Claire L. Allen v. Lawrence Allen ( 2016 )

ACCEPTED
03-16-00314-CV
12464108
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/31/2016 10:54:59 AM
JEFFREY D. KYLE
CLERK
NO. 03-16-00314-CV
FILED IN
IN THE 3rd COURT OF APPEALS
THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 8/31/2016 10:54:59 AM
JEFFREY D. KYLE
Clerk
CLAIRE ALLEN,
Appellant
v.
LAWRENCE ALLEN
Appellee
BRIEF OF APPELLANT
CLAIRE ALLEN
DAWN M. LAUBACH
State Bar No. 24031271
LAUBACH LAW OFFICE
1370 Pantheon Way, Ste 110
San Antonio, Texas 78232
(210) 222-1225 (Telephone)
(210) 853-5943 (Facsimile)
laubachlegal@hotmail.com (e-mail)
ATTORNEY FOR APPELLANT
CLAIRE ALLEN
i
Identification of Parties and Counsel
The following is a list of all parties, and the names and addresses of those
parties’ counsel.
Parties
Claire Allen Appellant / Claire
Lawrence Allen Appellee / Lawrence
Counsel
Dawn M. Laubach Appellate and Trial Counsel
Laubach Law Office for Appellant
1370 Pantheon Way, Suite 110 Claire Allen
San Antonio, Texas 78232
Troy Voelker Appellate Counsel
500 Round Rock Avenue , Suite 2 for Appellee
Round Rock, Texas 78711 Lawrence Allen
Kevin Henderson Trial Counsel
213 A West 8th Street for Appellee
Georgetown, Texas 78626 Lawrence Allen
ii
TABLE OF CONTENTS
Page
IDENTITIES OF PARTIES AND COUNSEL .........................................................ii
TABLE OF CONTENTS..........................................................................................iii
INDEX OF AUTHORITIES .................................................................................... iv
STATEMENT OF THE CASE ................................................................................ vi
ISSUE PRESENTED ...............................................................................................vii
STATEMENT REGARDING ORAL ARGUMENT .............................................vii
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT AND AUTHORITIES........................................................................ 9
I. STANDARD OF REVIEW ........................................................................... 9
II. ISSUE NO. 1 - THE TRIAL COURT’S GRANTING OF
APPELLEE’S MOTION FOR SUMMARY JUDGMENT DENIED
APPELLANT THE ABILITY TO ENFORCE HER RIGHT TO
SPOUSAL MAINTENANCE AND LIFE INSURANCE .......................... 10
III. ISSUE NO. 2 - THE TRIAL COURT’S GRANTING OF
APPELLEE’S MOTION FOR SUMMARY JUDGMENT
CHANGED THE AWARD OF SPOUSAL MAINTENANCE TO
AN AWARD OF PROPERTY .................................................................... 14
IV. ISSUE NO. 3 - THE TRIAL COURT’S GRANTING OF
APPELLEE’S MOTION FOR SUMMARY JUDGMENT
CHANGED THE AMOUNT OF LIFE INSUANCE TO BE
MAINTAINED BY APPELLEE ................................................................. 20
CONCLUSION AND PRAYER ............................................................................. 23
CERTIFICATE OF COMPLIANCE ....................................................................... 25
CERTIFICATE OF SERVICE ................................................................................ 25
APPENDIX .............................................................................................................. 26
iii
INDEX OF AUTHORITIES
CASES
Page
O’Carolan v. Hopper, 414 S.W.3d 288 (2013) ......................................................... 9
Bryant v. Shields, Britton & Fraser, 930 S.W.2d 836, 841 (Tex. App Dallas
1996, writ denied) ..................................................................................................... 9
Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex. 1992) ........... 10
Wolfram v. Wolfram, 165 S.W.3d 755, (Tex. App. -- San Ant. 2005, no pet.) ...... 10
Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285 (Tex.1996) ................... 11
Underwriters Nat'l Assurance Co. v. N. Carolina Life & Accident & Health
Ins. Guar. Ass'n, 455 U.S. 691 (1982) .................................................................... 12
Russo v. Dear, 105 S.W.3d 43 (Tex. App. Dallas 2003) ........................................ 12
Jonsson v. Rand Racing, L.L.C., 270 S.W.3d 320 (Tex. App. Dallas 2008,
no pet.) .................................................................................................................... 12
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ................................... 15
Duruji v. Duruji, Nos. 14-05-01185-CV, 14-05-01186-CV, 2007 WL
582282 (Tex.App.--Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem. op.) ....... 15
Hagen v. Hagen 282 S.W.3d 899 (Tex. 2009) ....................................................... 16
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .................................. 22
Green v. Lowe's Home Ctrs., Inc., 199 S.W.3d 514 (Tex. App.-Houston [1st
Dist.] 2006, pet. denied) .......................................................................................... 22
STATUTES
Uniform Enforcement of Foreign Judgment Act as adopted in the TEX. CIV.
PRAC. & REM.CODE ANN. § 35.003(c) .............................................................. 11
iv
RULES
TEX. R. App p. 39 .................................................................................................... vi
TEX. R. CIV. P. 166a(i) ......................................................................................... 22
v
STATEMENT OF THE CASE
Nature of the Case: The parties were divorced in the State of
Washington in October 1984. CR. p. 9. Pursuant
to the terms of the decree, Appellant filed a Motion
for Enforcement of a Foreign Judgment related to
the payment of spousal maintenance and
maintaining of a life insurance annuity by the
Appellee for the benefit of Appellant. CR p.7.
Trial Court: 425th Judicial District Court,
The Honorable Betsy Lambeth, Presiding
Trial Court Action: Judge Lambeth granted Appellee’s Motion for
Summary Judgment. Appellant’s motion for
summary judgment was denied and her motion
to enforce was dismissed with prejudice. CR p.
110.
vi
ISSUES PRESENTED
Issue No. 1. Did the trial court erroneously grant Lawrence Allen’s
Motion for Summary Judgment, such that it denied Appellant the ability
to enforce her right to spousal maintenance and a life insurance policy
pursuant to the terms of the decree?
Issue No. 2. Did the trial court erroneously grant Lawrence Allen’s
Motion for Summary Judgment, which effectively changed the award of
spousal maintenance to an award of military retirement/marital property?
Issue No. 3. Did the trial court erroneously grant Lawrence Allen’s
Motion for Summary Judgment, which effectively changed the amount of
life insurance that Appellee was required to maintain under the decree?
STATEMENT REGARDING ORAL ARGUMENT
This case presents numerous legal issues involving the interplay of the
Uniform Enforcement of Foreign Judgment Act as adopted in the TEX. CIV.
PRAC. & REM.CODE ANN. § 35.003(c), the application of laws on
enforcement and whether the Texas laws related to the division of military
retirement apply as argued by Appellee such that oral argument could assist
the Court in determination of this matter. TEX. R. App p. 39.
vii
NO. 03-16-00314-CV
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
CLAIRE ALLEN,
Appellant
v.
LAWRENCE ALLEN
Appellee
BRIEF OF APPELLANT
CLAIRE ALLEN
TO THE HONORABLE COURT OF APPEALS:
COMES NOW CLAIRE ALLEN, Appellant and respectfully presents her
opening brief. For the sake of clarity, Appellant Claire Allen will be referred
to as “Claire” and Appellee Lawrence Allen will be referred to as
“Lawrence.” The one-volume clerk’s record will be cited as CR p. #. The
one-volume court reporter’s record from April 2, 2015 will be cited by page
number as RR1 p. #. The one-volume court reporter’s record from June 9th
2015 will be cited by page number as RR2 p. #. There were no exhibits in
the court reporter’s record.
1
STATEMENT OF FACTS
Claire and Lawrence Allen were divorced in October 1984 in the State
of Washington. The decree of dissolution of marriage (herein referred to a
“decree”) states that, “By way of child support and spousal maintenance
Lawrence H. Allen shall pay through the registry of the Superior Court of
Whatcom County for the benefit of Claire L. Allen on the first day of each
calendar month an amount equal to his U.S. Army retirement pay (presently
$1,240 per month, subject to periodic cost of living increases). Of such
amount one-third of the total payment shall be deemed spousal maintenance
and such payment shall continue so long as both parties survive; two-thirds
of such monthly payments shall be deemed child support for the parties three
minor children.” CR p. 5-6. Meaning, at the time of divorce, Claire was to
receive $413.33 as spousal maintenance. From the time the divorce decree
was entered until December 2013, Lawrence paid the $413.33 or more each
month as spousal maintenance to Claire via garnishment through the Defense
Finance and Accounting Service. Due to cost of living increases in
Lawrence’s military retirement, the amount of spousal maintenance went up
proportionately, with the max amount of spousal maintenance received by
Claire reaching $979.05 in July 2013. In June 2013, Lawrence waived his
military retirement and elected combat related special compensation (CRSC).
2
This election of benefits caused Lawrence’s military retirement to be
significantly reduced, however did not result in a loss of income to him. Due
to this election, Lawrence reduced the amount of spousal maintenance paid to
Claire from $979.05 to $18.08 a month.
In the decree, Lawrence was further ordered to “procure and continuously
maintain life insurance on himself payable to Petitioner and the parties three
minor children as irrevocable beneficiaries in an amount sufficient to fund an
annuity equal in value to Respondent’s U.S. Army Retirement Pension.” CR
p.6. At the time of divorce, Lawrence’s pension was $1240.00 a month.
On March 24, 2014, Claire filed a Motion to Enforce Foreign Judgment in
Williamson County, Texas. CR p.7. At the time of filing Lawrence resided
in Williamson County, Texas and Claire lived in the State of Florida. An
amended petition was filed January 28, 2015. CR p.17. A hearing has held
before the Honorable Lambeth on April 2, 2015. RR1. No evidence was
taken or offered at this hearing. Only argument was heard by the Court. The
Court wanted additional time to read case law and directed the attorneys of
record to brief the issues presented to trial court and file motions for
summary judgment. RR p. 22, line 24-25. On April 17, 2015 Lawrence filed
a Motion for Summary Judgment. CR p.27. On May 26, 2015 Claire filed a
motion for Summary Judgment. CR p.103. The Court reconvened on June 9,
3
2015 to hear the motions for summary judgment. No evidence was taken or
offered at this hearing. On April 6, 2016 the trial court signed an order
granting Lawrence’s Motion for Summary judgment, denying Claire’s
motion for summary judgment, that Claire take nothing and dismissed her
case with prejudice. CR p.110-111.
SUMMARY OF THE ARGUMENT
Issue No. 1.
Did the trial court erroneously grant Lawrence Allen’s Motion for Summary
Judgment, such that it denied Appellant the ability to enforce her right to
spousal maintenance and a life insurance policy pursuant to the terms of the
decree?
Claire is entitled to have the Washington decree enforced by the Texas
courts as a matter of law. Claire contends that the Washington State decree
clearly awards her spousal maintenance in the minimum amount of $413.33
(one third of $1240), along with periodic cost of living increases until her or
Lawrence’s death, which ever party’s death occurred first. Argument was
proffered to the trial court and undisputed that Claire’s started receiving
$413.33 in 1984 and increased over the years up to $979.05. In 2013,
Lawrence reduced the spousal maintenance payments to about $18 a month
4
due to him selecting CRSC and waiving his military retirement. The parties’
decree clearly states the spousal maintenance was one third of $1240 (plus
cost of living increases). The granting of summary judgment in favor of
Lawrence denied Claire the right to enforce the decree with regards to how
much spousal maintenance she was awarded in the decree.
The parties’ decree also clearly states the life insurance annuity was
payable based upon the amount of Lawrence’s military retirement in 1984 in
the amount of $1240. Lawrence’s motion for summary judgment confirms
he did not follow the order in the decree and obtain a life insurance policy as
ordered, yet the trial court dismissed Claire’s action ordering she take
nothing. This is reversible error and an abuse of discretion.
The court violated the Full Faith and Credit Clause and Chapter 35 of
the Texas Civil Practice and Remedies Code by denying Claire’s ability to
enforce the parties’ decree when granting Lawrence summary judgment
according to the specific terms of the decree.
Issue No. 2.
Did the trial court erroneously grant Lawrence Allen’s Motion for
Summary Judgment, which effectively changed the award of spousal
maintenance to an award of military retirement/marital property?
5
Claire asserts that whether Lawrence was actually receiving military
retired pay is not a dispositive issue to determine whether she was entitled to
receive spousal maintenance as ordered under the decree. Regardless of the
type of income Lawrence received, Claire is entitled to receive spousal
maintenance in the minimum amount of $413.33 month, and an increased
amount due to cost of living increases to Lawrence’s military retirement,
which the peak amount was $979.05 a month in 2013. Lawrence’s motion
for summary judgment essentially argues that Claire was given an award of
Lawrence’s military retirement as marital property. Lawrence’s argument is
that if he did not receive military retirement (or received a reduced amount
than what was determined at the time of divorce) that Claire should receive
no spousal maintenance (or a reduced amount) despite the terms of the
decree. Lawrence’s summary judgment contends that Claire was awarded a
share of his military retirement if, as and when received. However, Claire
was not awarded a share of military retirement as property in the decree, she
was awarded spousal maintenance.
The granting of Lawrence’s summary judgment constitutes an abuse of
discretion and reversible error, because the trial court had no plenary power
to enter any order that alters, modifies, or substantially changes a divorce
decree after plenary power over the divorce decree has expired. By granting
6
summary judgment in favor of Lawrence and dismissing Claire’s
enforcement action, the trial court effectively changed the terms of the decree
relating to the amount and duration of spousal maintenance. Despite the
decree stating Claire should get one third of $1240 each month as spousal
maintenance, the trial court granted summary judgment, would not enforce
the decree and allowed for the amount of spousal maintenance to be reduced
to $18, one third of $56.
Issue No. 3.
Did the trial court erroneously grant Lawrence Allen’s Motion for
Summary Judgment, which effectively changed the amount of life
insurance that Lawrence was required to maintain under the decree?
In 1984, Claire and her minor children were entitled to be irrevocable
beneficiaries on a life insurance policy of Lawrence’s life that would pay an
annuity equal to the amount of Lawrence’s military retirement pension,
which at that time was $1240.00 per month. No evidence was taken by the
trial court to determine whether Lawrence was in compliance with this
provision or not. This is an issue of fact that required the taking of evidence.
The argument of Lawrence’s trial attorney concedes this is an ambiguous
issue. RR2 p.8 line 6-12. Furthermore, Lawrence’s summary judgment
7
motion supports that Lawrence was in violation of the court order and did not
obtain the required life insurance policy. CR p..31. The trial court erred in
granting Lawrence summary judgment as it was clear he was in violation of
the order. The Court erred by failing to make an evidentiary finding of
whether Lawrence was in compliance with the life insurance policy provision
or not. Trial counsel for Lawrence argued that there was no offer of evidence
and seem to take issue that Claire wanted him to produce proof the policy
was in existence. RR2 p. 8 line 13-24. That is the entire point of an
enforcement action, it is Claire’s contention in her motion to enforce that
Lawrence was not following the decree in obtaining or maintaining the life
insurance as ordered.
There was also error in that Lawrence’s motion asserts that he was only
required to maintain a life insurance policy equal to the amount of military
retirement in 2015 which would be an annuity payable in the amount of
$56.00 a month. CR p.31. Had Lawrence obeyed the decree in 1984, he
would have been required to take out a life insurance policy for an annuity
payable in the amount of $1240 a month upon his death. The granting of
Lawrence’s summary judgment constitutes an abuse of discretion, because
the trial court had no plenary power to enter any order that alters, modifies,
or substantially changes a divorce decree after plenary power over the
8
divorce decree has expired. The parties decree clearly states the life
insurance annuity was to be payable in the amount of Lawrence’s retirement
in 1984 in the amount of $1240. By granting summary judgment in favor of
Lawrence and dismissing Claire’s enforcement action the trial court
effectively changed the terms of the decree relating the amount of the life
insurance annuity.
ARGUMENT AND AUTHORITIES
I. STANDARD OF REVIEW
Summary Judgment: The trial court’s order granting Lawrence
Summary Judgment and denying Claire Summary Judgment is reviewed
under the de novo standard. “The appellate court reviews the trial court’s
summary judgment de novo.” O’Carolan v. Hopper, 414 S.W.3d 288 (2013).
“On review of an order granting summary judgment, the appellate court
examines the entire record in the light most favorable to the nonmovant,
taking as true all evidence favoring the nonmovant if reasonable jurors
could, and indulging every reasonable inference and resolving any doubts
against the motion.” Id.
Full faith and credit: The trial court's order is reviewed de novo. See
Bryant v. Shields, Britton & Fraser, 930 S.W.2d 836, 841 (Tex. App. Dallas
9
1996, writ denied) (whether trial court erred by failing to afford liquidation
order full faith and credit presented question of law to be reviewed de novo).
II. ISSUE NO. 1 - THE TRIAL COURT’S GRANTING OF
APPELLEE’S MOTION FOR SUMMARY JUDGMENT DENIED
APPELLANT THE ABILITY TO ENFORCE HER RIGHT TO SPOUSAL
MAINTENANCE AND LIFE INSURANCE
A. Under the concept of full faith and credit, when Claire filed her
motion to enforce foreign judgment, she was entitled to have the Texas
Courts recognize the judgment and enforce it as written. The Full Faith and
Credit Clause of the United States Constitution, Article IV, Section 1,
declares that full faith and credit shall be given in each state to the public
acts, records and judicial proceedings of every other state. U.S. Const. art
IV, §1. Chapter 35 of the Texas Civil Practice and Remedies Code also
provides for the enforcement of foreign judgments. Under this principle,
Texas is required to enforce any valid and final judgment from another state.
See Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.
1992).
Texas case law is clear that when a valid final judgment is filed with a
Texas Court, it is domesticated and as such, is entitled to be enforced. See
Wolfram v. Wolfram, 165 S.W.3d 755, (Tex. App. -- San Antonio 2005, no
10
pet.). "Under the Uniform Act, by filing an authenticated copy of a sister
state judgment in a Texas court, the judgment holder can "domesticate" the
foreign judgment. In other words, the filed foreign judgment instantly
becomes a valid and enforceable Texas judgment." Id. Also see TEX. CIV.
PRAC. & REM.CODE ANN. § 35.003(c) Wolfram also cites Walnut Equip.
Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996) which finds that
"when a judgment creditor proceeds under the [Uniform Act], the filing of
the foreign judgment comprises both a plaintiff's original petition and a final
judgment; . . . . No other pleading is required; nothing else needs to be
introduced into evidence.” Id.
The granting of Lawrence’s summary judgment denied Claire the right
to enforce the payment of spousal support and life insurance. Claire was
denied the right to enforce the decree despite the decree clearly stating: the
amount of spousal maintenance (one third of $1240 plus periodic cost of
living increases), the term of the spousal maintenance (so long as both parties
live), and what life insurance policy was required (an annuity payable to
Claire upon the death of Lawrence equal to the value of his military
retirement in the amount of $1240 a month). This clearly violates the Full
faith and Credit clauses of the U.S. Constitution and as recognized by Texas
law.
11
A properly proven foreign judgment or final, enforceable order must
be recognized and given effect coextensive with that to which it is entitled in
the rendering state. Bard, 839 S.W.2d at 794. The Full Faith and Credit
Clause requires that a valid judgment or final order from one state be
enforced in other states regardless of the laws or public policy of the other
states. Id (emphasis added). (citing Underwriters Nat'l Assurance Co. v. N.
Carolina Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 714
(1982)). The laws of the State of Washington set the nature, amount and
duration of spousal maintenance based upon the facts at the time of
divorce. The trial court erred by allowing laws from the State of Texas
that apply to the division of military retirement as property, to be
applied in the Allen Case with regards to an award of spousal
maintenance.
Furthermore, Lawrence had the burden of collaterally attacking the
judgment by establishing a recognized exception to the full faith and credit
requirements, See Russo v. Dear, 105 S.W.3d 43, 46 (Tex. App. Dallas 2003,
pet. denied). The presumption of the judgment's validity can only be
overcome by clear and convincing evidence. Jonsson v. Rand Racing, L.L.C.,
270 S.W.3d 320, 324 (Tex. App. Dallas 2008, no pet.). On March 24, 2014,
Claire filed a petition with this Court pursuant to the Uniform Enforcement
12
of Foreign Judgment Act. Lawrence did not object to the filing of the
parties’ decree and motion for enforcement by Claire under the UCFJA. As
such, the trial court should be reversed and the case remanded to require
enforcement of the decree as it is written.
Lawrence had the opportunity to challenge the award of spousal
maintenance or irrevocable life insurance by appeal, reconsideration or
request the Washington State Court to clarify or modify the award of spousal
maintenance or life insurance if he did not understand or agree to the terms.
The Washington State Superior Court that granted the divorce and ordered
the terms of the decree was the court with the exclusive and continuing
jurisdiction over these matters. Lawrence has not taken any action to
challenge the decree as written.
The parties’ decree is a final judgment that is clear in giving Claire an
award of spousal maintenance in the amount equal to one third of $1240
($433.33) at the time of divorce. The decree is clear that the spousal
maintenance could periodically increase due to cost of leaving increases and
that Claire was entitled to these increases as spousal maintenance. The
decree is clear that spousal maintenance, with increases, was to continue so
long as the parties were both alive. The decree did not allow for the
termination of spousal maintenance in the event Lawrence no longer received
13
military retirement. The decree did not allow for a reduction in spousal
maintenance under any circumstances, except for the death of one of the
parties.
The decree is also clear that Lawrence was required to maintain a life
insurance annuity payable monthly to Claire upon the death of Lawrence in
the amount of $1240.00 per month for the rest of Claire’s life. The Court did
not allow any evidence to be taken concerning the existence of this life
insurance policy nor the amount required under this life insurance policy. By
granting summary judgment in favor of Lawrence and dismissing Claire’s
motion to enforce, the Court committed a reversible error.
III. ISSUE NO. 2 - THE TRIAL COURT’S GRANTING OF APPELLEE’S
MOTION FOR SUMMARY JUDGMENT CHANGED THE AWARD OF
SPOUSAL MAINTENANCE TO AN AWARD OF PROPERTY
The issue before the trial court was not whether Claire was awarded a
portion of Lawrence’s military retirement as property, but rather should
Claire continue to be entitled to spousal maintenance in the dollar amount
and for the length of time as dictated in the decree. At the time of divorce it
was ordered that Claire receive $413.33 each month, so long as both parties
survived. This is the base amount of spousal maintenance. Claire was also
14
awarded periodic increases in spousal maintenance if the military retirement
went up based upon cost of living increases.
"Res judicata precludes re-litigation of claims that have been finally
adjudicated, or that arise out of the same subject matter and that could have
been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996)." Duruji v. Duruji, Nos. 14-05-01185-CV, 14-05-
01186-CV, 2007 WL 582282, at *4 (Tex.App.--Houston [14th Dist.] Feb. 27,
2007, no pet.) (mem. op.). It requires proof of the following elements: (1) a
prior final judgment on the merits by a court of competent jurisdiction; (2)
identity of parties; and (3) a second action based on the same claims as were
raised or could have been raised in the first action. Id. The Allen decree is a
prior final judgment from the State of Washington which both Claire and
Lawrence participated and are clearly identified. The parties both followed
the terms of the decree for many years subsequent to the granting of the
divorce.
Lawrence's attempt to direct the trial court to case law related to
military retirement is irrelevant and a non-issue. The parties decree of
divorce makes no award of military retirement as marital property. To infer
otherwise is effectively an improper modification of the decree.
Furthermore, all of terms of the parties decree (child related issues, property
15
issues and spousal maintenance) were set according to and are still controlled
by the laws of the State of Washington. The petition filed by Claire was an
enforcement action, not a modification or any other sort of action that would
allow Texas laws to interpret or change the terms of the spousal maintenance,
outside of enforcing the terms of the decree.
Claire contends that Texas case law does not apply to the interpretation
of the terms of the parties decree outside of it being enforced. However, for
the sake of argument, even if it were to apply, the cases cited by Lawrence
are not on point, even in the slightest, in that they are related to the award of
military retirement as property, not spousal maintenance. Lawrence's
summary judgment brief nor his cited case law relate to the enforcement or
award of spousal maintenance.
First, in Hagen v. Hagen 282 S.W.3d 899 (Tex. 2009), Doris and
Raoul Hagen’s 1976 divorce decree awarded a percentage of Raoul Hagen’s
military retirement pay to Doris Hagen, to be paid if, as, and when
received (emphasis added). The language “if, as, and when” was included in
the Hagen decree and is unambiguous as to what exactly Doris Hagen is
entitled to, that is, a percentage of her former spouse's military retirement if
and when he in fact received military retirement. If Mr. Hagen did not
receive any military retirement, effectively Doris Hagen would receive
16
nothing as well. In the case before the court now, the decree states that
Claire is awarded spousal maintenance in “an amount equal to [one-third] of
his U.S. Army retirement pay” and does not impose any restrictions by using
“if, as, and when” Lawrence receives it. Whether Lawrence actually receive
military retirement after the entry of the decree of dissolution is irrelevant.
Second, the percentage of military retirement awarded to Doris Hagen
was not in the form of spousal support, it was an award of marital property.
In the Hagen case and many of the other cases cited by Lawrence, the former
spouse was awarded a specific percentage or dollar amount of the
Servicemember's military retired pay as an award of community or marital
property. In the case before the Court now, Claire was awarded spousal
maintenance in the parties' decree. It was not awarded to her as a form of
property. To infer Claire was given an award of property instead of an award
of spousal maintenance is reversible error as it improperly modifies the terms
of the decree.
Finally, Lawrence’s military retirement pay was merely a dollar figure
that the Washington State Court used to determine the amount the spousal
maintenance and child support that Lawrence should pay. Holding to the
contrary, is a collateral attack on a final order. Defining “collateral attack” as
“[a]n attack on a judgment in a proceeding other than a direct appeal”.
17
Black’s Law Dictionary, 278 (8th ed. 2004). The fact that Lawrence now
receives a different type of pay is irrelevant because the intention of the court
was to award the Claire spousal maintenance for as long as both parties were
alive. It is clear that the words “retirement pay” was used to measure the
amount of spousal maintenance and does not preclude any military pay that is
not designated as retirement.
Lawrence's argument that because he waived his military retired pay in
order to receive VA disability and Combat Related Special Compensation
pay, thus alleging he no longer receives military retired pay at all, should
have no bearing on the question as to whether Lawrence has a legal duty to
pay spousal maintenance under the divorce decree. Lawrence's overt acts to
change the classification of his military retired pay to circumvent the
requirement for him to pay spousal maintenance should not be allowed.
Spousal support, like child support, is an obligation that does not cease
because the type of pay the obligor receives. The decree stated the one-third
of his military retired pay is deemed spousal maintenance and two-thirds is
deemed child support. If Lawrence was still obligated to pay child support in
September 2013 or later after he waived his military retirement, it would be
preposterous to have a finding that Lawrence's child support obligation
would cease to be payable because Lawrence made an overt act to change his
18
military retirement pay to a form of disability pay (VA disability or Combat
Related Special Compensation pay). In this case the only justification for
spousal support to decrease or stop is through a modification or termination
of spousal support filed by Lawrence and heard by a court of competent
jurisdiction, which is the State of Washington.
It is clear that the words “retirement pay” was used to measure the
amount of support by the use of the language “equal to.” If the Washington
Court intended for Claire to be given a portion of Lawrence’s military
retirement it would have awarded her a share of the military retirement as
property (33% of the disposable military retired pay) or used language such
as “she is awarded 1/3 of the military retirement as spousal maintenance” as
well as language such as “if, as and when received” (as it is often seen it
Texas divorce decrees related to military retirement). The Washington Court
intended Claire to receive spousal maintenance for as long as both parties
lived, which is clearly stated in the decree. The Washington Court intended
Claire to receive spousal maintenance in the minimum amount of $413.33,
plus cost of living increases.
By granting Lawrence’s summary judgment the Court applied cases
related to the award of military retirement to a former spouse and a service
member’s right to elect certain benefits. Lawrence should be barred from
19
alleging that the spousal maintenance awarded to Claire is actually an award
of marital property as a way to usurp the order of spousal maintenance. The
trial court effectively converted the award of spousal maintenance into an
award of military retirement. This is an abuse of discretion. Lawrence argues
that under Texas law, he has a right to elect VA disability or CRSC. This
election is completely irrelevant to the award of spousal maintenance and is a
non-issue in this case.
IV. ISSUE NO. 3 - THE TRIAL COURT’S GRANTING OF APPELLEE’S
MOTION FOR SUMMARY JUDGMENT CHANGED THE AMOUNT OF
LIFE INSUANCE TO BE MAINTAINED BY APPELLEE.
The trial court’s granting of Lawrence’s Motion for Summary
Judgment, denial of Claire’s Motion for Summary Judgment and dismissal of
Claire’s Motion to Enforce deprived her the right to be named as an
irrevocable beneficiary of a life insurance annuity on the life of Lawrence,
under the terms of decree. It further changed the amount of the ordered life
insurance policy.
As cited in section II, Issue No.2 above, the theory of Res Judicata
prevents Lawrence from changing the terms of the parties’ decree. The
decree states that Lawrence "shall procure and continuously maintain life
insurance on himself payable to Claire and the parties three minor children as
20
irrevocable beneficiaries in an amount sufficient to fund an annuity equal in
value to Lawrence's U.S. Army Retirement Pension" (emphasis added). It
was clear in 1984 that Lawrence’s military retirement pension was $1240 a
month. It is clear that the decree intended that when Lawrence died, Claire
and her children were to receive $1240 a month so long as Claire lived. If it
was unclear to Lawrence as to what type of life insurance policy/annuity to
obtain or how much of a life insurance policy was required to be taken to
provide an annuity of $1240 a month to Claire for her rest of her life upon his
death, Lawrence should have filed a motion to clarify with a court of
competent jurisdiction, which is the Washington State Court, that granted the
divorce. It is Claire’s contention that at the time of divorce Lawrence was
required to take out a life insurance annuity that would pay to Claire an
amount equal to his full pension such that when he dies, Claire and her
children would receive an amount no less than $1240 each month until she
died. Despite her contentions, Claire was denied the right to testify or present
evidence on the life insurance annuity. There was no evidence presented by
either party about what this amount should be. The argument of Lawrence’s
trial attorney concedes the issue that life insurance was an ambiguous issue.
RR2 p.8 line 6-12. In a traditional motion for summary judgment, Lawrence
had the burden of demonstrating that there is no genuine issue of material
21
fact and that he was entitled to judgment as a matter of law. See Am. Tobacco
Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
In a no-evidence motion for summary judgment the movant (Lawrence)
represents that there is no evidence of one or more essential elements of the
claims for which the non-movant (Claire) bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i); Green v. Lowe's Home Ctrs., Inc., 199 S.W.3d 514,
518 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). Counsel for Claire
clearly stated to the Court there were issues of fact in question related to the
life insurance issue. RR1 P. 20 lines 15-22. However, no evidence was taken
by the Court and summary judgment was granted in favor of Lawrence
regardless.
Value of Insurance – In Lawrence's motion for summary judgment he
contends that the life insurance should be in place now to cover his monthly
military retirement as of 2015, which would pay an amount of $56 to Claire
upon the death of Lawrence. Buying into this argument, the trial court again
changed the terms of the parties decree. This life insurance annuity was
ordered to be in place in 1984, of which is alleged that Lawrence failed to do.
Lawrence wants to use the value of his military retirement in 2015, after his
overt acts in 2013 to reduce his military retirement, as the basis for the
amount of the life insurance annuity. This is improper. For Lawrence to
22
argue the life insurance annuity should now be for an amount equal to the
current monthly amount of his military retirement, after waiving his military
to reduce it to nearly nothing, goes completely against the intent of the decree
of dissolution and modifies it. The life insurance should have been enforced
in that Lawrence should have been ordered to obtain a policy in the amount
of that would result in Claire and the parties children receiving no less than
$1240 per month for the rest of Clare Allen’s life.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant, Claire Allen
asks the Court to reverse the order granting Appellee’s Motion for Summary
Judgment and reinstate this lawsuit. Appellant asks the Court to find that:
she was awarded spousal maintenance and not a share of military retirement
as property, that the trial court has an obligation to enforce the spousal
maintenance in the amount ordered in the decree, that Appellant is entitled to
enforcement of the life insurance provisions based upon the military
retirement received by Appellee at the time of divorce; and for all such other
relief to which Appellant is entitled.
Respectfully submitted,
/s/ Dawn M. Laubach
DAWN M. LAUBACH
23
State Bar No. 24031271
LAUBACH LAW OFFICE
1370 Pantheon Way, Ste 110
San Antonio, Texas 78232
(210) 222-1225 (Telephone)
(210) 853-5943 (Facsimile)
ATTORNEY FOR
APPELLANT,
CLAIRE ALLEN
24
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby
certify that this brief contains 4932 words (excluding the caption, table of
contents, table of authorities, signature, proof of service, certification, and
certificate of compliance). This is a computer-generated document created in
Microsoft Word, using 14-point typeface for all text, except for footnotes
which are in 12-point typeface. In making this certificate of compliance, I
am relying on the word count provided by the software used to prepare the
document.
/s/ Dawn M. Laubach
DAWN M. LAUBACH
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
Appellant has been served electronically on the 19th day of August, 2016:
Troy Voelker
500 Round Rock Avenue , Suite 2
Round Rock, Texas 78711
VIA ELECTRONIC DELIVERY
/s/ Dawn M. Laubach
DAWN M. LAUBACH
25
APPENDIX
1. Order Granting Summary Judgment dated April 6, 2016
2. Appellee’s Motion for Summary Judgment dated April 17, 2015
3. Appellant’s Motion for Summary Judgment dated May 26, 2015
4. Decree of Dissolution dated April 29, 1984
26
;
NO. 14-0804-F425
IN THE DIST-RIC``8Rf
016
CLAIRE L. ALLEN §
Petitioner, §
§ ~/)~,~
v. § 425TH .niJff!\C;t``'fwii~on Co., TX.
§
LARRY ALLEN §
Respondent. § OF WILLIAMSON COUNTY, TEXAS
ORDER GRANTI~G
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
On June 9, 2015, the Court considered the Motions for Summary Judgment filed by
Petitioner and Respondent.
After due consideration of the summary judgment evidence, including the pleadings, and
the argument of counsel, this Court finds that Petitioner's Motion should be DENIED and
Respondent's Motion should be~
It is therefore ORDERED that Petitioner take nothing by her suit against Respondent and
Petitioner's suit is hereby dismissed with prejudice.
All other relief requested by either party is hereby DENIED. This judgment finally
disposes of all parties and all claims and is appe~able.
Signed on the __!e_ day of ~ , 2016.
~SIDING
110
APPROVED AS TO FORM:
KEVIN HENDERSON
Attorney at Law
2 I 3 A West 8th Street
Georgetown, TX 78626
Tel: 512-240-5367
Fax: 512-863-9381
~(
By:'f-·
j/
~iJ_ __J)
g_,
Kevin Henderson
State Bar No. 09424500
kevinhenderson@justice.com
Attorney for Respondent
LAUBACH LAW OFFICE
I 3 70 Pantheon Way, Suite I I 0
San Antonio, TX 78232
Tel: 210-222-1225
Fax: 210-853-5943
111
Filed: 4/17/2015 11:52:05 AM
Lisa David, District Clerk
Williamson County, Texas
Ellie Saucedo
NO. 14-0804-F425
CLAIRE L. ALLEN § IN THE DISTRICT COURT
§
§
v. § 425TH JUDICIAL DISTRICT
§
§
LARRY ALLEN § WILLIAMSON COUNTY, TEXAS
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Respondent, Larry Allen, and requests the Court to enter Summary Judgment
in favor of Respondent on the affirmative defenses set forth herein and against Petitioner Claire L.
Allen, and in support thereof, shows the Court the following:
I.
FACTS/PROCEDURAL HISTORY
Petitioner and Respondent were divorced on April 25, 1984, in the State of Washington. At the
time of divorce, Respondent was retired from the United States Army and was receiving military
retirement benefits. At that time, Respondent was not receiving benefits under either Title 10 or Title
38 U.S.C. A true and correct copy of the Decree of Dissolution of Marriage (the "Decree") has been
filed by Petitioner in this case and a true and correct copy of such document is attached hereto and
incorporated herein for all purposes.
On March 24, 2014, Petitioner filed suit in this Court for the purpose of enforcing provisions of
the Decree relating to the payment of spousal support. Respondent has answered and argues that
Petitioner is not entitled to the relief sought.
The relevant portions of the Decree provide as follows:
Page 2, Line 18 - "By way of child support and spousal maintenance Lawrence H. Allen shall
pay through the registery (sic.) of the Superior Court for Whatcom County for the benefit of Claire L.
Envelope# 4929144
27
Allen on the first day of each calendar month an amount equal to his U.S. Army retirement pay
(emphasis added) ... Of such amount one-third of the total payment shall be deemed spousal
maintenance and such payment shall continue so long as both parties survive ... "
Page 3, Line 4- "Respondent shall fully cooperate and execute any and all documents necessary
to effect direct payment or assignment of such US Army Pension (emphasis added) to the Registery
(sic.) of the Whatcom County Superior Court for the benefit of Petitioner... "
Page 3, Line 16-6. Respondent shall procure and continuously maintain life insurance on
himself payable to Petitioner and the parties three minor children as irrevocable beneficiaries in an
amount sufficient to fund an annuity equal in value to Respondent's U.S. Army Retirement Pension."
(emphasis added).
There is no mention in the Decree of any other military benefit available to Respondent.
At the time of the divorce, Respondent's U.S. Army retirement pay was, according to the Decree,
$1,240 per month. On or about August 9, 2011, Respondent was determined to be 100% disabled and
entitled to receive disability-related compensation under Title 38 U.S.C. (VA benefits). On or about
June 20, 2013, the Department ofthe Army found that Respondent is also entitled to Combat-Related
Special Compensation ("CRSC") under Title 10 U.S.C. The statutes relevant to VA. compensation and
CRSC are attached hereto. These Title 10 benefits (CRSC) should be distinguished from the Title 10
benefits referenced in Hagan v. Hagan 282 S. W 3d 899 (Tex. 2009), to which this Court referred in a
prior hearing. The Hagan court was referring to 10 U.S.C. 1201, etc., which refers to what may be
termed "early retirement due to disability" and is not relevant here. The only relevant military
disability statutes in this case pertain to VA and CRSC.
Both VA and CRSC benefits confer favorable tax status to disabled veterans. Such benefits are
excluded from "gross income" for purposes of federal income taxation. See: 26 USC 104(a)(4) and
(b)(J). The amount of such payments is, however, limited by law. In order to receive VA benefits, a
retiree must waive that portion of his retirement pay which is equal to the amount of VA benefits he
28
will receive. A retiree may not receive duplicate retirement and VA benefits. See 38 USC 5304 (a)(1)
and 5305. Such waiver is expressly permitted under federal law and may not be preempted by state
law. It should be pointed out that VA benefits are not property and are not, themselves, divisible at
divorce. See: 38 USC. 1408(a)(4)(B); Mansel v. Manse/490 US. 581 (1989).
CRSC is a program separate and distinct from VA created for disabled military retirees with
combat-related disabilities. It was created to provide monthly benefits to retired veterans to replace
their VA disability offset (the amount of retirement pay waived to receive VA) and may not exceed the
amount of such offset. It is not retirement pay. See: 10 USC 1413(g). "Payments under this section
are not retired pay. " (emphasis added).
As a result of now receiving VA benefits and CRSC, Respondent's military retirement pay - his
U.S. Army retirement pay, US Army Pension or U.S. Army Retirement Pension, has been reduced
to approximately $56 per month, of which Petitioner continues to receive one-third.
l
II.
ARGUMENTS & AUTHORITIES
A. Respondent can demonstrate Respondent is entitled to summary judgment as a matter of
law as set forth herein.
B. There are no genuine issues of material fact in this case; therefore, the Court may decide
this case on the summary judgment evidence included in the appendix to this motion, which evidence is
incorporated herein by referenctJ.
Ill.
Military Retirement/Spousal Maintenance
In order to prevail, Petitioner must show that the Decree clearly and unambiguously requires
Respondent to be paying Petitioner one-third of all amounts he receives from all sources related to his
military carrier. In this regard, Respondent asserts that the case of Hagan v. Hagen is directly
controlling. Hagan v. Hagen 282 S. W3d 899 (Tex. 2009). This Court, in construing the decree, must
29
consider it as a whole. "If the Decree is unambiguous, the Court must adhere to the literal language
used." Hagan, at 901. It is for the Court to decide as a matter of law whether the Decree is ambiguous.
It is Respondent's position that the Decree clearly, specifically and unambiguously sets out the fund
from which Petitioner's lifetime alimony is to be paid and likewise clearly, specifically and
unambiguously sets out the percentage to be paid to her. There can be no dispute that the Decree does
not mean exactly what it says.
To paraphrase Hagan: "In the case before us, the Allen's original decree did not award Claire
amounts "calculated on" Larry's gross, or even total, retirement pay before deductions, as the decree in
Berry did [referring to Berry v. Berry, 780 S. W2d 846 (Tex.App.-Dallas 1989), rev'd per curiam, 786
S. W2d 672 (Tex. 1990)]. The Allen's decree plainly entitled Claire only to part of the Army or military
retirement pay Larry received, if, as, and when he received it. As discussed previously, such military
retirement pay did not include VA disability benefits." To hold otherwise would constitute an
impermissible collateral attack on the decree. Berry at 673, Hagan id. As stated in Hagan, ''the
language used in divorce decrees is important and we must presume the divorce court chose it
carefully... "
The opposite side of Petitioner's case was considered by the Austin Court of Appeals in
Foreman v. Foreman, No. 03-00245-CV (Tex.App.-Austin 2014). In Foreman, the husband attempted to
convince the trial court that "47% of the United States disposable retired or retainer pay to be paid as a
result of Peter W. Foreman's service in the United States Army" did not include that portion which he
earned post-divorce. Justice Pemberton, relying on Hagan, quickly disposed of Mr. Foreman's claims.
"If the material provisions of the decree are unambiguous-i.e., there is only one reasonable construction
of them-courts have no discretion but to give effect to the literal language used." Foreman, id. Going
further, he commented ''the parties' intent is governed by what they said, not by what they intended to
say but did not." (emphasis in original). "Accordingly, the district court (Judge Naranjo) did not err or
abuse its authority in denying t>eter's motion to "clarify" the divorce decree-and, indeed, it had no
30
discretion to grant that relief here." Once again, a court "must adhere to the literal language of an
unambiguous decree." Sheldon• v. Sheldon, No. 03-Jl-00803-CV (Tex.App.-Austin 2014) (in a case
from the 425th District Court).
IV.
Life Insurance
In addition to her claim for enforcement of spousal maintenance, Petitioner also seeks relief for
Respondent's alleged failure to provide her with a copy of a life insurance policy. The relevant
language from the Decree is as follows:
Page 3, Line 16-6. Respondent shall procure and continuously maintain life insurance on
himself payable to Petitioner and the parties (sic.) three minor children as irrevocable beneficiaries in
an amount sufficient to fund an annuity equal in value to Respondent's U.S. Army Retirement Pension.
Petitioner's requested relief is that the life insurance provision be enforced and a copy of the
policy be provided to Petitioner.
An annuity contract is generally in the nature of a stream of payments commencing on a certain
date and ending at some defined future point in time. In order to purchase an annuity contract one must
know the amount of each payment sought or the amount available for investment, the beginning point
and the ending point. Using that information, it is possible to contract with a third party- usually an
insurance company - to obtain the annuity.
Respondent's current U.S. Army retirement pension 1s approximately $56 per month.
Respondent stands ready to purchase an insurance policy naming Petitioner as beneficiary in an amount
necessary to purchase a monthl)i annuity payment of $56 for the life of Petitioner.
CONCLUSION
In a case involving facts which create sympathy for the injured party, there is frequently a desire
to lessen the sting by fashioning an equitable "middle-ground". This is not always a bad thing and
certainly something that should, in an appropriate case, be considered. However, where the law is clear,
31
duty must trump sympathy. To do otherwise does a d isservice to the law.
Petitioner has enjoyed the fruits of the Decree for thirty years. Respondent has never so ught to
deprive Petitioner of w hat she was awarded in a Decree prepared by Petitioner's attomey. The law is
clear. The Decree is unambiguous. Judgment shou ld be rendered that Petitioner take nothing by her
suit.
WHEREFORE, PREMISES CONSIDERED, Respondent prays that:
The Court set thi s matter for hearing, with notice to Petitioner and that upon completion of sa id
hearing the Court grants Respondent's Motion for Summary Judgment, and that Respondent has the
fo ll owi ng:
1. Judgment against Petitioner Claire L. A llen, denying all relief so ught or alternatively,
should the Court find some fact s to be controverted , Respondent be granted a partial summary
judgment specifying those facts that appear to be without substantial controversy;
2. Pre-j udgment and post-judgment interest as provided by law;
3. Costs of suit; and
4. Respo ndent be granted such other and fu11her relief, special or general, at law or in
equity, as may be shown that Respondent is justly entitl ed to receive.
Respectfu ll y submitted,
KEVIN HENDERSON
Attorney at Law
2 13 A West 8th Street
Georgetown, TX 78626
Tel: 5 12-240- 5367
Fax: 512-863-938 1
By ~,.c_/1 JL__ _
Kevin Henderson
State Bar No. 094245 00
kevinhenderso n@j ustice.co m
Attorney for Respondent
32
NOTICE OF HEARING
--r- The above and fore~oing Respondent's Motion for Summary Judgment is set for hearing on
~ ~ 1 ~/S:t q·tfO ~ in the 425th Judicial District Court of Wi lliamson Co unty, Texas.
CERTIFICATE OF SERVICE
1 certify that on April _!__:1_, 201 5 a true and correct copy of Respondent's Motion for Summary
J udgment was served by fax on Dawn M. Laubach at 2 10-853-5943.
Kevin Henderson
33
Filed: 5/26/2015 2:02:02 PM
Lisa David, District Clerk
Williamson County, Texas
Stephanie Aleman
NO. 2014-0804-F425
CLAIRE L. ALLEN § IN THE DISTRICT COURT
§
V. § 425th JUDICIAL DISTRICT
§
LAWRENCE ALLEN § WILLIAMSON COUNTY, TEXAS
MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Petitioner Claire L. Allen (“Petitioner”) files this Motion for Summary
Judgment against Respondent Lawrence Allen, pursuant to Texas Rule of Civil Procedure
166a(c) (“traditional”) and 166a(i) (“no-evidence”), to enforce the foreign judgment that awards
Petitioner spousal maintenance.
I. FACTS AND PROCEDURAL HISTORY
A. Parties Decree of Dissolution
On April 25, 1984, Petitioner and Respondent were divorced in the State of Washington
and through the decree of dissolution Petitioner was awarded spousal maintenance. At that time,
Respondent was retired from the United States Army and was receiving military retirement
benefits in the amount of $1240.00 per month.
The Decree states, “By way of child support and spousal maintenance Lawrence H. Allen
shall pay through the registry of the Superior Court of Whatcom County for the Benefit of Claire
L. Allen on the first day of each calendar month an amount equal to his U.S. army retirement
pay. Of such amount one-third of the total payment shall be deemed spousal maintenance and
such payment shall continue so long as both parties survive; ….”
The decree further states "Respondent shall procure and continuously maintain life
insurance on himself payable to Petitioner and the parties three minor children as irrevocable
beneficiaries in an amount sufficient to fund an annuity equal in value to Respondent's U.S.
Army Retirement Pension.”
In about June 2013 Respondent elected to waive a portion of his military retirement in
order to receive only disability pay from the military through Combat Related Special
Compensation pay and VA Disability. Sometime after this election Respondent notified
Petitioner, through the parties daughters Ginger and Jessica (see encl 1).
A true and correct copy of the Decree of Dissolution of Marriage (the “Decree”) has been
filed by Petitioner in this case and is incorporated herein for all purposes.
Envelope# 5417287
103
B. Spousal Maintenance Paid
At the time of divorce, Respondents’ military retirement pay was $1,240 a month and
subject to periodic cost of living increases. At the time of divorce, Petitioner was entitled to
$413.33 per month. She started receiving that amount and over time it increased as Respondent's
military retirement increased. In August 2013, the Respondent received $2,937 a month in
military retirement pay, of which Petitioner, received $979.05 per month as spousal maintenance.
This $979.05 is the highest amount of monthly spousal maintenance received by Petitioner
before Respondent elect to reduce his military retirement. Beginning in September 2013
Petitioner started receiving $51.33 a month which stopped in December 2013.
II. ARGUMENTS AND AUTHORITIES
Petitioner can demonstrate that Petitioner is entitled to summary judgment as a matter of
law as set forth herein.
There are no genuine issues of material fact in this case; therefore, the Court may decide
this case on the summary judgment evidence included in the appendix to this motion, which
evidence is incorporated herein by reference.
A. Full Faith and Credit Clause
The Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1,
declares that full faith and credit shall be given in each states to the public acts, records and
judicial proceedings of every other state. U.S. Const. art IV, §1. Chapter 35 of the Texas Civil
Practice and Remedies Code also provides for the enforcement of foreign judgments . Under this
principle, Texas is required to enforce any valid and final judgment from another state. See Bard
v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex. 1992). Texas courts
recognize two methods of enforcing foreign judgments: 1. Filing a judgment pursuant to the
Uniform Enforcement of Foreign Judgment Act (“Uniform Act”), or 2. Filing a common law
action to enforce a foreign judgment.
Texas case law is clear that when a valid final judgment is filed with a Texas Court,
it is domesticated and as such is entitled to be enforced. See Wolfram v. Wolfram, 165 S.W.3d
755, (Tex. App. -- San Antonio 2005, no pet.). "Under the Uniform Act, by filing an
authenticated copy of a sister state judgment in a Texas court, the judgment holder can
"domesticate" the foreign judgment. In other words, the filed foreign judgment instantly becomes
a valid and enforceable Texas judgment, as if it had been rendered by the filing court" Id. Also
see TEX. CIV. PRAC. & REM.CODE ANN. § 35.003(c) Wolfram also cites Walnut Equip.
Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996) which finds that "when a judgment
creditor proceeds under the [Uniform Act], the filing of the foreign judgment comprises both a
plaintiff's original petition and a final judgment; . . . . No other pleading is required; nothing else
needs to be introduced into evidence. Id".
104
On March 24, 2014, Petitioner filed a petition with this Court pursuant to the Uniform
Enforcement of Foreign Judgment Act. As such, this Honorable Court should enforce the
decree as it is written. Enforcement of the decree of dissolution is the only matter pending
before the court. The decree of dissolution is a final judgment that is clear in giving Petitioner
an award of spousal maintenance so long as both of the parties survive.
B. Res Judicata
"Res judicata precludes re-litigation of claims that have been finally adjudicated, or that
arise out of the same subject matter and that could have been litigated in the prior
action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)." Duruji v. Duruji, Nos.
14-05-01185-CV, 14-05-01186-CV, 2007 WL 582282, at *4 (Tex.App.--Houston [14th Dist.]
Feb. 27, 2007, no pet.) (mem. op.). It requires proof of the following elements: (1) a prior final
judgment on the merits by a court of competent jurisdiction; (2) identity of parties; and (3) a
second action based on the same claims as were raised or could have been raised in the first
action. Id. The Allen divorce decree is a prior final judgment from the State of Washington
which both Claire L. Allen and Lawrence Allen participated and are clearly identified. The
parties both followed the terms of the decree for many years subsequent to the granting of the
divorce. Respondent should now be barred from alleging first, that the spousal maintenance
awarded to Petitioner is actually an award of marital property as way to usurp the order of
spousal maintenance and second, that the life insurance provisions should be based upon current
military retirement and not the retirement he was receiving in 1984 when the Court considered
the matter of life insurance. Respondent had the opportunity to challenge the award of spousal
maintenance or irrevocable life insurance by appeal or reconsideration as well as to request the
Washington State Court to clarify the award of spousal maintenance or life insurance if he did
not understand it's terms. The Washington State Superior Court that granted the divorce and
ordered the terms of the decree of dissolution is the court with the exclusive and continuing
jurisdiction over these subject matters. Respondent did not and has not taken such actions.
Based upon Res Judicata, Respondent cannot now, through an enforcement matter, ask the court
to effectively change the terms of the decree.
B. Military Retirement
Respondent's attempt to direct the court to case law related to military retirement is
irrelevant and a non-issue. The parties decree of divorce makes no award of military retirement
as marital property. Furthermore, all of terms of the parties decree (child related issues, property
issues and spousal maintenance) were set according to and are still controlled by the laws of the
State of Washington. The petition before the court is an enforcement action, not a modification
or any other sort or action that would allow Texas laws to interpret or change the terms of the
spousal maintenance, outside of enforcing the terms of the decree.
Petitioner contends that Texas case law does not apply to the interpretation of the terms
of the parties decree outside of it being enforced. However, for the sake of argument, if it were
to apply, the cases cited by Respondent are not on point whatsoever in that they are related to the
award of military retirement as property. Respondent's brief nor case law relate to the
enforcement or award of spousal maintenance.
105
First, in Hagen v. Hagen 282 S.W.3d 899 (Tex. 2009), Doris and Raoul Hagen’s 1976
divorce decree awarded a percentage of Raoul Hagen’s military retirement pay to Doris
Hagen, to be paid if, as, and when received (emphasis added. The language “if, as, and when”
was included in the Hagen decree and is unambiguous as to what exactly Doris Hagen is entitled
to, that is, a percentage of her former spouse's military retirement if and when he in fact received
military retirement. If Mr. Hagen did not receive any military retirement, effectively Doris
Hagen would receive nothing as well. In the case before the court now, the decree states that
Petitioner is awarded spousal maintenance in “an amount equal to [one-third] of his U.S. Army
retirement pay” and does not impose any restrictions by using “if, as, and when” Respondent
receives it. Whether Respondent actually receive military retirement after the entry of the decree
of dissolution is irrelevant.
Second, the percentage of military retirement awarded to Doris Hagen was not in the
form of spousal support, it was an award of marital property. In the Hagen case and many of the
other cases cited by Respondent, the former spouse was awarded a specific percentage or dollar
amount of the Servicemember's military retired pay as an award of community or marital
property. In the case before the Court now, Petitioner was awarded spousal maintenance in the
parties' decree if dissolution, it was not awarded to her as a form of property. To infer Claire L.
Allen was given an award of property is erroneous.
Finally, Respondent’s military retirement pay was merely a dollar figure that the
Washington State Court used to determine the amount the spousal maintenance and child support
that Respondent should pay. Holding to the contrary, is a collateral attack on a final order.
Defining “collateral attack” as “[a]n attack on a judgment in a proceeding other than a direct
appeal”. Black’s Law Dictionary, 278 (8th ed. 2004). The fact that Respondent now receives a
different type of pay is irrelevant because the intention of the court was to award the Petitioner
spousal maintenance for as long as both parties were alive. It is clear that the words “retirement
pay” was used to measure the amount of support and does not preclude any military pay that is
not designated as retirement.
Respondent's argument that because he waived his military retired pay in order to receive
VA disability and Combat Related Special Compensation pay, thus alleging he no longer
receives military retired pay at all, should have no bearing on the question as to whether
Respondent has a legal duty to pay spousal maintenance under the divorce decree. Respondent's
overt acts to change the classification of his military retired pay to circumvent the requirement
for him to pay spousal maintenance should not be allowed. Spousal support, like child support,
is an obligation that does not cease because the type of pay the obligor receives. The decree
stated the one-third of his military retired pay is deemed spousal maintenance and two-thirds is
deemed child support. If Respondent was still obligated to pay child support in September 2013
or later after he waived his military retirement, it would be preposterous to have a finding that
Respondent's child support obligation would cease to be payable at all because Respondent made
an overt act to change his military retirement pay to a form of disability pay (VA disability or
Combat Related Special Compensation pay). In this case the only justification for spousal
support to change or stop is through a modification or termination of spousal support filed by
Respondent and heard by a court of competent jurisdiction, which is the State of Washington.
106
C. Life Insurance
The decree further states that Respondent "shall procure and continuously maintain
life insurance on himself payable to Petitioner and the parties three minor children as irrevocable
beneficiaries in an amount sufficient to fund an annuity equal in value to Respondent's U.S.
Army Retirement Pension" (emphasis added). The language of the decree does not state it is for
an amount equal to the monthly payment, but rather the value of the entire pension. In 1984
Respondent's monthly retirement pay was $1240.00. That is $14,880.00 per year. Respondent's
life expectancy in 1984 was about age 72. Respondent was 39 years old at the time of divorce.
The life insurance should have been taken out in 1984 in the amount of about $491,040.00 with
Petitioner and the parties three children as irrevocable beneficiaries. It is Petitioner's contention
that this life insurance cannot be modified or changed by Respondent as the trial court made this
order in that the insurance be irrevocable.
If the Court agrees with Respondent's argument that the award of life insurance annuity
should have been obtained to guarantee a payment Respondent's monthly military retired pay, it
should be for the amount of $1270 a month (Respondent's monthly retirement at the time of
divorce), with Petitioner and her children as the irrevocable beneficiaries of that monthly annuity
effective in May 1984. Respondent's contention that the life insurance should be in place now to
cover his monthly military retirement as of 2015, after his overt acts to reduce his military
retirement is improper. This life insurance was ordered to be in place in 1984, of which
Respondent failed to do. For Respondent to argue the life insurance annuity should now be for
an amount equal to the current monthly amount of his military retirement, after waiving his
military to reduce it to nearly nothing, goes completely against the intent of the decree of
dissolution. The life insurance should be enforced in that Respondent should be ordered to
obtain a policy in the amount of $491,040.00 and payable to Petitioner and the parties children
upon Respondent's death or alternatively an amount equal to an annuity that would generate
$1270.00 a month with Petitioner and the parties children as the irrevocable beneficiaries.
Just as the payment of spousal support, the enforcement of this provision of the parties
decree of dissolution is entitled to full faith and credit, and should be enforced by this court
based upon the same argument and authority cited above related to the enforcement and payment
of spousal maintenance.
III. CONCLUSION
Petitioner’s motion for summary judgment should be granted as a matter of law because
the divorce decree is a final judgment issued by the Superior Court of the State of Washington in
and for Whatcom County. Petitioner is entitled to enforcement of this decree through this Court.
Respondent’s failure to pay spousal maintenance to Petitioner and obtain life insurance as
ordered is a direct violation of the decree and as such is should be enforced.
Respondent’s 1984 monthly military retirement pay was merely a dollar figure used to
calculate the amount of spousal maintenance to be awarded to the Petitioner and is not dependent
upon its existence. The change of designation of military benefits does not preclude him from his
obligation to pay spousal maintenance to Petitioner. Additionally, Petitioner's right to be
designated as an irrevocable beneficiary along with the parties 3 children is not contingent on the
107
receipt of military retirement. The Washington State Court ordered him to obtain the policy
based upon the amount of retirement he was receiving in 1984.
Through the full faith and credit principle of the United States Constitution and Chapter
35 of the Texas Civil Practice and Remedies Code, the Decree of Dissolution of Marriage is a
valid and enforceable judgment in Texas.
Therefore, Petitioner’s Motion for Summary judgment should be granted.
IV. PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that:
The court set this matter for hearing, with notice to Respondent and that upon
completion of said hearing the Court grants Petitioner’s Motion for Summary Judgment and that
the Court grant Petitioner the following:
1. A Judgment enforcing the decree, awarding Petitioner $20,457.39 in unpaid
spousal maintenance from September 1, 2013 to May 2015, plus cost of living increases since
2013 as well as pre-judgment and post-judgment interest as provided by law;
2. An order requiring Respondent to resume the monthly spousal maintenance of
$979.05, plus any cost of living allowances to military retirement since August 2013, effective
June 1, 2015;
3. An Order of Garnishment for the spousal maintenance to ensure the future
payment of spousal support;
4. An order requiring Respondent to obtain a life insurance policy naming Petitioner
and the children as irrevocable beneficiaries, setting a compliance hearing within 60 days to
ensure Respondent's compliance with the order of the Court.
5. Attorney's Fees and Cost of suit; and
6. Petitioner be granted such other and further relief, special or general, at law or in
equity, as may be shown that Petitioner is justly entitled to receive.
Respectfully submitted,
Laubach Law Office
1370 Pantheon Way, Suite 110.
San Antonio, Texas 78232
210-222-1225 -- Office / 210-853-5943 -- Fax
By:
Dawn M. Laubach
State Bar No. 24031271
E-Mail: laubachlaw@hotmail.com
Attorney for Claire L. Allen
108
NOTICE OF HEARING
Petitioner’s Motion for Summary Judgment is set for hearing on June 9, 2015 at 9:00
a.m., in the 425th Judicial District of Williamson County, Texas.
______________________________
District Clerk
CERTIFICATE OF SERVICE
I certify that on May 24, 2015 a true and correct copy of Petitioner’s Motion for
Summary Judgment and brief in support was served by fax on Kevin Henderson at (512) 863-
9381.
______________________________
Dawn M. Laubach
109
OCT -29-2013 03: 08P FROM: eiRTERS EDGE 954 481 1773 T0:17024770486
I
r.
l
I;"'.~
, .. ,..,•, ..... 2r:::: /',.} C,: Q;~
2 U ...,; I ...,
., .• , ··r.:·,!.\ r.~ ,., ... \/
````~. AND
3 IN THE SUPERIOR COURT OF THE STATE OF FOR
4 WHATCOM COUNTY
5
IN RE THE MARRIAGE OF: )
6 ),
CLAIRE L. ALLEN, ) NO. 84-3-00050-3
7 )
Petitioner, ) PECREE OF DISSOLUTION
a ) OF MARRIAGE
and }_
9 l
LAWRENCE H. ALLEN, l
10 1
Respondent, 1
11 l
l
12
THIS MATTER coming on regularly for hearing April 25, 1984,
13
Petitioner appearing personally and with counsel, CHRISTOPHER E.
14
FLETCHER, Respondent not appearing an Order of Default entering
15
against him and the Court having examined the file and hearing
16
the testimony presented and being well and fully advised in the
17
premises and having made and entered its Findings of Fact and
18
Conclusions of Law
19
NOW THEREFORE IT IS HEREBY ORDERED 1 ADJUDGED AND DECREED as
20
follows:
21
~. The marriage heretofore existing between the parties
22
should be and the same is hereby dissolved.
23
2. Custody of the ~arties three min~r children, to wit:
24
GINGER LISE ALLEN; SUZANNE MARGARET ALLEN and JESSICA LYNN ALLtN ,;
25 •
should be and the same is hereby awarded to Petition.er subject, to
26
Respondent's rights of reasonable visit.a tion.
27
CIIRISTOPIIEII E. ft.ETcl&ll'
ATTORNEY AT LAW .
~
28 DECREE OF DISSOLUTION - ~ 117:5 TitlllD S'l'REET : '[
ILAINE. W}.SJIJSc::toN INit:IO '
423 979 (toelm~
~C~-29-~p13 03:09P FROM:WATERS EDGE 954 481 1773 T0:17024770486 P.3/15
·I·
. I .
. I
1 3. Petitioner and Respondent should be and are herebv awarde
•
2 the real and personal property in their respective possession or
3 under their respective control as of the. date. of this Decree, t:re
4 and clear of any riqht 1 title or interest on the part of the
5 opposing party specifically including, but not limi:ted to, the.
6 businesses operated by each party, to wit; all assets, inco~e or
7 other increments of value associ:ated with ALLEN NORTHWEST
a CONSTRUCTION shall, be the sole and exclusive separa.te !?roperty of
9 Respondent; all assets, income or other increments of value
10 associated with DIFFERENT DRUMMER shall be the sol,e and exclusive
11 property of fetitioner.
'
12 4. Jl.s of the. parties d~te o~ separation, November :~, !.1983,
13 each party· shall be wholly ~esponsible for its own individual and
14 business indebtedness and each 'party shall indemnify and hold the
15 opposing party harmless from such indebtedness specifically
16 including, but not. li"mi:ted to, the parties individual ;retail
17 charge accounts.
18 5. By way of child support and spousal maintenance. Lawrence
19 H. Jl.lle.n shall pay through the registery of the Sup~rior Court fo
20 Whatcom County for the benetit of Claire L, Allen on the first
21 day of each calendar month an amount equal to his U,S, Army re-
22 tirement pay 4>resently $1,240 per month, ·subject to periodic cos
23 of livi:nc;r j:ncreasesL O;f such amount one.,.third of thE! total .VaY."
24 me~t. shall be deemed spousal maintenance and such pa:cment shall
25 continue so ~o~v as both ~arties survive.; two~thirds of such·
26 mont~y payment shall be deemed child su~port for the parties
27
OlfliSTUI'IIEII E. FLETCH Ell
ATTO~SET AT LAW
28 DECREE OF DISSOLUTION ~ 2 117ll TIII~D $TIIa:T
IL\1:<:£., WA.IIUSCTON MI!IO
!toeI m.s:w
OCT- 29-2013 03 : 09P FROM : eiRTERS EDGE 954 481 1773 T0:17024770486
li.
Jl, ,.
1 three minor children. As the parties three minor children ~ach
2 individually complete their respective education or become self~
3 supporting and enamcipated the child support porti~n of such
4 monthly payment shall abate pro tanto. Respondent shall fully
5 cooperate and execute any and all documents necessary to effect
6 direct payment or assignment of such us Armr· ~ension to the
7 Registery of the Whatco~ County Superi~r court for the benefit ot
8 Petitioner and the J;larti"es three m~nor ~h±lq):'en, In the event of
9 the ~eath of Re:~ondent the child su~po):'t payments se~ forth here
10 in .shall be. a conti!luin.g cha;rge !!9'a.}:pst; hi:s estate, In the event
11 of the dea.th Of Fet~tiQner any child SUj?port 0~ S2ousa,l, ma.i-nte"." .
12 nance payments due to her shall be paid to her estate, Responden
13 shall ~rovide finan~ial informatton to Petitioner u~on her reques
14 but in any event shall p):'Qvide her with a COj?Y l;lf hi:s annual ta.x
15 return.
16 Ei, Respondent shall procure and co~tinuously Jl)a,intain l.ife
17 , insurance on him,self l?a,yable to )?etitioner and the parties three
18 minor children as ~rrevocable beneficiaries in an amount
19! suffi'cient to fund l'ffi !1-n~ity equal in val~e to Respol\de.n,t~s tJ,S.
I
20\
I
Army Retirelt)ent )?ensiop., , / ..-
21 PONE IN OPEN COUR'l' this Vday of _._·.``+-....-r'-7"'
22
/'J
·, ' . ...... '. ·. •.
• '
23
Pr¥enEed
24 ,.·'· '' .
; .
' .... ., •,,,· .· ' ·...
25
26
. "
~
...
.. ..
.
27 ,: ;·· ...
OIRISTOPHEII E. Jlt,ETCIIEII
28 DECREE OF DISSOLUTION ~TTORSO AT LAW
11'15 THIRO STREET
OF MARRIAGE - 3 IL.\1:-IE. WASIIINCTON IIIIIJO