Texas Appeals Court Concludes “Build Provision” in Divorce Decree Not Ambiguous

A Texas divorce decree provision that was agreed upon by the parties is construed according to contract principles.  In interpreting the contract, the court considers the entire agreement.  Words are given their plain meaning unless there is an indication the parties intended something else.  A contract is not ambiguous if it can be interpreted with a definite legal meaning.  It is ambiguous if it is subject to more than one reasonable interpretation.  Generally, a court may only consider outside evidence to interpret an ambiguous contract.  A husband recently challenged a trial court’s denial of his petition for enforcement of the property division in his divorce decree.

The parties’ 2017 divorce decree included agreed property-division provisions that awarded the wife a 2.6 acre lot “as her sole and separate property.” The decree divested the husband of all right, title, interest and claim to the lot.  It also included a conditional provision that the wife “begin the process of building” a home on the lot, with the property reverting back to the husband if she failed to comply.  The decree did not include a time by which the wife had to comply nor did it define what was meant by “begin” or “the process of building.” The wife was prohibited from selling the lot for commercial purposes and was required to give the husband a first right of purchase option.

The wife did not complete building a house on the lot and the husband filed a petition for enforcement.  He alleged that the wife had not begun “the process of building a permanent, fixed home structure” on the lot. He asked the court to order her to execute a general warranty deed.

The trial court denied the petition after a hearing and the husband appealed. The husband argued on appeal that the decree was ambiguous and that the trial court erred in not clarifying it and enforcing the clarified decree.

The Build Provision

He argued that the “build provision” was ambiguous. A provision is ambiguous if it could have more than one reasonable interpretation.  The husband focused on the lack of definition for the word “build,” but the appeals court pointed out that the language at issue was really “begin.” Upon considering the dictionary definition of “begin,” the appeals court concluded it had a plain meaning and the build provision was therefore not ambiguous.

The court acknowledged the decree did not detail what constituted beginning the process of building.  The trial court had stated during the hearing, “[T]here is absolutely no timeline for her to do that and there is no definition of start the process. . .” The appeals court concluded that the build provision was not ambiguous.


The husband also argued the decree was ambiguous because there were conflicting provisions regarding whether the decree conveyed a fee simple absolute or a fee simple determinable interest to the wife.  The appeals court concluded, however, that the any such conflict was immaterial to the court order because the husband based his motion on the wife’s alleged failure to comply with the build provision.  The trial court did not have to determine the interest conveyed to determine if the wife failed to begin the process of building a house.

The appeals court also noted that if the wife had been awarded a fee simple absolute, then “conditions and qualifications” on that award would not have any effect.  If she had been awarded a fee simple determinable, he still would not be entitled to relief because the decree did not define the conditions and qualifications.  The appeals court therefore found no ambiguity in the decree resulting from a conflict.

Decree as a Whole

The husband argued the decree as a whole along with the surrounding circumstances showed that the build provision was ambiguous.  The husband also argued other sections of the decree showed that the parties intended for the wife to complete construction within four years from August 1, 2017.  He pointed to provisions ordering him to pay monthly payments for forty-six months starting March 1, 2017 and awarding the wife possession of the a former family residence for up to four years from August 1, 2017.  The decree allowed for extensions if the husband was delinquent in making payments.  The husband argued that the wife would have a house built on the lot and be ready to occupy it.

The appeals court noted these provisions did not address any requirements related to the build provisions.  There was nothing in the plain terms of the provisions cited by the husband that supported the husband’s argument that the wife must complete construction of the home within four years.

Reversion Provision

The appeals court also rejected the husband’s argument the wife had created “further confusion” at the hearing with regard to the reversion provision.  The appeals court also found that this provision was immaterial because the trial court had concluded the wife did not fail to comply with the build provision and noncompliance was what triggered the reversion provision.

Excluded Testimony

The husband also argued the trial court erred when it sustained an objection to his testimony.  The wife’s attorney objected when the husband’s attorney asked him what the understanding of the settlement agreement was.  The wife’s attorney argued the question asked for hearsay and that husband could not testify to conversations outside the record due to the parol evidence rule and statute of frauds.  The court allowed the husband to testify as to his understanding of the degree, but prohibited him from discussing negotiations or settlement offers.

A party must present excluded evidence to the court through an offer of proof or bill of exception to preserve an objection to exclusion. The husband did not show that he had presented an offer of proof or a bill of exception.

Because of its conclusions on the husband’s other arguments, the appeals court also rejected the husband’s argument the court erred in failing to clarify and enforces the decree.

The appeals court affirmed the trial court’s order.

Contact a Skilled Dallas Divorce Attorney

The appeals court concluded that the build provision was not ambiguous, but the real issue may have been the lack of a timeframe for the wife to comply.  Even if you believe you and your spouse are likely to agree on major details regarding property division, an experienced Texas divorce lawyer can advise you of important details you may want included in the decree.  Set up a consultation with McClure Law Group at 214.692.8200.

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