Smith v. Smith

733 S.W.2d 915, 1987 Tex. App. LEXIS 7221

• Court: Court of Appeals of Texas
• Decided: May 7, 1987
• Docket: 01-86-00242-CV
• Status: Published

Opinions

OPINION

WARREN, Justice.

This is an appeal of a take-nothing judgment entered against appellant in her suit for partition of retirement and accrued vacation and sick pay benefits of her ex-husband.

On July 12, 1967, the court entered a divorce decree ending the parties’ 24-year marriage and distributing most of their property by the incorporation of a community property settlement agreement executed by them. Neither the decree nor the settlement agreement expressly divided the parties’ community property interests in appellee’s retirement, vacation, and sick pay benefits that had accrued but had not matured as of the date of the divorce decree.

On November 2, 1982, the appellant filed this suit against appellee seeking partition of the retirement pay and accrued benefits. The appellee answered, alleging that appellant’s suit was barred by res judicata because the retirement benefits had been distributed to him by the residuary clause of the settlement agreement incorporated in the divorce decree.

The residuary clause provided that “[b]oth Plaintiff and Defendant will retain all of their personal property presently in their possession, with the exception of the above mentioned items.”

After a non-jury trial, the court entered a take-nothing judgment, concluding that the above residuary clause awarded the retirement benefits to appellee. Appellant then filed a motion for new trial that was overruled by operation of law.

Appellant contends in her sole point of error that the court erred in finding that the residuary clause divided the retirement benefits and the vacation and sick pay benefits. Specifically, the issue presented is whether these benefits were in appellee’s “possession” on the date of the divorce decree.

“Possession,” as used in residuary clauses of this type, means the physical control of property, or the power of immediate enjoyment and disposition of property. Dunn v. Dunn, 703 S.W.2d 317, 319 (Tex.App. — San Antonio 1985, writ ref’d n.r.e.); Yeo v. Yeo, 581 S.W.2d 734, 738 (Tex.Civ.App. — San Antonio 1979, writ ref’d n.r.e.); Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Civ.App. — Dallas 1973, writ ref’d n.r.e.). On the date of the divorce decree, appellee had no physical control or power of immediate enjoyment over the retirement or vacation and sick pay benefits. The power to physically control or enjoy these benefits matured only upon the cessation of appellee’s employment, which did not occur until January 18, 1982. We hold that appellee did not have “possession” of the retirement benefits and that the language of the residuary clause was insufficient to award appellee all future rights to the retirement pay and other employee benefits. Id.

We have considered the remaining contentions made by the parties, and have determined that a discussion of them is not necessary to our disposition of this cause.

Appellant’s sole point of error is sustained.

Reversed and remanded.

DUNN, J., files a dissenting opinion.