COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00329-CV
ROGER L. STIRLING APPELLANT
V.
LAURA L. STIRLING APPELLEE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Roger L. Stirling perfected this appeal from a post-divorce
judgment partitioning his Hercules, Inc. pension plan. We will reverse and render
judgment in favor of Roger.
Roger and Appellee Laura L. Stirling were married May 4, 1985, and
divorced December 8, 2008. Both Roger and Laura were represented by
1
See Tex. R. App. P. 47.4.
counsel in their divorce. The ―Agreed Final Decree of Divorce‖ granting them a
divorce contains the following provision describing the pension plans that were
awarded to Roger:
H-5. The sums, whether matured or unmatured, accrued or
unaccrued, vested or otherwise, together with all increases thereof,
the proceeds therefrom, and any other rights related to any profit-
sharing plan, retirement plan, Keogh plan, pension plan, employee
stock option plan, 401(k) plan, employee savings plan, accrued
unpaid bonuses, disability plan, or other benefits existing by reason
of the husband’s past, present, or future employment, including but
not limited to:
a. Toray 401(k) Savings Plan
b. CTS International 401(K) Plan
The decree similarly awarded all pension plans in Laura’s name to her. The
parties did not perfect any appeal.
In October 2009, Laura filed a petition for post-divorce division of
community property, alleging that Roger’s pension plan with Hercules, Inc. had
not been divided by the parties’ divorce decree. The trial court held a hearing on
Laura’s petition for post-divorce division of community property2 and heard
testimony regarding the Hercules, Inc. pension plan. The record reflected that
Roger had worked for Hercules, Inc. for eleven years before the marriage and for
2
Laura also alleged that Roger had failed to disclose the existence of his
Hercules, Inc. pension plan and had thereby breached his fiduciary duty and had
committed actual and constructive fraud. Roger filed an answer denying these
claims and paid a jury fee. At the hearing on Laura’s motion for post-divorce
division of property, however, the parties agreed that the only issue before the
court was ―the simple division issue.‖
2
sixteen years after the marriage and that Roger was entitled to a pension of
approximately $2,000 per month after he turned sixty years old. Laura testified
that no discovery was conducted in the divorce case and that she was unaware
of the Hercules, Inc. pension plan until she came across a manila envelope
marked ―Pension -- Hercules Pension‖ in a file cabinet in the home the couple
previously resided in together. The trial court signed a judgment awarding Laura
fifty percent of the community interest in Roger’s Hercules, Inc. pension plan
accruing from the date of marriage to the date of divorce; awarding Roger as his
separate property the amount accrued during the eleven years he worked at
Hercules, Inc. prior to the marriage; and ordering Roger to pay Laura’s attorney’s
fees of $2,364.73.
At Roger’s request, the trial court issued the following findings of fact and
conclusions of law:
1. Findings of Fact
Laura L. Stirling and Roger L. Stirling were divorced on or
about December 8, 2008.
After the divorce on or about December 8, 2008, Laura L.
Stirling filed a Petition for Post Divorce Division of Community
Property, on October 26, 2009, asking the Court to divide Roger L.
Stirling’s Pension with Hercules, which was not divided in the
divorce.
This Court had continuing, exclusive jurisdiction of this case
as a result of prior proceedings.
After hearing the evidence and argument of counsel and the
testimony of the parties on [March] 12, 2010, the Court determined
that the pension with Hercules, Inc. had not been divided in the
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divorce and that Petitioner, Laura L. Stirling was entitled to fifty-
percent of the pension from the date of marriage, May 4, 1985,
through the date of divorce, December 8, 2008.
2. Findings of Fact as Conclusions of Law
Any finding of fact that is a conclusion of law shall be deemed
a conclusion of law.
3. Conclusions of Law
The Post-Divorce Petition to Divide Previously Undivided
Property is in due form and contains all of the allegations as required
by law.
This Court has jurisdiction of the parties and the subject
matter of this lawsuit.
Roger L. Stirling’s previously undivided pension through
Hercules, Inc. may be divided by this Court.
Laura L. Stirling should be awarded fifty percent of Roger L.
Stirling’s pension with Hercules, Inc. Pension Plan from the date of
marriage, May 4, 1985 through the date of divorce, December 8,
2008.
In his sole issue, Roger argues that the unambiguous terms of the parties’
divorce decree divided the entire community estate and awarded the Hercules,
Inc. pension plan to him. Consequently, he argues that Laura’s collateral attack
on the divorce decree is barred by res judicata and that the trial court abused its
discretion by awarding attorney’s fees to Laura.
―Texas courts follow an established procedure for interpreting property
divisions in divorce decrees.‖ Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.
1997). Community property not awarded or partitioned by a divorce decree is
subject to later partition between the ex-spouses, who are considered joint
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tenants or tenants in common. Id. When the decree is not silent with respect to
the property in question, general rules regarding construction of judgments apply.
Id. Thus, if the decree, when read as a whole, is unambiguous as to the
property’s disposition, the court must effectuate the order in light of the literal
language used. Id. That is, when an appeal is not perfected from a final divorce
decree, and that decree in fact unambiguously divides all community property,
then a subsequent claim for post-divorce division of community property is barred
by res judicata. See id.; see also Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.
1990) (explaining that res judicata applies to a final divorce decree to the same
extent that it applies to any other final judgment). Whether a divorce decree is
ambiguous is a question of law subject to de novo review. Shanks v. Treadway,
110 S.W.3d 444, 447 (Tex. 2003).
Here, the parties’ agreed divorce decree unambiguously divides the entire
community estate, including the Hercules, Inc. pension plan. The decree’s
language in section 15, provision H-5 dealing with Roger’s pension plans states
that it is meant to cover ―[t]he sums, whether matured or unmatured, accrued or
unaccrued, vested or otherwise, together with all increases thereof, the proceeds
therefrom, and any other rights related to any . . . pension plan, . . . or other
benefits existing by reason of the husband’s past, present, or future employment
. . . .‖ The decree expressly declines any limitation of provision H-5 to only the
two plans listed, stating that it ―includ[es] but [is] not limited to‖ the two plans
listed. Moreover, the decree awards both Laura and Roger their respective
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pension plans; it does not award Laura any portion of any of Roger’s pension
plans. Thus, the decree indicates no intent that either party share in the
retirement plans existing in the other’s name. Reading the decree as a whole,
giving effect to the decree as a whole, as well as to the literal language used in
section H-5, the decree is unambiguous as to the disposition of the Hercules, Inc.
pension plan––it was awarded to Roger.3 See Wilde, 949 S.W.2d at 333 (holding
that court of appeals erred by giving conclusive effect to fact that decree
contained no express language of divestiture and that court of appeals should
have construed divorce decree as a whole to determine what the trial court
adjudicated from a fair reading of all of the judgment’s provisions); Appleton v.
Appleton, 76 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
(holding decree unambiguously awarded stock purchase options to husband so
that wife’s subsequent post-divorce petition for division of this right was barred by
res judicata);4 Stephens v. Marlowe, 20 S.W.3d 250, 255 (Tex. App.—Texarkana
3
The trial court did not make a conclusion of law that the decree was
ambiguous. But to the extent that conclusion must be implied because the trial
court signed a post-divorce judgment partitioning the Hercules, Inc. pension plan,
we hold that it is erroneous as a matter of law. See, e.g., AMX Enters., L.L.P. v.
Master Realty Corp., 283 S.W.3d 506, 519 (Tex. App.—Fort Worth 2009, no pet.)
(op. on reh=g) (reviewing conclusion of law for legal correctness).
4
The Appleton court applied contract principles to the agreed decree in that
case. Id. at 85–86. The decree here contains express decretal language
concerning the division of the marital estate, so we apply judgment principles
instead of contract principles although the result would be the same either way.
See In re Coppock, 277 S.W.3d 417, 420 (Tex. 2009) (orig. proceeding)
(explaining that ―without decretal language making clear that a party is under
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2000, no pet.) (holding that divorce decree language awarding ―any and all sums‖
and ―any other rights‖ related to ex-wife’s pension plan to her was unambiguous
and that husband’s suit to partition was barred by res judicata); Archibald v.
Archibald, No. 01-08-00015-CV, 2009 WL 1562865, at *1–3 (Tex. App.—
Houston [1st Dist.] June 4, 2009, no pet.) (mem. op.) (holding that divorce decree
language awarding husband ―all sums . . . or other benefits existing by reason of
the husband’s past, present, or future employment‖ was not ambiguous and that
wife’s suit to partition overtime benefits subsequently awarded to husband in
class action was barred by res judicata); see also Jacobs v. Cude, 641 S.W.2d
258, 260 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (holding that
because the complained-of retirement benefits were included in the residuary
clause—which stated that any items or property not specifically set forth shall be
awarded as separate property—ex-wife’s attempt to relitigate the issue was
barred by res judicata). Because the Hercules, Inc. pension plan was disposed
of in the parties’ divorce decree––it was awarded to Roger––Laura’s claim for
post-divorce partition of that asset is barred. Accordingly, we sustain this portion
of Roger’s sole issue.
In the second part of his sole issue, Roger argues that the award of
attorney’s fees to Laura was improper. A trial court may award reasonable
attorney’s fees in a statutory suit to partition property that a court did not divide in
order, agreements incorporated into divorce decrees are enforced only as
contractual obligations‖).
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a divorce proceeding. See Tex. Fam. Code Ann. § 9.205 (West Supp. 2010).
Such an award of attorney’s fees is within the trial court’s sound discretion. See
Burgess v. Easley, 893 S.W.2d 87, 91–92 (Tex. App.—Dallas 1994, no writ).
Because we have held that the Hercules, Inc. pension plan was expressly
and unambiguously awarded to Roger, leaving no pension plan for the trial court
to divide in a post-divorce action, no attorney’s fees are warranted. The trial
court abused its discretion by awarding attorney’s fees to Laura on a claim for
post-divorce partition of an asset that was unambiguously awarded to Roger in
the divorce decree. Cf. id. at 91–92 (holding that trial court did not abuse its
discretion by refusing to award attorney’s fees to ex-wife because property she
sought to have partitioned in post-divorce suit was not overlooked in divorce
action). We sustain this remaining portion of Roger’s sole issue.
Having sustained Roger’s challenge to the trial court’s award to Laura of
fifty percent of the community property interest in Roger’s Hercules, Inc. pension
plan accruing from the date of marriage to the date of divorce, we reverse the
trial court’s judgment and render judgment that Laura take nothing on her claim
for post-divorce division of Roger’s Hercules, Inc. pension plan. And having
sustained Roger’s claim that the trial court abused its discretion by awarding
attorney’s fees to Laura because she possessed no claim for partition of the
Hercules, Inc. pension plan, we reverse the trial court’s award of attorney’s fees
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to Laura and render judgment that Laura take nothing on her claim for attorney’s
fees.5
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER, and GABRIEL, JJ.
DELIVERED: July 28, 2011
5
Although Roger requested attorney’s fees in his original answer, he does
not argue in his appellate brief that he is entitled to attorney’s fees or pray for
remand for consideration of any such claim. Therefore, we need not address it.
See Tex. R. App. P. 47.1.
9