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                                  MEMORANDUM OPINION

                                         No. 04-08-00516-CV

                                            Pablo TORRES,
                                               Appellant

                                                   v.

                                           Adriana SIERRA,
                                               Appellee

                        From the County Court at Law No. 1, Webb County, Texas
                                 Trial Court No. 2006-CVH-002204-C1
                            Honorable Alvino Ben Morales, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: February 11, 2009

AFFIRMED

           Pablo Torres appeals the trial court’s order granting Adriana Sierra’s motion for contempt,

sanctions, and attorneys fees. Torres contends that the trial court’s order erroneously altered the

division of property made in the parties’ final decree of divorce and divested him of title to property

that he was awarded in the decree. We affirm the trial court’s order.
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                                           BACKGROUND

       In December of 2006, Sierra filed a petition for divorce, and Torres subsequently filed a

counter-petition for divorce. On April 2, 2007, the parties filed an agreement incident to the divorce

containing a division of the marital estate. With regard to the property in question, the agreement

provided:

               Assets to Pablo Torres
               The husband, Pablo Torres, is to receive the following as his sole and separate
       property, and shall own, possess, and enjoy that property, and Adriana Sierra
       partitions, quitclaims, assigns and conveys to Pablo Torres the following property:
               H-1. An undivided 100 percent interest in the following property, subject
       to the Operating Trust Agreement for Jointly Owned Property after Divorce signed
       in accordance with the terms of this agreement (upon payment of $70,000.00 to
       petitioner). Upon payment, including but not limited to any escrow funds, prepaid
       insurance, utility deposits, keys, house plans, home security access and code, garage
       door opener, warranties and service contracts, and title and closing documents:
               Legal Description:      Lot 39, Block 03, Sonterra De San Isidro Unit III,
                                       Webb County, Texas
               Otherwise known as: 1512 Serene Drive, Laredo, Texas 78045

The agreement contemplated the sale of the property by awarding Sierra $70,000.00 to be paid by

Torres “on the day of divorce or closing whichever is later.” The final divorce decree approved the

agreement and incorporated it by reference; however, the decree required all of the terms of the

agreement, including the payment of monies from one party to another, to be performed by October

2, 2007, possibly due to the length of time that had already lapsed between the date the agreement

was signed (April 2, 2007) and the date the decree was signed (September 11, 2007).

       On October 31, 2007, Sierra filed a motion for contempt, sanctions, and attorneys fees,

asserting that Torres had failed to pay her the $70,000.00 awarded to her. Sierra requested that the

trial court order the sale of the property at 1512 Serene Drive (the “Property”) as a sanction so that

Sierra could receive her $70,000.00 to the extent the sales proceeds yielded that amount. The order



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granting Sierra’s motion, which was signed on March 27, 2008, stated that the case was announced

on the court’s docket on February 13, 2008 and was subsequently set for status on March 10, 2008,

and again on March 25, 2008. The clerk’s record contains a notice of reset on the court’s own

motion, stating that the case was reset to March 10, 2008, on the “STATUS AS TO BANK LOAN

TO THE RESPONDENT PABLO TORRES.” The notice further stated that if “no bank loan [was]

approved for the Respondent Pablo Torres; then” the court would hear Sierra’s motion on March 25,

2008.

        The trial court’s order awards Sierra the Property “for the purpose of placing the home on

the real estate market for immediate sale.” The order further awards Sierra the first $95,000.00 from

the sales proceeds, which included the $70,000.00 payment plus sanctions. After the payment to

Sierra, a portion of the sales proceeds was ordered to be used to pay two outstanding loans, and the

remaining balance of the sales proceeds was ordered to be paid to Torres. Torres timely appealed

the trial court’s order.

                                            DISCUSSION

        Although Torres agrees that a trial court has the authority to enforce the division of property

made in a decree, Torres contends that the trial court’s order in this case erroneously amended,

modified, altered, or changed the division of property in the decree in violation of section 9.007(a)

of the Texas Family Code. Compare TEX . FAM . CODE ANN . § 9.006 (Vernon 2006) (authorizing

trial court to enter orders enforcing, assisting in implementation of, or clarifying divorce decree),

with TEX . FAM . CODE ANN . § 9.007(a) (Vernon 2006) (prohibiting trial court from amending,

modifying, altering, or changing decree). Torres argues that the trial court’s order divested him of

the title to the Property. We disagree.



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       The Texas Family Code allows the parties to a divorce to enter into a written agreement

concerning the division of property. TEX . FAM . CODE ANN . § 7.006(a) (Vernon 2006). When an

agreement executed by the parties is incorporated into a divorce decree, the parties are bound by the

agreement which is interpreted under general contract law. Schwartz v. Schwartz, 247 S.W.3d 804,

806 (Tex. App.—Dallas 2008, no pet.); Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App.—San

Antonio 2002, no pet.). When construing such an agreement, the court must look to the parties’

intentions as they are manifested in the written agreement. Bishop, 74 S.W.3d at 879-80.

       Torres argues that the divorce decree awarded him 100 percent ownership of the Property;

therefore, the subsequent order awarding the Property to Sierra and transferring title to her was an

alteration of or change to the decree. Sierra counters that the award of ownership to Torres was

conditioned upon his timely payment of $70,000.00 to Sierra.

       In interpreting whether the payment to Sierra was a condition precedent to Torres’s right to

ownership of the Property, we look to general principles of contract interpretation. Progressive

County Mut. Ins. Co. v. Trevino, 202 S.W.3d 811, 814 (Tex. App.—San Antonio 2006, pet. denied).

Whether a certain contractual provision contains a condition precedent “must be gathered from the

contract as a whole and from the intent of the parties.” Id. at 815.

       In this case, the award of the Property was expressly made subject to “the Operating Trust

Agreement for Jointly Owned Property after Divorce signed in accordance with the terms of this

agreement (upon payment of $70,000.00 to petitioner).” Although it does not appear that an

Operating Trust Agreement was signed, this provision of the parties’ agreement contemplates the

joint ownership of the Property until Sierra was paid. Moreover, the agreement expressly conditions

Torres’s right to receive the title and closing documents to the Property upon his payment of the



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$70,000.000. See Roberts v. Clark, 188 S.W.3d 204, 210-11 (Tex. App.—Tyler 2002, pet. denied)

(concluding payment was a condition precedent to delivery of title documents). Because Torres

failed to satisfy the condition precedent, title to the Property never vested in him. See Continental

Oil Co. v. Lane Wood & Co., 443 S.W.2d 698, 702 (Tex. 1969) (noting where delivery is

conditioned on payment, title does not pass absent the payment); Weekley Homes, Inc. v. Jennings,

936 S.W.2d 16, 18 (Tex. App.—San Antonio 1996, writ denied) (noting party not entitled to compel

rights absent fulfillment of condition precedent). Accordingly, the trial court’s order awarding the

Property to Sierra for the sole purpose of placing the home on the real estate market for immediate

sale did not change or alter the decree or divest Torres of his interest in the Property.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                        Phylis J. Speedlin, Justice




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