Opinion
No. 09-04-538 CV
Submitted on July 14, 2005.
Opinion Delivered August 31, 2005.
On Appeal from the 75th District Court, Liberty County, Texas, Trial Cause No. CV63636.
Reversed and Remanded.
Before McKEITHEN, C.J., KREGER, and HORTON, JJ.
MEMORANDUM OPINION
This is an appeal from a division of property incident to divorce. Rose Cason brings three points of error: (1) whether the division of community property was "just and right" under Tex. Fam. Code Ann. § 7.001 (Vernon 1998); (2) whether the lower court abused its discretion in awarding Rose fifty percent of Charles's pension benefits contingent upon her losing disability status; and (3) whether the lower court abused its discretion and harmed Rose by failing to file findings of facts and conclusions of law.
Rose and Charles Cason were married on or about December 31, 1972, and they ceased living together on or about December 31, 2001. Charles filed for divorce citing insupportability and Rose cross petitioned citing adultery as well as insupportability. Trial was to the court without a jury. Charles and Rose requested that the trial court approve their agreements regarding the division of portions of their community property. The division of the property not apportioned by agreement was heavily contested and resulted in the case being heard in four separate hearings. The Final Divorce Decree was ultimately issued and a request for findings of fact and conclusions of law was timely filed. A subsequent Notice of Past Due Findings of Fact and Conclusions of Law was also filed; however, although both requests were acknowledged by the trial court, no findings of fact and conclusions of law were ever issued.
Tex. R. Civ. P. 296, 297. See also, Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989) (When properly requested, the trial court has a mandatory duty to file findings of fact.)
We begin with the second point of error. The Texas Family Code requires the court to "determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account . . ., or other employer plan or financial plan of an employee or a participant, regardless of whether the person is self-employed, in the nature of compensation or savings." See Tex. Fam. Code Ann. § 7.003 (Vernon 1998). A trial court has broad discretion in dividing the marital estate, and its decision will not be disturbed absent a clear abuse of that discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974); Phillips v. Phillips, 75 S.W.3d 564, 567 (Tex.App.-Beaumont 2002, no pet.) (citing Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987)). An abuse of discretion occurs when a court acts arbitrarily or unreasonably without reference to any guiding rules or principles. Phillips, 75 S.W.3d at 567 (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).
Because our resolution of point of error two is dispositive of this case, we need not address points of error one and three; however, under point of error one, Rose requests that we render a "just and right" property division. We are prohibited from this by McKnight v. McKnight, which prohibits courts of appeals from rendering specific awards of property in a divorce action, as the courts' only role is to determine if there is an abuse of discretion. McKnight v. McKnight, 543 S.W.2d 863, 866-67 (Tex. 1976).
Rose complains of the "contingent" nature of the trial court's award of Charles' retirement benefits. Here, the divorce decree awarded Rose all of her IRA, retirement funds, and disability benefits as her sole and separate property, and awarded Charles all of his monthly pension benefits as his sole and separate property. However, in yet another provision, the decree also purported to award Rose, as her sole and separate property, fifty percent of Charles' pension benefits should she ever lose her disability benefits at any time in the future. "While there are exceptions, it is a general rule that judgments must not be in the alternative, conditional, or contingent." Hill v. Hill, 404 S.W.2d 641, 643 (Tex.Civ.App.-Houston 1966, no writ); see also Tackett v. Proffitt, 695 S.W.2d 55, 56 (Tex.App.-Corpus Christi 1985, no writ). "[A] judgment must be certain and definite. The validity and binding force of a judgment must depend upon facts existing at the time of its rendition. A judgment may not rest upon what may or may not occur after its rendition, and must take its validity from the action of the court and not from what persons may or may not do after the court has rendered the judgment." Tully v. Tully, 595 S.W.2d 887, 888 (Tex.Civ.App.-Austin 1980, no writ). The Texas Supreme Court in Shanks v. Treadway has recognized that "`nonvested' pension rights are . . . a contingent interest in property," and "to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding." Shanks v. Treadway, 110 S.W.3d 444, 446 (Tex. 2003) (citing Cearley v. Cearley, 544 S.W.2d 661, 663-664 (Tex. 1976) (quoting Brown v. Brown, 15 Cal.3d 838, 126 Cal. Rptr. 633, 544 P.2d 561, 562 (1976)). The Court recognized certain allowable contingent awards when it acknowledged that "it may be necessary in many instances for the judgment to make the apportionment to the nonretiring spouse effective if, as, and when the benefits are received by the [employee] spouse." Shanks, 110 S.W.3d at 446 (quoting Cearley, 544 S.W.2d at 666). The judgment before us does not involve such an apportionment of retirement benefits between the spouses. In the present case, under the section entitled "Property to Husband," the Final Divorce Decree awarded Charles one hundred percent of his monthly pension benefits. However, the decree under the section entitled "Property to Wife" also awarded Rose a fifty percent interest in Charles' pension plan that is subject to an event that may never occur, the loss by Rose of her disability benefits. Thus, Rose has no interest (possessory or future) in Charles' pension benefits unless she loses her disability status, at which time she will receive a fifty percent interest. As losing her disability status is neither certain nor definite, this is not a certain and definite award. "[W]e interpret a divorce decree like any other judgment, reading the decree as a whole and `effectuat[ing] the order in light of the literal language used' if that language is unambiguous." Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). Here, however, the conflicting and conditional awards create an ambiguity that cannot be resolved through literal interpretation, resulting in an unreasonable judgment. Thus, we find that the trial court clearly abused its discretion in the making of these awards. Point of error two is sustained.
"In the event, and only in the event, the monthly disability payments presently being paid to Rose L. Cason as a result of her disability should be terminated, then Rose L. Cason is awarded an undivided fifty (50%) percent of the monthly pension benefits presently being paid to Charles B. Cason."
In the divorce decree Charles is awarded "One Hundred (100%) percent of Charles B. Cason's pension benefits received as a result of his employment with the City of Houston Fire Department."
The judgment in this case is reversed and remanded to the trial court for proceedings consistent with this opinion.
Although not raised in this appeal, we note there was a second conditional "award" to Rose; that of Charles's real property.