## In the Court of Appeals Second Appellate District of Texas

at Fo rt Worth

___________________________ No. 02

- 20

- 00203

- CV

___________________________

On Appeal from the 367th District Court Denton County, Texas Trial Court No. 14

- 00440

- 367

Before Kerr, Birdwell, and W alker, JJ. Memorandum Opinion by Justice Walker 

### J OSEPH 

### G ULLIKSEN 

### , Appellant

V



### . B EVERLY 

### J O 

### G ULLIKSEN A 

### / K 

### / A 

### B EVERLY 

### J O 

### R O SING 

### , Appellee2 MEMORANDUM OP INI O N
Th is is an appeal from an order enforcing a provision of a mediated settlement agreement incorporated into a decree of divorce

. The trial court order ed Joseph
Gulliksen ( “ Husband ” ) to pay Bever ly Jo Rosing ( “ Wife ” ) $18,069 as reimbursement
fo r 70% of her federal income tax liability incurred as a result of the li quidation of
funds in Husband ’ s pe nsion plan

. Husband contends that the court erred (1) by enforcing the decree ’ s reimbur seme nt provi sion when Wife f ailed to comply with

con di tion s precedent , (2) by materially altering the terms of the divorce decree, and (3) in the alternative , by miscalculating the amount owed to Wife. We revers e and
render.
I. BACKGROUND
The facts pertinent to this appeal are undisputed. Husband and Wif e e nte red
i nto a m ediated settlement agreement which was incorporated into their Octo ber 1,
2015 divorce decree. The decree awarded Wife 100% of the tot al vested balance of
Husband ’ s pension plan ( “ Plan ” ) and re quired her to withdraw th o se fund s (with a
reques t to the Plan administrator to withhold up to 25% for estimated federal income taxes) and to deliver the amount received into her attorne y ’ s trust fund account.
Wife ’ s attorney was required to use those fun ds to pay cer t ai n speci fied de b ts owed by
Husband and Wife, and then to distribute the remainder, 30% to Wife and 70% to
Husband. The decree also allocated the f ederal income tax liability resulting from liquidating the Plan funds :3

As part of the divis ion o f the marit al estate, [Husband] is ORDERED to reimburse [Wife] for 70% of the income taxes incurred by [Wife] as a result of the liquidation of the funds in the Plan. The amount of such income tax liability will be determined a s follows:
F or the year in whi ch such liquidation occurs, [Wife] will have two (2) separate draft income tax returns prepared by a licensed income tax preparer: one draft which includes th e taxable amo u nt of funds liquidated from the Plan as income and one draft which does not i ncl ude such liquidated funds as income. [Wife] shall provide copies of both draft income tax returns to [Husband]

. . . on or before June 1 of the year following the year in which s uch liquidat ion occurs. . . . [

H usband] is ORDERED to reimburse [Wife] in a n amoun t which equals 70% of the difference in income tax liability between these two draft incom e tax returns. According to the briefing in th is case , t he Plan was liquidated in 201 6 and so
Wif e ’ s deadline to provide the two draft tax re turns was Jun e 1 , 2017.
Wife , who rema rried in 2016, e ngaged H&R Block to prepare the two draft tax

returns. T he first draft tax return , which Wife filed with the I nternal R evenue S ervice ,

wa s a return filed jointly with her new husband, Keven Rosing

. That return incl u ded
Rosin g ’ s wage income, Wife ’ s wage income , Wife ’ s social security disabili ty income , and $101,421 , which represented the liquidated Plan funds

. The seco nd draft tax

return also purported to be a joint return but inclu ded only Wife ’ s w age inco me . It

t h erefore differed from the first draft tax return not only by omitt ing the liquidated
Plan fu nds , but al so by omitt ing Rosing ’ s income an d Wife ’ s social security disability
income.
Wife sent t h ese two d raft tax returns to Husband before the June 1, 201 7
d ea dline. Hu sband ackn owledge d their receipt but informed Wife th at he needed a4

draft tax return in cluding only he r income (not Rosing ’ s) and the liquidated Plan
funds

. Husband and Wife exchanged a series of text messages concerning the required d raft ta x returns , and W ife returned to H&R Block several times to have new
draft tax re turn s prepared , but “ each time they got it w rong . ”
Wif e ac knowle dged at the tr ial court hearing that sh e understood , at least by
tha t time, tha t the two draft tax returns r eq u ired by the divorce decree were t o be exactly the same except that one would include the liquidated Plan funds and on e would not. She also ack nowledg ed that she did not send correct v ersions of the two required d raft tax return s on or before June 1, 2017 a nd, even at the time of the hearing in Febr uary 2020 , she had not provided two such drafts. Instead , she retai n ed
a f o rensic ac countant to determ ine how much Husband owed her und er the

re imbursement provisi on of the divorce decree. Larry Settles, Wife ’ s a ccounting expert, testified that the draft tax returns prepared by H&R Block were incorrec t. But h e was not hir ed to prepare correct draft

re turns
. Rather , he was asked simply to calculate the di fference between Wife ’ s incom e tax liability including t he liquidated Plan funds and her liability e xcluding
those fund s . He accomplished that tas k in September 2019, which he testified was
the f irst time the correct calculations were made. Settles concluded that the difference
in Wife ’ s income tax liability was $25,81 3.85 and that 70% of that su m wa s $1 8 ,069.70.5

Husband testified that he re ceived Sett les ’ s expert report in Septemb er 20 19

—

o ver two years after the June 1, 2017 deadline

— b ut that he h ad never received two
draft tax returns fulfilling the divor c e decree requirement. He acknowledged that he
had not reimbur sed Wife for any po rtion of the tax liability res ulting from the liquidated Plan funds and te stified that he believed she had waived her right to that
reimbursement by failin g to provide the re q uired draft returns. The trial court found th at Wife “ i s entitl ed t o reimbursement from [Husb and]
in the amount o f $18 , 069.00, w hich represents 70% o f the federa l income taxes incurred by [Wife] in connection with the liquidation of the funds in the Pl an as se t forth in the Final Decree of Divorce. ” It acco rdingly granted Wife judgment for that

amount.
II. ISSUES
Husband raises three issues o n appeal: (1) the tria l court erred by enforcing the reimbursement provision when Wife di d not comp l y with co nd itions precedent

necess ary to trigger Husband ’ s obligation to pay; (2) the tr ial court mat erially altered the terms of the divorce decree by refu sing to credit tax withholdings against
Husband ’ s tax liabil ity; and (3) in the alternat ive, the t r ial court mi scalculated the

a mount owed to Wife by cons ider ing income in excess of that authorized by the
divorce decree to calculate Husband ’ s tax liability

. For the reasons discussed below, we need only address issue one.6 III. STANDARD OF RE VIEW
We review a tri al court ’ s ruling on a motion to enforce a divorce decree for an
abuse of discretio n. In re C.F. , 576 S.W.3d 761, 774 (Tex. App.

— Fort Worth 2019 ,

n o pet. ) ; Murray v. Murray , 276 S.W.3d 138, 143 (Tex. App.

— Fort Worth 2008, pet.
dism ’ d). But we const r ue an u na mb iguous di vorce dec ree as a ma tter of law. C hafin v.
Isbell , No. 02

- 10

- 00007

- CV, 2011 WL 946653, at *4 (Tex. App.

— Fort Worth Mar. 17,
2011 , no pet. ) (mem. op. on reh ’ g) (citing Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) )

. IV
. THE DRAFT TA X RET UR

N REQUIREMENT
A
. P RINCIPLES OF C ONTRACT C ONSTRU CTION

“ An agreed proper ty division incorporated into a final divorce decree is treated

as a contra ct and is controlled by the rules of construction applicable to ordinary

contracts. ” Ho ward v. Howard , 490 S. W.3d 179, 184 (Tex. App.

— Houston [1st Dist.]
201 6, pet. denied ) (citing All en v. A llen , 717 S.W.2d 311, 313 (Tex. 1986) ). The court ’ s task is to give eff

ect to the parties ’ intention as expressed in the agreement. Waldrop v. Waldrop , 552 S.W.3d 39 6 , 40 7 (Tex. App.

— Fort Worth 2018, no pet.) (citing El Paso Field Servs., L.P. v. Ma sTec N. Am., Inc. , 389 S.W.3d 802, 805 (Tex. 2012) ). To accomplish t hat task, we give effect to the entire agreement so that none of its provisions are r endered mean ingless

. I d. ; Howard , 490 S.W.3d at 184. In addition,

“ [w] e will not construe contracts to p ro duce an absurd result when a reasonable
alternative constructio n exists. ” Ma rkel Ins. Co. v. Muzyka , 293 S.W.3d 380, 387 (Tex.7

App.

— Fort Worth 2009 , no pet. ) ; accord S . C ty . Mut. Ins. v. Sur. Bank, N.A. , 270 S.W.3d 684, 689 (Tex. App.

— Fort Worth 2008, no pet. ). Contract construction begins with the express langua ge o f the agreement
. See Perry v. Perry , 512 S.W.3d 523, 527

– 28 (Tex. App.

— Houston [1st Dist.] 2016, no pet

. ) ( ci ting Italian Cowboy Partners, Ltd. v. Prudential Ins. C o. of Am ., 341 S.W.3d 323, 3 33 (Tex. 2011) ). “ If the written instrument is so worded that it can be give n a certain or definite legal meaning or interpretation, then it is not ambiguous and the c our t will
construe the contract as a matter of law. ” Coker , 650 S.W.2d at 393

. A n agre eme nt is not ambiguous merely because the parties offer differe nt interpretations of its language

. Grain Dealers Mut. Ins. Co. v. McKee , 943 S.W.2d 455, 458 (Tex. 199 7 ) ; Wa ldrop , 552 S.W.3d at 408

. It is ambiguous only if its language is “ susceptible to two

o r more reasonable interpretations. ” Kelley

– Coppedge, Inc. v. Highlands Ins. Co. , 980 S.W.2d 462, 465 (Tex. 1998) (emphasis added) ; see Waldrop , 552 S.W.3d at 408

.

B
. C ONSTRU ING THE D IVORCE D ECREE
1. The Parties’ P ositions
Husband contends that the reimbu rsement provision requ ired Wife to use a licensed tax pre pare r to prepare t wo draft federal income tax returns that included only her income (

not Rosing ’ s) and t h at di ffer ed only in that one would include the
taxabl e amount of the liquidated Plan fun ds and the other would not. In addition, Wife was required to furnish those draf t tax returns to Husband on or before June 1,
2017. He ur ges that Wife did not comply wit h any of these requirements.8

Wife, on the other h and, contends that she was not requ ired to use a “ licensed
income tax preparer ” because that term was not defined in the decree and has no commonly u nderstood meaning. She al so conte nds that the decree req ui re d only that
she furnish one draft tax return t hat includ es the liquidated Plan fu nds and one that does not, not t hat those draft s must otherwise be the same or that they could not include Rosing ’ s income

. Based on this construc tion of the decree, W ife u rges that she complied with the reimbursement pr ovision by sending Husband two admi ttedly
incorrect and dissimilar draft tax return s , one of which was a joint return that included Rosing ’ s income, before the June 1 , 201 7 deadline.

2. Mirror Image Dr a ft Ta x Returns
We first consider whether Wife was req uired to provide draft returns diff er ing only in the inclusion or exclusion of the liquidated Plan funds

— w hat the parties and
the trial cour t referred to as “ mirror image ” draft tax returns. In keeping wit h the principles stated above, we begin with the exp ress lan guage of the decree

. See Italian Cowboy Partners , 341 S.W.3d at 333 ; Perry , 512 S.W.3 d at 527

– 28

. The reimbursement provision identifie d Husband ’ s ob ligation

— “ to reimburse [Wife] for 70% of the i nc ome taxes incur red by [Wife] as a result of the li quidation of
the funds in the Plan

. ” It then provide d that “ [t] he amount of such inco me tax liability will be determined ” by Wife havin g “ two (2) sepa rate dr aft income tax re turns prepared . . . one draf

t which inclu des the taxable amoun t of fund s liquidated from
the Plan as income and one draft which does n ot include su ch liquidated funds as9

income. ” The amount that Husband was obligated to p ay Wi fe was then def ined as

“ an amount which equals 70% of the d ifference in income tax liabili ty between these
two draft income tax returns

. ”
Wif e ’ s construction of the reimbursement provision focuses so lely on the language that required her to provi de o ne draft tax return that include d funds from
the P lan liquida ti on as income and one draft that did not include those funds as
income. S he contends that because the decree did not say anything about the remaining content of the draft tax retu rns , th ere was no requirement that they
otherwise be similar or “ mirror ima ge s . ” This arg ument contrav enes two bedrock princ i ples of c onstruction

— tha t the decree be construed as a whole so that no provision is rendered m eaningless and that the decree be c on strued to avoid an
absurd result. S ee Waldrop , 552 S.W.3d at 407 ; Muzyka , 293 S.W.3d at 387

. It is clear from the reimbursement provision , and the d ecree as a whole , that
Wife ’ s obligation to provide Husband with the t wo draft tax returns wa s no idl e

exe rc ise. On the contrary, those draft tax re turns wer e spe cifically identifi e d as the

means by which the parties we re to quantify Husband ’ s obligation

. The purpose of
the draft tax return re quirement wa s expressed in its in troductory sentenc e: “ The

amount o f [Husband ’ s] income tax liability will be determi n ed as follows : . . . . ” And that purpose was reiterated in the concluding sentence : “ [Hu sband] is ORDERED to
reimburse [Wife] in an amount which equals 70% of the difference in income tax
liabili ty between these two draft income tax returns

. ”10

Again, Husband ’ s obligation was t o reimbur se Wife “ for 70% of the income taxes incurred by [Wife] as a result of the liquidation of the funds in the Plan

. ” [Empha sis

a dded.] The plain , una mb iguous language of the decree establishe d that th e purpo se of provid ing the two draft t ax ret urns wa s to furnish the method to determine the

amount Husband owed Wife , which necessarily i nclude d determining the amount of
incom e taxes Wife incurred as a re su lt of liquidating the Pl an funds. And , the amoun t of income taxes so incurred could on ly be dete r mined by comparing two draft tax returns that dif

fer only in the inclusion o r exclusi on of the liquidated Plan funds as
income. A ny other deviation between th e two would yield a difference in tax liabi lity that was not necessarily attribu table to the liq u idated Plan funds. It is apparent, then, that W if e ’ s interpre tation of the reimbursement provision

—

which would permit her to furni sh draft tax returns that i nc orporated
different elements of income in additi on to the liquidated Plan funds

— would render
the provision meaningless because the draft tax retur ns would be of no use in determining t he amount Husband wa s required to pay. In fact, Wife tacitly admits in
her b rief that the draft tax return s she gave Hu sband did not fulfill the purpose for
which they were required: “ Because the two tax returns prepa red by or on behalf of
Wife were not c omparable, the trial court needed additional evid ence to determine
this amo un t. ”
I n addition t o rendering portion s of the divorce decree meaningl ess, Wife ’ s

construct i on would lead to an unrea sonab le, if not absurd , result. Unde r that11

construction, Wife could trigger Husband ’ s duty to pay by giving him two d ra ft tax

returns from which he could not determi ne the amount he owed.
The unreasonable ness of W ife ’ s construct

i on is also illustrated by the two draft

returns that she conte nds satisfied her duty under the reimbursement provision. One
draf t inclu ded only her w age income; the other included he r wage income, soci al security disability income , Rosing ’ s wage income, a nd the liquidated Plan fu nds

. It is

re adily apparent that the difference in tax liability between the two incl ude d
diffe rences attribu table to W ife ’ s social security disability incom e and Rosing ’ s wage income. But if those d rafts were sufficient to comp l y with the reimbursement provision, th en that same provi sion would have require d Husband to pay “ 70% of the
difference in income tax liability betwee n these two draft income tax retur ns , ” including the amounts not attributable to th e liquidated Plan funds

. Most certainly this is not what the parties i ntended, but it would be the necessary result of W ife ’ s construction of the de cree. W hile the part

ie s offer differing interpre tations of the reimbursement provision, that provision is not ambiguous because W i fe ’ s interpretat ion is not
reasonable. See Ke lley

– Coppedge , 980 S.W.2d at 465 ; Waldrop , 552 S.W.3d at 408

. We
conclude , as a matter of law, that r equiring Wife to furnish “ one draft [tax return]
which includes the taxable amo un t of funds liquidated from the Plan as inco me and
one draft which does not include such liquidated funds as income ” means that the
drafts were to differ o nly in that stated re spect. O nly by isolating this one variable12

could the drafts serve their purpose of identifying “ the income taxes incurred b y [Wife] as a result of the liquidation of the funds in the Plan ” and , thus, the amount Husband was required to pay. [Emphasis ad de d.]
3
. Including Rosing ’ s I ncome We next consider whether providing a dr aft t ax return that included Rosi n g ’ s incom e complied with the reimbur sement provision

. Wife urges that it did because
the decr ee was silent on whether her returns could or c ould not include her new

s pouse’s income

. We disagree.
Wi fe ’ s accounting expert testified that she h ad two option s for filing h er 2016 income tax return

— jointly with Rosing or married filing separately. Those options d o not, however, apply to her duty under the reimbursement provision. That duty was to provide Husband with two draft tax retu rns from which the parti e s could
calculate Wife ’

s tax liability resulting from li quidating the Plan funds. The use of the
word “draft ” demonstrat es that these documents wer e distinct from whatever tax

return Wife ultimately filed with the IRS. See Hernandez v. State , 6 14 S.W.3d 760, 765 (Tex. Crim. App. 2019) (Slaugh ter, J., dissenting) (distinguishing between a
governm e nt al record and a draft gov ernment al record). And the fact that they were
to be u sed to determine Wife ’ s tax liability resul ting from the liqui dated Pl an funds
p reclude d the use of a draft that also encompassed anyone else ’s tax li ability.
As a result , w hile Wife was free to file a joint return with the IRS, pr ovi ding
Husband a joint tax return did not comply with her obligati on under the13

reimbursement provision

. On the contrary , the unambiguous language of the decree

r equired that she provide one draft tax return including only h er own income plus the liquidated Plan funds and one dr aft tax return including only her own incom e.

C. A PPLYING THE C ON STR UCTION TO THE F ACTS It is undis p uted that Wife did not send Husband two draft tax returns, each
includin g only her own income and di fferi ng only in their inclusion or exclusion of the liq uidated Plan funds, on or before June 1, 20 17. Wife therefore did no t fulfill her obligation under the reimbursement provision. The divorce decree clearly and
unambi guousl

y declare d the consequen ce o f that noncompliance : IT IS ORDERED that [Husband ’ s] ob ligation to reimburse [Wife] for federal in come taxes, as set forth above in t h is s ection, shall be waived in the event [Wife] does not presen t the two draft income tax retu r ns to [Husband] on or befor e June 1 of the year following the year in which such l iquidation of the funds in the Plan occurs, as required above. Wife ’ s failu re to comply with her obl igation to p resent the required dr aft tax

returns relieved Husban d of his obligation to reimb urse her

. The trial court therefore
abused its discret

ion by finding that W ife was entitled to re imbursement and by granti ng her judg ment a g ainst Husband in the amount of $18, 069

. Issue one is sustained. As a resul t , we need not address Husba nd ’ s additional issues on appeal.
V. CONCLUSION
The or der of the trial court is rev ersed and we r ender judgment that W i fe take nothing on her p etit

ion to enforce the reimbursement provision of the divorce decree.14 /s/ Brian Walker
Brian Walker J ustice
Delivered: May 6, 202 1