Petitioner's Brief on the Merits - Supreme Court of Texas

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2. The court of appeals relied on cases construing contracts in interpreting the divorce decree. Relying on a series of insurance and other contract cases, the court of appeals here narrowly interpreted the divorce decree as though it were a contract. Slip op. at 5-6. 49 While the court did rely on divorce cases for the proposition that if the decree taken as a whole is unambiguous, the trial court should interpret it in light of the literal meaning of the language used, those cases cited in turn rely on contract cases. Slip op. at 5 (citing Wilde v. Murchie, 949 S.W.2d 331, 332-33 (Tex. 1997) (per curiam); Acosta v. Acosta, 836 S.W.2d 652, 654 (Tex. App. – El Paso 1992, writ denied)). Wilde cites Acosta and Lohse v. Cheatham, 705 S.W.2d 721 (Tex. App. – San Antonio 1986, writ dism’d) for the proposition. 949 S.W.2d at 332. Acosta cites Lohse. 836 S.W.2d at 654. Lohse cites a trespass to try title case and a divorce case based on an agreed property settlement. 705 S.W.2d 726 (citing Bankers Home Building & Loan Ass’n v. Wyatt, 162 S.W.2d 694 (Tex. 1942) and Adams v. Adams, 214 S.W.2d 856 (Tex. Civ. App. – Waco 1948, writ ref’d n.r.e.)). Adams is not only based on an agreed settlement but also relies on non-divorce case law for the proposition. 214 S.W.2d at 857. So, ultimately the proposition arises 49 Citing Lone Star Cement Corp. v. Fair, 467 S.W.2d 402 (Tex. 1971) (default judgment on a contract); State Farm Lloyds, Inc. v. Williams, 791 S.W.2d 542 (Tex. App. – Dallas 1990, writ denied) (insurance); R&P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex. 1980) (suit on a note); Sears, Roebuck & Co. v. Commercial Union Ins. Corp., 982 S.W.2d 151 (Tex. App. – Houston [1st Dist.] 1998, no pet.) (landlord-tenant contract); Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951) (contract for automobile dealer); Republic Nat’l Life Ins. Co. v. Spillars, 368 S.W.2d 92 (Tex. 1963) (insurance); County of Maverick v. Texas Ass’n of Counties’ Worker’s Comp. Self-Ins. Fund, 852 S.W.2d 700 (Tex. App. – San Antonio 1993, no writ) (insurance); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994) (insurance). 26
entirely from non-divorce judgments, whether in contract, insurance, or other cases, that did not have to contend with specific, strict constitutional restrictions. 50 3. The decree here is ambiguous and must be read in the context of constitutional property rights. Although the divorce decree is inartfully worded, the trial court awarded Treadway 25% of the community property interest in the two plans, or 25% of the benefits under the plans, valued at the date of divorce, plus any increases attributable to that community interest share. If the trial court had awarded, as Treadway urges, 25% of retirement benefits valued “if, as, and when” paid, the court would have been awarding 25% of an unknown amount — including Shanks’ future separate property interests 51 — to Treadway. Such an arbitrary and unconstitutional ruling should not be so readily attributed to the trial court. The provision addressing Shanks’ retirement “plan” appears in a portion of the decree dividing the “estate of the parties” or community property. 52 The provision can be reasonably read two different ways, depending on what words the reader gives emphasis. The provision reads: The Court finds that [Shanks] has earned certain employee benefits under a pension plan arising out of past employment as an employee of American Airlines. 50 In addition, the court of appeals here seems to have interpreted the decree literally, rather than reading its language in “light of its literal language.” See Wilde, 949 S.W.2d at 332. 51 Of course, if the plan participant re-marries after the divorce but before retirement, such an order would award the subsequent spouse’s community property rights in the retirement benefits to the former spouse. 52 Eggemeyer, 554 S.W.2d at 139 (“The only ‘estate of the parties’ is community property.”) (discussing § 3.63, the predecessor statute to § 7.001). The decree goes on to identify some real estate as Shanks’ separate property. CR 12-13. No where does the decree indicate that it identify or divides any separate property in the retirement plans, much less future separate property. 27
Page 1 and 2: No. 00-1325 IN THE SUPREME COURT OF
Page 3 and 4: AMENDED IDENTITY OF PARTIES AND COU
Page 5 and 6: III. 2. The court of appeals relied
Page 7 and 8: County of Maverick v. Texas Ass’n
Page 9 and 10: Reiss v. Reiss, No. 01-0251, 40 S.W
Page 11 and 12: VICTOR B. MEYEN & MARK W. DUNDEE, Q
Page 13 and 14: STATEMENT OF JURISDICTION This Cour
Page 15 and 16: STATEMENT OF FACTS A. The Divorce.
Page 17 and 18: one for the defined benefit plan an
Page 19 and 20: ARGUMENT I. Given the proliferation
Page 21 and 22: earnings less applicable plan expen
Page 23 and 24: Thus, unlike defined contributions
Page 25 and 26: C. To accurately segregate communit
Page 27 and 28: Sequence Marital Property Defined C
Page 29 and 30: e paid to the alternate payee “if
Page 31 and 32: Moreover, such cursory divestiture
Page 33 and 34: of section 9.007 as the basis for i
Page 35 and 36: §§ 9.001-.002. Courts were also g
Page 37 and 38: intended to apply this restriction
Page 39: Whether the decree is unambiguous i
Page 43 and 44: [Treadway]. It is further ORDERED t
Page 45 and 46: (court recognizing that accrued ben
Page 47 and 48: Decrees that appear unambiguous whe
Page 49 and 50: This formula preserves marital prop
Page 51 and 52: D. When divorce precedes retirement
Page 53 and 54: In the Marriage, Employment, Divorc
Page 55 and 56: plan participant approaches retirem
Page 57 and 58: PRAYER This Court should grant Shan
Page 59: No. 00-1325 IN THE SUPREME COURT OF

Petitioner's Brief on the Merits - Supreme Court of Texas

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