Court of Appeals of Texas, Second District, Fort Worth
Bryan P. Bernard, Appellant
Doris W. Bernard, Appellee
Appeal from the 233rd District Court Tarrant County, Texas
Trial Court No. 233-571359-15
Kerr, Pittman, and Birdwell, JJ.
T. Pittman Justice.
Bryan P. Bernard appeals from the trial court's October
4, 2017 judgment awarding his ex-wife Appellee Doris W.
Bernard attorney's fees and "the balance of the
Lincoln American Legacy II Variable Annuity account"
(the Lincoln Annuity), which had not been expressly divided
in their January 25, 2001 Agreed Final Decree of Divorce
(Divorce Decree). In four issues, Bryan challenges certain of
the trial court's findings of fact and conclusions of law
as well as the award of attorney's fees. Because we hold
that the Lincoln Annuity was community property not divided
in the divorce, that Doris filed suit within the applicable
two-year limitations period, and that the trial court did not
abuse its discretion by awarding her attorneys' fees or
the Lincoln Annuity after the post-decree proceeding, we
affirm the trial court's judgment.
Doris's Former Broker Testified That an Annuity
Is a Contract.
was Doris's Edward Jones broker until shortly after the
divorce; her brother Joe replaced him in 2001. Joe's son
Doug replaced Joe at his retirement in 2008. At the August
2017 post-decree proceeding, Doug, no longer Doris's
Edward Jones broker, defined an annuity:
It is a legal contract between an insurance company and an
investor that they enter into together where the investor
puts in a certain amount of money and then, depending on the
type of annuity, receive[s] some benefits, some of which are
guaranteed by the insurance company.
Bryan Bought the Lincoln Annuity During the Marriage and
Named Doris Its Beneficiary.
March 1993 while Bryan and Doris were married, Bryan paid
Lincoln National Life Insurance Company $19, 587.92 to begin
the Lincoln Annuity contract; its maturity date is in
November 2041. Bryan is the listed owner and annuitant; Doris
is the listed beneficiary. Edward Jones is not a party to the
The Lincoln Annuity Was Not Held by Edward Jones; It Was
Linked to the Couple's Joint Account During the
months preceding the January 2001 divorce and the month of
the divorce, the Lincoln Annuity was listed on the
parties' Edward Jones joint-account statement under
"Your Assets Held Outside Edward
Doris Included the Lincoln Annuity in Her Inventory; Bryan
Included Its Value in His Inventory.
the divorce was pending, Doris expressly included the Lincoln
Annuity as community property in her September 2000 inventory
and appraisement (inventory) in the "Annuities (non
IRA's)" subsection of "Insurance and
Annuities." She noted in her inventory that Bryan owned
the Lincoln Annuity. Bryan did not expressly include the
Lincoln Annuity in his inventory but testified at the August
2017 post-decree proceeding that it was fair to assume that
he had included the Lincoln Annuity's value in his
valuation of the Edward Jones joint account because the
Lincoln Annuity was linked to that account. Bryan did not
list separate property in his inventory.
Neither the Mediated Settlement Agreement (MSA) nor
the Divorce Decree Named the Lincoln Annuity.
Divorce Decree, Wife was awarded as her sole and separate
W-5. All funds on deposit, together with accrued but unpaid
interest, in the following banks, savings institutions, or
other financial institutions:
a. . . . .
b. [The] Edward Jones [Joint]Account . . ., subject to a
prohibition by both parties from margining, transferring,
selling or withdrawing any funds . . . from December 5, 2000.
After the Divorce, the Edward Jones Joint Account Was Closed,
and the Lincoln Annuity's Linking Information Began
Appearing on Doris's Statements for Her Edward Jones
Edward Jones joint-account statement covering the month
immediately following the divorce, January 27, 2001 through
February 23, 2001, does not mention the Lincoln Annuity.
Edward Jones individual-account statement does not include
the Lincoln Annuity during the month of the divorce, but in
her individual-account statement covering January 27, 2001
through February 23, 2001-the month immediately following the
divorce-the Lincoln Annuity appears on the list entitled,
"Your Assets Held Outside Edward
boilerplate of many of the Edward Jones statements from both
the joint account and Doris's individual account that are
included in the admitted ...