                                    NO. 07-04-0366-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL C

                                    NOVEMBER 4, 2005

                           ______________________________


              IN THE MATTER OF THE MARRIAGE OF MISTY JEAN HAMMIT
                AND KENNETH BRIT HAMMIT AND IN THE INTEREST OF
                KENNETH DAKOTA HAMMIT, HALEY ELIZABETH HAMMIT,
                        AND TORI ANNE HAMMIT, CHILDREN
                         _________________________________

           FROM THE 316TH DISTRICT COURT OF HUTCHINSON COUNTY;

                   NO. 33,669; HONORABLE JOHN LAGRONE, JUDGE

                           _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                                 MEMORANDUM OPINION


      Appellant Misty Jean Hammit challenges an order clarifying her final decree of

divorce,1 as it concerned certain real estate awarded to appellee Kenneth Brit Hammit.

Presenting a single point of error, Misty contends the clarifying order signed by the trial




      1
          The order under review is the post trial order signed on June 3, 2004.
court changed the actual substantive division of property made by the decree of divorce.

Based on the rationale expressed below, we affirm.


       Among other provisions, the decree of divorce signed May 24, 2001, awarded the

homestead of the parties to Kenneth but imposed an encumbrance on the homestead,

located at 403 S. Holmes in Fritch, Texas, to secure Kenneth’s payment of an owelty of

partition of $7,629.69 to Misty payable in monthly installments of $109.49 and commencing

May 15, 2001. Following a hearing on Kenneth’s motion for clarification, the trial court

signed an order on July 1, 2003, clarifying the decree of divorce.2 After reciting that the

provisions of the original decree regarding payment of the $7,629.69 to Misty and the

award of the homestead were ambiguous, unclear, and contradictory and were not specific

enough to be enforceable by contempt, the July 1 order partially modified the terms of the

original decree as follows:


               The encumbrance is to secure the payment of the debt of Respondent
       in favor of Petitioner of $7629.69, resulting from the award of the homestead
       in this divorce proceeding. As a result of prior child support offsets for 19
       months of child support, beginning in April 2001 and ending in October,
       2002, with said offsets totaling $2080.31, the encumbrance now totals
       $5549.38. This debt shall be the subject of a promissory note executed by
       Kenneth Brit Hammit payable to Misty Jean Lane f/k/a Misty Jean Hammit
       which shall bear interest at the rate of 6% per year with interest beginning on
       October 23, 2002. The note shall be for a term of 60 months with the first
       payment being due and payable on or about August 1, 2003 and a like
       payment due on the first day of each month thereafter until paid in full.
       There will be no penalty for early pay-off. The promissory note will be


       2
         The motion for clarification and the order signed July 1, 2003, make no reference
or citation to Family Code sections 9.001, 9.006(b), or 9.008.

                                             2
       secured by a deed of trust executed by Kenneth Brit Hammit in favor of Misty
       Jean Lane f/k/a Misty Jean Hammit, Beneficiary, on the property described
       above. At the time of the execution of the promissory note and deed of trust
       by Kenneth Brit Hammit, Misty Jean Lane f/k/a Misty Jean Hammit will also
       execute a Special Warranty Deed on the property described above
       conveying all her interests in said real property to Kenneth Brit Hammit,
       subject to her Deed of Trust. Upon full satisfaction of the promissory note
       described above, Misty Jean Lane f/k/a Misty Jean Hammit will immediately
       execute a Release of the Deed of Trust described above.
             IT IS FURTHER ORDERED that Kenneth Brit Hammit shall sell the
       property within five years from the date of the decree. Upon such sale,
       Kenneth Brit Hammit shall pay the balance of the debt owed on said
       property.


       Although neither party gave notice of appeal of the July 1 order,3 on September 22,

2003, Kenneth filed his first amended motion for clarification by which he sought further

clarification of the original decree as it related to the homestead and the owelty of partition

payable to Misty. Kenneth’s amended motion did not make any reference to or seek any

modification or clarification of the original decree as it was modified by the July 1 order.

The clerk’s record does not show any service on Misty or a response or answer by Misty.

However, according to the reporter’s record, Kenneth and Misty both appeared in person

and by counsel on October 13, 2003, and presented testimony regarding the relief sought

by Kenneth’s amended motion. After taking the matter under advisement, on June 3,

2004, the trial court signed a second order clarifying the final decree of divorce. No

findings of fact or conclusions of law were requested or filed.




       3
       According to the clerk’s record, the order modifying the original decree signed July
1 was not set aside or modified by the trial court.

                                              3
       By her sole point of error, Misty contends the trial court erred in granting Kenneth’s

motion to clarify the decree of divorce. We disagree. Misty’s notice of appeal was directed

to the trial court order signed June 3, 2004. Because a notice of appeal directed to the

order clarifying the final decree of divorce signed July 1, 2003, was never filed, the order

signed in 2003 was final at the time of the hearing on October 13, 2003, and on June 3,

2004 when the second order was signed. See State ex rel. Latty v. Owens, 907 S.W.2d

484, 485 (Tex. 1995).


       Misty focuses her argument on the provision of the original decree stating that upon

the sale of the homestead, the balance of the sale proceeds should be divided between

Kenneth and Misty equally. Contending that the provision was not ambiguous, and citing

sections 9.007(a) and 9.008(b) of the Family Code, Misty contends the trial court erred in

excising that part of the decree. Although the order signed July 1, 2003, made textual

changes to the provision regarding the sale of the homestead, the June 3, 2004 order

made no changes. As material here, the June 3 order now under review provides as

follows:


       The debt was paid within five years. Therefore, the Court finds that the
       owelty lien has been extinguished and full title vested in Brit Hammit.
              Further, the Court finds that the contingency that the real property be
       sold after five years if the debt has not been paid has been extinguished and
       is a nullity because of payment within five years.
              The parties are ORDERED to execute all necessary documents
       evidencing that full title has vested in Brit Hammit including but not limited to
       a Quitclaim Deed from Misty Jean Hammit to Brit Hammit and a Release of


                                              4
        Lien by Misty Hammit in favor of Brit Hammit within 30 days of this order
        becoming final.


        Moreover, because a lien is but only an incident of a debt or obligation, the trial court

did not err in concluding that payment in full of the owelty debt to Misty extinguished the

lien. Bank of Woodson v. Hibbitts, 626 S.W.2d 133, 136 (Tex.App.–Eastland 1981, writ

ref’d n.r.e.).


        Where, as here, the record does not contain findings of fact or conclusions of law,

the judgment will be affirmed if it was proper under any legal theory supported by the

record. Garcia v. Mireles, 14 S.W.3d 839, 842 (Tex.App.–Amarillo 2000, no pet.).

Because we presume on appeal that the action of the trial court was justified and the

burden of proof is on the party asserting error, Misty’s sole point of error is overruled.


        Accordingly, the trial court’s order is affirmed.



                                                    Don H. Reavis
                                                      Justice


Quinn, C.J., concurring.

Hancock, J., concurring.




                                                5
                                   NO. 07-04-0366-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  NOVEMBER 4, 2005

                         ______________________________


           IN THE MATTER OF THE MARRIAGE OF MISTY JEAN HAMMIT
              AND KENNETH BRIT HAMMIT AND IN THE INTEREST OF
             KENNETH DAKOTA HAMMIT, HALEY ELIZABETH HAMMIT,
                      AND TORI ANNE HAMMIT, CHILDREN
                     _________________________________

          FROM THE 316TH DISTRICT COURT OF HUTCHINSON COUNTY;

                   NO. 33,669; HON. JOHN LAGRONE, PRESIDING
                        _______________________________

                                Concurring Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

      I concur in the result reached by Justice Reavis but write separately to explain my

reason for affirming the judgment.

      A trial court may clarify those parts of a prior judgment involving the division of the

marital estate. TEX . FAM . CODE ANN . §9.008(b) (Vernon 1998). However, the prior division

must either be ambiguous or sufficiently vague to render the division unsusceptible to

enforcement by contempt. Id.; McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 130 (Tex.

                                             6
App.–Houston [14th Dist.] 2004, no pet.); Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex.

App.–Corpus Christi 2000, no pet.).

       Next, whether a decree is ambiguous is a question of law which we review de novo.

McKnight, 132 S.W.3d at 131. Furthermore, in construing a judgment we apply the same

rules used to interpret written documents in general. Lone Star Cement Corp. v. Fair, 467

S.W.2d 402, 404-05 (Tex. 1971). This requires us to read the document as a whole, id.,

and attempt to determine from its words the intent of the trial court. Stettner Clinic, Inc. v.

Burns, 61 S.W.3d 16, 18-19 (Tex. App.–Amarillo 2000, no pet.). And, only if the judgment

or portions thereof are uncertain, doubtful or reasonably susceptible to more than one

meaning, when read as a whole, may we deem it ambiguous. McKnight v. Trogdon-

McKnight, 132 S.W.3d at 131.

       I readily concede that the judgment directs Kenneth Hammit to “sell the [community

homestead] within five years from the date of the decree . . . pay the balance of the debt

owed on said property and [divide] the balance ... between [himself] and Misty . . . Hammit

equally.” If that were the only provision dealing with the community homestead, I would

have to consider it clear and unambiguous. Simply put, Kenneth would be obligated to sell

the property and divide the net proceeds with his ex-wife. Yet, the judgment contains

another provision dealing with the very same parcel of realty and, the rules of construction

prevent us from ignoring it. The provision of which I speak grants the homestead to

Kenneth “as his sole and separate property” and divests Misty of “all right, title, interest,

and claim in” it. By according those words their plain meaning, one could not but


                                              7
reasonably conclude that between Kenneth and Misty, the latter no longer had any claim

to or interest in the property. So, what appeared in the original judgment were two

provisions concerning the homestead, one of which grants Misty an interest in it upon its

sale while the other divests her of all interest in it. Given this, I find the judgment to be

susceptible to two reasonable yet contradictory provisions and, therefore, ambiguous. So,

being ambiguous, the provisions were subject to clarification in accordance with the trial

court’s original intentions.

       Next, the record indicates that the trial court recalled little about why it disposed of

the homestead as it did. Nonetheless, the trial judge stated, of record, that his “main focus

on both sides was the children.” To this he added: “. . . normally I feel like the kids ought

to stay in the house because that’s the least destructive way to go. And I wouldn’t have

put any restrictions on when you have to sell it or pay it off because I feel like the kids need

to be in a familiar environment.” Though both Kenneth and Misty were awarded joint

conservatorship over their children, Kenneth was granted the power to establish their

primary residence. In other words, the children were to live with him. This, along with the

trial judge’s clarification order nullifying Kenneth’s obligation to sell the house and share

the proceeds with Misty, comports with the trial court’s stated intent to allow the children

to remain in the house without “any restrictions.”

       Additionally, locating within the section of the judgment entitled “Owelty of Partition”

the paragraph that obligated Kenneth to sell the house is also informative. Through the

other paragraphs under that section the trial court not only evinced its intent to place an


                                               8
encumbrance upon the homestead to secure payment of only the $7,629 in owelty but also

created such an encumbrance. It seems rather logical to infer that the trial court had an

interest in assuring that the owelty was paid, and requiring that it be paid through the sale

of the homestead (if not the debt was not otherwise satisfied) is a practical means of

effectuating that desire. And, this would explain why it ordered Kenneth to sell the house

in five years and pay the debts due Misty.

       So when I combine the reason for ordering the sale of the house with the trial court’s

customary intent to give the house (without any time restrictions) to the parent who keeps

the children, I conclude that the trial court originally intended to actually award the home

to Kenneth (who has the children) in fee subject to loss only upon his failure to pay the

owelty within five years. And, the clarifying order at issue fulfills that intent since Kenneth

paid the owelty. Thus, he need not sell the homestead and divide the proceeds with Misty.

       Accordingly, I too vote to affirm the trial court’s clarification order.



                                                   Brian Quinn
                                                   Chief Justice




                                               9
                                  NO. 07-04-0366-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 NOVEMBER 4, 2005

                         ______________________________

             IN THE MATTER OF THE MARRIAGE OF MISTY JEAN HAMMIT
               AND KENNETH BRIT HAMMIT AND IN THE INTEREST OF
               KENNETH DAKOTA HAMMIT, HALEY ELIZABETH HAMMIT,
                       AND TORI ANNE HAMMIT, CHILDREN
                       _________________________________

          FROM THE 316TH DISTRICT COURT OF HUTCHINSON COUNTY;

                 NO. 33,669; HONORABLE JOHN LAGRONE, JUDGE
                        _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                               CONCURRING OPINION


       I would concur with the results reached by Justice Reavis, but agree with the

reasoning as expressed by Chief Justice Quinn in holding that the two paragraphs at issue

are ambiguous and in need of clarification. I would, therefore, affirm the trial court’s

clarification.


                                         Mackey K. Hancock
                                             Justice

                                           10
