## Facts

- Lynn Dale Smith (husband) and Norma Alene Smith (wife) married in 1953.
- In 1982, wife filed for divorce, but no divorce decree was entered.
- In December 1982, the parties executed a written “Separation and Partition Agreement” dividing specified property and containing a broad residuary clause (Paragraph XII).
- Paragraph XII provided that, except as otherwise stated in the agreement, each spouse would own all property “now owned or held” by that spouse or that “may hereafter belong or come to belong” to that spouse, free of claims by the other.
- The agreement expressly allocated certain retirement benefits, but did not itemize the later-disputed retirement payments.
- In 1985, husband began receiving monthly retirement benefits not specifically identified in the agreement.
- In 2001, husband filed for divorce relying on the 1982 agreement; wife sought a “just and right” division without expressly invoking the agreement.
- The trial court enforced the agreement as to some property but awarded wife 75% of the 1985 retirement benefits, reasoning they were not covered by the residuary clause.
- Husband appealed the retirement-benefits division.

## Issues

1. Whether the 1982 separation and partition agreement’s residuary clause partitioned and converted to husband’s separate property the retirement benefits he began receiving in 1985, though not specifically listed.
2. Whether awarding wife 75% of those benefits, despite the agreement, was an abuse of discretion in the property division.

## Decision

- The court of appeals reversed the portion of the divorce decree awarding wife 75% of the disputed retirement benefits.
- The court held that Paragraph XII unambiguously encompassed property that “may hereafter belong or come to belong” to a spouse, including the later-received retirement benefits.
- The court concluded the trial court abused its discretion by failing to enforce the unambiguous partition agreement as written.
- The case was remanded for further proceedings consistent with the appellate court’s interpretation of the agreement.

## Legal Principles

- Spouses may partition or exchange community property by written agreement, converting covered property into separate property.
- Partition agreements are construed under ordinary contract principles, with the parties’ intent determined from the writing’s plain meaning when unambiguous.
- A broad residuary clause that assigns to each spouse all property “now owned” and property that “may hereafter belong or come to belong” to that spouse can partition future-acquired interests, including retirement benefits that later mature or begin payment, unless expressly excluded.
- A trial court’s “just and right” division must honor a valid, unambiguous partition agreement; misinterpretation or non-enforcement of such an agreement constitutes an abuse of discretion.

## Conclusion

The court held that the parties’ 1982 partition agreement unambiguously awarded each spouse, as separate property, both existing assets and property later acquired by that spouse, including the husband’s retirement benefits that began paying in 1985; the trial court therefore erred by awarding the wife a 75% share of those benefits and the case was remanded for division consistent with the agreement.


In re Marriage of Smith, 115 S.W.3d 126 (Tex. App.—Texarkana 2003)