Yeo v. Yeo

• Decision Date: 25 April 1979
• Docket Number: No. 16131,16131
• Parties: Doris B. YEO, Appellant, v. Norman R. YEO, Appellee.
• Court: Texas Court of Appeals

Page 734

581 S.W.2d 734

Doris B. YEO, Appellant, v. Norman R. YEO, Appellee.

No. 16131.

Court of Civil Appeals of Texas, San Antonio.

April 25, 1979.

Rehearing Denied May 30, 1979.

Wayne I. Fagan, Jason W. Chozick, Davis, Rigely & Fagan, Inc., San Antonio, for appellant.

Bruce Waitz, Keith M. Baker, San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is an appeal arising out of a summary judgment proceeding involving a suit for partition of military retirement benefits. Norman R. Yeo, appellee, and Doris B. Yeo, appellant, were married on January 17, 1940, and were divorced on September 3, 1964. Appellee served in the armed forces for all but the last few months of the marriage. He retired from the United States Air Force on April 23, 1964, at the age of fifty-nine with the rank of lieutenant colonel and has received military retirement benefits from that date until the present.

On July 11, 1964, at a time prior to the divorce, appellant and appellee entered into a property settlement agreement. The only reference thereto in the decree of divorce provides that "the property settlement agreement of the Plaintiff and Defendant, a copy of which is filed herein and made a part hereof, be, and it is hereby confirmed and ratified." The property settlement agreement makes no mention of the military retirement benefits. Under the agreement appellee was awarded property of the approximate total value of $12,813, and appellant was awarded property of the approximate total value of $13,991. ¹ According to appellee's deposition testimony, as of March, 1978, he had received net military retirement benefits of $138,029. Appellant has received none of these benefits, and she brought suit seeking a partition thereof. Appellee filed a motion for summary judgment, and appellant filed her answer thereto and an attached affidavit in opposition to the motion. Following a hearing, the trial court entered an order granting appellee's motion for summary judgment and decreeing that appellant take nothing.

Appellant asserts on this appeal that the trial court erred in granting summary judgment because (a) the property settlement agreement did not dispose of the military retirement benefits; (b) the property settlement agreement is not plain and unambiguous; (c) appellant's claim for military retirement benefits is not barred by the original decree of divorce; and (d) her claim is not barred as a matter of law by limitations or laches.

With respect to a summary judgment the question on appeal as well as in the trial court is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's cause of action, but rather whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of those essential elements. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. The provisions of Rule 166-A, Texas Rules of Civil Procedure, are applicable alike to defendants and plaintiffs who move for summary judgment. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

It is now settled that all military retirement benefits which accrue during the marriage of the respective parties under Texas law is the community property of such parties. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby,457 S.W.2d 551 (Tex.1970); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. San Antonio 1968, writ dism'd). It is equally well settled 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); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App. San Antonio 1975, no writ). Under these authorities, appellant's suit in this case is not a collateral attack on the divorce decree. It is merely a suit brought by one tenant in common against another with reference to property not affected by the prior divorce decree. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirberg v. Worrell, 44 S.W.2d 940 (Tex.Comm'n App.1932, holding approved); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App. San Antonio 1975, no writ). Moreover, a partition of community property not disposed of in the prior divorce decree is not barred by the doctrine of res judicata. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App. San Antonio 1975, no writ); Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App. Dallas 1973, no writ).

The summary judgment proof before us consists of the depositions of the two parties; written interrogatories and answers thereto of the parties; an affidavit by appellant in opposition to appellee's motion for summary judgment; and certain exhibits attached to the pleadings. Some of the testimony is uncontroverted and has heretofore been set forth. The primary area of disagreement is in the matter of negotiations and execution of the property settlement agreement. Appellant does not deny that she signed the agreement nor does she urge that she was forced to sign it; she did testify, however, that the retirement benefits were never discussed prior to execution of the agreement. She contends that she relied on representations appellee made to her; that appellee assured her that his lawyer was more knowledgeable than her lawyer; that it would be best for his attorney to prepare the settlement agreement; and that she told him that this arrangement would be agreeable because she trusted him. Appellee, on the other hand, testified that some mention was made of the retirement benefits. There is testimony that appellant knew that her husband was receiving military retirement benefits, at the time of the divorce. It must be remembered, however, that in 1964 when this property settlement agreement was entered into and the divorce was granted, the state of the law as to one spouse's right in the other spouse's military retirement benefits was nebulous and unsettled even among lawyers. The Mora Decision, cited previously, did not come until 1968, and the Supreme Court of Texas decision in Busby followed two years later.

Knowledge that community assets are undisposed of in a divorce decree does not effectuate a division or transfer of such property. Since neither the property settlement agreement nor the divorce decree in the case before us makes any mention of military retirement benefits, it is clear under the authorities previously cited that the retirement benefits remained as property not divided, and the appellant and appellee became tenants in common or joint owners thereof, unless a purported release provision or residuary clause in the settlement agreement had the effect of disposing of the military retirement benefits.

The residuary clause relied upon by appellee provides as follows:

I, the said DORIS B. YEO, for the same consideration, have released, remised and quitclaimed and by these presents, to (sic) hereby forever release, remise and quitclaim unto the said NORMAN R. YEO, his heirs, executors and assigns, any and all claims to, upon and against all his property and estate, including the property herein set aside and conveyed to him, any separate property he may now have or acquire in the future, and all other property of whatever nature, separate or community, in his possession or claimed by him, and wherever located, and I do further release, remise and discharge forever and agree to hold harmless, the said NORMAN R. YEO, his heirs, executors and assigns, from any and all liability, obligations and responsibility in connection with and with respect to the property herein conveyed to me and to be conveyed to me under the terms and provisions hereof.

The basic issue before us is whether or not the property settlement agreement disposes of the military retirement benefits. Since such benefits were not mentioned in either the property settlement agreement or in the divorce decree, appellee's argument must stand or fall on the provisions of the so-called residuary clause above set forth. The first two provisions of such clause can give little comfort to appellee ("any and all claims to, upon and against all his property and estate, . . . and any separate property he may now have or acquire in the future"). Appellant owned as her own property an undivided interest in such military retirement; her interest is not a claim against appellee's "property and estate (or) any separate property" owned by him. Appellee's argument is thus relegated to the third provision of the agreement ("all other property of whatever nature, separate or community, In his possession or claimed by him, and wherever located") (emphasis added). We do not regard appellant's interest in the military retirement benefits as a "claim," or as "property in (appellee's) possession."

While we have not found any decisions we regard as determinative with regard to the release or residuary clause here involved, there are several Texas cases which are at least persuasive. In Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Civ.App. Dallas 1973, writ ref'd n. r. e.), (hereinafter referred to as Dessommes II ) ² the ex-wife brought suit to establish her interest in one-half of her ex-husband's retirement benefits which were not specifically adjudicated in a 1963 decree of divorce. The ex-husband asserted that a provision in the divorce decree which stated that "each part(y) hereto keep the property now in the possession of such party as their own separate property and estate," was effective to defeat the ex-wife's claim. The Dallas Court of Civil Appeals disagreed, and held that "possession" could not properly be interpreted as...