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Cause No. 09-17-00254-CV

IN THE 

NINTH COURT OF APPEALS 

at Beaumont, Texas 

________________________________________________ 

SANDRA EMBESI, APPELLANT 

V.

CHARLES RAY HALL, APPELLEE 

_________________________________________________ 

On Appeal from the 

279th Judicial District Court of Jefferson County, Texas 

Cause No. F-204,290 

__________________________________________________ 

APPELLANT’S BRIEF 

___________________________________________________ 

 

SMITH & SHIPLEY, L.L.P. 

Jolei Shipley 

Texas Bar No. 24041909 

2750 IH-10 East, Suite 200 

Beaumont, Texas 77703 

Tel: (409) 899-1046 

Fax: (409) 899-2648 

ATTORNEY FOR APPELLANT, 

SANDRA EMBESI 

NO ORAL ARGUMENT REQUESTED.

ACCEPTED

09-17-00254-CV

NINTH COURT OF APPEALS

BEAUMONT, TEXAS

12/13/2017 4:52 PM

CAROL ANNE HARLEY

CLERK

 FILED IN 9th COURT OF APPEALS BEAUMONT, TEXAS 12/13/2017 4:52:15 PM CAROL ANNE HARLEY Clerk
-iiIDENTITY OF PARTIES AND COUNSEL

Appellant - Sandra Embesi

Attorney for Appellant - Jolei Shipley

SBN: 24041909

Smith § Shipley

2750 IH-10 East, Ste. 200

Beaumont, Texas 77703

Tel: (409) 899-1046

Fax: (409) 899-2648

Appellee - Charles Ray Hall

Attorney for Appellee - Clint Lewis

SBN: 12275250

The Lewis Law Firm

8445 Gladys Ave.

Beaumont, Texas 77706

Tel: (409) 899-5600

Fax: (409) 899-5682
-iiiTABLE OF CONTENTS

Identity of Parties and Counsel................................................................................. ii

Table of Contents............................................................................iii

Index of Authorities .................................................................................................iv

Statement Regarding Oral Argument ........................................................................v

Statement of the Case ...............................................................................................vi

Issues............................................................................................1

Statement of Facts............................................................................1

Summary of the Argument..................................................................3

Arguments and Authorities ...................................................................3

Issue One: The trial court abused its discretion by denying former Wife’s 

petition for post-divorce division of assets because wife proved that the 

property requested to be divided was not divided by the Final Decree of 

Divorce.

A. Standard of Review...............................................................4

B. Pertinent Facts.......................................................................4

C. Applicable Law.....................................................................6

D. Argument...........................................................................8

Conclusion and Prayer for Relief.............................................................................10

Certificate of Compliance ........................................................................................11

Certificate of Service ..............................................................................................12
-ivINDEX OF AUTHORITIES

Cases

In Re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App. – Texarkana 2003, 

pet. denied)...............................................................................................4

Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980).............................................4

Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App. – San Antonio 2002, no 

pet.).........................................................................................................7

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex. App. – Houston [14th Dist.] 2000, pet. 

denied).....................................................................................................7

Stephens v. Marlowe, 20 .W.3d 250 (Tex. App. – Texarkana 2000)......................7

Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986)..............................................7

Thompson v. Thompson, 500 S.W.2d 203 (Tex. App. – Dallas 1973).................7,8

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)...........................................7

Hagen v. Hagen, 282 S.W.3d 889, 901-02 (Tex. 2009).....................................7

Stirling v. Stirling, 02-10-00329-CV (Tex. App. – Forth Worth 2011).................9

Statutes

Tex. Fam. Code §9.201.....................................................................6
-vSTATEMENT REGARDING ORAL ARGUMENT

Appellant believes that the issues presented are clear and can be resolved by 

this Court without hearing oral argument from either party. 
-viSTATEMENT OF THE CASE

This is an appeal from a judgment denying a request for a division of 

undivided property. The divorce decree was silent as to the division of the former 

husband’s pension plan. The trial court nevertheless denied former wife’s request to 

divide the pension plan.
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ISSUE

Issue One

The trial court abused its discretion by denying former Wife’s petition 

for post-divorce division of assets because wife proved that the property 

requested to be divided was not divided by the Final Decree of Divorce. 

STATEMENT OF FACTS

Sandra Embesi (hereinafter “Sandra”) and Charles Ray Hall (hereinafter 

“Charles”) were married on November 20, 1974. In January 1982, Charles started 

working for Mobil Oil Corporation, now ExxonMobil. (RR 26) Charles eventually 

retired from ExxonMobil with pension and 401(k) benefits in February 2017. (RR 

17-18) On November 4, 2008, Charles and Sandra were divorced. Charles was 

represented in that action by Karen Bennett. Sandra Embesi was unrepresented by 

counsel. 

Sandra filed a bill of review on October 19, 2012 under Cause Number 

C216,691 in the 317th District Court of Jefferson County, Texas asserting that 

Charles’ conduct prevented her from obtaining a greater share of the community 

estate. By agreement, Sandra’s bill of review was granted. Sandra and Charles 

entered settlement negotiations. A sworn inventory of community assets and debts 

was never made by either party. (RR 27) No discovery was conducted. However, 

Sandra and Charles reached a settlement reflected in the Final Decree of Divorce 
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(hereinafter “2013 Decree”) entered by the trial court on September 23, 2013. The 

2013 decree was silent as to the award of the community property ExxonMobil 

Pension Plan. The specific language of the decree awarded Charles the following:

H-5. A portion of Charles Ray Hall’s retirement benefits in 

ExxonMobil Savings Plan arising out of Charles Ray Hall’s 

employment with ExxonMobil as of March 11, 2013, that portion being 

a sum certain, together with any interest, dividend, gains, or losses on 

that amount arising since that date and more particularly defined in a 

Qualified Domestic Relations Order signed by the Court on the day this 

Final Decree of Divorce is signed. 

H-6. All individual retirement accounts, simplified employee 

pensions, annuities and variable annuity life insurance benefits in the 

husband’s name. 

The specific language of the decree awarded Sandra the following:

W-5. A portion of Charles Ray Hall’s retirement benefits in 

ExxonMobil Savings Plan arising out of Charles Ray Hall’s 

employment with ExxonMobil as of March 11, 2013, that portion being 

ExxonMobil, together with any interest, dividend, gains, or losses on 

that amount arising since that date and more particularly defined in a 

Qualified Domestic Relations Order signed by the Court on the day this 

Final Decree of Divorce is signed.

The Qualified Domestic Relations Order awarded Sandra as Alternate Payee 

the sum of $150,000.00. 

On March 19, 2014, Sandra filed a Petition for Post-Divorce Division of 

Property after discovering that Charles had not disclosed to her that he had an 

ExxonMobil Pension Plan. This appeal from the trial court denying Sandra’s 

petition.
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SUMMARY OF THE ARGUMENT

Issue 1. The trial court abused its discretion by denying Sandra’s petition for 

post-divorce division of assets because she proved that the property requested to be 

divided was not divided by the Final Decree of Divorce. The 2013 Decree was silent 

as to a division of the ExxonMobil Pension Plan. Because the 2013 Decree is 

unambiguous in its silence, the language of the 2013 Decree must be interpreted 

according to contract law. Contract law requires that the trial court look only at the 

intentions of the parties as manifested by the contract itself. 

ARGUMENTS AND AUTHORITIES

Issue one: The trial court abused its discretion by denying former Wife’s petition for 

post-divorce division of assets because wife proved that the property requested to be 

divided was not divided by the Final Decree of Divorce.

A. Standard of Review

A trial court’s ruling on a post-divorce division of assets is reviewed under an 

abuse of discretion standard. In Re Marriage of McDonald, 118 S.W.3d 829, 832 

(Tex.App. – Texarkana) 2003, pet. denied). A clear abuse of discretion is shown 

when the division of property is manifestly unjust. Mann v. Mann, 607 S.W.2d 243, 

245 (Tex. 1980).
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B. Pertinent Facts

The 2013 Decree specifically award the ExxonMobil Savings Plan but does 

not mention in the awards to either Sandra or Charles the pension plan, either simply 

as “pension plan” or ExxonMobil Pension Plan. Charles further testified that at the 

time of his retirement, the ExxonMobil Pension Plan was worth about $900,000.00. 

(RR 20)

The testimony of Tim Satre, a certified divorce financial planner when 

questioned during the hearing by Sandra’s counsel stated that the 2013 Decree did 

not specifically address either pension. (RR 44). He further stated that the pension 

plan could not have been described or defined as an individual retirement account, a 

simplified employee pension, an annuity or variable annuity life insurance. (RR 44). 

Under questioning by the trial court, Tim Satre could not identify where the 

pension plan was awarded under any of the awards made to Charles:

Q. All right. So, there’s – so, a pension plan, would it ever be 

– would a pension plan ever be considered a financial 

institution?

A. Where are you looking?

Q. I’m looking at H-3 actually.

A. No.
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Q. Okay. All right. And, then, let’s see. All right. So, there is 

– there is a difference, a significant – I mean there’s an 

identifiable difference between annuity and a pension 

plan?

A. Yes. And this reflects most of the time in these divorce 

decree I see that an annuity would a separate contract you 

buy, insurance company generally never referred to as a 

pension. 

Q. Okay. 

(RR-51)

Q. All rights. And H-8, the pension plan would never – could 

never be defined as a brokerage account or fall into any of 

those categories, or could they?

A. Not a brokerage account, no. I mean, they wouldn’t 

generally be referred as a brokerage account, stocks, 

bonds, mutual funds, securities. No. They would be 

referred to as some type of qualified retirement plan. 

Q. Okay. 

(RR-52)
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Under cross examination by Charles’ counsel, Tim Satre denied that the 

ExxonMobil Pension Plan could be characterized, defined or described as an 

individual retirement accounts or a simplified employee pension. (RR 54). 

C. Applicable Law

 The Texas Family Code provides that former spouses may file a suit to divide 

property not divided or awarded in a final decree of divorce. T.F.C §9.201. Postdivorce partition is an appropriate vehicle to address an undivided or overlooked 

asset. Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex.App.-San Antonio 2002, no pet.); 

Mayes v. Stewart, 11 S.W.3d 440, 448 (Tex.App.-Houston [14th Dist.] 2000, pet. 

denied). Post-divorce division is appropriate where the divorce decree does not 

consider, contemplate or purport to dispose of the property, or where the property 

has been overlooked and as a result has gone undivided. Stephens v. Marlowe, 20 

S.W.3d 250 (Tex.App. – Texarkana 2000). 

To interpret the property award in an agreed divorce decree, the language of 

the decree will be interpreted according to contract law and not the law of judgments. 

Allen v Allen, 717 S.W.2d 311, 313 (Tex. 1986). 

Because an agreed final decree of divorce case is a contract, the court must 

look to the intentions of the parties as manifested in the four corners of the document. 

Thompson v. Thompson, 500 S.W. 2d 203 (Tex. App-Dallas 1973). A contract is 

ambiguous when its terms are susceptible to more than one meaning. Coker v. Coker, 
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650 S.W. 2d 391, 393 (Tex. 1983.) Whether a divorce decree is ambiguous is a 

question of law, and the court must adhere to the literal language of an unambiguous 

decree. Hagen v. Hagen, 282 S.W. 3d 899, 901-02 (Tex. 2009).

D. Argument

Divorce decree language is often drafted broadly enough that it includes 

property not specifically awarded. In many cases, residuary clauses awarding 

undivided property to the person in possession and language such as “any and all 

sums” and “any other rights” is enough to show that the award was contemplated or 

considered. However, in the present decree, it is telling that the award of the 

ExxonMobil Savings Plan was specific, but the decree omits any mention of even 

the generic term pension plan. The only expert to testify in at the final hearing

unequivocally testified under direct examination, cross-examination and questioning 

by the court that the award of the pension plan did not fall under any of the other 

awards to Charles under the 2013 Decree. The court contrasted the language of the 

2013 Decree with the language of the prior decree for which the bill of review was 

granted and wherein the pension plan was mentioned, but only as the generic award 

of the pension plan to Charles. RR 53

In Thompson, the parties entered an agreed divorce decree that purported to 

dispose of all community property. However, the decree failed to mention a joint 

venture entered by husband. The Court of Appeals, after examining the decree and 
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the summary judgment evidence, decided that the parties did not effectively carry 

out the intention by dividing all their property. Id at 207. The decree is binding, and 

it is res judicata only as to the property awarded and brought within the jurisdiction 

of the court. If property was omitted from such consideration, it might authorize the 

opening of the decree as to property. Id at 208. If the decree can be given a certain 

or definite legal meaning or interpretation, then it is not ambiguous, and the court 

will construe the contract as a matter of law.

In Stirling v. Stirling, 02-10-00329-CV, (Tex. App.-Fort Worth 2011), the 

award of property to husband included “any profit-sharing plan, retirement plan, 

Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee 

saving plan, accrued unpaid bonuses, disability plan, or other benefits existing by 

reason of the husband’s past, present, or future employment...” Wife filed a petition 

for post-divorce division. The trial court awarded wife fifty percent of the 

community property interest in husband’s pension plan. The court of appeals 

reversed. The decree expressly awarded the pension plan to Husband.

If the decree is silent as to an award, then it remains undivided and is subject 

to a just and right division by the Court. The 2013 Decree is utterly silent as to the 

ExxonMobil Pension Plan that is part of the ExxonMobil benefits package. 
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CONCLUSION AND PRAYER FOR RELIEF

Because the language of the decree is unambiguous and fails to divide the 

ExxonMobil Pension Plan, the trial court abused its discretion in denying Sandra 

Embesi’s Petition for Post-Divorce Division of Property. 

WHEREFORE, PREMISES CONSIDERED Appellant, Sandra Embesi, 

prays this Court to, in all things, affirm the judgment of the trial court. 

Respectfully submitted,

SMITH § SHIPLEY, LLP

Attorneys at Law

2750 IH-10 East, Suite 200

Beaumont, Texas 77703

Tel: (409) 899-1046

Fax: (409) 899-2648

By:

Jolei Shipley

State Bar No. 24041909

jshipley@smithshipley.com

Attorney for Appellant
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CERTIFICATE OF COMPLIANCE

I certify that this document brief/petition was prepared with Microsoft Word 

2010, and that, according to that program’s word-count function, the sections 

covered by TRAP 9.4(i)(1) contains 2333 words.

Respectfully submitted,

SMITH § SHIPLEY, LLP

Attorneys at Law

2750 IH-10 East, Suite 200

Beaumont, Texas 77703

Tel: (409) 899-1046

Fax: (409) 899-2648

By:

Jolei Shipley

State Bar No. 24041909

jshipley@smithshipley.com

Attorney for Appellant
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was 

served on Appellant’s counsel of record in accordance with the Texas Rules of Court 

on this 13th day of December, 2017, as follows:

Via Electronic Service 

Mr. Clint Lewis

The Lewis Law Firm

8445 Gladys Ave.

Beaumont, Texas 77706

By:___________________________

 Jolei Shipley