                                    NO. 07-05-0210-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                   FEBRUARY 28, 2007

                          ______________________________

              In the Matter of the Marriage of DOLORES MALACARA, JR.
                            and MARGARET RITA COLLINS
                        ________________________________

              FROM THE 181st DISTRICT COURT OF POTTER COUNTY;

                  NO. 39,720-B; HON. JOHN B. BOARD, PRESIDING
                        _______________________________

                                      Opinion
                          _______________________________

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

       Dolores Malacara, Jr. (Malacara) appeals from a final order awarding Margaret Rita

Collins (Collins) a portion of his retirement benefits in a post-divorce proceeding. Via three

issues, he contends that 1) the benefits had been awarded to him in the original divorce

decree and 2) attorney’s fees were improperly awarded to Collins. We affirm.

                                       Background

       Malacara and Collins were married on July 20, 1963. They divorced 24 years later

on November 13, 1987. During the marriage, however, Malacara began working for the

City of Amarillo. His employment with that entity spanned from January 1, 1964, to June

26, 1991, the latter date being the day he retired. Furthermore, he accrued retirement
benefits during that period as an employee of the City. Yet, those benefits were not

expressly mentioned in the property settlement executed by the two upon their divorce.

Once Malacara retired, he began receiving the benefits related thereto from the City. None

were shared with Collins, though. And, she did not petition the trial court for her portion

until 2004.

       Upon hearing her petition and the answer filed by Malacara, the trial court found that

approximately 87% retirement benefits accrued were property of the Collins/Malacara

community estate, they were not divided in the divorce decree or property settlement, and

Collins was entitled to a 43.56% share of them as a “co-tenant.” Therefore, an order was

entered partitioning the benefits, giving Collins her share, and awarding her $126,876.50

(as her share of the benefits she should have received from her ex-husband) plus

attorney’s fees.

       Can’t Do It

       Malacara’s first issue has various subparts. Through them he asserts that the trial

court could not partition the retirement benefits because they had already been divided via

the property settlement agreement executed incident to the divorce. So too does he argue

that even if it could effect a partition, it could not award Collins her share of the benefits that

had already been paid to him (i.e. he contends the trial court erred in awarding Collins a

portion of the benefits already paid to him or the $126,876.50). We overrule the issue.

       Can’t Because Property Is His

       Malacara initially invokes the second paragraph to section III of the settlement

document the parties executed incident to divorce. Through it, they agreed that Malacara

“shall own, possess, and enjoy, free from any claim of [Collins], the property listed in

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Schedule 2 of this agreement . . . .” The property described in Schedule 2 consisted of

“[a]ll personal property in [his] possession” plus a specified residence. According to

Malacara, the retirement benefits were in his possession because they had vested at the

time of the divorce. Assuming that the benefits had actually vested, we find the argument

unavailing.

       No one at bar disputes that the benefits were community property at the time of

divorce. The dispute simply involves who was to receive them once they became payable.

Given the wording utilized in schedule two, we cannot say that Malacara was to be the sole

recipient. This is so because settlement clauses encompassing property within the

“possession” of a spouse do not affect intangible property, that is, property not subject to

physical control or immediate enjoyment or disposition. Jackson v. Jackson, No. 05-01-

01719-CV, 2002 Tex. App. LEXIS 8051 (Tex. App.–Dallas November 13, 2002, no pet.) (not

designated for publication); Soto v. Soto, 936 S.W.2d 338, 343 (Tex. App.–El Paso 1996,

no writ); Ewing v. Ewing, 739 S.W.2d 470, 473 (Tex. App.–Corpus Christi 1987, no writ).

Choses-in-action or contract rights are such property, as is a right to retirement benefits.

See Dunn v. Dunn, 703 S.W.2d 317, 319 (Tex. App.–San Antonio 1985, writ ref’d n.r.e.)

(describing future retirement benefits as intangible property). Thus, the opportunity to

collect retirement was not within Malacara’s possession when he and Collins divorced.

       Next, that his right to such benefits may have been vested is of no consequence.

The theory of vesting connotes little more than that the property interest had accrued to

such an extent that it could not be denied the recipient by the third party obligated to pay

or deliver it. See Houston Indep. Sch. Dist. v. Houston Chronicle, 798 S.W.2d 580, 589

(Tex. App.–Houston [1st Dist.] 1990, writ denied). So, to the extent that retirement benefits

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were community property and both spouses had interests in the community estate, then

vesting of those benefits effectively resulted in both spouses having their community

interest in the benefits vest.        In turn, this logically means that both he and Collins

possessed the retirement benefits for she too was expressly awarded, via the settlement

agreement, the property in her possession.1

        In sum, the benefits at issue were not awarded in toto to Malacara via the settlement

provisions. Thus, his argument to the contrary is rejected.

            Can’t Because Property Previously Divided

        Next, Malacara suggests that the trial court could not partition the benefits since they

had been distributed previously to each spouse via paragraph III of the settlement

agreement. We disagree and overrule this contention.

        According to the record, the parties agreed at the time of their divorce that “[a]ll

community property not listed on any schedule . . . shall be owned by Husband and Wife

as equal cotenants . . . .” Moreover, the retirement benefits were not expressly mentioned

in any of the schedules attached to the agreement incident to divorce. Thus, both Malacara

and Collins owned a proportionate share of them as cotenants.

        Next, cotenants may obtain a partition of the res in which they own a joint interest.

See TEX . PROP. CODE ANN . §23.001 (Vernon 2000) (stating that joint owners of real or

personal property may compel the partition of the interest in the property among the joint

owners). Thus, statute authorized the trial court to partition the retirement benefits, though



        1
        W e also note that the opinion on which Ma lacara relies , e.g., Yeo v. Yeo, 581 S.W.2d 734 (Tex.
App.–San Antonio 19 79, writ ref'd n.r.e.) says nothing about vesting and its effect on the concept of
possession.

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the respective interest of Collins and Malacara in those benefits were addressed in the

divorce agreement.

       Can’t Award Portion of Benefits Already Distributed

       Next, Malacara asserts that the trial court erred in awarding Collins a monetary

judgment equal to her proportionate interest in the retirement benefits that had been

disbursed. We disagree.

       Section 9.009 of the Texas Family Code authorizes that court to “enforce the division

of property made in a decree of divorce . . . [by executing] an order to deliver the specific

existing property awarded.” TEX . FAM . CODE ANN . §9.009 (Vernon 2006). So too may it

render judgment “against a defaulting party for the amount of unpaid payments to which

the party is entitled” when the “party did not receive payments of money as awarded in the

decree of divorce . . . .” Id. at §9.010(b). Here, we have a decree making Collins and

Malacara cotenants or owners of the retirement benefits. Thus, it effectively awarded her

a share in the retirement payments. And, to the extent that a cotenant is entitled to dispose

of portions of the property, he must still account to the other cotenant for his share. See

Byrom v. Pendley, 717 S.W.2d 602, 605 (Tex. 1986) (involving the development of minerals

and stating that each cotenant has the right to enter upon the common estate and a

corollary right to possess and use the entire estate but must account to the other cotenant

for his share of the property taken). So, Malacara, as a cotenant, was obligated to give

Collins, the other cotenant, her share of the retirement benefits, and the trial court was

entitled to award Collins that share under sections 9.009 and 9.010(b) of the Family Code.

       Can’t Award Attorney’s Fees



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       Lastly, Malacara challenges the trial court’s decision to award Collins attorney’s fees.

We reject the challenge for a trial court may award attorney’s fees as costs in a post-decree

enforcement proceeding, such as this. TEX . FAM . CODE ANN . §9.014 (Vernon 2006).

       In sum, we overrule each issue of Malacara and affirm the trial court’s “Order on

Petiton for Post-Divorce Division of Property.”



                                                   Per Curiam




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