COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00007-CV

JAMES CHAFIN APPELLANT

V.

RICHARD G. ISBELL AND 

FAIRWAY INDEPENDENT 

MORTGAGE CORPORATION

APPELLEES

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

ON REHEARING

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Appellees Richard G. Isbell and Fairway Independent Mortgage 

Corporation filed a motion for rehearing of our memorandum opinion issued 

December 2, 2010. To the extent Appellees argue that this appeal should be 

 

1See Tex. R. App. P. 47.4.
2

remanded, we grant their motion for rehearing. We deny the remainder of the 

motion.2

On February 10, 2011, Appellant James Chafin filed a ―Motion to Amend 

Judgment,‖ which we construe as a motion for rehearing, and a motion to extend 

time to file the motion to amend judgment. We deny James‘s motion to extend 

time to file the motion to amend.

We withdraw our opinion and judgment dated December 2, 2010, and 

substitute the following.

I. INTRODUCTION

The primary issue we address in this appeal concerns the construction of a 

divorce decree and whether, as a matter of law, it did or did not divest James of 

his interest in certain real property. In two issues, James argues that the trial 

court erred by granting summary judgment for Appellees and by denying his 

motion for summary judgment. We will reverse and render in part and remand in 

part.

II. FACTUAL AND PROCEDURAL BACKGROUND

The trial court signed an ―Agreed Final Decree of Divorce‖ dissolving the 

marriage of James and Kristine Rynetta Chafin on July 20, 2004. In dividing the 

marital estate, the decree included a disposition of two residences owned by 

 

2We grant Appellant James Chafin‘s motion to extend time for filing reply 

brief to Appellees‘ motion for rehearing.
3

James and Kristin: the ―Jenkins property‖ and the ―Osprey property.‖ The 

decree stated the following in regard to the Jenkins property:

IT IS ORDERED AND DECREED that the husband, [James], 

is awarded the following as his sole and separate property, and the 

wife is divested of all right, title, interest, and claim in and to that 

property:

H-1. The following real property, including but not limited to

any escrow funds, prepaid insurance, utility deposits, keys, house 

plans, home security access and code, garage door opener, 

warranties and service contracts, and title and closing documents:

BEING LOT 62, IN BLOCK 209 OF THE COLONY NO. 

24, AN ADDITION TO THE CITY OF THE COLONY, 

DENTON COUNTY, TEXAS ACCORDING TO THE 

MAP THEREOF RECORDED IN CABINET C, PAGE 

200 OF THE MAP RECORDS OF DENTON COUNTY, 

TEXAS.

This award to the husband is subject to payment of the sum of 

$10,000.00 to [Kristine] upon the sale of the property located at 5916 

Osprey Court, The Colony, Texas 75056 for her portion of equity in 

this real property, as set forth hereinbelow. [Emphasis added.]

The decree ordered James to pay ―[t]he balance due . . . on the promissory note 

executed by [Kristine] and [James] and secured by Deed of Trust on the real 

property awarded in this Decree to [James].‖

Concerning the Osprey property, the decree stated the following:

IT IS ORDERED AND DECREED that the wife, [Kristine], is 

awarded the following as her sole and separate property, and the 

husband is divested of all right, title, interest, and claim in and to that 

property:

W-1. The use and benefit of the following real property, until it 

is sold as set forth hereinbelow:

BEING LOT 1, BLOCK B, STEWART PENINSULA 

SOUTHSHORE PHASE 1, AN ADDITION TO THE 
4

CITY OF THE COLONY, DENTON COUNTY, TEXAS 

ACCORDING TO THE MAP THEREOF RECORDED IN 

THE MAP RECORDS OF DENTON COUNTY, TEXAS 

[Emphasis added.]

The decree ordered Kristine to pay ―[t]he monthly payments (until the property is 

sold) on the promissory note executed by [Kristine] and [James] payable to 

Ameriquest Mortgage and secured by deed of trust on the real property located 

at 5916 Osprey Court, The Colony, Texas 75056.‖

In addition to dividing the Jenkins property and Osprey property, the 

decree included a section entitled ―Provisions Dealing with Sale of Residence,‖ 

which ordered the sale of the Osprey property pursuant to the following terms 

and conditions:

1. The parties shall list the property with a duly licensed real 

estate broker having sales experience in the area where the 

property is located . . . .

2. The property shall be sold for a price that is mutually 

agreeable to [Kristine] and [James]. If [Kristine] and [James] are 

unable to agree on a sales price, on the application of either party, 

the property shall be sold under terms and conditions determined by 

a court-appointed receiver.

3. [Kristine] shall continue to make all payments of principal, 

interest, taxes, and insurance on the property during the pendency 

of the sale, and [Kristine] shall have the exclusive right to enjoy the 

use and possession of the premises until closing. All maintenance 

and repairs necessary to keep the property in its present condition 

shall be paid one-half by [Kristine] and one-half by [James].

4. The net sales proceeds . . . shall be distributed as follows:

a. [Kristine‘s] one-half shall be distributed outright to 

[Kristine].
5

b. [James‘s] one-half shall be distributed in the following 

order:

i. Payment to [Kristine] in the amount of $10,000.00 

for her portion of equity in the [Jenkins property].3

ii. Remaining balance to [James]. [Emphasis 

added.]

According to James‘s original petition, William and Ramona Bauerly 

purportedly purchased the Osprey property from Kristine in March 2005. James 

alleged that ―[a]lthough [he] was an owner of the [Osprey property] at the time of 

the sale, he was wrongfully excluded from the closing and his name is not on the 

deed to the Bauerlys.‖ Appellees state that ―[i]n connection with the sale of the 

Osprey Property to Bauerly, a copy of the agreed divorce decree was recorded in 

the Deed Records of Denton County, Texas as evidence that the title to the 

Osprey Property was vested in [Kristine].‖ In April 2007, Isbell purchased the 

property from the Bauerlys, and Fairway provided the mortgage financing.

In May 2009, James sued Appellees for a declaratory judgment and for a 

partition of the Osprey property. He alleged that the divorce decree did not 

divest him of his ownership interest and title to the Osprey property but, instead, 

merely awarded Kristine the use and benefit of the property until it was sold. 

 

3

The decree erroneously provided that Kristine was entitled to payment of 

$10,000 for her equity in the Osprey property instead of the Jenkins property. As 

pointed out by James, this was a drafting error because the portion of the decree 

awarding James the Jenkins property is expressly conditioned on his payment to 

Kristine of $10,000 upon the sale of the Osprey property for her equity in the 

Jenkins property and section 4(a) provides that one-half of the net sales 

proceeds are to be distributed to Kristine for her half share of the property.
6

James averred that he owned an undivided one-half interest in the Osprey 

property; that the Bauerlys could not have acquired a greater interest in the 

Osprey property than that owned by Kristine; that the Bauerlys did not acquire his 

one-half interest in the Osprey property; that neither Isbell nor Fairway 

subsequently acquired interests in the Osprey property as innocent purchasers 

without notice; and that Fairway‘s security interest in the Osprey property did not 

encumber his undivided one-half interest in the property.4

Appellees filed a motion for summary judgment on James‘s claims for 

declaratory relief and for a partition. They argued that there was no genuine fact 

issue that James did not have an interest in the Osprey property because the 

divorce decree divested him of all right, title, and interest in and to the property. 

James responded and filed a counter-motion for summary judgment, arguing that 

he was entitled to summary judgment on his declaratory relief and partition 

claims because the evidence established as a matter of law that the divorce 

decree did not divest him of his interest in the Osprey property and, therefore, 

that he remained the owner of an undivided one-half interest in the property. The 

trial court granted Appellees‘ motion and denied James‘s motion. This appeal 

followed.

III. STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant 

met the summary judgment burden by establishing that no genuine issue of 

 

4

James alleged in the alternative that the divorce decree was ambiguous.
7

material fact exists and that the movant is entitled to judgment as a matter of law. 

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo, 

taking as true all evidence favorable to the nonmovant and indulging every 

reasonable inference and resolving any doubts in the nonmovant‘s favor. Mann 

Frankfort, 289 S.W.3d at 848; 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 

2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We 

consider the evidence presented in the light most favorable to the nonmovant, 

crediting evidence favorable to the nonmovant if reasonable jurors could and 

disregarding evidence contrary to the nonmovant unless reasonable jurors could 

not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable 

and fair-minded jurors could differ in their conclusions in light of all of the 

evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 

(Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005). 

When both parties move for summary judgment and the trial court grants one 

motion and denies the other, the reviewing court should review both parties‘ 

summary judgment evidence and determine all questions presented. Mann 

Frankfort, 289 S.W.3d at 848. The reviewing court should render the judgment 

that the trial court should have rendered. Id.

IV. DECLARATORY JUDGMENT

In his first issue, James argues that the trial court erred by granting 

Appellees summary judgment and by denying his motion for summary judgment 
8

on his declaratory judgment claim because the decree did not, as a matter of law, 

operate to convey his interest in the Osprey property to Kristine but merely 

awarded her the ―use and benefit‖ of the property until it was sold. James 

concedes that Kristine would have had the authority to sell the Osprey property 

without his participation had the decree divested him of his interest in the 

property, but he argues that because the decree, which is unambiguous, did not 

divest him of his interest, he remained—and continues to be—a joint owner of 

the property. According to James, because he owns an undivided one-half 

interest in the Osprey property, Isbell could not have mortgaged more than half of 

the property (the half interest that the Bauerlys purchased from Kristine and that 

Isbell purchased from the Bauerlys) and the lien asserted by Fairway is 

ineffective as to his one-half interest in the property.

Appellees agree that the sole issue on appeal is whether the divorce 

decree, which they also agree is unambiguous, divested James of title to the 

Osprey property. But unlike James, they argue that ―the divorce decree[,] when 

read as a complete document, rather than isolating certain phrases, clearly 

divests [James] of any title interest in the Osprey Property.‖ Appellees base this 

argument primarily on the provision in the decree that addresses the division of 

the Osprey property and provides that James is divested ―of all right, title, 

interest, and claim in and to that property.‖ In light of this language, they argue 

that ―[t]he decree . . . clearly states that [James] is  ̳divested of all right, title, 

interest‘ to the property.‖ Appellees also rely on the provisions in the decree 
9

making Kristine responsible for the monthly payments and ad valorem taxes on 

the Osprey property and ordering James and Kristine to execute and exchange 

special warranty deeds.

An agreed divorce decree is interpreted according to the law of contracts. 

Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); Chapman v. Abbot, 251 S.W.3d 

612, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Soto v. Soto, 936 

S.W.2d 338, 341 (Tex. App.—El Paso 1996, no writ). Our primary concern when 

interpreting an agreement is to ascertain and give effect to the intent of the 

parties as it is expressed in the agreement. Coker v. Coker, 650 S.W.2d 391, 

393 (Tex. 1983); Chapman, 251 S.W.3d at 616. We examine the writing as a 

whole in an effort to harmonize and give effect to all the provisions so that none 

will be rendered meaningless. Coker, 650 S.W.2d at 393. If the agreement 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. Id.; Broesche v. 

Jacobson, 218 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2007, pet. 

denied). If the agreement is capable of more than one reasonable interpretation, 

it is ambiguous. Broesche, 218 S.W.3d at 271.

We agree with James and Appellees that the divorce decree is 

unambiguous. We therefore construe the decree as a matter of law. See Coker, 

650 S.W.2d at 393.

The divorce decree orders and decrees that Kristine ―is awarded the 

following as her sole and separate property‖ and that James ―is divested of all 
10

right, title, interest, and claim in and to that property.‖ [Emphasis added.] The 

italicized language, ―the following‖ and ―that property,‖ is intended to refer to the 

items of marital property listed immediately thereafter of which Kristine is 

awarded as her separate property and James is divested of all right, title, 

interest, and claim in and to. In the absence of identifying some property that 

Kristine is awarded (and of which James is divested), the provision would have 

no meaning or effect whatsoever. See Wilde v. Murchie, 949 S.W.2d 331, 333 

(Tex. 1997) (cautioning that courts should not give conclusive effect to a 

judgment‘s use or omission of commonly employed decretal words); Tex. 

Workers’ Comp. Ins. Fund v. Lopez, 21 S.W.3d 358, 362 (Tex. App.—San 

Antonio 2000, pet. denied).

The first item of marital property that Kristine is awarded as her separate 

property and that James is divested of all right, title, interest, and claim in and to 

is the ―use and benefit‖ of the Osprey property ―until it is sold.‖ Although the 

decree contains a legal description of the Osprey property, it clearly and 

unambiguously provides that Kristine is awarded as her separate property only 

the ―use and benefit‖ of the property. This particular provision simply does not 

award Kristine full title to the property, including James‘s undivided one-half 

interest. Appellees‘ interpretation of the decree—that Kristine was awarded title 

to the Osprey property—unquestionably renders meaningless the decree‘s ―use 

and benefit‖ language.
11

A divorce decree awarding a spouse the ―use and benefit‖ of a residence is 

not unheard of or uncommon. In 1915, the Austin court of civil appeals 

considered whether a judgment awarding the wife the ―use and benefit‖ of the 

homestead during her life divested the husband of his interest and title to the 

property. Wade v. Wade, 180 S.W. 643, 643 (Tex. Civ. App.—Austin 1915, no 

writ). The court concluded that granting the wife ―the use of the homestead 

during her natural life is not, we think, equivalent to divesting [the husband] of his 

title thereto. It has been expressly held . . . that the court, in divorce cases, has 

the right to decree the use and benefit of the homestead to the wife during her 

lifetime.‖ Id. at 644 (citations omitted). Other courts have reasoned similarly. 

See Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 129 (Tex. 1991) 

(reasoning that divorce decree awarding wife the ―use and occupancy of the 

residence‖ created in her rights analogous to those of a life tenant and in 

husband a future interest similar to that held by a vested remainderman); 

Gilleland v. Meadows, 329 S.W.2d 485, 488 (Tex. Civ. App.—Waco 1959, no 

writ) (stating that husband had an interest in property that was awarded to wife 

for the use and benefit of her minor children); see also Bakken v. Bakken, 503 

S.W.2d 315, 317 (Tex. Civ. App.—Dallas 1973, no writ) (reasoning that evidence 

supported trial court‘s decree awarding wife residence for the use and benefit of 

her and the minor children and the first $7,500 of the net proceeds from the 

eventual sale of the residence).
12

Our construction is supported when we examine the decree as a whole, as 

we must. See Coker, 650 S.W.2d at 393. The portion of the decree awarding 

property to James contains the same decretal language preceding the 

identification of property as that found in the part of the decree awarding Kristine 

property. It states that James ―is awarded the following as his sole and separate 

property‖ and that Kristine ―is divested of all right, title, interest, and claim in and 

to that property.‖ However, unlike the decree‘s award to Kristine of the ―use and 

benefit‖ of the Osprey property ―until it is sold,‖ the decree here provides that 

James is awarded ―[t]he following real property,‖ including the title and closing 

documents. There is no dispute that this contrasting language awarded James 

the Jenkins property.

Further, the portion of the decree setting out the terms and conditions of 

the sale of the Osprey property supports our construction. The decree provides 

that ―[t]he parties‖ shall list the property, that the property shall be sold for a price 

that is ―mutually agreeable‖ to Kristine and James, and that Kristine shall have 

the exclusive right to enjoy the ―use and possession‖ of the premises until 

closing. The decree essentially reaffirms that Kristine is merely awarded the use 

of the Osprey property instead of title, and it makes little sense, if any, to order 

Kristine and James to jointly list the property and to mutually agree on a selling 

price if the decree awarded Kristine title to the property.

Contrary to Appellees‘ argument, the decree‘s award to Kristine of only the 

―use and benefit‖ of the Osprey property does not conflict with its ordering her to 
13

make payments on the property and to pay the ad valorem taxes until the 

property is sold. And we cannot conclude that the portion of the decree ordering 

that James and Kristine exchange special warranty deeds in the forms attached 

to the decree conflicts with our construction; there are no special warranty deeds 

attached to the decree, and thus there are no special warranty deeds that are a 

part of the summary judgment record.

A case with strikingly similar facts and issues to this case is Starkey v. 

Holoye, 536 S.W.2d 438, 439–40 (Tex. Civ. App.—Houston [14th Dist.] 1976, 

writ ref‘d n.r.e.). In that case, Starkey and Safford‘s divorce decree awarded 

marital property to Safford and the minor children ―for their use and benefit as 

their home, until the youngest of said children shall have reached the age of 

eighteen (18) years.‖ Id. at 440. After the divorce, Safford remarried, and he and 

his wife later purported to convey the entire property to the Holoyes by a general 

warranty deed, which was subject to a vendor‘s lien assigned to United Mortgage 

Company of Texas. Id. Starkey sued Holoye and United Mortgage Company for 

title to an undivided one-half interest in the property, for partition of the property 

or the proceeds from the sale thereof, and, among other things, to have liens on 

the property declared to be of no force and effect as against her interest in the 

property. Id. at 439. The Holoyes filed a cross-action against Safford, and the 

trial court ultimately denied Starkey‘s motion for summary judgment. Id. On 

appeal, in addition to determining that the divorce decree awarded Safford a right 
14

to reimbursement for payments he made on the property after the divorce, the 

court of civil appeals reasoned as follows:

Since the property was not partitioned at the time of the 

divorce, [Safford] and [Starkey] became tenants in common or joint 

owners thereof, each owning an undivided one-half interest. With a 

deed on record showing the owners of the property to be [Safford 

and Starkey], the Holoyes could not have purchased from [Safford 

and his wife] any greater interest in the property than was owned by 

[Safford]: an undivided one-half interest. Upon their purchase of 

[Safford‘s] interest, the Holoyes became tenants in common with 

[Starkey]. [Starkey] presently owns an undivided one-half interest, 

subject to a claim by [Safford] for reimbursement for any payments 

made on the property after [the date of the divorce]. Since she is still 

a joint owner of the property, and absent any agreement not to 

partition, [Starkey‘s] right to partition is absolute under [the property 

code].

Further, the Holoyes could not mortgage more of the property 

than they owned. Therefore, they could not mortgage [Starkey‘s] 

interest, and the lien asserted by United Mortgage Company is 

ineffective as to [Starkey‘s] one-half interest.

Id. at 441 (citations omitted). Starkey is instructive on James‘s claims for 

declaratory judgment and for partition.

We have examined the divorce decree as a whole toward the end of 

harmonizing and giving effect to all that is written. See Wilde, 949 S.W.2d at 

333. We hold that the trial court erred by granting Appellees‘ motion for 

summary judgment on James‘s declaratory judgment claims and by denying 

James‘s motion for summary judgment on that claim. The divorce decree did 

not, as a matter of law, convey James‘s interest in the Osprey property to 

Kristine, thus divesting him of title to the property; rather, the decree awarded 

Kristine only the ―use and benefit‖ of the Osprey property until it was sold. 
15

Because the divorce decree did not convey James‘s interest in the Osprey 

property to Kristine, James and Kristine became tenants in common, Kristine 

could not have transferred James‘s interest in the Osprey property, Isbell could 

not have acquired James‘s interest in the property when he purportedly 

purchased the property from the Bauerlys, and Fairway‘s security interest could 

not have encumbered James‘s interest. See Starkey, 536 S.W.2d at 441. 

Accordingly, we sustain James‘s first issue.

V. PARTITION

In his second issue, James argues that he has an absolute right as a joint 

owner to a partition of the property.

5

 A joint owner or claimant of real property or 

an interest in real property may compel a partition of the interest or the property 

among the joint owners or claimants. Tex. Prop. Code Ann. § 23.001 (Vernon 

2000). The right to partition has been characterized as ―absolute.‖ Grant v. 

Clouser, 287 S.W.3d 914, 919 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

The rules of civil procedure set out a multi-step process for partition of real 

estate. See Tex. R. Civ. P. 756–71; Long v. Spencer, 137 S.W.3d 923, 925–26 

(Tex. App.—Dallas 2004, no pet.); Positive Feed, Inc. v. Wendt, Nos. 01-96-

00614-CV, 01-96-01250-CV, 1998 WL 43321, at *4 (Tex. App.—Houston [1st 

Dist.] Feb. 5, 1998, pet. denied) (op. on reh‘g).

 

5

There is no evidence that James waived his right to partition the property.
16

In light of our holding above and the extent of the record, it appears that 

the only part of the partition process that has occurred is the determination of the 

parties‘ shares or interest in the Osprey property. The trial court, not this 

appellate court, is the appropriate venue to address the remaining, unresolved

aspects of James‘s claim for partition, whatever they may be. See Tex. R. Civ. 

P. 760–71.

VI. CONCLUSION

Having sustained James‘s first issue, we reverse the trial court‘s judgment 

and render judgment in favor of James on his claims for declaratory relief. We 

remand James‘s claim for partition to the trial court for further proceedings 

consistent with this memorandum opinion.

BILL MEIER

JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DELIVERED: March 17, 2011