*1 found in foot- dealing fair good faith not address Because we need eleven.
note statutory duty of of applicability dealing dispose and fair
good faith eleven join footnote I decline appeal, Tex.R.App. majority opinion. See (courts down must hand appeals
P. 47. practicable that is brief opinion
written raised and every issue that addresses
but appeal).
necessary disposition final SPRAGUE, Appellant,
R.M.
v. SPRAGUE, Appellee.
D.L. 14-08-00700-CV.
No. Texas, Appeals
Court (14th Dist.).
Houston
Feb. 21, 2012.
Rehearing Overruled March *3 Houston, George, E.
Pamela Richard R. Antonio, Orsinger, appellant. San Richmond, Smyth, Sallee S. Lindsey J. Short, Jr., Houston, for appellee. Panel consists of Chief Justice and Justices HEDGES FROST and CHRISTOPHER.
OPINION CHRISTOPHER, TRACY Justice. appeal, In appellant this divorce Robert (“Bob”) jury’s Sprague challenges the find- ings the trial court’s division sanctions, post-judgment appel- while Sprague lee Deborah that we dis- moves the appeal, arguing accepted miss that Bob interests the amounts that have been or judgment the benefits of the divorce and is will be paid to Bob as a result of his estopped appealing from it. participation in his former employer’s (b) Program, Cash Deferral a just and no
Finding estoppel, deny Deborah’s right motion. division all of the community prop- erty. appeal property-division decree, portion of the divorce Bob con- Background 1. Factual and Procedural tends that the trial court misapplied the law, submitted an charge, erroneous Bob began working for July Shell Oil in *4 improperly disregarded jury findings, and 1, January 1967. On he promot- abused its discretion in excluding evidence. ed to a on the position “Senior Staff’ of argues He alleged as result of these the company, and in merged Shell errors, the trial court him divested of his with Royal Dutch Group. Shell After separate property. We conclude that the working for Shell for eighteen years, Bob lump-sum characterization of a distribution 6,1985; July married Deborah on eighteen during received the marriage under two later, years he retired on June 2003.1 plans governed by defined-benefit for- He receives retirement benefits from Shell 3.007(a) mer section Family the Texas through three different plans: the basic Code; accordingly hold that the trial pension plan, Plan, Benefit Restoration court did not err in instructing in and the Senior Staff Plan. Under the accordance with the statute in failing to basic pension plan, Bob monthly receives characterize a larger portion of the lump- $8,755.2 payments of Bob’s benefits under sum distribution as Bob’s separate proper- the Benefit Restoration Plan and the Sen- ty- ior Staff Plan paid were in one lump sum hand, On the other we agree that the $7,230,035 in the form of a credit to trial court abused its discretion in exclud- Bob’s account the Senior Staff Savings ing all any portion evidence that of the Fund. payable amounts to Bob employ- under his Upon reaching the age of 65 in er’s Program” “Cash Deferral was Bob’s Bob also received the equal first of ten separate property. payments annual through Shell’s De- Cash appeals Bob also a post-judgment sanc- Program. ferral equal The are temporary tions order and orders pending to certain bonuses Bob was awarded in appeal. agree We the trial court 1985, 1986, and together with com- abused its discretion in sanctioning Bob pound interest of on the 17% deferred delay for a claimed in transferring certain payments. bonus funds to Deborah and in awarding Debo- rah attorneys’ fees. Proceedings through A. Course of Tri- accordingly property- We reverse the al decree, portion division of the divorce 29, 2005, July Bob filed for divorce on post-judgment well as the sanctions order 13, 2007, September and on the trial court and the temporary pend- associated order agreed issued an order, docket-control order ing appeal of the sanctions (a) scheduling January we remand the case for case for trial on determination community- setting discovery a number of 1. Deborah retired from Shell before mar- 2. The characterization of this benefit riage. challenged appeal. on liquidation yet started the they had not with the docket- In accordance
deadlines. that the order, they to were afraid petition amended his because process control separate property. the tem- he owned a violation of allege liquidation could be supple- initial and first court produced He The trial injunction effect. porary forensic-accounting of his report mental liqui- authorizing Bob signed an order accordance Ferguson, Patrice expert, of the funds unspecified portion date order, her second produced but with the net the amount account sufficient to the deadlines report after supplemental day that the The same due to Deborah. passed. He reports had governing expert order, Bob instructed signed the trial court discovery responses supplemental served million from the liquidate Shell $8.2 was the which December proceeds net produced account. This or- docket-control specified deadline $5,379,200, delays, mail Bob did but due to der. nearly check for the funds not receive a setting, the trial January check, trial At day he received a month. motion to exclude Deborah’s granted court however, deposited ordered the funds he expert report supplemental the second share wire-transferred and Deborah’s *5 On trial until March 2008. continued the delay alleged for Bob’s her. As a sanction in March day jury of the trial the second the trial court’s letter complying with to ex- 2008, successfully moved Deborah rendition, to asked the trial court Deborah of the any portion all evidence that clude the interest equal her an amount to award Bob under Shell’s payable amounts to have earned on the might she otherwise his Program Deferral is Cash transferred to her they if had been funds property. The trial court the date of rendition. on that the value of Bob’s jury found Deborah pay Bob to accordingly ordered lump- in the interest $34,323.70 her attor- pay and to benefits due under sum distribution of $15,100.00 attorneys’ the fees she ney for and Sen- Benefit Restoration Plan Shell’s obtaining the in the trial court incurred $1,807,509, amount Plan was ior Staff temporary order In an associated order. lump-sum dis- equal to 25% of the ordered appeal, the trial court pending findings jury of the are tribution. Other $15,000.00 for pay Bob to an additional the challenged appeal. Because not event that he unsuc- attorneys’ fees any all evidence that trial court excluded order. cessfully appealed sanctions receive of the he would portion Program Deferral through Cash Post-Judgment Events C. jury was not asked separate property, the final signed court decree The trial sepa- any the value of such to determine 16, evenly 2008 and divid- divorce on June rate-property interest. which it found community property, ed of the marital estate with included all B. Rendition and Sanctions parties that the exception property of the verdict, receiving jury’s After separate property, stipulated had was rendition on trial court issued a letter of $1,807,509 lump-sum portion 31, Among things, other March found retirement benefits the Shell Senior trial court ordered that separate property. was Bob’s sufficiently “shall be Savings Staff fund temporary or- parties moved $4,561,575 Both as to net Deborah liquidated” did appeal. Although Bob pending ders May possible.” On “expeditiously appeal portion court that attorney Bob’s told the pertained Demler, division as it to certain stock and Demler v. 836 S.W.2d options, the stock trial court ordered Bob (Tex.App.-Dallas writ), no disap $2,675,236 a post equiva- bond or cash proved grounds, on other Dallas Mkt. Ctr. security options lent as for the stock Liedeker, Dev. Co. v. 958 S.W.2d appreciation rights stock awarded to Debo- (Tex.1997). addition, rah. the trial court condition- Deborah contends that Bob accepted the ally $150,000 awarded Deborah in attor- judgment benefits of the by liquidating an neys’ fees the event that appeal portion excessive of his Senior Staff Sav- the property division was unsuccessful. ings Fund and retaining the net proceeds. While the appeal pending, Deborah According Deborah, this began conduct served Bob with discovery gather evi- after the trial court issued its rendition support dence in of a motion to dismiss the letter on March appeal. requiring The trial court Bob to ordered Bob to liquidate comply. portion of the fund sufficient to $4,561,575
net
to be transferred to Debo-
II. Motion to Dismiss
rah. Of the approximately
million in
$24.5
We first address Deborah’s mo
the account at
divorce,
the time of the
Bob
tion to dismiss this appeal
ground
on the
ordered
liquidated,
million
$8.2
which re-
that Bob
accepted
has
the benefits award
$817,625
sulted
an additional
being
him in
ed to
the divorce decree. See Carle
transferred to him. Between that
time
Carle,
v.
149 Tex.
234 S.W.2d and the date of Deborah’s motion to dis-
(1950)
1002, 1004
(explaining
party
court,
miss in
liquidated
an addi-
accepts
who
the benefits of a judgment is
*6
tional
account,
million from the
plac-
$8.2
estopped
it);
from appealing
Waite v.
ing
$5,330,000
the net proceeds of
into his
Waite,
797,
150
(Tex.App.
S.W.3d
803
checking account.
2004,
denied)
-Houston
pet.
[14th Dist.]
Deborah also argues that Bob has ac-
(same).
acceptance-of-benefits
Under the
cepted the benefits
judgment
of the
doctrine,
litigant
judg
“[a]
cannot treat a
retaining one-half of the automatic annual
ment
right
as both
and
if
wrong, and
he
payments that he began receiving
age
at
voluntarily accepted
has
the benefits of a
65 under
the
judgment,
Program.
he cannot
Cash Deferral
prosecute
afterward
Carle,
appeal
an
therefrom.”
149 Tex. at These
had been characterized as
472,
supersedeas benefits”). (Tex. 361, “acceptance of Sec Fillingim, is no v. S.W.3d there “ ond, pending appeal orders temporary 2011). convincing evidence’ ‘Clear parties attor pay in this case allow to degree proof means the measure fees, money posses use their neys’ to the trier of produce will in the mind of fact necessary living sion for reasonable to the a firm belief or conviction as truth manage and the finan to invest expenses, be sought estab allegations preserve capital, and to cial assets § lished.” Tex. Fam.Code 101.007 Ann. from financial assets one financial transfer (West 2008); J.F.C., 96 S.W.3d In re temporary account to another. When such (Tex.2002). acceptance place, are of ben orders property will We not disturb division apply. does not McAlister v. efits doctrine (Tex. McAlister, appellant 75 S.W.3d 483-84 appeal unless the demon denied); pet. Antonio App.-San clearly strates that the trial court abused Waite, 150 at n. 13. We ac S.W.3d an order its a division or discretion cordingly deny Deborah’s motion to dis See manifestly unjust and unfair. Sta miss. Stavinoha, vinoha v. 126 S.W.3d (Tex.App.-Houston no [14th Dist.] Property III. Division standard, pet.). legal neither Under decree, In a divorce the trial court insufficiency nor factual evidence is community “in a must divide error, but independent ground each just the court deems manner in assessing instead is a relevant factor right, having regard rights due whether the trial court abused its discre any party and children of the mar each tion. Id. we review at 608. When (West § Ann. riage.” Tex. Fam.Code. 7.001 legal sufficiency separate-property of a 2006). rights Among right these is the finding, we consider all of the evidence in property. Under both the Texas light finding most favorable to the Code, Family the Texas Constitution and determine a reasonable whether could person has *7 have firm belief or formed a conviction person the property all “owned or that its Id. finding was true. We resolve marriage acquired the or claimed” before all in favor in the evidence conflicts devise, by gift, during marriage the so, finding if juror a reasonable could do Const, XVI, 15; § art. descent. Tex. Tex. disregard contrary all evidence unless § Community prop 3.001. Ann. Fam.Code juror a reasonable could not. Id. When hand, erty, the other of all of on consists sufficiency we review of a sepa the factual than property, proper the other rate-property finding, uphold we will ty, by spouse either mar acquired during unless, finding light “in of the entire rec possessed by all either riage, ord, the evidence that a disputed reason spouse during marriage or at its disso able fact could not have finder credited presumed community prop to be lution. finding significant favor is so that a 3.002, §§ erty. Tex. Fam.Code Ann. reasonably fact 3.003(a). finder could not have litigant pre A can overcome this formed firm belief or conviction” re sumption by tracing property present [the] convincing finding. that it is flected Id. ing clear and evidence argues that the court to increase it. Deborah bond is insufficient but she has not asked trial court or this Lump-Sum A. Characterization of Dis- community-property interest. Id. at 946. tribution The explained court that when determin ing interest, the community-property The that the found value value of retirement benefits is calculated separate-property interest in the lump- as of the date of divorce. Id. (citing Her sum distribution of benefits due under the (Tex. ring v. Blakeley, 385 S.W.2d Benefit Restoration Pension and the Sen 1965)). $1,807,509, ior Staff Pension Plan was equal amount that is to 25% of the lump- Berry court dealt with a concern $7,230,035. sum distribution of Bob pres Taggart, addressed in namely, the ef challenging jury’s ents three issues fect of pay increases in years the later First, finding. he asserts that half of the employment on defined-benefits that are (i.e., $3,615,018) lump-sum distribution only calculated based not length of ser because, separate property aas matter vice, but also on compensation. Retire law, community-property interest in ment benefits calculated way do not by this benefit must be determined apply accrue equally across the span employ ing the time-allocation rule established in compensation ment if changes; in Berry, (Tex. Taggart v. Taggart, 552 S.W.2d example, the value of the payments 1977). Second, he contends that the trial available under such a plan defined-benefit court erred in instructing jury using more quadrupled than in the last third of language language based on the of former employed spouse’s career. Id. rec provisions Family of Texas Code section effect, ognition of this and in an effort to 3.007 rather than language drawn from safeguard better the working spouse’s sep third, Taggart. And argues he that the interests, arate-property the Berry court
repealed subsections of section 3.007 were
community’s
limited the
to the
applied in a
unconstitutionally
manner that
benefits that
during
accrued
the marriage.
him
separate property.
divested
of his
We
so,
To do
the court calculated the pay
address these
together.
issues
ments that hypothetically
have
would
been
Taggart
Taggart
v.
if,
due
on the date that
employed
Taggart,
Under
courts
calculated
spouse’s
changed,
marital status
the bene
community-property interest in retirement
fits were vested and matured and he re
by dividing
benefits
the number of months
words,
tired.
Id.
In other
Berry
during
marriage
which
and employment
court “avoided the
computing
difficulties of
coincided
the number of months of em-
present
value
employing a fiction to
ployment.
Id. at 424. Bob and Deborah
employee spouse
retire the
under the
were married during half of the time that
*8
provisions on the date of divorce.” Steven
Shell; thus,
Bob worked for
if the division
Brown, Comment,
R.
An Interdisciplinary
of his
governed by
retirement benefits is
Analysis
the Division
Pension Bene
of
of
Taggart, then half
lump-sum
of the
distri-
in
Post-Judgment
Divorce and
Parti
fits
bution is community property and half is
tion Actions:
Inequities
Cures
in
Bob’s separate property.
Berry v. Berry, 37
L.Rev.
Baylor
Berry Berry
v.
(1985)(footnote
omitted).
and italics
This approach changed when the Texas
Family
3.Texas
Code Section 3.007
Supreme
Berry
Court decided
v. Berry,
legislature passed
the Texas
(Tex.1983). There,
imposed Property Defer- Interest the Cash determining the be considered in could Program the ral the benefit. After amount of defined Act, Shell of the 1986 Tax Reform passage issue, challenges In his fourth Bob the Plan to Restoration established Benefit imposition discovery court’s of sanc- trial under its payable return the total amounts excluding portion all that a tions evidence would plans to the amount that pension payments him under of due to Shell’s statutory payable have been without separate Deferral Program Cash are his retroac- cap. plan Shell further made this participation As a result of his property. the theo- tive to 1984. Bob contends that program, will an annual this Bob receive inception-of-title, replacement-for- ries $2,424,154 for years, for ten payment mutation, loss, his tracing support all $24,241,540. that argues total of Bob enti- position that benefits he became court abused in exclud- trial its discretion plan after his tled to receive under this ing all evidence of his marriage separate nevertheless are his including in these cer- payments, property. documents, supplemental expert tain Shell problem arguments with these testimony point. Bob’s reports, and salary was marriage, that before his Bob’s Texas Under Rule of Civil Procedure already imposed by below the the 1986 cap 193.6, make, party timely if a fails to Act. not Tax Reform Because the Act did amend, supplement discovery re the benefits that Bob was entitled reduce infor sponse, the undisclosed evidence or marriage, on the it to receive date of subject mation is unless to exclusion that cannot be said the Benefit Restoration party proves to the trial court that there him. anything Plan “restored” good cause for failure or that was Plan, As for the Senior Staff unfairly or un surprise failure would plan no that this presented evidence that fairly prejudice the parties. other Tex.R. marriage existed before Bob’s (b). 193.6(a), P. the trial We review Civ. in representative plan’s Shell’s dated ruling court’s under this rule for abuse of 1990’s, ception to the adminis See Brown III discretion. Fort Villas when year trator identified 1991 as the Gillenwater, Ass’n v. Condo. S.W.3d Thus, began to in it. participate Bob first (Tex.2009) (address curiam) (per provides pre the benefits it can be also ing testimony expert exclusion of who community to be property. sumed designated days first before three sum, section conclude discovery more than end five 3.007(a) applies to the characterization months after the dead expert-designation under Bob’s defined-benefit line). correctly in- plans; trial court Supplementing 1. Deadlines Ex- accordingly; structed the and that Discovery pert Reports Responses trial court did not its discretion abuse agreed The trial court entered an dock- rejecting arguments that half of the setting et-control order ultimately paid September plans benefits under these January are his Because Bob for trial on property. the case *11 order, granted expert continuance, of the re- Deborah’s Under terms motion 22, were on October 2007 and ports due setting 10, trial case for on March were due on November reports rebuttal 2008. The trial court also struck Fergu- 12, discovery supple- 2007. All was to be expert report, son’s late-filed prevent- and 21, by 2007. On De- mented December ed her from on that testifying issue.6 Bob 2007, 5, parties cember 4 and were argued that trial resetting the date meant that he deposed, and Bob testified did not report now timely. was Program in the Deferral participate Cash court disagreed and noted on the docket until after On he was married. December sheet, changed “No deadlines at this expert Bob’s witness Patrice Fer- time.” The trial court also stated that guson stated that deposed. was She al- although preclude its order would Bob’s though yet expressed she had not it in an expert from that Bob testifying sep- had a expert preliminary opin- a report, she had arate-property in the Cash Defer- ion that some of the future un- ral Program’s annual payments, order Program might der the Cash Deferral be did not apply testimony. to Bob’s own separate Counsel for property. This ruling changed day on the second Deborah did not ask for dollar amount at 2008, the trial in March when the trial deposition Ferguson because charac- court objections sustained to Bob’s testi- terized her opinion preliminary. mony on this Bob issue. made offer of Ferguson On pro- December proof Ferguson’s testimony, his own supplemental expert report duced a second testimony, and the excluded documents time the identifying for the first amount of reports. and the future payments under Cash De- Ferguson’s Supple- 2. Exclusion of Program ferral that Bob claimed as his Testimony Report mental and separate property. Ferguson opined that $1,578,030 payment of each annual is Bob’s Bob trial contends that the court abused On December property. excluding Ferguson’s its discretion in sec- incorporated report by Bob ref- supplemental report ond expert and her erence in supplemental responses his to testimony concerning opin- the additional discovery concerning legal theories and (a) expressed report ions because claims, factual bases and he supple- of his the sanction any was not warranted interrogatory mented his answers. (b) discovery part, violation his fail- on After second supple- Bob served the supplement discovery ure to certain before expert mental report supplemental the discovery deadline was excusable for discovery responses, Deborah’s forensic- (c) cause, good production late any accounting expert produced James Penn unfairly surprise preju- evidence did not supplemental report rebuttal on December disagree. dice Deborah. We Ferguson’s 2007. Penn with disagreed Bob first that because the argues calculations, acknowledged part trial been the motion had reset when payment sepa- could be characterized as heard, the issue was no longer evidence at rate, but concluded that had failed to subject to automatic exclusion under Rule convincing establish clear evidence of trial determines 193.6. When date portion separate. what could At the be conference, January discovery sup- the date must be pretrial the court on which February signed 6. The trial a written order ex- court cluding report expert testimony
800 good Inadvertence of counsel is not cause be true. See H.B. plemented, this would Gonzalez, discovery failure 847 for to adhere dead- S.W.2d Zachry v.Co. curiam) Co., Mfg. (Tex.1993) lines. Alvarado v. Farah (per (orig. pro- 246-47 (Tex.1992). to Rule S.W.2d (discussing predecessor ceeding) party’s that failure to holding 193.6 Finally, Bob failed show that thirty days more than identify witnesses expert’s unfairly not opinion his new did required rule was not a before trial as surprise prejudice Ferguson or Deborah. excluding testimony their where for basis that Bob identify did not the funds claimed the to another more trial was reset date separate until as his after she later). See thirty days than also Tex.R. deposed; until that and Bob had been 190.3(b)(1)(A)(all be discovery Civ. P. must time, unnecessary it been Deborah had discovery period the during conducted prepare legal arguments expert testi days the which continues until before mony the character of the bo regarding Family date trial in cases under the set for paid nuses or the interest them— Code). However, ap- Rule 190.3 not does amounts totaled more than together that ply scheduling is a written order if there million dollars. $24 See Tex.R. Civ. P. 190.3 under 190.4. We that the trial court did not conclude only that this rule if (specifying applies excluding its Fergu- abuse discretion not). 190.4 do Rule 190.2 and Rule Under expert supplemental report son’s second 190.4, may the trial court that Rule order opinions the testimony regarding and her with discovery be conducted accordance expressed report. in that We therefore discovery control the tailored to pertains it overrule Bob’s fourth issue as specific may the circumstances of suit and report Ferguson’s testimony. to this and to change any limitation on time for or Testimony of Bob’s Exclusion discovery amount of otherwise set forth Documentary Regarding Evidence Rules of Civil Texas Procedure. Program Cash Deferral (b). 190.4(a), P. Tex.R. Civ. though
Even the trial court continued trial, day On the second Debo case, the court made clear that any rah to exclude evidence of moved in the order re deadlines docket-control Bob’s in the facts, place. mained in Under these Program ground Cash Deferral on the the continuance conclude that did not reset his timely supplement he failed to discov in the court order. In re dates Car ery responses. Deborah sent Bob 05-08-00083-CV, penter, No. 2008 WL interrogatory asking identify him to (Tex.App.-Dallas at *2 Feb. percentage any property entire denied]) 2008, orig. proceeding [mand. estate he claimed as his (mem. (continuance nullify op.) does not property. interrogato Bob answered order). order court scheduling set ry and several He supplemented times. always might there indicated that be a failure to supplement separate component to the Cash Deferral timely expert in a manner also is report Program percent but never identified not cause. good excusable for The stated age. delay reason for the was that his trial trial, argued At that Bob failed appreciate significance counsel not Deborah did timely discovery produced supplement two letters Deborah in 2005 to because he deposed identify percentage pay- until after Bob was in December did time, the Deferral By sup Program deadline to ments under the Cash plement expert’s report passed. separate property that he claimed as his had until the December 2007 deadline to Limine with regard to experts” and that supplement discovery. The trial court sus- ruling its “should not be interpreted to objections tained Deborah’s to Bob’s of- mean that Sprague Mr. testify could not *13 testimony subject fered on the and to the appropriate, order, if in discovery is and if two from letters Shell7 on which Bob re- there are no other objections valid to his support testimony. lied as for his Thus, testimony.” the record affirmatively explained trial court further that the rul- shows that Deborah was aware of the dis- ing applied only letters, to Shell’s but pute concerning Bob’s non-expert evi- “any testimony also to suggest that would dence, but did pretrial not obtain a ruling. support position any or a asset in that We must reverse the property di anything other than community if vision the erroneous exclusion of this property.” evidence probably caused the trial court to regard With to the exclusion of Bob’s improper render an judgment. See Tex.R. testimony evidence, and documentary 44.1(a)(1). APP. P. in Even the absence of agree with Bob that Deborah waived her expert testimony, a reasonable jury could complaint by failing pretrial to obtain a have found that the excluded evidence ruling on the discovery dispute. See Rem clearly and convincingly established that at Caldwell, ington Arms. Co. v. 850 S.W.2d least some of the payable funds through (Tex.1993) 167, 170 (“the failure to obtain a the Cash Deferral Program were Bob’s pretrial ruling on discovery disputes that separate property. We therefore agree exist before commencement of trial consti that the error was harmful. a any tutes waiver of claim for sanctions Bob asserts that large part a conduct”); based on that Mandell v. Man payments due under the Cash Deferral dell, 214 S.W.3d 691-92 (Tex.App. Program is attributable to a bonus de- Houston pet.) (holding [14th Dist.] no approximately clared six weeks after his appellant who failed to move for the marriage. The evidence supporting exclusion of evidence until the Bob’s last busi claim included a day ness before a letter from Shell summary-judgment dated hearing February waived his complaint offering that the sum option Bob the mary-judgment payment motion was based on evi to defer of additional compensa- produced dence not in response any to discov tion if should be year awarded that ery). connection with Shell’s planned merger. compensation Such would then accrue in- Although Deborah contends that she did 17%, terest at a rate compounded annu- pretrial obtain a ruling, sup- this is not ally, payments with to be made in ten ported by the hearing record. At the beginning installments when he reached limine, the motion Bob’s attorney ex- age proof, 65. In his offer of pressed concern part of the motion testified that he made such an election. applied to testimony. Bob’s own The next The excluded evidence also included a let- day, the trial court ruling announced its ter from Shell’s August CEO dated excluding Ferguson’s supplemental second 1985, notifying Bob that he and the other report testimony and her toas the charac- Senior Staff members had been terization of the awarded under the Cash compensation. stated, bonus Program Deferral Shell’s and as to the value of CEO express “This bonus will separate-property interest our thanks to them. announcing ruling, you tangible way your its the trial court for contribu- “granting stated that it was Company the Motion in tion to the especially during the originally 7. It produced was Deborah who these letters to inBob $41,250, $80,250. past 18 x The last uncertainties of the months. Also 16.5/22.5 $41,250 encourage payment was credited on Janu- hope you I further to de- it will ary paid to your compensate efforts en- and was vote maximum towards in the performed eighteen- Bob for suring Company’s continued suc- work ” period through August the bonus month 1985 and payable cess .... Half of was encourage immediately, employment through and to Bob’s con- continued January 5, one-quarter pay- single tinued Because Bob was employment, months, for 16.5 January one-quarter pay- able in of those could find January contingent only able that his in the *14 employment x upon January payment his continued on those 1987 16.5/34.5 $41,250, Thus, $19,728.26. if Although dates. the amount of the bonus or allowed to letter, evidence, a is not stated in the Bob testified consider the excluded reason- $165,000. jury that he was awarded This is able have found that the evi- could convincingly another from supported by clearly document dence and established $125,603.26 $165,000 tracking principal Shell and interest that of the initial bo- compensation. separate property. This nus is This bo- payable on deferred Bob’s document, payment not nus was which was excluded from deferred for until Bob evidence, guaranteed reached age that deferred award of 65 and was a 17% shows $82,500 August allocated to Bob rate of return. was on $41,250 of payments were that he argues While Bob has estab- January to him in and Jan- allocated property lished his separate interest as uary 1987.8 law, pay- matter of the characterization of
Shell
that the bonus
which ments
Deferral Program
stated
with
under the Cash
August
questions
Bob was credited in
1985 was in-
involves
of fact to be decided
him for
we cannot
compensate
jury.9
tended to
work done
Because
know how
months,
eighteen
jury
weighed
in the
have
preceding
but 16.5
would
evidence
witnesses,
predated
marriage.
credibility
months
or the
of the various
those
Thus,
a reasonable
could
that the we cannot
the extent to which
find
determine
original
ultimately
value
separate-property
of Bob’s
interest
awards
will be de-
$82,500,
x
termined
payment
property,
that
to be Bob’s
16.5/18
thus,
$75,625.
question
not reach the
According to the
letter
we do
same
proper
Shell,
$41,250
characterization of
interest
payment
from
credit-
any
on
payments.
such
We therefore sus-
January
ed to
1986was paid
for his
they
tain Bob’s fourth and fifth issues as
work
eighteen-month period
in the same
pertain to
non-expert
evidence of his
employment
and for
continued
until
his
separate-property interest
un-
portion
paid
this
of the bonus
in Janu-
Program,
der
Deferral
and re-
Cash
ary
portion
This
bonus was
mand for
trial on that issue.
a new
6, 1985; thus,
January
it cov-
credited
months,
ered a
of 22.5
period
and Bob was
Post-Judgment
IV.
Sanctions
single for 16.5 of those months. Based on
evidence,
if we
jurors could find that Bob’s
Bob contends that
reverse
division,
then we
payment
property
also must
regarding
dispute
9. The
There is no
the amount of
bonus we have discussed was not the
only
elected to
bonus that Bob
defer.
It was
Program payments
the Cash Deferral
that are
well-documented,
thus,
simply
bonus;
the most
associated with each
both forensic-
readily
the one
most
how
demonstrates
accounting experts used the same numbers.
separate-
exclusion of Bob’s
erroneous
was harmful.
evidence
deter, alleviate,
trial
imposing
reverse the
court’s order
and counteract bad faith
alleged delay
sanctions for Bob’s
judicial
trans-
abuse of the
process,
any
such as
ferring funds to Deborah after the
significant
court
interference with the traditional
issued its rendition letter. Because this is
core
functions
of Texas
courts.”
so,
necessarily
Shelter,
we address the sub-
McWhorter v.
993 S.W.2d
challenge
stance
to that order. He
(Tex.App.-Houston
1999, pet.
[14th Dist.]
denied)
that the
argues
trial court’s failure to file
(citing
Coll.,
Kutch v. Del Mar
findings
of fact and conclusions of law is S.W.2d
509-10 (Tex.App.-Corpus
presumed
1992, writ)).
harmful and requires reversal or Christi
no
These core func-
findings
abatement so that
can be made.
“hearing evidence,
tions include
deciding
alternative,
In the
Bob contends the sanc-
issues of fact raised by
pleadings,
de-
tion
supported by legally
is not
or factually
ciding questions
law,
entering final
sufficient
findings.
evidence or
judgment
enforcing
judgment.”
Kutch,
Trial courts have sufficiently liquidated inherent to net [Deborah] power $4,561,575 to sanction “to the necessary extent ... expeditiously possible, as § 10. See Tex. Civ.Prac. &Rem.CodeAnn. 9.002 (requests findings 14. See Tex.R. Civ. P. for (West 2011). twenty days of fact must be filed within Supp. after judgment signed). (West 2002). § 11. Id. 10.001 (notice past 15. See Tex.R. Civ. P. due 12. See Tex.R. Civ. P. 215.1-5. findings of fact and conclusions of law must thirty days filing be filed within after original 13. See Tex.R.Civ P. request). 21b. today, sign I will The Court: to have Shell invites counsel the court that.... take care of that will timing on such a make determination may orders be specific so liquidation a handwritten signed trial court of Divorce.” On in the Decree included Sav- of Senior Staff Liquidation “Order 2008, Keen attorney Brenda April “is authorized stating that Bob ings” (with a counsel an email to Shell’s sent portion of a sufficient liquidation initiate counsel) re- courtesy copy to Deborah’s net Savings Fund to Senior Staff the Shell timing and information about the questing $4,501,572.0016notwithstanding [Deborah] liquidation. necessary for such steps previ- injunctions any temporary orders April Keen on attorney advised Shell’s day case.” The same ously entered in this inquiries, he response to his 2008 that Keen notified signed, was that the order administra- plan to the had been directed authorization, and Bob tele- Bob of tor’s website. administrator, Fidelity, phoned $8,200,000. requested liquidation of hearing on the April On removed from the Senior This amount was until postponed entry judgment Ac- May Savings Staff Fund hearing, Deborah’s May 2008. At Bob, Fidelity representative cording to yet attorney that the funds had stated funds would be initially him that the told that, received, explained and Keen been 80, 2008, May account on transferred to his trial court’s letter of accordance with the 5, 2008, Fidelity representa- May but on had asked for informa- March she sending a him that it was tive advised timing about the tion from Shell record, and it was address of check that she had Keen also stated liquidation. *16 12, May to arrive the week expected any yet Bob not to transfer funds advised 7, 2008, completed May Bob 2008. On still in temporary injunction because to brokerage forms to be used then oc- following discussion effect. The transfer funds check and wire deposit the curred: to Deborah. we this. Okay, why don’t do The Court: say instructing I am Why don’t we 27, 2008, attorney Deborah’s May On do, I want to hand- him to don’t Keen that the funds still had advised order, leave the write an I want to that Bob responded received. Keen been is, exactly like it and I can language check, although Fidel- not received the had any temporary notwithstanding add to it mailed the check ity reported you need it to injunctions or whatever 7, May May 2008. On him in London on clear, If, his effec- say. so that’s 28, 2008, for received the check Bob a viola- transaction is not tuating this 2, $5,379,200.00, The en- May dated 2008. injunction of temporary tion of the delay for the indicated the reason velope that work? this court. Does mailed the time the check was between although can and hand- Fideli- Ms. Keen: I think we sit and when it was received: him, in Ohio ty it to the check from address write that order and submit sent London, only paid it $0.41 know that he can to Bob’s home in and then we will day that Bob postage.17 for The same process. start that 7, $60,003 May judicial take notice that on Although discrepancy 17. We there is a 2008, a one-ounce domestic postage for to in the trial between the amount referred 2, postage $0.41 letter was but May and its rendition first-class court’s order of 2008 31, 2008, via sent to Great Britain actually a one-ounce letter of March Bob trans- letter $0.90. international was larger mail amount identi- first-class ferred to Deborah Compare for Domestic Mail- New Standards in the rendition letter. fied the check he sent it to received his broker- Bob’s separate property a larger portion of age in via overnight delivery Houston with the lump-sum distribution from two de- deposit instructions to it and wire transfer plans. fined-benefit Although the trial $4,561,575to Deborah’s The bro- account. court did not abuse its discretion in exclud- 29, kerage May confirmed on 2008 that it ing evidence of untimely-disclosed documents, had received the deposited the opinions of Bob’s forensic-accounting ex- check, and, allowing after for the time pert, we conclude that the trial court re- clear, to funds would wire transfer the versibly erred in excluding non-expert evi- requested funds to Deborah on June dence that would have supported Bob’s money 2008. The was removed from separate-property claim to some of the account on deposited June payable amounts to him under Shell’s Cash Deborah’s account on June Deferral Program, and in sanctioning record, Based on our review of the post-rendition for a delay in transferring required conclude Bob was not funds to Deborah. We accordingly re- begin liquidating funds from the Shell Sen- verse property-division both the portion of 2, 2008, ior Staff May Fund before and the the divorce decree and the post-judgment delay in transferring funds to Deborah sanctions order. Because we conclude after that date was not attributable to him. that the trial court did not err in charac- As the Texas Supreme Court has ob- $1,807,509 terizing of the lump-sum distri- served, delay in “great delivery of a bution as Bob’s property, we re- probable letter is the result of the omission verse and remand the case to the trial Blake v. Ham- prepay postage.” (a) court for a new trial as to the proper Co., burg-Bremen Fire Ins. 67 Tex. characterization of the payable amounts (1886). 2 S.W. according- We (b) under the Cash Deferral Program, and ly reverse the trial court’s order of June just right division of community imposing disposi- sanctions. Our estate, light finding tion new of this issue renders be moot the trial August concerning court’s order of made condition- characterization of ally awarding attorneys’ Deborah fees in under the Cash Deferral *17 the event of an appeal unsuccessful of the Program, light and in jury’s findings of the sanctions order. on the remaining issues. Given dispo- our issues, sition of these we do not address V. Conclusion remaining issues.18 jury
We find no error in charge the or in FROST, J., the trial court’s failure to characterize as Concurring. Services, 15,365, 15,369
ing Fed.Reg. er those items were awarded to Bob or Debo- (Mar. 30, 2007) (postal rate for first-class do- challenged rah. Neither Bob nor Deborah mail) mestic with International Product and findings either of these in the trial court or on 16,603, 16,607, Changes, Fed.Reg. Price appeal. erroneously Even if the trial court 16,614 4, 2007) (Apr. (postal rate for first- contrary among included statements the find- international). class mail ings of fact and conclusions of law it issued in judgment previously connection with the ren- issue, argues In Bob’s sixth he that the case, any dered in this such error is now making findings trial court erred in of fact moot, judgment because that has been re- contrary by jury. Specifi- to those made the however, clarify, We versed. that the issues cally, jury guilty the found that Bob was not by particular findings by resolved these the of cruel treatment toward Deborah of a na- jury do not need to be tried on remand. If living ture together that rendered further ins- again findings contrary the trial court upportable, makes liability and found that the tax verdict, liquidating point that would the be incurred in certain to of error can be regardless again, items would be the necessary. same of wheth- raised if in Justice, procedure not follow this FROST, majority does KEM THOMPSON 3.007,1 join the section do interpreting concurring. dealing with majority opinion part of of statuto- an issue appeal presents This the first three issues. (a) regarding subsections ry interpretation (b) Family sec- Texas Code of former and begin the text. with court should This characteriza- 3.007, govern which tion issues, Bob raises first three Under his em- in certain property interests tion of interpretation of proper as to the an issue Robert M. Appellant benefits.1 ployee (a) (b) 3.007. In of section subsections (“Bob”) L. Deborah appellee Sprague pen- analysis part as to what of Bob’s his (“Deborah”) inter- urge different Sprague property separate benefits is Bob’s sion statute, and the statute’s of this pretations community property, is part and what in case. issue this meaning principal is the testimony expert Deborah’s based law, interpreting interpreting section Texas of these subsections. Under both subsections, 3.007, begin by examining begin by court must this court should these But, glean to the intent the text of the statute.2 examining the statute the text of discuss, ana- majority quote, in the text does not as reflected legislature consider the text of meaning lyze, apparently to the or give effort to (b) majority quotes The at all.3 court then should de- subsection The entire statute. (a), or but does not discuss subsection ambiguous statute is whether the termine analyze language interpreting its statutory interpretations upon based in its The statute at issue reads statute.4 suggested by by parties proffered entirety follows: unambiguous, text. If the statute (a) participant A is a adopt interpretation spouse who must the court plan has a language, benefit retirement plain the statute’s defined supported in the month- property interest extratextual sources relying upon without spouse right benefit the had a statute, ly accrued unless such an interpret age, as receive on normal retirement re- lead to absurd interpretation would plan, as of the date defined ambiguous, If the statute sults. of whether marriage, regardless cautiously consult extratextu- court should benefit had vested. interpretation in an effort al aids to (b) community give intent legislature’s determine be deter- a defined benefit shall Because the to the entire statute. effect *18 K-2, Inc., 893, (Tex. 24, 2005, R.S., Leg., 318 S.W.3d 901 May ch. Inc. Act of 79th 1. See v. 1353, 1353, 2010) 490, 1, begin (stating "we with the stat § Tex. Laws 2005 Gen. 29, 2009, the entire May Leg., and that "we examine repealed by Act 81st ute's text” 768, 11(1), meaning R.S., meaning, try give glean to § 2009 Tex. Gen. Laws act to its ch. word, 1950, statutory treating statutory and avoid All references in this to each possible”) Family language surplusage where the Texas opinion are to the version of omitted). Consumer immediately prior (quotations to See also that was in effect Code Sylvania, Safety v. GTE Commission repealer. 2009 Product 2056, 102, 108, 2051, Inc., 447 U.S. 100 S.Ct. (1980) (stating "the 766 start 64 L.Ed.2d Marroquin, v. 339 S.W.3d 2. See Carreras interpreting the lan ing point for a statute is (Tex.2011) (stating “statutory interpreta- itself”). guage of the statute examining begins by the text of the stat- tion ute,” quoting just before the text of the statute Smith, pp. issue); ante at 795-98. See In re 333 S.W.3d at (Tex.2011) (stating construing "when a stat- Coat, ute, pp. at 795-98. begin language”); 4. See ante with its Fresh spouse began partici- mined as if the majority not does mention or analyze pate plan marriage on the date of this statutory-interpretation argument. participation and ended that on the date argues against Deborah this statutory of dissolution or termination of the mar- interpretation. Under prof- Deborah’s riage, regardless of whether the benefit (a) interpretation, fered subsections and had vested.5 (b) need not apply both in a particular (a) Subsection separate- addresses case. Deborah maintains that proper property interest of a participant (a) a de- interpretation (b) of subsections and is plan, (a) fined-benefit retirement and subsec- as follows: subsection applies only in (b) tion addresses the community-property cases in which spouse was accruing bene- plan. interest in such a fits in a defined-benefit plan retirement married, when the parties and subsection This court should address all of the (b) applies only in cases in which spouse parties’ proffered interpretations. will continue to accrue benefits a de- approximately worked for Shell for fined-benefit retirement plan after eighteen years before he married Deborah date of divorce. The majority does July 1985. He then worked for analyze mention or this statutory-interpre- approximately eighteen years more before argument. tation retiring on June petitioned 2003. Bob This court should for divorce in determine whether and the trial court ambiguous. the statute granted Bob a divorce in 2008. In one of arguments regarding interpreta- This court’s role in interpreting section (a) (b), tion of subsections and Bob asserts 3.007 is to determine give effect to (a) (b) apply subsections do not legislature’s intent.6 reviewing After cases which the retirement-plan partici- the statute’s text and considering the con- pant has retired before the date of divorce. text and possible the various interpreta- (b), Bob notes that under subsection statute, tions of the we must determine if community-property interest in the retire- ambiguous.7 the statute is If the statute ment is determined as if the retire- unambiguous, adopt then we must (Bob) ment-plan participant participated in interpretation supported by the statute’s plan through the date of divorce. Bob plain language, relying upon without ex- argues that because he retired statute, interpret tratextual sources stopped accruing pension benefits more except in the rare situation which such years divorce, than four before the date of interpretation would lead to absurd re- the methodology computing the sepa- sults.8 We cannot use extratextual rate-property and community-property in- sources, legislative history, such as to in- (a) (b) terests contained in subsections terpret way a statute in a that contradicts apply cannot in the case under review. unambiguous language.9 statute’s But May 5. Act of Combs, 2005 Tex. Gen. Laws 8. See TGS-NOPEC Geophysical Co. v. (Tex.2011); at 1353. 340 S.W.3d Alex Shesh *19 Johnson, Servs., Management 209 L.P. v. unoff 644, (Tex.2006). Allen, 6. S.W.3d & n. 4 651-52 15 See Nat'l Liab. & Fire Ins. Co. v. 525, (Tex.2000). S.W.3d 527 Texas, 9. See Fleming Rylan Foods v. Inc. of 278, (Tex. 1999) (holding der, Motors, Inc., 7. See Call v. Serv. 6 S.W.3d 283-84 660 S.W.2d 814, that, (Tex.1983); although 815 Texas Government Code sec Tire & Dob's Auto Center Safeway may 923 S.W.2d 719 tion 311.023 that Agency, v. states courts consider Ins. (Tex.App.-Houston legislative history unambiguous the [1st Dist.] writ stat utes, w.o.j.). legislative history dism’d the aof statute cannot retirement- review because the if case under uncertain or meaning is if the statute’s the date of retired before participant inter- reasonable than one there is more statutory interpreta- statute, this the statute is Under then divorce. pretation tion, separate- Bob’s determining legisla- the determination of ambiguous, and pension in his benefits intent, may proceed with caution ture’s law. interpretation the common upon based consulting extratextual would be history or an ad- this court aids, analysis, legislative a common-law such Under interpretation of the time- agency’s Taggart ministrative conclude that should to this case. apply statute.10 rule does not allocation Thus, insuf- insufficiency, factual legal wheth- not determine majority The does error, and constitutional ficiency, charge (b) (a) ambiguous. are er subsections three issues Bob’s first arguments under not state whether majority does lack merit. suscepti- uncertain or meaning is statute’s interpre- more than one reasonable ble to majority fails to conduct Because the legis- majority rely upon tation. The does (a) and analysis for subsections statutory statute, history interpreting lative (b) 8.007, join part I not this do of section whether not indicate majority does but concur in the respectfully I opinion. of its ambig- that the statute is it has concluded and I three issues judgment as to the first legislative his- using whether it is uous or majority’s opin- the remainder of join unambiguous tory interpretation in the ion. legislative histo- Though provisions.11 may majority contradict ry quoted that section argument alternative
Bob’s
8.007(a) rule of codifies the time-allocation 422, 424 S.W.2d
Taggart Taggart, v. (Tex.1977), history not legislative this does HOUSTON, Appellant, OF CITY that subsections argument address Bob’s v. (a) (b) in which apply to cases do JENKINS, Appellee. David retired retirement-plan participant has the date of divorce.12 before No. 14-11-00091-CV. court should conclude This Texas, Appeals Court apply. does not statute Dist.). (14th Houston above, methodology outlined Using Feb. 2012. court should conclude subsections April 2012. Rehearing Overruled (a) (b) This court also ambiguous. are that sub- adopt interpretation should (a) (b) apply to the do not
sections 588; Smith, Alex at unambiguous meaning 10. In re 333 S.W.3d be used to alter the L.P., statute, Servs., except the rare instance Management Sheshunoff error); typographical which it is used to show S.W.3d at 652. Gas, Anglo Dutch & Ltd. v. mco Oil Ra (Tenge) L.L.C., (Tex.App. 171 S.W.3d p. ante at 797. See 2005, published Rule 24 Dist.] Houston [14th order) legisla (stating cannot use that courts id. See history interpret in a manner tive statute unambiguous contradicts the statute’s *20 language). notes documents, plan than in accordance with 3.007(a) in separate-property defines the cites no is the case. but evidence that this “participant” terest of a in a defined-bene Bob argument, In an alternate Reasoning plan. fit that this subsection 3.007(a) if applies, contends that section if he inapplicable “participant” was not it a codifica then should construe it as divorce, at the time of his will not Taggart, tion of but the statute selectively quotes from various language an sec interpretation. bear such Under plans attempt Shell benefit in an to show 3.007(a), the has a working spouse tion “participant” that Shell used word “monthly in the only to and not to employees, refer current benefit,” requires accrued which a deter Bob, According only retirees. those of the of the monetary mination value “eligible” participate who are can in these particular benefit that had on a accrued plans, only “employees” retirement date. Value is and cents. stated dollars eligible. are He then reasons that one Berry, 647 at 945-46. In sec longer eligi no See S.W.2d employee who is an 3.007(a), as in value is deter participate Berry, ble to cannot be tion and therefore employed “participant.” only Not would this be mined as date that