Sandra Kay Embesi v. Charles Ray Hall

• Court: Court of Appeals of Texas
• Decided: December 13, 2017
• Docket: 09-17-00254-CV
• Status: Published

Opinion

ACCEPTED 09-17-00254-CV NINTH COURT OF APPEALS BEAUMONT, TEXAS 12/13/2017 4:52 PM CAROL ANNE HARLEY CLERK

Cause No. 09-17-00254-CV

IN THE FILED IN 9th COURT OF APPEALS NINTH COURT OF APPEALS BEAUMONT, TEXAS at Beaumont, Texas 12/13/2017 4:52:15 PM ________________________________________________ CAROL ANNE HARLEY Clerk SANDRA EMBESI, APPELLANT V. CHARLES RAY HALL, APPELLEE _________________________________________________

On Appeal from the th 279 Judicial District Court of Jefferson County, Texas Cause No. F-204,290 __________________________________________________

APPELLANT’S BRIEF ___________________________________________________

SMITH & SHIPLEY, L.L.P. Jolei Shipley Texas Bar No. 24041909 2750 IH-10 East, Suite 200 Beaumont, Texas 77703 Tel: (409) 899-1046 Fax: (409) 899-2648

ATTORNEY FOR APPELLANT, SANDRA EMBESI

NO ORAL ARGUMENT REQUESTED.

-1- IDENTITY OF PARTIES AND COUNSEL

Appellant - Sandra Embesi

Attorney for Appellant - Jolei Shipley SBN: 24041909 Smith § Shipley 2750 IH-10 East, Ste. 200 Beaumont, Texas 77703 Tel: (409) 899-1046 Fax: (409) 899-2648

Appellee - Charles Ray Hall

Attorney for Appellee - Clint Lewis SBN: 12275250 The Lewis Law Firm 8445 Gladys Ave. Beaumont, Texas 77706 Tel: (409) 899-5600 Fax: (409) 899-5682

-ii- TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents………………………………………………………………….iii

Index of Authorities .................................................................................................iv

Statement Regarding Oral Argument ........................................................................ v

Statement of the Case ...............................................................................................vi

Issues…………………………………………………………………………….....1

Statement of Facts………………………………………………………………….1

Summary of the Argument…………………………………………………………3

Arguments and Authorities …………………………………………………..........3

Issue One: The trial court abused its discretion by denying former Wife’s petition for post-divorce division of assets because wife proved that the property requested to be divided was not divided by the Final Decree of Divorce.

A. Standard of Review………………………………………………………4 B. Pertinent Facts………………………………………………………........4 C. Applicable Law………………………………………………………......6 D. Argument………………………………………………………………...8

Conclusion and Prayer for Relief............................................................................. 10

Certificate of Compliance ........................................................................................ 11

Certificate of Service .............................................................................................. 12

-iii- INDEX OF AUTHORITIES

Cases

In Re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App. – Texarkana 2003, pet. denied)…………………………………………………………………………………..4

Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980)………………………………………4

Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App. – San Antonio 2002, no pet.)……………………………………………………………………………………………7

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex. App. – Houston [14th Dist.] 2000, pet. denied)………………………………………………………………………………………..7

Stephens v. Marlowe, 20 .W.3d 250 (Tex. App. – Texarkana 2000)…..……………..7

Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986)……………………………………….7

Thompson v. Thompson, 500 S.W.2d 203 (Tex. App. – Dallas 1973)……………..7,8

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)…………………………………….7

Hagen v. Hagen, 282 S.W.3d 889, 901-02 (Tex. 2009)……………………………….7

Stirling v. Stirling, 02-10-00329-CV (Tex. App. – Forth Worth 2011)……………..9

Statutes

Tex. Fam. Code §9.201.………………………………………………………..…6

-iv- STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that the issues presented are clear and can be resolved by

this Court without hearing oral argument from either party.

-v- STATEMENT OF THE CASE

This is an appeal from a judgment denying a request for a division of

undivided property. The divorce decree was silent as to the division of the former

husband’s pension plan. The trial court nevertheless denied former wife’s request to

divide the pension plan.

-vi- ISSUE

Issue One

The trial court abused its discretion by denying former Wife’s petition

for post-divorce division of assets because wife proved that the property

requested to be divided was not divided by the Final Decree of Divorce.

STATEMENT OF FACTS

Sandra Embesi (hereinafter “Sandra”) and Charles Ray Hall (hereinafter

“Charles”) were married on November 20, 1974. In January 1982, Charles started

working for Mobil Oil Corporation, now ExxonMobil. (RR 26) Charles eventually

retired from ExxonMobil with pension and 401(k) benefits in February 2017. (RR

17-18) On November 4, 2008, Charles and Sandra were divorced. Charles was

represented in that action by Karen Bennett. Sandra Embesi was unrepresented by

counsel.

Sandra filed a bill of review on October 19, 2012 under Cause Number

C216,691 in the 317th District Court of Jefferson County, Texas asserting that

Charles’ conduct prevented her from obtaining a greater share of the community

estate. By agreement, Sandra’s bill of review was granted. Sandra and Charles

entered settlement negotiations. A sworn inventory of community assets and debts

was never made by either party. (RR 27) No discovery was conducted. However,

Sandra and Charles reached a settlement reflected in the Final Decree of Divorce -1- (hereinafter “2013 Decree”) entered by the trial court on September 23, 2013. The

2013 decree was silent as to the award of the community property ExxonMobil

Pension Plan. The specific language of the decree awarded Charles the following:

H-5. A portion of Charles Ray Hall’s retirement benefits in ExxonMobil Savings Plan arising out of Charles Ray Hall’s employment with ExxonMobil as of March 11, 2013, that portion being a sum certain, together with any interest, dividend, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.

H-6. All individual retirement accounts, simplified employee pensions, annuities and variable annuity life insurance benefits in the husband’s name.

The specific language of the decree awarded Sandra the following:

W-5. A portion of Charles Ray Hall’s retirement benefits in ExxonMobil Savings Plan arising out of Charles Ray Hall’s employment with ExxonMobil as of March 11, 2013, that portion being ExxonMobil, together with any interest, dividend, gains, or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.

The Qualified Domestic Relations Order awarded Sandra as Alternate Payee

the sum of $150,000.00.

On March 19, 2014, Sandra filed a Petition for Post-Divorce Division of

Property after discovering that Charles had not disclosed to her that he had an

ExxonMobil Pension Plan. This appeal from the trial court denying Sandra’s

petition.

-2- SUMMARY OF THE ARGUMENT

Issue 1. The trial court abused its discretion by denying Sandra’s petition for

post-divorce division of assets because she proved that the property requested to be

divided was not divided by the Final Decree of Divorce. The 2013 Decree was silent

as to a division of the ExxonMobil Pension Plan. Because the 2013 Decree is

unambiguous in its silence, the language of the 2013 Decree must be interpreted

according to contract law. Contract law requires that the trial court look only at the

intentions of the parties as manifested by the contract itself.

ARGUMENTS AND AUTHORITIES

Issue one: The trial court abused its discretion by denying former Wife’s petition for

post-divorce division of assets because wife proved that the property requested to be

divided was not divided by the Final Decree of Divorce.

A. Standard of Review

A trial court’s ruling on a post-divorce division of assets is reviewed under an

abuse of discretion standard. In Re Marriage of McDonald, 118 S.W.3d 829, 832

(Tex.App. – Texarkana) 2003, pet. denied). A clear abuse of discretion is shown

when the division of property is manifestly unjust. Mann v. Mann, 607 S.W.2d 243,

245 (Tex. 1980).

-3- B. Pertinent Facts

The 2013 Decree specifically award the ExxonMobil Savings Plan but does

not mention in the awards to either Sandra or Charles the pension plan, either simply

as “pension plan” or ExxonMobil Pension Plan. Charles further testified that at the

time of his retirement, the ExxonMobil Pension Plan was worth about $900,000.00.

(RR 20)

The testimony of Tim Satre, a certified divorce financial planner when

questioned during the hearing by Sandra’s counsel stated that the 2013 Decree did

not specifically address either pension. (RR 44). He further stated that the pension

plan could not have been described or defined as an individual retirement account, a

simplified employee pension, an annuity or variable annuity life insurance. (RR 44).

Under questioning by the trial court, Tim Satre could not identify where the

pension plan was awarded under any of the awards made to Charles:

Q. All right. So, there’s – so, a pension plan, would it ever be

– would a pension plan ever be considered a financial

institution?

A. Where are you looking?

Q. I’m looking at H-3 actually.

A. No.

-4- Q. Okay. All right. And, then, let’s see. All right. So, there is

– there is a difference, a significant – I mean there’s an

identifiable difference between annuity and a pension

plan?

A. Yes. And this reflects most of the time in these divorce

decree I see that an annuity would a separate contract you

buy, insurance company generally never referred to as a

pension.

Q. Okay.

(RR-51)

Q. All rights. And H-8, the pension plan would never – could

never be defined as a brokerage account or fall into any of

those categories, or could they?

A. Not a brokerage account, no. I mean, they wouldn’t

generally be referred as a brokerage account, stocks,

bonds, mutual funds, securities. No. They would be

referred to as some type of qualified retirement plan.

(RR-52)

-5- Under cross examination by Charles’ counsel, Tim Satre denied that the

ExxonMobil Pension Plan could be characterized, defined or described as an

individual retirement accounts or a simplified employee pension. (RR 54).

C. Applicable Law

The Texas Family Code provides that former spouses may file a suit to divide

property not divided or awarded in a final decree of divorce. T.F.C §9.201. Post-

divorce partition is an appropriate vehicle to address an undivided or overlooked

asset. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex.App.-San Antonio 2002, no pet.);

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex.App.-Houston [14th Dist.] 2000, pet.

denied). Post-divorce division is appropriate where the divorce decree does not

consider, contemplate or purport to dispose of the property, or where the property

has been overlooked and as a result has gone undivided. Stephens v. Marlowe, 20

S.W.3d 250 (Tex.App. – Texarkana 2000).

To interpret the property award in an agreed divorce decree, the language of

the decree will be interpreted according to contract law and not the law of judgments.

Allen v Allen, 717 S.W.2d 311, 313 (Tex. 1986).

Because an agreed final decree of divorce case is a contract, the court must

look to the intentions of the parties as manifested in the four corners of the document.

Thompson v. Thompson, 500 S.W. 2d 203 (Tex. App-Dallas 1973). A contract is

ambiguous when its terms are susceptible to more than one meaning. Coker v. Coker,

-6- 650 S.W. 2d 391, 393 (Tex. 1983.) Whether a divorce decree is ambiguous is a

question of law, and the court must adhere to the literal language of an unambiguous

decree. Hagen v. Hagen, 282 S.W. 3d 899, 901-02 (Tex. 2009).

D. Argument

Divorce decree language is often drafted broadly enough that it includes

property not specifically awarded. In many cases, residuary clauses awarding

undivided property to the person in possession and language such as “any and all

sums” and “any other rights” is enough to show that the award was contemplated or

considered. However, in the present decree, it is telling that the award of the

ExxonMobil Savings Plan was specific, but the decree omits any mention of even

the generic term pension plan. The only expert to testify in at the final hearing

unequivocally testified under direct examination, cross-examination and questioning

by the court that the award of the pension plan did not fall under any of the other

awards to Charles under the 2013 Decree. The court contrasted the language of the

2013 Decree with the language of the prior decree for which the bill of review was

granted and wherein the pension plan was mentioned, but only as the generic award

of the pension plan to Charles. RR 53

In Thompson, the parties entered an agreed divorce decree that purported to

dispose of all community property. However, the decree failed to mention a joint

venture entered by husband. The Court of Appeals, after examining the decree and

-7- the summary judgment evidence, decided that the parties did not effectively carry

out the intention by dividing all their property. Id at 207. The decree is binding, and

it is res judicata only as to the property awarded and brought within the jurisdiction

of the court. If property was omitted from such consideration, it might authorize the

opening of the decree as to property. Id at 208. If the decree can be given a certain

or definite legal meaning or interpretation, then it is not ambiguous, and the court

will construe the contract as a matter of law.

In Stirling v. Stirling, 02-10-00329-CV, (Tex. App.-Fort Worth 2011), the

award of property to husband included “any profit-sharing plan, retirement plan,

Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee

saving plan, accrued unpaid bonuses, disability plan, or other benefits existing by

reason of the husband’s past, present, or future employment…” Wife filed a petition

for post-divorce division. The trial court awarded wife fifty percent of the

community property interest in husband’s pension plan. The court of appeals

reversed. The decree expressly awarded the pension plan to Husband.

If the decree is silent as to an award, then it remains undivided and is subject

to a just and right division by the Court. The 2013 Decree is utterly silent as to the

ExxonMobil Pension Plan that is part of the ExxonMobil benefits package.

-8- CONCLUSION AND PRAYER FOR RELIEF

Because the language of the decree is unambiguous and fails to divide the

ExxonMobil Pension Plan, the trial court abused its discretion in denying Sandra

Embesi’s Petition for Post-Divorce Division of Property.

WHEREFORE, PREMISES CONSIDERED Appellant, Sandra Embesi,

prays this Court to, in all things, affirm the judgment of the trial court.

Respectfully submitted,

SMITH § SHIPLEY, LLP Attorneys at Law 2750 IH-10 East, Suite 200 Beaumont, Texas 77703 Tel: (409) 899-1046 Fax: (409) 899-2648

By: Jolei Shipley State Bar No. 24041909 jshipley@smithshipley.com Attorney for Appellant

-9- CERTIFICATE OF COMPLIANCE

I certify that this document brief/petition was prepared with Microsoft Word

2010, and that, according to that program’s word-count function, the sections

covered by TRAP 9.4(i)(1) contains 2333 words.

SMITH § SHIPLEY, LLP Attorneys at Law 2750 IH-10 East, Suite 200 Beaumont, Texas 77703 Tel: (409) 899-1046 Fax: (409) 899-2648

By: Jolei Shipley State Bar No. 24041909 jshipley@smithshipley.com Attorney for Appellant

-10- CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on Appellant’s counsel of record in accordance with the Texas Rules of Court on this 13th day of December, 2017, as follows: Via Electronic Service Mr. Clint Lewis The Lewis Law Firm 8445 Gladys Ave. Beaumont, Texas 77706

By:___________________________ Jolei Shipley

-11-