                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00055-CV
        ______________________________


           DIANE MADDOX, Appellant

                        V.

     WINDA LOU CINDY MADDOX, Appellee




     On Appeal from the County Court at Law #1
             Angelina County, Texas
              Trial Court No. 16,147




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION

        After more than forty years of marriage, R.V. Maddox and Winda Lou Cindy Maddox

(―Cindy‖) divorced, and the trial court judgment explicitly awarded R.V. and Cindy each one-half

of the yearly1 payments from an employee savings plan2 that had accumulated while R.V. had

worked for Champion International Corporation. R.V. later married Diane Maddox. After

R.V.‘s death ten years later, the corpus remaining in the employee savings plan, $139,188.12, was

paid to Diane, R.V.‘s widow. Cindy filed suit against Diane in Angelina County, 3 claiming that,

pursuant to the divorce decree, one-half of the plan‘s corpus was rightfully hers. The trial court

agreed with Cindy and awarded her one-half of that corpus, or the amount of $69,594.06.

        Diane appeals, contending that federal law applies, passing the plan‘s corpus to R.V.‘s

estate and that the unambiguous language of the divorce decree awards the corpus to R.V. We

affirm the trial court‘s decision because: (1) ERISA issues were not preserved for our review, and

(2) the decree left the corpus undivided.




1
 The decree‘s payment provisions reference both yearly and monthly payments from the plan. The parties dispute the
significance of this discrepancy, but it is irrelevant to the issue of the plan‘s corpus.
2
 The plan is referred to in the decree as the ―Champion Savings Plan,‖ as well as ―Champion Savings Plan pin number
3336.‖
3
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                        2
(1)    ERISA Issues Were Not Preserved for Our Review

       Diane contends that, because there was no qualified domestic relations order (QDRO)

entered in this case, the Employee Retirement and Income Security Act (ERISA) applies; that,

under its provisions, she is the proper beneficiary of R.V.‘s savings plan; and that the trial court

erred in awarding half of it to Cindy. The issue, however, was not raised below and, thus, is not

before us.

       A party may raise a point of error regarding ERISA for the first time on appeal if the

specific issue, such as pre-emption, implicates the subject-matter jurisdiction of the court. See

Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545 (Tex. 1991); Great N. Am. Stationers, Inc.

v. Ball, 770 S.W.2d 631 (Tex. App.—Dallas 1989, writ dism‘d). Otherwise, a party must

affirmatively set forth the argument pursuant to Rule 94 of the Texas Rules of Civil Procedure and

must raise the issue at trial, or else it is waived. See Gorman, 811 S.W.2d at 546; see also TEX. R.

APP. P. 33.1(a).

       Here, Diane argues that ERISA applies and that, under its provisions, she is entitled to the

remainder of R.V.‘s employee savings plan.            Diane‘s claim involves participants‘ and

beneficiaries‘ rights and contract construction and falls under ERISA‘s grant of jurisdiction to the

state courts. See 29 U.S.C.A. §§ 1055(c)(2), 1132(a)(1)(B), (e) (West, Westlaw through 2011).

Under such an argument, ERISA would not operate to deprive the state trial court of jurisdiction.

Rather, ERISA would merely alter the law that the court would apply to the case. Had ERISA‘s



                                                 3
applicability been raised before the trial court, the resulting issue would concern a potential

conflict between the Texas law of community property and the federal law of beneficiaries,

assignment, and alienation under ERISA.4 But Diane‘s failure to assert ERISA at trial waives the

argument, and ERISA issues with respect to the distribution of the savings plan funds were not

preserved for our review. See TEX. R. APP. P. 33.1(a).

(2)         The Decree Left the Corpus Undivided

            The trial court found that Cindy was entitled to one-half of the value of the corpus as of the

time of R.V.‘s death. On appeal, both Cindy and Diane argue that the decree is clear and

unambiguous, but they disagree on how the decree treats the plan‘s corpus. Diane contends that

the decree awards the corpus of the savings plan to R.V. Cindy contends that ―it is much more

reasonable to assume that the decree attempted to divide‖ the plan‘s corpus between R.V. and

herself. Cindy also argues that, if we conclude that the decree failed to divide the plan‘s corpus,

that corpus was undivided community property and is, thus, jointly owned by R.V. and Cindy.

We are constrained to adopt this third alternative.

            ―An agreed divorce decree is a contract subject to the usual rules of contract

interpretation.‖ Chapman v. Abbot, 251 S.W.3d 612, 616 (Tex. App.—Houston [1st Dist.] 2007,

no pet.); see also McCollough v. McCollough, 212 S.W.3d 638, 642 (Tex. App.—Austin 2006, no

pet.) (alimony agreements and other marital property agreements, even when incorporated into

divorce decrees, are enforceable as contracts and governed by contract law). In construing an
4
    See Egelhoff v. Egelhoff, 532 U.S. 141, 146 (2001); Barnett v. Barnett, 67 S.W.3d 107, 122–23 (Tex. 2001).

                                                           4
agreement, we must first determine whether the contract is clear and unambiguous, or whether its

enforcement requires parol evidence. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.

2003). If the contract 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. Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983); Guerrero v. Guerrero, 165 S.W.3d 778, 782 (Tex. App.––San Antonio 2005, no

pet.).   If, however, a contract is capable of more than one reasonable interpretation, it is

ambiguous.5 Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003); Guerrero,

165 S.W.3d at 782. Whether a contract is ambiguous is a question of law that we review de novo.

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

         In construing a written contract, our primary concern is to ascertain the true intentions of

the parties as expressed in the instrument. Coker, 650 S.W.2d at 393. To achieve this objective,

we should examine and consider the entire writing in an effort to harmonize and give effect to all

the provisions of the contract so that none will be rendered meaningless. Id. We presume that

the parties to a contract intend every clause to have some effect, and we give terms their plain,

ordinary, and generally accepted meaning unless the instrument shows that the parties used them

in a technical or different sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.

1996). Unless the contract is ambiguous, the court will enforce it as written. Id. A court may




5
 Merely because the parties argue different interpretations does not make an agreement ambiguous. Guerrero, 165
S.W.3d at 782.

                                                      5
not rewrite the parties‘ contract or add to its language under the guise of interpretation. Schaefer,

124 S.W.3d at 162.

        Here, the decree awards R.V. one-half of the yearly payments from the savings plan and

orders him to pay the remaining one-half of each yearly payment to Cindy:

        One-half of the yearly checks from Champion Savings Plan . . . held in the name of
        R.V. Maddox, pin number 3336 which are made payable to R.V. Maddox. IT IS
        ORDERED that R.V. Maddox shall be the designated constructive trustee for the
        benefit of WINDA LOU CINDY MADDOX for the remaining one-half of the
        monthly checks and R.V. MADDOX is ordered to pay to WINDA LOU CINDY
        MADDOX one-half of the monthly amount received by R.V. MADDOX within ten
        (10) days of the receipt of each check.

A similar provision specifically awards Cindy one-half of each yearly payment from the savings

plan:

        One-half of the amount of the yearly check from Champion Savings Plan . . . held
        in the name of R.V. Maddox, pin number 3336 which are made payable to R.V.
        Maddox, to be paid to WINDA LOU CINDY MADDOX within ten (10) days of
        the receipt of each monthly check by R.V. Maddox.

The provision at issue is the decree‘s employment-benefit catch-all provision that awards R.V. any

and all ―other benefits existing by reason of [R.V.‘s] past, present, or future employment except

the Champion Savings Plan pin number 3336 as set forth above.‖ There is no specific distribution

of, or reference to, the plan‘s corpus.

        Diane contends that the corpus of the Champion Savings Plan passes to R.V. under the

employment-benefit catch-all provision. Cindy argues that the decree divided the corpus equally

between R.V. and herself, or, in the alternative, that the decree leaves the corpus undivided.


                                                 6
            Here, the decree is unambiguous, and therefore, ―our responsibility is to construe the

decree as written‖ and apply its literal language, because the court has no authority to alter or

modify the original disposition of property. Reiss v. Reiss, 118 S.W.3d 439, 441–42 (Tex. 2003);

Shanks, 110 S.W.3d at 448; In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex.

App.––Texarkana 2003, pet. denied). While the decree distributes the yearly payments from the

plan, it does not provide for the plan‘s corpus. No language in the decree can reasonably be

interpreted to distribute one-half of the corpus to Cindy.                      Nor can the decree‘s language

reasonably be interpreted to distribute the corpus to R.V. Benefits from the plan are specifically

excluded from the employment-related benefits passing to R.V. under the employment-benefit

catch-all provision. When the catch-all provision is read as a whole, the phrase ―as set forth

above‖ is merely a reference to previous distributions from the plan, rather than a limitation on the

properties excluded from the catch-all, as is argued by Diane. Therefore, the corpus is left

undivided by the decree.

            Here, the trial court properly found that ―[t]he final decree disposed of ‗the yearly checks‘

from the Champion Savings Plan, pin number 3336 but did not otherwise reference or distinguish

‗the yearly checks‘ from any balance or residuary of the savings plan.‖ The effect of the decree‘s

language leaves the corpus, a piece of community property,6 undivided.7


6
    It was undisputed that the funds in the savings plan at the time of R.V.‘s death were community property.
7
 Citing our decision in Stephens v. Marlowe, Diane contends that we must presume that the decree partitioned all the
community estate. 20 S.W.3d 250, 254 (Tex. App.—Texarkana 2000, no pet.). Marlowe, however, creates no such

                                                            7
         When a decree of divorce does not dispose of all community property, the former husband

and wife become cotenants or joint owners of the property, and either former spouse may then

bring suit to divide the ―overlooked‖ piece of community property. Harrell v. Harrell, 692

S.W.2d 876 (Tex. 1985); In re Marriage of Notash, 118 S.W.3d 868 (Tex. App.—Texarkana 2003,

no pet.); Burgess v. Easley, 893 S.W.2d 87 (Tex. App.—Dallas 1994, no writ). The trial court

properly construed the decree and was within its discretion in awarding Cindy one-half of the

plan‘s corpus. See TEX. FAM. CODE ANN. § 9.201 (Vernon 2006) (subsequent suit regarding

undivided marital property), § 9.203(a) (Vernon 2006) (divide undivided marital property ―in a

manner that the court deems just and right, having due regard for the rights of each party . . . .‖).

         We affirm the trial court‘s judgment.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:            February 8, 2011
Date Decided:              March 9, 2011




presumption, but rather reaffirms that the party ―requesting partition [of community property], had the burden to
prove‖ that the previous divorce proceedings and decree ―did not consider or dispose of‖ the property at issue. Id. In
this case, no one disputed that Cindy had the burden of proving that the decree did not dispose of the plan‘s corpus.

                                                          8
