Marrita Murphy v. Daniel Jude Leveille ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-130-CV
MARRITA MURPHY APPELLANT
V.
DANIEL JUDE LEVEILLE APPELLEE
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In this appeal from a final divorce decree, Appellant Marrita Murphy, pro
se,2 argues the trial court erred by signing a final decree and orders inconsistent
with the parties’ mediated settlement agreement. We affirm.
1
… See Tex. R. App. P. 47.4.
2
… Murphy is a nonpracticing attorney.
Background
Murphy married Appellee Daniel Leveille on April 9, 1987. Leveille filed
for divorce on November 14, 2005.
Murphy and Leveille entered into a written, mediated settlement
agreement on August 30, 2007. The agreement provided that its terms would
be incorporated into a final decree “using the language of the Texas Family Law
Practice Forms Manual” and that any dispute regarding the drafting of the
decree would be submitted to the mediator for binding arbitration. The day
after the mediation, the trial court took judicial notice of the agreement and
granted the parties’ divorce.
Thereafter, the parties failed to agree on the form of the final decree.
After several hearings, on January 18, 2008, the trial court signed a final
decree and orders regarding benefits submitted by Leveille. Murphy filed
motions to modify the decree, complaining that the decree contained several
errors and omissions and failed to comport with the mediated settlement
agreement. The trial court submitted one issue—whether the parties had
agreed that Murphy would receive survivor benefits in both of two retirement
plans—to the mediator for binding arbitration. The arbitrator ruled that Murphy
was entitled to survivor benefits in both plans.
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The trial court rendered an amended decree on March 24, 2008. Murphy
filed a notice of appeal on April 4, 2008.
Discussion
1. Amended Final Decree
In her first issue, Murphy argues that the trial court erred by signing an
amended final decree that varied from the terms of the mediated settlement
agreement. A trial court has no authority to enter a judgment that varies from
the terms of a mediated settlement agreement. In re Marriage of Joyner, 196
S.W.3d 883, 890–91 (Tex. App.—Texarkana 2006, pet. denied); Garcia-Udall
v. Udall, 141 S.W.3d 323, 330 (Tex. App.—Dallas 2004, no pet.); Keim v.
Anderson, 943 S.W.2d 938, 946 (Tex. App.—El Paso 1997, no pet.). A final
judgment founded upon a settlement agreement reached by the parties must be
in strict or literal compliance with the terms of that agreement. Clanin v.
Clanin, 918 S.W.2d 673, 678 (Tex. App.—Fort Worth 1996, no writ) (reversing
and remanding for limited purpose of reforming decree in accordance with
parties’ settlement agreement).
a. Waiver
In subparts (A), (B), (C), and (E) of her first issue, Murphy argues that the
trial court erred by including language in the amended final decree that if the
decree and the mediated settlement agreement conflicted, the decree
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controlled; that the trial court erred by awarding her half of only the community
share of Leveille’s Federal Employees Retirement System (“FERS”) benefits; that
the trial court erred by failing to use “Texas Family Law Practice Forms Manual
Form 19-31, applicable comment 8 for dividing the community military
retirement”; and that the trial court erred by inserting the words “disability plan
or benefits” into the paragraph of the decree awarding to Leveille his Air Force
and FERS retirement benefits accruing before the parties were married and after
they divorced.
To preserve a complaint of error in a judgment, a party must inform the
trial court of its objection by a motion to amend or correct the judgment, a
motion for new trial, or some other similar method. Dal-Chrome Co. v.
Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex. App.—Dallas 2006, no pet.);
see also Tex. R. App. P. 33.1(a). We have carefully reviewed Murphy’s
“Motion to Modify Judgment,” her “Motion for Reconsideration/Modify
Judgment II,” and her arguments at the February 15, 2008 and March 23,
2008 hearings on her motions to modify. Murphy did not raise the arguments
she makes in subissues (A), (B), (C), and (E) there or elsewhere in the record.3
3
… Murphy filed with this court several volumes of documents that do not
appear in the record, and we denied her motions to “Compel Supplemental
Appellate Record.” We cannot consider documents attached to an appellate
brief that do not appear in the record. Till v. Thomas, 10 S.W.3d 730, 733
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Therefore, we hold that Murphy failed to preserve these subissues for review,
and we overrule them.
b. Survivor Benefits
In subissue (D), Murphy argues that the trial court erred “in the
perfunctory approval of the final divorce decree and changed the bargained for
exchange for Appellant Murphy to have right of survivorship in both the Military
and Federal Retirements.” The gist of her argument is that the parties agreed
that Leveille would obtain survivorship benefits in the retirement plans for
Murphy, but the trial court failed to include such language in the decree.
The settlement agreement provides that Murphy is to receive
[a]ny and all sums . . . and any other rights related to any profit-
sharing plan, retirement plan, pension plan, employee stock option
plan, employee savings plan, accrued unpaid bonuses, or other
benefit program existing by reason of Respondent’s [Murphy’s]
past, present or future employment . . . and ½ of Respondent’s
interest in FERS and [h]er ½ of the community portion of his USAF
retirement with right of survivorship.
(Tex. App.—Houston [1st Dist.] 1999, no pet.). This court must hear and
determine a case based on the record as filed and may not consider documents
attached as exhibits to briefs. Id. Therefore, we have not reviewed the
additional documents Murphy attempted to file, and they play no role in our
analysis.
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The trial court’s first decree was silent as to survivorship, and the orders
executed at the same time as the first decree gave Murphy a right of
survivorship in Leveille’s Air Force benefits but not his FERS benefits.
In her first motion to modify the decree, Murphy argued that the
settlement agreement’s survivorship provision applied to both the Air Force
retirement benefits and the FERS benefits. Because the settlement agreement
provided that all disputes related to drafting a decree that complied with the
agreement would be submitted to the mediator for binding arbitration, the trial
court referred the question to the mediator. The mediator ruled that “Murphy
was to be awarded survivor benefits in both retirement plans” and that “IF Mrs.
[sic] Murphy could impact the retirement [plans] in such a way that Mr.
Leveille’s retirement were to be reduced by any action on her part (e.g., if she
were able to obtain a survivor’s benefit plan payable to her), it would be
necessary for her to do so at her own expense.”
The trial court’s amended decree, like the first decree, does not mention
Murphy’s survivorship rights. But the “Amended Retirement Benefits Court
Order for Division of Federal Employees’ Retirement System Benefits” states
that “Murphy is awarded a former spouse survivor annuity,” and the Amended
Domestic Relations Order provides that, with regard to Leveille’s Air Force
benefits, “the disposable retirement pay awarded in this order to Marrita
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Murphy shall continue until the death of Daniel Jude Leveille or Marrita Murphy.
Marrita Murphy has the option of exercising her right of survivorship.”
Murphy argues that the trial court erred by failing to expressly award her
survivor benefits in the amended decree and by failing to order Leveille to pay
for her survivor benefits. But the trial court’s amended orders do specifically
provide for Murphy’s survivorship benefits, and the decree states that both
orders are “incorporated verbatim in [the amended decree] by reference.”
Murphy does not explain why this incorporation by reference was inadequate.
Further, the mediator ruled in binding arbitration that if Murphy “were able to
obtain a survivor’s benefit plan payable to her . . . it would be necessary for her
to do so at her own expense.” To the extent that the trial court’s orders
require Murphy to obtain survivor benefits at her own expense, the orders are
consistent with the mediator’s arbitration ruling. We therefore overrule the
remainder of Murphy’s first issue.
2. Domestic Relations Order
In her second issue, Murphy argues that the trial court erred by modifying
the terms of the parties’ settlement agreement with its amended domestic
relations order—the order that concerns Leveille’s Air Force retirement benefits.
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a. Waiver
As she did with her first issue, Murphy raises unpreserved subissues in
her second issue—namely, subissues (A), (E), and (F), in which she argues that
the trial court erred by failing to use “Texas Family Law Practice Forms Manual
Form 19-31, comment 8 for dividing the community military retirement”; that
the trial court erred by altering “Appellant Murphy’s 20/20/20 military spouse
status”; and that the trial court erred by altering the “agreed use of the Texas
Family Law Practice Manual Form 19-31, regarding Retiree Statements and
Retirement.” Murphy waived these subissues by failing to raise them in the trial
court, and we overrule subissues (A), (E), and (F). See Tex. R. App. P. 33.1(a).
b. Number of “Retirement Points”
In her subissue (B), Murphy argues that the trial court recited the incorrect
number of “retirement points” belonging to the community in the domestic
relations order—2,864 instead of 3,275. The difference between the two
numbers apparently results from the delay between the date the trial court
granted the divorce—August 31, 2007—and the date the trial court signed the
first decree—January 18, 2008.
As the sole authority supporting her argument, Murphy cites 10 U.S.C.A.
1408(c)(1) (West 1998) for the proposition that “the federal government does
not make a division without a Final Divorce[] Decree containing a Fixed Seal of
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the Court,” which, according to Murphy, means that the points to be divided
are those that existed on the date the trial court signed the first decree, not the
date of divorce. Section 1408(c)(1) does not support her argument. Section
1408(c)(1) provides that “a court may treat disposable retired pay payable to
a member for pay periods beginning after June 25, 1981, either as property
solely of the member or as property of the member and his spouse in
accordance with the law of the jurisdiction of such court.” 10 U.S.C.A.
1408(c)(1) (emphasis added).
Under the “law of the jurisdiction of such court”—Texas law—the extent
of the community estate is determined at the date of divorce, and a spouse is
only entitled to division of property that the community owns at the date of
divorce. Von Hohn v. Von Hohn, 260 S.W.3d 631, 641, 642 (Tex.
App.—Tyler 2008, no pet.). All assets of the community estate are valued as
of the time of dissolution of the marriage. Id. at 641. Thus, under Texas law
and section 1408(c)(1), the trial court correctly divided the community’s
“points” in Leveille’s Air Force retirement as of the date of divorce. We
overrule Murphy’s subissue (B).
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c. Prohibition Against Elections That Reduce Murphy’s Award
In subissue (C), Murphy argues that “[t]he language ‘[Leveille] will not
make any election under the Federal Employees’ Retirement [System] or the
U.S. Air Force Retirement Plan that would reduce the amounts awarded to
[Murphy] herein’ was not recorded into any of the court documents yet was
read into the record.’” Contrary to Murphy’s argument, this exact language
appears in paragraph 5 on page 3 of the amended decree. We overrule
subissue (C).
d. Survivor Benefits
In subissue (D), Murphy argues that the trial court erred by “changing the
bargained for exchange for the continuation of Appellant Murphy’s right of
survivorship in the Military Retirement.” Her argument is essentially the same
as her argument under issue I(D), and we likewise overrule issue II(D)for the
reasons set forth in our analysis of issue I(D).
3. FERS Order
In her third issue, Murphy raises several complaints about the trial court’s
order regarding Leveille’s FERS benefits.
a. Waiver
In subissues (A) and (B), Murphy argues that the trial court erred by
awarding her half of the community share of Leveille’s FERS benefits and by
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failing to follow Texas Family Law Practice Manual Form 19-18. She waived
these subissues by failing to raise them in the trial court, and we overrule her
subissues (A) and (B). See Tex. R. App. P. 33.1(a).
b. Prohibition Against Elections That Reduce Murphy’s Award
In subissue (C), Murphy argues that the trial court erred by failing to
include in the FERS order language prohibiting Leveille from making any election
that would reduce Murphy’s award of Leveille’s FERS benefits. As we noted
in our discussion of issue II(C), the trial court included such language in the
amended final decree. Murphy does not explain, nor can we see, why the
inclusion of the language in question in the decree does not afford her adequate
protection—particularly in light of the fact that the FERS order is directed to the
United State Office of Personnel Management, not Murphy or Leveille. We
overrule the remainder of her third issue.
Conclusion
Having overruled Murphy’s three issues, we affirm the trial court’s
amended decree and amended orders.
PER CURIAM
PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: August 26, 2009
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