                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-17-00254-CV
                              ____________________

                       SANDRA KAY EMBESI, Appellant

                                          V.

                   CHARLES RAY HALL, Appellee
__________________________________________________________________

                On Appeal from the 279th District Court
                        Jefferson County, Texas
                     Trial Cause No. F-204,290-A
__________________________________________________________________

                           MEMORANDUM OPINION

      In her sole issue on appeal, appellant Sandra Kay Embesi complains that the

trial court abused its discretion by denying her petition for post-divorce division of

marital property that Embesi contends was not divided in the agreed final decree of

divorce. We affirm the trial court’s order.

                                  BACKGROUND

      Embesi and Charles Ray Hall were married in 1974 and were originally

divorced in November 2008, when the trial court entered an agreed final decree of

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divorce that divided the parties’ marital property, including Hall’s retirement

benefits. Embesi filed a bill of review, asking the trial court to reopen the case and

enter a post-divorce property settlement agreement. In 2013, the trial court granted

the bill of review and vacated the November 2008 final decree of divorce for the

purpose of effectuating the intent of the parties’ new settlement agreement. In

September 2013, the trial court conducted a hearing and entered a second final

decree of divorce incorporating the parties’ post-divorce property settlement

agreement, in which Hall agreed to pay Embesi an additional $36,000 in monthly

installments of $3000, as well as a lump sum payment of $150,000 from his

ExxonMobil Savings Plan. During the hearing, Embesi testified that she understood

the terms of the parties’ settlement agreement and that it was a fair and equitable

division of the parties’ marital estate. The trial court entered a QDRO that was

approved by the parties and which awarded Embesi $150,000 from Hall’s

ExxonMobil Savings Plan.

      In March 2014, Embesi filed another petition for post-divorce division of

property, claiming that she was entitled to a division of Hall’s ExxonMobil Pension

Plan. Hall answered Embesi’s petition and argued that the division of the marital

estate had been litigated, settled, and confirmed, and that Embesi was not entitled to

any further relief. In May 2015, Hall filed a traditional motion for summary

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judgment, arguing that Embesi’s post-divorce attempt to divide retirement funds was

barred by res judicata. The trial court denied Hall’s motion for summary judgment.

      In June 2017, the trial court conducted a hearing, during which Embesi’s

counsel requested that the trial court award Embesi a disproportionate division of

Hall’s pension plan, which Embesi’s counsel argued was an undivided asset that

Hall failed to disclose. Hall’s counsel argued that the purpose of the prior bill of

review was to consider his savings plan and pension plan, and both were considered

in the 2013 divorce decree. Hall testified that he had a savings plan and a pension

plan with ExxonMobil before he retired in February 2016. Hall testified that when

he retired, he had approximately $400,000 in his savings plan and $900,000 in his

pension plan. Hall explained that he rolled over the money in his savings plan and

pension plan into an account at an accounting firm. According to Hall, he had already

paid Embesi the $150,000 that he had agreed to pay out of his savings plan when he

rolled the money over.

      Hall testified that Embesi was not awarded any portion of the $900,000 in his

pension plan in the 2013 divorce decree. Hall explained that based on his

understanding of the settlement agreement, he was awarded his entire pension plan.

According to Hall, Embesi knew that he had a savings plan and a pension plan, and

the parties had agreed that his payment of $186,000 to Embesi would settle any

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disputes regarding both plans. Hall testified that Embesi had agreed to have her

portion of the retirement benefits paid out in cash from the savings plan, instead of

having to wait to receive money from the pension plan.

      Hall further testified that from 2008 to 2010, he paid Embesi $4000 per month.

Hall explained that he had agreed to the bill of review to allow the court to award

Embesi more money even though the dispute concerning his retirement arose after

any statute of limitations would have run, because Hall thought it was the right thing

to do. Hall testified that Embesi was represented by counsel, and he thought that she

was happy with the parties’ 2013 settlement agreement.

      Tim Satre, a certified financial planner and a certified divorce financial

analyst, testified that the savings plan referenced in the 2013 divorce decree is not

the ExxonMobil savings plan. According to Satre, the divorce decree does not

specifically address either of Hall’s pensions that are referenced on Hall’s statement

of benefits from ExxonMobil. Satre testified that he has prepared QDROs for

ExxonMobil, and he has had many clients whose spouses have not known about the

details of their retirement plans. Satre explained that details concerning the

ExxonMobil retirement plan are “sketchy sometimes.” Satre testified that Hall has a

pension plan and a defined benefit plan with ExxonMobil. Satre explained that

because the employee does not contribute to a defined benefit plan, it would not be

                                          4
reflected on a W-2 or a tax return. On cross-examination, Satre testified that he did

not know the terms of the parties’ settlement agreement. Satre further testified that

the parties’ 2013 divorce decree does not mention the pension plan, but the 2008

divorce decree awards the pension plan to Hall.

      Embesi testified that she wanted the trial court to divide the pension plan and

that she never agreed to give up her rights or to award the pension plan to Hall.

Embesi testified that Hall told her he had a retirement account, but Hall did not

disclose the details. According to Embesi, Hall led her to believe that he had one

retirement account, and Hall never disclosed that he had a pension plan. Embesi

testified that Hall has not been truthful regarding his assets. On cross-examination,

Embesi agreed that an email from her attorney, who represented her in negotiating

the 2013 settlement agreement, indicated that her attorney knew that Hall had two

separate retirement accounts, a pension and a savings plan, prior to the parties

entering the agreement and proving up the divorce decree. However, Embesi

claimed that her attorney never told her about the pension plan, and that she first

learned about the pension plan when she took the 2013 divorce decree to the

accounting firm that Hall used. According to Embesi, the pension plan was not

divided in the 2013 divorce decree. However, Embesi agreed that if her attorney

knew about the pension plan before she signed the divorce decree, Hall did not

                                         5
conceal the pension plan. The trial court noted that the 2008 divorce decree alluded

to the pension plan, and that Embesi accepted the settlement amount in the parties’

2013 negotiated settlement agreement, making the issue one of contract.

         The trial court denied Embesi’s petition for post-divorce division of property.

Embesi requested findings of fact and conclusions of law. The trial court found that

Hall’s pension plan was divided in the 2013 divorce decree and concluded that

Embesi’s petition for post-divorce division of property was denied. Embesi

appealed.

                                      ANALYSIS

         In one issue on appeal, Embesi complains that the trial court abused its

discretion by denying her petition for post-divorce division of property. Embesi

maintains that she proved that Hall’s pension plan was not divided by the 2013

divorce decree. According to Embesi, Satre’s testimony shows that, based on the

language of the 2013 divorce decree, the pension plan was not awarded to either

party.

         The Texas Family Code provides a procedure for the trial court to divide

property not divided or awarded to a spouse in a final decree of divorce. Tex. Fam.

Code Ann. §§ 9.201, 9.203 (West 2006). However, a trial court may not “amend,

modify, alter, or change the division of property made or approved in the decree of

                                            6
divorce . . . .” Id. § 9.007(a) (West Supp. 2017). We review a trial court’s ruling on

a post-divorce division of property under an abuse of discretion standard. See In re

Marriage of Ford, 435 S.W.3d 347, 350 (Tex. App.—Texarkana 2014, no pet.). A

trial court abuses its discretion when it acts without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). In determining whether the trial court abused its discretion, we view

the evidence in the light most favorable to the trial court’s decision and indulge every

legal presumption in favor of its ruling. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.

App.—Houston [1st Dist.] 1993, writ denied.).

      In a bench trial, the trial court is the sole judge of the credibility of witnesses.

Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). The trial court’s finding that Hall’s pension plan was divided in the divorce

decree is subject to a legal sufficiency review under the same standards applied in

reviewing evidence supporting a jury’s answer. See id. We review the trial court’s

conclusion that Embesi is not entitled to post-divorce division of Hall’s pension plan

de novo. See id. Because Embesi had the burden to prove that Hall’s pension plan

was not addressed or divided in the 2013 agreed divorce decree, she had to supply

evidence establishing her contention as a matter of law. See id. at 349 (citing Sterner

v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). Absent such a showing, no

                                           7
ground exists for reversing the trial court’s ruling denying Embesi’s petition for post-

divorce division of property. See id.

      A marital property agreement that is incorporated into a final decree of divorce

is treated as a contract, and its construction is governed by the law of contracts. Allen

v. Allen, 717 S.W.2d 311, 313 (Tex. 1986). When construing an agreement incident

to divorce, a trial court must look at the intent of the parties as manifested in the

written agreement. Bishop v. Bishop, 74 S.W.3d 877, 879-80 (Tex. App.—San

Antonio 2002, no pet.). The determination of whether a divorce decree is ambiguous

is a question of law, and if the decree is subject to more than one interpretation, the

trial court reviews the record and the decree to aid in correctly interpreting the

decree. Brown, 236 S.W.3d at 350.

      The record shows that both parties presented evidence concerning the

negotiation of the 2013 property settlement agreement and that the trial court

considered the divorce decree and the circumstances surrounding the formation of

the property settlement agreement in finding that Hall’s pension plan was divided in

the 2013 divorce decree. Although Embesi claimed that she did not know that the

pension plan existed when she agreed to the 2013 divorce decree and that Hall had

defrauded her by failing to disclose the pension plan, the record shows that Embesi’s

counsel referenced and considered the pension plan during negotiations. The record

                                           8
shows that the trial court considered the divorce decree and the record, including

emails regarding the negotiation of the property settlement agreement, in

determining the intent of the parties as manifested in the divorce decree. See Brown,

236 S.W.3d at 350; Bishop, 74 S.W.3d at 879-80. Because the record shows that

Hall’s retirement plan and pension plan were considered during the negotiation of

the parties’ property settlement agreement, the trial court could have reasonably

concluded that the parties intended that Embesi would not be awarded any of the

pension plan and that Hall would be awarded all of it. See Brown, 236 S.W.3d at

350.

       Because Embesi failed to prove that Hall’s pension plan was not addressed or

divided in the 2013 divorce decree, no ground exists for reversing the trial court’s

ruling. See id. Viewing the evidence in a light most favorable to the trial court’s

ruling, we conclude that the trial court did not abuse its discretion by denying

Embesi’s petition for post-divorce division of property and finding that Hall’s

pension plan was divided in the 2013 divorce decree. See Ford, 435 S.W.3d at 350;

Holley, 864 S.W.2d at 706. We overrule Embesi’s sole issue and affirm the trial

court’s ruling.

       AFFIRMED.
                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice
                                         9
Submitted on June 26, 2018
Opinion Delivered July 26, 2018

Before McKeithen, C.J., Horton and Johnson, JJ.




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