*2 (1) All furnishings, household appli- BUTTS, REEVES, Before CANTU and ances, fixtures, goods, appliances and . JJ. equipment possession in Petitioner’s or to Petitioner’s control OPINION clock, parties’ grandfather miscellane- known the court construe the ry judgment Sharon A1 CANTU, Justice. Lohse, appellant, as Sharon Cheatham, suit against Lohse, appellee, previously divorce decree brought a declarato- his former seeking to have previ- wife, possession of Petitioner which are award- ed to settings from the chinaware set in the vice for ous [******] tools, Respondent.... 8, Mixmaster, one set of stainless steel ser- two complete place ously entered ownership to determine the awarded the following of certain respective and the obli- Respondent’s separate prop- sole gations, liabilities and duties of the erty, and Petitioner is divested of under the decree of divorce. title, right, and interest and to such property:
Appellant’s petition alleged that a dis- pute respect gated lant pute tion. an indebtedness in the lant $56,000.00 harmless from had arisen as had arisen between the petition to whether appellee’s pay further indemnify Seguin Savings appellee future retirement any approximate failure to alleged and hold that a dis- solely discharge Associa- amount appel- appel- obli- tioner. chinaware set stainless steel service for Petitioner’s and two clock, (2) [******] [******] miscellaneous complete place settings from following property presently in possession: tools, 8, Mixmaster, Grandfather one set of Peti- gram (8) and whether interest An interest in Petitioner’s Teacher if, as, therein was to be Program construed as Retirement and when increasing Petitioner, effect of appellant’s percentage received or appellee’s program future participation such retirement plan, following any Lohse, be determined time and Alfred Charles Jr. formula: cooperate any Ordered to such sale. During period co-ownership,
At the time Shar- payable benefits become Decree, on Bell responsible the terms of this the for- Lohse shall be determining paying mula for property taxes and Petitioner’s insurance *3 expressed shall be as property exception follows: the with the of 1981 tax and payments insurance which are to 1 _36_ $ x x (Number program joint responsibility be a amount of Petitioner and of months 2 of paid.) benefits Respondent. At the time of sale of the Respondent responsible shall be example, For if at the time of retire- for reimbursement to Petitioner one- monthly the benefit $500.00 is and half of cost the of reasonable neces- the of number months which such sary months, capital improvements entitlement is is and one-half 400 of the cost of necessary entitlement be reasonable and other shall expressed pairs premises as: to by as determined Petitioner, ordinary wear and tear ex- 1 36_ x x $500.00 = cepted. is ordered to furnish $22.50 accounting Respondent an annual of
Petitioner is pay ordered to such sum by improvements repairs. all claimed determined and formula within five (5) days remaining portion is County, sum with the dent. at of Seguin, receipt by District Clerk of awarded Texas 78155. The depositing such to Respon- Guadalupe answer and counterclaim divorce decree was nature of Appellee in her first n [5] n n passing amended n urged to the n as to the original n obligations, under the decree and as to the It is Decreed that pay, Petitioner shall liabilities and duties of the created as a of the division of the estate of by the decree and asked the court to con- parties, the following debts obli- strue the decree. gations and shall indemnify and hold Re- Appellee asserted in her counterclaim spondent harmless from any failure to so that the decree should be construed so discharge such obligations: debts and effectuate intent of the (1) mortgage payments The on the asked that it be a treated construed as family Seguin residence Savings at Asso- contract between the under the law approximate ciation in the amount of ambiguities. of contracts when with $56,000.00. trial court entered its which recites that the decree was con- isIt Ordered and Decreed that Petitioner strued with the benefit of evidence order shall each have undi- effectuate the intent of the at the vided one-half interest in family resi- entry time of the divorce decree. West, Hampton dence located at 104 Se- court then declared the guin, Guadalupe Texas, County, with the of the various contested and ad- right exclusive in Sharon judged and decreed them effect. The into Bell Lohse of Alfred exclusion pertinent part reads: Lohse, addition, Charles Jr. Alfred Lohse, ORDERED, It is DE- right Charles Jr. shall ADJUDGED & have partition long so CREED that one certain certificate of as Sharon Bell Lohse deposit Indepen- remains unmarried and for on account with the period a thereafter, Savings Institution, months dence Loan or until the child last Gonzales, emancipated. Paul, bearing Sharon Bell Lohse shall Saint ac- right, discretion, 11-002518-9, # have her sole count originally issued place such real January estate on market at and held in the names of Edward Stenberg B. Rather and F.J. retirement is to one-half thirty as trustees for A1 Sharon Cheatham and by six divided the total number of Lohse under the terms of certain trust months she has of service credit in the agreements entered into teacher system at the time of pursuant family to the sale of the home her retirement or disbursement according to a Decree of Divorce in this retirement funds or multiplied benefits ORDERED, cause be and it benefits, times monthly ADJUDGED & DECREED to be the monthly, or times the disbursement as property of Sharon along Cheatham the benefits are withdrawn. The order all interest accrued on the said certificate construing the entitlement of A1Lohse to deposit to date and in the future until of Sharon Cheatham’s retire- such time as the certificate redeemed ment benefits is made because of the issuing institution. ambiguity in paragraph the numbered
VIII, beginning page 4 of the Decree & DECREED that It is further ORDERED, II. the “miscellaneous ADJUDGED Decree of Divorce. of Divorce and [5] n [*] ending [*] [*] page [*] of the [*] tools” awarded to Appellee husband the Decree admits in her brief that the of Divorce are the tools set out on the court testimony par- entertained the of the attached # Plaintiffs Exhibit 15 which ties and attorneys upon proof and relied incorporated Exhibit is herein refer- parties fifty/fif- the intended to have a fully ence as ty as if set out verbatim property. Appellee division of the fur- A1Lohse possession, is entitled their ther admits that the decree was declared to he does already possession required have of be clarification be- not, said tools and if light Sharon Cheatham has cause it did of the entire doc- ument, them. Sharon fifty/fifty Cheatham is ORDERED effectuate a division. to surrender such tools to A1 Lohse at Findings The trial court filed of Fact and her home at 2:00 p.m. o’clock on the first They Conclusions of Law. recite: Saturday days after 30 judg- after the ment becomes final. FINDINGS OF FACT following The Court makes the Find- III. ings Judg- of Fact the Divorce relative to fans, ceiling The Court finds that the agreement ment and the the of oven, microwave specifi- and chandelier this cause: cally requested by the husband this 1. A controversy exists between the cause are property the of Sharon Cheat- meaning to this cause as to the of ham and his claim to such language certain in the Decree of Di- ORDERED, denied and it is so vorce between the and as to dis- ADJUDGED & DECREED. position original of assets ordered the Divorce Decree. IV. sought party Each has clairifcation judgment or construction of the Upon application [sic] the of the Plaintiff from the about the of the Court portion for a construction of the portion dividing judgment the original Decree of Divorce por- ceeds of a house sale and about the retirement, the Court construes the judgment dividing tion of the teacher light ment in of the entire document to tirement. percentage mean that the husband’s share is to judgment decrease as the wife’s number 3. The of divorce is of months in agreed the teacher retirement in- judgment entered into between creases so that husband’s of open the Court. upon judgment master, complete place settings
4. Based the con- two from surrounding possession sidered as whole and the the china ware of Peti- circumstances, it was the Respondent. intention tioner which are awarded to at the time the divorce that the 5. There was insufficient evidence at upon happening home would sold the time of this matter certain events set out in the person- to conclude which Court items the sale would be agreed property, upon been al had equally divided between Sharon Cheat- parties, posses- were still in the Lohse, Jr., ham and A1 after normal according- sion of Sharon Cheatham and costs of sale had been after ly the Mr. Court awarded Lohse all the underlying money purchase lien had been remaining agreed upon by par- items paid. belonging ties as to him which were still It intention of Mrs. Cheatham. agree- at the time of the 6. The interest accrued on the certifi- the teacher retirement ac- deposit cate of which was each party counts of that had been litigation, belongs to Sharon Cheat- during marriage earned would be deposit ham certificate of equally payment divided Findings the Court’s of Fact and Conclu- account when the name whose sions of Law and is found to be the account stood retired. of Mrs. Cheatham. *5 6. The intention of the at the is Mr. Lohse not to recover entitled judgment agreement time of the and was attorney’s fees this action. Respondent that and Petitioner 8. Costs should be divided between get would each certain hand tools and at the trial level. the Petitioner keep would the tools nec- Appellant’s position appeal primari- is essary to yard premis- maintain the and ly ambiguous that the decree not and es. therefore, subject interpretation. to so, saying appellant Without intimates that CONCLUSIONS OF LAW instrument, ambiguous, requires evi- judgment 1. The Divorce dence to the true ascertain intent of the cause is as to the division of Nevertheless, parties. position ap- the proceeds of the sale of the family pellant standpoint when viewed from the locally home Hampton known as 104 his and brief he indicate that West, Seguin, Texas. agreed an ambiguity never that existed re- is a contract be- quiring proof outside the four corners tween the as well as the Appellant merely the instrument. took the ment of the and Court it should en- position disputes that existed which forced and construed as a and quired resolution. as a contract. Our examination the divorce decree Respondent 3. The award page appellee’s belies the and trial court’s judgment, of “miscellaneous categorization agreed decree as an ambiguous. tools” is judgment. ambiguity 4. There is no remaining unequivocal award to the plain language and is specifically awarded “all the decree recites that the Court Order furnishings, appliances, household ing, Decreeing fix- Adjudging and certain dis tures, goods, equipment it, and positions in Petition- the evidence before er’s or considering justness to Petitioner’s and rightness parties’ grandfather regard control due for the clock, tools, miscellaneous set of their one children. Nowhere in serving stainless steel eight, for mix decree does it recite that the is mak- Court agree- pre- and the manner ing any disposition according to an for its sale. scribed parties. The document con- ment of the signatures tains the and their provision of the When we examine the evidencing approval of the attorneys their dividing personal property, decree reflecting the trial court’s ac- document especially provision which sets aside signatures tions. We believe that these appellant, it is clear that particular items have led both and the trial court personal the rest of the that the decree was erroneously conclude appellee. awarded agreed judgment. Reagan an See State fans, necessarily ceiling mi- This includes Purchasing 186 S.W.2d County a chandelier. crowave oven and Paso writ ref’d —El holding The trial court was correct w.o.m.). ambiguity existed as to these items that no agreed is not an or Since the decree accordingly approve we of the court’s judgment, contract law cannot be consent holding as to these items. construing to in it the event it resorted examination of the divorce decree Our ambiguous. general rule is that a interest is to be construed in the same program convinces appellee’s instruments, are other written manner as finding trial court erred in us that the Bldg. Home & and as written. Bankers may agree ambiguity existed. While we Wyatt, 139 Tex. Loan Ass ’n. v. disposition by the trial court that the made (1942). If taken as a whole and we are not appears on its face to be unfair rules, according to well known a construed concluding that the trial court warranted unambiguous, left judgment is no room is necessarily otherwise or that the intended duty interpretation, and it is the the marital estate taken as division of declare the effect thereof court to compels necessarily the construction whole language the literal light of by appellee adopted advocated Adams, 214 used. S.W.2d 856 Adams trial court. *6 1948, n.r. writ ref’d —Waco of the is now dis That one e.). disposition clearly ex appointed in the clearly applied the The trial court it in decree does not render pressed wrong declaring in and obli test to construction. ambiguous and the decree. gations of the under in that the trial court erred conclude We is immaterial to The intent ambiguous holding provision to be before the construction of the instrument holding modifying an otherwise entering its relying upon testimonial evidence on it. In may clari expression. The trial court clear fell parties’ the issue of the intent court decree, modify it. may but fy a final test, appropriate (Tex. into error. Under the Epley, v. McGehee ef required court was to declare the 1983). light of the literal fect of the instrument portion of examination of the Our language used. meaning of the Adams addressing awarding of the decree Adams, supra. it us that tools” convinces “miscellaneous Nevertheless, foregoing rules can ambiguous inasmuch as there patently ambigu- only applicable if the decree is description in the decree to assist other no property sought ous. to be identifying awarded. examining portion of the di- After circumstances, the record with the de- such
vorce decree Under case, including pleadings and inven- family residence from the sale of rived tories, to aid the court ambiguity requiring a are admissible we find no need the award. construing the reading A construction. entire Cf. Co., 239 Light McCoy v. Texas Power & out the clearly vision sets interest of each (Tex.Comm’n.App.1922, instance, S.W. 1105 the error was harmless adopted).1 ment retrial, because a different stan- dard, produce would the same result. conclusion, we hold that the trial court TEX.R.CIV.P. There no 434. real dis- holding erred in various pute as to are the what “miscellaneous ambiguous divorce decree to be fur- tools.” I would reverse and render as to construing ther an provision un- matters, the other but affirm as to the der an erroneous standard. We reverse addition, tools. In this issue was not decid- of the trial court and remand adversely ed appellant. No reversible proceedings cause for further not in- presented appellant by error was where his opinion consistent with the herein ex- pleadings own and exhibit received what pressed insofar as he the trial court incorrect- Thus, I ly applied asked for. would reverse ren- dispos- erroneous standard in ing part part. der in and affirm in “miscellaneous tools.” We re- verse portions and render those
judgment wherein the trial court found an
ambiguity rejected which we have above.
We affirm that of the trial court’s correctly found no ambi-
guity disposition of personal proper-
ty other than “miscellaneous tools.” BUTTS, Justice, concurring WALL, Appellant, Simeon H.
dissenting part. I would reverse and render the NOBLE, Appellee. Keta Jean ambiguity exists toas “miscellaneous tools.” I would affirm the No. 9331. ruling trial court’s on the tools since the court examined the and exhibit Appeals Court of setting inventory out an of the tools. See Texarkana.
McCoy Light v. Texas Power & 21, Jan. (Tex.Comm’n S.W. 1105 App.1922, judg- adopted). pleadings listing Rehearing Denied Feb. plaintiff’s tools are the (husband/appellant)
and the listing exhibit plaintiff’s the tools is
exhibit No. also his. Even the incor-
rect standard of applied construction was opinion,
1. Justice
attempting
Butts'
while
Under the state of the record before us we
result,
produce
salutary
misapplies
rule
presume
cannot
result on retrial would
McCoy
Light
v. Texas Power &
S.W.
may
be the same.
It
well be that the items
(Tex.Comm’n App.1922,
incapable
described as
are
"miscellaneous tools”
adopted).
applicable
of identification under the
test
McCoy permits the
trial court
examine the
may
such
fact
items
not have been divided
pleadings and documents in the cause out of
Shaw,
the trial court. Shaw v.