            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                            NO. 03-01-00241-CV



                                         Robert Ansley, Appellant

                                                       v.

                                       Marcia Lee Ansley, Appellee




     FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
           NO. 98-543-F277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING




                  This is an appeal from a post-divorce domestic-relations order granting appellee Marcia

Lee Ansley a percentage of appellant Robert. Ansley=s employee stock options awarded to him after the

couple entered into a mediated settlement agreement, but before the final decree of divorce was signed.

Robert1 complains that the post-divorce order was an impermissible modification of the agreed property

division contained in the final divorce decree rather than a clarification of that decree. We disagree and hold

that the order clarified an ambiguity in the final judgment and enforced the basic division of property agreed

to by the parties in their mediated settlement agreement. We will therefore affirm the district court=s order.




                                       FACTUAL BACKGROUND

        1
            For clarity, we will use the parties= first names.
                 One of the employee benefits provided by Robert=s employer, Dell Computer Corporation,

is an employee stock-option plan in which employees are Agranted@ options to purchase Dell stock in the

future at a specified price. Under the plan, employees must become Avested@ in their stock options before

they can Aexercise@ or liquidate them.2

                 The parties signed a mediated settlement agreement on February 17, 2000. A two-page

handwritten exhibit attached to the agreement set out certain terms of the property division, which included

an equal division of Robert=s employee benefits.3 The agreement was predicated on the mediation date,

February 17, 2000, rather than the as-yet-to-be-determined date of divorce. The agreement also

anticipated a qualified domestic-relations order (AQDRO@) addressing the distribution of the options. See

Tex. Fam. Code Ann. ' 9.101-.103, .105 (West 1998). The agreed divorce decree ultimately signed by

the district court approves and incorporates the parties= agreement but set out the division of property in

greater detail. The decree also refers to the employment benefits existing on February 17 and those existing




        2
          The plan=s method or formula for determining plan vesting is not in the record. Moreover,
neither the plan nor a description or summary of plan benefits is in the record.
        3
            Item six of the agreement states, AQDRO 50% of 401k and 50% of stock options see exhibit B.@




                                                     2
after that date.4 The divorce hearing, however, was not held until seven months later, on September 6, and

the decree was signed that same day.

                In the interim, Dell granted Robert a significant number of additional stock options. These

additional options were not specifically addressed by the mediated settlement agreement or the divorce

decree. The record does not reflect when Robert became aware of these benefits, or whether Marcia was

aware that Robert received the additional options. Nothing in the record indicates that Robert advised

either Marcia or the district court that the community=s assets had increased since the parties= settlement

agreement.

                The September 6 AAgreed Final Decree of Divorce@ provides the following description of

AProperty to Husband@:


        IT IS ORDERED AND DECREED that the husband, ROBERT LESTER ANSLEY, is
        awarded the following as his sole and separate property. . . :
                ....

        H-7.    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 . . . employee stock option plan, . . . or other benefits
                existing by reason of the husband=s past, present, or future employment, except as
                provided in H-14, infra.
                ....


        4
          The property division in the decree sometimes refers to February 17 as the Adate of divorce@ and
presumes that a qualified domestic-relations order effectuating the division would be rendered on the same
date as the divorce decree; the QDRO was signed April 20, 2001.




                                                     3
        H-14 . . . SAVE AND EXCEPT for an undivided one-half (2) interest in and to all Dell
             Computer Corporation stock options granted to Respondent and vested before
             February 17, 2000, awarded to Petitioner, MARCIA LEE ANSLEY,
             hereinabove, any and 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,
             pension plan, or like benefit program existing by reason of Respondent=s past,
             present, or future employment, including, but not limited to, the following:
                ....

                b.     One-half (2) of Dell Computer Corporation stock options granted to
                       Respondent, ROBERT LESTER ANSLEY, and vested before February 17,
                       2000.
                ....

                d.     Any stock options granted and/or vested to Respondent by Dell Computer
                       Corporation from and after the date of divorce, February 17, 2000.


The section of the decree entitled, AProperty to Wife@ states in relevant part:


        IT IS ORDERED AND DECREED that the wife, MARCIA LEE ANSLEY, is awarded
        the following as her sole and separate property, . . .
                ....

        W-7.     . . . and one-half (2) of Dell Computer Corporation stock options granted to
                Respondent, ROBERT LESTER ANSLEY, and vested before February 17,
                2000.


As it turned out, February 17 was not the date of the divorce, and no qualified domestic-relations order was

signed contemporaneously with the decree.

                The order subject to this appeal was signed April 20, 2001 and is entitled ADomestic

Relations Order and Assignment-Stock Options.@ It states in relevant part:

                                                     4
        This Order and Assignment is an integral part of the Agreed Final Decree of Divorce signed
        in this case on September 6, 2000. . . . In compliance with those requirements, if any, the
        parties agree, and based on such agreement the Court specifies, finds and IT IS
        ORDERED AND DECREED as follows:

        1.     This Order and Assignment assigns a portion of the benefits payable under the plan to
               [Marcia] in recognition of [Marcia]=s marital rights in [Robert]=s stock options payable
               and/or granted under the Plan.
               ....

        4.     As part of a just and right division of the estate of the parties, [Marcia] is hereby
               allocated all right, title and interest to the following Dell Computer Corporation Stock
               Options, together with all stock splits, stock dividends, reverse splits, derivatives,
               increases and other rights and privilege in connection therewith, previously awarded to
               [Robert] by Dell Computer Corporation the following Options as specified within this
               spreadsheet:


The spreadsheet attached to the order reflects four separate grants of stock options to Robert:


        A. July 7, 1998                        Grant Number 00024023

        B.     November 2, 1998                Grant Number 00027067

        C. August 22, 2000                     Grant Number          33134

        D. August 22, 2000                     Grant Number          42134


The grants provide for varying amounts of unexercised5 options:


        A. July 7, 1998                          928 Outstanding Options



        5
             Robert had previously exercised a portion of the first two grants.


                                                                5
        B.   November 2, 1988                 320 Outstanding Options

        C. August 22, 2000                   5920 Outstanding Options

        D. August 22, 2000                   5920 Outstanding Options


All options contained in a particular grant do not vest at the same time. The spreadsheet reflects that the

first two grants contain vested options,6 which are apportioned 16 and 40, respectively, to Marcia. The

award of vested stock options is not being challenged by Robert. However, none of the options in the latter

two grants have vested.

                The order also awards Marcia nonvested stock options from the four stock option grants.

She is awarded nonvested stock options according to the following vesting schedule:


        A. 7/17/98 Grant                     116 of the 7/17/2001 vesting
                                             116 of the 7/17/2002 vesting
                                             116 of the 7/17/2003 vesting
        B.   11/2/98 Grant                    40 of the 11/2/2001 vesting
                                              40 of the 11/2/2002 vesting
                                              40 of the 11/2/2003 vesting

        C. 8/22/00 Grant (#33134)            592 of the 8/22/2001 vesting
                                             592 of the 8/22/2002 vesting
                                             592 of the 8/22/2003 vesting
                                             592 of the 8/22/2004 vesting
                                             592 of the 8/22/2005 vesting

        D. 8/22/00 Grant (#42134)            592 of the 8/22/2003 vesting
                                             592 of the 8/22/2004 vesting
                                             592 of the 8/22/2005 vesting

        6
         The spreadsheet categorizes the stock options into Aexercisable@ and Anon-exercisable@
groups. We assume that Aexercisable@ means Avested@ and we will refer to them as Avested.@


                                                            6
                                                592 of the 8/22/2006 vesting
                                                592 of the 8/22/2007 vesting


We calculate that this order ultimately awards Marcia, after all options have vested, approximately one-half

of Robert=s outstanding stock options granted by Dell.

                   Robert does not complain about the award to Marcia of the nonvested options from the first

two grants, July 17, 1998 and November 2, 1998. He complains only about the award to Marcia of

options from the August 22, 2000 grants. These grants did not exist when the case was mediated in

February 2000. They were, however, in existence when the decree was signed on September 6, 2000,

although it does not appear that either Marcia or the district court was aware of them.


                                                DISCUSSION

                   This dispute arises primarily because of the passage of time between the parties= mediated

settlement agreement and their final divorce decree. The divorce decree was not signed until seven months

after mediation.


Standard of Review

                   As appellant, Robert has the burden of bringing forth a sufficient record to show reversible

error. Tex. R. App. P. 50(d). Robert did not present a reporter=s record of the proceedings giving rise to

the April 20, 2001 order being appealed. He did not request, and the district court did not file, findings of

fact and conclusions of law. Where there is no reporter=s record and no findings of fact and conclusions of

law, the appellate court presumes all facts necessary to support the judgment. Guthrie v. Nat=l Homes


                                                       7
Corp., 394 S.W.2d 494, 495 (Tex. 1965); Scott v. Schneider Estate Trust, 783 S.W.2d 26, 28 (Tex.

App.CAustin 1990, no writ).


Interpretation of Consent Judgments

                 An agreed divorce decree implementing an agreed property division is controlled by the

rules of construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 312 (Tex. 1986);

Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex. App.CAustin 1995, no writ). If a written agreement can

be given a certain or definite legal interpretation,7 it is not ambiguous and it will be construed according to its

plain language. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Thompson v. Thompson, 500

S.W.2d 203, 207 (Tex. Civ. App.CDallas 1973, no writ) (courts are Abound by the express stated intent of

the parties as manifested within the four corners of the instrument itself@). If there is no ambiguity, the court

must give literal effect to the decree as written. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990).

                 Whether an ambiguity exists in an agreement is a question of law for the court. Nat=l Union

Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Hurley v. Hurley, 960 S.W.2d 287,


        7
           A judgment must be sufficiently definite and certain to define and protect the rights of the litigants
or provide a definite means to ascertain their rights so that ministerial officers may execute the judgment
without having to ascertain the facts not stated therein. Kimsey v. Kimsey, 965 S.W.2d 690, 695 (Tex.
App.CEl Paso 1998, pet. denied). A divorce decree must set forth the terms of compliance in clear,
specific, and unambiguous terms so that the parties can readily know exactly what duties are imposed on
them. Id.




                                                        8
288 (Tex. App.CHouston [1st Dist.] 1997, no pet.). A contract is ambiguous if its meaning is uncertain or

it is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393. Conflicting

interpretations or expectations of the parties regarding the instrument do not an ambiguity make. Forbau v.

Aenta Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994).

                If a true ambiguity does exist, the court must reform the contract to correct the mutual

mistake of the parties or to reflect the true intent of the parties. Allen, 717 S.W.2d at 313; Dechon v.

Dechon, 909 S.W.2d 950, 956 (Tex. App.CEl Paso 1995, no writ). Existence of an ambiguity creates a

fact question and authorizes consideration of parol evidence. Wilson v. Uzzel, 953 S.W.2d 384, 388 (Tex.

App.CEl Paso 1997, no pet.); Soto v. Soto, 936 S.W.2d 338, 341 (Tex. App.CEl Paso 1996, no writ).8

                Contractual ambiguities can be patent or latent. Nat=l Union Fire Ins., 907 S.W.2d at

520; Gulf Metals Indus., Inc. v. Chicago Ins. Co., 993 S.W.2d 800, 804 (Tex. App.CAustin 1999, pet.

denied). As the term suggests, Apatent@ ambiguities are apparent from the face of the document itself. Nat=l

Union, 907 S.W.2d at 520. Latent ambiguities arise when an otherwise unambiguous contract becomes

uncertain when applied to the subject-matter with which it deals. Friendswood Dev. Co. v. McDade +

Co., 926 S.W.2d 280, 282-83 (Tex. 1996); see also Zeolla v. Zeolla, 15 S.W.3d 239, 242 (Tex.

App.CHouston [14th Dist.] 2000, pet. denied) (applying test to agreed judgments). A latent ambiguity can

arise when a divorce decree=s disposition of retirement benefits becomes uncertain in light of subsequent or

extraneous events not contemplated by the decree. See, e.g., Zeolla, 15 S.W.3d at 242. If a contract is


        8
         Parol evidence is only admissible after an ambiguity is found to exist; it cannot be used to create
the ambiguity. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 n.1 (Tex. 1996); Nat=l
Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520-21 (Tex. 1995).

                                                     9
ambiguous, its interpretation becomes a fact issue and the rules of construction are then applied. Coker,

650 S.W.2d at 394. The disputed language is construed in the context of the entire agreement in light of the

circumstances present when the agreement was formed to find the true intention of the parties. Id.


Clarification vs. Modification of the Judgment

                 The Texas Family Code authorizes subsequent actions to either enforce a prior decree, Tex.

Fam. Code Ann. '' 9.006, 9.007 (West 1998), or to clarify an ambiguous decree. Id. ' 9.008. A court

Amay render further orders to enforce the division of property made in the decree of divorce . . . to assist in

the implementation of or to clarify the prior order.@ Id. ' 9.006(a). Furthermore, a party Amay petition a

court to render a qualified domestic relations order . . . if the court that rendered a final decree of divorce . .

. dividing property under this chapter did not provide a qualified domestic relations order . . . .@ Id. '

9.103. But, a court may not amend, modify, alter, or change Athe division of property made or approved in

the decree,@ Id. ' 9.007(a), and an Aorder to enforce the division is limited to an order to assist in the

implementation of or to clarify the prior order and may not alter or change the substantive division of

property.@ Id. Upon a finding Athat the original form of the division of property is not specific enough to be

enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce

compliance with the original division of property.@ Id. ' 9.008(b).

                 Thus, enforcement is limited to aiding or clarifying the prior decree. Dechon, 909 S.W.2d

at 956 (citing Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex. App.CEl Paso 1993, writ denied)). If the

court=s plenary power has expired, it may not substantially change the allocation of property in the original

decree. See Reinauer v. Reinauer, 946 S.W.2d 853, 861 (Tex. App.CAmarillo 1997, writ denied).

                                                       10
Further, clarification requires a finding, express or implied, that the original form of the division of property

lacks sufficient specificity to be enforced by contempt. Alford v. Alford, 40 S.W.2d 187, 189 (Tex.

App.CTexarkana 2001, no pet.); Tex. Fam. Code Ann. ' 9.008(b). If a divorce decree is unambiguous,

the court has no authority to alter or modify the original disposition of property. Haworth v. Haworth, 795

S.W.2d 296, 300 (Tex. App.CHouston [14th Dist.] 1990, no writ).

                 Robert asserts that the April 20, 2001 order improperly changed the parties= agreed

division of their marital estate contained in the original divorce decree. He argues that all stock options

received after February 17 were originally awarded to him in the decree. The subsequent order, he claims,

improperly divests him of half of the post-February 17 stock options. He bases his claim on paragraphs H-

7 and H-14 of the decree, which he argues apportioned to him all of the post-February 17 options. He

points out that paragraph W-7 expressly awarded Marcia only a portion of the stock options granted to him

before February 17, 2000. He argues that the effect of paragraph W-7 is to award him all of the stock

options granted after that date.


Is the Original Decree Ambiguous?

                 Robert=s complaint raises two questionsCwhether the original decree is ambiguous, and, if

so, whether the April 20 order merely construed or reconciled the decree or impermissibly changed the

substantive division of property. First, we determine whether an ambiguity exists regarding the division of

the stock options.

                 Paragraph W-7 awards Marcia one-half of Robert=s stock options vested before February

17. Paragraph H-7 of the decree awards Robert all of his employment benefits except for those awarded

                                                       11
to Marcia. Paragraph H-14, describes the employment benefits excepted from those awarded Robert due

to their being set aside to Marcia. Paragraph H-14, however, is problematic because it does not clearly

and definitively describe who is to receive the post-February 17 options. On the one hand, it begins by

limiting the property awarded to Marcia to fifty percent of the pre-February 17 options; on the other hand,

it ends by excepting from Robert=s property any post-February 17 stock options. It appears that a drafting

error occurred midway through the paragraph, making the entire provision incoherent. The exact wording

of paragraphs H-7 and H-14 is crucial.

                Paragraph H-7 initially awards Robert all options, but then excepts from the award options

described in paragraph H-14. Paragraph H-14 excepts from Robert=s award Aan undivided one-half (2)

interest in . . . options granted . . . and vested before February 17, 2000@ due to their being awarded to

Marcia. The paragraph goes on to describe Marcia=s award to include one-half of the options Agranted to

[Robert] and vested before February 17, 2000@ and A[a]ny stock options granted and/or vested to [Robert]

. . . from and after the date of divorce, February 17, 2000.@ The paragraphs could be read as awarding

either Robert or Marcia all of the Aoptions granted . . . after . . . February 17, 2000.@ The provision is

patently ambiguous, and, in light of subsequent events, latently ambiguous. See Gulf Metals Indus., 993

S.W.2d at 804. As a result, it fell to the district court to construe the paragraphs in the context of the

parties= entire settlement agreement and in light of the circumstances present when the agreement was

reached. See Coker , 650 S.W.2d at 394.

                The district court=s order implicitly found an ambiguity existed. We hold as a matter of law

that paragraphs H-7 and H-14, when read together, are ambiguous with regard to the disposition of the


                                                    12
post-February 17, 2000 options. The next task is to construe the decree to effectuate the intent of the

parties without substantively changing the property division.


What was the Intent of the Parties?

                We must determine the intent of the parties regarding the post-February 17 options. See id.

Robert points to paragraphs W-7 and H-7 for proof that the parties intended him to receive those options.

 These paragraphs are general grants of the options, but are based on a categorization and division

contained in the ambiguous paragraph H-14. We believe that the best source for ascertaining the parties=

intent is the mediated settlement agreement itself.9

                The mediated settlement agreement, which was incorporated by reference into the final

decree, provides in relevant part:


                              MEDIATED SETTLEMENT AGREEMENT

                The undersigned parties to this agreement agree to compromise and settle the
        claims and controversies between them. The parties wish to avoid potentially protracted
        and costly litigation.

        1.   Terms of the settlement are set out on Exhibit A attached to this agreement.
             ....

        "    QDRO 50 % of 401k and 50 % stock options see exhibit B




        9
           Although the decree expressly provides that it controls the agreement, the decree is ambiguous,
therefore, we must necessarily look to the agreement.


                                                       13
Attached to the agreement are six pages of stock-option-account documentation. These pages appear to

have been computer generated on February 15, 2000, and contain information about the stock-option

grants dated July 17, 1998 and November 2, 1998. They are labeled Aex. B@ and above that redacted

notation is handwritten, AExhibit >A= Page 5.@ There is no exhibit AB@ attached to the agreement.10

                 Interpreting the mediated settlement agreement in conjunction with the attached pages, we

conclude that the parties intended that Marcia would receive fifty percent of Robert=s stock options, and, at

the time of the agreement, those stock options consisted of what was reflected in the referenced pages. The

equal division of the employment benefits was the heart of the parties= agreement. The referenced pages

appear to have been attached for informational purposes. The agreement does not say that Marcia is to

receive fifty percent of whatever is reflected in the referenced pages. It provides that Marcia is to receive

fifty percent of the stock options, and then it references pages showing the status of those stock options.

The question is what emphasis did the parties place on these attached pages. Were they intended to define

the extent of the stock options divided in the agreement or were they intended to be merely informational?

                 The mediated settlement agreement itself makes no mention of the February 17 date in

connection with the division of options. The agreement sets forth a simple, equal division of the employment

benefits. The first mention of February 17, 2000 in connection with the division of options is the divorce

decree. The agreement was signed by both parties and their counsel, personally. The decree was signed

by the parties and by Robert=s attorney, who also signed for Marcia=s attorney, Awith permission.@ We hold


        10
             Clearly, these are the pages referred to in the agreement quoted above.



                                                     14
that the district court was correct in concluding that the pages attached to the mediated settlement

agreement were not part of the substantive division of the options. The parties= agreement is clear as to the

proportions of the division, fifty-fifty. Had the parties intended for less than all of the stock options existing

at the time of divorce to be evenly split, they could have included restrictive language to that effect in the

agreement.

                 We find the court of appeals= opinion in Zeolla instructive. There, the parties= agreed

property division and decree provided that the wife was entitled to a percentage of the husband=s retirement

benefits when the husband retired at age sixty-five. The husband, however, retired at age fifty-seven and

refused to pay benefits to his ex-wife because he did not retire at the age specified in the decree. The court

held that his early retirement revealed a latent ambiguity in the decree and made the decree so unspecific

that it could not be enforced through contempt. Zeolla, 15 S.W.3d at 242. The latent ambiguity authorized

the court to clarify the decree. See Tex. Fam. Code Ann.' 9.008(b).

                 The court held that the wife was entitled to receive benefits despite the early retirement and

it adjusted the benefits to the wife proportionately to reflect the early retirement. Id. The appellate court

rejected the husband=s complaint that the new order was an impermissible modification of the final decree.

Id. The new order was found to be a valid clarification of the original decree because it did not alter the

essential proportional division of the retirement benefits. Id. The court reasoned that the new order did not

attach new legal consequences to previous events and did not impair any vested rights. Id. at 243.

                 Both here and in Zeolla, events subsequent to the parties= agreement rendered their divorce

decree ambiguous. In both cases, the decree attempted to divide property according to conditions that


                                                       15
never occurred. Zeolla involved a discrepancy in the decree about the date of the employee-spouse=s

retirement which gave rise to an ambiguity about the division of retirement benefits. The case now before us

revolves around a decree that attempted to divide employee benefits according to an ambiguous formula

based on an unrealized Adate of divorce.@ In both cases, the lower court resolved the ambiguity by returning

to the heart of the parties= agreement and implementing the basic percentage division agreed to by the

parties. There is considerable wisdom in resolving the ambiguity in favor of the basic division initially agreed

to by the parties.

                 We hold that the district court properly resolved the ambiguity in this case by effectuating an

equal division of the stock options. Based on the facts and circumstances in this case, the district court

correctly reconciled the ambiguity without altering the substantive division of property in the original decree.


                                              CONCLUSION

                 We overrule Robert=s issue on appeal and affirm the district court=s order.




                                                   Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: August 30, 2002

Do Not Publish

                                                      16
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