                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00007-CV


JAMES CHAFIN                                                         APPELLANT

                                           V.

RICHARD G. ISBELL AND                                                APPELLEES
FAIRWAY INDEPENDENT
MORTGAGE CORPORATION


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         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                       MEMORANDUM OPINION1
                          ON REHEARING

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     Appellees   Richard   G.     Isbell    and    Fairway Independent   Mortgage

Corporation filed a motion for rehearing of our memorandum opinion issued

December 2, 2010. To the extent Appellees argue that this appeal should be




     1
      See Tex. R. App. P. 47.4.
remanded, we grant their motion for rehearing. We deny the remainder of the

motion.2

        On February 10, 2011, Appellant James Chafin filed a ―Motion to Amend

Judgment,‖ which we construe as a motion for rehearing, and a motion to extend

time to file the motion to amend judgment. We deny James‘s motion to extend

time to file the motion to amend.

        We withdraw our opinion and judgment dated December 2, 2010, and

substitute the following.

                                    I. INTRODUCTION

        The primary issue we address in this appeal concerns the construction of a

divorce decree and whether, as a matter of law, it did or did not divest James of

his interest in certain real property. In two issues, James argues that the trial

court erred by granting summary judgment for Appellees and by denying his

motion for summary judgment. We will reverse and render in part and remand in

part.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

        The trial court signed an ―Agreed Final Decree of Divorce‖ dissolving the

marriage of James and Kristine Rynetta Chafin on July 20, 2004. In dividing the

marital estate, the decree included a disposition of two residences owned by




        2
        We grant Appellant James Chafin‘s motion to extend time for filing reply
brief to Appellees‘ motion for rehearing.

                                       2
James and Kristin:     the ―Jenkins property‖ and the ―Osprey property.‖            The

decree stated the following in regard to the Jenkins property:

             IT IS ORDERED AND DECREED that the husband, [James],
      is awarded the following as his sole and separate property, and the
      wife is divested of all right, title, interest, and claim in and to that
      property:

            H-1. The following real property, 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:

            BEING LOT 62, IN BLOCK 209 OF THE COLONY NO.
            24, AN ADDITION TO THE CITY OF THE COLONY,
            DENTON COUNTY, TEXAS ACCORDING TO THE
            MAP THEREOF RECORDED IN CABINET C, PAGE
            200 OF THE MAP RECORDS OF DENTON COUNTY,
            TEXAS.

             This award to the husband is subject to payment of the sum of
      $10,000.00 to [Kristine] upon the sale of the property located at 5916
      Osprey Court, The Colony, Texas 75056 for her portion of equity in
      this real property, as set forth hereinbelow. [Emphasis added.]

The decree ordered James to pay ―[t]he balance due . . . on the promissory note

executed by [Kristine] and [James] and secured by Deed of Trust on the real

property awarded in this Decree to [James].‖

      Concerning the Osprey property, the decree stated the following:

            IT IS ORDERED AND DECREED that the wife, [Kristine], is
      awarded the following as her sole and separate property, and the
      husband is divested of all right, title, interest, and claim in and to that
      property:

             W-1. The use and benefit of the following real property, until it
      is sold as set forth hereinbelow:

            BEING LOT 1, BLOCK B, STEWART PENINSULA
            SOUTHSHORE PHASE 1, AN ADDITION TO THE
                                      3
            CITY OF THE COLONY, DENTON COUNTY, TEXAS
            ACCORDING TO THE MAP THEREOF RECORDED IN
            THE MAP RECORDS OF DENTON COUNTY, TEXAS
            [Emphasis added.]

The decree ordered Kristine to pay ―[t]he monthly payments (until the property is

sold) on the promissory note executed by [Kristine] and [James] payable to

Ameriquest Mortgage and secured by deed of trust on the real property located

at 5916 Osprey Court, The Colony, Texas 75056.‖

      In addition to dividing the Jenkins property and Osprey property, the

decree included a section entitled ―Provisions Dealing with Sale of Residence,‖

which ordered the sale of the Osprey property pursuant to the following terms

and conditions:

      1.    The parties shall list the property with a duly licensed real
      estate broker having sales experience in the area where the
      property is located . . . .

      2.    The property shall be sold for a price that is mutually
      agreeable to [Kristine] and [James]. If [Kristine] and [James] are
      unable to agree on a sales price, on the application of either party,
      the property shall be sold under terms and conditions determined by
      a court-appointed receiver.

      3.     [Kristine] shall continue to make all payments of principal,
      interest, taxes, and insurance on the property during the pendency
      of the sale, and [Kristine] shall have the exclusive right to enjoy the
      use and possession of the premises until closing. All maintenance
      and repairs necessary to keep the property in its present condition
      shall be paid one-half by [Kristine] and one-half by [James].

      4.    The net sales proceeds . . . shall be distributed as follows:

            a.      [Kristine‘s] one-half shall be distributed outright to
            [Kristine].



                                    4
            b.     [James‘s] one-half shall be distributed in the following
            order:

                   i.     Payment to [Kristine] in the amount of $10,000.00
                   for her portion of equity in the [Jenkins property].3

                   ii.  Remaining balance to [James].            [Emphasis
                   added.]

      According to James‘s original petition, William and Ramona Bauerly

purportedly purchased the Osprey property from Kristine in March 2005. James

alleged that ―[a]lthough [he] was an owner of the [Osprey property] at the time of

the sale, he was wrongfully excluded from the closing and his name is not on the

deed to the Bauerlys.‖ Appellees state that ―[i]n connection with the sale of the

Osprey Property to Bauerly, a copy of the agreed divorce decree was recorded in

the Deed Records of Denton County, Texas as evidence that the title to the

Osprey Property was vested in [Kristine].‖ In April 2007, Isbell purchased the

property from the Bauerlys, and Fairway provided the mortgage financing.

      In May 2009, James sued Appellees for a declaratory judgment and for a

partition of the Osprey property. He alleged that the divorce decree did not

divest him of his ownership interest and title to the Osprey property but, instead,

merely awarded Kristine the use and benefit of the property until it was sold.


      3
        The decree erroneously provided that Kristine was entitled to payment of
$10,000 for her equity in the Osprey property instead of the Jenkins property. As
pointed out by James, this was a drafting error because the portion of the decree
awarding James the Jenkins property is expressly conditioned on his payment to
Kristine of $10,000 upon the sale of the Osprey property for her equity in the
Jenkins property and section 4(a) provides that one-half of the net sales
proceeds are to be distributed to Kristine for her half share of the property.

                                    5
James averred that he owned an undivided one-half interest in the Osprey

property; that the Bauerlys could not have acquired a greater interest in the

Osprey property than that owned by Kristine; that the Bauerlys did not acquire his

one-half interest in the Osprey property; that neither Isbell nor Fairway

subsequently acquired interests in the Osprey property as innocent purchasers

without notice; and that Fairway‘s security interest in the Osprey property did not

encumber his undivided one-half interest in the property.4

      Appellees filed a motion for summary judgment on James‘s claims for

declaratory relief and for a partition. They argued that there was no genuine fact

issue that James did not have an interest in the Osprey property because the

divorce decree divested him of all right, title, and interest in and to the property.

James responded and filed a counter-motion for summary judgment, arguing that

he was entitled to summary judgment on his declaratory relief and partition

claims because the evidence established as a matter of law that the divorce

decree did not divest him of his interest in the Osprey property and, therefore,

that he remained the owner of an undivided one-half interest in the property. The

trial court granted Appellees‘ motion and denied James‘s motion. This appeal

followed.

                             III. STANDARD OF REVIEW

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

      4
       James alleged in the alternative that the divorce decree was ambiguous.

                                     6
material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo,

taking as true all evidence favorable to the nonmovant and indulging every

reasonable inference and resolving any doubts in the nonmovant‘s favor. Mann

Frankfort, 289 S.W.3d at 848; 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We

consider the evidence presented in the light most favorable to the nonmovant,

crediting evidence favorable to the nonmovant if reasonable jurors could and

disregarding evidence contrary to the nonmovant unless reasonable jurors could

not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable

and fair-minded jurors could differ in their conclusions in light of all of the

evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568

(Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

When both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties‘

summary judgment evidence and determine all questions presented.              Mann

Frankfort, 289 S.W.3d at 848. The reviewing court should render the judgment

that the trial court should have rendered. Id.

                          IV. DECLARATORY JUDGMENT

      In his first issue, James argues that the trial court erred by granting

Appellees summary judgment and by denying his motion for summary judgment

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on his declaratory judgment claim because the decree did not, as a matter of law,

operate to convey his interest in the Osprey property to Kristine but merely

awarded her the ―use and benefit‖ of the property until it was sold.          James

concedes that Kristine would have had the authority to sell the Osprey property

without his participation had the decree divested him of his interest in the

property, but he argues that because the decree, which is unambiguous, did not

divest him of his interest, he remained—and continues to be—a joint owner of

the property.   According to James, because he owns an undivided one-half

interest in the Osprey property, Isbell could not have mortgaged more than half of

the property (the half interest that the Bauerlys purchased from Kristine and that

Isbell purchased from the Bauerlys) and the lien asserted by Fairway is

ineffective as to his one-half interest in the property.

      Appellees agree that the sole issue on appeal is whether the divorce

decree, which they also agree is unambiguous, divested James of title to the

Osprey property. But unlike James, they argue that ―the divorce decree[,] when

read as a complete document, rather than isolating certain phrases, clearly

divests [James] of any title interest in the Osprey Property.‖ Appellees base this

argument primarily on the provision in the decree that addresses the division of

the Osprey property and provides that James is divested ―of all right, title,

interest, and claim in and to that property.‖ In light of this language, they argue

that ―[t]he decree . . . clearly states that [James] is ‗divested of all right, title,

interest‘ to the property.‖ Appellees also rely on the provisions in the decree

                                      8
making Kristine responsible for the monthly payments and ad valorem taxes on

the Osprey property and ordering James and Kristine to execute and exchange

special warranty deeds.

      An agreed divorce decree is interpreted according to the law of contracts.

Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); Chapman v. Abbot, 251 S.W.3d

612, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Soto v. Soto, 936

S.W.2d 338, 341 (Tex. App.—El Paso 1996, no writ). Our primary concern when

interpreting an agreement is to ascertain and give effect to the intent of the

parties as it is expressed in the agreement. Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983); Chapman, 251 S.W.3d at 616. We examine the writing as a

whole in an effort to harmonize and give effect to all the provisions so that none

will be rendered meaningless. Coker, 650 S.W.2d at 393. If the agreement can

be given a certain or definite legal meaning or interpretation, then it is not

ambiguous, and the court will construe it as a matter of law. Id.; Broesche v.

Jacobson, 218 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied). If the agreement is capable of more than one reasonable interpretation,

it is ambiguous. Broesche, 218 S.W.3d at 271.

      We agree with James and Appellees that the divorce decree is

unambiguous. We therefore construe the decree as a matter of law. See Coker,

650 S.W.2d at 393.

      The divorce decree orders and decrees that Kristine ―is awarded the

following as her sole and separate property‖ and that James ―is divested of all

                                    9
right, title, interest, and claim in and to that property.‖ [Emphasis added.] The

italicized language, ―the following‖ and ―that property,‖ is intended to refer to the

items of marital property listed immediately thereafter of which Kristine is

awarded as her separate property and James is divested of all right, title,

interest, and claim in and to. In the absence of identifying some property that

Kristine is awarded (and of which James is divested), the provision would have

no meaning or effect whatsoever. See Wilde v. Murchie, 949 S.W.2d 331, 333

(Tex. 1997) (cautioning that courts should not give conclusive effect to a

judgment‘s use or omission of commonly employed decretal words); Tex.

Workers’ Comp. Ins. Fund v. Lopez, 21 S.W.3d 358, 362 (Tex. App.—San

Antonio 2000, pet. denied).

      The first item of marital property that Kristine is awarded as her separate

property and that James is divested of all right, title, interest, and claim in and to

is the ―use and benefit‖ of the Osprey property ―until it is sold.‖ Although the

decree contains a legal description of the Osprey property, it clearly and

unambiguously provides that Kristine is awarded as her separate property only

the ―use and benefit‖ of the property. This particular provision simply does not

award Kristine full title to the property, including James‘s undivided one-half

interest. Appellees‘ interpretation of the decree—that Kristine was awarded title

to the Osprey property—unquestionably renders meaningless the decree‘s ―use

and benefit‖ language.




                                      10
      A divorce decree awarding a spouse the ―use and benefit‖ of a residence is

not unheard of or uncommon.          In 1915, the Austin court of civil appeals

considered whether a judgment awarding the wife the ―use and benefit‖ of the

homestead during her life divested the husband of his interest and title to the

property. Wade v. Wade, 180 S.W. 643, 643 (Tex. Civ. App.—Austin 1915, no

writ). The court concluded that granting the wife ―the use of the homestead

during her natural life is not, we think, equivalent to divesting [the husband] of his

title thereto. It has been expressly held . . . that the court, in divorce cases, has

the right to decree the use and benefit of the homestead to the wife during her

lifetime.‖ Id. at 644 (citations omitted). Other courts have reasoned similarly.

See Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 129 (Tex. 1991)

(reasoning that divorce decree awarding wife the ―use and occupancy of the

residence‖ created in her rights analogous to those of a life tenant and in

husband a future interest similar to that held by a vested remainderman);

Gilleland v. Meadows, 329 S.W.2d 485, 488 (Tex. Civ. App.—Waco 1959, no

writ) (stating that husband had an interest in property that was awarded to wife

for the use and benefit of her minor children); see also Bakken v. Bakken, 503

S.W.2d 315, 317 (Tex. Civ. App.—Dallas 1973, no writ) (reasoning that evidence

supported trial court‘s decree awarding wife residence for the use and benefit of

her and the minor children and the first $7,500 of the net proceeds from the

eventual sale of the residence).




                                      11
      Our construction is supported when we examine the decree as a whole, as

we must. See Coker, 650 S.W.2d at 393. The portion of the decree awarding

property to James contains the same decretal language preceding the

identification of property as that found in the part of the decree awarding Kristine

property. It states that James ―is awarded the following as his sole and separate

property‖ and that Kristine ―is divested of all right, title, interest, and claim in and

to that property.‖ However, unlike the decree‘s award to Kristine of the ―use and

benefit‖ of the Osprey property ―until it is sold,‖ the decree here provides that

James is awarded ―[t]he following real property,‖ including the title and closing

documents. There is no dispute that this contrasting language awarded James

the Jenkins property.

      Further, the portion of the decree setting out the terms and conditions of

the sale of the Osprey property supports our construction. The decree provides

that ―[t]he parties‖ shall list the property, that the property shall be sold for a price

that is ―mutually agreeable‖ to Kristine and James, and that Kristine shall have

the exclusive right to enjoy the ―use and possession‖ of the premises until

closing. The decree essentially reaffirms that Kristine is merely awarded the use

of the Osprey property instead of title, and it makes little sense, if any, to order

Kristine and James to jointly list the property and to mutually agree on a selling

price if the decree awarded Kristine title to the property.

      Contrary to Appellees‘ argument, the decree‘s award to Kristine of only the

―use and benefit‖ of the Osprey property does not conflict with its ordering her to

                                       12
make payments on the property and to pay the ad valorem taxes until the

property is sold. And we cannot conclude that the portion of the decree ordering

that James and Kristine exchange special warranty deeds in the forms attached

to the decree conflicts with our construction; there are no special warranty deeds

attached to the decree, and thus there are no special warranty deeds that are a

part of the summary judgment record.

      A case with strikingly similar facts and issues to this case is Starkey v.

Holoye, 536 S.W.2d 438, 439–40 (Tex. Civ. App.—Houston [14th Dist.] 1976,

writ ref‘d n.r.e.). In that case, Starkey and Safford‘s divorce decree awarded

marital property to Safford and the minor children ―for their use and benefit as

their home, until the youngest of said children shall have reached the age of

eighteen (18) years.‖ Id. at 440. After the divorce, Safford remarried, and he and

his wife later purported to convey the entire property to the Holoyes by a general

warranty deed, which was subject to a vendor‘s lien assigned to United Mortgage

Company of Texas. Id. Starkey sued Holoye and United Mortgage Company for

title to an undivided one-half interest in the property, for partition of the property

or the proceeds from the sale thereof, and, among other things, to have liens on

the property declared to be of no force and effect as against her interest in the

property. Id. at 439. The Holoyes filed a cross-action against Safford, and the

trial court ultimately denied Starkey‘s motion for summary judgment. Id. On

appeal, in addition to determining that the divorce decree awarded Safford a right




                                      13
to reimbursement for payments he made on the property after the divorce, the

court of civil appeals reasoned as follows:

               Since the property was not partitioned at the time of the
       divorce, [Safford] and [Starkey] became tenants in common or joint
       owners thereof, each owning an undivided one-half interest. With a
       deed on record showing the owners of the property to be [Safford
       and Starkey], the Holoyes could not have purchased from [Safford
       and his wife] any greater interest in the property than was owned by
       [Safford]: an undivided one-half interest. Upon their purchase of
       [Safford‘s] interest, the Holoyes became tenants in common with
       [Starkey]. [Starkey] presently owns an undivided one-half interest,
       subject to a claim by [Safford] for reimbursement for any payments
       made on the property after [the date of the divorce]. Since she is still
       a joint owner of the property, and absent any agreement not to
       partition, [Starkey‘s] right to partition is absolute under [the property
       code].

              Further, the Holoyes could not mortgage more of the property
       than they owned. Therefore, they could not mortgage [Starkey‘s]
       interest, and the lien asserted by United Mortgage Company is
       ineffective as to [Starkey‘s] one-half interest.

Id. at 441 (citations omitted).     Starkey is instructive on James‘s claims for

declaratory judgment and for partition.

       We have examined the divorce decree as a whole toward the end of

harmonizing and giving effect to all that is written. See Wilde, 949 S.W.2d at

333.   We hold that the trial court erred by granting Appellees‘ motion for

summary judgment on James‘s declaratory judgment claims and by denying

James‘s motion for summary judgment on that claim. The divorce decree did

not, as a matter of law, convey James‘s interest in the Osprey property to

Kristine, thus divesting him of title to the property; rather, the decree awarded

Kristine only the ―use and benefit‖ of the Osprey property until it was sold.

                                      14
Because the divorce decree did not convey James‘s interest in the Osprey

property to Kristine, James and Kristine became tenants in common, Kristine

could not have transferred James‘s interest in the Osprey property, Isbell could

not have acquired James‘s interest in the property when he purportedly

purchased the property from the Bauerlys, and Fairway‘s security interest could

not have encumbered James‘s interest.          See Starkey, 536 S.W.2d at 441.

Accordingly, we sustain James‘s first issue.

                                   V. PARTITION

      In his second issue, James argues that he has an absolute right as a joint

owner to a partition of the property.5 A joint owner or claimant of real property or

an interest in real property may compel a partition of the interest or the property

among the joint owners or claimants. Tex. Prop. Code Ann. § 23.001 (Vernon

2000). The right to partition has been characterized as ―absolute.‖ Grant v.

Clouser, 287 S.W.3d 914, 919 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

The rules of civil procedure set out a multi-step process for partition of real

estate. See Tex. R. Civ. P. 756–71; Long v. Spencer, 137 S.W.3d 923, 925–26

(Tex. App.—Dallas 2004, no pet.); Positive Feed, Inc. v. Wendt, Nos. 01-96-

00614-CV, 01-96-01250-CV, 1998 WL 43321, at *4 (Tex. App.—Houston [1st

Dist.] Feb. 5, 1998, pet. denied) (op. on reh‘g).




      5
       There is no evidence that James waived his right to partition the property.

                                      15
      In light of our holding above and the extent of the record, it appears that

the only part of the partition process that has occurred is the determination of the

parties‘ shares or interest in the Osprey property.       The trial court, not this

appellate court, is the appropriate venue to address the remaining, unresolved

aspects of James‘s claim for partition, whatever they may be. See Tex. R. Civ.

P. 760–71.

                                 VI. CONCLUSION

      Having sustained James‘s first issue, we reverse the trial court‘s judgment

and render judgment in favor of James on his claims for declaratory relief. We

remand James‘s claim for partition to the trial court for further proceedings

consistent with this memorandum opinion.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DELIVERED: March 17, 2011




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