*1 As in of error discussed security deposit is to en purpose of a O’CONNOR, Appellant, William J. performance rental a tenant’s under a sure Thus, proper a agreement. landlord could Appellee. P. deposit if security a a tenant ly withhold No. 04-84-00039-CV. pro comply with an advance notice
fails to Prop requirements vision that meets Texas, Court 92.103(b). erty We find the land Code § San Antonio. in faith. lords in this case did not act bad May 1985. pro notice The lease contained an advance vision, though Rehearing Denied June 1985. technically provi even statutory require sion did not meet the conspic in being
ments underlined or print. The failed to com uous bold tenants despite ply provision this the fact that with they it un admittedly were aware of and Consequently, meaning.
derstood its re apparently they rightfully felt landlords security This deposit. tained the behavior disregard” a does not constitute “dishonest rights. of the tenants’ Wilson v. (Tex.Civ. O’Connor, 555 S.W.2d dism’d). App. writ —Dallas 92.109(d) pre- Property creates a Code § sumption if a of bad faith landlord fails to 30-day security deposit return within the a However, though even time limit. in never landlords the instant case have deposit, we find in the record refunded legal dispute legitimate of a suffi- evidence 92.109(d)presumption. rebut the cient to we find the landlords did not act Since four, faith, points we bad sustain five, six, judg- and thus reverse the damages plus ment of treble $1050 $100 in attorney’s fees awarded the $750 provi- notice tenants. Since advance re- strictly comply sion did not with 92.103(b), however, we quirements of § render of the tenants favor computed interest the amount of with $350 February Reversed and rendered.
153 Lavin, Antonio, ap- Edward M. San for pellant. Hemmi, Patterson, Stewart,
John U. Kirk Antonio, Pennypacker, Hemmi & San for appellee. BUTTS, REEVES,
Before CANTU JJ.
OPINION
BUTTS, Justice. appeals parti- William O’Connor from a his military tion of retirement benefits. court, Trial before the which was awarded of his ex-wife O’Connor all 34% military future bene- William’s retirement fits, $11,- arrearage in the amount of payments her 773.41 for share of received by September (date him 1981 divorce) (date through October 1983 suit). judgment eases, “gap” This is one de McCarty cided v. 453 McCarty, between 589 U.S. S.Ct. 69 L.Ed.2d 26,1981, (1981),June and the effective date Spous Former the Uniformed Services’ Act, (1983), es’ Protection 10 U.S.C. 1408 February couple mar 1983. The were ried months of total 264 months the Air Prior that William served in Force. McCarty, supra, designated law Texas during earned community property subject marriage upon Taggart Taggart, division divorce. v. (Tex.1977); Cearley v. 544 S.W.2d Cearley, (Tex. Where the of the is Busby Busby, trial court directly final and is 1970). division of therefore The formula for attacking a divorce decree means of spouses is retirement benefits between stated in MONTHS MONTHS Cearley, MARRIED IN SERVICES supra, at 664: x FINAL BENEFIT x [2] held appeal, division of courts of *3 military trial court appeal retirement benefits. may have generally reconsider a Patino, (Tex. v. 687 Patino S.W.2d 799 Therefore, pre- present the and under App. Antonio, 1985); Voronin v. Vo —San McCarty Emorphia formula would be enti- ronin, supra; Gordon, supra. v. Gordon military retirement tled to of William’s 34% judgment of trial But where the the benefits. court final is is and therefore FSPA, the Congress Until enacted collaterally attacking a divorce decree McCarty retire- mandated suit, partition appeals’ of a means courts of separate property were the ment benefits di- decisions tend to turn on whether the subject community to of the retiree and expressly assigns any military vorce decree upon divorce between the property division However, no retirement benefits. with 233, ex-spouse. 453 U.S. at retiree and his specific designation judgment, in 2741, at 101 at 69 L.Ed.2d S.Ct. military retire- courts direct that division of ment benefits be considered. Com- should 1408(c)(1) The reinstates FSPA § 118, Harrell, pare 684 Harrell v. S.W.2d to prior law as existed the McCar Texas it 1984, no (Tex.App. Corpus 123-24 Christi — 25, ty before and after June decision both (bill writ) in that proper remedy review 1981: division) property case redetermine with to (c)(1) Subject to the limitations of this Trahan, supra (partition of Trahan v. section, may disposable a court treat re- proper remedy) military retirement benefits pay payable or to a mem- tired retainer 712, Morales, 686 S.W.2d Harkrider v. pay beginning periods ber for after June 1985, writ) no (Tex.App. 715 Antonio —San 1981, 25, property solely as of the either remedy). (partition proper property or as of the member member hand, major case the On the other one spouse in and his accordance with ity opinion decreed that where the divorce of such court. jurisdiction of the law military retirement bene expressly awards Cameron, 210, 641 S.W.2d See Cameron v. fits, claim of the judicata res defeats the 212 see Trahan v. Tra also v. spouse requesting partition. Breen han, (Tex.App. 682 S.W.2d Breen, (Tex.App. An 693 S.W.2d —Aus —San n.r.e.); Glenn, tin v. ref’d Southern 1985). urged that since tonio The dissent (Tex.App. Anto were not sub military retirement benefits —San n.r.e.); 'd v. Vo nio writ ref Voronin during “McCarty-era” ject partition to ronin, (Tex.App.— 662 S.W.2d divorce, reconsider the divi the court could dism’d); Gordon v. Gor Austin writ also community property. sion as don, (Tex.App. Sampson, Divorces—Un McCarty Era —Cor 1983, writ). pus no Omelet, Christi 48 TEX.B.J. scrambling the (1985) statutory amendment (proposed recently faced Courts of have of divorce modification Family Code for “gap” The several of so-called cases. these Smith, cases); “gap” decrees in Smith military retirement decision to (Del.Fam.Ct.1983) 458 A.2d 714-15 (1) turn on whether the benefits tends to reconsider division (partition suit should i.e., judgment, decree is a final divorce himto military pension awarded husband’s partition suit is a direct or collateral attack case). “McCarty-era” divorce decree; (2) upon when the a divorce bar, pertinent provi- judgment, whether In the case at decree is a final divorce McCarty-era agreed divorce sions of the explicit it or as to the division is silent decree are: military retirement benefits. evidence,
Respondent, any WILLIAM J. O’CON- we cannot consider extrinsic NOR, hereby shall receive and is award- including exception William’sbill of offered separate property, ed his sole and free to show that obtained more of Petitioner, any claim of EMORP- community property because she was following: HIA P. unable to obtain a share of retire-
ment benefits. Point of error two is over- ruled. checking accounts, savings 4. All ac- counts, policies, insurance In William ar personal property and other gues that the trial authority court had no possession.
his name or (jurisdiction) partition military retire
ment benefits. We find that the trial court specifically granted, All relief not is jurisdiction had specific both under the lan *4 hereby DENIED. The Court that guage of the FSPA and under Texas’ inter finds jurisdiction it has no the retirement pretation language. of that 10 U.S.C. of by respondent, 1408(c)(1), earned the WIL- supra. In Cameron v. Cam LIAM by J. virtue eron, his supra, Supreme the Texas court con of service with the Air United States strued this statute pur to mean that the disposition any Forces and makes no pose of the FSPA is to reverse the effect of of [Emphasis such Voronin, the McCarty decision. ours.] See also of benefits. Gordon, supra; Southern, supra; supra. court, The trial finding its of facts in Point of error one is overruled. suit, this found that the divorce ambiguous. point decree was not In of three, In argues William two, challenges error William finding. that that arrearage the trial court’s award of to Emorphia was an unconstitutional retroac- agreed An judgment is accorded tive agree. law. We do not degree the finality same of binding judgment force as a final rendered at the Having determined the court to be conclusion of adversary proceeding. the ordering formulary partition correct in a of McCray 279, v. McCray, 584 S.W.2d benefits, future we find judgment such a is construed in arrearage that the wife is entitled to the contract, the nature of a and in the con 11, September from 1981. See Cameron v. agreed struction of judgment an the rules Cameron, attack, (in supra, at 213 direct relating general to apply. contracts will percentage wife awarded share of v. Gifford, Edwards 137 Tex. 25, 1981); retirement benefits June (1941). S.W.2d It is a well estab Trahan, (in attack, supra at 338 collateral lished rule of construction specific that the same). language of an instrument controls over its Accordingly, the is affirmed. general Delcoure, terms. Parker v. 344 (Tex.Civ.App.—FortWorth CANTU, Justice, dissenting. n.r.e.). writ ref’d agree I do not that the divorce decree is specific find that the language We unambiguous. provi- Clearly the various paragraph of the latter the trial court [that susceptible sions cause the decree to be of jurisdiction has no of the retirement bene conflicting interpretations. Surely po- the by fits earned virtue of William’s service by is as sition advanced the with the United States Air Force and equally supported by language of the the disposition any makes no of such bene appellee’s contention. decree as is general language controls over the fits] paragraph an listing awarding earlier nature of an Because the decree is including agreed judgment, interpreted miscellaneous items to William it must be agree parties “retirement benefits.” We the di if it were a contract between ambiguous. Therefore, governed vorce decree interpretation is not and the thereof is relating contracts. by the laws to Ex Jones,
parte
163 Tex.
(1962).
expressed
face
The intention
on the
my opinion
decree is doubtful and in
position.
support either
Because the
will
give
to
contract must be construed so as
parties,
effect to
intention of the
resort
been
have
had
parol
should
evidence of
surroundings of
the situation and the
resolve
parties to
the doubt. Gardner v.
Watson,
(1890);
76 Tex.
13 S.W.
McKim,
Tex.Civ.App. 322,
La Brie v.
(1909, writ).
instrument and that it erred in *5 permit parol by appellant evidence offered support interpretation his and as evi- I parties. of the intent of the would dence reverse and remand. KANN, Argovitz Appellant,
Merna Texas, Appellee. The STATE 05-84-00024-CR, Nos. 05-84-00025-CR. Texas,
Court Dallas. May