Opinion issued December =
21,=20
2006
In=20
The
For=20 The
BRENDA =
JOYCE=20
GAINOUS, Appellant THOMAS =
EARL GAINOUS,=20
Appellee
On =
Appeal from the=20
246th District Court Harris =
County,=20
Texas Trial Court Cause No.=20
1994-18001
I =
join the=20
judgment only, and I write separately and respectfully to express =
my=20
disagreement with the Texas Supreme Court's opinion in Reiss =
v.=20
Reiss, 118 S.W.3d 439 (Tex. 2003), and to urge the =
supreme=20
court to revisit that authority. The=20
majority opinion in Reiss would require us to conclude =
that the=20
Gainouses' divorce decree awards one-half of Thomas's separate =
property to=20
Brenda--something that, as a matter of law, she could not have =
received in=20
the divorce decree. See Reiss, 118 S.W.3d at =
442. I=20
agree with the dissent in Reiss that argues the =
Reiss=20
majority's holding fails to give due weight to the plain and =
unambiguous=20
language of the divorce decree. Id. at 444 (Jefferson, =
J., Enoch,=20
J., and Wainwright, J., dissenting). Following the analysis of the =
Reiss dissent, I would give due weight to the plain and=20
unambiguous language found in the Gainouses' divorce decree and =
would hold=20
that the decree awards Brenda one-half of the community =
portion=20
of Thomas's retirement fund. The decree does not award Brenda =
one-half of Thomas's separate property. The separate =
property=20
includes retirement benefits that were not created by the =
Legislature=20
until after the divorce and that the Legislature has specifically =
declared=20
may be excluded from division in a divorce decree. See =
Tex. Gov't=20
Code Ann. =A7 804.003(g)(7) (Vernon 2004). This interpretation of =
the=20
Gainouses' decree that divides only community property is =
consistent with=20
the terms of the Qualified Domestic Relations Order ("QDRO") =
entered just=20
14 months after the divorce decree. In the QDRO, the trial court =
clarified=20
the terms of the divorce decree, and the QDRO has been relied upon =
by=20
Thomas and Brenda for almost 10 years. It is well=20
established that, when construing a divorce decree, we read the =
decree as=20
a whole. Constance v. Constance, 544 S.W.2d 659, 660 =
(Tex. 1976);=20
Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404-05 =
(Tex.=20
1971). If a decree is unambiguous, we do not consider extrinsic =
matters to=20
give the decree a meaning different from that of its literal =
language.=20
Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997); =
see=20
Harrison v. Manvel Oil Co., 180 S.W.2d 909, 914-15 (Tex. =
1944). That=20
does not mean, however, that we are free to interpret decrees =
based only=20
on the literal meaning of a few isolated words, phrases, or =
sentences.=20
See Wilde, 949 S.W.2d at 332; see also Point Lookout =
W., Inc.=20
v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). In this=20
case, the majority opinion in Reiss instructs us to focus =
on only=20
one sentence of the decree, which states that Brenda is to receive =
"[o]ne-half (1/2) of the Houston Firemen's Relief and Retirement =
Fund=20
standing in the name of THOMAS E. GAINOUS. " See Reiss, =
118=20
S.W.3d at 442. However, the plain language of the paragraphs =
preceding=20
that decretal sentence establishes that the decree was dividing =
only=20
community property existing at the time of the divorce =
and not=20
Thomas's or Brenda's separate property. The decree provides in =
pertinent=20
part: 9.=20
Division of Marital =
Estate The Court=20
finds that the following is a just and right division of the =
parties'=20
marital estate, having due regard for the rights of each =
party and=20
the child of the marriage. IT IS=20
ORDERED AND DECREED that the estate of the parties is =
divided as=20
follows: Petitioner=20
is awarded the following as Petitioner's sole and separate =
property, and=20
Respondent is divested of all right, title, interest and claim in =
and to=20
such property: . =
. .=20
.
6. One-half=20
(1/2) of the Houston Firemen's Relief and Retirement Fund standing =
in the=20
name of THOMAS E. GAINOUS. (Emphasis=20
added.) The case before us is factually distinguishable from=20
Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003). =
In=20
Shanks, unlike here, the decree stated that the =
trial=20
court was awarding a percentage of the total retirement =
benefits,=20
not just the community portion of the retirement benefits. =
Id. at=20
445; see Reiss, 118 S.W.3d at 444. Here, the=20
language of the decree provides that Brenda is entitled to receive =
"[o]ne-half (1/2) of the Houston Firemen's Relief and Retirement =
Fund=20
standing in the name of THOMAS E. GAINOUS." Nevertheless, when =
construed=20
in the context of the entire decree, it is unreasonable to =
conclude that=20
this language awards Brenda an interest in the entirety of =
Thomas's=20
retirement benefits, including that portion representing his =
separate=20
property. The decree's structure and plain language, from =
beginning to=20
end, evidence an intent to divide only the couple's community =
property.=20
This construction is also consistent with Texas law at the time of =
the=20
Gainouses' divorce. See Eggemeyer v. Eggemeyer, 554 =
S.W.2d 137,=20
142 (Tex. 1977) (holding that both Texas Constitution and Family =
Code=20
prohibit a court from divesting spouses of separate property). To=20
interpret the decree as Reiss instructs us to do is =
inconsistent=20
with the law prevailing at the time of the decree's entry and =
gives effect=20
to one isolated sentence over the construction of the decree as a=20
whole. The decree,=20
when read in its entirety, unambiguously awards Brenda one-half of =
only=20
the community portion of Thomas's retirement benefits. =
Accordingly, I=20
concur only with the judgment. George C.=20
Hanks, Jr. Panel=20
consists of Justices Taft, Keyes, and Hanks. Justice=20
Keyes, concurring. Justice=20
Hanks, concurring in the=20
judgment.