*1 Party” Third and to REN- Responsible granting an order either relators
DER replead supporting desig-
leave to facts granting for leave to
nation the motion
designate party. a responsible third W.L.W.,
In re Relator.
No. 02-12-00138-CV. Texas, Appeals
Court
Fort Worth.
June 2012.
Rehearing July 2012. Overruled *2 Jr., Nash, Cayce,
John H. Jason C. Mat- Hallman, Stayton, Kelly thew D. Hart & LLP, Worth, for Fort Relator. Jones, Jones, Jones, Lindy D. TY J. Allen, L.L.P., Dallas, Fuquay, & Heather Fuller, Southlake, King, L. Koons for Real Party in Interest. C.J.; LIVINGSTON,
Panel: MEIER, GARDNER and JJ. OPINION MEIER, BILL Justice.
I. Introduction Relator Wade White seeks mandamus February relief trial from the court’s denying his motion to reconsid- order er a prior denying Party permitting Real Deborah White to conduct discov- Interest ery post-judgment in furtherance clarify or action to enforce a divorce de- conditionally grant peti- cree. will tion. (2) II. paid Deborah, Republic “The BACKGROUND stock, ITS together dividends, greater-than-50% Wade was a share- splits, and other rights and privileges in Republic Intelligent Transporta- holder of *3 connection with it.” Pursuant to section ITS) Services, tion Inc. (Republic when in decree, 18.b of the divorce the trial court December capacities presi- his Deborah, among other things, ITS, Republic dent of a shareholder of $7,500,000 paid to be by Wade from the ITS, Republic and the repre- shareholder Bank of the West account ending in 6936. sentative, he executed an “Agreement and The divorce decree contains a provision Merger” Plan of in which Republic ITS parties refer to as a “residuary merged with an affiliate Capital of Alinda clause”: Partners. Under the merger terms of the IT IS ORDERED AND DECREED agreement, Wade’s Republic shares of ITS any asset that was
were right “converted into the to receive” not disclosed or undervalued the (1) of post-merger Republic shares the ITS spreadsheet attached to each party’s In- entity (“newly Republic issued ITS ventory and Appraisement as Exhibit (2) shares”); cash calculated according to “A” is awarded to pos- not in (3) merger agreement; funds under session or control of the asset. (4) notes; promissory and earn-in pay- filed, No post-judgment motions were and According ments. to Wade and Deborah’s the trial plenary court’s power expired on return, 2007 income tax Wade received 329b(d). 2008. See Tex.R. Civ. P. June over in pre-tax million cash as a $13 result of merger. Approximately later, six months in De- cember Deborah filed a “Motion for
Wade and Deborah entered into an Clarification Order and to Proper- Enforce agreed decree of May divorce on ty motion, In Division.” her amended 2008, approximately five months after (1) alleged Deborah that Wade had failed Wade merger agreement. executed the to disclose or had in- undervalued on his In inventory his and appraisement, Wade ventory appraisement and cash and con- had listed as an “Republic asset ITS rights consisting tractual “purchase of $2,000,000. Stock” valued at Deborah price consideration” as set forth in the filed an inventory identical appraise- and (2) merger agreement; that Wade had ment, except listed “UN- failed to disclose had undervalued on his KNOWN” for the value of “Republic inventory appraisement approximately ITS Stock.” At her deposition, (3) $9,500,000 cash; had un- Wade acknowledged that she had re- inventory appraise- dervalued upon lied “accepted” million $2 newly ment Republic issued ITS valuation that Wade attributed to the (4) shares; and that Wade had failed to Stock,” “Republic ITS agreed and she inventory disclose on his and appraisement that she expert could have hired an (k) plan a 401 held John Hancock Republic evaluate the ITS stock but that Funds. Deborah identified the she never part did so. As of the division clause” contained in the divorce decree and estate, pursuant the marital to section requested “delivery” each of the undis- decree, 18.a of the trial court award- closed and undervalued assets to her. Wade, (1) ed among things, other the bal- ance of the funds held the Bank of the plea jurisdiction, Wade filed a money West market ending account in arguing subject- that the trial court lacked $10,104,501—less $7,500,000 jurisdiction to be matter to substantively alter 6936— (1) that Wade failed divisions. Deborah contends decree’s note in promissory plea to disclose trial court denied The approximately million subsequent motion amount of $4.3 and Wade’s (one rights payments cash juris- contractual for reconsideration being approximately payments $1.1 trial also denied diction. million) (2) newly undervalued is- subpoe- quash numerous motion by at Republic sued ITS shares least that Debo- depositions notices of nas and $2,490,000. argu- to Wade’s response seeking discovery regarding the rah filed previ- redivision of as- that she seeks a undisclosed undervalued ment alleged *4 argues Deborah ously property, all divided stayed The trial court matters sets. undervalued that the undisclosed and as- resolution pending to the case our related were never awarded to Wade under sets original proceeding. of this but, 18.a of the divorce decree in- stead, her at the time of were awarded to III. Standard of Review pursuant “residuary to the only proper Mandamus relief is to following con- clause.” She advocates when correct a clear abuse of discretion of the divorce decree and “resid- struction adequate remedy by appeal. no there is uary clause”: Colinas, Las In re Med. Columbia Ctr. of (cid:127) property expressly All of the awards (Tex.2009) (orig. pro 207 290 S.W.3d pursuant made the divorce decree are to clearly A trial court abuses its ceeding). contingent upon valuation of it when reaches a decision so discretion each asset. arbitrary and as to amount unreasonable (cid:127) If a to disclose or un- failed prejudicial and error of law or if to a clear dervalued an in his or her invento- asset clearly correctly analyze apply fails to or it Co., ry appraisement, then asset Repair the law. In re Olshan Found. (Tex.2010) “concurrently” was awarded other (orig. pro 328 S.W.3d Packer, party pursuant to the clause” ceeding); Walker v. when the was (Tex.1992) divorce decree executed. proceeding). (orig. (cid:127) an But if was both disclosed asset IV. Section . properly party’s valued in- The ” “Residuary Clause ventory then the appraisement, in precedent” “conditions contained issue, only argues In his Wade “residuary clause”—undervaluation and unambiguously divorce decree triggered, not nondisclosure —were alleged him all of the undisclosed or under- pursuant the asset not awarded complains of which Deborah valued assets pursuant but clause” therefore, and, seeking of the decree. section 18 divorce divid- post-divorce previously redivision of community property, filing not a clarification Deborah therefore contends that ed and enforcement of the divorce decree. her “Amended Motion for Clarification Or- Division,” subject- trial Property Because the court has no der and Enforce (1) merely matter or redivide the seeks to determine whether as- to alter and, previously community property, divided sets were undisclosed or undervalued (2) so, clearly the division of Wade contends the trial court if enforce undis- already assets that by denying abused its discretion to closed and undervalued jurisdiction. occurred via clause.” judgment (Upper) It settled that a ment. Claxton v. Lake Fork is well Wa Control, dividing marital ter 220 S.W.3d finalizing (Tex.App. a divorce and -Texarkana pet.). relitigation property bars Fillingim, division. Pearson v. agree Wade that section (Tex.2011). Attempting to obtain 18.a of the divorce expressly an order that alters or modifies a divorce unambiguously awarded of the alleged impermis is an decree’s division undisclosed or undervalued assets to him. Hagen Hagen, sible collateral attack. The divorce decree awarded Wade the (Tex.2009). legis stock,” “Republic ITS which included the family says lature even code section so shares, newly Republic issued ITS and all 9.007: “rights other privileges connection (a) amend, modify, A may al- “rights with it.” The and privileges in ter, change the division “Republic connection” with the ITS Stock” approved made or decree of di- included the out in matters set section 2.3 An vorce or annulment. order to en- merger agreement that Wade had *5 force limited to an the division is order receive,” “right the to which included the implementation to assist in the of or to alleged undisclosed or undervalued as clarify prior may the not alter note, cash, promissory newly sets—the change or the division of substantive Republic issued ITS shares. As for the property. $9,500,000 initially that Deborah com (b) An order under this section that motion, in plained about her amended to amends, modifies, alters, or changes the not the extent that she has abandoned this actual, of property substantive division argument, in agreed deposition she approved made or final decree of the approximately million divided $10 beyond divorce is pow- or annulment by in her favor the divorce decree 70/30 er of the divorce court and is unenforce- Similarly, accounted for those funds. re able. 401(k) account, the John garding Hancock (b) (West 9.007(a), § Tex. attorney Fam.Code Ann. Deborah’s conceded the hear 2006). jurisdiction ing on the that it a non-issue if was mistaken does, however, A trial court re an Ameritrade account identified on the tain continuing subject-matter jurisdiction inventory appraisement was the same clarify to and to the decree’s prop enforce account, account as the John Hancock 9.008(a) (West 9.002, erty §§ division. Id. is Wade’s explana which consistent with 9.006(a) (West 2006) 2006); § see also id. tion the Ameritrade account. (providing continuing that trial court has jurisdiction to further orders But our that section “render to conclusion alleged enforce the division of made in awarded all of the undisclosed or the decree of ... Wade does divorce assist undervalued assets to not re- implementation to clarify prior of or solve the issue here because Deborah con- order”). disputed But a clarification order cannot tends that the section 18.a asset change merely contingently used to make a substantive in a awards were awarded final, “concurrently” divorce decree after it becomes even to Wade and awarded to legal “residuary if it contains clause” error. See her under the when substantive Shanks v. or Treadway, 110 S.W.3d 449 Wade failed disclose undervalued cer- (Tex.2003). Further, However, parties cannot confer tain assets. under Deborah’s decree, or waive consent if it by agree or construction is or failed to disclose closure and valuation Wade determined inventory appraisement. in his 18.a asset a section undervalued and that inventory appraisement tell, only way other As far as we can Deb- “concurrently” awarded asset was “residuary possibly harmonize clause,” “residuary then orah under is to construe the clause” with section 18.a 18.a asset award unambiguous section applying clause” to residual meaning- completely rendered would be that were not awarded section assets Thus, sec- between a conflict exists less. But as with 18.a of divorce decree. clause” when 18.a and tion “contingency” argument, this Deborah’s 18.a is awarded under an asset leads to a dead end. contention un- awarded alleged have been instead “residuary” The word is derived clause.” der “residue,” which the word means from decree, such agreed An divorce “something part after a remains case, sub in this is a contract as the one removed, taken, designated.” separated, construc the usual rules of contract ject to New International See Webster’s Third McGoodwin, 671 tion. See McGoodwin (3d ed.2002). Dictionary 1932 Consistent (Tex.1984) reh’g). (op. on residuary meaning, with this a standard contract, ex courts interpreting When pro clause contained in a divorce agreement in an effort to entire amine the remedy that was vides a for give effect to harmonize di otherwise divided and be ren so that none will of the contract See, e.g., Buys Buys, vorce decree. *6 Coker, meaningless. v. Coker dered 369, (Tex.1996); Tharp S.W.2d (Tex.1983). 391, provi If 393-94 S.W.2d (Tex.App. 468-69 Tharp, conflict, in the contract to appear sions writ) (discussing residuary no Dallas harmonized, possible, be if they should cases). “By clauses examined in other its Id. parties. reflect the intentions of nature, encompass a very residuary clause in things specified those the decree es the un- with disagree Deborah in community property included but awards are asset ambiguous jurisdiction the court.” under the upon prece- “conditions contingent Cude, Jacobs v. undervalua- dent”—nondisclosure 1982, writ ref App.-Houston [14th Dist.] 'd “residuary in clause.” tion—contained n.r.e.) added). (emphasis elected to says that “the De- Residuary Here, include the Clause “residuary the divorce decree’s ‘safety net’ in provide in order to a remedy cree purports devise a for clause” forth- either less than the event was “that not disclosed or under- was the entire decree coming,” examining but spreadsheet valued in the attached each written, Appraisement.” there is no indication party’s Inventory for the sec- and Deborah intended This is not a [Emphasis Wade residu- added.] contingent commonly as that ary tion 18.a asset awards to clause term is used way contemplate the “conditions because in no does it upon anything, including that was not other- clause.” As division precedent” written, by are divided the divorce decree. In- the section 18.a asset awards wise stead, according Deborah’s construc- cannot section 18.a final. We harmonize tion, construing operates on an by clause” with the clause” along and contingency idling section 18.a as unwritten the asset awards under — dis- 18.a asset irrelevant when a section contingently upon properly disclosed and valued Wade’s appeals court of in Noyes thus re- inventory appraisement, springing but solved a dispute over the construction of a “concurrently” into action and awarding single provision contained in the divorce that same if proves asset to Deborah case, decree. Unlike this the court of in a post-judgment action that Wade failed appeals did not have to resolve a conflict to disclose the asset or undervalued it between two of a divorce decree inventory appraisement. There is that arguably awarded the same assets to nothing residual about the “residuary two people, different nor did the court of clause.” appeals address a provision any- worded thing remotely similar to the “residuary
Deborah directs Noyes Noyes us to clause” at issue in argues this case. Noyes decision involves “sim inapposite. therefore ilarly situated facts provides firm [and] grounds for determining whether a peti We are unable to harmonize the “residu- seeking tioner is ‘enforcement’ or ‘modifi ary clause” with section 18.a’s final asset cation’ of a previously entered decree.” awards. Consequently, the “residuary 04-08-00627-CV, No. 2009 WL irreconcilably clause” conflicts with section *3-4 (Tex.App.-San Aug. Antonio alleged 18.a—the undisclosed or underval- (mem. pet.) no op.). Noyes, the divorce ued assets could not have been unambigu- $125,000 decree awarded by Monica “due ously awarded to Wade under section 18.a [George] day on the he closes on the house but simultaneously “concurrently” award- located at: Lot Unit IV.” Id. at *2. ed to Deborah the “residuary clause” if Monica petition filed a clarify enforce or she demonstrates in a post-judgment ac- decree, alleging George tion that Wade failed to disclose or under- had comply failed to the decree valued those assets in his inventory and not selling the house and paying her appraisement. $125,000. Id. at *2. grant The trial court George’s plea ed on the When portions of a contract can ground that the jurisdic trial court had *7 reconciled, not be a may resolve the modify tion to the decree. Id. at *2-3. conflict striking provisions. one of the On appeal, argued Monica that the divorce Bank, Ogden v. Dickinson State required decree George to sell the house 330, (Tex.1983); see also Over though even the decree identify did not Bengel, ton v. 139 S.W.3d when George required was to sell the App.-Texarkana 2004, no pet.); Lavaca house. Id. at *4. George argued that the Autoworld, Bay L.L.C. v. Marshall Ponti decree require did not him to sell the Oldsmobile, ac Buick 103 S.W.3d house and that he pay had to Monica (Tex.App.-Corpus pet.); Christi no $125,000 only “in the event” that he sold Gonzalez, Henry the house. Id. The court appeals of con dism’d). (Tex.App.-San pet. Antonio cluded that the language of the divorce specifically decree Section 18.a as a whole awarded dis- contemplated that Wade, puted George required house, was assets to and to sell the Wade and Deb- that he had orah positioned to sell the house within section 18.a in a reason the divorce time, able generally and that decree ahead of the trial court had worded “re- Bank, over siduary Monica’s action Fargo to enforce clause.” See Wells portion Minn., I, L.L.P., of the decree requiring George N.A. v. N. Cent. Plaza to sell the house within a reasonable time (Tex.App.-Dallas pay $125,000. denied) and Monica pet. Id. (stating that to resolve con- and awarded the other flipped turn to to provisions, courts
flicts in contract sought by Deborah party control over the manner specific provisions rules that provisions stated general would there is never a final provisions mean case, are over agreement favored earlier in an in the detri- division Moreover, subsequent provisions). ment of parties. both desta- clause” has effect of “residuary written, decree either As the divorce asset 18.a’s as-written final bilizing section finally certain or it awarded Wade assets awards, speculation contributing did not. could have “con- The decree finality of uncertainty in the currently” awarded Deborah assets that Indeed, that a agrees division. expressly, unambiguously, finally were in the award is valid and final 18.a section reasons, For these awarded to Wade. or undervalua- of nondisclosure absence ineffective. “residuary clause” is tion; problem right has apparently other assets awarded now with numerous (a) the majority accuses dissent 18.a. But Deborah also to Wade principles because “discarding]” contract is “con- that a section asset maintains harmonize the we are unable to via party awarded to other currently” 18.a’s asset clause” with section final if clause” nondisclosure (b) awards and claims are later shown. Her con- undervaluation so that decree can be construed effect begs decree struction of the divorce given all of its —the is an asset ever following question: When apparently per- “awarded assets one party, considering a finally awarded to one son the event of circumstance asset could have been “con- the same signing had the decree occurred before to the other currently” awarded event of person oppo- or another (a action post-judgment based an event site circumstance.” Dissent antecedent “clarify”) yet to to “enforce” or to that has Op. [Emphasis added.] We dis- 809-10. happen? suggests, Deborah’s As Wade agree the dissent’s contentions on in the re- theory “potentially could result our both counts. We reach conclu- award of all marital assets to division and application rele- through precise sion Deborah.” principles, vant contract-construction Further, upon to prevail for Deborah explained, the divorce decree is not assets theory that she way worded in such a that Wade and clause,” hearing under unambiguous for the Deborah intended of an in-fact undervaluation proof *8 contingent awards to be 18.a asset required in the trial court. Deb- would be undervaluation, upon or nor nondisclosure of cer- orah’s contention undervaluation “concurrently” could the as written Wade, tainly contested even could be expressly award that were Deborah assets “re- interpretation under Deborah’s awarded to unambiguously Wade. We However, siduary clause.” the trial court hold that in the unavoidable confrontation evidentiary lacks to conduct an jurisdiction between the clause” and section a disputed on the issue of asset’s hearing 18.a, clause” must fail. plena- actual value because the trial court’s decree, divorce Pearson, Examining the entire ry power long ago. expired See (“A final, only construction that can be reasonable unambiguous 832 at 364 S.W.3d clause” given as written disposes divorce decree that of all marital post-judgment is that it divi- property relitigation.”). permits bars As alluded to, allowing previously an asset awarded one sion decree-divided
807 2008) upon findings based the trial court’s re- (orig. proceeding) (quoting Pruden tial, garding 136). in- thoroughness of one side’s 148 S.W.3d at Additionally, ventory appraisement. Unquestion- mandamus relief appropriate when a ably, family express this violates the code’s trial court issues an order after its plenary prohibition on amending, modifying, power alter- expired. has In re Brookshire Gro Co., ing, changing a divorce decree’s cery 66, (Tex.2008) division 250 S.W.3d 68 of property. See Tex. Ann. (orig. Fam.Code proceeding); see In re Sw. Bell Tel. (b). 9.007(a), Co., § (Tex.2000) (reason Deborah’s suit is an im- 35 S.W.3d permissible collateral attack on the divorce ing that mandamus is if a trial decree, clearly and the trial court abused an beyond issues jurisdic its tion). by denying its discretion plea jurisdiction. Hagen, 282 S.W.3d at The trial court subject-mat lacks 902. jurisdiction ter community redivide already that has been awarded to extraordinary
Absent
circum
Wade.
9.007(a),
§
See Tex. FarmCode Ann.
stances, mandamus will not issue unless
(b). The
trial court
February
issued the
relator lacks an adequate remedy by ap
2012 order denying Wade’s motion to re
Inc.,
peal.
In re Van
& Rogers,
Waters
plea
consider his
jurisdiction
to the
(Tex.2004)
145 S.W.3d
(citing
210-11
permitting
839).
Deborah to conduct
Walker,
discovery
require
This
in furtherance of
post-judgment
action
ment
comprehensive
“has no
definition.”
seeking to redivide
Co.,
previously divided
In re Ford Motor
165 S.W.3d
(Tex.2005)
plenary
after its
power over the
(orig. proceeding). Whether a
See,
divorce
expired.
decree had
e.g., In
clear abuse of discretion can
adequately
re Liberty
Corp.,
Ins.
remedied
appeal depends
aon
careful
(Tex.App.-Houston
2010, orig.
[14th Dist.]
analysis of costs and benefits of interlocu
proceeding) (holding that relator had no
tory
Ctr.,
review.
In re McAllen Med.
adequate
Inc.,
remedy by appeal
(Tex.2008)
challenge
(orig.
trial court’s clear abuse of discretion in
proceeding). As this balance depends
denying
relator’s
heavily
circumstances,
it
guid
must be
failing
for
to exhaust administrative reme
by analysis
ed
principles
rather
than
dies). Moreover, the benefits to manda
simple rules that treat
categories.
cases as
mus review are not outweighed by the
Id. An appellate remedy is adequate when
detriments,
if any
will spare
any benefits to mandamus review are out
—mandamus
Wade, Deborah, nonparties,
public
and the
weighed by the detriments.
In re Pruden
both
money
time and
litigating
wasted
Am.,
tial Ins. Co.
Deborah’s
(Tex.2004)
post-judgment action seeking
(orig. proceeding).
appel
An
relief that the trial court has no subject-
late court should also consider whether
matter jurisdiction to award. See Team
mandamus will allow the
give
court “to
Rocket, L.P.,
Deborah to conduct contract, meaning force legal to redi- and its action post-judgment ance (2) contracts”). law of In governed by to are the previously divided vide fact, from to the the terms of the decree arose granting an enter agree if only parties’ will the the mediated settlement A writ issue jurisdiction. ment, which two parties so. executed trial fails to do signed the trial court months before Justice, LIVINGSTON, TERRIE Chief agree The decree. mediated settlement dissenting. stipulation ment and further included the party a representation the “residu- included that each majority concludes that a agreed decree had made “fair and reasonable disclosure ary parties’ in the clause”1 irreconcilably with an to the other ... set forth conflicts divorce respective” allocates in their The de part earlier of the decree that inventories. itself, party The ma- as approved relator Wade cree which each property to White. therefore, substance, holds, form that jority stipulation expressed to both ineffective, implementing that it violates each had read decree and had is code,2 family “fully” and that understood its contents. section 9.007 of parties’ it must be struck. Because Furthermore, law of re- contracts agreement may bargained-for contractual us to quires way effect to gives be construed in a that intent parties ascertain the true fulfills its the intent provisions, all of expressed as in the instrument. In do- expressed agree- as so, ing we examine consider must ment, family complies with the an the entire contract in to har- code, effort I respectfully dissent. give monize effect parties’ agreed Section 5 of meaningless. rendered so none are “The part, states Court finds provisions should be consid- Contractual agree parties have entered into a written to the ered reference entire instru- law, permitted by ... ment. To the extent ment; no single provision should control. is en parties stipulate agreement must their carry Words a contract a contract.” The de parties’ forceable as accepted ordinary, generally meanings cree, therefore, that can be is contract unless the contract itself shows that the through enforced contractual remedies. have used in a terms been technical Green, 648-49 See In re a con- construing different sense. (Tex.2007) (orig. proceeding); McGoodwin tract, may we not rewrite it nor add to (Tex. McGoodwin, v. 671 S.W.2d language. its 1984) (op. reh’g); Spradley see also v. Bds., Inc., Hutchison, (Tex.App.- Doe Tex. Sch. Ass’n of denied) (explaining (Tex.App.-Fort Fort writ Worth Worth denied) added) (cita- agreement ap pet. (emphasis that a settlement “property decree). correctly majority explains 1. The that section We will refer to 23 as agreed parties' 23 of divorce decree parties’ stipulation type for a of breach of residuary traditionally clause as that term is agreement their described below. 804; Majority Op. at Pear understood. See Fillingim, son (West § 2. See Tex. Ann. Fam.Code 9.007 2011) residuary typi (explaining that clauses *10 2006). cally explicitly divide not mentioned omitted). Also, weigh requires tions we must us to give construe and effect to parties to a contract contract, just whole section 18.a. Doe, 458; at see also In re
are considered masters of their own Int’l, Serv. Corp. They choices. are entitled to select what 2011) (“No (orig. proceeding) single provi provisions terms and to include in a sion taken alone will given And, controlling executing contract it. in so before effect; rather, all the must be choosing, rely upon each is entitled considered with reference to the whole the words selected to demarcate their instrument.”). respective obligations rights. short, parties they strike the deal give We can effect to the entire contract and, thus, choose to strike voluntarily so that we render no provision meaning- bind themselves in the they manner less. Harmonizing section 18.a with the And, choose. why parties are stipulation, contract, parties’ as of the bound their agreement as written. date that the signed, contract was made Cross Timbers Oil v. Exxon Corp., Co. items section 18.a (including the (Tex.App.-Amarillo stock)3 Republic ITS separate added).
pet.) (emphasis forever, beyond being subjected majority’s opinion discards these any Deborah, claim by long as as he had principles. The plain meaning stip- of the properly properly disclosed and had valued parties ulation that the “any chose is that those through items his inventory that he parties asset” of the that was “not dis- submitted to Deborah signing before parties’ closed undervalued” in the in- if, contract. But signing before the con- ventories is awarded “to the party not tract, he properly had not disclosed or had possession or control of the asset.” [Em- not correctly valued the items listed in phasis Because the items de- added.] section 18.a that possessed he or con- scribed in agreement, section 18.a of the trolled, stipulation, the date the under heading “Property to WADE contract signed, awarded those items WHITE,” LLOYD unquestionably are as- Thus, contrary Deborah.4 major- parties, sets of the they subject must be to ity’s reasoning, section 18.a is not rendered requirements parties’ stip- clear “completely meaningless” through the im- ulation. plementation stipulation because granted section 18.a
It items to Wade as his is true that section 18.a states that separate property as long as he had cor- items contained within the section are rectly valued those Majority awarded to Wade as items. See separate his “sole and property” Op. at 804. The decree and that Deborah did not award the is “divested of title, interest, “same right, people,” claim in assets to two different and to see property.” Majority Op. In a normal case—one but it instead that does not have a clause with the lan the assets to one person the event of guage of the stipulation in this one circumstance case—it that had occurred before would be clear that signing in section person decree or the other belong would to Wade. But our task opposite event of the antecedent alleges 3. "grossly that Wade under- disclosed or undervalued ... is awarded to valued" this stock. possession not in or control of the asset.” states, stipulation 4. The "IT IS ORDERED any ... asset of the that was not *11 Deborah, a trial has inherent to agree power that court
circumstance. decree). clarify or enforce its therefore, stipula- 18.a and the that section other. tion each complement majority’s disposition I believe that the that Deborah is is based its conclusion the court’s decree and When the trial seeking provi- to impermissibly amend construed properly are parties’ contract it is actu- sion of the divorce decree. But Deborah, way,5 is evident that this it makes a ally majority’s opinion the proper to the through her motion enforce change” “substantive to division, asked the trial court ty has not that alters intentions of the expressed “amend, alter” the trial court’s modify, or concerning trial court parties of the in its de original property division parties’ See the distribution of assets. cree, impermissible. See which would 803; Majority Op. Treadway, Shanks v. 9.007(a); Hagen § Tex. Ann. Fam.Code (Tex.2003). (Tex.2009) 899, 902 Hagen, 282 S.W.3d reasons, I would For these hold that an (“Attempting to obtain alters its trial court did not abuse discretion a divorce decree’s modifies denying jurisdiction. to the I at impermissible division is an collateral respectfully majority’s con- dissent tack.”). Rather, by alleging that Wade grant petition for writ of ditional of Wade’s asking is property, undervalued mandamus. implement stipulation the trial court parties’ bargain that resulted from the ownership
to enforce her
subject stipulation as of the date of permissible.6 This is See Tex. decree. .006-007; 9.002, §§ Ann. see
Fam.Code Spradley, (stating
also at 218 Pearson, I majority 5. believe that this is construction 6. The cites 332 S.W.3d at of how can har- section 18.a and should be authority for its statement least, stipulation. how- monized with ever, At evidentiary trial court an hear could not hold disagree reasonable minds could as to ing on the an asset’s in an issue of value how affect each other. In these proceeding enforcement under 9.002 sections event, parties’ would be am- contract Majority Op. and 9.006. See at 806. The biguous, jurisdic- the trial would have concerning proceedings statute enforcement it, clarify tion to and the could offer preclude presentation new does parol support respective in- evidence to their Ann. evidence. See Tex. Fam.Code terpretations they contract that made. 9.001(b)-(c) 2006) (West § (explaining that 9.002, (West §§ Fam.Code Ann. .006 Tex. governed by are the rules of suits enforce 2006); Co., DaimlerChrysler Motors LLC v. procedure proceed civil as in and shall civil Manuel, (Tex.App.-Fort Kalathil, generally); re 14—10— cases No. pet.); Murray Murray, Worth 00933-CV, WL at *2 (Tex.App.-Fort Worth 5, 2010, orig. App.-Houston Oct. Dist.] [14th dism'd) ("[A] pet. court that renders a divorce (mem. (stating proceeding) op.) continuing juris- subject-matter decree retains pursue discovery entitled to in a 9.006 clarify diction ... decree’s division.”). proceeding).