Opinion
No. 11-06-00313-CV
Opinion filed April 10, 2008.
On Appeal from the 259th District Court Shackelford County, Texas, Trial Court Cause No. 2002-037.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This appeal arises from a post-divorce proceeding to divide property omitted from the parties' divorce decree. Appellant, Frances Gazelle Wheeler, asserted that the divorce decree failed to divide the parties' interest in the PepsiCo Hourly Employee's Retirement Plan (the Hourly Plan). Appellee, Jimmie Ray Wheeler, agreed that the decree did not divide the Hourly Plan. However, the parties disagreed over the manner in which the Hourly Plan should be divided. The trial court awarded all of the parties' interest in the Hourly Plan to Jimmie. We affirm.
Background Facts
The relevant facts in this appeal relate back to the final hearing in the parties' divorce proceeding that occurred on December 11, 2002. The parties announced to the trial court at the final hearing that they had reached a settlement on all contested issues with respect to their divorce. They reached this agreement immediately prior to the final hearing. They recited the agreement to the trial court at the hearing. The trial court concluded the December 11, 2002 hearing by announcing its approval of the parties' property settlement.
The parties subsequently submitted an agreed final decree of divorce that the trial court entered on March 25, 2003. The decree awarded all of the parties' interest earned by Jimmie in the PepsiCo Salaried Employee's Retirement Plan (the Salaried Plan) to Frances. However, the decree failed to address the parties' interest earned by Jimmie in the Hourly Plan.
The trial court subsequently considered the issue of dividing the Hourly Plan at a hearing conducted on May 18, 2006. Frances testified that she and her attorney did not become aware of the existence of the Hourly Plan until December 2005 when the plan administrator advised her of its existence. Frances asserted that she should be awarded all of the parties' interest in the Hourly Plan based upon the terms of the parties' property settlement agreement. Specifically, Frances argued that the parties agreed that she would receive "whatever" retirement plan Jimmie had with PepsiCo. Jimmie asserted at the post-divorce hearing that he was aware of the existence of both PepsiCo plans at the time of the divorce and that he intended to keep the Hourly Plan for himself. Jimmie further testified that he would never have agreed to give all of his PepsiCo retirement benefits to Frances.
Analysis
Frances raises two issues on appeal. She contends in her first issue that there is no evidence to support the trial court's finding of an agreement between the parties that Jimmie was to be awarded the Hourly Plan. In her second issue, Frances asserts that the evidence conclusively established an agreement that she be awarded all benefits available from PepsiCo. We will first address Frances's second issue.
Appellant bases her second issue on the terms of the parties' property settlement agreement that the parties dictated into the record. In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). In the absence of fraud or mistake, the writing alone will be deemed to express the intention of the parties, and courts will enforce an unambiguous instrument as written. Id. The court is not looking for the subjective intent of the parties (which, as here, is conflicting and, in fact, creates an ambiguity in the language of the instrument). Instead, it is the objective intent, the intent expressed or apparent in the writing, that is sought. Id.
The property settlement agreement dictated by the parties into the record reflects the informal circumstances under which the parties reached it. As noted previously, the parties reached the settlement agreement "outside in the hall" prior to the final hearing of their divorce. Frances's trial counsel called her as a witness for the purpose of proving up the jurisdictional elements for the divorce and reciting the terms of the property settlement agreement. The portion of the record dealing with Jimmie's retirement with PepsiCo is limited to a single question propounded to Frances:
Q. Now there is also another Frito Lay — either a pension or profit-sharing plan, some other type of plan, and whatever that plan is and whatever that benefit is, you will be awarded that; is that correct?
Jimmie actually worked for Frito Lay. Frito Lay is affiliated with PepsiCo.
A. That's my understanding if there is one.
At the conclusion of the hearing, Frances's trial counsel asked Jimmie if Frances's testimony reflected his understanding of the property settlement agreement to which Jimmie replied in the affirmative.
Relying upon the above-quoted question and answer, Frances contends that the use of the term "whatever" encompasses multiple retirement plans that Jimmie had with PepsiCo. We disagree. While the use of "whatever" indicates that there was a degree of uncertainty among one or both of the parties regarding Jimmie's retirement with PepsiCo, the recitation of the parties' agreement only references a single retirement plan. A court may not add to a contract under the guise of interpretation. See Helmerich Payne Int'l Drilling Co. v. Swift Energy Co., 180 S.W.3d 635, 640 (Tex.App.-Houston [14th Dist.] 2005, no pet.). We are reluctant to expand the property settlement agreement's application to multiple retirement plans when the agreement only references a single plan. Consistent with the parties' recitation, the final decree awarded a single PepsiCo plan — the Salaried Plan — to Frances. Frances's second issue is overruled.
Frances argues in her first issue that there is no evidence to support the trial court's finding that the parties agreed that Jimmie would be awarded the Hourly Plan. This issue is directed at the following finding of fact made by the trial court: "[Jimmie] was to be awarded [the Hourly Plan] . . . but it was inadvertently left out of the Decree." This finding necessarily includes a determination by the trial court of an agreement between the parties for Jimmie to be awarded the Hourly Plan.
We agree with Frances that there is no evidence of this agreement. Specifically, there is no evidence of the parties' mutual assent for Jimmie to be awarded the Hourly Plan because there is no evidence that Frances agreed to this award. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (contracts require mutual assent to be enforceable). However, Frances's "no evidence" contention is not dispositive of this appeal. Even if the trial court had correctly determined that there was not an agreement for Jimmie to be awarded the Hourly Plan, the court was still required to divide the Hourly Plan in a "just and right" manner under TEX. FAM. CODE ANN. § 9.203(a) (Vernon 2006). The trial court stated in its findings of fact and conclusions of law that awarding the Hourly Plan to Jimmie is a just and right division. Frances has not attacked the "fair and right" determination on appeal. Moreover, there appears to be evidence that the award of the Hourly Plan to Jimmie was equitable. The Salaried Plan awarded to Frances generates a monthly benefit that is roughly equal to the monthly benefit of the Hourly Plan awarded to Jimmie. Furthermore, Frances retained all of her retirement from her previous employment. Frances's first issue is overruled.
This Court's Ruling
The judgment of the trial court is affirmed.