Orr Archibald v. Archibald (Tex.App.- Houston [1st Dist.] Jun. 4, 2009)(Sharp)
(divorce decree not ambiguous as to division of husband's benefits;
attempt to reopen property
division issue fails)
AFFIRM TC JUDGMENT: Opinion by
Justice Sharp  
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00015-CV Aurore Hope Orr Archibald v. Larry Donald Archibald
Appeal from County Court at Law of Washington County
Trial Court Judge: Hon. Matthew Reue  

MEMORANDUM OPINION

     Appellant, Aurore Hope Archibald, appeals from the trial court’s take-nothing judgment
after it granted her former husband’s
no-evidence motion for summary judgment. In
three issues, Aurore argues that the trial court erred by finding that the divorce decree was
unambiguous and that she produced no evidence of any
community assets that were not
divided in the original divorce decree.

     We affirm.

Background

     After their divorce on March 19, 1998, Larry received a settlement of approximately
$208,637 for overtime benefits, which Larry earned from April 15, 1986, through October 8,
1999, while he worked for the City of Houston Fire Department. This 2004 settlement
resulted from a class action lawsuit brought under the Fair Labor Standards Act. The final
divorce decree, which was based on the Archibalds’ mediated agreement, included
residuary clauses relating to their employment. The divorce decree assigned the following,
among other property, to Larry.

H-5. All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other rights related to
any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option
plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other
benefits existing by reason of the husband’s past, present, or future employment.

     In 2006, Aurore filed a petition seeking division of property that she alleged was not
divided upon divorce, i.e., the overtime benefits. Larry filed a no-evidence motion for
summary judgment arguing that the residuary clause in the divorce decree disposed of
these benefits and that there was no property that was not divided in the divorce decree,
and therefore, Aurore’s petition was barred by res judicata. In response, Aurore provided
evidence of the settlement. She argued that the divorce decree used the word “benefits,”
which commonly means “fringe benefits” in the employment-law context, and therefore, the
divorce decree’s residuary clause did not apply to the settlement that Larry received. In
addition, Aurore argued that because this cause of action and the settlement were not
discussed during the mediation, the divorce decree should not be applied to the settlement
money. Holding the divorce decree was not ambiguous, the trial court granted the no-
evidence motion for summary judgment.

Standard of Review

     A no-evidence motion for summary judgment is essentially a directed verdict granted
before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). In general, a party seeking a no-evidence
summary judgment must assert that no evidence exists as to one or more of the essential
elements of the nonmovant’s claims on which the nonmovant would have the burden of proof
at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830,
834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements
on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the
challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be
sustained on appeal when (1) there is a complete absence of evidence of a vital fact, (2) the
court is barred by rules of law or of evidence from giving weight to the only evidence offered
by the nonmovant to prove a vital fact, (3) the evidence offered by the nonmovant to prove a
vital fact is no more than a scintilla, or (4) the nonmovant’s evidence conclusively establishes
the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.

Interpreting the Divorce Decree

     “Texas courts follow an established procedure for interpreting property divisions in
divorce decrees.” Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997). When a final divorce
decree fails to divide community property, the husband and wife become joint owners and
may later seek to partition the property. Busby v. Busby, 457 S.W.2d 551, 554–55 (Tex.
1970); accord Harrell v. Harrell, 692 S.W.2d 876, 876 (Tex. 1985). Where the decree is not
silent with respect to the property in question, we apply general rules regarding construction
of judgments. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); accord Wilde, 949 S.
W.2d at 332 (citing Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976)). We
construe the decree as a whole to harmonize and give effect to the entire decree. Shanks,
110 S.W.3d at 447; Constance, 544 S.W.2d at 660. “Thus, if the decree, when read as a
whole, is unambiguous as to the property’s disposition, the court must effectuate the order in
light of the literal language used.” Wilde, 949 S.W.2d at 332. However, if the decree is
ambiguous, the court must interpret the judgment by reviewing both the decree as a whole
and the record to ascertain the property’s disposition. Id. Whether a divorce decree is
ambiguous is a question of law subject to de novo review. Shanks, 110 S.W.3d at 447.

Divorce Decree is Not Ambiguous

     Aurore sought to partition money that Larry received after their divorce from a settlement
related to past-due overtime benefits, some of which were earned during their marriage.
The divorce decree provides:

H-5. All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other rights related to
any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option
plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other
benefits existing by reason of the husband’s past, present, or future employment. (Emphasis
added.)

     Construing the divorce decree literally, the money that Larry received as a settlement for
past due overtime benefits is a “sum” that “exist[ed] by reason of [Larry’s] past . . .
employment.” However, citing Acosta v. Acosta, 836 S.W.2d 652, 654 (Tex. App.—El Paso
1992, writ denied) and the Texas whistleblower law, Tex. Gov’t Code Ann. § 554.003(b)
(Vernon 2004), Aurore argues that the word “benefits” means “retirement benefits” or “fringe
benefits” and, therefore, the divorce decree is susceptible of more than one meaning and is
ambiguous.

     “Benefit” means: (1) an advantage or privilege; (2) profit or gain; and/or (3) financial
assistance that is received from an employer, insurance, or a public program (such as
social security) in time of sickness, disability, or unemployment. Black’s Law Dictionary,
150–51 (7th ed. 1999). Black’s Law Dictionary lists fringe benefit, general benefit,
pecuniary benefit, and special benefit as specific types of benefits. Id. The divorce decree
used a general word, benefits, which could encompass several different, specific types of
benefits; this does not make the divorce decree ambiguous. Furthermore, cases applying
the Fair Labor Standards Act, under which Larry sued for past-due overtime pay, refer to
overtime pay as “overtime benefits.” See, e.g., Icicle Seafoods, Inc. v. Worthington, 475 U.S.
709, 710, 106 S. Ct. 1527, 1528 (1986); Vela v. City of Houston, 276 F.3d 659, 671 n.17
(5th Cir. 2001) (citing Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521 (5th Cir.1999)).

     We hold that the divorce decree was not ambiguous and that it awarded the overtime
settlement to Larry.

No-Evidence Motion for Summary Judgment

     Larry filed a no-evidence motion for summary judgment arguing, essentially, that there
was no evidence of any assets not divided in the final divorce decree. In response to Larry’s
motion for summary judgment, Aurore presented evidence only regarding Larry’s overtime
pay settlement. In light of our holding that the divorce decree unambiguously assigned to
Larry the overtime benefits he recovered in the class-action lawsuit, we hold that Aurore did
not present any evidence of any community asset not divided in the divorce decree.
Because there was an absence of evidence of a vital fact, the trial court properly granted
Larry’s no-evidence motion for summary judgment and rendered final judgment in his favor.
See King Ranch, 118 S.W.3d at 751.

     We overrule all three of Aurore’s issues.

Conclusion

     We affirm the judgment of the trial court.

                                                        Jim Sharp

                                                        Justice

Panel consists of Chief Justice Radack and Justices Sharp and Taft.  

Justice Tim Taft, who retired from the First Court of Appeals on May 31, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on May 5, 2009.