Opinion issued May 17,=20 2007
For=20 The
ROBERT =
EZIRIKE,=20
Appellant EUCHARIA =
ANTHONY,=20
Appellee
On =
Appeal from the=20
328th District Court Fort =
Bend County,=20
Texas Trial =
Court Cause=20
No. 02-CV-123270
Appellant,=20
Robert Ezirike, appeals from the trial court's order awarding his =
ex-wife,=20
appellee Eucharia Anthony, a 50% interest in his 401k and =
retirement plan.=20
Eucharia filed this suit for post-divorce division of community =
property=20
alleging that Robert's 401k and retirement plan were community =
property=20
that were not divided in the original divorce decree. In four =
issues,=20
Robert contends that the trial court erred by (1) denying his =
motion for=20
summary judgment "on the basis of res judicata and/or collateral=20
estoppel"; (2) granting Eucharia an interest in his 401k and =
retirement=20
plan because the parties had signed a Rule 11 As the=20
parties were negotiating, the Office of the Attorney General held =
a Child=20
Support Review Meeting. Both parties and their counsel attended =
this=20
meeting on August 21, 2001. At the meeting, the parties entered =
into a=20
Rule 11 agreement. The agreement provides, 1. [Robert]=20
would waive all =
of his=20
claims for over-payments of child support including but not =
limited to the=20
$1750 shown on the AG's report, the $3280 paid by checks, and his =
$6000=20
tax-refund check paid to [Eucharia]; 2.=20
[Eucharia] shall complete her parenting class no later than =
Saturday=20
August 25, 2001. Otherwise a Motion for contempt would be promptly =
filed=20
as an Agreed Motion by both attorneys; 3.=20
[Eucharia] shall waive all claims she has to any outstanding =
payments due=20
to her by [Robert]; 4. The=20
parties agree that they shall adopt and incorporate the Child =
Support=20
Review Order prepared today by the AG's office; 5. The=20
parties agree that acting by and through their respective counsels =
they=20
shall file in Fort Bend County an Agreed Final Divorce Decree on =
Monday,=20
August 27 2001[; and]
6. This=20
represents the final Agreement between the parties and their =
counsels as=20
of today August 21, 2001. This Agreement is effective today August =
21,=20
2001. Thereafter,=20
the Fort Bend County district court entered an Agreed Final Decree =
of=20
Divorce on March 25, 2002. The divorce decree states, in pertinent =
part, IT IS=20
THEREFORE, ORDERED, ADJUDGED, AND DECREED that the marriage =
between ROBERT=20
O. EZIRIKE and EUCHARIA [Anthony], Petitioner and Respondent =
respectively,=20
is DISSOLVED and a DECREE OF DIVORCE IS GRANTED. . =
. . .=20
The Court=20
finds that the only community property accumulated by the parties =
is the=20
house located at 3118 Clyburn Court, Missouri City, Texas 77459. =
The said=20
property is awarded to Respondent, EUCHARIA [Anthony] as her =
separate=20
property. IT IS=20
ORDERED AND DECREED that Petitioner, Robert Ezirike's Toyota is =
awarded to=20
him, and Respondent's Lexus is awarded to her. All other personal =
effects=20
of the parties are awarded to the party having possession of=20
it. . =
. .=20
. The parties=20
hereby incorporate by reference the Rule 11 Agreement executed by =
them and=20
their counsels on August 21, 2001. Eucharia=20
filed a motion for new trial on April 10, 2002, asserting that =
there was=20
"other marital property which has not been distributed." The trial =
court=20
denied the motion for new trial, but ordered that the sentence, =
"All other=20
personal effects of the parties are awarded to the party having =
possession=20
of it," be stricken from the Agreed Final Decree of Divorce. =
On October=20
23, 2002, Eucharia filed an "Original Petition for Postdivorce =
Division of=20
Property." In this petition, Eucharia alleged, "The Final Decree =
of=20
Divorce failed to dispose of the parties' marital interest in 401K =
and=20
Retirement Fund." She also alleged, "This is a proceeding to =
divide=20
property not divided on divorce." Robert asserted in his answer =
that the=20
Agreed Final Decree of Divorce disposed of all the community =
property of=20
the parties and that Eucharia's suit was "an impermissible =
collateral=20
attack on the divorce decree." Robert moved for summary judgment =
on the=20
ground that Eucharia's suit was barred by the doctrines of res =
judicata=20
and collateral estoppel. The trial court denied Robert's motion =
for=20
summary judgment. After a trial to the bench, the trial court =
entered an=20
order stating that the 401k and retirement plan had not been =
divided in=20
the Agreed Final Decree of Divorce and awarding Eucharia a 50% =
interest in=20
each as of March 25, 2002. We overrule=20
Robert's first issue. In his=20
second issue, Robert contends that the trial court erred by =
dividing=20
community property that had already been divided in the Agreed =
Final=20
Decree of Divorce. Specifically, Robert asserts that the Rule 11 =
agreement=20
between the parties was a property settlement agreement and "its =
residuary=20
clause(s) provides for division of all of the parties['] community =
property including the not specifically mentioned appellant's 401k =
and=20
retirement benefits." Eucharia responds that the plain language of =
the=20
Rule 11 agreement shows that it was not a property settlement =
agreement.=20
The intent=20
of the parties to a Rule 11 agreement must be determined from the =
language=20
of the entire agreement. See Sitaram v. Aetna U.S. Healthcare =
of N.=20
Tex., Inc., 152 S.W.3d 817, 824 (Tex. App.--Texarkana 2004, =
no pet.).=20
Further, in construing a property settlement agreement =
incorporated into a=20
divorce decree, the rules of contract construction apply. Buys =
v.=20
Buys, 924 S.W.2d 369, 372 (Tex. 1996). A court must ascertain =
the=20
intent of the parties to a property settlement agreement from the =
language=20
of the entire instrument. In re Marriage of Smith, 115 =
S.W.3d=20
126, 132 (Tex. App.--Texarkana 2003, pet. denied) (citing =
Appleton v.=20
Appleton, 76 S.W.3d 78, 84 (Tex. App.--Houston [14th Dist.] =
2002, no=20
pet.)). Viewing the=20
agreement as a whole, it mentions only child support matters. It =
does not=20
mention any other property of the community estate. The agreement =
begins=20
by stating that Robert waived all claims for overpayments of child =
support. The only thing that Eucharia gave up was her claim to any =
"outstanding payments." The agreement does not mention any =
property and=20
does not attempt to divide the parties' community interest in any=20
property. The plain language of the agreement therefore does not =
show the=20
parties' intent to enter into an agreed property settlement as =
Robert=20
contends. See id. We hold that the property distribution =
ordered=20
by the trial court is not constrained by the Rule 11 =
agreement. We overrule=20
Robert's second issue. In his=20
third issue, Robert contends that the trial court erred by =
dividing the=20
401k plan because it is not a "personal effect." Robert contends =
that, in=20
filing this suit for the post-divorce division of community =
property,=20
Eucharia relied on the trial court's striking the following =
sentence from=20
the original decree: "All other personal effects of the parties =
are=20
awarded to the party having possession of it." Robert maintains =
that a=20
401k and retirement plan are not personal effects and, thus, "not =
subject=20
to post-divorce division as personal effects." Thus, Robert =
contends that=20
the trial court's striking of the language in the divorce decree =
relating=20
to personal effects does not authorize Eucharia to bring this suit =
for=20
post-divorce division of property. However,=20
the Family Code specifically provides for the post-divorce =
division of=20
community property that was not divided in a final decree of =
divorce.=20
See Tex. Fam. Code Ann. =A7 9.201 (Vernon 2006). "Either =
former=20
spouse may file a suit as provided by this subchapter to divide =
property=20
not divided or awarded to a spouse in a final decree of divorce or =
annulment." Id. =A7 9.201(a). "If a court of this state =
failed to=20
dispose of property subject to division in a final decree of =
divorce or=20
annulment even though the court had jurisdiction over the spouses =
or over=20
the property, the court shall divide the property in a manner that =
the=20
court deems just and right . . . ." Id. =A7 9.203(a) =
(Vernon=20
2006); see also Kadlecek v. Kadlecek, 93 S.W.3d 903, 909 =
(Tex.=20
App.--Austin 2002, no pet.) (acknowledging that sections 9.201 and =
9.203=20
allow for post-divorce division of community property not divided =
in=20
original decree). Here, Eucharia filed an "Original Petition for=20
Postdivorce Division of Property" specifically alleging, "The =
Final Decree=20
of Divorce failed to dispose of the parties' marital interest in =
401K and=20
Retirement Fund" and that "[t]his is a proceeding to divide =
property not=20
divided on divorce." The divorce=20
decree in this case did not make any mention of Robert's 401k or=20
retirement plan. The decree specifically states, "The Court finds =
that the=20
only community property accumulated by the parties is the =
house=20
located at 3118 Clyburn Court, Missouri City, Texas 77459." =
(Emphasis=20
added). In addition, as discussed above, the Rule 11 agreement =
that was=20
incorporated into the decree did not divide any community property =
of the=20
estate. Therefore, we conclude that this suit was properly brought =
for the=20
post-divorce division of community property not divided in the =
original=20
divorce decree. See Kadlecek, 93 S.W.3d at=20
909. We overrule=20
this portion of Robert's third issue. Robert=20
asserts that the trial court erred by determining the community =
interest=20
in the 401k and retirement plan based on a date of divorce of =
March 25,=20
2002. Robert contends that the parties were divorced on February =
12, 2001,=20
and thus the trial court should have determined the community =
interest in=20
the 401k and retirement plan as of that date. Judgment is=20
rendered "when the decision is officially announced orally in open =
court,=20
by memorandum filed with the clerk, or otherwise announced =
publicly."=20
In re R.A.H., 130 S.W.3d 68, 70 (Tex. 2004) (quoting =
Garza v.=20
Tex. Alcoholic Beverage Comm'n, 89 S.W.3d 1, 6 (Tex. 2002)).=20
Ordinarily, a docket sheet entry is not part of the record and =
"cannot=20
contradict or take the place of a written order or judgment." =
In re=20
Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. =
App.--Houston=20
[1st Dist.] 2006, orig. proceeding) (citing Smith v. =
McCorkle,=20
895 S.W.2d 692, 692 (Tex. 1995)). Generally, a docket sheet is=20
"insufficient to constitute a judgment or decree of the court."=20
Id. In some circumstances a docket sheet entry can be =
used as=20
evidence that the judgment was orally rendered on a certain date.=20
Id.; see also Tex. Fam. Code Ann. =A7 101.026 =
(Vernon=20
2002) (providing that, in suits affecting parent-child =
relationship,=20
"render" means trial court's pronouncement "orally in the presence =
of the=20
court reporter or in writing, including on the court's docket =
sheet or by=20
a separate written instrument"); Dearing v. Johnson, 947 =
S.W.2d=20
641, 643 (Tex. App.--Texarkana 1997, no writ) (holding that =
judge's=20
affidavit that he orally rendered judgment combined with docket =
sheet=20
entry, "divorce granted," amounted to rendition of judgment). =
However,=20
"'[w]hen there is a question concerning the date judgment was =
rendered,=20
the date the judgment was signed prevails over a conflicting =
docket sheet=20
entry.'" In re R.A.H., 130 S.W.3d at 69-70 (quoting=20
Garza, 89 S.W.3d at 7). Robert=20
contends that divorce was granted by the Harris County district =
court on=20
February 12, 2001, not by the Fort Bend County district court on =
March 25,=20
2002. The evidence that Robert cites in support of this is an =
entry on the=20
Harris County court's docket sheet stating, "Div[orce] granted =
J[udgment]=20
rendered Don't sign decree--Should be in Ft. Bend Cty." However, =
there is=20
no other evidence to support Robert's contention that the trial =
court=20
granted the divorce. There is no reporter's record from the =
proceedings on=20
February 12, 2001, to show that the Harris County court orally =
announced=20
its decision. See id. at 70. Further, it is undisputed =
that the=20
Fort Bend County district court signed a divorce decree on March =
25, 2002.=20
The signed, written decree "prevails over a conflicting docket =
sheet=20
entry." Id. at 69-70 (quoting Garza, 89 S.W.3d =
at 7);=20
see also Dearing, 947 S.W.2d at 643. Thus, the written =
decree=20
signed by the court on March 25, 2002, prevails over the prior =
docket=20
sheet entry. We hold that the trial court did not err by using =
March 25,=20
2002, as the date of divorce. We overrule=20
this portion of Robert's third issue. In his=20
fourth issue, Robert asserts that the trial court erred in =
construing the=20
$11,875 payment Robert made to Eucharia pursuant to the Rule 11 =
agreement=20
as a gift. Specifically, Robert contends that the testimony at =
trial=20
showed that he had no donative intent to make a gift and that =
Eucharia=20
acknowledged this fact during trial. Eucharia responds that Robert =
has not=20
paid for the preparation of a reporter's record and, thus, there =
is no=20
testimony for this Court to review. A =
gift from=20
one spouse to another is an enforceable transaction if (1) there =
was an=20
intent to make a gift, (2) the property was delivered, and (3) =
there was=20
an acceptance of the gift. Filipp v. Till, Nos. =
14-03-00647-CV,=20
14-03-00973-CV, 2006 WL 3258701, at *3 (Tex. App.--Houston [14th =
Dist.]=20
March 15, 2006, no pet.). Robert maintains that the evidence at =
trial=20
showed conclusively that the payment of $11,875 was not intended =
as a=20
gift. When, as here, there is neither a reporter's record nor =
findings of=20
fact, we presume that the trial court heard evidence sufficient to =
make=20
findings that support its judgment. Vickery v. Comm'n for =
Lawyer=20
Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th =
Dist.] 1999,=20
pet. denied). We therefore presume that the record supports a =
finding that=20
the $11,875 payment to Eucharia was intended as a gift. We overrule=20
Robert's fourth issue. We affirm the judgment of the =
trial=20
court. Elsa Alcala Justice Panel consists of Justices =
Taft,=20
Jennings, and Alcala.=20
1. Tex. R. Civ. P. 11.=20
2. There are no issues =
involving the=20
children or child support presented in this=20
appeal.