CourtListener opinion 2904748

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In The 

 Court of Appeals 

 Ninth District of Texas at Beaumont 

 ____________________ 

 NO. 09-04-222 CV 

 ____________________ 

 THOMAS ANDREW CLAKLEY, Appellant 

 V. 

 LINDA FAY RICHARDSON, Appellee 

 On Appeal from the 1-A District Court 

 Newton County, Texas 

 Trial Court Cause No. 3382-D 

 MEMORANDUM OPINION 

 On September 16, 2003, the trial court signed an agreed Final Decree of Divorce 
between Thomas Andrew Clakley and Linda Fay Richardson which provided for the 
division of community property of the parties, and awarded Richardson the following: 

 Any and all sums of cash in the possession of or subject to the control 
of [Richardson]; including money on account in any financial 
institution standing in [Richardson's] name or from which 
[Richardson] has the right to withdraw funds, subject to the 
provisions of the following subparagraph; and, 
 Gross funds totaling $55,000.00 to be withdrawn from the following 
accounts in the order listed below, and [Clakley] is hereby 
ORDERED to transfer and/or release such funds to [Richardson] 
within fifteen (15) days from the date of signing of this Decree, with 
any remaining funds from said accounts after payment of said 
$55,000.00 to [Richardson] being hereby awarded to [Clakley] as his 
sole and separate property as hereinabove provided: 

 a) Vanguard Growth Index Fund Account #9921279209 standing 
in the names of [Clakley] and [Richardson]; 

 Westvaco Savings & Investment Plan for Hourly Employees 
Account standing in [Clakley's] name; 
 
 First Bank and Trust Savings Account #220000365 standing in 
[Clakley's] name; 
 
 Savings account #5040 at Eastex Employees Federal Credit 
Union standing in [Clakley's] name; and, 
 
 Rollover out of the Vanguard Prime Money Market Fund 
Account #09940254917 standing in [Clakley's] name. 

 Neither party perfected an appeal from the divorce decree, and the judgment became 
final. Clakley delivered $3,000 in cash to Richardson, and executed documents allowing 
Richardson to withdraw $9,150.62 from the Vanguard Growth Index Fund, which stood 
in the name of both parties. On February 25, 2004, Richardson filed a Motion for 
Enforcement of Judgment. On March 4, 2004, Clakley filed a Motion to Enter Qualified 
Domestic Relations order requesting the trial court enter a qualified domestic relations 
order in the form required by the plan administrator to enforce the division of community 
property set forth in the Final Decree of Divorce. The trial court signed the qualified 
domestic relations order submitted by Clakley's attorney. Neither party filed a motion for 
clarification of the Final Decree of Divorce. On April 26, 2004, the trial court signed an 
Order on Motion for Clarification of Final Decree of Divorce. The order found that 
Clakley owed $47,424.69 on the $55,000 awarded to Richardson in the divorce decree. 
 Clakley appeals the order. In his first issue, Clakley says the court erred because 
the order did not give Clakley credit for the total sum paid to Richardson from the 
Vanguard Growth Index Fund, and erroneously awarded Richardson net funds after taxes 
rather than gross funds. In his second issue, Clakley argues the trial court erred in 
modifying the division of property after its plenary jurisdiction expired. We will address 
issues one and two together. 
 
 We review the trial court's order for an abuse of discretion. A trial court abuses 
its discretion when it acts in an unreasonable and arbitrary manner, without reference to 
any guiding rules and principles. See Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 
238, 241-42 (Tex. 1985). 
 
 A marital property agreement which is incorporated into a divorce decree is 
construed under the law of contracts. See Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 
1986) . 

 An unambiguous contract must be enforced as written, examining the entire 
document and giving terms their plain, ordinary, and generally accepted 
meaning unless the instrument shows that the parties used them in a technical 
or different sense. 

 Rampart Capital Corp. v. Egmont Corp. , 18 S.W.3d 318, 322 (Tex. App.--Beaumont 
2000, no pet.) (citing Heritage Resources, Inc. v. NationsBank , 939 S.W.2d 118, 121 
(Tex. 1996)). If there is no ambiguity, the court must give literal effect to the decree as 
written. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990). In addition, when a divorce 
decree is unambiguous, the trial court lacks authority to enter an order altering or 
modifying the original disposition of property. See Shanks v. Treadway , 110 S.W.3d 444, 
449 (Tex. 2003). Whether an ambiguity exists is a question of law for the court. See 
National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 
(Tex. 1995); see also Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex. App.--Houston [1 st 
Dist.] 1997, no pet.). A contract is ambiguous if its meaning is uncertain or it is 
reasonably susceptible to more than one meaning. See Coker v. Coker, 650 S.W.2d 391, 
393 (Tex. 1983). A court may not alter a judgment after the expiration of its plenary 
power, and an order attempting to do so is void. See Lundy v. Lundy, 973 S.W.2d 687, 
688 (Tex. App.--Tyler 1998, pet. denied); see also Tex. Fam. Code Ann. § 9.007(b) 
(Vernon 1998). 
 
 Subparagraph 6 on page 11 of the Final Decree of Divorce states Richardson is to 
receive money on account in any financial institution standing in Richardson's name or 
from which Richardson has the right to withdraw funds, subject to the provisions of the 
following subparagraph. Subparagraph 7 of the decree lists the Vanguard Growth Index 
Fund as the first account from which withdrawals are to be made. This provision of the 
decree is not ambiguous. The trial court had no authority to modify the decree and only 
allow Clakley credit for one-half of the account balance of the Vanguard Growth Index 
Fund against the gross funds of $55,000 awarded to Richardson. Clakley should have 
received credit for the full sum of $9,150.62 withdrawn from the account to be applied 
against the gross funds awarded to Richardson. 
 
 Subparagraph 7 on page 11 of the decree states that Richardson is to receive \Gross