Diana Douglas/Eddie Douglas v. Eddie Douglas/Diana Douglas , 2014 Tex. App. LEXIS 12398 ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
DIANA DOUGLAS, No. 08-12-00259-CV
§
Appellant/Cross-Appellee, Appeal from the
§
v. 383rd Judicial District Court
§
EDDIE G. DOUGLAS, of El Paso County, Texas
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Appellee/Cross-Appellant. (TC# 88-7957)
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OPINION
In this appeal from the trial court’ s post-divorce clarification order, both Diana Douglas
and Eddie G. Douglas challenge the trial court’s division of Eddie’s disposable military retired
pay. Diana argues the division is inconsistent with the unambiguous language in the decree.
Eddie raises the same complaint, but also contends the trial court erred in awarding Diana an
arrearage judgment and in failing to award him attorney’s fees and costs and to file findings of fact
and conclusions of law. For the reasons discussed below, we agree the trial court improperly
calculated the percentage of Eddie’s military retired pay to which Diana is entitled and the amount
of arrearages owed. We, therefore, affirm in part, reverse and render in part, and reverse and
remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
Eddie and Diana married in January 1974 and divorced in September 1989.1 At the time
of the divorce, Eddie was a Captain in the United States Air Force with 150 months of creditable
service. The decree apportioned Eddie’s military retirement pay as follows:
[T]he Court ORDERS that such military retirement benefits shall be divided and
distributed as follows: [Diana] is invested in one-half (1/2) of [Eddie]’s ‘Gross
Retired Income’ (military retired pay) as her community property interest share of
[Eddie]’s military retired pay, if, and as received by [Eddie]. In the event [Eddie]
retires from the United States Air Force, [Diana] shall have a community property
interest share of one-half (1/2) times [Eddie]’s Air Force retirement, based upon a
formula of one-half (1/2) times a fraction of which the numerator (150) is the
number of months that the parties were married during which time [Eddie] had
credible time in the United States Air Force toward retirement, prior to the date of
divorce (150 months), and the denominator of which is the number of months that
[Eddie] shall have of credible service toward his military retirement, times gross
retirement benefits receivable, if [Eddie] were eligible for retirement at the time of
the divorce, at his present rank of Captain.
Neither Eddie nor Diana appealed the divorce decree, and the record does not contain any
post-judgment motion challenging the decree.
After the divorce, Eddie remained in the Air Force. In March 2009, he retired from the
Air Force with the rank of Colonel. By then, Eddie had accrued 372 months of creditable service.
Upon his retirement, Eddie began receiving $7,719.00 in gross retirement pay per month.
Shortly thereafter, Diana applied to the Defense Finance and Accounting Service (DFAS)
for her share of Eddie’s military retirement and submitted a certified copy of the divorce decree in
support of her application. In July 2009, DFAS notified Diana that it could not approve her
application because the language in the decree dividing Eddie’s retired pay was faulty. DFAS
advised Diana that this deficiency could be remedied if she obtained a clarifying order that: (1)
awarded either a fixed sum or a percentage of Eddie’s retirement pay; or (2) that provided a
1
The divorce decree was not signed until May 1990.
2
formula “wherein the only missing element is the denominator (member’s years of service or total
points earned by a reservist).”
In October 2009, Diana moved to clarify the divorce decree and to enforce the division of
property. Specifically, Diana moved for an order dividing Eddie’s military retirement pension
benefits , for an award of arrearages for underpayments, including pre- and post-judgment interest,
and for an award of attorney’s fees. After answering, Eddie filed a counter-motion for
clarification.
In March 2011, the trial court held an evidentiary hearing on the parties’ competing
motions.2 After taking the matter under advisement, the trial court issued a clarification order in
July 2012. The order provides, in relevant part, that:
The former spouse, Ms. Diana Douglas, is entitled to receive 4.096% of the
Member, Mr. Eddie Granger Douglas’, Disposable Military Retired Pay. This
interest in Mr. Eddie Granger Douglas’s retirement includes any future costs of
living or other benefits which are not derived as a result of future services of the
Member, Mr. Eddie Granger Douglas, and Ms. Diana Douglas is entitled to any
future costs of living or other benefits which are not derived as a result of future
services of the Member, Mr. Eddie Granger Douglas, absolutely and forever.
It is also ordered that because the Member, Mr. Eddie Granger Douglas, has not
paid Ms. Diana Douglas her proportion of his military retired pay since 2009, this
Court finds and orders that he owes Ms. Diana Douglas an arrearage in the amount
of $9,877.54. [Emphasis added].
The order does not award attorney’s fees to any party.
Although the trial court’s order contained findings of fact and conclusions of law, they
were rudimentary in nature and failed to explain the basis for the trial court’s decision.
Consequently, both parties timely requested findings of fact and conclusions of law, but none were
2
This was the second hearing on the matter. The trial court first heard the matter in August 2010 and signed a
clarification order approximately three months later. But the trial court granted Diana’s request to reconsider the
matter de novo.
3
issued. Eddie, but not Diana, timely filed a notice of past due findings and conclusions. Despite
the notice, the trial court failed to file the requested findings and conclusions.
MILITARY RETIREMENT PAY
We begin by addressing the parties’ contentions that the trial court incorrectly calculated
the percentage of Eddie’s military retirement pay to which Diana is entitled. Although both
parties contend the trial court used the wrong formula in calculating that percentage, they urge
different formulas.
In her sole issue, Diana insists the trial court should have used the following formula:
150 months of service during marriage
50% × × gross retirement benefits receivable
150 months of service credited toward marriage
According to Diana the dollar amount corresponding to Eddie’s “gross retirement benefits
receivable” had he been entitled to retire on the date of divorce at his then-rank of Captain is
$2,808.60. As stipulated by the parties, this amount corresponds to the final base pay of a Captain
with 150 months of longevity on September 14, 1989. Thus, under Diana’s formula, she is
entitled to $1,404.03 per month (50 percent of $2,808.60). In his second-cross issue, Eddie is
adamant the trial court should have used the following formula:
150 months of service during marriage
50% × × 23.7500% × $2,808.60 (base pay of Captain at divorce)
372 months of service credited toward marriage
$7,719.00 (total monthly amount received based on 372 months of service)
Under Eddie’s formula, Diana is entitled to $134.48 per month (1.7421 percent of $7,719.00—the
gross retired pay Eddie began receiving upon retirement based on 372 months of creditable
service).
We agree the trial court erred in concluding Diana is entitled to 4.096 percent of Eddie’s
“Disposable Military Retired Pay.”
4
Standard of Review
We review the trial court’s ruling on a post-divorce motion for clarification or enforcement
of a divorce decree for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990)(per curiam). A trial court abuses its discretion when it acts arbitrarily or unreasonable or
without reference to any guiding rules or principles. Id.
When, as here, the trial court makes no separate findings of fact or conclusions of law, we
must draw every reasonable inference supported by the record in favor of the trial court’s
judgment. Id. But when, as here, the appellate record contains the reporter’s and clerk’s records,
the trial court’s implied findings and conclusions are not conclusive. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
Applicable Law
A trial court may enter orders of enforcement and clarification to enforce or specify more
precisely a divorce decree’s property division. TEX.FAM.CODE ANN. § 9.006(a)(West Supp.
2014). But a trial court is prohibited from amending, modifying, altering, or changing the
division of property originally set out in the decree. TEX.FAM.CODE ANN. § 9.007(a)(West 2006).
In interpreting the language of a decree, we construe the decree as a whole to harmonize
and give effect to the entire decree. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009)[quotation
marks omitted]. If the decree is unambiguous, we interpret it by adhering to the literal language
used in the decree. Id. If the decree is ambiguous, however, we interpret it by reviewing both the
decree in its entirety and the record. Id. Whether a divorce decree is ambiguous is a question of
law. Id. at 901-02 [quotation marks omitted].
Apportionment and Valuation of Community Interest
5
The divorce decree employs the following formula in awarding Diana a community
interest in Eddie’s gross retired pay:
150
50% ×
"the number of months that [Eddie] shall have of credible service toward his military retirement"
× "gross retirement benefits receivable, if [Eddie] were eligible for retirement at the time of the divorce,
at his present rank of Captain"
Eddie had not retired from the Air Force when he and Diana divorced in 1989.
Since 1983, Texas law has provided a formula for determining the extent and value of the
community interest in an employee spouse’s defined-benefit plan, when the latter began plan
participation during marriage but retired after divorce. See Berry v. Berry, 647 S.W.2d 945,
946-47 (Tex. 1983). This formula is known as the Berry formula. Under the Berry formula, the
extent of the community’s interest is determined by dividing the number of months married under
the plan by the number of months employed under the plan at the time of divorce and the value of
the interest is determined as of the date of the divorce rather than as of the date of retirement.
Berry, 647 S.W.2d 945, 946-47. The Berry formula is the formula employed in the divorce
decree. When applied to Eddie’s service record, the formula yields the following:
150 (months married under the plan)
50% ×
150 (months employed under the plan at divorce)
× gross retirement benefits receivable by Captain at divorce
or
50% × gross retirement benefits receivable by Captain at divorce
Diana agrees the decree employs the Berry formula. Eddie does not. He argues “[t]he
absence of the ‘150’ in the denominator to match the one in the numerator tracks the legal genre in
1989 and follows the Taggart formula, but with a limitation—‘if Respondent/Husband were
6
eligible for retirement at the time of the divorce, at his present rank of Captain’—to comply with
the dictate of Berry.” In other words, Eddie posits that the extent of Diana’s community interest
is governed by the fraction formula established in Taggart v. Taggart, 552 S.W.2d 422 (Tex.
1977), whereas the value of her interest is governed by the Berry formula. Under the Taggart
formula, the extent of the non-member spouse’s community interest in retirement benefits is
calculated by dividing the number of months married under the plan by the total number of months
employed at retirement. Thus, when applied to his service record, Eddie’s purported hybrid
Taggart-Berry formula yields the following:
150 (months married under the plan)
50% ×
372 (months employed under the plan at retirement)
× gross retirement benefits receivable by Captain at divorce
or
20.16129032258065% × gross retirement benefits receivable by Captain at divorce
Eddie’s argument is unavailing for two reasons. First, and more importantly, the Berry
court, though expressly declining to overrule Taggart, significantly altered the Taggart formula.
See Shanks v. Treadway, 110 S.W.3d 444, 446 n.3 (Tex. 2003)(recognizing that Berry altered the
apportionment and valuation portions of the Taggart formula); Wilson v. Uzzell, 953 S.W.2d 384,
390 (Tex.App--El Paso 1997, no pet.)(same). Second, Eddie cites no authority on point, and we
have found none, to support the proposition that the decree uses a hybrid Taggart-Berry formula to
divide his military retired pay. Further, the portions of the legal commentaries Eddie cites in
support of this proposition do not aid him. See David R. McClure & Larry H. Schwartz, Federal
Retirement Benefits, STATE BAR OF TEXAS, ADVANCED FAMILY LAW COURSE, in
Volume 2, Chapter V, pgs. 36-40 (1989)(discussing whether federal law limits the award of
7
retirement benefits to disposable pay rather than gross pay in light of Grier and Mansell v.
Mansell, 490 U.S. 581, 584, 109 S. Ct. 2023, 2026, 104 L. Ed. 2d 675 (1989)); John Compere, Texas
Family Law Overview and Update, State Bar of Texas, 8th Annual General Practice Institute, Tab
F, pgs. 11-12 (May 1985)(discussing division of retirement benefits under Texas law, particularly
under the Taggart and Berry formulas).
Eddie also contends “‘372’ can be the only logical denominator [because] if the
denominator were ‘150,’ as Diana argues, that part of the hypothetical award would be superfluous
since the number would then be a known commodity.” In hindsight, the trial court should have
fixed the denominator at 150. But that the trial court failed to do so does not mean the decree did
not employ the Berry formula. To accept Eddie’s proposed formula is to run afoul of the principle
espoused in Berry that the community’s interest in a retirement plan must correspond to the
percentage of the plan accrued during marriage. Eddie’s formula would impermissible dilute
Diana’s community interest accrued during the parties’ marriage.
In sum, the decree is governed by the Berry formula, not the Taggart formula or some
hybrid of it.
Hypothetical Gross Retired Pay of Air Force Captain at Time of Divorce
When the Berry formula is applied to apportion military retirement benefits upon divorce,
“the valuation of the community’s interest in such benefits is to be based on the retirement pay
which corresponds to the rank actually held by the service spouse on the date of the divorce.”
Grier v. Grier, 731 S.W.2d 931, 932 (Tex. 1987)3. Here, it is undisputed that Eddie was a Captain
3
This Court recongnized that Grier was overruled, in part, by Mansell. See Chandler v. Chandler, 991 S.W.2d 367,
398 (Tex.App.--El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054, 120 S. Ct. 1557, 146 L. Ed. 2d 462
(2000)(concluding Mansell explicitly rejected the Texas Supreme Court’s interpretation of the USFSPA in Grier that
the Act does not limit a trial court from treating total retired pay as community property). Grier, however, has not
8
with 150 months of creditable service when the parties divorced. It is also undisputed that the
Uniformed Services Former Spouses Protection Act (USFSPA)4 was in effect in 1989, and the
decree’s language indicates Eddie’s gross retired pay should be divided in accordance with
USFSPA:
It is the intention of this Decree to comply in all respects with the
Uniformed Services Former Spouses’ Protection Act, 10 USC, Section 1401, et
seq. which would enable the wife to receive directly from the United States Air
Force that portion of the Respondent/Husband’s ‘Gross Retirement Income’
awarded to Petitioner/Wife by this Decree.
Because Eddie was not retired when he and Diana divorced, her interest in his gross retired pay is
based on his hypothetical gross retired pay, which is calculated as if he had retired at the time of
their divorce. See Guidance on Dividing Military Retired Pay, Garnishment Operations, Defense
Finance and Accounting Service 14, Revised Jan. 29 2012 (available at
http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html)(“The hypothetical retired pay
amount is a fictional computation, in that the member often does not have the required 20 years of
creditable service necessary to be eligible to receive retired pay on the date his or her retired pay is
divided. Hence, we are computing a retired pay amount as if the member would have been
been expressly overruled and remains good law for the proposition that, for purposes of apportioning military
retirement benefits upon divorce under the Berry formula, the service member’s retired pay should be calculated as of
the date of divorce, rather than the date of retirement. See Hicks v. Hicks, 348 S.W.3d 281, 287 (Tex.App.--Houston
[14th Dist.] 2011, no pet.)(citing Grier for this proposition); Caracciolo v. Caracciolo, 251 S.W.3d 568, 572
(Tex.App.--San Antonio 2007, no pet.)(same).
4
USFSPA grants the States the authority to treat all disposable retired pay as marital property. See 10 U.S.C.A.
§ 1408(c)(1)(West 2010). The Act was adopted by Congress in 1982 in response to the Supreme Court’s decision in
McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), holding that State courts had no
jurisdiction under any circumstances to treat non-disability retired pay of a military member as marital property upon
divorce. Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989); see Peter Mallory, Military
Retired Pay and Divorce: Congress Retires McCarty v. McCarty--Is That Enough?, 40 WASH. & LEE L. REV. 271
(1983). By its terms, USFSPA took effect on February 1, 1983, but it provided that courts had the ability to effectuate
divisions of military retired or retainer pay as of June 25, 1981. Section 1006 of Pub.L. 97-252, as amended Pub.L.
98-94, Title IX, § 941(c)(4), Sept. 24, 1983, 97 Stat. 614;  Pub.L. 98-525, Title VI, § 645(b), Oct. 19, 1984, 98 Stat.
2492.
9
eligible to retire on that date.”).
Under USFSPA, the hypothetical retired gross pay award corresponding to the service
member’s rank on the date of divorce is computed by multiplying the member’s retired pay base
by the retired pay multiplier. 10 U.S.C.A. § 3991(a)(1)(A)-(B)(West 2010). For service
members who entered the military before September 8, 1980, the retired pay base is the member’s
final basic pay. 10 U.S.C.A. § 1406(c). Since Eddie entered the Air Force before that date, this
method is used. The parties agree Eddie’s retired pay base is $2,808.60—the final basic pay of a
Captain with 150 months of longevity on September 14, 1989. The retired pay multiplier is the
product of 2.5 percent of the member’s years of creditable service. 10 U.S.C.A.
§ 1409(b)(1)(A)-(B). Eddie’s 150 months of creditable service is equivalent to 12.5 years. 5
Based on these figures, Eddie’s retired pay multiplier is .3125 (12.5 years multiplied by 2.5
percent).
Applying the formula, Eddie’s hypothetical retired gross pay is $877.00 per month
(Eddie’s retired pay multiplier of .3125 (12.5 years multiplied by 2.5%) multiplied by his retired
pay base ($2,808.60)). 6 In other words, if Eddie had retired when the parties divorced, his
monthly retired gross pay would have been $877.00. As discussed above, Diana’s community
interest in Eddie’s military retirement benefits is 50 percent. This interest should be applied to
Eddie’s hypothetical retired gross pay of $877.00. Accordingly, Diana’s award is $437.50 per
month.
5
To determine a member’s years of service, each full month of service that is in addition to the number of full years
creditable to the member shall be credited as 1/12 of a year; and any remaining fractional part of a month shall be
disregarded. 10 U.S.C.A. § 1405.
6
Because Eddie’s hypothetical gross retirement pay is not a multiple of $1, it is rounded down to the next lower
multiple of $1. 10 U.S.C.A. § 1412 (West 2014).
10
Diana asserts Eddie’s hypothetical gross retired pay is his final basic pay of $2,808.60.
Thus, she argues applying the Berry formula entitles her to $1,404.03 (50 percent of $2,808.60)
per month. But Diana is incorrect. Eddie’s hypothetical gross retired pay must be calculated in
accordance with USFSPA. Accordingly, Diana is not entitled to half of $2,808.60.
Eddie agrees his hypothetical gross retired pay must be calculated in accordance with
USFSPA. He claims, however, his retired pay multiplier must be further reduced from 31.25
percent to 23.75 percent as required by federal law to account “for the 90 months that [he] was
short of the minimum 240 needed for retirement eligibility.” The federal law to which Eddie cites
is the Temporary Early Retirement Authority (TERA), enacted in 1992 and designed to “provide
the Secretary of Defense a temporary additional force management tool with which to effect the
drawdown of military forces through 1995.”7 National Defense Authorization Act for Fiscal
Year 1993, Pub.L. No. 102-484, div. D, tit. XLIV, § 4403(a), 106 Stat. 2315, 2702 (1992)
(codified at 10 U.S.C.A. § 1293 note). TERA, among other things, authorized the Secretaries of
the military branches to allow service members with more than fifteen but less than twenty years of
total active duty service to apply for early retirement. See id. at § 4403(b). In pertinent part, the
statute provided that:
(e) Computation of Retired Pay. Retired or retainer pay of a member retired (or
transferred to the Fleet Reserve or Fleet Marine Corps Reserve) under a provision
of title 10, United States Code, by reason of eligibility pursuant to subsection (b)
shall be reduced by 1/12th of 1 percent for each full month by which the number of
months of active service of the member are less than 240 as of the date of the
member’s retirement (or transfer to the Fleet Reserve or Fleet Marine Corps
Reserve).
7
The “active force drawdown period” was in effect from the Act’s enactment until December 31, 2001. See
Departments of Defense and Energy Appropriations, Pub.L. No. 106-398 § 571(a)(2)(codified at note 10 U.S.C.A.
§ 1293).
11
Id. at § 4403(e). But TERA is inapplicable for two reasons. First, it was not in effect on
September 14, 1989, the date of Eddie’s hypothetical retirement. Second, even if TERA were in
effect, Eddie would have been ineligible for early retirement because he had fewer than fifteen
years of service.
Disposable Retired Pay
Our discussion, however, does not end here. In order for an award to be enforceable under
USFSPA, the award must be expressed either as a fixed dollar amount or as a percentage of
disposable retired pay under 10 U.S.C.A. § 1408(a)(2)(C).8 A percentage award is preferable
because it protects the non-member spouse’s interest in cost of living allowances. See Caracciolo
v. Caracciolo, 251 S.W.3d 568, 573 n.3 (Tex.App.--San Antonio 2007, no pet.). Here, the
divorce decree makes clear that Diana’s one-half interest “includes any future costs of living or
other benefits which are not derived as a result of [Eddie’s] future services . . . .”9 Obeying the
decree’s mandate, we will convert Diana’s award to a percentage of Eddie’s actual disposable
8
“Disposable retired pay” is defined as the total monthly retired pay to which a member is entitled less certain
amounts as applicable. 10 U.S.C.A. § 1408(a)(4).
9
A divorce court may award the non-member spouse her share of any post-divorce cost-of-living allowance in the
retirement benefit. Limbaugh v. Limbaugh, 71 S.W.3d 1, 16 n.12 (Tex.App.--Waco 2002, no pet.). We note,
however, that Diana did not seek an award of post-divorce cost-of-living allowances in her petition for clarification
and enforcement, and there is no indication in the record that the issue was tried by consent or that Diana introduced
any evidence to support the award of post-divorce cost-of-living allowances. It is well-settled that a trial court is
without power to grant relief to a party in the absence of pleadings to support that relief. Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 813 (Tex. 1983).
Notwithstanding the above, Diana is not without recourse. According to DFAS:
[U]nless the court order directs otherwise, we will apply retired pay cost-of-living-allowances
(COLAs) to the hypothetical retired pay amount up to the member’s actual retirement date to find a
‘present value’ of the hypothetical retired pay as of the member’s actual retirement date. The
addition of the COLAs does not result in the former spouse benefiting from the member’s additional
service time or promotions after the hypothetical retirement date. It simply provides the former
spouse with the COLA amount he or she would have received had the member actually become
eligible to receive retired pay on the hypothetical retirement date.
Guidance on Dividing Military Retired Pay, Garnishment Operations, Defense Finance and Accounting Service 14,
Revised Jan. 29 2012 (available at http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html).
12
retired pay.
Converting Diana’s award requires us to multiply the percentage awarded to her by a
fraction, the numerator of which is Eddie’s hypothetical gross retired pay and the denominator of
which is Eddie’s actual gross retired pay. See Guidance on Dividing Military Retired Pay,
Garnishment Operations, Defense Finance and Accounting Service 15, Revised Jan. 29 2012
(available at http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html). Eddie’s
hypothetical retired gross pay is $877.00, and his retired gross pay at retirement was $7,719.00.
Applying the formula to these numbers yields:
$877.00
[50%] × = [5.68078766679622%]
$7,719.00
Thus, Diana is entitled to 5.68078766679622 percent of Eddie’s disposable retired pay.
In purporting to clarify that Diana is entitled to 4.096 percent of Eddie’s “Disposable
Military Retired Pay” under the divorce decree, the trial court failed to give effect to the decree’s
unambiguous language and, in doing so, radically altered Diana’s award. In essence, the trial
court’s clarification order impermissible modifies the divorce decree. We therefore conclude the
trial court abused its discretion.
In light of the foregoing, Diana’s sole issue is sustained, in part, and overruled, in part, and
Eddie’s second cross-issue is sustained, in part, and overruled, in part.
ARREARAGE JUDGMENT
In his third cross-issue, Eddie contends the trial court erred in awarding Diana $9,877.54 in
arrearages.10 We agree. But he also claims “[a]pplication of [his] proferred calculations, and
10
It is clear that the trial court enforced the divorce decree by awarding Diana a money judgment pursuant to Section
9.010(b) of the Family Code. This section provides that: “If a party did not receive payments of money as awarded
13
proper credits for monies already paid to Diana, results in an arrearage award of zero dollars.”
We disagree.
Eddie retired on or about March 1, 2009. The trial court held the de novo hearing on
March 16, 2011 but did not render judgment until July 13, 2012. By our calculations, arrearages
accrued from March 2009 to July 2012. Based on the correct valuation of Diana’s monthly
award, the total amount of arrearages up to the date of judgment is $17,937.50 ($437.50 multiplied
by 41 months). Eddie, however, should receive credit for $2,958.46 in payments made to and
accepted by Diana.11 Accordingly, Diana is entitled to $14,979.04 in arrearages, plus pre- and
post-judgment interest.12
Eddie’s third cross-issue is sustained, in part, and overruled, in part.
ATTORNEY’S FEES
In his fourth and final cross-issue, Eddie maintains the trial court should have awarded him
attorney’s fees and costs pursuant to Section 9.014 of the Family Code because he was the
prevailing party.13 According to Eddie, he was the prevailing party because the “judgment, while
in the decree of divorce or annulment, the court may render judgment against a defaulting party for the amount of
unpaid payments to which the party is entitled.” TEX.FAM.CODE ANN. § 9.010(b)(West 2006).
11
Eddie claims he had paid Diana $3,227.42 by the time the trial court presided over the de novo hearing. The record
indicates Diana accepted and deposited checks worth $2,958.46. The record also indicates Eddie sent Diana two
checks dated January 31, 2011 and February 28, 2011, each in the amount of $134.48. The record, however, does not
indicate Diana accepted and deposited these checks.
12
Because Diana sought pre- and post-judgment interest as an element of damages, she is entitled to recover pre- and
post-judgment interest. DeGroot v. DeGroot, 369 S.W.3d 918, 926-27 (Tex.App.--Dallas 2012, no pet.).
13
Section 9.014 provides that:
The court may award reasonable attorney’s fees in a proceeding under this subchapter. The court
may order the attorney’s fees to be paid directly to the attorney, who may enforce the order for fees
in the attorney’s own name by any means available for the enforcement of a judgment for debt.
TEX.FAM.CODE ANN. § 9.014 (West Supp. 2014). As one appeals court has observed, Section 9.014 does not require
that the trial court find a party as the prevailing party to award attorney’s fees under that statute. In re S.E.C., 2009
14
inaccurate and incomprehensible, was generally in favor of [him].” We disagree.
A prevailing party is one who is vindicated by the judgment rendered on the main issue or
issues even if not to the extent of his or her original contentions. See In re S.E.C., No.
05-08-00781-CR, 2009 WL 3353624, at *3 (Tex.App.--Dallas Oct. 20, 2009, no pet.)(mem. op.);
Hawkins v. Ehler, 100 S.W.3d 534, 544 (Tex.App.--Fort Worth 2003, no pet.). In this case, there
were two main issues litigated at trial. The first issue was the percentage or amount of Eddie’s
military retired pay to which Diana is entitled. Although both parties advanced wildly opposing
figures, the trial court accepted neither in rendering its judgment awarding Diana 4.096 percent of
Eddie’s “Disposable Military Retired Pay.” Our conclusion that Diana is entitled to
5.68078766679622 percent rather than 1.7421 percent, as urged by Eddie, vindicates the judgment
rendered in Diana’s favor. Hence, Diana prevailed on this issue. The second issue was the
amount, if any, of arrearages. The trial court found in favor of Diana on that issue, awarding her
$9,877.54. On appeal, we have concluded that Diana is entitled to an even larger award.
Because the trial court’s judgment vindicates Diana on this issue, she prevailed on it.
In sum, Diana is the prevailing party on both issues. Because Eddie was—and is—not the
prevailing party, the trial court did not abuse its discretion in failing to award him attorney’s fees
under Section 9.014.14 See In re S.E.C., 2009 WL 3353624, at *3; Hawkins, 100 S.W.3d at 545.
Eddie’s fourth cross-issue is overruled.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WL 3353624, at *1. “Rather, by its express language, the statute’s only requirements are that the award be
‘reasonable’ and in connection with a proceeding to enforce a decree of divorce or annulment providing for a division
of property.” Id.
14
We review a trial court’s decision to grant or deny attorney’s fees under Section 9.014 for an abuse of discretion.
In re S.E.C., 2009 WL 3353624, at *1; de la Garza v. de la Garza, 185 S.W.3d 924, 930-31 (Tex.App.--Dallas 2006,
no pet.).
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In his first-cross issue, Eddie argues the trial court committed reversible error by failing to
make the requested findings of fact and conclusions of law. As a general rule, a trial court has a
mandatory duty to issue findings of fact and conclusions of law when properly requested, and the
failure to issue them is harmful if an appellant is prevented from properly presenting a case on
appeal. See TEX.R.CIV.P. 296, 297; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). Eddie
claims he was harmed because he is “left to guess as to which [of the multiple] theories and
defenses the trial court relied upon in rendering its decision.” But Eddie does not want us to abate
the appeal and order the trial court to issue the missing findings and conclusions. Instead, he
maintains “justice will be best served by this Court determining the correct judgment the trial court
should have entered based on evidence introduced at trial and acting accordingly.” This is
precisely what we have done.
Eddie’s first-cross issue is overruled.
CONCLUSION
We reverse the portions of the trial court’s clarification order awarding Diana 4.096
percent of Eddie’s disposable retired pay and $9,877.54 in arrearages. We render judgment
awarding Diana 5.68078766679622 percent of Eddie’s disposable retired pay and $14,979.04 in
arrearages. We remand to the trial court to determine and award pre- and post-judgment interest.
The trial court’s judgment is otherwise affirmed.
November 14, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J. Not Participating
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