                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00329-CV


ROGER L. STIRLING                                                   APPELLANT

                                        V.

LAURA L. STIRLING                                                    APPELLEE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Roger L. Stirling perfected this appeal from a post-divorce

judgment partitioning his Hercules, Inc. pension plan. We will reverse and render

judgment in favor of Roger.

      Roger and Appellee Laura L. Stirling were married May 4, 1985, and

divorced December 8, 2008.         Both Roger and Laura were represented by


      1
       See Tex. R. App. P. 47.4.
counsel in their divorce. The ―Agreed Final Decree of Divorce‖ granting them a

divorce contains the following provision describing the pension plans that were

awarded to Roger:

             H-5. The 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, including but
      not limited to:

                    a.   Toray 401(k) Savings Plan

                    b.   CTS International 401(K) Plan

The decree similarly awarded all pension plans in Laura’s name to her. The

parties did not perfect any appeal.

      In October 2009, Laura filed a petition for post-divorce division of

community property, alleging that Roger’s pension plan with Hercules, Inc. had

not been divided by the parties’ divorce decree. The trial court held a hearing on

Laura’s petition for post-divorce division of community property2 and heard

testimony regarding the Hercules, Inc. pension plan. The record reflected that

Roger had worked for Hercules, Inc. for eleven years before the marriage and for


      2
        Laura also alleged that Roger had failed to disclose the existence of his
Hercules, Inc. pension plan and had thereby breached his fiduciary duty and had
committed actual and constructive fraud. Roger filed an answer denying these
claims and paid a jury fee. At the hearing on Laura’s motion for post-divorce
division of property, however, the parties agreed that the only issue before the
court was ―the simple division issue.‖


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sixteen years after the marriage and that Roger was entitled to a pension of

approximately $2,000 per month after he turned sixty years old. Laura testified

that no discovery was conducted in the divorce case and that she was unaware

of the Hercules, Inc. pension plan until she came across a manila envelope

marked ―Pension -- Hercules Pension‖ in a file cabinet in the home the couple

previously resided in together. The trial court signed a judgment awarding Laura

fifty percent of the community interest in Roger’s Hercules, Inc. pension plan

accruing from the date of marriage to the date of divorce; awarding Roger as his

separate property the amount accrued during the eleven years he worked at

Hercules, Inc. prior to the marriage; and ordering Roger to pay Laura’s attorney’s

fees of $2,364.73.

      At Roger’s request, the trial court issued the following findings of fact and

conclusions of law:

      1.    Findings of Fact

            Laura L. Stirling and Roger L. Stirling were divorced on or
      about December 8, 2008.

              After the divorce on or about December 8, 2008, Laura L.
      Stirling filed a Petition for Post Divorce Division of Community
      Property, on October 26, 2009, asking the Court to divide Roger L.
      Stirling’s Pension with Hercules, which was not divided in the
      divorce.

            This Court had continuing, exclusive jurisdiction of this case
      as a result of prior proceedings.

             After hearing the evidence and argument of counsel and the
      testimony of the parties on [March] 12, 2010, the Court determined
      that the pension with Hercules, Inc. had not been divided in the


                                        3
      divorce and that Petitioner, Laura L. Stirling was entitled to fifty-
      percent of the pension from the date of marriage, May 4, 1985,
      through the date of divorce, December 8, 2008.

      2.    Findings of Fact as Conclusions of Law

            Any finding of fact that is a conclusion of law shall be deemed
      a conclusion of law.

      3.    Conclusions of Law

            The Post-Divorce Petition to Divide Previously Undivided
      Property is in due form and contains all of the allegations as required
      by law.

            This Court has jurisdiction of the parties and the subject
      matter of this lawsuit.

           Roger L. Stirling’s previously undivided pension through
      Hercules, Inc. may be divided by this Court.

              Laura L. Stirling should be awarded fifty percent of Roger L.
      Stirling’s pension with Hercules, Inc. Pension Plan from the date of
      marriage, May 4, 1985 through the date of divorce, December 8,
      2008.

      In his sole issue, Roger argues that the unambiguous terms of the parties’

divorce decree divided the entire community estate and awarded the Hercules,

Inc. pension plan to him. Consequently, he argues that Laura’s collateral attack

on the divorce decree is barred by res judicata and that the trial court abused its

discretion by awarding attorney’s fees to Laura.

      ―Texas courts follow an established procedure for interpreting property

divisions in divorce decrees.‖   Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.

1997). Community property not awarded or partitioned by a divorce decree is

subject to later partition between the ex-spouses, who are considered joint


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tenants or tenants in common. Id. When the decree is not silent with respect to

the property in question, general rules regarding construction of judgments apply.

Id.   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. Id. That is, when an appeal is not perfected from a final divorce

decree, and that decree in fact unambiguously divides all community property,

then a subsequent claim for post-divorce division of community property is barred

by res judicata. See id.; see also Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.

1990) (explaining that res judicata applies to a final divorce decree to the same

extent that it applies to any other final judgment). Whether a divorce decree is

ambiguous is a question of law subject to de novo review. Shanks v. Treadway,

110 S.W.3d 444, 447 (Tex. 2003).

          Here, the parties’ agreed divorce decree unambiguously divides the entire

community estate, including the Hercules, Inc. pension plan.         The decree’s

language in section 15, provision H-5 dealing with Roger’s pension plans states

that it is meant to cover ―[t]he 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 . . . pension plan, . . . or other

benefits existing by reason of the husband’s past, present, or future employment

. . . .‖ The decree expressly declines any limitation of provision H-5 to only the

two plans listed, stating that it ―includ[es] but [is] not limited to‖ the two plans

listed.    Moreover, the decree awards both Laura and Roger their respective


                                          5
pension plans; it does not award Laura any portion of any of Roger’s pension

plans.       Thus, the decree indicates no intent that either party share in the

retirement plans existing in the other’s name. Reading the decree as a whole,

giving effect to the decree as a whole, as well as to the literal language used in

section H-5, the decree is unambiguous as to the disposition of the Hercules, Inc.

pension plan––it was awarded to Roger.3 See Wilde, 949 S.W.2d at 333 (holding

that court of appeals erred by giving conclusive effect to fact that decree

contained no express language of divestiture and that court of appeals should

have construed divorce decree as a whole to determine what the trial court

adjudicated from a fair reading of all of the judgment’s provisions); Appleton v.

Appleton, 76 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(holding decree unambiguously awarded stock purchase options to husband so

that wife’s subsequent post-divorce petition for division of this right was barred by

res judicata);4 Stephens v. Marlowe, 20 S.W.3d 250, 255 (Tex. App.—Texarkana



         3
        The trial court did not make a conclusion of law that the decree was
ambiguous. But to the extent that conclusion must be implied because the trial
court signed a post-divorce judgment partitioning the Hercules, Inc. pension plan,
we hold that it is erroneous as a matter of law. See, e.g., AMX Enters., L.L.P. v.
Master Realty Corp., 283 S.W.3d 506, 519 (Tex. App.—Fort Worth 2009, no pet.)
(op. on reh=g) (reviewing conclusion of law for legal correctness).
         4
       The Appleton court applied contract principles to the agreed decree in that
case. Id. at 85–86. The decree here contains express decretal language
concerning the division of the marital estate, so we apply judgment principles
instead of contract principles although the result would be the same either way.
See In re Coppock, 277 S.W.3d 417, 420 (Tex. 2009) (orig. proceeding)
(explaining that ―without decretal language making clear that a party is under

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2000, no pet.) (holding that divorce decree language awarding ―any and all sums‖

and ―any other rights‖ related to ex-wife’s pension plan to her was unambiguous

and that husband’s suit to partition was barred by res judicata); Archibald v.

Archibald, No. 01-08-00015-CV, 2009 WL 1562865, at *1–3 (Tex. App.—

Houston [1st Dist.] June 4, 2009, no pet.) (mem. op.) (holding that divorce decree

language awarding husband ―all sums . . . or other benefits existing by reason of

the husband’s past, present, or future employment‖ was not ambiguous and that

wife’s suit to partition overtime benefits subsequently awarded to husband in

class action was barred by res judicata); see also Jacobs v. Cude, 641 S.W.2d

258, 260 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (holding that

because the complained-of retirement benefits were included in the residuary

clause—which stated that any items or property not specifically set forth shall be

awarded as separate property—ex-wife’s attempt to relitigate the issue was

barred by res judicata). Because the Hercules, Inc. pension plan was disposed

of in the parties’ divorce decree––it was awarded to Roger––Laura’s claim for

post-divorce partition of that asset is barred. Accordingly, we sustain this portion

of Roger’s sole issue.

      In the second part of his sole issue, Roger argues that the award of

attorney’s fees to Laura was improper.         A trial court may award reasonable

attorney’s fees in a statutory suit to partition property that a court did not divide in

order, agreements incorporated into divorce decrees are enforced only as
contractual obligations‖).


                                           7
a divorce proceeding. See Tex. Fam. Code Ann. § 9.205 (West Supp. 2010).

Such an award of attorney’s fees is within the trial court’s sound discretion. See

Burgess v. Easley, 893 S.W.2d 87, 91–92 (Tex. App.—Dallas 1994, no writ).

      Because we have held that the Hercules, Inc. pension plan was expressly

and unambiguously awarded to Roger, leaving no pension plan for the trial court

to divide in a post-divorce action, no attorney’s fees are warranted. The trial

court abused its discretion by awarding attorney’s fees to Laura on a claim for

post-divorce partition of an asset that was unambiguously awarded to Roger in

the divorce decree. Cf. id. at 91–92 (holding that trial court did not abuse its

discretion by refusing to award attorney’s fees to ex-wife because property she

sought to have partitioned in post-divorce suit was not overlooked in divorce

action). We sustain this remaining portion of Roger’s sole issue.

      Having sustained Roger’s challenge to the trial court’s award to Laura of

fifty percent of the community property interest in Roger’s Hercules, Inc. pension

plan accruing from the date of marriage to the date of divorce, we reverse the

trial court’s judgment and render judgment that Laura take nothing on her claim

for post-divorce division of Roger’s Hercules, Inc. pension plan.     And having

sustained Roger’s claim that the trial court abused its discretion by awarding

attorney’s fees to Laura because she possessed no claim for partition of the

Hercules, Inc. pension plan, we reverse the trial court’s award of attorney’s fees




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to Laura and render judgment that Laura take nothing on her claim for attorney’s

fees.5


                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER, and GABRIEL, JJ.

DELIVERED: July 28, 2011




         5
       Although Roger requested attorney’s fees in his original answer, he does
not argue in his appellate brief that he is entitled to attorney’s fees or pray for
remand for consideration of any such claim. Therefore, we need not address it.
See Tex. R. App. P. 47.1.


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