author: CHARLES D. SUSANO, JR., J.,

text:
    Glenda EMMIT v. Richard EMMIT, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Assigned on Briefs Nov. 24, 2004.
    Feb. 24, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      M. Keith Davis, Dunlap, Tennessee, for the appellant, Glenda Emmit.
    Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Helen Medley and Omie Ray Medley, co-administrators of the Estate of James Randall Medley.
    No appearance on behalf of Richard Emmit.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY and SHARON G. LEE, JJ., joined.

Glenda Emmit (“the plaintiff’) brought a petition seeking to annul her marriage to Richard Emmit. She alleged that, unbeknownst to her, her prior marriage to James Randall Medley had not been dissolved at the time of her attempted marriage to Mr. Emmit. She claims that this prior marriage prevented her from contracting a valid marriage with Mr. Emmit. The trial court held that the co-administrators of Mr. Medley’s estate (collectively “the co-administrators”) were indispensable parties and ordered the plaintiff to amend her complaint to add them. Following a bench trial, the court below entered a judgment denying the plaintiffs petition for annulment on the ground that she had “unclean hands” and was therefore estopped from averring either that her marriage to Mr. Emmit was invalid or that her marriage to Mr. Medley was not dissolved. The plaintiff appeals. We reverse the judgment of the trial court.

I.

The plaintiff was first married to James Randall Medley in February, 1986. They were subsequently divorced by judgment entered March 31, 1994. Following their divorce, the plaintiff and Mr. Medley continued to interact and live together for periods of time. A few years later, they decided to remarry. They obtained a marriage license on May 16, 1997, which was signed only by Mr. Medley, and they remarried on May 17, 1997. Reverend Beecher Rogers, the plaintiffs brother-in-law, presided over the ceremony, which took place at the home of the plaintiffs sister in Bledsoe County. Approximately 20 to 25 family members were present.

Two to three days after the ceremony, the plaintiff and Mr. Medley decided to have their marriage annulled. The plaintiff went with Mr. Medley to the courthouse. As she was ill as a result of heart problems, she waited in the car. Mr. Medley went into the courthouse and returned with a document for the plaintiff to sign. He subsequently informed her that the marriage had been annulled. Testimony at trial evidenced that Mr. Medley requested a loan from his mother so that he could separate from the plaintiff. Helen Medley wrote a check dated July 1, 1997, to Mr. Medley in the amount of $600 with the notation, “Glenda for divorce.” Helen Medley testified at trial, however, that she did not know precisely how her son intended to use the money.

On March 17, 1999, approximately 20 months after the presumed annulment, the plaintiff married Richard Emmit. Since Mr. Emmit was incarcerated at the time— as he was at all relevant times thereafter — the parties were married at the prison. However, while married to Mr. Em-mit, the plaintiff lived with Randy Harris, who resided behind the prison. Although the plaintiff was still married to Mr. Em-mit during that time, she testified that she and Mr. Emmit “had called it quits.” She neglected to take legal action because she allegedly did not have the finances to do so.

At some time in October, 2000, Mr. Medley contacted the plaintiff and informed her that he had not had their marriage annulled. Mr. Medley also informed her that he was engaged to Mary Johnson. Two weeks later, on November 2, 2000, Mr. Medley was killed in a car accident. The co-administrators of Mr. Medley’s estate filed a petition to probate Mr. Medley’s estate for the purpose of bringing a wrongful death suit in Van Bu-rén County. The plaintiff filed a petition to intervene in that action as Mr. Medley’s wife.

In March, 2002, the plaintiff filed this petition for annulment of her marriage to Mr. Emmit. She claims that her prior marriage to Mr. Medley renders her marriage to Mr. Emmit void. By answer filed April 15, 2002, Mr. Emmit responded that the information contained in the plaintiffs petition was true, that grounds existed for awarding the plaintiff an annulment, and that he had not received any legal advice from the plaintiffs attorneys in this case.

The matter first came before the trial court on May 29, 2002, at which time the court ordered the plaintiff to amend her petition to reflect the effect of the proposed annulment on the disposition of Mr. Medley’s estate. Since Mr. Medley died intestate, an annulment would entitle the plaintiff to take his entire estate. Consequently, the court held in its June 14, 2002, order that the co-administrators of the estate were indispensable parties under Tenn. R. Civ. P. 19. The plaintiff filed her amended petition on June 24, 2002.

The co-administrators filed their answer on July 21, 2003, in which they raised the following affirmative defenses: (1) that since the marriage between the plaintiff and Mr. Medley was invalid because the ceremony was not solemnized by a statutorily-authorized official, she was not married to Mr. Medley when she attempted to marry Mr. Emmit; (2) that the application of the plaintiff and Mr. Medley for a marriage license was invalid because of its failure to comply with the statutory requirements set forth in Tenn.Code Ann. § 86-8-301 (2001), et seq.; (3) that the plaintiff and Mr. Medley did not reside together during this marriage, thereby rendering it invalid; (4) that the plaintiff should be estopped from denying her status as a single person on the day of her marriage to Mr. Emmit; (5) that the plaintiff is guilty of “bad faith and unconscionable conduct;” consequently she comes before the court with “unclean hands,” barring her from annulling her marriage to Mr. Emmit; and (6) that should the allegations be proven true, she is guilty of bigamy and, as such, is not entitled to the relief sought.

At a bench trial on November 24, 2003, the trial court received testimony from the plaintiff and the co-administrators. In support of her case, the plaintiff filed as an exhibit a letter dated June 17, 2002, from the Office of Vital Records certifying that a search of divorce certificates from 1997 through 2002 did not reflect that the plaintiffs marriage to Mr. Medley had been dissolved. The trial court rendered its opinion from the bench and declined to grant the annulment. By written order entered February 6, 2004, the trial court dismissed the plaintiffs petition, holding that the plaintiff was estopped, (1) from denying the existence and validity of the marriage between herself and Mr. Emmit, and (2) from denying the lack of a valid prior marriage with Mr. Medley or the dissolution of the prior marriage. The plaintiff appeals. As we find that the plaintiff was legally entitled to an annulment, we reverse the judgment of the trial court for the reasons set forth herein.

II.

The plaintiff appeals the judgment of the trial court on the ground that Tennessee does not recognize a second marriage contracted at a time when one of the parties has a prior subsisting marriage. The plaintiff further argues that the trial court incorrectly applied the doctrine of unclean hands. The co-administrators retort that the trial court properly declined to grant the plaintiff an annulment as she was es-topped from asserting that she had a prior valid marriage to Mr. Medley or that such marriage was dissolved.

The issue before us is whether there were grounds for an annulment, and, if so, whether the doctrine of unclean hands constitutes a defense to granting an annulment. As we hold that proper grounds exist for granting an annulment, and that the doctrine of unclean hands does not constitute a defense to the plaintiffs request, we reverse the judgment of the trial court.

III.

In matters heard by a trial judge sitting without a jury, we review the trial court’s findings of fact de novo, according a presumption of correctness to those findings. Tenn. R.App. P. 13(d). We will not disturb those findings unless the evidence preponderates against them. Id. We accord no such deference to the trial court’s conclusions of law, reviewing those determinations de novo with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

In the instant case, the plaintiff married Mr. Emmit when she was still married to Mr. Medley. As evidence of this fact, the plaintiff proffered a letter at trial certifying that a search of certified divorce certificates from 1997 through 2002 did not establish a divorce between the plaintiff and Mr. Medley. Since the plaintiff’s marriage to Mr. Medley was not annulled as she believed, her marriage to Mr. Emmit was void.

Tenn.Code Ann. § 36-3-102 (2001) unambiguously provides that “[a] second marriage cannot be contracted before the dissolution of the first.” The public policy of Tennessee dictates that bigamous marriages are void. Taliaferro v. Rogers, 35 Tenn.App. 521, 248 S.W.2d 835, 837 (1951). Such marriages are void ab initio because, until the first marriage is dissolved, the parties lack the capacity to marry. Id. Consequently, such marriages are neither recognized by the courts nor capable of ratification by the parties. Coulter v. Hendricks, 918 S.W.2d 424, 426-27 (Tenn.Ct.App.1995). There is a presumption of the validity of marriage such that where there is a second marriage, it is presumed that the first marriage ended in divorce. Payne v. Payne, 142 Tenn. 320, 219 S.W. 4, 7 (1920). Such a presumption is strong and “is indulged whenever it is necessary to attain the ends of justice.” Id. However, this presumption may be overcome by evidence that a general search of the court records of divorce produced no record of a divorce. Id.

In light of the foregoing principles, we find that the marriage between the plaintiff and Mr. Emmit is void ab initio. The plaintiff furnished evidence that no judgment of divorce had previously been filed dissolving her marriage to Mr. Medley. Consequently, she was legally married at the time of her marriage to Mr. Emmit and, therefore, at that time, she could not contract a second valid marriage. As a court may annul a void, bigamous marriage, Estes v. Estes, 194 Tenn. 96, 250 S.W.2d 32, 34 (1952), we hold that an annulment was proper under the facts of the case before us.

IV.

In declining to grant an annulment to the plaintiff, the trial court relied on the doctrine of unclean hands, stating as follows:

Counsel, I have a situation here, it looks like Mr. Medley died November the 2nd, 2000. This action got filed May the 17th, 2002. In the interim, the plaintiff remains married to another man while living with another man. And, really, I think what I’ve got is a question of — this Court is sitting as a Court of Equity. And the question I’ve got is, do Courts of Equity allow parties to choose that marriage vows are important only when they may benefit financially from those marriage vows? And I don’t think Courts of Equity are going to allow that. I’m going to find that [the plaintiff] does not have clean hands and that she’s es-topped from asserting that she had a prior marriage, prior valid marriage which would give her grounds for annulment. And I’m going to decline to grant the annulment ...

The doctrine of unclean hands provides that “[h]e who comes into Equity must come with clean hands.” Heylandt Sales Co. v. Welding Gas Products Co., 180 Tenn. 437, 175 S.W.2d 557, 561 (1943) (quoting Gibson’s Suits in Chancery, § 42 (4th ed.)). The theory behind the doctrine is as follows:

In the origin of the jurisprudence, the theory was adopted that a Court of Equity interposed only to enforce the requirements of good conscience and good reason, as to matters not equitably determinable in the Law Courts .... it would not be exercised in favor of a person, whose conduct, in the matter he had complained of, had been unconscien-tious, or in bad faith; or who had violated any of those principles of Equity and righteous dealing, which the court had been constituted to enforce. But the operation of the maxim is confined to misconduct connected ivith the particular matter in litigation.

Id. (emphasis added).

The plaintiff argues that the trial court incorrectly applied the doctrine of unclean hands to the facts at bar. In particular, she contends that this doctrine may not be applied where the “alleged wrongful conduct ... appears not to have injured, damaged, or prejudiced the defendant.” Nolen v. Witherspoon, 182 Tenn. 333, 187 S.W.2d 14, 16 (1945) (citation omitted). Therefore, so the argument goes, since there was no proof of the plaintiffs misconduct relative to the issue of whether or not her marriage to Mr. Emmit is void, the doctrine is inapplicable.

We agree with the plaintiff that the doctrine of unclean hands cannot be used as a defense to annulment in this action, yet not for the reasons proffered by the plaintiff. As discussed previously, the marriage between the plaintiff and Mr. Emmit was void ab initio and should therefore be annulled. The tidal court seems to have found the plaintiffs conduct during her marriage to Mr. Emmit and beyond to be deplorable and concluded that, because of this conduct, she should not be able to profit financially by annulling the second marriage and gaining from Mr. Medley’s wrongful death action. However, the plaintiffs conduct is irrelevant to whether she is legally entitled to an annulment. The sole issue before us is whether the plaintiff is entitled to an annulment on the ground that she was not legally capable of entering into a new marriage when she married Mr. Emmit. As the evidence proffered at trial demonstrates that the plaintiffs marriage to Mr. Medley was never dissolved, we find that the petition for annulment should be granted.

The co-administrators contend that since actions to dissolve marriages are equitable proceedings, a court should be permitted to apply equitable principles in such cases. See Sloan v. Sloan, 155 Tenn. 422, 295 S.W. 62, 64 (1927). Therefore, so the argument goes, since the doctrine of unclean hands is an equitable maxim, and it has been applied in the context of domestic relations cases, it is an appropriate ground for declining to award an annulment to the plaintiff. In support of this argument, the co-administrators cite this court’s opinions in O’Brien v. O’Brien, 734 S.W.2d 639, 643 (Tenn.Ct.App.1987), and McCallie v. McCallie, 719 S.W.2d 150, 153-54 (Tenn.Ct.App.1986), both of which involved the defense of unclean hands, but neither of which is directly relevant to our discussion of whether grounds for an annulment exist in this case. We respectfully disagree with the co-administrators’ position.

The doctrine of unclean hands enables a court to prevent a party from profiting from her own misconduct. Id. at 154. The co-administrators argue that the plaintiffs conduct — namely, marrying Mr. Emmit without documentation of her divorce, acting as if she was not married to Mr. Emmit when she was residing with Mr. Harris, and failing to express concern about the status of her marriage until the potential financial gain arose — is relevant to her attempts to annul her marriage to Mr. Emmit. However, where the issue before us is simply whether or not the plaintiffs marriage to Mr. Emmit is void, the" plaintiffs alleged misconduct has no bearing on that determination. The plaintiff testified that she believed she was divorced, and learned only two weeks prior to Mr. Medley’s death that she was, in fact, not divorced. The fact that she was living with someone else or the timing of this petition is irrelevant to the question of whether the marriage to Mr. Emmit was void. We hold that the doctrine of unclean hands is not a defense in this case to the plaintiffs petition for annulment and, therefore, the plaintiffs petition should be granted.

V.

The trial court’s judgment denying plaintiff an annulment is reversed. This case is remanded to the trial court for the purpose of entering an order annulling the plaintiffs marriage to Richard Emmit. Costs on appeal are taxed to the co-administrators, Helen Medley and Omie Ray Medley.


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    VALLEY FORGE INSURANCE COMPANY, Appellant, v. HICKS THOMAS & LILIENSTERN, L.L.P., Appellee.
    No. 01-03-00708-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 16, 2004.

      Russell J. Bowman, Scott, Bowman & Stella, Dallas, TX, for Appellant.
    Laura B. Rowe, John B. Thomas, Hicks, Thomas & Lillenstern, L.L.P., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES, Justice.

In this first-party insurance-coverage dispute, Valley Forge Insurance Co. appeals the trial court’s summary judgment finding that the flood, surface water, underground water, and weather conditions exclusions in the premises insurance policy held by Hicks Thomas & Lilienstern, L.L.P. (the law firm) did not apply.

Valley Forge contends the trial court erred in rendering summary judgment for the law firm while denying summary judgment for Valley Forge. Because we conclude that the trial court erred as a matter of law in finding that the policy provided coverage, we reverse and render judgment for Valley Forge.

Facts

The parties stipulated to the following facts. On June 9, 2001, as a result of the heavy rains generated by Tropical Storm Allison, Buffalo Bayou overflowed its banks and flooded the entire downtown Houston area. Water rushed into the Albert Thomas Convention Center, broke through an interior basement wall of that building, flowed into a downtown parking garage, then into the pedestrian tunnel system, and finally poured into the Bank of America building located at 700 Louisiana Street. The water that poured into the basement of the Bank of America building damaged the electrical equipment that supplied power to the entire building. As a result, the building was closed from June 9, 2001 until July 2, 2001, and the law firm was forced to conduct its business from an alternate interim location.

The law firm had purchased a premises insurance policy from Valley Forge that included coverage for up to 30 days’ worth of lost business income and extra expenses if the firm suffered losses from a covered peril. However, the policy also contained a provision specifically excluding losses due to flood, surface water, overflow of any body of water, or from water under the ground surface.

When Valley Forge denied the law firm’s claim for $873,074.47 in lost business income and $22,263.07 in extra expenses, the law firm sued Valley Forge for breach of contract and breach of the duty of good faith and fair dealing. The trial court rendered partial summary judgment ruling that the losses were covered under the policy and a final judgment awarding the law firm $395,537.54 in damages plus interest and attorney’s fees of $150,000.

Discussion

Valley Forge contends in two intertwined issues that the trial court erred in rendering summary judgment for the law firm and in denying its motion for summary judgment because (1) there was no damage to the covered premises — suite 1700, not the building itself; (2) the lead-in clause and the specific exclusions should be read together, and Valley Forge is not estopped from basing its declination on both; (3) the damage to the premises was caused by flood water and/or surface water, perils excluded from coverage under the policy; and (4) the weather and underground water exclusions are also applicable.

The law firm argued to the trial court and to this Court that, by the time the water entered the Bank of America building, its character had changed from that of flood or surface water to “plain old generic water.” It further argues that Valley Forge is estopped from claiming any reasons for declining coverage that were not expressly set out in its letter of October 21, 2001.

As a threshold matter, we note that, contrary to the law firm’s assertion, the October 21, 2001 letter declining coverage sets out not just the exclusions for flood and surface water, but also the lead-in clause to the named exclusions, which specifies, “We will not pay for loss or damage caused directly or indirectly by any of the [named exclusions]. Such loss or damage is excluded regardless of any other cause or event that contributed concurrently or in any sequence to the loss.”

We further note that Valley Forge’s abbreviated letter was produced in response to a letter from the law firm after it had received Valley Forge’s initial acknowledgment of the claim, asking Valley Forge to “point out with more specificity the reason that you believe coverage may not apply in this instance. It is somewhat difficult to evaluate your reservation of rights letter when the substance of it was to quote approximately 5 pages of language from the insurance policy.” These five pages included, among other provisions, not only the lead-in clause and the exclusions for flood and surface water, but also the exclusions for all types of water and for weather conditions. Accordingly, we conclude that Valley Forge is not estopped from relying on appeal on these other bases for its declination of coverage. Ultimately, however, it is only the flood and surface water exclusion that is relevant to our inquiry.

Standard of Review

The well-settled principles governing the review of summary judgments apply in insurance coverage cases. Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). That is, a summary-judgment movant must establish its right to summary judgment on the issues presented to the trial court by conclusively proving all elements of the movant’s claim or defense as a matter of law. Tex.R. Civ. P. 166a(c); Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.2000). If both sides move for summary judgment and the trial court grants one motion and denies the other, then we review both sides’ summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

The Relevant Policy Provisions

Lost business income and additional expenses were covered under the policy as follows:

A. COVERAGE
5. Additional Coverages
f. Business Income
(1) We will pay for the actual loss of Business income you sustain due to the necessary suspension of your “operations” during the “period of restoration.” The suspension must be caused by direct physical loss of or damage to property at the described premises ... caused by or resulting from any Covered Cause of Loss.
g. Extra Expense
We will pay necessary Extra Expense you incur during the “period of restoration” that you would not have incurred if there had been no direct physical loss or damage to property at the described premises ... caused by or resulting from a Covered Cause of Loss.
B. EXCLUSIONS
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributed concurrently or in any sequence to the loss.
f. Water
(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or the spray, all whether driven by wind or not.
3. We will not pay for loss or damage caused by or resulting from any of the following. But if loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage.
a. Weather Conditions
Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in paragraph 1. above to produce the loss or damage.

Construction of the Policy Terms

Courts employ the doctrine of contra proferentem, or construing a contractual term against the insurer in favor of coverage, only when construing an ambiguous policy provision. Evergreen Natl Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 676-77 (Tex.App.-Austin 2003, no. pet.); see also State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995) (explaining that only if insurance policy remains ambiguous after court applies canons of interpretation should policy’s language be construed against insurer in manner that favors coverage.).

An ambiguity does not arise with respect to a policy merely because the parties advance conflicting interpretations. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). Whether a policy provision is ambiguous is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). In making this determination, we interpret insurance policies according to the rules of contract construction. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

If a contract can be given only one reasonable meaning, it is not ambiguous and will be enforced as written. Kelley-Coppedge, 980 S.W.2d at 464. Our primary task is to give effect to the parties’ intent as expressed in the policy’s plain language. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). To give effect to the parties’ intent as expressed in the pokey’s plain language, we must read all parts of a contract together. Beaston, 907 S.W.2d at 433 (citing Forbau, 876 S.W.2d at 133). In other words, we give effect to the expressed intent of the parties in the policy as a whole, rather than interpret one provision in isolation. Id.

Applying these rules, we conclude that the contested policy provisions in this case are not ambiguous. Loss of business income and extra expense are not covered under this policy if the loss resulted from flood or surface water. We consider the flood and surface water exclusion, in conjunction with the lead-in clause, to be dis-positive of the issue of coverage; thus, we need not address other possible reasons that Valley Forge declined coverage.

Nor do we need to address whether the premises covered by the policy consisted only of Suite 1700 or also included the common areas of the Bank of America building that supplied access and utilities to all of the tenants. We assume, without deciding, that the policy covered these common areas as well as Suite 1700. The only question remaining before us is whether the water had changed its nature so as no longer to be considered flood or surface water, as the law firm argues, thus affording coverage.

Nature of the Water

The crux of the law firm’s argument is that the water mutated from flood water to generic water after it entered the convention center, collapsed a wall, and flowed into the pedestrian tunnel, i.e., the source of the water at that point was not from Buffalo Bayou, but from an artificial source. Clearly the trial court agreed with this proposition. We cannot.

Flood and surface water are defined in pertinent part under Texas law as follows:

Surface water is generally defined as that which is derived from falling rain ... and is diffused over the surface of the ground.... Floodwaters are those which, generally speaking, have overflowed a river, stream or natural water course and have formed a continuous body with the water flowing in the ordinary channel.... Such waters are not divested of their character as surface waters by reason of their flowing from the land on which they first make their appearance onto lower land in obedience to the law of gravity.

Sun Underwriters Ins. Co. v. Bunkley, 233 S.W.2d 153, 155 (Tex.Civ.App.-Fort Worth 1950, writ ref'd). At times, Texas courts have held that flood or surface water, by the time it causes property damage, is no longer flood or surface water. See, e.g., Transamerica Co. v. Raffkind, 521 S.W.2d 935, 936 (Tex.Civ.App.-Amarillo 19785, no writ) (holding that surface runoff absorbed into the ground and circulating as vapor in homeowner’s air-conditioning ducts had lost status as surface water); see also State Farm Lloyds v. Marchetti, 962 S.W.2d 58, 61 (holding that losses sustained by homeowner caused by water that had lost its status as surface water after flowing into underground sewer lines). Two factors distinguish these cases from the one before us. First, in these cases, the composition of the water itself was altered, either by flowing into a pipe and combining with sewage or by becoming vapor. Second, the insurance policies applicable in these cases did not contain a lead-in clause excluding damage from flood or surface water regardless of other contributing causes.

Tropical Storm Allison deluged the area with rain, creating a large amount of surface water and causing Buffalo Bayou to overflow its banks. Once the water entered the convention center, it behaved as strong waters behave — it caved in an interior wall and rushed onward. It did not back up into a sewer line, cause a water main to burst, commingle with water from an underground swimming pool, or otherwise change or dilute its nature. It simply flowed onward, as flood and surface water is wont to do, obeying the law of gravity and flowing into man-made underground structures. The law firm’s loss was caused by a combination of flood and surface water; accordingly, the loss was excluded under the terms of the policy.

Conclusion

We hold that, under the stipulated facts and in light of the pertinent policy provisions, the insurance policy excluded the law firm’s loss from coverage. Therefore, the trial court improperly granted the law firm’s motion for summary judgment and improperly denied that of Valley Forge.

We sustain Valley’s Forge’s issues and reverse the trial court’s judgment. We render judgment that the law firm take nothing by reason of its suit.


author: TIM TAFT, Justice.

text:
    CITY OF SUGARLAND, Appellant, v. James L. BALLARD, Appellee.
    No. 01-04-00418-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 27, 2005.

      Norman Ray Giles, William S. Helfand, Chamberlain, Hrdlicka, White, Williams, & Martin, Houston, for appellant.
    Harold V. Dutton Jr., James S. Bowie II, Houston, for appellee.
    Panel Consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

Appellant, the City of Sugarland (“the City”), appeals from an order denying its plea to the jurisdiction on grounds of governmental immunity from suit in a wrongful-death suit brought by appellee, James L. Ballard (“Ballard”), individually and as representative of the estate of Mark Russell Ballard (“Mark”), deceased. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-2005). We first determine whether the Texas Tort Claims Act (“TTCA”) waives governmental immunity from suit for claims based on (1) officers’ negligent failure to supervise Mark, who was their detainee, and (2) the City’s negligent training and supervision of its officers, its ratification of negligent handling and detention procedures, and its policies. We next determine if the TTCA waives governmental immunity from suit for negligence in fading to secure a detainee properly within a patrol car, which failure allowed the detainee to escape and, during his flight, to be struck by an oncoming car. We reverse the order and remand the cause with an instruction to grant the City’s jurisdictional plea.

Standard of Review

“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). “To determine if the plaintiff has met that burden, ‘we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.’ ” Id. (quoting Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001)). “[I]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). Because sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction, immunity from suit may properly be asserted in a jurisdictional plea. See Tex. Dep’t of Parks & Wild life v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004).

We review de novo a trial court’s ruling on a jurisdictional plea, construing the pleadings in the plaintiff’s favor and looking to the pleader’s intent. Id. at 226; Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Whether the pleader has alleged facts that affirmatively demonstrate subject-matter jurisdiction is a legal question that we review de novo. Miranda, 133 S.W.3d at 226.

Background

The parties submitted no evidence, and our facts thus come from Ballard’s pleadings, viewed in light of his intent and construed liberally in favor of jurisdiction. See, e.g., Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); IT-Davy, 74 S.W.3d 849. On August 17, 2002, police officers of the City arrested Mark, a minor. The officers placed Mark in a police car, from which he tried to escape by kicking out the rear window. The officers then placed Mark in a second police car, but they failed to secure him adequately and, while Mark was “being transported,” he escaped. After Mark escaped from the second police car, a private car struck and killed him “in the 16,900 block of Highway 59.” The petition does not state, and no one presented evidence concerning, the second police car’s location at the time of the escape, whether or how fast the car was then moving, or how soon Mark was struck after he escaped. Ballard’s reply to the jurisdictional plea, however, alleged, without evidentiary support, that the second police car was moving at the time of the escape and that Mark was killed “immediately” upon exiting the patrol car.

Ballard sued the City, alleging that Mark had been killed because of the City’s negligence. Ballard alleged three bases for liability. First, Ballard alleged that Mark died because of the police’s negligent failure “to provide [for the] adequate care, well-being and safety of Mark” while he was in the second car. Second, Ballard alleged that the police misused unspecified tangible property. Third, Ballard alleged that Mark’s death resulted from the City’s “failure to train and properly supervise its police officers”; that the City “permitted, encouraged, tolerated, and ratified a pattern and practice concerning the negligent processing, handling, detainment, security and transfer of juvenile offenders”; and that the officers’ negligence was “the result of customs and policies” of the police department. With respect to the third basis for liability, Ballard alleged that “[t]he foregoing acts, omission and systemic failures constitute a negligent implementation of policy.” The City filed a jurisdictional plea as to each of Ballard’s claims, which the trial court denied.

Waiver of Governmental Immunity from Suit

Neither party disputes that the City performed a governmental function in committing the acts alleged to have been negligent. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.0215(a)(1) (Vernon 1997) (defining municipality’s governmental functions as including “police and fire protection and control”). “A city’s performance of a governmental function entitles it to immunity from suit brought by private parties for tort damages arising out of that function’s performance, absent a waiver of that immunity from suit in, for example, the TTCA.” State v. City of Galveston, No. 01-03-00557-CV, 2004 WL 2066448, at *1, 175 S.W.3d 1, 4 (Tex.App.-Houston [1st Dist.] Sept. 10, 2004, pet. filed) (citing Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021, 101.0215(a), 101.025 (Vernon 1997 & Supp. 2004-2005)).

“Sovereign immunity to suit is waived and abolished to the extent of liability created by” the TTCA. Tex. Civ. PRAC. & Rem.Code Ann. § 101.025(a) (Vernon 1997). The TTCA provides, in turn, for the following waiver of liability:

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (Vernon 2003). The TTCA thus establishes liability, and creates waiver of immunity from suit, for certain damages (1) arising from operation of a motor-driven vehicle or motor-driven equipment (“the motor-vehicle waiver”) and those (2) caused by a condition or use of tangible personal or real property (“the property waiver”). See id. The TTCA “provides a limited waiver of sovereign immunity” from suit. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); accord Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998).

A. Failure to Supervise

We construe Ballard’s claim based on the officers’ failure “to provide adequate care, well-being and safety of Mark” as a claim for failure to supervise Mark while he was in their custody. Such a claim does not fall within the express language of the TTCA’s waiver provisions quoted above. See Tex. Civ. PRAC. & Rem. Code Ann. § 101.021. Indeed, courts have held that the TTCA does not waive immunity from suit for this type of claim.

B. Negligent Training and Supervision of Officers, Ratified Pattern of Negligence, and “Customs and Policies”

None of Ballard’s claims based on negligent training and supervision of officers, a ratified pattern of negligent handling and detainment of juvenile offenders by the City’s police force, and the police force’s “customs and policies” falls within the express language of the TTCA’s waiver provisions quoted above. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021. The TTCA thus does not waive immunity from suit for claims like these. Moreover, with respect to any claim based on the police department’s policy decisions, such claims are barred elsewhere in the TTCA. See Tex. Civ. Prac. & Rem.Code Ann. § 101.055 (Vernon 1997) (“This chapter does not apply to a claim arising: ... from the failure to provide or the method of providing police or fire protection.”); City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995) (“ ‘Thus, if the negligence causing an injury lies in the formulating of policy — ie., the determining of the method of police protection to provide — the government remains immune from liability.’ ”) (quoting State v. Terrell, 588 S.W.2d 784, 787-88 (Tex.1979)).

Accordingly, we sustain the City’s issue with respect to Ballard’s claims based on negligent training and supervision of officers, for a ratified pattern of negligent handling and detainment of juvenile offenders by the City’s police force, and for the City’s “customs and policies.”

C. Negligent Failure to Secure Mark in the Second Police Car

Ballard asserted below, as he reasserts on appeal, that both the TTCA’s motor-vehicle and its property waivers waived immunity from suit for his claim based on the negligent failure to secure Mark properly in the second patrol car.

1. TTCA’s Motor-Vehicle Waiver

For the motor-vehicle waiver to apply, Mark’s death had to “arise[ ] from the operation or use of’ the second police car. Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(1)(A). For the waiver to apply, a nexus must exist between the operation or use of the motor-driven vehicle and the plaintiffs injuries. Whitley, 104 S.W.3d at 543; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). “This nexus requires more than mere involvement of property” and has been described as a “direct nexus.” Put another way, “ ‘the [vehicle]’s use must have actually caused the injury.’ ” Whitley, 104 S.W.3d at 543 (quoting White, 46 S.W.3d at 869) (emphasis added). “Thus, as with the condition or use of property, the operation or use of a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes the injury possible.’” Id. (quoting Bossley, 968 S.W.2d at 343).

Assuming without deciding that the failure properly to secure Mark within the car can be equated with the car’s overall use to restrain and to transport him, we hold that his injury did not arise from those uses. The actual cause of Mark’s death was his deliberate decision to flee into freeway traffic and a separate car’s hitting him there; the failure to secure Mark in the first place merely furnished the condition that made it possible for him to escape and then run into oncoming traffic. There is thus no “direct nexus” between the failure properly to secure Mark in the car and the impact causing his death. See City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (holding that injury of plaintiff — who was detained in negligently parked patrol car that, along with another patrol car, was struck by third-party vehicle — did not arise out of use or operation of patrol car within meaning of TTCA’s motor-vehicle waiver; rather, patrol car merely furnished condition that made injury possible); compare Gutierrez, 54 S.W.3d at 866 (holding that child’s death arose from use of motor vehicle when bus driver honked horn to signal child to walk across street, where she was hit by oncoming vehicle); Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex.App.-Dallas 1987, no writ) (holding that child’s injuries, incurred when she was struck by oncoming vehicle, arose from schoolbus driver’s failure to activate required warning signals to protect child as she debarked bus).

2. TTCA’s Property Waiver

For the TTCA’s property waiver to apply, a condition or use of tangible personal or real property must be involved. Tex. Civ. PRac. & Rem.Code Ann. § 101.021(2). Within section 101.021(2), “use” means “to put or [to] bring into action or service; to employ for or [to] apply to a given purpose.” Miller, 51 S.W.3d at 588. Claims involving the failure to use, or the non-use of property, do not fall within the TTCA’s property waiver. Id. at 587; White, 46 S.W.3d at 869-70; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996).

Additionally, the personal injury or death must be “caused by” the condition or use of the property. Tex. Civ. PRac. & Rem.Code Ann. § 101.021(2). Accordingly, the plaintiff must allege, among other things, that the property’s use proximately caused the personal injury or death. Bossley, 968 S.W.2d at 342-43. Proximate cause consists of cause-in-fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). The test for cause-in-fact is whether the act or omission was a substantial factor in causing the injury, without which the harm would have not occurred. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). To establish cause in fact, or “but for” causation, a party must show that the defendant’s negligence was a substantial factor in bringing about his injury and was a factor without which no harm would have been incurred. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex.2002). “ ‘The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred.’ ” Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995) (quoting Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991)). The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger that his negligence created. Id. The TTCA’s property waiver requires more than the property’s mere involvement, and property does not cause injury if it does no more than furnish the condition making the injury possible. Bossley, 968 S.W.2d at 343. Accordingly, the TTCA’s property waiver has been described as requiring a “direct nexus,” a “close causal relationship,” and “a direct and immediate relationship” between the property’s use and the injury or death.

Here, the failure to restrain Mark properly in the second patrol car is an allegation of non-use of property, for which the TTCA does not waive immunity from suit. See López v. McMillion, 113 S.W.3d 447, 450 (Tex.App.-San Antonio 2003, no pet.) (holding that claim based on failure to restrain inmate by handcuffing or shackling was allegation of non-use of property for which TTCA did not waive immunity); Lacy v. Rusk State Hosp., 31 S.W.3d 625, 630 (Tex.App.-Tyler 2000, no pet.) (holding that failure to lock door, through which patient escaped and later drowned, was non-use of property, for which TTCA did not waive immunity). Because we hold that only a non-use of property was alleged, we need not reach the issue of causation.

We sustain the City’s issue with respect to the negligence claim arising out of the failure to restrain Mark in the second patrol car.

Conclusion

We reverse the order with respect to all of Ballard’s claims, and we remand the cause with instructions for the trial court to grant the City’s jurisdictional plea in its entirety.

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2004-2005).

      . Although the petition does not say so, the parties’ appellate and trial briefing indicates that the second car’s back door was unlocked.

      . Ballard’s petition alleged that the actions underlying this third basis for liability constituted negligence. Nowhere did Ballard cite 42 U.S.C. § 1983 (2002) or claim that his constitutional or statutory rights had been violated; additionally, no one construed these allegations on appeal or below as anything but negligence.

      . See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542-43 (Tex.2003) (holding that TTCA’s motor-vehicle waiver did not apply to claim whose gravamen was that bus driver’s "failure to supervise the public” — by, for example, failing to supervise tortfeasor passenger and failing to return to pick up victim passenger- — allowed tortfeasor, who had threatened victim on bus, to assault victim after both had exited); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) (holding that TTCA does not waive immunity from suit for claim whose substance is that patient’s death was caused by hospital staff’s failure to restrain patient after having learned that he was suicidal); Archibeque v. N. Tex. State Hosp.—Wichita Falls Campus, 115 S.W.3d 154, 160 (Tex.App.-Fort Worth 2003, no pet.) (holding that claim for failure to monitor patient did not fall under TTCA’s property waiver); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 863 (Tex.App.-Austin 2001, pet. denied) ("If the [school bus driver's] act involved only supervision or control [of children passengers], immunity has not been waived, even if the act took place on or near the motor vehicle.”); Amador v. San Antonio

        State Hosp., 993 S.W.2d 253, 256 (Tex.App.San Antonio 1999, pet. denied) (holding that TTCA did not waive immunity for claim based on failure properly to evaluate and to restrain patient, who was assaulted by fellow patients after exiting unlocked door).

        .See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex.2001) (holding that failure to furnish proper training, instruction, training manuals, and documents to officer who injured plaintiff; failure to provide adequate tests for that officer; and failure to discipline that officer fell outside TTCA's property waiver); Norrell v. Gardendale Volunteer Fire Dep’t, 115 S.W.3d 114, 118 (Tex.App.-San Antonio 2003, no pet.) (concerning failure to train and to supervise employees whose negligence injured plaintiff); Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481, 484 (Tex.App.-Beaumont 1995, no writ) (concerning failure to supervise, to control, and to review treatment by doctor whose negligence injured plaintiff).

      . Again, the petition does not expressly allege this claim, but the parties' briefing here and below assumed that the petition did, and we liberally construe Mark’s petition to include such an allegation. We also note that the petition did not expressly allege jurisdiction under the TTCA's motor-vehicle waiver, but we address this basis for waiver nonetheless because both parties addressed it here and below.

      . Whitley, 104 S.W.3d at 543.

      . Ector County v. Breedlove, No. 11-03-00356-CV, 2004 WL 2549146, at *2 (Tex.App.-Eastland Nov. 4, 2004, no pet. h.).

      . Within section 101.021(1)(A), "use” means “to put or [to] bring into action or service; to employ for or [to] apply to a given purpose,” and "operation” means a "doing or performing of a practical work.” LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989)). Ballard does not explain how failing to secure a detainee within a vehicle constitutes the "put[ting] or bring[ing] into action” of, or the "doing or performing of a practical work” with, the vehicle itself. See id. But cf. Finnigan v. Blanco County, 670 S.W.2d 313, 316 (Tex.App.-Austin 1984, no writ) (holding that officer's exiting and leaving patrol car running beside jail, near jail escapee who then commandeered car, was use of vehicle within meaning of TTCA’s motor-vehicle waiver). However, given our disposition, we need not decide the issue of use or operation.

      . We also note that at least one of our sister courts has, in determining the application of the TTCA’s motor-vehicle waiver (TTCA: "property damage, personal injury, or death arises from the ... use of a motor-driven vehicle”), analogized to the test for determining uninsured-motorist coverage (policy: "liability ... must arise out of the ... use of the ... motor vehicle”). See Brown v. Houston Indep. Sch. Dist., 123 S.W.3d 618, 622-23 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). The Brown court applied the coverage test from Mid-Century Insurance Co. of Texas v. Lindsey, 997 S.W.2d 153, 157 (Tex.1999); that test, although not absolute, provides that, for coverage to exist under the policy language quoted above, (1) the accident must have arisen out of the inherent nature of the automobile, as such; (2) the accident must have arisen within the automobile’s territorial limits, and the actual use must not have terminated; and (3) the automobile must not merely contribute to cause the condition producing the injury, but must instead itself produce the injury. Brown, 123 S.W.3d at 622-23 (citing Lindsey, 997 S.W.2d at 157). We conclude that the Lindsey factors also show that Mark’s death did not arise from the patrol car’s use: the accident did not arise from the car’s inherent nature, but instead from the failure to secure Mark properly, from Mark’s decision to flee into freeway traffic, and from another car’s hitting him; the accident occurred away from the police car; and the failure to secure Mark only contributed to his death because Mark’s decision to run into oncoming traffic, plus the impact of a separate car, actually killed him.

      . Breedlove, 2004 WL 2549146, at *2 ("Bossley mandated that there be a direct nexus between the use of tangible personal or real property and the plaintiffs injury.”) (emphasis added).

      . Archibeque v. N. Tex. State Hosp.—Wichita Falls Campus, 115 S.W.3d 154, 159 (Tex.App.-Fort Worth 2003, no pet.); Tex. Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862, 867 (Tex.App.-Fort Worth 2001, pet. denied).

        .Univ. of Tex. Med'l Branch at Galveston v. Hardy, 2 S.W.3d 607, 609 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see Bossley, 968 S.W.2d at 343.


text:
    In re Diane FISCHER-STOKER, Relator.
    No. 01-04-00471-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 5, 2005.

      Shawn Casey, Shawn Casey & Associates, Houston, TX, for Appellant.
    John K. Grubb, John K. Grubb & Asso., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
   OPINION ON REHEARING

EVELYN V. KEYES, Justice.

Relator, Diane Fischer-Stoker, filed a petition for a writ of mandamus in this Court, complaining of the trial court’s refusal to dismiss a contempt proceeding brought against relator by real party in interest, Ronnie H. Stoker. On August 19, 2004, we issued an opinion conditionally granting the writ. Stoker filed a motion for reconsideration. We denied the motion for reconsideration, but, on December 9, 2004, we withdrew our opinion of August 19, 2004 and substituted a new opinion, again conditionally granting relief. Stoker has now moved for rehearing of our December 9, 2004 opinion. We grant the motion, withdraw our December 9, 2004 opinion, and issue this opinion conditionally granting mandamus relief.

Background

Fischer-Stoker and Stoker were divorced by decree entered December 23, 2003. After a bench trial, the trial court ordered both parties to deliver an accounting of their bank accounts as of December 12, 2003, along with a check made payable to the other party for 50% of the sums in those accounts as of that date. Fischer-Stoker failed to abide by the terms of the decree.

On March 22, 2004, Fischer-Stoker timely filed a notice of appeal. On March 26, 2004, Stoker filed a motion for contempt against Fischer-Stoker in the trial court, seeking to have her jailed until she provided him an accounting of certain Wells Fargo bank accounts and a check for 50% of the funds on deposit in those accounts as of December 12, 2003, as required by the terms of the divorce decree. In the alternative, Stoker sought modification of the provisions of the divorce decree to allow him to withhold certain sums awarded him as an offset for Fischer-Stoker’s failure to transfer the Wells Fargo accounts to him. The trial court set April 12, 2004 as the date for a show-cause hearing. Fischer-Stoker filed a motion to dismiss the contempt proceeding, contending that the trial court lacked jurisdiction to enforce the property provisions of the divorce decree while an appeal was pending. On April 19, the trial court denied Fischer-Stoker’s motion to dismiss the contempt proceeding.

On April 28, 2004, Fischer-Stoker filed a petition for writ of mandamus and request for emergency stay in this Court. In her petition, Fischer-Stoker complained that the trial court should have granted her motion to dismiss the contempt proceeding for lack of jurisdiction. On August 19, 2004, we issued our opinion conditionally granting the writ of mandamus sought by Fischer-Stoker. Stoker moved for rehearing. We denied the motion but, on December 9, 2004, we withdrew our August 19, 2004 opinion and issued a second opinion conditionally granting the writ. Stoker again moved for rehearing in light of In re Sheshtawy, 154 S.W.3d 114 (Tex.2004), issued December 31, 2004. We grant the motion, withdraw our December 9, 2004 opinion, and issue this opinion in its stead. We conditionally grant the writ.

Standard of Review

A court of appeals may issue a writ of mandamus “agreeable to the principles of law regulating those writs” against a judge of a distinct or county court in the court of appeals’ district. Tex. Gov’t Code Ann. § 22.221(b)(1) (Vernon 2004). We may grant mandamus relief to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992).

Jurisdiction

Relying principally on Ex Parte Boniface, Fischer-Stoker argues that only this Court may entertain a motion to enforce a divorce decree by contempt after the jurisdiction of the appellate court has attached. 650 S.W.2d 776 (Tex.1983). The Texas Supreme Court held in Boniface:

Generally, contempt proceedings for violations of judgments and orders granting injunctive relief are instituted in the court from which the judgment or order emanated. But, after the jurisdiction of the appellate court has attached, the proceedings for enforcement must be instituted in that court rather than in the trial court.

Id. at 777-78 (emphasis in original). Stoker had previously argued in rebuttal that Boniface and its progeny had been abrogated by statute. He now contends in his second rehearing motion that the Texas Supreme Court’s recent opinion in In re Sheshtawy, 154 S.W.3d 114 (Tex.2004), confirmed the abrogation of Boniface and that he is, therefore, entitled to proceed with enforcement of the property division in the divorce decree by contempt proceedings in the trial court.

In In re Sheshtawy, the wife instituted proceedings for the enforcement of the spousal maintenance provisions of the divorce decree and filed a motion for contempt in connection with those proceedings. Id. at 115. The husband challenged several provisions of the divorce decree on appeal, including the spousal maintenance award. Id. While the appeal was pending, the trial court set a hearing on the wife’s motion for contempt and ordered that the husband be confined for both criminal and civil contempt. Id. at 116-17. The husband sought habeas corpus relief, which the court of appeals denied; the supreme court reversed the court of appeals and granted the relief. The supreme court held,

In examining our decisions, particularly [Ex parte] Boniface [, 650 S.W.2d 776 (Tex.1983)] and Schultz [v. Fifth Judicial District Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex.1991) ], we are unable to discern a compelling reason for withdrawing a trial court’s authority to enforce a final judgment pending appeal when that judgment has not been superseded or stayed and no statute or rule of procedure removes the trial court’s authority. “A court’s contempt power does not depend on statutory authority. ... [It] is an inherent power that is an essential element of judicial independence and authority.” A trial court is free to aid execution while an unsuperseded judgment is on appeal.
An appellate court still retains the overarching power to stay any actions of a trial court, including contempt proceedings, that may interfere with its jurisdiction or the subject matter of the appeal. Accordingly, we hold that when a final judgment has not been superseded or stayed pending an appeal, either the trial court or the court of appeals may entertain a motion for contempt....
In this case, there is no statute or rule of procedure that forecloses a trial court from enforcing a spousal maintenance decree.

Id. at 124-25 (citations omitted) (emphasis added).

Sheshtawy clearly abrogates Boniface’s holding that contempt proceedings initiated to enforce a judgment during appeal of that judgment must be heard in every instance in the court of appeals, rather than in the trial court. Under Sheshtawy, enforcement of a final judgment by contempt may now be sought either in the trial court or in the court of appeals during the pendency of an appeal “when that judgment has not been superseded or stayed and no statute or rule of procedure removes the trial court’s authority.” Sheshtawy, 154 S.W.3d at 124.

In 1985, after Boniface but before Sheshtawy, the Texas Legislature amended the Family Code "to provide that the trial court retains jurisdiction to enforce temporary orders “for the preservation of the property and for the protection of the parties” rendered within 30 days after the date an appeal is perfected unless the appellate court, on a proper showing, supersedes the trial court’s order. Tex. Fam. Code Ann. § 6.709 (Vernon 1998). These orders include those for (1) spousal support, (2) payment of attorney’s fees, (3) appointment of a receiver for the preservation and protection of the property of the parties, and (4) an award to one spouse of exclusive occupancy of the parties’ residence pending the appeal. Id. Sheshtawy makes it clear that the trial court’s ongoing jurisdiction during the pendency of the appeal includes the jurisdiction to enforce an unsuperseded spousal maintenance provision in the final divorce decree by contempt, as well as the jurisdiction to enforce a temporary order of spousal support.

However, the Legislature also amended the Family Code in the intervening years between Boniface and Shesh-tawy with respect to the power of the trial court to issue orders changing or amending the property division in a final judgment of divorce during the pendency of an appeal. Tex. Fam.Code Ann. § 9.007(a), (b) (Vernon 1998). An order to enforce the property division in the divorce decree is limited to an order “to assist in the implementation of or to clarify” the division of property made or approved in the decree, and that power is expressly abated during the pendency of an appellate proceeding. Id. § 9.007(c). Section 9.007 provides in relevant part:

(a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property.
(c) The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.

Tex. Fam.Code Ann. §§ 9.007(a),(c). In English v. English, our sister court interpreted section 9.007(c) to mean that, after rendering the initial decree of divorce containing a property division, the trial court is prohibited from implementing or clarifying the property division by way of further orders. 44 S.W.3d 102, 106 (Tex.App.Houston [14th Dist.] 2001, no pet.). English further provides that “neither the parties nor the ministerial act of execution of the judgment are proscribed.” Id. at 106. We agree with English.

The instant case, however, does not concern execution of the judgment, which is “merely a direction to a ministerial officer to permit enforcement of the judgment.” Id. Rather, Stoker has proceeded against Fischer-Stoker in the trial court with a motion to enforce the terms of the property division in the final divorce decree by criminal contempt if she fails to provide an accounting of her Wells Fargo accounts as of December 12, 2003 and a check for 50% of the money in those accounts on that date. We construe the relief that Stoker seeks as an order to assist in the implementation of the property division in the final divorce decree.

Under the plain language of section 9.007(c) of the Family Code, “[t]he power of the [trial] court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.” Tex. Fam.Code Ann. § 9.007(c). The order that Stoker seeks is precisely the type of order that a trial court is prohibited from issuing during the pendency of an appeal. See id.; see also English, 44 S.W.3d at 106. Thus, unlike the enforcement of the spousal maintenance order sought in Sheshtawy, here “a statute removes the trial court’s authority” to assist in implementing or clarifying the property division in the divorce decree by contempt during the pendency of the appeal.

We hold that, under section 9.007(c) of the Family Code, the power of the trial court to issue an order of contempt to assist in clarifying or enforcing the terms of the property division in the divorce decree is abated during the pendency of the instant appeal. Accordingly, we conditionally grant the petition for writ of mandamus and order the trial court to dismiss Stoker’s motion for contempt.

We order that all further proceedings in the trial court to clarify or to assist in the implementation of the terms of the property division in the divorce decree are abated pending appeal. We will issue a writ only if the trial court fails to comply. We withdraw our May 7, 2004 order staying all contempt proceedings in the trial court.

      . The Honorable Lisa Millard, judge of the 310th District Court of Harris County, Texas. The underlying lawsuit is In the Matter of the Marriage of Diane Fischer Stoker & Ronnie H. Stoker, cause no. 2003-19746 (310th District Ct., Harris County, Texas).

      . Under Texas Rule of Appellate Procedure 26.1, because a request for findings of fact and conclusions of law had been filed, the notice of appeal was due 90 days after the judgment was signed. See Tex.R.App. P. 26.1.


text:
    Diane FISCHER-STOKER, Appellant, v. Ronnie STOKER, Appellee.
    No. 01-04-00262-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 14, 2005.
    Rehearing Overruled Sept. 2, 2005.

      Shawn Casey, Shawn Casey & Associates, Houston, TX, for Appellant.
    John K. Grubb, John K. Grubb & Assoc., Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Diane Fischer-Stoker (Diane), appeals from a judgment awarding property to her husband, Ronnie Stoker (Ronnie), appellee. In six issues on appeal, Diane argues that the trial court (1) failed to follow the parties’ premarital agreement; (2) erred in awarding Ronnie a portion of increases in 401k plans that were generated by community and separate contributions; (3) failed to make a just and right division; (4) failed to award the community property in a 50/50 division; and (5) erred in awarding attorney’s fees to Ronnie. We reverse and remand the cause.

Background

On July 19, 1991, the parties signed a written Premarital Agreement (Agreement). The Agreement incorporated an exhibit that listed their separate property. Pertinent to this appeal, Diane’s separate property included,

2. All assets in the Inland Steel Industries Thrift Plan # 45-278774300 as of July 31,1991.
4. All shares of Magellan Fund held by Fidelity Investments, IRA Account No. T009182799.

The parties were married on July 20, 1991, the day after the Agreement was executed; they filed for divorce in April 2003. Subsequent to the marriage, the Inland Steel Plan was renamed the Ryer-son-Tull Retirement Savings Plan (“Plan”). Diane continued to make contributions from her salary to the Plan during the marriage. The Plan was managed by Fidelity Investments and, at the time of the parties’ divorce, had a balance of almost $500,000. As of the date of the divorce, the Magellan Fund IRA Account (the Fidelity Investments IRA) had a different number, 2AJ-439070, and a balance of almost $60,000.

After a trial, the trial court entered a decree of divorce that awarded Ronnie as his separate property:

H-7 50% of all funds on deposit in the Ryerson Tull Retirement Savings Plan Fidelity in the name of Diane Fischer-Stoker, (ENV number OP002035) above $150,262.66 (Exhibit “A”), as of December 12, 2003, (save and except the $150,262.66 set the wife as her separate property in S-5); and all dividends, income, increases, and decreases on said 50% thereafter.
H-8 50% of all funds in the Fidelity Investments IRA, in the name of Diane Fischer, number 2AJ — 439070, above $15,703.93; (Exhibit “B”), as of December 12, 2003, (save and except the $15,703.93 set the wife as her separate property in S-5) and all dividends, income, increases, and decreases on said 50% thereafter.

The trial court entered findings of fact and conclusions of law in response to Diane’s request. Diane challenges conclusions of law 2, 5, 8, and 9. These conclusions state:

2. The Pre-Marital Agreement is a valid, enforceable agreement. The court declares the Pre-Marital Agreement is in full force and effect. The setting aside of the separate property as set forth in the Decree, and the division of the community property in the Decree are in accordance with the Pre-Marital Agreement, and the parties’ testimony and evidence thereunder. Additionally, the court further finds that even if the parties did not have a Pre-Mari-tal Agreement, the property set aside to them is their separate property, and that the division of community property is fair and just.
5. Diane Fischer-Stoker’s contention that paragraph # 8, Reimbursement of the Premarital Agreement provides that any funds set aside by her to any IRA, retirement plan, or 401 (k) plan makes it automatically hers is not correct; that paragraph 8, Reimbursement of the Premarital Agreement applies only when one party’s separate estate is used to satisfy the debts or otherwise benefit the separate estate of the party.
8. In connection with the Fidelity Funds Traditional IRA in the name of Diane Fischer 2aj-439070, that $15,703.93 is Diane Fischer-Stoker’s separate property and should be set aside to her, and that the entire increase on that account since the date of marriage (approximately $35,67.48) is community property and should be divided equally between the parties.
9. That in connection with the Ryer-son-Tull Retirement Savings Plan, Fidelity in the name of Diane Fischer-Stoker (ENV # 0P002037) that $150,262.66 is Diane Fischer-Stoker’s separate property and it should be set aside to her and that all increase in this 401 (k) above the $150,262.66 is community property and should be .divided equally between the parties.

Although unchallenged, the relevant findings of fact provide:

9. The Ryerson-Tull Retirement Savings Plan Fidelity in the name of Diane Fischer-Stoker (EV# 0P002035) had a balance on or about July 1, 1991, of $150,262.66 and a balance as of March 31, 2003 of $494,974.00; and the increase of approximately $344,712.00 was acquired during the term of the marriage.
10. Fidelity Funds Traditional IRA in the name of Diane Fischer-Stoker, 2AJ-439070 had a balance of $15,703.93 at the time of marriage, and had a balance of approximately $51,321.41 at the time of divorce; and the increase of $35,617.48 was acquired during the term of the marriage.

Standard of Review

In a decree of divorce, the court shall order a division of the community estate in a manner that the court deems just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.001 (Vernon 1998); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.App.-Houston [1st Dist.] 1995, writ denied). In effecting a just and right division of the community estate, section 7.001 of the Family Code vests the trial court with broad discretion that will not be reversed on appeal unless the complaining party shows that the trial court clearly abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Rafferty, 903 S.W.2d at 377. The test of whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably, and without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Rafferty, 903 S.W.2d at 376.

A trial court may order an unequal division of the community property when a reasonable basis exists for granting that relief. Robles v. Robles, 965 S.W.2d 605, 621 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). The division of property must not be so disproportionate as to be inequitable, and the circumstances must justify awarding more than one-half to one party. Patt v. Patt, 689 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1985, no writ).

In an appeal from a bench trial, we review a trial court’s conclusions of law as legal questions, de novo, and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court’s conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software, 83 S.W.3d at 794. If we determine that a conclusion of law is erroneous, but that the trial court nevertheless rendered the proper judgment, the error does not require reversal. Id. Unchallenged findings of fact are binding on the court of appeals “unless the contrary is established as a matter of law, or if there is no evidence to support the finding.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986).

The Pre-Marital Agreement and the Contentions of the Parties

Diane argues that the trial court erred by divesting her of her separate property. She contends that the parties’ Agreement shows that the two retirement accounts are her separate property and that any increase in those accounts during her marriage to Ronnie is an increase in her separate estate. Diane also contends that any community funds contributed to the retirement accounts during the marriage constituted non-reimbursable gifts to her separate estate and that any increase in the separate property assets due to the contribution of such funds likewise remains her separate property.

The relevant portions of the Agreement provide:

5. Earnings and Income
(a) Income or Property Derived from Separate Property. All the income or property (whether from personal effort or otherwise) arising from the separate property owned at the date of our marriage by either of us, or that may later be acquired, shall be the separate property of the owner of the separate property that generated that income, increase, property, or revenue.
(b) Earnings. All salary, earnings, and other compensation for personal services or labor received or receivable by either of us, now or in the future, shall be the community property of the parties.
8. Reimbursement
Any payment or contributions by one of us to satisfy the debts or otherwise benefit the separate estate of the other shall not give rise to a claim for reimbursement or an interest in any property purchased by those payments unless we otherwise agree in writing. Any right of reimbursement that may arise during our marriage for payments or contributions made to the other’s separate estate to the extent any payment is made by one for the benefit of the other shall be presumed to be a gift to the other party’s separate estate.

Ronnie argues that the trial court correctly determined that the increases in the retirement accounts were community property. Ronnie contends that paragraph 5(b) provides that earnings shall be the community property of the parties. He asserts on the basis of paragraph 5(b) that because all property is presumed to be community property, “clearly any 401(k) and IRA contributions made during the marriage are presumed to be community property.”

Analysis

Ronnie is correct that all property is generally presumed to be community property. See McClary v. Thompson, 65 S.W.3d 829, 836 (Tex.App.-Fort Worth 2002, pet. denied) (holding that contributions and interest earned during the marriage constitute community property). However, the Texas Family Code provides that spouses may agree to partition or exchange any part of their community property as they desire. Tex. Fam.Code Ann. § 4.102 (Vernon Supp.2004-2005); Winger v. Pianka, 831 S.W.2d 853, 859 (Tex.App.-Austin 1992, writ denied). To exchange such property, the parties must do so by written agreement. Tex. Fam. Code Ann. § 4.104 (Vernon 1998); Winger, 831 S.W.2d at 859. Here, the parties had a written agreement establishing the disposition of certain real and personal property. The trial court found that the parties executed the Agreement one day before marriage and that the Agreement was valid and enforceable. Because neither party now contends that the Agreement is invalid or is not binding, we must determine the effect of the Agreement on the property interests of the parties.

A premarital agreement should be interpreted in accordance with the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Pearce v. Pearce, 824 S.W.2d 195, 200 (Tex.App.-El Paso 1992, writ denied). If the agreement is so worded that it can be given a certain legal meaning, it is not ambiguous and the courts will construe it as a matter of law. Coker, 650 S.W.2d at 393.

Parties to a contract intend that each clause should have an effect. See Heritage Res. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). Contract terms should be given their plain, ordinary, and generally accepted meaning unless the agreement shows that they are intended in a different or technical sense. See id.; Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953), cert. denied, 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081 (1954). Courts construe marital property agreements narrowly in favor of the community estate. See, e.g., Byrnes v. Byrnes, 19 S.W.3d 556, 558 (Tex.App.-Fort Worth 2000, no pet.).

The Ryerson-Tull Retirement Savings Plan

The trial court awarded Ronnie as his separate property 50% of all funds in the Plan as of the date of the divorce above the $150,262.66 determined to have been in the Plan at the beginning of the marriage, plus all “dividends, income, increases, and decreases on said 50% thereafter.”

Exhibit “B” to the parties’ Agreement stipulates that “[a]ll assets in the Inland Steel Industries Pension Plan [the Ryerson-Tull Retirement Savings Plan] as of July 31,1991” are the separate property of Diane. The parties thus agreed that the $150,262.66 in the Plan as of that date was Diane’s separate property. But, the agreement did not stop there. Paragraph 5(a) of the Agreement provided that “[a]ll the income or property (whether from personal effort or otherwise) arising from the separate property owned at the date of [the] marriage ... or that may later be acquired, shall be the separate property of the owner of the separate property that generated that income, increase, property, or revenue.” Interest and dividends paid on investments, whether the investments are separate property or not, are income under Texas law and are generally community property. See Alsenz v. Alsenz, 101 S.W.3d 648, 653 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In this case, however, the plain language of the parties’ Agreement decreed that all income earned by the Plan during the marriage was Diane’s separate property—not community property subject to equitable division by the court upon divorce of the parties as Ronnie argues and the trial court held.

Moreover, paragraph 5(a) expressly provides that “all income or property (whether from personal effort or otherwise) ... that may be later acquired, shall be the separate property of the owner of the separate property that generated that income, increase, property, or revenue.” This provision makes no sense unless separate property can later be acquired by the separate property estate, which in the case of the Plan, implies the addition of assets to the Plan. By agreement of the parties, all assets in that Plan were separate property at the inception of the marriage and all later-acquired assets of the Plan took on the character of separate property. Thus, Diane was entitled to all assets in the account as her separate property. See Roach v. Roach, 672 S.W.2d 524, 530-31 (Tex.App.-Amarillo 1984, no writ) (“[T]he separate or community character of property is determined not by the acquisition of the final title ... but by the origin of title to the property.”).

Paragraphs 5(b) and 8 reinforce this interpretation of the Agreement. Although paragraph 5(b) recognizes and agrees that all “salary, earnings, and other compensation for personal services or labor” of the parties are community property, paragraph 8 provides that “any payment or contributions by one of us to ... benefit the separate estate of the other shall not give rise to a claim for reimbursement or an interest in any property purchased by those payments unless we otherwise agree in writing.” The only reasonable interpretation of that language is that it is intended to ensure that if one party’s separate property or that party’s share of community property is paid or contributed to the separate estate of the other party, that contribution shall be a gift to the other person’s separate estate and there will be no reimbursement at divorce, as there otherwise would be under common law, unless there is some later agreement to the contrary. Here there is no later agreement; therefore, Ronnie’s share in any community property — such as Diane’s salary — that was contributed to the Plan during the marriage was, by agreement, a gift to Diane’s separate property and not community property subject to division in the divorce decree or entitling Ronnie to reimbursement.

The trial court erred in holding that Ronnie was entitled to any part of the assets in Diane’s Plan as of the date of the divorce or any of the “dividends, income, increases, and decreases” in the assets of the Plan in the future.

Fidelity Investments IRA

The trial court likewise awarded Ronnie “50% of all funds in the Fidelity Investments IRA in the name of Diane Fischer, number 2AJ-439070, above $15,703.93,” ie., 50% of all assets of the Fidelity Investments IRA above the value of the Fidelity Investments IRA assets at the beginning of the marriage, plus “all dividends, income, increases and decreases on said 50% thereafter.” Again, the parties’ Agreement expressly stipulates that “[a]U shares of Magellan Fund held by Fidelity Investments IRA Account No. T009182799” are Diane’s separate property. Diane testified that her Magellan Fund IRA Account No. T009182799 and her Fidelity Investments IRA 2AJ-439070 were one and the same account, and there was no contrary evidence. She also testified that no contributions were made to the Fidelity Investments IRA during the marriage, and, again, there was no contrary evidence.

Applying the reasoning above, we conclude that Diane’s Fidelity Investments IRA, including any increase in the value of the Fidelity Investments IRA during the marriage, is her separate property and that Ronnie has no community property interest therein.

Ronnie argues that the inception of title rule does not apply to retirement plans. As a general matter, he is correct. See, e.g., McClary, 65 S.W.3d at 834-36. However, his argument entirely overlooks the parties’ Agreement. A principal purpose of that Agreement, evident from its face, is to ensure that Diane’s retirement accounts shall remain her separate property during the marriage, that any contributions to those accounts of Ronnie’s separate property or his share of community property shall be non-reimbursable gifts to her separate estate, and that any increase in assets in those accounts and any income from them shall likewise be her separate property.

Ronnie also points us to paragraph 7 of the Agreement governing “Future Property.” He argues that Diane does not take into account the last sentence of paragraph 7(a), “Jointly Owned Property,” which provides,

In the event the parties fail to enter into an agreement designating the percentage owned by the separate estate of DIANE FISCHER, the separate estate of RONNIE H. STOKER, and the community estate, the law relating to “tracing” shall be applicable.

Ronnie argues that part of the Plan and the Fidelity Investment IRA were acquired after the marriage, that the parties failed to enter an agreement designating the percentage of the Plan and the Fidelity Investments IRA owned by his separate estate and the percentage owned by Diane’s separate estate, and that Diane was therefore required to trace the percentage of each retirement account that was her separate property, but she did not. Thus, Ronnie contends that any part of each retirement account acquired during the marriage and any interest earned or appreciation in value of the retirement account must also be considered community property. We disagree with Ronnie’s interpretation of paragraph 7(a).

Paragraph 7, “Future Property,” provides in its entirety:

(a) Jointly Owned Property. It is our intent that during our marriage we will from time to time by mutual agreement have the opportunity to acquire property. In the event separate property of one of the parties is used to acquire property during the marriage, title to the property shall be taken in the name of that party, and the property shall be the separate property of that party. In the event separate property of either of the parties is used, or separate property plus community property is used to purchase property, title shall be taken in both names. At the time of the purchase the parties shall agree in writing what percentage of the property is the separate property of DIANE FISCHER, what percentage of the property is the separate property of RONNIE H. STOKER, and what percentage of the property shall be community property. In the event the parties fail to enter into an agreement designating the percentage owned by the separate estate of DIANE FISCHER, the separate estate of RONNIE H. STOKER, and the community estate, the law relating to “tracing” shall be applicable.

Paragraph 7 expressly applies to “Future Property” and paragraph 7(a) expressly applies to “Jointly Owned Property.” Diane’s retirement accounts were both separate property at the time of the marriage. Under the inception of title doctrine, the retirement accounts did not lose their character as separate property because of the marriage. The question is whether contributions of community property to either retirement account created a community property interest in the retirement account subject to equitable division in the divorce. Paragraph 8 of the Agreement provided that they did not. When the last sentence of paragraph 7(a) is placed in context, it is clear that paragraph 7(a) concerns an entirely different matter — the parties’ acquisition during marriage of new, jointly owned property with either separate property funds or a combination of separate and community funds— and not the contribution of community funds to the separate estate of a party. We conclude that paragraph 7(a) is inapplicable to this case.

We hold that the trial court erred in characterizing large portions of Diane’s separate estate — the increases in the assets of the Plan and the Fidelity Investments IRA — as community property and in awarding Ronnie 50% of the value of the Plan and the Fidelity Investments IRA at the time of the divorce, minus their value at the time of the marriage, plus “all dividends, income, increases and decreases on said 50% thereafter.” Under the trial court’s reasoning, the parties’ Agreement had no effect because, prior to the marriage, Diane’s retirement accounts were indisputably her separate property, and Ronnie had no interest in them. The effect of the trial court’s judgment was thus to nullify the parties’ agreement that contributions to the separate estate of a party would be a gift to the separate estate that would not create a property interest in the separate estate or a right to reimbursement, and to reinstate the common law presumption that all property is community property subject to equitable division by the court.

A trial court lacks authority to divest a party of separate property in a divorce decree. See Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex.1982). “[W]hen a mischaracterization has more than a de minimis effect upon the trial court’s division, the appellate court must remand the community estate to the trial court for a just and right division based upon the correct characterization of the property.” McElwee v. McElwee, 911 S.W.2d 182, 190 (Tex.App.-Houston [1st Dist.] 1995, pet. denied). “Once reversible error affecting the ‘just and right’ division of the community estate is found, the court of appeals must remand the entire community estate for a new division.” Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985).

We sustain Diane’s first, second, third, fourth and fifth issues on appeal.

Attorney Fees

In her sixth issue on appeal, Diane argues that the trial court erred by awarding attorney’s fees to Ronnie that were incurred before judgment as part of temporary orders pending appeal.

At the end of the trial, the trial court ordered each party to be responsible for his own attorney’s fees. Diane contends that after the entry of judgment, Ronnie timely requested temporary orders pending appeal pursuant to section 6.709 of the Texas Family Code. See Tex. Fam.Code Ann. § 6.709 (Vernon 1998). According to Diane, a hearing was conducted, and the court awarded Ronnie $10,750.00 in attorney’s fees.

The appellate record does not contain the trial court’s temporary orders or any record of a hearing that occurred after entry of judgment. Accordingly, we conclude that Diane has waived the complaint for failing to bring forth a sufficient record to show that the trial court abused its discretion. See Tex.R.App. P. 33.1; Cruikshank v. Consumer Direct Mortgage, 138 S.W.3d 497, 499 (Tex.App.-Houston [14th Dist.] 2004, pet. denied).

We overrule Diane’s sixth issue on appeal.

Conclusion

We reverse the judgment of the trial court and remand the case for a new trial on the just and right division of the parties’ property in accordance with this opinion. We deny all outstanding motions.

      . Ronnie also argues that paragraph 8 of the Agreement — providing that contributions by a party to benefit the separate estate of the other party shall be treated as gifts to the separate property estate and “shall not give rise to a claim for reimbursement or an interest in any property purchased by those payments unless we otherwise agree in writing” — is inapplicable because “the reimbursement clause was designed to eliminate common law claims for economic contribution which were evolving and have now been codified in Family Code § 3.401 et seq.” Ronnie does not make any argument or cite any authority in support of this apparent contention that later codification abrogates the parties' agreement regarding economic contribution. This contention is therefore waived. See Tex.R.App. P. 38.1(h), 38.2(a)(1).