Boaz v. Boaz

708 S.W.2d 901, 1986 Tex. App. LEXIS 12503
CourtCourt of Appeals of Texas
DecidedMarch 27, 1986
DocketNo. A14-85-564-CV
StatusPublished
Cited by1 cases

This text of 708 S.W.2d 901 (Boaz v. Boaz) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boaz v. Boaz, 708 S.W.2d 901, 1986 Tex. App. LEXIS 12503 (Tex. Ct. App. 1986).

Opinion

OPINION

SEARS, Justice.

This is an appeal from an order granting appellee’s Motion to Clarify Judgment, Enforce Judgment or in the Alternative Partition Property. We affirm the judgment of the trial court.

Appellant (Mr. Boaz) and appellee (Mrs. Boaz), incident to their pending divorce action, agreed to a division of community property. The divorce decree evidencing the agreement was signed September 2, 1983. However, some community property funds had not yet been received by the parties and were due at some future date. In 1984, Seaboard Constructors, Inc. sent two checks to Mr. Boaz, its ex-employee. The checks were in the amounts of $10,-099.95 and $57,315.47 and were made payable to both Mr. and Mrs. Boaz. Mr. Boaz, without Mrs. Boaz’s knowledge, endorsed the checks and deposited them in his company account. Seaboard refused to honor payment on the checks because they lacked the endorsement of Mrs. Boaz.

Mrs. Boaz learned of the attempt by her husband to take property awarded to her in the divorce decree and filed a Motion to Clarify Judgment pursuant to Section 3.70 of the Texas Family Code. The motion was filed June 18, 1984. Seaboard, on December 6, 1984, filed a Motion to Tender into the Registry of the Court $67,415.42 as accrued pension and profit sharing funds due the parties. The court denied the request of Seaboard, held a hearing on March 26, 1985, and, on June 6, 1985, signed the order from which Mr. Boaz appeals. The court found that the retirement benefits in the form of accrued pension and profit sharing funds were accrued during the marriage, were divided by the divorce de[903]*903cree and were the funds sought by Mr. Boaz in his cause of action against Seaboard.

In his first point of error, Mr. Boaz contends the trial court erred in entering the order granting Mrs. Boaz’s motion because the effect of the order was to modify the final decree in a substantive way. Such an alteration of the final decree would violate Section 3.71(b) of the Texas Family Code and would be unenforceable. That section provides that “[a]n order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court to enter and is unenforceable.”

We disagree with Mr. Boaz’s assertion that the order entered , by the trial court had the effect of substantively modifying or altering the final divorce decree. Our reading of the decree indicates that pension and profit sharing funds from Mr. Boaz’s former employer, Seaboard Constructors, Inc., were accumulated during the marriage and were to be divided forty percent to Mr. Boaz and sixty percent to Mrs. Boaz. The decree further stipulated that all present and future retirement funds, other than those due from Seaboard, were to be the separate property of the parties to whom they accrued.

At the hearing on the Settlement Agreement, at which time the terms of the decree were stated for the record, Mr. Boaz testified that he did not own or know of any property “of any type, character, or nature” not revealed in the decree. This testimony, taken together with our reading of the decree, leads us to the same conclusion reached by the trial court: The monies requested by Mrs. Boaz to be divided in accordance with the decree are the same monies specifically mentioned in the decree, and are divided in the same proportions as set forth in the decree. The order granting Mrs. Boaz’s motion does not amend, modify, alter, or change the substantive division of property made in the decree. But compare McGehee v. Epley, 661 S.W.2d 924 (Tex.1983), and Bjornson v. Corbitt, 690 S.W.2d 345 (Tex.App.—Fort Worth 1985, no writ) (where the judgments did make substantive modifications of the final decrees). The trial court entered the order to enforce the division of property set forth in the decree and to clarify the prior order. Appellant’s first point of error is overruled.

Appellant complains in his second point of error that the trial court erred in entering the order granting Mrs. Boaz’s motion because its Finding of Fact No. 4 is in direct and irreconcilable conflict with the order. To properly review this point we find it helpful to set out the pertinent portions of the divorce decree and Finding of Fact No. 4 in detail. The decree provides that the estate of the parties be divided as follows:

To the Petitioner, GENE DAVIS BOAZ, as his sole and separate property and estate, free and clear of any claim of Respondent, the following:
[Herewith followed a list of items of real and personal property numbered 1 through 8.]
9. The Court further finds that there is now a suit pending entitled Cause No. 81F3197, Seaboard Constructors, et al v. Gene Boaz, in the 149th Judicial District Court of Brazoria County, Texas. It is impossible at this time to ascertain the amount of the recovery, if any, that will be made by the parties to this divorce suit in the last mentioned proceeding. It is therefore:
ORDERED, ADJUDGED and DECREED that Petitioner, GENE DAVIS BOAZ, be awarded as his separate property and estate free and clear of any claim of Respondent, forty per cent (40%) of any of the net recovery of the proceeds from the prosecution of said suit. By the term “net proceeds” is meant forty per cent (40%) of the recovery after deducting all expense of litigation which would include attorney’s fees, court costs, appraiser’s fees or any other expense usually connected with the prosecution of said cause.
[904]*90410. All retirement benefits of any type arising out of his present or future employment, other than that which is to be adjudicated in the Cause No. 81F3197, Seaboard Constructors, et al v. Gene Boaz, in the lj9th Judicial District Court of Brazoria County, Texas, which is divided as aforesaid forty per cent (40%) to Petitioner, GENE DAVIS BOAZ.
To the Respondent, DOROTHY MARIE CARGILL BOAZ, as her sole and separate property and estate, free and clear of any claim of Petitioner, the following:
[Herewith followed a list of items of real and personal property numbered 1 through 5.]
6. The Court further finds that there is now a suit pending entitled Cause No. 81F3197, Seaboard Constructors et al v. Gene Boaz, in the lj9th Judicial District Court of Brazoria County, Texas. It is impossible at this time to ascertain the amount of the recovery, if any, that will be made by the parties to this divorce suit in the last mentioned proceeding. It is therefore:
ORDERED, ADJUDGED and DECREED that Respondent, DOROTHY MARIE CARGILL BOAZ, be awarded as her separate property and estate free and clear of any claim of Petitioner, sixty per cent (60%) of any of the net recovery of the proceeds from the prosecution of said suit. By the term “net proceeds” is meant sixty per cent (60%) of the recovery after deducting all expense of litigation which would include attorney’s fees, court costs, appraiser’s fees or any other expense usually connected with the prosecution of said cause.
7. All retirement benefits of any type arising out of her present or future employment,

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Bluebook (online)
708 S.W.2d 901, 1986 Tex. App. LEXIS 12503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boaz-v-boaz-texapp-1986.