                                                                                    ACCEPTED
                                                                                09-17-00254-CV
                                                                     NINTH COURT OF APPEALS
                                                                            BEAUMONT, TEXAS
                                                                             12/13/2017 4:52 PM
                                                                         CAROL ANNE HARLEY
                                                                                         CLERK

                     Cause No. 09-17-00254-CV

                             IN THE                     FILED IN
                                                 9th COURT OF APPEALS
                  NINTH COURT OF APPEALS             BEAUMONT, TEXAS
                       at Beaumont, Texas        12/13/2017 4:52:15 PM
       ________________________________________________
                                                   CAROL ANNE HARLEY
                                                             Clerk
                SANDRA EMBESI, APPELLANT
                              V.
              CHARLES RAY HALL, APPELLEE
      _________________________________________________

                         On Appeal from the
            th
         279 Judicial District Court of Jefferson County, Texas
                         Cause No. F-204,290
      __________________________________________________

                     APPELLANT’S BRIEF
      ___________________________________________________


                                       SMITH & SHIPLEY, L.L.P.
                                       Jolei Shipley
                                       Texas Bar No. 24041909
                                       2750 IH-10 East, Suite 200
                                       Beaumont, Texas 77703
                                       Tel: (409) 899-1046
                                       Fax: (409) 899-2648

                                       ATTORNEY FOR APPELLANT,
                                       SANDRA EMBESI

NO ORAL ARGUMENT REQUESTED.




                                 -1-
                 IDENTITY OF PARTIES AND COUNSEL

Appellant -                           Sandra Embesi

Attorney for Appellant -              Jolei Shipley
                                      SBN: 24041909
                                      Smith § Shipley
                                      2750 IH-10 East, Ste. 200
                                      Beaumont, Texas 77703
                                      Tel: (409) 899-1046
                                      Fax: (409) 899-2648

Appellee -                            Charles Ray Hall

Attorney for Appellee -               Clint Lewis
                                      SBN: 12275250
                                      The Lewis Law Firm
                                      8445 Gladys Ave.
                                      Beaumont, Texas 77706
                                      Tel: (409) 899-5600
                                      Fax: (409) 899-5682




                               -ii-
                                        TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents………………………………………………………………….iii

Index of Authorities .................................................................................................iv

Statement Regarding Oral Argument ........................................................................ v

Statement of the Case ...............................................................................................vi

Issues…………………………………………………………………………….....1

Statement of Facts………………………………………………………………….1

Summary of the Argument…………………………………………………………3

Arguments and Authorities …………………………………………………..........3

         Issue One: The trial court abused its discretion by denying former Wife’s
         petition for post-divorce division of assets because wife proved that the
         property requested to be divided was not divided by the Final Decree of
         Divorce.

         A.   Standard of Review………………………………………………………4
         B.   Pertinent Facts………………………………………………………........4
         C.   Applicable Law………………………………………………………......6
         D.   Argument………………………………………………………………...8

Conclusion and Prayer for Relief............................................................................. 10

Certificate of Compliance ........................................................................................ 11

Certificate of Service .............................................................................................. 12




                                                         -iii-
                         INDEX OF AUTHORITIES

Cases

In Re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App. – Texarkana 2003,
pet. denied)…………………………………………………………………………………..4

Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980)………………………………………4

Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App. – San Antonio 2002, no
pet.)……………………………………………………………………………………………7

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex. App. – Houston [14th Dist.] 2000, pet.
denied)………………………………………………………………………………………..7

Stephens v. Marlowe, 20 .W.3d 250 (Tex. App. – Texarkana 2000)…..……………..7

Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986)……………………………………….7

Thompson v. Thompson, 500 S.W.2d 203 (Tex. App. – Dallas 1973)……………..7,8

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)…………………………………….7

Hagen v. Hagen, 282 S.W.3d 889, 901-02 (Tex. 2009)……………………………….7

Stirling v. Stirling, 02-10-00329-CV (Tex. App. – Forth Worth 2011)……………..9

Statutes

Tex. Fam. Code §9.201.………………………………………………………..…6




                                       -iv-
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant believes that the issues presented are clear and can be resolved by

this Court without hearing oral argument from either party.




                                        -v-
                           STATEMENT OF THE CASE

      This is an appeal from a judgment denying a request for a division of

undivided property. The divorce decree was silent as to the division of the former

husband’s pension plan. The trial court nevertheless denied former wife’s request to

divide the pension plan.




                                        -vi-
                                        ISSUE

      Issue One

            The trial court abused its discretion by denying former Wife’s petition

      for post-divorce division of assets because wife proved that the property

      requested to be divided was not divided by the Final Decree of Divorce.


                             STATEMENT OF FACTS

      Sandra Embesi (hereinafter “Sandra”) and Charles Ray Hall (hereinafter

“Charles”) were married on November 20, 1974. In January 1982, Charles started

working for Mobil Oil Corporation, now ExxonMobil. (RR 26) Charles eventually

retired from ExxonMobil with pension and 401(k) benefits in February 2017. (RR

17-18) On November 4, 2008, Charles and Sandra were divorced. Charles was

represented in that action by Karen Bennett. Sandra Embesi was unrepresented by

counsel.

      Sandra filed a bill of review on October 19, 2012 under Cause Number

C216,691 in the 317th District Court of Jefferson County, Texas asserting that

Charles’ conduct prevented her from obtaining a greater share of the community

estate. By agreement, Sandra’s bill of review was granted. Sandra and Charles

entered settlement negotiations. A sworn inventory of community assets and debts

was never made by either party. (RR 27) No discovery was conducted. However,

Sandra and Charles reached a settlement reflected in the Final Decree of Divorce
                                       -1-
(hereinafter “2013 Decree”) entered by the trial court on September 23, 2013. The

2013 decree was silent as to the award of the community property ExxonMobil

Pension Plan. The specific language of the decree awarded Charles the following:

            H-5. A portion of Charles Ray Hall’s retirement benefits in
      ExxonMobil Savings Plan arising out of Charles Ray Hall’s
      employment with ExxonMobil as of March 11, 2013, that portion being
      a sum certain, together with any interest, dividend, gains, or losses on
      that amount arising since that date and more particularly defined in a
      Qualified Domestic Relations Order signed by the Court on the day this
      Final Decree of Divorce is signed.

            H-6. All individual retirement accounts, simplified employee
      pensions, annuities and variable annuity life insurance benefits in the
      husband’s name.

The specific language of the decree awarded Sandra the following:

            W-5. A portion of Charles Ray Hall’s retirement benefits in
      ExxonMobil Savings Plan arising out of Charles Ray Hall’s
      employment with ExxonMobil as of March 11, 2013, that portion being
      ExxonMobil, together with any interest, dividend, gains, or losses on
      that amount arising since that date and more particularly defined in a
      Qualified Domestic Relations Order signed by the Court on the day this
      Final Decree of Divorce is signed.

      The Qualified Domestic Relations Order awarded Sandra as Alternate Payee

the sum of $150,000.00.

      On March 19, 2014, Sandra filed a Petition for Post-Divorce Division of

Property after discovering that Charles had not disclosed to her that he had an

ExxonMobil Pension Plan. This appeal from the trial court denying Sandra’s

petition.


                                        -2-
                           SUMMARY OF THE ARGUMENT

      Issue 1. The trial court abused its discretion by denying Sandra’s petition for

post-divorce division of assets because she proved that the property requested to be

divided was not divided by the Final Decree of Divorce. The 2013 Decree was silent

as to a division of the ExxonMobil Pension Plan. Because the 2013 Decree is

unambiguous in its silence, the language of the 2013 Decree must be interpreted

according to contract law. Contract law requires that the trial court look only at the

intentions of the parties as manifested by the contract itself.

                          ARGUMENTS AND AUTHORITIES

Issue one: The trial court abused its discretion by denying former Wife’s petition for

post-divorce division of assets because wife proved that the property requested to be

divided was not divided by the Final Decree of Divorce.

      A.     Standard of Review

      A trial court’s ruling on a post-divorce division of assets is reviewed under an

abuse of discretion standard. In Re Marriage of McDonald, 118 S.W.3d 829, 832

(Tex.App. – Texarkana) 2003, pet. denied). A clear abuse of discretion is shown

when the division of property is manifestly unjust. Mann v. Mann, 607 S.W.2d 243,

245 (Tex. 1980).




                                          -3-
      B.     Pertinent Facts

      The 2013 Decree specifically award the ExxonMobil Savings Plan but does

not mention in the awards to either Sandra or Charles the pension plan, either simply

as “pension plan” or ExxonMobil Pension Plan. Charles further testified that at the

time of his retirement, the ExxonMobil Pension Plan was worth about $900,000.00.

(RR 20)

      The testimony of Tim Satre, a certified divorce financial planner when

questioned during the hearing by Sandra’s counsel stated that the 2013 Decree did

not specifically address either pension. (RR 44). He further stated that the pension

plan could not have been described or defined as an individual retirement account, a

simplified employee pension, an annuity or variable annuity life insurance. (RR 44).

      Under questioning by the trial court, Tim Satre could not identify where the

pension plan was awarded under any of the awards made to Charles:

             Q.    All right. So, there’s – so, a pension plan, would it ever be

                   – would a pension plan ever be considered a financial

                   institution?

             A.    Where are you looking?

             Q.    I’m looking at H-3 actually.

             A.    No.




                                         -4-
Q.   Okay. All right. And, then, let’s see. All right. So, there is

     – there is a difference, a significant – I mean there’s an

     identifiable difference between annuity and a pension

     plan?

A.   Yes. And this reflects most of the time in these divorce

     decree I see that an annuity would a separate contract you

     buy, insurance company generally never referred to as a

     pension.

Q.   Okay.

(RR-51)

Q.   All rights. And H-8, the pension plan would never – could

     never be defined as a brokerage account or fall into any of

     those categories, or could they?

A.   Not a brokerage account, no. I mean, they wouldn’t

     generally be referred as a brokerage account, stocks,

     bonds, mutual funds, securities. No. They would be

     referred to as some type of qualified retirement plan.

Q.   Okay.

(RR-52)




                           -5-
      Under cross examination by Charles’ counsel, Tim Satre denied that the

ExxonMobil Pension Plan could be characterized, defined or described as an

individual retirement accounts or a simplified employee pension. (RR 54).

      C.     Applicable Law

        The Texas Family Code provides that former spouses may file a suit to divide

property not divided or awarded in a final decree of divorce. T.F.C §9.201. Post-

divorce partition is an appropriate vehicle to address an undivided or overlooked

asset. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex.App.-San Antonio 2002, no pet.);

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex.App.-Houston [14th Dist.] 2000, pet.

denied). Post-divorce division is appropriate where the divorce decree does not

consider, contemplate or purport to dispose of the property, or where the property

has been overlooked and as a result has gone undivided. Stephens v. Marlowe, 20

S.W.3d 250 (Tex.App. – Texarkana 2000).

      To interpret the property award in an agreed divorce decree, the language of

the decree will be interpreted according to contract law and not the law of judgments.

Allen v Allen, 717 S.W.2d 311, 313 (Tex. 1986).

      Because an agreed final decree of divorce case is a contract, the court must

look to the intentions of the parties as manifested in the four corners of the document.

Thompson v. Thompson, 500 S.W. 2d 203 (Tex. App-Dallas 1973). A contract is

ambiguous when its terms are susceptible to more than one meaning. Coker v. Coker,


                                          -6-
650 S.W. 2d 391, 393 (Tex. 1983.) Whether a divorce decree is ambiguous is a

question of law, and the court must adhere to the literal language of an unambiguous

decree. Hagen v. Hagen, 282 S.W. 3d 899, 901-02 (Tex. 2009).

      D.    Argument

      Divorce decree language is often drafted broadly enough that it includes

property not specifically awarded. In many cases, residuary clauses awarding

undivided property to the person in possession and language such as “any and all

sums” and “any other rights” is enough to show that the award was contemplated or

considered. However, in the present decree, it is telling that the award of the

ExxonMobil Savings Plan was specific, but the decree omits any mention of even

the generic term pension plan. The only expert to testify in at the final hearing

unequivocally testified under direct examination, cross-examination and questioning

by the court that the award of the pension plan did not fall under any of the other

awards to Charles under the 2013 Decree. The court contrasted the language of the

2013 Decree with the language of the prior decree for which the bill of review was

granted and wherein the pension plan was mentioned, but only as the generic award

of the pension plan to Charles. RR 53

      In Thompson, the parties entered an agreed divorce decree that purported to

dispose of all community property. However, the decree failed to mention a joint

venture entered by husband. The Court of Appeals, after examining the decree and


                                        -7-
the summary judgment evidence, decided that the parties did not effectively carry

out the intention by dividing all their property. Id at 207. The decree is binding, and

it is res judicata only as to the property awarded and brought within the jurisdiction

of the court. If property was omitted from such consideration, it might authorize the

opening of the decree as to property. Id at 208. If the decree can be given a certain

or definite legal meaning or interpretation, then it is not ambiguous, and the court

will construe the contract as a matter of law.

      In Stirling v. Stirling, 02-10-00329-CV, (Tex. App.-Fort Worth 2011), the

award of property to husband included “any profit-sharing plan, retirement plan,

Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee

saving plan, accrued unpaid bonuses, disability plan, or other benefits existing by

reason of the husband’s past, present, or future employment…” Wife filed a petition

for post-divorce division. The trial court awarded wife fifty percent of the

community property interest in husband’s pension plan. The court of appeals

reversed. The decree expressly awarded the pension plan to Husband.

      If the decree is silent as to an award, then it remains undivided and is subject

to a just and right division by the Court. The 2013 Decree is utterly silent as to the

ExxonMobil Pension Plan that is part of the ExxonMobil benefits package.




                                          -8-
                 CONCLUSION AND PRAYER FOR RELIEF

      Because the language of the decree is unambiguous and fails to divide the

ExxonMobil Pension Plan, the trial court abused its discretion in denying Sandra

Embesi’s Petition for Post-Divorce Division of Property.

      WHEREFORE, PREMISES CONSIDERED Appellant, Sandra Embesi,

prays this Court to, in all things, affirm the judgment of the trial court.

                                         Respectfully submitted,

                                         SMITH § SHIPLEY, LLP
                                         Attorneys at Law
                                         2750 IH-10 East, Suite 200
                                         Beaumont, Texas 77703
                                         Tel: (409) 899-1046
                                         Fax: (409) 899-2648

                                         By:
                                           Jolei Shipley
                                           State Bar No. 24041909
                                           jshipley@smithshipley.com
                                           Attorney for Appellant




                                           -9-
                     CERTIFICATE OF COMPLIANCE

      I certify that this document brief/petition was prepared with Microsoft Word

2010, and that, according to that program’s word-count function, the sections

covered by TRAP 9.4(i)(1) contains 2333 words.

                                     Respectfully submitted,

                                     SMITH § SHIPLEY, LLP
                                     Attorneys at Law
                                     2750 IH-10 East, Suite 200
                                     Beaumont, Texas 77703
                                     Tel: (409) 899-1046
                                     Fax: (409) 899-2648


                                     By:
                                       Jolei Shipley
                                       State Bar No. 24041909
                                       jshipley@smithshipley.com
                                       Attorney for Appellant




                                       -10-
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document was
served on Appellant’s counsel of record in accordance with the Texas Rules of Court
on this 13th day of December, 2017, as follows:
Via Electronic Service
Mr. Clint Lewis
The Lewis Law Firm
8445 Gladys Ave.
Beaumont, Texas 77706



                                              By:___________________________
                                                  Jolei Shipley




                                       -11-
