dissenting.
I join with the majority in its determination of the tax savings reimbursement issue and its decision to sustain Elton’s sixth and seventh points of error. However, for the reasons set forth below, I respectfully dissent from the majority’s decision to affirm the trial court’s judgment that Elton must pay Ann $6,000 in “temporary support.”
There is no dispute that under a provision of the parties’ divorce agreement entitled “Temporary Support,” Elton agreed to pay Ann “$12,000.00 cash to be paid ... at the rate of $1,000.00 per month for twelve months.” The parties were granted a divorce on September 1,1987.
It was also not disputed that Ann sent Elton a signed handwritten letter dated March 6,1988, that reads in relevant parts as follows:
Dear Ray,
All day I’ve wanted desperately to call you. When I looked into your eyes this morning in church, the pain there broke my heart....
But I must know if the pain is caused by anything I can change. If it’s money, stop paying me. I’ll sign papers if I need to, or you can use this note — it’s in my writing, and I’ll sign it.
*302[[Image here]]
I do have a good job and I can take care of myself, and I’m not so terrified anymore. So if it’s money that will make a difference to you, then just stop sending the checks.
You don’t need to answer or acknowledge this. If I don’t get a cheek next month I’ll know your decision. No one needs to know about this if that’s what you choose. If you want a notarized something [sic]— write it up, and I’ll have it done.
[[Image here]]
I’ve said what I wanted to. However you choose to respond will be OK.
(Emphasis added.)
The parties agreed that Elton timely made six of the monthly $1,000 payments to Ann before receiving this letter. After he received the letter, Elton stopped sending the monthly payments.
Ann also sent a handwritten letter to her accountant, Bill Hollé, in September 1989. In the letter, she wrote:
I guess I must admit I still have mixed feelings about [Elton] and our situation, to the extent that I feel I did everything I could financially not to destroy or injure the investments or property and income he had created for himself, even to the point of cancelling the last half of the $12,000 he had agreed to pay me, because I had found a job and was able to support myself.
(Emphasis added.)
Elton testified Ann never indicated to him that she expected him to make the remaining six payments. Ann admitted on cross-examination she did not contact Elton regarding payment of the remaining $6,000 until 1992, four years after she sent the letter telling him he could stop paying her, and only after Elton made inquiries about her use of the tax credit carryforward amounts.
Ann testified she never intended to waive payment of the remaining $6,000. Elton testified he signed Ann’s letter to him dated March 1988 only after she made the request for the balance of the “support.”
The trial court entered the following relevant findings of fact and conclusions of law:
1. [Elton] is indebted to [Ann] under the
Temporary Support Payments temporary support provision of the Decree in the amount of $6,000_
2. [Ann] is entitled to such sum based on the Agreement Incident to Divorce which was not modified.
3. [Ann’s] entitlement to such sum is not barred by the defense of release.
4. [Ann’s] entitlement to such sum is not barred by the defense of accord and satisfaction.
5. [Ann’s] entitlement to such sum is not barred by the defense of estoppel.
6. [Ann’s] entitlement to such sum is not barred by the defense of waiver. There is no waiver because [Elton] did not rely on [Ann’s] letter of March 6, 1988 except to stop making payments.
7. [Ann’s] letter to [Elton] constituted only an offer to cancel the remaining temporary support payments which was not accepted by any signature or other legal proceedings until withdrawn_
The majority does not identify any portion of the March 1988 letter that is ambiguous or explain why such portion is ambiguous. Even if, as the majority states, the trial judge implicitly found that Ann’s letter was ambiguous, we must still decide whether that decision was correct. I do not believe that by failing to object to the parol evidence, Elton waived his right to rely on the letter as being unambiguous. The Bonner case, relied on by the majority, held that a lack of pleading ambiguity was excused because the issue was tried by consent. Here, it was Ann, not Elton, who asserted ambiguity. While trial by consent might excuse Ann from pleading ambiguity, I doubt that it precludes Elton from asserting the letter constituted a waiver as a matter of law, as he argued in the trial court and this Court. See Tex.R.App. P. 52(d).
Further, the majority does not discuss Ann’s letter to her accountant as bearing on its “finding” of ambiguity. Respectfully, it appears the majority has placed the cart before the horse. A written document is determined to be ambiguous from its four comers. If it is found to be ambiguous, then *303other evidence is considered to clarify its meaning. Here, the majority used other evidence to bolster its finding of ambiguity without stating why the language of the letter itself is subject to any different meaning other than Ann intended to give up her right to the additional $6000 as a good-will gesture in the healing process following the divorce.
The law of waiver is recognized in Texas as an intentional relinquishment of a known right or intentional conduct inconsistent with intent to claim that known right. United States Fidelity & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971); Pioneer Oil Co. v. Vallejo, 750 S.W.2d 928, 929 (Tex.App.—Corpus Christi 1988, no writ); Giddings v. Giddings, 701 S.W.2d 284, 289 (Tex.App.—Austin 1985, writ ref'd n.r.e.); Burton v. National Bank of Commerce, 679 S.W.2d 115, 117 (Tex.App.—Dallas 1984, no writ).
The elements of waiver include: (1) an existing right, benefit or advantage; (2) knowledge, actual or constructive, of its existence; and (3) actual intent to relinquish the right (which may be inferred from conduct). Federal Dep. Ins. Corp. v. Attayi, 745 S.W.2d 939, 946 (Tex.App.—Houston [1st Dist.] 1988, no writ). Waiver of a right results as a legal consequence from the unilateral act of the party against whom it operates, and no act of the party in whose favor it operates is necessary to complete it. Pioneer Oil Co., 750 S.W.2d at 929; Giddings, 701 S.W.2d at 289.1 A waiver need not be founded on a new agreement, be supported by consideration, or be based on estoppel. Burton, 679 S.W.2d at 117. Further, once a right is waived, it is lost and cannot be reclaimed without the consent of the other party. Id. at 118.
Evidence of waiver typically takes one of three forms: (1) evidence of an express renunciation of a known right; (2) evidence of silence or inaction with respect to a known right for a period of time sufficient to indicate an intention to waive; or (3) conduct of a party knowingly possessing a right of such a nature as to mislead the other party into an honest belief that a waiver was intended or assented to. Cecil Pond Constr. v. Ed Bell Inn, 864 S.W.2d 211, 215 (Tex.App. — Tyler 1993, no writ).
The evidence presented to the trial court indicated Ann possessed an existing right under the terms of the divorce agreement to receive $12,000 from Elton, and that she was aware of this right. In Ann’s March 1988 letter to Elton, she stated that he could stop paying her if he so decided. The letter also stated that he was not required to respond in any manner. Ann’s intent to waive her right to payment of the remaining $6,000 was stated unambiguously in this letter, although she later testified that it was not her intent to do so. Although Elton admitted he did not sign Ann’s letter until after she reasserted her right to the unpaid $6,000, such action was not required under the doctrine of waiver, as waiver requires only a unilateral act by the party waiving the right. Once Ann informed Elton he did not have to pay her the remaining amount due under the divorce agreement, the waiver was complete.
Ann’s letter to Hollé, written one and one-half years later, further indicates she understood that she had relinquished her right to payment of the remaining $6,000. Ann waited more than four years before attempting to reassert her rights under the divorce agreement. In Giddings, the court found waiver when less than two months passed between a party’s waiver and its attempt to reassert its rights. 701 S.W.2d at 286-87.
I conclude the evidence presented to the trial court established as a matter of law that Ann waived her claim to the remaining $6,000 by her March 1988 letter to Elton, as further evidenced by her subsequent letter to the accountant. Therefore, I would hold the trial court erred in concluding that Ann’s claim to the $6,000 was not barred by the defense of waiver.
*304Accordingly, I would reverse the trial court’s judgment that Elton owes Ann $6,000 and render judgment that Ann waived her right to any remaining “support” amount.
. There is a split of authority concerning whether “reliance” is an element of waiver. See Cox v. Bancoklahoma Agri-Serv. Corp., 641 S.W.2d 400, 404 (Tex.App.—Amarillo 1982, no writ); Fisher v. First Nat’l Bank, 584 S.W.2d 515, 519 (Tex.Civ.App.—Amarillo 1979, no writ); Nixon Constr. Co. v. Downs, 441 S.W.2d 284, 286 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ). Those cases deal with implied rather than express waivers. As this situation involves a question of an express waiver, I find those cases requiring reliance to be distinguishable.