, the agreement between the parties must be evaluated according to the principles commonly used in regulating the construction and interpretation of contracts.

Legal agreements have the effect of law upon the parties and the courts are bound to give legal effect to all such contracts according to the true intent of the parties. Travelers Indemnity Company v. Anderson, 533 So.2d 118 (La.App. 4th Cir.1988), writ denied 535 So.2d 744 (La.1989).

Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. Art. 2045. Louisiana contracts are to be interpreted in light of the common intent of the parties and in light of all the provisions so that each provision is given the meaning suggested by the contract as a whole. Adams v. Adams, 503 So.2d 1052 (La.App. 2d Cir.1987); West v. West, 475 So.2d 56 (La.App. 2d Cir.1985), writ denied 478 So.2d 147 (La.1985); Fontenot v. Waste Management of Lake Charles, 493 So.2d 904 (La.App. 3rd Cir.1986).

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LSA-C.C. Art. 2046.

The words of a contract must be given their generally prevailing meaning. Words of art and in technical terms must be given their technical meaning when the contract involves a technical matter. LSA-C.C. Art. 2047.

Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. Art....