Timothy Parrish v. Trisha Dunahoo ( 2015 )

ACCEPTED
07150029CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
2/17/2015 5:30:49 PM
Vivian Long, Clerk
CAUSE NO. 07-15-00029-CV
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
In the Court of Appeals 2/17/2015 5:30:49 PM
,,
I For the Seventh Court of Appeals District VIVIAN LONG
I CLERK
Amarillo, Texas
1
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J TIMOTHY PARRISH
APPELLANT
vs.
TRISHA DUNAHOO
APPELLEE
ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL
COUNTY,
APPELLANT TIMOTHY PARRISH'S BRIEF
CORBIN & ASSOCIATES, P.C., Attorneys
ASHLEY CLAPPER
SBN: 24076317
DANIEL A. CORBIN
SBN: 04814300
603 North 81h Street
Killeen, Texas 76541
Tel: (254) 526-4523
Fax: (254) 526-6711
legal@corbinlegalteam.com
Counsel for Timothy Parrish
TABLE OF CONTENTS
IDENTITY OF THE PARTIES ..................................... 2
INDEX OF AUTHORITIES ...................................... 3
STANDARD OF REVIEW....................................... 4
STATEMENT OF THE CASE ..................................... 5
STATEMENT OF THE ISSUES PRESENTED ........................ 6
STATEMENT OF THE FACTS ................................... 7-10
SUMMARY OF THE ARGUMENT ............................... 11
ARGUMENT. ............................................... 12-22
PRAYER FOR RELIEF .......................................... 23
CERTIFICATE OF WORD COUNT ................................ 24
CERTIFICATE OF SERVICE..................................... 25
APPENDIX .................................................... 26
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1
IDENTITY OF THE PARTIES AND ATTORNEYS
ATTORNEYS
ASHLEY CLAPPER
DANIEL CORBIN
Corbin & Associates, P.C.
603 N. 8th Street
Killeen, Texas 76541
Tel: (254) 526-4523
Fax: (254) 526-6711
Attorneys for Timothy Parrish
BRETT H. PRITCHARD
The Law Office of Brett H. Pritchard,
1201 South W.S. Young Drive
Killeen, Texas 76543
Tel: (254) 501-4040
Fax: (254) 953-1360
Attorney for Trisha Dunahoo
PARTIES
Timothy Parrish, Appellant
Trisha Dunahoo, Formerly Trisha Parrish, Appellee
(hereinafter Trisha Parrish)
2
INDEX OF AUTHORITIES
TEXAS CASES:
Cameron v. Cameron, 608 S.W.2d 748 (Tex. App.-Corpus Christi 1980) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Cookv. Cameron, 733 S.W.2d 137 (Tex. 1987) ..................... 19
Hicks v. Hicks, 348 S.W.3d 281 (Tex. App.-Houston [14th dist] 2011) ... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13, 17,18
Joynerv. Joyner, 352 S.W.3d 746 (Tex. App.-SanAntonio 2011) ...... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 16
Shanks v. Shanks, 110 S.W.3d 444 (Tex. 2003) .............. 12, 13, 15
Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th
Cir. Tex. Dec. 19, 2014) ........................................ 12
STATUTES:
Tex. Fam. Code§ 9.006 (2014) .................................. 12
Tex. Fam. Code§ 9.007 (2014) ................................ 12, 13
Tex. Fam. Code§ 9.008 (2014) .................................. 12
3
STANDARD OF REVIEW
The standard of review for determining whether the district court had
subject matter jurisdiction is de novo. Joyner v. Joyner, 352 S.W.3d 746, 749
(Tex. App.-San Antonio 2011). "The issue of jurisdiction in this case turns on
whether the trial court modified or clarified the DRO." Id. at 749.
4
STATEMENT OF THE CASE
Timothy Parrish filed a MotiQn for Clarification of Military Retirement in
the 146th Judicial District Court seeking to clarify the award of military retirement
awarded to Trisha Parrish at the conclusion of his military service. C.R. 153.
Trisha Parrish filed a Motion for Enforcement of Military Retirement.
Subsequently, Trisha Parrish filed a Supplemental Motion to Enforce Military
Retirement. C.R. 185. The district court heard the Motion for Clarification of
Military Retirement on May 6, 2014. C.R. 198. The district court took the matter
under advisement and issued a Memorandum Ruling on May 22, 2014. C.R. 198.
The Court ordered that the End ofAward provision contained in the 2008
Domestic Relations Order should be removed and a new Domestic Relations
Order should be entered. (Exhibit C)'. The Court signed a new Domestic
Relations Order on November 12, 2014. (Exhibit D?
'Memorandum Ruling
2
2014 Domestic Relations Order
5
STATEMENT OF THE ISSUES PRESENTED
1. Did the District Court have subject matter jurisdiction to remove the End
ofAward provision thereby modifYing the award of property as
originally set out in the Final Decree of Divorce and the 2008 Domestic
Relations Order?
2. Was the removal of the End ofAward provision from the 2008 Domestic
Relations Order barred by res judicata and therefore an error for the
District Court remove the provision?
6
STATEMENT OF FACTS
Timothy Parrish and Trisha Parrish were married on October 3, 1994. C.R.
5. Subsequently the couple divorced on April30, 2008 at which time the Judge
signed a Final Decree of Divorce and a Domestic Relations Order. (Trial Tr. Vol.
1, p. 5, May 6, 2014). The divorce decree and DRO were signed at the same time.
(Trial Tr. Vol. 1, p. 9, May 6, 2014). The Final Decree of Divorce states in
relevant part "The Court finds that the parties have entered into a written
agreement as contained in this decree by virtue of having approved this decree as
to both form and substance." (Exhibit Al To the extent permitted by law, the
parties stipulate that the agreement is enforceable as a contract." (Trial Tr. Vol. 1,
p. 13, May 6, 2014). The Domestic Relations Order is incorporated into the final
decree of divorce specifically on pages 15 and 16. (Exhibit At The parties
signed the Final Decree of Divorce approving it as to both form and substance.
(Exhibit A) 5 The Domestic Relations Order contained a provision that ended the
award of military retirement to Trisha Parrish after she received the retirement for
3
Fina1 Decree of Divorce, page 1
4
Final Decree of Divorce, page 15-16
5
Final Decree of Divorce, page 20
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thirteen years and four months (herein after known as the End ofAward
provision). (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). Trisha Parrish signed the
Domestic Relations Order, approving it as to both form and substance, and had it
notarized prior to the entry of the Domestic Relations Order. (Trial Tr. Vol. 1, p.
6, May 6, 2014 and Exhibit B 6). Timothy Parrish continued his military service
and retired in December 2011. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The
Domestic Relations Order was submitted to Department Finance Accounting
Services (herein after "DFAS"). (Trial Tr. Vol. 1, p. 5, May 6, 2014). Timothy
Parrish subsequently filed a Motion for Clarification of Military Retirement
Division on January 4, 2012 to clarify the amount of the award of the military
~j
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J retirement Trisha Parrish was going to receive. (Trial Tr. Vol. 1, p. 6, May 6,
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2014). Trisha Parrish filed a Petition for Enforcement of Retirement on November
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25, 2013 requesting the court to enforce the military retirement. C.R. 167.
Subsequently, Trisha Parrish filed a Supplemental Petition for Enforcement of
Retirement asking the court to remove the provision ending the award of military
retirement that she would receive from the Domestic Relations Order. (Trial Tr.
Vol. 1, p. 6, May 6, 2014 ). The court held a hearing on May 6, 2014 regarding the
clarification. C.R. 198. Timothy Parrish argued that the challenge to the End of
6
2008 Domestic Relations Order, page 5.
8
Award provision was barred by res judicata. (Trial Tr. Vol. 1, p. 6, May 6, 2014).
Trisha Parrish argued that the court was not barred by res judicata because the
provision was riot contained in the divorce decree but contained in the DRO.
(Trial Tr. Vol. 1, p 16, May 6, 20 14). She reasoned that "the divorce decree is the
substantive contract of the parties," and that the DRO is not substantive. (Trial Tr.
Vol. 1, p. 9, May 6, 2014). "The contract was the Final Decree of Divorce, and all
a Domestic Relations Order does is effectuates what the court has ordered." (Trial
Tr. Vol. 1, p. 11, May 6, 2014). She goes on to say that Domestic Relations
Orders are never incorporated by reference, and in this case are not incorporated
by reference." (Trial Tr. Vol. 1, p. 16, May 6, 2014 ). Trisha Parrish further argues
that the court has unlimited jurisdiction to amend a DRO. (Trial Tr. Vol. 1, p. 9,
May 6, 2014). She argues that the End ofAward provision divests her of her
separate property rights because she is entitled to the retirement until the death of
herself or the death of Parrish. (Trial Tr. Vol. 1, p. 10, May 6, 2014). Parrish's
rebuttal argument was that the 2008 DRO was incorporated into the Final Decree
of Divorce and was a contract between the parties. (Trial Tr. Vol. 1, p.13, May 6,
2014). He argued that Trisha Parrish was trying to undo a substantive property
division that was a final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). He
points out that she had 30 days to file an appeal and she made no attempt to appeal
9
the final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Court took the
matter of clarification under advisement and subsequently issued a memorandum
ruling. (Trial Tr. Vol. 1, p. 21, May 6, 2014; Exhibit C7). The memorandum
ruling clarified the calculation for Trisha Parrish's portion of the military
retirement. (Exhibit C8). Additionally, the memorandum ruling removed the
provision ending the award of military retirement from the Domestic Relations
Order. (Exhibit C9). On April 30, 2008 the District Court signed the amended
Domestic Relations Order. (Exhibit D 10). Timothy Parrish filed a notice of appeal
on December 10, 2014 to challenge the district court's ruling and entry of the 2014
Domestic Relations Order. C.R. 220.
7
Memorandum of Ruling.
'Memorandum of Ruling
9
Memorandum of Ruling
10
2014 Domestic Relations Order
10
SUMMARY OF THE ARGUMENT
The district court did not have subject matter jurisdiction to remove the End
ofAward provision in the 2008 Domestic Relations Order. The district court has
the power to clarify any ambiguous terms of the Domestic Relations Order but
does not have jurisdiction to modify or amend the terms of the Domestic Relations
Order if the terms are not ambiguous. The End ofAward provision was not
ambiguous and therefore was a modification of a substantive property division that
was beyond the jurisdiction of the district court.
Additionally, the terms of the 2008 Domestic Relations Order constitute a
final judgment. The removal of the End ofAward provision is a collateral attack
on a final judgment and is barred by res judicata.
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ARGUMENT
I. THE DISTRICT COURT DID NOT HAVE SUBJECT MATTER
JURISDICTION TO REMOVE THE PROVISION ENDING THE
AWARD OF MILITARY RETIREMENT BECAUSE IT
MODIFIED AN UNAMBIGUOUS SUBSTANTIVE PROPERTY
DIVISION FROM THE DIVORCE DECREE AND THE 2008
DOMESTIC RELATIONS ORDER.
The Texas Family Code gives the trial court that rendered a divorce decree
jurisdiction to enforce and clarify the property division contained in that decree.
Tex. Fam. Code §9.006-9.008. "An order. .. that amends, modifies, alters, or
changes the actual, substantive division of property made or approved in the final
decree of divorce .. .is beyond the power of the divorce court and is
unenforceable." Joyner v. Joyner, 352 S.W.3d 746, 750 (Tex. App.-San
Antonio 2011). Subject matter jurisdiction cannot be waived and may be raised
for the first time on appeal. Statin v. Deutsche Bank Nat 'l Trust Co., 2014 U.S.
App. LEXIS 24064 (5th Cir, Tex. Dec. 19, 2014). "Judgments should be construed
as a whole to harmonize and give effect to the entire decree." Shanks v.
Treadway, 110 S.W.3d 444, 447. "If the decree, when read as a whole, is
unambiguous as to the property's disposition, the court must effectuate the order
in light of the literal language used." !d. "When the signing of the DRO occurs
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contemporaneously with the signing of the divorce decree, courts have construed
the DRO as part of the divorce decree." Hicks v. Hicks 348 S.W.3d 281, 284
(Tex. App-Houston [14th dist.] 2011). The trial court is without power to modify
an unambiguous property division contained in a divorce decree. Tex. Fam. Code
9.007(b), Joyner v. Joyner, 352 S.W.3d 746, 750 (Tex. App.-San Antonio
20 II). "An order. .. that amends, modifies, alters, or changes the actual,
substantive division of property made or approved in the final decree of
divorce .. .is beyond the power of the divorce court and is unenforceable." Id.
The Court in Shanks v. Shanks, 110 S.W.3d 444 (Tex. 2003) signed a
divorce decree in 1981 that awarded the wife a 25% interest in the husband's
retirement benefits. There was no Domestic Relations Order entered at that time.
Id at 445. In 1998, seventeen years later, the husband filed a Motion to Sign
Qualified Domestic Relations Order. /d. His contention was that the wife's
retirement benefits should be calculated as 25% as of the date of divorce. Id. The
Wife asserted that the QDRO calculation was barred by res judicata and should be
interpreted as a collateral attack on the property division set out in the divorce
decree. Id. The trial court valued the wife's retirement benefits as of the date of
divorce. Id at 446. The Court of Appeals reversed the trial court stating the "trial
court's QDRO impermissibly altered the substantive division of property made in
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the original divorce decree." !d. The Supreme Court of Texas affirmed the court
of appeals. !d. The Supreme Court of Texas reasoned that the decree as written
was unambiguous and was therefore not subject to clarification. Id at 447. They
further assert that "the fact that the district court erroneously applied the law when
it entered the divorce decree does not alter the decree's plain language." !d.
In Joyner v. Joyner, 352 S.W.3d 746 (Tex. App.-San Antonio 2011) the
husband asserts that the trial court lacked jurisdiction to enter a Domestic
Relations Order that impermissibly modified the substantive provisions of his
military retirement. !d. The parties divorced in 2001 at which time the court
entered a divorce decree that awarded the wife a portion of the husbands military
retirement "and stated that her portion would be 'more particularly defmed in a
Domestic Relations Order."' Id at 74 7-7 48. The Court entered a Domestic
Relations Order at the same time that awarded the wife 50% of the community
share of the husband's retirement in a hypothetical calculation. !d. in 2005, after
the husband retired, DF AS began paying the wife 50% of all accrued amounts of
the husband's retirement. !d. The husband filed to clarify the award of military
retirement. !d. The court entered an amended Domestic Relations Order that
changed the wife's retirement to 37 percent. !d. The husband appealed the
judgment stating that it was an impermissible change of the substantive property
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division. Jd at 749. The court found that the award to the wife was "not
ambiguous because it is expressed witb mathematical certainty," and was therefore
not within tbe subject matter jurisdiction oftbe court to change. Jd at 750.
Timothy Parrish presents an argument similar to Shanks, and contends tbat
the district court did not have subject matter jurisdiction to remove the End of
Award provision from the 2008 Domestic Relations Order because the provision
was not ambiguous. This issue is raised for tbe first time on appeal. In this case,
the trial court approved and signed a Final Decree of Divorce and Domestic
Relations Order in 2008 tbat contained the End OfAward provision. Much like
the specified percentage in Shanks was unambiguous this provision is not
ambiguous. Trisha Parrish never asserts tbat the End ofAward provision is
ambiguous and therefore subject to clarification. Instead, Trisha Parrish asserts
that the original provision was not permissible under the law at the time the decree
and the DRO were signed. However, the Supreme Court of Texas has struck down
this argument in Shanks. The district court only has subject matter jurisdiction to
clarifY an ambiguous term which is not the case here. The plain language of tbe
2008 Domestic Relations Order clearly stated that the award would end after she
received the retirement for 13 years and 4 months after it began or until the death
of one of the parties. The district court in this case wrongfully changed the award
15
that was set out in the original judgment in plain language which is beyond the
scope of the court's subject matter jurisdiction.
Additionally, the court in Joyner found that the court was without power to
amend the DRO when the percentage was fixed with a mathematical certainty.
Unlike the award in Joyner this case does not have a mathematical certainty.
However, the language in the End ofAward provision specifies a total number of
years and months that Trisha Parrish is to receive the award of military retirement.
The specific end date is unambiguous and is not open to interpretation and is
therefore, outside of the subject matter jurisdiction of the court to remove.
Furthermore, Trisha Parrish argues that the Domestic Relations Order is
simply an effectuating document and that the actual judgment is the Final Decree
of Divorce that is subject to clarification. This contention is flawed in two
different respects. First, the plain language ofthe Final Decree of Divorce states
that the terms are "more particularly specified in the domestic relations order
signed coincident with this decree and incorporated verbatim in it by reference."
(Exhibit A) 11 • The justification she gives to the court is basically that even though
the Final Decree of Divorce contains that language it does not really mean what
11
Final Decree of Divorce, page 15-16
16
the plain language states. This argument is simply without merit. The terms of the
Final Decree of Divorce are "enforceable as a contract," including the provision
that incorporates the 2008 Domestic Relations Order into the Final Decree of
Divorce. Furthermore, by signing the Final Decree of Divorce Trisha Parrish
agreed to the terms of the 2008 Domestic Relations Order that was incorporated
into the decree, specifically the End ofAward provision.
In addition to the plain language of the Final Decree of Divorce that
incorporates the terms of the 2008 DRO, the courts have addressed this issue in
Hicks v. Hicks, 348 S.W.3d 281 (Tex. App. -Houston [141h dist.] 2011).
The parties in Hicks entered into an agreed Final Decree of Divorce which
was signed by the court at the same time the Domestic Relations Order was
signed. ld at 282. The divorce decree expressly deleted any reference to the DRO
contained in the decree. ld at 284. The DRO contained a provision "designating
Wife as the former spouse beneficiary of the [husband's] Survivor Benefits Plan
when no such designation was made in the final decree of divorce." Id at 283.
The husband appealed the judgment stating that the court erred in signing the
DRO with the additional provision as it was not contained in the divorce decree.
ld. The Court found that the general rule is "when the signing of the DRO occurs
17
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contemporaneously with the signing of the divorce decree, courts have construed
the DRO as part of the divorce decree." !d. at 284. The court reasoned that in this
spec'ific case, because the "references to the DRO are expressly deleted from the
agreed decree", that the court was to view the DRO as a separate order and not to
be read as part of the agreed divorce decree. Id.
Trisha Parrish urges the court to view the Final Decree of Divorce as the
final judgment and the 2008 DRO as an effectuating document, whose terms are
not to be read as part of the substantive final judgment much like the Appellant in
Hicks. However, unlike Hicks, the Final Decree of Divorce in this case
specifically points to the 2008 Domestic Relations Order as an extension of the
final decree to be "incorporated verbatim in [the final decree] by reference."
(Exhibit A). In applying Hicks to this case the court must view the 2008 Domestic
Relations Order to be read in conjunction with the divorce decree and the terms
contained in the 2008 DRO should be treated as those contained in the divorce
decree.
When the Court reads the Final Decree of Divorce and the 2008 Domestic
Relations Order as incorporated into the decree by virtue of the documents plain
language, and under the court's decision in Hicks v. Hicks, 348 S.W.3d 281 (Tex.
18
App.-Houston[14th dist.] 2011), as a whole, the court will find that the End of
Award provision is unambiguous and therefore beyond the subject matter
jurisdiction of the court to clarifY, As such, the Seventh Court of Appeals should
reverse the ruling of the 146th Judicial District Court.
II. THE DISTRICT COURT ERRED IN REMOVING THE END OF
A WARD PROVISION FROM THE DOMESTIC RELATIONS
ORDER BECAUSE A COLLATERAL ATTACK WAS BARRED
BY RES JUDICATA.
"The doctrine of Res Judicata bars relitigation of issues decided in a final
judgment." Cookv. Cameron, 733 S.W.2d 137, 140 (Tex. 1987). Errors other
than lack of jurisdiction render the judgment merely voidable and must be attacked
within the prescribed time limits. Id. "A judgment is void only when it is apparent
that the court rendering the judgment 'had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no
capacity to act as a court."' !d. "Errors other than lack of jurisdiction render a
judgment merely voidable and must be attacked within prescribed time limits." !d.
In Cookv. Cameron733 S.W.2d 137 (Tex. 1987), the court signed a final
decree in March 1979 that awarded thewife 35% of the husbands gross retired
pay. Id at 138. The court also added a contingent award that would make the
19
award to the wife an amount equal to 45% ifthere were further litigation in the
case, other than a direct appeal. Id at 139. There was a direct appeal taken
(Cameron v. Cameron, 608 S.W.2d 748 (Tex. App.-Corpus Christi 1980) and
the court affirmed the award of 35% of the gross retirement to the wife but
clarified dates that were not to be included in the calculation. !d. After the
husband retired he refused to pay the wife 35% of the gross retirement because
DFAS was paying 35% of the net retirement. !d. The wife subsequently filed an
enforcement. !d. The trial court refused to enforce the decree as did the court of
appeals stating that the amount of the award affirmed in the Texas Supreme Court
opinion in Cameron v. Cameron, 608 S.W.2d 748 (Tex. Civ. App.--Corpus
Christie 1980) was ambiguous and subject to clarification. !d. The Supreme
Court of Texas found that the refusal of the trial court and the appellate court to
enforce the ruling in Cameron was a collateral attack on a final judgment. Id at
140. The Supreme Court of Texas reasoned that the doctrine of res judicata
applied to the final judgment and the collateral attack was without merit. !d. The
husband further argued that the judgment was void because the contingent award
divested him of his separate property rights and was therefore subject to collateral
attack. !d. The Court found that there had not been a direct appeal of the
contingent award during the prescribed time limits and therefore that provision
20
was not subject to collateral attack. I d. The Court reasoned that "even though the
contingent award was improper, the divorce decree, including the contingent
penalty, is not subject to Cameron's collateral attack. Res judicata also applies
here to prevent relitigation of issues which should have been litigated in an earlier
appeal." Id.
This case is almost identical to Cook. Timothy Parrish argued that Trisha
Parrish is attempting to change substantive property division by removing the End
ofAward provision contained in the 2008 Domestic Relations Order. He reasons
that this provision in the final judgment cannot be collaterally attacked because it
is barred by Res Judicata. The Court signed the Final Decree of Divorce and
Domestic Relations Order on April 30, 2008 at which time the judgment became
final. Trisha Parrish had 30 days to file an appeal of that judgment if she
disagreed with the judgment, which she failed to do. Additionally, Trisha Parrish
makes the exact same argument contained in Cook, that the trial court improperly
divested her of her separate property rights. However, the Texas Supreme Court
struck down that exact argument because it is one that should have been appealed
directly after the judgment. The law does not allow Trisha Parrish to return to
court six years later to attempt to change a property division that she is no longer
happy with, that she agreed to in the original documents.
21
The Final Decree of Divorce and the Domestic Relations Order became a
final judgment of the court 30 days after they were signed in 2008. Trisha Parrish
did not appeal the substantive property division within the prescribed time limits.
Therefore, the Seventh Court of Appeals should reverse the 146th District Court's
ruling because the attack on the substantive property division was barred by res
judicata.
22
PRAYER FOR RELIEF
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WHEREFORE, PREMISES CONSIDERED, Appellant, TIMOTHY
·'
PARRJSH, respectfully prays this Court reverse the Trial Court's ruling.
Appellant respectfully prays for any such other and further reliefto which
Appellant may be entitled to at Jaw or in equity.
Respectfully submitted,
CORBIN & ASSOCIATES, PC ATTORNEYS
603 North gm Street
Killeen, Texas 76541
Tel: (254) 526-4523
Fax: (254) 526-6711
By:UUJCv)
ASHLEY CLAPPER
State Bar No. 24076317
DANIEL A. CORBIN
State BarNo. 048I4300
Attorneys for Appellant
: ..1'
t:
!-_;
23
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.4(i), I certify that a copy ofthis brief has a
word count of 4,193 words as counted by Wordperfect word count feature.
24
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, I certify that a copy of this brief has been
mailed via U.S. Mail, postage prepared to the following on d-/7- 6 .
BRETT H. PRITCHARD
The Law Office of Brett H. Pritchard,
1201 South W.S. Young Drive
Killeen, Texas 76543
Tel: (254) 501-4040
Fax: (254) 953-1360
Attorney for Trisha Ann Parrish
25
APPENDIX
EXHIBITS
A. Final Decree of Divorce
B. 2008 Domestic Relations Order
C. Memorandum Ruling
D. 2014 Domestic Relations Order
E. 2014 Domestic Relations Order Nunc Pro Tunc
CASE LAW
,,
',,
1. Cameron v. Cameron, 608 S.W.2d 748 (Tex. App.--corpus Christi 1980)
2. Cookv. Cameron, 733 S.W.2d 137 (Tex. 1987)
3. Hicks v. Hicks, 348 S.W.3d 281 (Tex. App.-Houston [14th dist] 2011)
~- ;
4. Joyner v. Joyner, 352 S.W.3d 746 (Tex. App.-San Antonio 2011)
5. Shanks v. Shanks, 110 S.W.3d 444 (Tex. 2003)
6. Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th
Cir. Tex. Dec. 19, 2014).
26
Puge 1
LexisNexis(i)
Pnu1t\rchihnld C::uucrnn, Appellant,''· Sue Akers Cameron, Appellee
No. 1578
Court of Civil AJ)pcals of Tcx11.s 1 Thirrc-clllh District, Corpu_s Chrisli
608.1: Wld 748; HSII Tex. App. tEXTS 40211
Oclulu:r 23, 1980
SUBSEQUENT HISTORY: ['*I] Rehearing Denied l*7SO] A review of the pertinent fncts of this case
November 20 1 19SO. arc as follows. App~llanL entered the United Stales Air
Force on .hmc 22, 1954, in New York. l**2] In 1955,
PRIOR HISTORY: On Appeal from the 28th Dislrict appelhmt \\·as :;tationcd at Lubbock Air Force Base in
Court ofNucccs County, Tcxns Texas. The parties married in Midland, Tcws on
September 29, 1957, and departed that day for California.
The panics lived in Califomia_. n community property
COLI!"\SEL: For Appellant: Charlc' R. Cunninghmll · state, for thrc_c months. Thereafter, the· parties lived in
Corpw:: ChristL TX. vnrious common law st.1tes. Appd1anl retired from the
military m1 September I. 1977, at Grissom Air Force
For Appdkc: ScouT. Cook- Corpus Christi, TX. Ba'iC, TJlCiiana, The partics_thcn moved tnCorpus Christi,
Texas..
,JLJDGI~S: Horace S. Voung, l\ssodatc Justice.
The pariics were di"Orccd on March 29~ 1979. AI
OPIN!Ol"\ liY: YOUNG the time of' trinl, appellant was receiving Sl 1 507Jl pL'r
month under hi_s military rctiremclll bencCit'i and caming
OPINIO:'\ nn annual salary of SJJ,()OO.OO as an accounting
mstructor i.ll Corpus Christi State University. Appellee,
[*749] In this appeal from a part of the trial court's
at the time of lrlal, wa~ earning an annual salary of
judg-mclll in a divorce suit, Paul Archibald Cameron is
$18,000.00 ns the DircCior or Placement at Del Mnr
uppcllaut and Sue Akers Cij.mcron is. appcllcl!. The
College in Corpus ChristL
judgment granted the divorce, appointed appellee as
1 n:maging conscrvatQr o'f the one minor child, ordered Appellnnl, ln points of crrms, one, two and- seven.
appellant 10 pay child support, u_nd divided the proper!); contends the trial__c:ourt erred in divesting him of title to
of the parlic!'. AltJ10ugb there urc sOme fifteen points of his separnte propeny _military retir-ement bencflls. Jt is
cnor raised by appellalll, the central issue in this uppcal well sclllt!d lhat an- interest in a mililmy rclircmc.nt plan is:
mvnlvts the trial court'$ divestiture of' appellant's title to an eat·ncd property rlght. This property right accrues by
his sep-arah': pen:ollill property. We hold that ~uch fCtlSOJ1 or tile years of Service spct1l in the militmy [**3J
divestiture is not permissible by a trial com1 under the by thnt spouse. B1ryby 11• Busby, 4S7 S. JV.2d 551 (Te:r.Sup.
recent Supreme Cmnt case of Campbd/1'. Campbell. 13 1970); Cearley "· Cearley, 544 S.W.2d 661 (Tex.Sup.
Tcx.Supp.CU :191 (June 4, 1980). We accordingly /976). Milil:_uy retirement, being an earned property
rc~1 crsc and rcnumd in part. rig.hl 1 is sul~cct to division upon dissolution- of the
Page 2
608 S.W.2d 748, •750; 1980 Tex. App. LEXIS 4020, ••3
marriage. The inception of title rule is applied to receipt.
dctcnninc the existence of a community property interest
in retirement benefits. Busby ``. Busby, supra: Mitchim v. In construing lhe meaning of a judgment, the entire
Mitdrim, 509 S. W.ld 710 (Tcx.Civ.App. -- Austin 1974), contents of the inslrUmenl [ .. 5] must be considered.
re••'d on olhcr grounds, 518 S.W:ld J~] (fex.Sup. 1975). The judgmcm should be read as a whole and each pari
lienee, the military rt:tircmcnt benefits which accrue should be interpreted with rcrcrcncc to its entirety. Lou~
during the marriage while residing in common law states S1ar Cement Cal'paralion v. Fair, 467 S.W.2d 401
and lhc benefits which accrue while single are 1hc (Tex.Sup. 1971); State v. Star·/ey, 413 S.lfl.]d 451
separate property of the spouse in lhe military. (Tcx.Civ.App. --Corpus Chrisli 1967, no wril). We hold
Conversely. the retircmcna benefits which accrue while lhe judgmcnl clearly di\•cslcd appellant or lille to
residing in community property states arc community thirty-five pcrccnl of his retirement benefits.
property. Busby ''· Busby, s11pra; Mite/tim \'. Mile/Jim,
[•751) Prior lo lhe rcccnl Supreme Court case of
sup,·a.
Campbell 1'. Cumphe/1, supra, several or the Courts of
Appellee counters appellant's divestiture theory in Civil Appeals had held !hal while a lrial court tnay nol
her supplemental brief, filed after lhc Campbell decision, divest one spouse of title to his or her separate real
by stating that lhe trial court did not aclually divest property and transfer Iitie 10 the otl1er spouse [Eggemeyer
appcllanl of tide lo his scparale personal property. We 1•. Eggemeyer, 554 S. lV.ld JJ7 (fex.Sup. /977)/lhc lrial
disagree. court could divide the separate personal property of the
parties. The Supreme Court. however, in Campbr!ll
The judgrnem reads, in part, as follows: clearly slaled lhal lhcy consider lhcir holding in
Eggemeyer as stare decisis and hence controlling upon
"Paul A. (**4] Cameron, Jr. is awarded the issue of whether a trial conn may divest a spouse of
as his sole and separate property all his or her separnlc personal property. The following
interest. separate and community, in the language from Em:emeyer was quoled in Campbell:
United States Milital}' Retirement Plan
described above, subjccl only 10 lhe life "Trial Courts have a broad latitude in the
interest of Sue A. Cameron and the di\·ision of the [.,..6) marital community
Sun•ivor Benefit Package as hereinabove propeny, but that discretion docs not
specified." extend to a taking of the fcc to the separate
property of the one and its donation to the
This language is found in the judgment under the heading other.••
''Division of Military RctircmcnL'' The conn also ordered
lhe following division of property:
"A. Property lo Petitio11er. Petitioner is The Court accordingly held thai a lrial coun may not
awarded the following as Pelitioner's sole divest one spouse of his or her title to separate personal
and separale property, and Respondenl is property and trunsrcr Iitie 10 the olher spouse. Hence, lhe
hereby divesled or all righls, lille and divesliture of appcllanl's lide 10 lhirly-five pcrcenl of his
in1eres1 in and lo such property: ... (8) separate propcny military retirement benefits was
1ha1 percentage of lhe United States enoneous. Appellant's points of error one, two and seven
Milit.ary Retirement of Paul A. Cameron, are sustained.
Jr. in accordance with the terms
hereinafter SCI rortb." Appellan1, in his third point of error~ contends that
lhc lrial court erred in awarding one-half of lhe Unilcd
The judgment funhcr rcciled lhal 1hc Uni1ed Sones States Savings Bonds to appellee. These bonds were
Government would not directly rorward 10 appellee- her acquired from runds withheld from appellant•s military
separate share of lhe retirement benefits. The court, pay. The record rcOccts that the appellant was in the
lhcrcforc, made appellant constructive trustee of mililary for a lola I or 278 monlhs. or lhese 278 monlhs,
thiny-five percent of thc retirement benefits and ordered appellant was single for 39 months. During the
him to pay such sum to appellee within fh•e days of remaining 239 months the parties resided in common law
states for 233 months and in a community propcny slate
Page 3
608 S.W.2d 748, •751; 1980 Tex. App.LEXJS 4020, ••6
for three months. We hold, therefore. that 275/278 of the making a claim against the panics for the 52,800.00 paid
United Stales Savings Bonds were the separate property in error.
of appellant. As we ha\'C mentioned, a trial court n1ay
not divest one spouse ln7) of the title to his or her All propeny possessed by eitl1cr spouse at the
separate property and transfer the same lO the other dissolution of the mnrriage [US] is presumed to be
spouse. Campbell "· Campbell. supra. Appellant's third community property. Tex.Fam.Codc Ann. § 5.02.
poinl of error is sustained. Appellant had the burden of rebutting the presumption
lhat the sa\'ings account was part of the community
Appellant, in his fifth point of error, contends that estate. Tan·er 1'. Tan'er, 394 S.lf'.ld 780 (fa.Sup.
the trial coun erred in ordering him to pay a $2,800.00 1965); Cel,•ames ''· Cen•a111es, 59/ S.lf~2cl 332
debt This debt arose as a resuh of a savings account in (Tex.Civ.App. --Corpus Christi 1979, no writ). We find
Wochovia Bank and Trust Company, Kingston, North that appellant has failed to overcome this burden.
Carolina. There was testimony in the lower court with Appellant's fifih poinl of error is overruled.
regard to the savings account Appellant testified that il
was his separate property account Appellee testified that After a careful review of appellant's remaining points
she was authorized to draw on the account and it was, of error and appellee's eross-poinl, we deem it
therefore. a jointly owned sa\'ings account of the panics. unnecessary 10 consider these poinrs in light of our
holding.
Prior to lhe separation of the panics, appellee
withdrew 52,800.00 from the savings account. This sum Under Rule 434, T.R.C.P., that the ponion of the
was approximately one-half of the balance. Appellant judgment dividing the property of the partie.~ is reversed,
thcrcaficr withdrew the remaining balance of the account !levered and remanded to the trial eoun for a new trial on
plus an additional $2,800.00. Tile additional $2,800.00 that issue. The remainder of the judgment is affirmed.
was withdrawn by appellant due to an error of the bank. The costs of this appeal are taXed one-half to each of the
The bank, at the time of trial, was in the process of panics.
.. ,
Page 1
LexisNexis®
Sue Akers Cr1ok 1 formerly Sue Akers C:uneroni Jlclitinncr~ \'.Paul Archibald
Cameron, Hcspondcnt
No. C-4658
SUPREME COURT OF TEXAS
733S.W:2d !37; 1987Te>e IEYIS 369; JO Tex. Sup• .I. 550
.July 8, 1987, Decided
PRIOR HISTORY: ['*I] FROM NIJECES 690. We reverse the. judgmcnl of the court of 1\f)pc.als nnd
COUNTY TIIJRTEENHI DISTRICT. render judgmc.nt fm Conk.
Sue Cnok, fonnerly Sue Cameron, und P;ml
COLJJ\SEL: Dudley, Mr. Willi:un A.._ Harri:i, Cook. Camero!! divorced in l\·l608 S.W.2d
748 (Tex.Civ.App.- CmJ>US Christi 1980). In TC\'ming
JUDGES~ franklin S. Sj1ear:t, Jwaice. Concurring and that cou11 o f':uprcals' judgment, rhi.'l court stated:
dissenthig opinlon by Wallace.
The .divorce d~crc:c, d;:ttcJ March 29,
OPINION lJY: SPEARS I ?79. nwards Sue Cameron hthirty-fivc
perCclll (35 6,·0) of the gross prc...tcnl and
OPJNJO~ futt.tt~ Military Retirement presently being
received. n Sue Olmeron is entit-led to
["13Sj ON MOTION FOil REIIEAilJN(;
recover that thirty-fi\'c J1etcent hut nol
\Vc gmnt the motion for n.:hcaring. withdraw the
!'rom the perind from ?\·farch .25, 1979 to
June 25, 198 I. 11u~refore, we affirm thnt
judgment and opiniou of March l~j J9~..:7, anU :iUbstitutc
pari of' the trial court judgment awarding
I his opinion.
Sue Came-ron thirty-five percent of [~ J 39]
This. is a post-judgment snit scekittg to enforce: our Lhc military retircmcnLpay .... (emphasis
judgmcm in Cameron v. Cameron, 64 I S. H~2t! 210 (Te.\·, addeo)
1982). The trial court refused to nrdcr Paul Cameron to
pny Sue Cook the difference between nur judgment 641 S.W2d 210,213. Our opinion further addr~.:sscd the
afllrn1ing the divorce dr.cree_awnrding thirt.y-Hvc percent nwurd of .U.S. Saviugs Bonds. Ln tli~ conclu:~ion, this
gross military rctit-cmc1u benefits und the govcrnn1ent's cnun hciU_rcgarding the military rcJitcJUellt bl:nefil.';:
direct pnyment of lhirty-fivc percent net disposable \\:'e reverse that part of the: judgmcm of
rerirt.!I11C11L The cmm of appeals nflinned. j()J S. Wld the cuun of uppcul~ that reversed the trial
Pagc2
733 S.W.2d 137, '139; 1987 Tex. LEXIS 369, "2;
30 Tex. Sup. J. 550
court's judgmcntlhat Sue Cameron rccciv~ Cameron her share of Military Retirement. . . ." 641
thirty-fi\•e percent of military retirement S. W..!d al 22.3. Even though the opinion earlier affinned
pay, and we render judgment awarding the trial court's award of a gross percentage, the court of
Sue Cameron her share of the military appeals st.Dted it was unclear whether ''her share of
retirement pay but only from June 25, military retircmcnl" referred 10 gross or net disposable
1981. /d. ot22J. benefits. The court of appeals held the trial court had no
jurisdiction (.. 5] to resolve the ambiguity or enforce the
[•• 3] The divorce decree also granted Cook forty-jil'e judgment since the Supreme Coun had rendered our
percent of Cameron's gross military retirement in the "ov.11 judgment." The court also affinned the uial court's
cvcnl further litigation other 1han a direct appeal was refusal to award attorney's fees to Cook.
required to enforce the award of tllil'ly-flve percenl gross.
That provision was not appealed to this coun in On appeal here, Cook argues that the trial court and
Cameron. the court of appeals erred in failing to enforce our
Cmrwron judgment affinning the decree awarding
This prcsenl action arose when Cameron disputed an thirty~tive percent of gross military retirement pay. Cook
amount withdrawn by Cook fron1 a supcrccdcas bond on contends the trial coon had a duty to enforce the decree
deposit whh the trial court. Cook returned to the trial as affinned. We agree.
court that rendered the divorce decree and filed a n10tion
for contempl against Cameron, a motion to enforce When an appellate coun affinns a trial court's
judgment, and a motion in aid and clarification of judgment or renders a judgment which the trial court
judgment. The trial court's order of July 25, 1983, held should have rendered, that judgment becomes the
thai Cameron was required under this coun's judgmenl to judgment of both courts. Stale \'. Walker, 679 S.lf'.2d
pay lhirty·five percent of his gross retiren1cn1 pay. The 484. 485 (Tex. 1984). "It is the duty of the trial court to
trial court awarded Cook an equitable lien for the cnrorcc the judgment as [rendered)." C/Q• of Tyle•· v. St.
arrcaragcs, but determined Cameron's non-compliance Louis S. W R.l'. Co., 405 S. W.2d JJO, 332 (Tex. 1966); see
was in good faith. The court held him in contempt for not also TEX. FAM. CODE § 3.70) (Vernon Supp.
furnishing an accounting statement Ia Cook, but refused 19R7)(enforccment of divorce decree). Cameron affinns
to activate the contingent benefit provision awarding the trial court's decree of thirty~ti\'e percent gross military
forty· five percent gross retirement. retirement pay. 641 S.W.ld ol 2/J. The trial court's
judgment. therefore, became the judgment of this court,
In June 1983, the United States Government began and the trial court erred in not enforcing the [.. 6]
paying Mrs. Cook directly, but only in an amount equal judgment as rendered.
10 thirty-five t••4] percent of net dispo.r;able military
retirement. Cameron refused lo pay the difference [•.140) Tile refusal or lhc courts below to enforce
between our judgmenl and the government's direct the award of gross pay derives from their interpretation
payment. Cook again rerumcd 10 lhe trial court in that the USFSPA only approves payment of net
November, 1983 and filed a second amended motion for disposable retirement pay. While we recognize the trial
contempt and a motion to enforce judgment, both of court's and the court of arpeals' concern that Cameron
which lhe court denied. The trial court reasoned the may conflict with the USFSPA, Cameron affinncd the
Unifonn Services Fonner Spouse's Protection Act /0 award of gross pay, and that judgment became final. The
U.S.C. § 1408 (1983) (USFSPA) only applies to net doctrine of res judicata bars rclitigation of issues decided
disposable retirement, and a court may not. by valid in a final judgment. Garcia ''· R.C. Cola •• 7-Up Bo11/ing
judgment, compel a payment of gross. Co., 667 S.W2d 517. 519 (Tex. 1984). Paul Cameron
correctly asserts thai a void judgment may be collaterally
Cook then appealed to the court of appeals which attacked; however, if the trial court's award of gross pay
affirmed the trial court's order. The court or appeals were void, we would have so held in Cameron. Thus, lhe
determined the trial coun had no jurisdiction to hear lower courts' refusal to enforce Camel"on as wriucn
Cook's motion for enforcement bccau.llie our Camcrmr because they disagreed with the award of gross bcnefitc;
judgment was ambiguous. In the concluding sentences of was an improrcr rclitigation of issues delcrn1ined in lhe
Cameron. we "render{ed] judgment awarding Sue prior final judgment. Although a holding may be
Page 3
733 S.W.2d 137, "140; 1987 Tex. LEXIS 369, "6;
30 Tex. Sup. J. 550
subsequently overruled or disapproved, the O\lem.Jicd though the contingent award was improper, the di\'orce
judgment remains final to the panics involved. Segrest v. decree. including lhe contingent penalty, is not subject lo
Segrest, 649S.W.2d6/0, 612,<·ert. denied, 464 U.S. 894, Cameron's collaleral [....,9] attack. Res judicata also
78 L. Ed. 2d 232, /04 S. Ct. 242 (/983). applies here to prevent relitigation of issues which should
have been liligated in an earlier appeal. Segrest, 749
We [ ... 7] next addres.'i the contingent increase S.W.2d nl 613. Determining lhat the contingent escalalion
award of fony-nvc percent gross military retirement In is not void does not, however~ completely resolve Cook's
the 1979 divorce decree, the trial conn ordered thirty-five contention that the trial court erred in refusing 10 aclivale
percent gross retirement pay was just and right only if ~1c penalty.
Cook rccei\•ed that amount 11 Wilhout further litigalion
other than a direct appeal." In the event Cameron failed to The Family Code authorizes a trial court to issue
comply with the award, the decree slated fony-five orders in aid or clarification of a fanner divorce decree.
percent of the gross retirement pay was just and right. TEX. FAM. CODE ANN. § 3.70-.72 (Vernon Supp.
Cook argues that the molions 10 force Cameron lo 1987). On Cook's first motion for contempl and motion in
comply \\ith the conn's judgment constitute ''further aid and clarification, 1he trial court found Cameron in
litigation," and therefore, she is entitled to the contingent contempt for failing lo forward an accounting statement
increase. to Cook [•141) within five days of his rcccip~ bUithat
11
finding of contempt docs not amount to further
Cameron contends the contingent increase is void liligalion." On Cook's amended second motion. the trial
and unenforceable as a matter of law. He asserts (I) the court again refused Cook's request to activate lhe
contingent provision renders the decree indefinite and contingent escalation.
uncenain because "funhcr litigation" is undefined and
unclear; (2) the trial court is authorized to make only one We hold the trial court's denial of Cook's request
"just and right" division of property, and the contingent does not mandate reversal. Cameron's testimony at the
increase constitutes a second propeny division; and (3) contempt hearing eslablished 10 the trial court that he did
733 S.W.2d 137, •141; 1987 Tex. LEXIS 369, ••10;
30 Tex. Sup. J. 550
Cook. event that [Cook] receives the allotted share without
further litigation other than a direct appeal. . . ."
COSCUR B\': WALLACE Litigation is defined as a contest in the courts 10 enforce a
right or seek a remedy. Black's Law Dir:tionar)' 841 (5th
DISSE~T B\': WALLACE ed. 1979). The purpose of litigation is to preserve and
enforce rights and secure compliance with the laws of the
DISSE~T state. Mi.t.mwi, Kansas & Texas Ry. Cn. 1'. Hickman,
183 U.S. 53, 60, 21 S. Ct. /8, 46 L. Ed. 78 (1901).
CONCURRING AND DISSENTING Because Cameron failed 10 honor lhe divorce decree,
Cook was forced to file this lawsuit. By definition, she
[.. II) OPINION ON MOTION FOR
was forced [.. 12] to pursue further litigation whether
REHEARING
Cameron ac1cd in good faith or not. ConscqucnlJy, she is
( concur in the majority holding that Sue Cook is cnlitled to 45% of Cameron's gross military relirement
entitled to enforcement of the judgment rendered in pay.
Camei"On "· Cameron, 641 S.W.2d 210 (Tex. 1984)
Cameron failed to properly challenge the contingent
awarding her 35% of Paul Cameron's gross military
provision in his direcl appeal of the divorce. Because he
rerirement benefits. However, I dissent from the
could have secured review of the provision in the divorce
majority's refusal to enforce the contingenl increase
appeal, res judicata bars him from litigating that issue in
award.
this lawsuit. Garcia 1'. RC Cola-- 7-Up Botlling Co., ``7
The majority concludes this lawsuit docs not amount S.W.ldJ17,J/9(Tex. /984).
to "funhcr liligation'' because Cameron acted in goad
For the foregoing reasons, I would hold Cook is
faith in refusing to honor the divorce decree. I disagree.
entitled lo enforcement of the entire divorce decree
The decree states that 35% of gross military retirement
including the contingent provision.
benefits "is dctcnnined to be just and right only in the
.I
..
'.. ·,···1
":.
Page I
LexisNexisQD
K)1JZ EIJWAJW IHCKS, Appoll:mt ,., LA'KESHA ~!ARIE !JAYNES ITICKS,
Appellee
NO. 14-10-00577-CV
COUilT OF A I'I'EALS Of' TEXAS, FOI'IHEE:>ITII DISTRICT, IIOUSTO:-.i
348,\: 11'.3<1 281; 2111 I Te.<. 1lPJ1· LEXIS 4909
,June .JO, 21111, Opinion Filed
PRIOI! IIISTOI!Y: [.. I] In November 2009, Wife filed :m nrig[nnl petit' ion for
On Appeal f'rom the 245th District Court, llm-ris divon:c. In Deccmhcr 200iJ, Husbnnd filed an original
.·
.
County. Texas: Trial Court Came No. 2009-73495. Judge
Annette Kuntz .
nnswer and an original coumcr-pc:tition for divorce. In
January 20 I 0. the partie$ entered inlo an infomml
!.
~,
.;
)
COUt\SEL: Jarnd N. Higdon or San /\JlHH\io, TX, t(1r
appclh1nts.
sdtlement ngrccml!nl purs\"!lt to .\·ecJion 6.604 of the
Tc~ms Famf(F Cruie. In March 2010, the trial court signed
lhc fi.nal f"*2] decree of divorce, which was approved
and consented lo as to lHHh form ~.fler l-lushnnd fil!!d a motion for the
Willinm Leslie Shireman nr Houston. TX, for appclkcs. trial court 10 dll so. On the sumt: day, lhc trial cour1
signed the domt:stic rclalions order ("D.R0 11 ) at issue!
JUDGES: Panel consists of Chief Jus1iee Hedges and :.1pprovcd by o11ly Wife und her altumcy. References to
Justices Seymore and Boyce. the DRO nrc cros;'>Cd out in the final decree of divorce.,
One title ted rcfen,!IIGC. in the final decree wuh:r ''Property
OI'INIO:-.i BY: Addc Hedges to Husband" is inlti:aled by 11 CI3" and !'LH," prcSUUH.IIJiy
Wi fc a11d her attorney; .anoth(!r delc!cd reference under
OPINION "Property to Wifi:::'' i$ initialed by "CB" only.
l*-282] In this .di\'orcc ca$.C, Kyle Edward Bicks In .'\p_ril10 I0-' l-lusbi!nd filed a_ motion to correct or
{''Hu$h:pcnscs in the order denying the .npplicable federal law to tbe court. and Husbnud
Husband's motion to concct or reform rhc judgmem, We n;qu~stcd trial and appdla!c !lttmncy's fees;· c.\.pcnscs.
::lftirtll tile finn! decree of divotCI.! and the awmd of and co~ts. \VICe ·ntcd a rcspousc to the motion lo <.:orrcct
attorney's fees and expenses. We reverse and remand 1he ur- refNm tiH; judgment, :>l:.t.ting that the motion wa~
domestic relations ordC"r for H.Irlhcr procl'ttlings g:rnundkss llild brought solely for the pUfllOSC of
consistent with this opinion. hurassmcllt. In uddition, she requested lrial and appellate
ntlorm.:y's fees, c:xpcmes, m1d costs. \\'ifc [UJ] riled a
Page 2
348 S.W.3d 281, "2R3; 2011 Tex. App. LEXIS 4909, ••J
separate motion for sanctions pursuant to Rule I J_ of tl1e Husband and Wife aucsted by their signarurcs that
Texas Rules of Ch•il Procedure. claiming that Husband's they appro\'cd and consented lo rhc di\'orcc decree as to
motion to correct or refonn the judgment was groundless both form and substance. In lhc body of the decree. the
and brough1 for the purpose of harassment. She requested trial court found thai the parties had (,.,.5] entered into a
as sanctions ( t) that lhe trial coun deny lhe motion to written agreement, the wriUen agreemcnl being the Final
correct or refonn the judgment and (2l that she be Decree of Divorce. The panics stipulared that the
awarded anomey's fees and expenses incurred in agrecmcnl was enforceable as a con1rac1 to the exlent
obtaining an order for sanctions. permiued by law. Because the parties entered inlo an
agreed divorce decree, it is lreated as a contract between
The trial coun held a hearing on Husband's motion to the parties with lhe law of contracts governing the
correct or rcfonn the judgment and on \Vifc's request for interpretation of the dc:cn.-c's legal force and meaning. See
attorney's fees in her response. I The trial court denied Pare v. Pate, 874 S.W.2d 186, 188 (Tex. App.--Hous/o/1
Husband's motion and ordered Husband to pay Wife's {14rll Disr.] 1994, writ denied).
auomcy's fees and expenses in the amounl of S 1,950.00.
After the hearing, with the trial court's permission, [•284) The DRO in this case was signed on lhc
Husband's trial counsel introduced expert testimony same day as the agreed final decree of divorce. When the
regarding the calculation of and the community interest in signing of the DRO occU11i contemporaneously with the
his n>ilitary retirement pay. 2 This appeal followed. signing of the divorce decree, courts have construed the
DRO as pnrt of the divorce decree. See, e.g.• Gilli11 v.
At the hearing, Wife's trial counsel staled that Gillin, 307 S. W.3cl 395, 396 (Te.t. App.--San Antonio
she would dismiss her motion for sanctions if the 2009, no (Jet.) (characterizing complaints aboul two
trial court awarded the auomey's fees rcqucsled in provisions of an incorporated DRO as being an appeal
her response, which the trial court did. from a divorce decree); Beyer ''· Beyer. No.
2 According to Husband's brier, lhis was done 03-06-00803-CV, 2009 Tex. App. LEXIS 5913, 2009 WL
outside the presence of the trial judge. 1341857, at • I (Tex. App.--Auslill July 28, 2009, pel.
de11iedJ (mem. op.) (appeal from domcs1ic relations order
II, ASALYSIS
ponion of decree). While the ORO in this case wa...~
A. ["4) DOMESTIC REI.ATIO~S 0ROER
signed on the same day as lhe final decree of divorce,
references [U6] 10 lh_c DRO arc expressly dclclcd from
In his first issue, Husband contends thai the trial the agreed decree. The trial court approved lhc agreement
coun erred in signing rhe DRO because the DRO of the parties "as conlaincd in this final Decree of
contains a fonnula incorrectly calcularing (I) the Divorce.'' As "uch, we will review the DRO as a separate
community interest in his mililary retirement pay and (2) order and not as pan of the agreed divorce dccrce.l
the retirement pay itself. In addilion, Husband claims that
the ORO designates Wife as the fom>cr spouse 3 Post·divorce DROs. for example. are
beneficiary of his Survivor Benefit Plan when no such appealable orders. See Shanks "· Treadlt'ay. 110
S.ll'.3d 444, 446 (Tex. 2003).
designation was made in lhe final decree of divorce.
The parties entered into an agreed final decree of Initially, we reject Wife's contention that Husband
divorce. For a consent judgment to be valid, each party failed to preserve error on his issue. To presen•e a
musl explicilly and unmistakably gi\•e his or her consent complaint of error in a judgment, a party must inform the
In re Browsard, Ill S. lfc3d 82 7, 831-33 (Tex.
trial court of its objection by a timely riled motion to
App.--/JoustoPJ {14111 Disr.] 2003, orig. proceeding).
amend or correcl the judgment, a motion for new trial, or
Appro\•al as to fonn and substance, slanding alone, docs some olhcr similar method, and 1hc trial court must rule
not transform a judgment into a consent judgment. /J. on the motion either expressly or implicilly. See Tex. R.
App. P. 33.1(a). Husband properly preserved error \\ith
The body of the judgment musl sugges~ for example, ·that
the judgment was rendered by consent. Clrang ''· Link his timely filed motion to correct or refonn the judgment
Nguren, 81 S.W.3d 314, 316 PJ.l (Tex. App.--/Jou.348 S.W.3d 281. "284; 2011 Tex. App. LEXIS 4909, .. 6
Because the trial coun did not make findings.of fact of Member's Disposable Retired Pay
or conclusions oflaw, we assume that it made all findings (DRP), if, as and when received,
in support of its judgment. PIUlro "·Chambers Cmy., 922 multiplied by the following fonnula:
S. W2d 945. 948 (Tex. /996). Funhennore, [••7] when
findings of fact and conclusions of law are not filed, we Number of months Member and
must affirm the trial court's judgment on any legal theory Former Spouse were manicd during which
that findS suppon in the evidence. In r~ WE.R., 669 Member was in service (183 mos.) divided
,] S.W.ld 7/6, 717 (Tex. /984} (per curiam). A conclusion by Number 1••9] of mon1hs Member was
['! of law can be challenged on the ground that the trial coun in service as of retirement (not greater
::' than 480 months)
did not properly apply the law to the facts. Tl-eadwat• v.
Shanks, 110 S. W.3d /, 5 (Tex. App.--Dallas 2000), ah'd,
110 S.W.3d 444 (Tex. 2003). We review questions of lnw X
. i, de novo. In r·e Humphreys, RHO S.W.2d 402. 404 (Te.t .
Acti\•e duty base pay for an 0-6 with
/994).
26+ years of creditable service as of
Calculation ofCommumly hrlere.rt irr Rctiremelll Pay 0110112010 (SI0,047.00 per month)
di\'idcd by Active duty base pay of
The final decree of divorce awards lo Wife as her Member as of his date of retirement
sole and separate propeny "[a) 50% ponion of the
community sums, whether matwcd or unmatured, Husband contends, and we agree, thai the ORO does not
accrued or unaccrued, vested or otherv.•ise, together with calculate the con\munity sums owed to Wife in
all increases thereof, the proceeds therefrom, and any accordance with Texas law. The ORO purports louse the
other rights related to or as a result of Kyle Edward fraction fonnula established in Taggart ''· Taggart, 552
Hicks' service in the United States Air Force, including S. W.2d 422 (Tu. 1977), by di.,idins the number of
any accrued unpaid bonuses. disability plan or benefits, months married during Husband's sen•ice by the total
or other benefits existing by reason of or as a result of number of months Husband will be in service as of
Kyle Edward Hicks' past or present employment." relirement. However, the Taggart fraction no longer
Therefore, the decree awards Wife a SO percent portion of applies to situations such as this one.
the community sums existing by reason of [..,.8) or ac; a
result of Husband's pasl or present employment, 4 "Disposable retired pay" is defined as the total
including any ae~rued unpaid bonuses, disability plan or monthly retired pay to which a member is entitled
benefits, or other benefits. This award is consistcnl wilh less ccnain amounts as applicable. !d. §
the panics' informal settlement agreement which Slalcs: /408(a}(4).
"Wife shall be awarded 50% of the ["285] community
In Taggart, the Supreme Coun of Texas developed a
int~resl in husband's defined military retiren1ent pay."
formula for dctemtining the ex1en1 of the community1s
Under lhe Uniformed Services Former Spouses' interest in a military retirement plan. 552 S. JJ~ld at
Protection Act ("USFSPA 11 ), a divorce court may treat 423-24 (holding that divorced spouse "owned as her part
di.id. § 1408(dJ(/). 4 This panicular ORO -sets divided by the total number of months of service that
out the follo\\'ing fonnula as a calculation of the sums entitled the employee spouse to the relircment benefits. 5
owed to Wife: /d. at424.
5 In Taggart the Coun used the number of
Fonner Spouse shall receive [50 percent]
months of service that entitled Mr. Taggart to the
Page 4
348 S.W.3d 281. '285: 2011 Tex. App. LEXIS 4909, .. 10
retirement benefilS (360 monlhs) rather tban lhc DRO to he consistent with Texas law.
actual number of months of scr\'ice at retirement.
The Supreme Court of Texas has subsequently Ca/culario11 of Retirement Pay
construed this fraction as follows: 'the number of
months married under the plan divided by the Husband also contends lhat the fonnula does not
lotal number of monlhS en1ployed under the plan accurately calculate the retired pay itself. The DRO uses
at tlte time of retirement." S!Ja11ks, I 10 S. W.Jd at the following fraction to calculate Husband's rclired pay:
446 (citing Tagga1·1. 551 S. W.ld a/ 424). Active duty base pay for an 0-6 with 26+ years of
I crcdirnble service as of 01/01/2010 (SI0,047.00 per
I
'
In BeriJ• v. BeriJ', the Court altered t~ Taggart month) divided by llusband's acti\•e duty base pay as oF
formula. 647 S.W.1d 945, 946-47 (Tc:r. 198J). The Court his dale of retirement. Husband argues that both the
did so by changing the fraction denominator to the nun1erator and denominator of this fraction arc incorrect.
number of months employed under the plan at tl1c lime of
divorce. /d. (emphasis added); see also Sl1a11ks, 110 The computation of retired pay involve...; factors such
S. W.3d at 447 n.3 (Tex. 200J) (recognizing that the as: (I) the percentage of pay base that a service member
formula was altered). Bony also altered the [''II) accrues toward retirement for every creditable complete
valuation ponion of the fonnula. requiring the value of year and month of service; (2) the service ["13)
the benefits to be calculated at the date of di\'orce. member's pay gid. §
non-employee spouse her shan: of any post-divorce 8991 (computation of retired pay for member of the Air
eost-of-li\'ing increase in the rctiremcnl benefit. Force).
Limbaug/1 v. Limbaugll. 71 S.II'Jd /, /6 11.12 (Tex.
App.--Waco 2002, no pet.). Husband claims lhal his retired pay base should be
calculated using section 1407 rather 1han se,·tion 1406 of
Here, Husband was not retired as of lhe dale of the United Slates Code because he first became a member
divorce. The DRO slates that: "Member was on active of a unifomtcd service after September 7, 1980. The
duty with the U.S. Air Force at ~1e lime this Order was DRO appears ro calculate Husband's retired pay base
entered." The fraction used 10 calculate Wire's under .vection 1406 (retired pay base for members who
community interesl in Husband's [••12] retired pay first became members bcrore September 8, 1980) because
should follow the Berry• formula. Therefore, the the fraction's numeralor [••t4) uses Uusband's monthly
applicable fraction is the number of monlhs Husband and basic pay at Husband's pay grade. S-. id. § 1406. Under
Wife were married during HusOOnd's employmc;nt under sectimJ 1407, the high-36 monlh average is used 10
the retirement plan divided by the number of months calculate the ['287] retired pay base for those who first
Husband was employed under the rc1iremen1 plan at the became members of a unifonned service aner September
time of divorce. We sustain the portion ofHmi>and's first 7, 1980. 0 ld. § 1407. "High-36 montl1 average" means
~ssue d~alin~ with the calculation of the communi1y "the total amount of monthly basic pay to which the
m1cres1 1n rcurcd JXIY found in the ORO. We reverse and member was entitled for lhe 36 months (wbelhcr or nol
remand for the lrial Coun to adjust the formula in the consecutive) out of all the months of active- service of the
member for which the monthly basic pay to which tbc
PageS
348 S.W.Jd 281, "287; 2011 Tex. App. LEXIS 4909, ••14
member was entitled was the highest, divided by 36. 11 !d. Therefore, we sustain the portion of Husband's first
§ 1407(c). Therefore. evidence of when Husband began issue dealing with the calculation of the retired pay itself
unifonncd service is essential to Husband's argument that found in the DRO. We reverse and remand for the trial
lhe "high 36" formula should be used 10 calculate his court to adjus1 the fonnula in the DRO to be consistent
relired pay base. The existing formula in the DRO with federal and state law.
references ''26+ years of creditable service as of
01/01/2010." This reference indicates thai Husband had Wife's Beneficiar)! Status
26 years and some months of creditable service in the
military as of 0 1101/20 I 0. 7 Based on the reference in the Finally. Husband argues that the DRO is inconsislent
DRO lo "26+ years of creditable service as of with the agreed di\'Orce decree in that the ORO pro\'ides
that ''(f]onner Spouse shall be deemed to be lhe
01/01/2010:' Husband must have begun military service
after September 7, 1980, and, therefore, the high·36 beneficiary of the Survivor Benefit Plan ("SBP") annuity
month average will be used to calculate his relircd pay through Member's military relirement and Member shall
cxcculc any documeniS as are required to make the
["IS] bo.id. § 1407.
designa1ion of Former Spouse as said beneficiary." The
6 There is an exception for enlisted members agreed divorce decree docs not specifically divide the
reduced in grade and officers who do not serve SBP annuity or mention Wife's status [••t7] as a fonner
satisfactorily in the highest grade held by the spouse beneficial)' lo the SBP annuity.R
officer. /d. § /407(0. In that ca.•e. section /406
applies. /d. § 1407({)(1). There is nothing in the 8 The divorce decree does make one reference to
record lo suggest that Husband falls into Ibis sun•ivor benefits. Under the heading "Support as
exceplion, thereby triggering section 1406. Obligation of Estate," the trial court ordered that
7 To detennine a member's years of service1 the provisions of child supporl in the decree
"coch full month of service that is in addition to remained the obligation of Husband's estate and
the number of full years of service creditable to did not tcrminale on his death. The decree states
the member shall be credited as 1/12 of a year; that "[p)aymeniS receh•ed for the benefit of the
and any remaining frnctionol part of a month shall children including payments from the Social
be disregardcd."/d. § /405. Security Administration, Department of Veterans
I Affairs or other governmental agency or life
Husband further argues that for purposes of di\•ision insurance proceeds, annuity payments, trust
I
'
of his military retirement benclits upon divorce, lhc
high-36 n1onth average should be calculated as of the
distributions, or retireme1U SJII1'ivm· benefits. shall
be a credil against this obligation." (Emphasis
date of dh•orce. rather than the date of retirement We added).
agree. See Grier''· Gr·ier, 7JI S.W2d 9JI. 932 (Tex.
1987) (holding that "in apportioning military retirement The divorce decree orders Husband to
benefits upon the dissolution of a marriage, lhe valuation purchase life insurance and name Wife as primary
of the communiry's interest in such benefits is to be based hencfic:iary for the benefit of the children as
on the retirement pay which corresponds to the rank additional child support, but there is no indication
actually held by the service spouse on the date of the that the life insurance is a reference to the SBP
divorce"); Caracciolo, 251 S.W.Jd at 572 (.. 16] annuity. The decree states that Husband must
(husband lcstificd that "high 36" plan was only retiremenl maintain the life insurance policy in full force and
option und calculated "high 36" based on average base effect as long as child support is payable under
pay during 36 months preceding. divorce). the tem15 of the decree.
Husband also contends that the denominator of this (*288) Under federal law, a member of the anned
fraction (bottom fraction above) should be Husband's forces (I) who is entitled to retired pay or (2) who would
"gross re1ircd pay on the date of his rctircmcnl11 ralher be eligible ["18] for reserve-component retired pay
than "active duty base pay of Member as of his date of except for the fact that he is under 60 years old is eligible
retirement." We agree that Wife is entitled to a to participate in the SOP. 10 U.S.C.A. §
percentage of Husband's dispo~ble n:tiredpay. 1448(a)(l)IA)-!B). The SBP applies to eligible 348 S.W.3d 281, "288; 2011 Tex. App. LEXIS 4909, "18
when they become entitled to retired pay or eligible for testimony at the hearing on lhe motion 10 correct or
reserve-component retired pay. ld. § /448(a)(2J(A)-(8). reform the judgment. Sec Tex. R. App. P. 47.1.
The eligible service member may elect lo pro\'ide an
annuity to a fom1cr spouse payable upon the member's B. FINAL DECREE OF DIVORCE
death. ld. .H /448(b)(l)-{3), 1450. Assuming that the
ln his second issue, Husband contends that the lrial
slatute applies to Husband, 9 he n1Ust. at the time of
court erred by allowing reference [•289) to the ORO to
making the election, provide "the Secretary concerned
be stricken from the di\•orce decree.
with a wriuen stalemcnt" selling fonh whether the
election is being made pursuant to court order or pursuant A party cannot appeal from a judgment to which he
to a voluntary wriucn agreement as part of, or incident to, has consenlcd or agreed unless there is an allegation and
n divorce proceeding nnd, if so, whether the voluntary proof of fraud, collusion, or misrcprcscnlation, Boufaissal
wriuen agreement has been incorporated in, or mtificd or ''· Boufaissa/, 251 S.W. .ld /60, 161-62 (Tex. App.--Dallas
approved by, a court order. /d. § /448(b)(5). A court 2008, no ptt.). Husband attested by his sib'IIOIUre that he
order means ''a court's linal decree of divorce, approved and consented to the divorce decree as to both
dissolution, or annulment or o court ordered, ratified, or form and substance. In the body of the decree, the trial
approved property settlement incident to such a decree .. coun found that the panics hod entered into a written
. ."/d.§ /447(13). agreement as contained in the decree and, to the extent
pcnniucd by law, the parties stipulated thai the agreement
9 n A person who has a former spouse upon
was enforceable as a contract. Despite this fact, Husband
becoming eligible [.. 19] lo participale in the
argues that he did not agree to the deletion of the
Plan may elect 10 provide an annuity lo that
language "as awarded in a Domeslic Relations Order" in
former spouse." Jd. § 1448(h)(2)(A). In addition,
section W-6 [ ..211 of 1hc decree because his attorney
''(a] person who is a panicipant in the Plan and is
did not initial this deletion. This argument is without
pro\•iding coverage for a spouse or a spouse and
merit. Allhough it is true that only Wife's attorney's
child (even lhough there is no beneficiary
initials arc listed next to the deletion in seclion \V-6, the
currently eligible for such coverage), and who has
same deleted reference appears in the corresponding H-6:
a fanner spouse who was not that person's former
Husband does not complain about the same deletion here
spouse when lhat person became eligible to
even though only Wife's initials and her attorneYs initials
panicipate in 1he Plan, may [subject to limitation]
appear next to it. It
elect to provide on annuily to that fonner spouse."
/d.§ /448(b)(J)(A)(i)(l)-(lJ).
II W-6 awards Wife a 50 percent portion of the
community sums as a result of Husbnnd's past or
Here, the agreed divorce decree docs not require
Husband to name Wife as a former spouse beneficiary to present employment H-6 awards Husband all
an SBP annuity.IO Because the DRO is not part of the sums us a result of Husband's past. present, or
panics' agreement and it imposes an additional obligation future employment. except that portion awarded
to Wife in the decree.
not included in the agreed divorce decree, the trial court
erred by including this obligation in the ORO. We sustain Because Husband consented to the decree and has
1his ponion of Husband's lirst issue. \Ve reverse and not made an allegation or fraud, collusion, or
remand for the trial court to remove the reference to misrepresentation, we overrule Husband's second issue.
Wife's st.ntus as fanner spouse beneficiary of Husband's
SBP in the DRO. C. A ITORI"EV'S FEES
!
LO The informal sculcmcnt agreement docs not In his third issue, Husband argues that the trial court
specifically address the SBP either. abused its discretion by a\\'arding sanclions against him
for filing a motion to correct or rcfonn lhe judgme01.
To summarize, we rc\'crsc lhe ORO for lhc reasons
staled and remand to [.. 20) rhe lrial court for funhcr In her response to the motion to correct or refom1 the
proceedings. Because of our disposilion of this issue, we judgment, \Vifc contends that the motion is groundless
need nol address Husband's contention that lhc lrial court and brought for the purpose of harassment. Wife requests
abused its discretion by excluding Husband's expert
Page7
348 S.\V.3d 181, *189: 2011 Tex. App. LEXIS 4909, **21
reasonable attorney's fees, expenses, and costs J,...22] HUSBAND'S COUNSEL: No, Your
chrough trial and appeal or, in the ahcmadvc, reasonable Honor. I got notice of 1500.
attorney's fees, expenses, and costs through trial and
appeal taxed as costs. Wife filed a separate motion for THE COURT; That's in her sanctions,
sanctions pursuant to Texas Rule ofCh·il Procedure /3 in Counsel.
which she conlends that the motion to correct or reform
HUSBAND'S COUNSEL: That's in
judgment is groundless and brought for lhe purpose of
harassment. Wife requests reasonable expenses, including
her sanctions motion.
reasonable attorney's fees, incurred in obtaining an order
THE COURT: And that's not before
for sanctions. At lhe hearing on the motion to correct or
the Court, she's not going on that. She's
reform judgment, Wife agreed to pass on her motion for
going on her response to your molion to
sanctions and proceed with the allomcy's fees requested
correct or refonn.
in her response to Husband's motion. The trial court
awarded Wife her auomcy's fees in the amount of$1,500 HUSBAND'S COUNSEL: Okay. So
and expenses in the amount of S4SO for a total amowtl of these--these are not going 10 be sanctions,
$1,950. they're going 10 be attorney's fees for what
purpose?
Husband's only contention on appeal is that the trial
conn erred in awarding attorney's fees as sanctions. WIFE'S COUNSEL: I'll dismiss my
However, the trial court's order does not state that it is motion for sanctions if you award the fees
awarding the attorney's fees as sanctions. Likewise, the today. Obviously, it's not necessary to do
exchange between the trial coun and the attorneys at the lhal. It's not set until sometime in July
hearing on the motion 10 correct or refonn the judgment any\\'ay.
indicates that the attorney's fees were not awarded as
sanctions.
Husband's only argument on appeal is that the trial
court erred in awarding Wife's attorney's fees and
expenses as sanctions. Because the record does not rcOcct
THE (*'23] COURT: We're dealing his interpretation of 1hc proceedings, his argument is
with a motion and your response. without merit.
WIFE'S COUNSEL: That would be Therefore. [..,.24] we m·crrule Husband's third issue.
my--
Ill. COSCLUSIOS
THE COURT: Let me sec yours.
She's asking for attorney fees, expenses We affirm the final decree of divorce and 1hc award
and costs. You want lo respond to that. her of attorney's fees and expenses in the order denying the
response, since we're nol going fmward motion to correct or refonn judgment. We reverse and
[•290) on her sanclions, she's going on remand the domeslic relations order for funher
the response. proceedings consistent with this opinion.
HUSBAND'S COUNSEL: Well, Is/ Adele Hedges
Your Honor, the only --
Chief Justice
THE COURT: Do you want to
cross-examine her on anything?
Page I
b•
LexisNexis{>)
Do11gl:l~ Wayne JOY!\KR, Appcll:wl "·Jundt(' .\lnrit: JOVNEU, :\ppcllec
No. 04-10-IJIJ56J-CV
COURT OF APPI-:ALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
352 S. H"3d 746; 20} I Tc<. .4pp. LEXJS 6731
August 24, 20ll~ Dcliverctl
Augusl 24,201 J, File-d
~UHSEQUENT HlSTORY:: R~!lc;:~scd f01· Publicntiot, fliT' rehearing is granted, We withdraw our npinion and
December 9, 2011. jlldgmcnl of April 6, 20 I I. nnd substitute this opinion mtJ
,.. i judgment
A PRIOR HISTORY: 1"1]
From the 40!::!h Jutlicial DJ~tricl Coun, Be:`` CotUity, Doug uppcals the Lrinl court's or~kr denying h!$
Texas. Trial Couft No. 200H~CI-2133 I. 1-ltmotab/c David petition !br hill or review to s-et a;;; ide an agreed amc.nde.d
A Bcrchclnumn, Jr., Judge Presiding. domestic rcl if all parties were alivc.' 1 THX. R. A flP. !'.
OPINION 7.J{a){/).
[•7471 HEVERSED & RENDERED BAChGIW\.1~0
Appellant Doug!Cis (Doug) \Vayne Joyner's motion Doug and Jandlc were di.,•orced in October .100 1.
Pagc2
352 S.W.3d 746, '747; 2011 Tex. App. LEX IS 6731, u2
The: divorce decree awarded Janelle a portion of Doug's trial court signed an order on June 22, 2007, denying the
militnry retirement bcncfito;;. and stated that her Ponion motion for new trial.
would be ''more particularly defined in a [*748)
Domestic Relations Order. •• The court subsequently Doug retained new counsel and filed a pctilion for
entered a [)omestic Relations Order (lhe DRO) awarding bill of review in December 2008 attacking. the jurisdiction
Janelle 50% of the community share of Doug's of the trial coun to modify the property division in lhe
I hypothetical retired pay, adjusted for cost of living ORO and divorce decree. After a preliminary hearing, the
adjustments.2 Afler Doug retired from active service in trial court denied Doug's petition because Doug did not
j December 2005, the Department of Finance and establish the clements of a bill of review: that another
:I Accounting Services (OF AS) mistakenly began paying party, through fraud or acciden~ prevented him from
Janelle 50°/o of Doug's actual disposable retired pay, nn asserting a meritorious defense. See EastiiJ v. Dial, 288
umount that was much (' '3] higher than what she wus S.W.3d 491, 497 (Tex. App.--San Alllonio 2009, pet.
awarded in the divorce. denied). The trial court also found that Doug was at fuult
or negligent by failing to pursue other legal ('*5]
2 The divorce decree described Doug's remedies. Doug's appeal followed.
hypothetical retired pay as '(t]he disposable
n10nthly retired pay of an E-7 with 16 years, 3 BILL OF REVIEW
months of accrued crediaablc military service at
date of di\'orcc.'' The trial court denied Doug's petition for bill of
rC\'iew because he failed to satisfy the fonnal
Doug, who was living in Arizona at that lime, requirements for a bill of review. Doug argues that if the
retained local counsel to correct the mistake. Doug's record reveals that the trial court lacked jurisdiction to
attorney filed a motion to clarify the ORO. In July 2006, enter the Amended DRO. he need not mecl lbe fom1al
DF AS sent a lc11er to Doug and Janelle acknowledging requirements for a bill of review. \Ve agree. If a direct
that it had overpaid Janelle for six months. DFAS also attack seeks 10 set aside a judgment because lhe lrinl
stated lhat it had established a debt against Janelle's court lacked subject mauer jurisdiclion, the petitioner
future payments and credilcd the amount of her debt to need not satisfy rhe formal bill of review requirements for
Doug. In August 2006, the ponies entered into a Rule II the court to consider d1e jurisdictional challenge.
agreement (the Agreemcnt)l in which the parties agreed Sweetwate1· Austill Props. LL.C. ''· [•749] SOS
to the entry of an amended domestic relations order that Allia11ce, llu·.. 199 S.U,3d 879, 889 (Tex. App.--Au.rti11
was similar to the original DRO but provided that 2009. pet. Jellied): see also Middleton 1'. Mw:ff. 689
Janelle's interest was 37"/o of Doug's disposable retired S. W.ld 212. 213 (Tex. 198S) (per curiam) {op. on motion
pay. In February 2007, the court signed an Amended ror reh'g). We. therefore. tum to the question of whether
Domestic Relations Order (the Amended ORO) the coun lacked jurisdiction lo enter the Amended DRO.
incorporating the lenns of the Agreement
Jt!RIShiCTIOS
3 The Agreement was signed by the judge.,
Janelle, Janelle's auomcy, and Doug's anomey, Doug ar-'llcs that the Amended DRO is void because
but not Doug. il modifies the substantive division of property fron1 the
divorce decree and ORO, which provided un
In March 2007. Doug's attorney moved for a new unambiguous award to Janelle of Doug's military
trial because the Amended ["4] ORO did not address retirement benefits.
Doug's DFAS credit and impennissibly changed the
terms of the divorce decree. TI1e trial court granted the A. Stondard of Review & Applicable Law
motion on the condition lhat Doug pay Sl,200 for
Whether a trial court [u6] has jurisdiction is a
Janelle's attomey's fees by June 7, 2007. The order slated
question of law that we review de novo. Tex. Natw·al
that 11 if the auomcts fcc payment condition herein is nol
Res. Couservatioll Comm'n "· JT-Da1ry, 74 S.lf'.3d 849,
timely mel, the Motion for New Trial is denied." Doug's
855 (fe.t. 2002); Guei'DI"tl v. H.E. Butt Grocery Co .. 81
counsel thercaflcr withdrew, and Doug alleged thai he
S.W3d 550, 551 (Tex. App.-Sa11 A11to11io 2002. pet.
was never aware of the conditional motion for new trial.
dc11ied). The issue of jurisdiction in this case turns on
When Janelle's attorney's fees were nol timely paid, lhc
Page)
352 S.W.Jd 746, •749; 2011 Tex. App. LEX IS 6731, ••6
whclhcr the trial coun modified or clarified d\C DRO effect to the entire decree." Shanks " Tregdwav /JQ
when il enlered lhe Amended ORO. s w ld 441 147an 200!1. "'[J]r lhc decree, when read
as a u•hole. is unambiguous as to the propeny's
Any pany affected by n divorce decree may seck to disposition. the court must effectuate the order in light of
enforce the decree by filing an enforcement action. TEX. the literal language used."' Jd, (quoting Wilde''· M1trcllie,
FAM. CODE ANN.§ 9.00l{ii) (Wcsl 2006). The !rial court 949 S.IY.Zd 331, 332 (Tex. /997) (per curiam)). However,
that rendered the divorce decree generally retains the if the decree is subject 10 more than one reasonable
power to enforce or clarify the property di\'ision interpretation and is therefore ambiguous, coons should
approved or or conU!incd in lhc decree. ld. §§ 9.002, apply lhe conSlruction lhal correclly applies lhc law. /d..
9.006(a}, 9.008. Jr a court finds lhal u•• original ronn or ''[W)hcthcr a divorce decree is ambiguous is a question of
the division of property is ambiguous or not specific law," /.d..
enough to be enforceable by contempt, the court may
cnlcr a clarifYing order to enforce compliance wilh the B. Discussion
original division orlhe propcny.ld. § 9.008(b). Howc\'er,
"[a]n order ... that amends. modifies, alters. or changes Doug and Janelle's divorce decree prO\•idcs that
the actual, substantive di\·ision of property made or Janelle is enlitlcd lo "[a) portion or [Doug)'s bencfilS in
approved in a final decree of divorce ... is beyond the the military pension plan arising out of [Doug's]
power of the divorce court and is unenforceable.'' /d. employment with the military, that portion being 50% of
["'7] § 9.007{b); .251 S.W.3d 568. 572-73 (Tet. App.··Sall Antonio 2007.
[*750) II [*"8] also provided lhat she was cnlillcd 110 pel.) (upholding subsU!nlially similar language
to a share, attributable to the communhy interest. of any describing a legally correct formula); see also Berr;1' 1•.
cost of li\'ing adjustments. The panics do not dispute that Berry•, 647 S.W.2d 945. 947 (Tex. 1983) (appro,·ing an
Doug re[ired from active military service in December almost-identicnl formula for determining the
2005. after 275 creditable monlhs or miliU!I)' service, and non-employee spouse's community-propeny award).
staned receiving retirement pay the following month. Therefore, the 1rial coun was wi1hout jurisdiclion to
Under the ORO, Janelle therefore was entitled to modiiJ the ronnula. Sec TEX. F.m. CODE ANN. §
35.4545% of SI ,215, Doug's adjuSied hypolhelical rclired 9.1107(b); Pean:v. 884 S. W.2d al 514.
pay. The Amended ORO, however, cnlillcs Janelle lo
37% or lhc $2,206 in disposable relired pny lhal Doug 4 From [**9] lcfl lo right, the first operand
was entitled 10 as of the date of his retirementS Janelle's represents Janelle's half interest in the communily
award of Doug's military retirement benefits under the property; the second represents the community
ORO is nol ambiguous because il is expressed wilh share of Doug's retirement benefits; and the third
mathematicnl certainty. See Cal'acciolo ''· Caracciolo, rcprcscnlS Doug's hypolhclical relired pay.
:::
,·.,
·••I
Page4
352 S.W.3d 746, *750; 2011 Tex. App. LEXIS 6731, ''9
5 It is undisputed that Doug's disposablc_retircd conferred by consenl or waiver}; see aim Met=ger ,._
pay in 2006 was $2,206. According to the formula Mcr:ger, No. 01-04-00893-CJI. 2007 Tex ..4pp. L/Dr.1S
in the original DRO. Janelle was entitled to only 4487. 1007 WL 1633445, at *6-7 (/'ex. App.--llousto11
19.5272% of the disposable retired pay that Doug {J.u Di.•t.J June 7, 2007, pet. denied) (mcm. op.) (holding
was entitled to as of the date of his retiremenl that the parties' agreement did not give the court
il :.,
Janelle argues that this case is distinguishable from
the authority Doug relies upon because Doug entered into
jurisdiction in a clarificalion suit to modify an
unambiguous divorce decree lo reflect the parties'
agreement).
an enforceable Rule I I agrccmcnl to increase Janelle's
award in exchange for other consideration. Moreover, it 6 Our opinion should not be construed as
is undispUicd that il was Doug, not Janelle, who soughl affecting any contractual riglus that either Janelle
clarification of the ORO. In eiTec~ Doug is now or Doug might have under the Rule II agreement.
aprcaling the modification that he initially sought and See Metzger, 2007 Tex ..4pp. LEXJS 4487, 2007
then agreed to nearly four years ago. Although we li'L /63345, at *7.
acknowledge that these facts appear unfair and create a
waste of judicial resources, the legislature has detem1ined COSCLUSIOS
thai the trial court is without power to modify an
The trial court lacked jurisdiction to modify the DRO
unambiguous property di\'ision conlained in a divorce
ond enter the Amended ORO. Therefore, Doug did not
decree,6 See TEX. FA.II. CODE ANN.§ 9.007(b) (providing
need to comply with the bill of review requirements to
that modification of [UIO) propeny division in divorce
challenge subject matter jurisdiction, and the trial court
decree is outside the power of the divorce court); Tex.
A.•.•'n nf Bu•. v. Tex. Air Cnntml Bd.. 852 S.ll'.2d 440,
erred in denying the bill of review. More importantly, we
["751] grant the rcliefthe trial cnurt should have ["II]
444-45 (/'ex. 1993/ (holding that subject matter
granted and vacate the Amended DRO.
jurisdiction cannol be wai\'cd); /11 1·e A.D.D.. 974 S. W2d
]99, 303 (/'ex. App.--So11 Antonio /998. 110 pet.) Rebecca Simmons, Juslicc
I ~-)
(explaining that subjecl maucr jurisdiction cannot be
,,,I
Pagt: I
LexisNexisOC'
GEORGE PAYTON SHANKS, l'l':TITIONEH v. !>:ENllA CAROLYN (SHANKS)
TREADWAY. RESPONDENT
NO. 110-1325
SUI'llEME COURT 01' n:XAS
110 S. 11-:Jd 4.f.J; )U(J3 Tex.. LEX IS 87; 46 7£•~-.:. Sup. J. 8.ffl
AJlril 24, 2002, Argued
.June 26, 2003 1 Delivered
PRIOI! IIISTOllV: [>+IJ ON PETITION FOR 1. H;tdtground
REVIFW FllOM THE COURT OF APPEALS I'OR
TilE FII'TI! DISTRICT OF TEXAS. Kcmla Carolyn Treadway i.i..nd GcoJ·gc P:.iyton
Tremhmy \\ Shank.1·, 1 }() S. WJd }, 2000 Tex. "I PI'· Sh,mks 11\urdcd in 196~. George started WlHking for
LEXJS 7945 (Tex. Apv Dallas. ,\'m·. 17. 2000) Amcric:m Airlines in \966 and began particip<~ting in
Amcrit:: retirement in 1998.
JlJD(-;J,:s: JUSTICE O~EILL delivered the (lpininn of
the Court. Generally. ;:~n employee parlldpntiug in a
ddiued benefit plan will rccci\'C a future benefit
QflJ~IO:"i BV; Harriet O'Neill hasc:d on a specified formula thai often takes into
nccl1Unl earnings, length of service,. or both.
OI'TNTON Uruwu, Comtlllml. An lmerdiscipliwu:`` Anu~\'sis
Dfllw DNision o[Pe11sio11 Bc11ej'il.s in DiliOJ'Ce and
l *-44-1] The is.'luc in this C;).S.C is lhc proper Po.H·.Judgmenl PiirlifirJI/ Acfions.' Cure:.1· Jot Jlw
lJJtcrptc\Ullun of a 198:1 di\'orcc dccrc:c tim~ div[dcd, ll!cquiLies in Hf!ny 1', Ben}', 37 BAYLOR L
anHmg other asscls, relircmelll benefits stemming !lorn REV. 107, 115-16 (1985). A defined contribution
one spouse's employment bol!t dunng and after lhc plan, on the other hand, il' funded by conlributions
marriage. The trial court held thtH the ["'445J divorce of a S)1cci lied amount thai are invested or placed
dccrcl.! fl\\·ardcd the nun-employee spouse u specific 111 a trust fund. and the employee is cnlillcd upon
percentage of the rctin.:mcnt b.;n~flts valued ar d1c d;.Hc of rctircrnclll to those contributions plus the t:arnings
Jivorcc. The court of appcalf. reversed, cnndutling t.hut thercun. !d. en II J.
the 1.kcrcc Ulmmbiguously nwardcd the nnn-cmployee
SjJOliSC 11 JlCfCCIHngc of the the bell d)!_$ Oil
luU\J Ul11dU11l oi' Gt·urgc nnd Kcnda divorced m 1981. Jn the div()rcc
the date or retirement. 110 .\~ W3d 1. 2000 Tex. App. deCJcc. the districl court awitrdcd Ketlda a lwcnty-fi.vc
LEXIS 79.fS. We hold that the court of ~1ppcals correctly pcrcc:.·m jntcrcsl in Gcorgc1S n.::litc.trtcnl benefits:, m1d
inteq)rctcd lhc decree. Accordingly. we affirm the coun neither party appealed the ju~g.tilC~IL The relevant
of appeals' judgmem. portious of[HJ] the decree provide:
Page 2
110 S.W.3d 444, "445; 2003 Tex. LEXIS 87, "3;
46 Tex. Sup. J. 840
The Coun finds that [George] has earned ~crtain LEXIS 7945. The coun held that lhe divorce decree
employee benefits under a pension plan arising out of unambiguously awarded Kcnda "a twenty-five percent
past employment as an employee of American Airlines. interest of the 'total sum or sums paid or to be paid' from
[George's] [ 00 5] pension plans and [did] not limit her
[Kenda] is awarded a "pro-rala intcrcstu (as award to a percentage of the benefits accrued in the plans
hereinafter defined) of any and all sums received or paid prior to the divorce." ld at 6, 2000 Tex App. LEXIS 7945
lo (George] from such pension plan and such sum or al • 11. The· court therefore remanded the case to the
sums shall be payable to [Kenda] if, us and when paid by district court to enter a revised QDRO awarding Kenda a
American Airlines or the trustee of such plan to [George] twenty-five percent interest in the entire amounl to be
as pension or retirement employee benefits existing paid to George as retirement benefits. We agree with the
because of[George's] employment appellate court's intcrpretntion of the decree and therefore
alfmn the court of appeals' jud!,'ltlent.
IT IS DECREED !hat [Kenda's] "pro-rata interest"
shall be defined as that sum o(money equal to 25% of the II. Dh·ldlng Rellremenl BeneliiS
total sum or sums paid or to be paid to [George] from
such pension or retirement plan. We begin with an overview of the law that was in
cffccl in this area at the time the decree was entered to
dernonslrate the complexities involved in dividing
retirement benefils upon divorce. Our decisions focused
IT IS FURTHER DECREED that all remaining
first on the recognition of pension interests as community
right, tille and interest in and to such American Airlines propeny rights and lhen on the separate issues of
pension and/or retiremem plan shall be and is hereby set
apponionmcnt and valuation of benefits. In Cea,·leJJ "·
aside to [George].
Cem·Jer, we considered whether future pension benefits
On March 9, 1998, approximately two mon1hs before constitute community property rights subject to equitable
his scheduled retirement dace. George filed a Motion to di\'ision upon divorce. 544 S.ll'.2d 661, 663-64, 20 Tex.
Sign Qualified Domestic Relations Order ("QDR0 11 ). See Sup. Ct. J. 102 (Tex. 1976). We approved of the
I
I TEX FAM. CODE § 9.10]. In his motion, George
proposition thai even "nonvcstcd 2 pension rights arc ...
I proposed that !he court calculate [••4] lhe value of bolh a contingcnl in1crcst in propcny~" and nlo the cxlent thai
the defined benefit and defined contribUiion plans as of [,...6] such rights derive from employment during
the date of dh•orce in awarding Kcnda her t\venty-five covenure. they comprise n community asset subject to
percent interest. In response, Kenda asserted thai res division in a dissolutiQn proceeding." /d. (quoting Brow11
1'. Brown, IS Cal. 3d 838, 126 Cal. Rptr. 633, 544 f'.2d
judicata barred the attempted collateral attack. She
requested that the district coun sign her proposed QDRO, 561, 561 (Cal. 1976)). We also discussed the difficulty of
awarding her twenty-five percent of the tolal amount of computing lhc present value of such a contingent interest
the benefits to be paid to George. and approved the method of making the award of the
non-employee spouse's community interest 11 effective if,
The district court signed two QDROs - George's as, and when the bencnts are received by the (employee]
QDRO di\•iding lhe defined benefit plan valued at the spouse." 544 S. W.1d a/666.
date of divorce and Kenda's QDRO dividing both plans
valued as of the date 1hat George actually rcceh•cd 2 Pension plan bene fils become vested when the
["446] payment In light of lhc inconsistent order.;, employee has an unconditional ownership interest
George moved for reconsidcr.uion. The coun granted in them; thai is, the employee has the right 10
George's motion, ''acated Kenda's QDRO, and entered receive the accrued benefits upon retirement
another QDRO valuing the defined contribution plan al whether or not he is working for the same
the date of divorce. Kenda appealed. employer. Brown, 37 BAYLOR L. REV. at 119.
In comrast, pension benefits arc "matured" when
The coun of appeals reversed the judgment, lhc employee is entitled to "immediate collection
concluding that the trial court's QDROs impermissibly and enjoyment.'' ld.
nltcrcd the substantive division of propcny made in the
original divorce dccree.IIO S.II'.3J at 3, 1000 Tex. App. The 1983 case Bei'IJ' "· Bei'IJ'. 647 S. W.ld 945, 16
Tex. Sup. Ct. J. 166 (Te_,, 1983), currently go\'ems the
Page 3
110 S.W.3d 444, '446; 2003 Tex. LEXIS 87, "6;
46 Tex. Sup. J. 840
division of retirement [U7] benefits. However. w.hcn the ("8) Ill. Interpreting the Dlvor552 S.W.2d 422, 20 Tex. Sup. Ct. J. Notwithstanding the state of the law at tbc time the
334 (Tex. 1977). provided trial courts the fonnula to use divorce decree was entered, this case docs not involve a
in determining the communil)• interest in reliremenl direct appeal, and we must interpret the decree to
benefils and the non-employee spouse's share of that delemline nol what the triol court should have done but,
interest. The Court used a fraction to apportion the if possible, what dte court actually did. When interpreting
communiry inlerest: the number of months married under a divorce decree, courts apply the general rules regarding
the plan divided by the total number or months employed construction of judgments. Wilde ''· Murchie, 949 S. Jll. 2d
under the plan at the time of retirement. Tuggal"l, 552 3JJ, 332, 40 Tex. Sup. Ct. J. 910 (Tex. 1997) (per curiam)
S. W.2d at 424. That fraction was multiplied by the (citing Constance v. Co11stance, 544 S.l"2d 659, 660, 20
non-employee spouse's ·~ust and right'' share in the Tex. Sup. Ct. J. 106 (Tex. 1976)). Judgments should be
contmunity inlercst as dclcnnincd by the trial court (oficn conslrued as a whole to harmonize and give effect to the
fiffy percent) and then multiplied by lhe value of the entire decree. CorrslaiJce, 544 S.IJI.2d al 660. "If the
bencfil33 Tex. Sup. Ct. J. 687 (Tex. /990). 1r the decree is
numbers for the denominator of the community interest ambiguous, the court should review the record along with
fraction or the value of the benefits, which could not be I he decree to aid in interpreting the judgment. Wilde, 949
dc1cm1ined until retirement. S. W.JJ at 332. In addition, if a judgment is ambiguous
(**9) - that is, subject to more lhan one reasonable
3 The Bel'l)' decision ahercd this rormula. 647 interpretation - couns should adopt the construction that
S.11'.2d at 947. Although the Coun in Beny correctly applies the law. Ma,·G•·egol'\'. Ric/1, 941 S.IY.2d
expressly declined to overrule Taggm·r with 74. 75, 40 Tex. Sup. Ct. J. 298 (Tex. 1997) (per curiam).
regard to dte apportionment fraction, it As with other written instrumcnls, whether a divorce
nevertheless effected a change in the fraclion's decree is ambiguous is a question of law. Coker ''· Coker,
denominator 10 the number of months employed 650 S.W.2d 391, 394, 26 Tex. Sup. Ct. J. 368 (Tex. /983).
unc.Jer the plan at the time of divorce. Jd.; see also
G1·ier v. G•·ier, 731 S.W.2d 93/, 932, 30 Te.<. Sup. The decree in question identifies George's pension
Ct. J. 416 (Tex. /987). BmJ• altered the valuation plan as "arising out of past employment, 11 but then states
portion of the formula as well, requiring the value that Kenda is entitled to 11 3 'pro rata interest' ... of any
of the benefits to be calculated at the date of and all sums received or paid to [George] from such
divorce lo avoid invading the employee spouse's pension plan . . . ." The decree also defines "pro rata
separate propcny. 647 S.W.2d at 947. It should be in1eres1" as "25% of lhc total sum or sums paid or to be
noted that serious concerns hD\'C been raised paid to [George) from such pension or retirement plan."
regarding the Berry formula's failure to accounl TI1e decree does not set out a specific Taggan..Jike
for postadivorcc increases in the value of fonnula to be used in calculating Kenda's inlerest.
retirement benefits attributable· to community
propcny contributions to 1he plan. Brown, 3 7 The court of appeals concluded, and we agree, that
the decree is unambiguous, and Kenda should receive
BAYLOR L. REV. at 152-62. In addition, the
twenty-five percent of George's total retirement bencfilS.
problems associated w1th valuing benefits differ
depending on the type or plan heing divided. /d. at The phrase "arising out of past employment as an
112-17, 152-62 (discussing the differences employee of American Airlines" (emphasis added} does
between defined benefit plans and defined not render the decree ambiguous, as George argues;
contribution plans). J-Jo\\'C\'er. the facts of the case rather, [*"'10] it merely serves 10 identify more
currently before the Coun do not provide us lhc specifically the property that is being divided (i.e .•
.I opportunity to address those concerns in this George's retirement plan). 4 ('448] As noted by the
opinion. courl of appeals, the lrial court awarded Kenda an interest
Page 4
110 S.W.3d 444, *448; 2003 Tex. LEXIS 87, **10;
46 Tex. Sup. J. 840
of all sums received 'under such piau, not an intc:rcsl of 1hcreforc urges us to interpret the decree to award Kenda
presently accrued bcnctils under such plan. //0 S. W.3J at an interest in only the community portion [UJ2j of the
6, 2000 TBen,•, 647 S.W.2d at 947. S This lension dcmonslratcs the
lwcnty·five percent inlcrcst in tbe total amount (whatever difficulty inherenl in di\'iding pension plans that involve
thai might be) lo be paid to George under the plan. both separate and community property and indiea1es that
interpreting such a division is not as simple as presuming
4 Although George's relitcrncnl benefits include a lack of intent to divide separate property. 6
both a defined benefit plan and a defined
contribulion plan, lhe decree referred to them as a 5 We reiterate that e\'en after Berl";&' was decided,
single plan. Because this is not a direct appeal, it concerns about in\•ading separate property
is unnecessary to address at lcnglh the myrind remained. Brown, 37 BAYLOR L. REV. at
differences between the two types of plans. 152-62.
Nevenheless, trial couns should take into serious 6 We recognize lhe imponance of safeguarding
consideration the kind of plan al issue when individuol propcny rights, bul significonlly, il was
dividing and valuing retirement benefits. See not until 1977 in Eggemeyer that this Court
supra note 3; Brown, 37 BAYLOR L. REV. al expressly and unequivocally held thai a court
134-36, 156-62. cannot divest a spouse of his or her sepamtc
propeny upon di\'orce. Eggemeyer, 554 S. W2d at
[**I I] Viewing the division of the rlan benefits in /4].
light of the decree as a whole, the fact that the court
awarded Kenda only a twenty-five percent interest in the [..,.13] Such an analysis is also problematic because
plan also supports our interpretation. Trial judges musl the fnct that the district court erroneously (*449] applied
carefully review all community assets in making a "just the law when il entered the divorce decree does not aher
and right" division of those assets. and the retircmenl lhe decree's plain language. ln Bcu:ter. which was decided
benefits \\'ere one of the assets considered in this case. after Ben·y. 1he divorce decree in queslion awarded the
See Busby 1'. Bushy, 457 S.lrld 551, 555, 13 Tex. Sup. non·employee spouse 11 37 1/2% of [the employee
C/. J. 485 (Tox. 1970). Given the complexities involved spouse's] gross benefits, if, as and when he received
in dividing this type of asset. perhaps the trial court them. TI1e decree also provided dtat [lhe non~employee
inlended to achieve an overall just ond right division by spouse] was to receive 37 1/2% of the total benefits that
awarding Kenda a lesser interest in the total value of the (the employee spouse) received each month.'' 794 S. IV.2d
plan at retirement rather than a grcalcr interest in a <1/ 763 (emphasis removed). We held that "this language
smaller portion of the benefits. We simply cannot know unambiguously pro\'ided that [the non-employee spouse]
with certainly becaus~ 1he decree was never appealed. In wns to receive 37 1/2% of lhc total retirement benefits
any event. our responsibility is to conslruc the decree as received by [the employee spouse] each month, including
written. any pOSI· divorce incrcoscs. 11 /d. 7 We therefore enforced
thl! decree as written even though it conflicted wilh
It is true, as George points oul. that Texas law Berry. ld. Similarly, we mm;.l enforce the decree as
prohibits coons from divesting spouses of their separale written in this case even though it conflicts with Taggan.
property. Eggellwyer ''· Eggenu.•ye1·, 554 S. JY.2d JJ7,
139-40, 20 T110 S.W.3d 444, •449; 2003 Tex. LEXIS 87, .. 13;
46 Tex. Sup. J. R40
court of appeals' conclusion in lhis case that the S.ll'.ld 675, 679 !Tex. App.-E/ Pam 1993, 11ril denied):
phrase "if, as, and when received'' is "a lcnn of art see also McGe!Jee v. Epley, 661 S.ll~2d 914, 925-26, 17
evidencing an inlentto value a pension plan at the Tex. Sup. C/. J. 45 (Tex. 1983) (slaling lhat clarificalion
time of receipt rather than at the time of divorce." orders cannot be used to effect a substantive change in a
110 S.W.3d nl 6, 2000 Tex. App. LEXIS 7945. In divorce decree after the trial coun's judgment becomes
Cearley, when we recognized contingent pension final), George's remedy for a substantive enor of law by
benefits as community property rights subject Ia the trial court was by direct appeal, and he cannot now
division upon divorce, we acknowledged that "it collaterally auack the judgment. Alapco, l11c. v. FmTest,
'i
,-I
'I
may be necessary in n1any instances for the
judgment to make the apponionmenl lo the
nonrctiring spouse effective if, as, and when the
795 S.Jl~1d 700, 703, 33 Tex. Sup. C/. J. 303 (Tex. 1990);
Baxter, 794 S. W.2d ol 762; SliltsOII ''· Slitrson, 668
S.W2d 840, 841 [••IS] (Tex. App.-San Antonio /984,
'
benefits arc received by the [employee] spouse." wril refJ 11.r.e.). The district coun was therefore without
544 S. W.2d a/ 666, The lcnn lhus rcOcciS the au~tority to enter a QDRO altering lhc tenns of lhc
contingent nature of the community's interest in decree by limiting Kenda to a twcnly-five percent interest
the retirement benefits and not necessarily the in the bcncfiiS that had accrued under the plan at the time
value of that interest of the divorce.
(UJ4] Kcnda argues that the district court cannot IV. Conclusion
change the substantive division of property made in the
original decree. We agree. While the court may enter a The divorce decree is unambiguous and awarded
..clarifying order'' to enforce compliance with an Kenda Treadway 1wemy-five percent of George Shanks's
insullicienlly specific decree, TEX. FAM. CODE § tot.al relircrncnl bencfiiS. The coun of appeals was eonecl
9.008(h), a court "may not amend, modify, alter, or in reversing the district coun's judgment, and we
change tl1e division of property made or approved in the thcrcrore affinn lhc judgment of 1hc coun of appeals.
decree of divorce." /d. § 9.007(a). The original decree in
llarriel O'Neill
this case is unambiguous, and the trial court had no
authority to enter an order altering or modifying 1hc Juslicc
original disposition ofproperty./J.; Pierce,,_ Pie1·ce, 850
Page I
LexisNexis®
KAIUW H. STATJN, l'lalntirr- Appellant'"- DEVTSC\1£ HANK NATIONAL
TJtUST COMPANV 1 as Ttustcc 1 ftll"lltcdy ~mowu 1ts llnnkcrs Trust Company, us
Trustee fur Ccl'ttficnlc Buldcrs or Saco I; JP J\IOHGAN CHASE FlANK~
NATIONAL ASSOCIATION, as Mnt·t~•gcc; EMC ~IOIITGAGE COHPOIIATION,
as Foruu:r :\lurt~a~cc. DcfcL1tlants- Appellees
7\n. I.J·21111l0 Summary Calendar
UNITED STATES COUI!T OF ,\I'I'EALS FOR THE FIFTI1 ClllCUI"l"
11114 (i..l'. App,J.EXIS 2406-f
Occembu 19~ 20J 4. Filed
:'\OTIC£: PLEASlo REFER TO FEDERAL IW/.ES
OF APPELLAII': PROCEDURE RULe 32.1
GOVERNING TifF. CTTATION TO UNI'UBLISIII',D * n"' l'msuanl to jJH CJH. 1?. 47.5, the courL hns
OPINIONS. dclcm1i nc.d thnt this tlp_inion should not be
published nnd is not prcccdcnl .cxc(!p_t under .the
PRIOH HISTORY: [*I] Appeal trom the UniteJ limited circumslanccs SCl ronh in 5T!I CJR. R.
SUHCS Difitricl Coun ror the SoHthc:m DislrtCl or Texas. 17.5..1.
USDCNo. 4:13·CV·3632.
rn thi~ appc-<~l of a Ruh:: 12(b)(h) dit.:mis~nl of various
claims chulkng_ing a forecJosurc, lhc Phlintirr comcnds
COUt\SEL: KAREY BEIL\!ARD STATIN, Plaiuti[[- that the amoum at stake in Lhis lawsuit j,., insufllcicnt lo
Appellant, Pro sc, 1-luustou, TX. wan-ant removal to fcdcml conn on divcr:.::ity grounds.
For DEUTSCIIE BANK NATIONAL TRUST L
COMPA1\-'"Y. as Tntstet!. fOrmerly known us Banker;-;
In lat~ November 2013\ Karcy Smtin lih:d suit in
Trust Company, as Tntstec for Ccrliticalc Holders ()[
Texas state .court llgninst Dcmsche Bimk, JP Morgan
Saco I, JP MORGAN CHASE BANK NATIONAL
Chas~. a11t.l EMC Mortgage Corpomti"on. Statln,
ASSOCI AT!ON, n> Mortgagee. EMC MORTGAGE
2013 WL 3559145,
201 3), but Defendants cited nothing ro suppon their "3-4 (W.D. Tex. lui)' I I, 2013) (noting that couns "rcl[y]
S87,SOO valuation.' on county lax a.~sessors' appraisals to determine lhc value
of properly in [amount in controversy] cases"); G01•ea v.
The Supreme Coun recently decided that JPMorga11 Chase Ba11k, N.A .. 2010 U.S. Dist. LEXIS
defendants do not need to attach evidence 130940, 2010 WL 5140064, •4 (S.D. Tex. Dec. 10, 2010)
supporting the alleged amount in controversy 10 (explaining why "the appraisal value from the Harris
the nolicc of removal. See Dart Cherokee Basin County Appraisal District" can '1detennin[e] the amount
Operati11g Co., LLC v. Owe11.t, S. Cl. . 20/4 in controvcrsyn). Instead, the Defendants pointed to their
U.S. 1.EXJS 8435, 1014 JVL 7010692, at 0 6 (Dec. allegation in the Notice of Removal that the house had a
15, 2014). Thai has long been our approach. See value of $87 ,SOG. The dislricl court denied the Motion ro
Gebbia v. JVai-Mart Store.<, lire.. 233 F.Jd 880, Remand, holding only that "[a]ccording to Defendants.
882-83 (5tlr Cir. 20110). Dart Cherokee also the current fair market value of the Property is assessed at
explained, however. that once the notice or $87,500, which exceeds 1he federal jurisdictional amount
removal's asserted amounr is ''challenged," the of S75,0GG." The district court proceeded 10 the merits of
parties "musl submit proof and the court [•3] Statin's claims, which it ultimately dismissed.
decides, by a preponderance of the evidence,
whether lhc amounl·in-conlroversy requirement II.
has been satisOed." J0/4 U.S. LEXIS 8435, J0/4
JVL 7010692 at •5 (citing 28 U.S.C. § Starin filed this appeal. In addition 10 contesting lhe
1446(c)(2)(B)). Al~10ugh this discussion was district court's ruling on the merits. he also challenges for
likely not made with lhc procedural posture of this lhc Orst lime on appeal the federal court's subject ["S]
case in mind, it also docs nothing to cas1 doubt on matter jurisdiclion on the grounds thai the
the prior case law cited below that provides a amount-in-conlrovcrsy requirement was not satisfied at
procedure for 1his situation when the amount is the time of removal.
first challenged on appeal.
Defendants contend thai they satisfied the
Stalin lhcn filed a Molion to Change Venue. Citing nmounl·in-controvcrsy requirement because. in their
lhe Texas Ci\•il Practice &. Remedies Code, Stalin argued Notice of Removal, they assened a fact supporting the
that venue was proper in stale court. The motion funher amount in controversy and it went unchallenged by the
argued that "Texas has a legal right 10 litigale issues Plainti IT in the district coun. 2 Because subject matter
arising out of its Courts, and its lands" and concluded that jurisdiction can nC\'cr be waived, however, a plainlifT
''defendant is improper, and premature in bringing his may challenge the amount·in-controversy requirement for
claim and his 3J1SWer to this Honornble Court.'' Statin the firsl time on appeal. See Larremore \'. Lykes Bros.
made no mention of diversity of citizenship, the amount Inc .. 454 F. App'x 305, 306-07 (5th Cir. 2011) (citing
in controversy requiremenl, or uny other federal law. Williams''· Best BIIJ' Co., Inc., 269 F.Jd 1316. 1319-21
(I Jth c;,., 200/) (citing U11ilcd Food & Commercial
Both the Defendants and the district court treated Worker.f Unio11, Local 9/9, AFL-C/0 \1, CclllerMark
Stalin's filing as a motion to remand the case to state Props. Meriden Squal'c, l11c., 30 F.3d 298, 303-06 (2d
court. The Defendants addressed the amount in Cir. /994) (e:"plaining the concerns that underlie the rule
eonlfuversy requirement by arguing thai "Plainliff docs and "declin[ing]lo hold lhal the [plainrifl] ha.< waived irs
Page 3
2014 U.S. App. LEX1S 24064, •s
right to challenge for the first time [on app"!l1] the After it receives any relevant evidence from both
defendants1 assertion of the amount in controversy set sides. the district court can assess whether the Defendants
forth in the notice of removal 11 ))). The problem when the ha\'e met lheir burden of demonstrating by a
issue is first raised on appeal with an insufficient preponderance of the e\•idence that the amount in
evidentiruy record is that the removing party never had controversy was satisfied al rhe time of removal. See 18
notice of a need to produce evidence in the district court USC ,ii /446(c)(2)(B). Our determinalion !hat remand is
and cannot now provide such evidence to lhe appellate warranred for development of a factual record on lhis
court Courts, including ours, confronted with this issue is also supported by !he fact, of which we can take
situation have thus remanded the case to the district court judicial notice because it comes from a public rccord,l
so the defendant can submit evidence to suppon iLS !hat the county appraisal for !he property at the time of
claimed valuation (*6) of the case. See Larremore, 454 removal was only $62,392. See Real Property [•7]
F. App'x. at 307 ("[TI1e p1ainti!Ts] sought [only] Account lnfonnation, Harris County Appraisal District,
declar.:uory and injunctive relief . . . Due to the ai'Qi/able at hup://www.hcad.org/ (appraisal as of Jnn. 1,
incomplete nature of the faclual record, we cannot 2014).
determine if lhc amount in controversy exceeds the
jurisdictional requirement. ... [W)e think lhat a remand 3 "An appellate court may take judicial nolicc of
for development of the record and dctennination of facl~. even if such facts were not noticed by lhc
jurisdiction is appropriate."). trial court. '1 Harris 1'. Bd. of Supe~isors of /..a.
State Uni1•. & Agric. & Mech. Col/., 409 F. App'x
2 Defendants furtl•cr contend that lhe amount in 725, 727n.2 (5th Cir. 2010).
controversy is satisfied because the amounl due
on the loan exceeds $75,000, but the amount due The case therefore is REMANDED for 1hc limited
on the loan does not maner as Statin is not purpose of dctcm1ining whether the amount in
seeking to recover any of the loan. It would ntatter controversy exceeds S7S.OOO.
if Defendants had sued Stalin for amounls due
under the loan.
21312015 Texas Family Code- Section 9.006. Enforcement Of Dlvisloo Of Property- Texas Attorney Resoorces- Texas laws
------------------l Sem&h
onecle
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C'uurl Opinions Texas Family Code- Section 9.006. Enforcement Of
US Supreme Coun Division Of Property
LIS To:-.: Court I aa' Bcmm=b Hnmc > ~ >famjlrfc.1c > Te~:o"IS 1-'mnlly Codr • 5f.'djnn 9.0116. F.nfotnml:'nt Of hhi~ion 0€ ProJil'rt)·
Hoard of F'alcnt Appeuls
St:1lc Laws
.J
i Alabama
I
Ariwna
I California
l-1orida
§ 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except
Georgia as provided by this subchapter and by the Texas Rules of Civil
lllinoi:; Procedute, the court aay render further orders to enforce the
Indiana divi~ion of property made in the de~ree of divor~e or annulment to
!\J;tss;Jchusclls assi~t in th@ implementation of or to clarify th@ prior order.
~lil·hig.an (b) The court may specify more precisely the manner of
~\~\·ada effecting the property division previously ~ade if the substantive
!'\ew,Je~e~· division of property is not altered or changed.
i'\cw \'ork (c) An order of enforcement does not alte~ or affect the
Korth Carolina finality of the dec~ee of divorce or annulm9nt beinB enforced.
Ort.,;on Added by Acts 1997 1 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Jlenns~·knnia
Texas
Vi1-ginin
Washington Section: ~ Jl.3ll4 l!.3.ll5 .!l.l!l!.l !l.lll!:l !lJ!ll3 !l.l!lM 9&05 9.006 !LllllZ !IJ!l!l! !1J!!19 !l.lllll
!1.!!.11 !IJll2. 9.Jll3 Nl:xt
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1 USC • General Prm;sions
2 USC - The Congress ··-·
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3 USC - The Prl'Sident
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11 USC- Bnnkrupte)'
12 USC- Banks and Banking
13 t.:SC - C<'mms
1-1 USC- Coasl Guard
15 USC- Commerce and Trade
16 USC- Con!'ern&tion
17 USC- Copyrights
1S USC- Crimes
19l1SC- Cw:toms Duties
20 L"SC- Educntion
21 USC- Food and Drugs
2:! t:SC • Fort.•ign Relations
23 USC· Highways
24 L'SC · Hospital$
25 L"SC · lndiuns
26 l"SC- lnlt>mal Rcnmue Code
27l:sc · Intoxicating liquors
28 USC- .ludician·
29 esc - t...bor ·
30 USC- ~1int>rnl Lands
31 tSC- Money and Finant-e
32 USC -l'\ationnl Guard
33 t;SC- X11'igation
34 USC· J"'7-" (repealed)
35 t.:SC - Patents
36liSC · l1altiotic Sodelies
3i USC- Uniformed Senices
36 liSC- Vctt.>rans' Benefits
39 USC - Po!"lal Scnice
40 USC • Public Property
41 USC- PublieContrncts
42 USC- Publie Health
http1naw.anecle.oomnexasllamily/9.006.00.hlml 112
713!~015 Texas Family Code~ Scction-9.007. Umltation On Povver Of Cour1 To Enforce- Texas Attorney Resources- Texas Laws
Search
onecle
Texas Family Code- Section g.007. Limitation On Power Of
l_!S Suprt'me- C{)ml Court To Enforce
US Ta;-.; Courl
I Prnl It~«<"m'l! BfiD1e > ~ :>- }lamjl\' !',..,1" :- Tc~ll~ Family Code· ~lion r}.!Hl7. timihl.lit,u On Power OJtcurt 'l'o
Borml of Pa~\:'nt Appeals Enf¢1\'C
Slate La\\'s
Al::!hama &ch!'lor'' l).,y
Arizullll
CaliforniH '"""''
li""'"'""•'='
Bu!ir-.e" Ad;r.ll!~
Florida Hen!l!! Se~n~:B
lrllomlo.ttoo S~l
G<·or~in § 9.01:17. LIMITATION ON PO'.'IER Of CO\JRT TO ENfOHCE. (,1) (I
Illinoi!i court may not amend, modify, alL~r 1 or ch~nr,e th~ division of Maner·J Del!!~
\;;dian;~ property made or approved in th~ decree of divorc~ or annulm~nt. An [;f)!-, ......
~i'C,.,.,=~·koa:n.'>"~
Oregon (c) The 'PO'Nl'l' of the court to render further order·s to ll~tAd:;"nr
1-!c,lf\!:1``~
l'enn!;)']\·ania assist in the implem~ntation of or to clarify ·the -prof!erty division EetJ:ato.1
TCXi~S is <1batcd whUC X!
:! USC- Tht: Con~rE's.s
:{ L;~c- Tbl.' Prcsid('Jll Lruf modified: Atrgust 11,2007
·I USC- Flag and S!.'.a\
5 USC- GO\''l 0J'gani7-ntiou
C1 l;SC • DomPstk SecLlril\'
7 USC- A~riculture · Start 2015 by Saving Big
S USC- Ailcns ancl Nutionality New Au1o Tnsurance Rares from S15/lvl"onth ·Get FreE_Quotes!
'J CSC- Arbitral ion
w USC- r\!11wrl Forrl~S
11 USC- I3ankrupt'c~·
12 L;sc- Banks aJ1ll Banldn~
13 L;sc- Cl'HSUS
1.1 UK- Coast Gunrd
tf) USC- Commerce Ctnd Tr;:tde
H'> LSC- 0)11.5-L'n·atimt
17 esc- Cop_,Tight.~
JR CSC- Crimes
19 CSC- Cnslom::: Duties
:w USC- Eduea!ion
:..!J USC'- Food und Drugs
2.2 USC · Foreign Reh1tions
2;~ L:SC- Hig1m·-ays
:.1.4 CSC- Hospital.-,
25USC- lndinn!;
:26 USC ·lnlemal Rcn~m1e Code
27 L'SC ~Intoxicating Liquors
:::>H USC- .ludidary
24 lfSC • L.abor
:w t:sc · ,\Jine-rctl i.<-1)
:35 CSC • Pattal Sen· icc
iJO CSC- Public Proper!~·
41 L'SC- PublicContwcts
·\2. L:SC • Public Jlcalth
!lltp:Jilaw.oneclo.com/texaslfamilyl9.007.00.h-tml 112
2t.ll2015 Texas Family Cede- Section9.008. Clarification Order. Texas Attorney Resources· Texas l.Jiws
·--·· ·-------
··~--
~-------------------'':-SeaO ~ > Fnm!h·lndr > TCMS 1-'amily Cock- &x-tinn 9.0118. C'lnrlficatlon Ordet
US Tax Court
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Arizona
California § 9.888. ClARIFICATlOH ORDER. (a) On the request of a
Floridil party or on the court's own motion~ the court ~y render a
Georgia clarifying order before a motion for contempt is made or heard, in
Illinois conjunction with a motion for contempt or on denial of a motion for
Indiana contempt.
(b) On a finding by the court that the original form of the
Massachusl•lls
division of property is not specific enough to be enforceable by
~Hrhigan
contempt~ the court may t@nder a clarifying order setting forth
~e"ada specific terms to enforce compliance with the original division of
Xew,Jcr.=~ey property.
New York (c) The court may not give retroactive effect to a
Xorth Carolina clarifying order.
Oregon (d) The court shall provide a reasonable time for c``pliance
Pennsyl\'nnin before enforcing a Cl3rifylng order by contempt or in another
Tl',.a5 manner.
\'iq:inia Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Wushington
l'S Code
Section: ~ 9.JWJ. 9.Jl1J._g 9.JW3 9JU!4 .9...QQS Ull!f! 9...0Jl2 g.oo8 9.JKl!l 9.&10. 9Jll1 9J11Z.
1 USC· General Pro\isions !Llll3 9.1114 !UW. lW;1
2 USC • The Congn-ss
Last modified: August 11, 2007
3 USC - The President
4 l!SC • Fl•g und Se;d
5 USC - Go\''t Organi1..1tion >
6l:SC • Domestic Securitv
7 USC- Agriculture ·
8 USC- Alil'n~ and Nottionalih·
9 USC· Arbitration ·
tO USC· Armed Forces
n USC- nnnknaptcy
12 VSC- Banks and Bunking
13 l:SC - Census
1-1 USC- Coast Guard
15 L'SC- Commerce and Trade
16 l"SC- Consen:ntion
17 usc. COp)Tights
18 USC -Crimes
19 USC- Customs Duties
20 USC- Etluc..1.lion
21 USC- Food nnd Dn1gs
2:.! USC- Fon•ign Rdalions
23 USC- Highways
24 USC- Hospitals
25 USC- Indians
26 L'SC - lntt•rnal Re\·enue Code
27 USC ·Intoxicating Liquors
28 USC- ,Judiciary
29 \.:SC • Labor
30 USC - ~Hnl'ral Lands
Jt USC -1\-Ione\' and Finance
32 USC· Natio'nal Guard
33 USC- N'a\igation
34 USC- N'a''Y (repe~1led)
35 USC • Patents
36 USC- Patriotic Societies
3i USC- Uniformed Senices
38 USC- Vet~mms' Uenf."fits
39 CSC- Po~tul Scni('c
40 l~SC- Public Property
4 t USC· Public Contr<~cls
.p. l'SC- ruhlic Health
http:inaw.onecle.comnexas"anilyl9.008.00.html 112
0
'·I' NO. 226,429-ll ('0
IN THE MA TrER OF § IN THE DISTRICT COURT ~)-
THE MARRIAGE OF §
§
TliVIOTHY PARRISH
AND
§
§ !46TH .JUDICIAL DISTRICT 0' ,..
,_
0
TRISHA ANN PARRISH § ,--.,
,.....-•\ < a:
§ ,., :·.·
t;S~ c•I
:.;...!
AND IN THE INTEREST OF § ~-~.:: ~
~
08L::
JOSHUA ROBERT PARRISH AND ~-~·
•.
""' :::~ :2;
I
i
0
ZACHARY ALLEN PARRISH, § BELL COUNTY, TEXAS`` ::~g~ I
CHILDREN ·=
t-1!.1
('"'}
"' ---' I
'"' ``i ,_i
"- I
~
FINAL D~:CREE OF DIVORCE =
= '
=
...... CJ
On --~A"'P--'RL..:3).__u0__,2,0,08,___ _ the Court heard this case.
,Jppearances
Petitioner, Tl1viOTHY PARRJSH, app~ared in person and through attorney of record,
DANIEL A. CORBfN, and announced ready for trial.
Respondent, TRISHA ANN PARRJSH, wai vcd issuance and service of citation by waiver
duly filed and did not otherwise appear. .
Record
The making ofn record of testimony was waived by the panies with the consent of the Coun.
Jurisdiction and Domicile
The Court finds that the pleadings of Petitioner are in due form and contain all the
allegations, information, and prerequisites required by law. The Court, after receiving evidence,
I
finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed
I since the date the suit was flied. The Court finds that, at the time this suit was filed, Petitioner had
I
been a domiciliary ofTexas for the preceding six-month period and a resident of the county in which
this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly
cited.
Jury
A jury was waived, and questions of fact and of law were submitted to the Court .
..lgreement of Parries
.i The Court finds that the parties haw entered into-a wriuen agreement as contained in this
! decree by vinue of having approved this decree as to both fonn and substance. To the extent
permitted by law, the panics stipulate the agreement is enforceable as a contract. The Court
approves the agreement of the parties as contair.ed in I his Final Decree at" Divorce.
i"~:-.a!. :Je-:::-!!e or ::OO'Icer;:,e
':':~Cil/'1' PARR:SH "'· 7?.:SPJi.. ;vltl PAAIH$1t Page I
·'
Divorce
IT IS ORDERED AND DECREED lhal TIMOTHY PARRISH, Pelilioner, and TRJSHA
ANN PARRISH, Respondenl, are divorced-and thai 1he marriage between them is dissolved on the
ground ofinsupportability.
Children of the Marriage
The Coun finds that Petitioner and Respondent arc the parents of the following children:
Name: JOSHUA ROBERT PARRISH
Sex: Male
Birth date: March 26, 1996
Home state: Texas
Social Security number:
Name: ZACHARY ALLEN PARRISH
Sex: Male
Birth date: September 4, 2000
Home state: Texas
Social Security number:
The Court finds no other children of the marriage are expected.
Conservatorship
The Court, havin~considered the circumstances ofthe parents and of the children, finds that
the following orders are m the best interest of the children. ·
IT IS ORDERED that TIMOTHY PARRISH and TRJSHA ANN PARRISH are appointed
Joint Managing Conservators of the following children: JOSHUA ROBERT PARRISH and
ZACHARY ALLEN PARRISH.
IT IS ORDERED that, at all times, TIMOTHY PARRISH, as a parent joint managing
conservator, shall have the following rights:
I. the right to receive infonnation from any other conservator ofthe children concerning
the health, education, and welfare of the children;
2. the right to confer with the other parent to the extent possible before making a
decision concerning the health, education, and welfare of the children;
3. the right of access to medical, dental, psychological, and educational records of the
children;
4. the right to consult with a physician, dentist, or psychologist of the children;
5. the right to consult with school officials concerning the children's welfare and
educational status, including school activities;
6. the right to anend school activities;
r1='1a:i. O.,cree ~f ::~vorce:
-:-:!o'IQ';'HJ PARRISH •;, ":'R:SHA MN PAP.RISH Page 2
'
7. the right!.; be designated on the children's records as a person to be notified in case
of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an emergency
involving an immediate danger to the health and safety of the children; and
9. the right to manage the estates of the children to the extent the estates have been
created by the parent or the parent's family.
IT IS ORDERED that, at all times, TRJSHA ANN PARRJSH, as a parent joint managing
conservator, shall have the following rights:
I. the right to receive information from any otherconservatorofthe children concerning
the health, education, and welfare of the children;
2. the right to confer with the other parent to the extent possible before making a
decision concerning the health, education, and welfare of the children;
3. the right of access to medical, dental, psychological, and educational records of the
children;
4. the right to consult with a physician, dentist, or psychologist of the children;
S. the right to consult with school officials concerning the children's welfare and
educational status, including school activities;
6. the right to attend school activilies;
7. the right to be designated on the children's records as a person to be notified in case
of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an emergency
involving an immediate danger to the health and safety of the children; and
9. the right to manage the estates of the children to the extent the estates have been
created by the parent or the parent's family.
IT IS ORDERED that, at all times, TIMOTHY PARRISH and TRJSHA ANN PARRISH,
as parent joint managing conservators, shall each have the following duties:
I. the duty to inform the other conservator of the children in a timely manner of
significant information concerning the health, education, and welfare of the children; and
2. the duty to inform the other conservatorofthe children ifthe conservator resides with
for at least thirty days, marries, or intends to marry a person who the conservator knows is registered
as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with
an offense for which on conviction the person would be required to register under that chapter. IT
IS ORDERED that this information shall be tendered in the form of a notice made as soon as
practicable, but not later than the fortieth day after the date the conservator of the children begins to
reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS
ORDERED that the notice must include a description of the offense that is the basis of the person's
r.:.~•_J :ecrveo! :)1v=r;e
i``y PAAR!SH v, :a:sHA `` PARR:SH Page 3
.•
requirement to register as a sex offender or of the offense with which the person is charged.
WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C
MISDEMEANOR IF THE CONSERVA"J:OR FAILS TO PROVIDE THIS NOTICE.
IT IS ORDERED that, during his respective periods of possession, TIMOTHY PARRISH,
as parent joint managing conservator, shall have the following rights and duties:
I I. the duty of care, control, protection, and reasonable discipline of the children;
I
2. the duty to support the children, including providing the children with clothing, food,
·I' shelter, and medical and dental care nol involving an invasive procedure;
:..
3. the right to consent for the children to medical and dental care not involving an
invasive procedure;
4. the right to consent for the child to medical, dental, and surgical treatment during an
emergency involving immediate danger to the health and safety of the child; and
5. the right to direct the moral and religious training of the children.
IT IS ORDERED that, during her respective periods of possession, TRISHA ANN
PARRISH, as parent joint managing conservator, shall have the following rights and duties:
I. the duty of care, control, protection, and reasonable discipline of the children;
2. the duty to support the children, including providing the children with clothing, food,
shelter, and medical and dental care not involving an invasive procedure;
3. the right to consent for the children to medical and dental care not involving an
invasive procedure; and
4. the right to consent for the child to medical, dental, and surgical treatment during an
emergency involving immediate danger to the health and safety of the child; and
5. the right to direct the moral and religious training of the children.
IT IS ORDERED that TIMOTHY PARRISH, as a parent joint managing conservator, shall
have the following rights and duty:
I. the independent right to consent to medical, dental, and surgical treatment involving
invasive procedures;
3. the independent right to consent to psychiatric and psychological treatment of the
children;
4. the independent ri~ht to represent the children in h.:gal action and to make other
decisions of substantial legal sigmficance concerning the children;
5. the independent right to consent to marriage and to enlistment in the anned forces of
the United States; ·
F~nnl Do~ree ot Dlvor``
T:l'.O:H"/ P.UR:51-1 .,, ';'itliHA ;.."'N PARR.i:.SH Page-l
'
6. the independent right to make decisions concerning the children's education;
7. except as provided by section 264.0111 of the Texas Family Code, the independent
right to the services and earnings of the children;
8. except when a guardian ofthe children's estates or a guardian or auorney ad litem has
been appointed for the children, the independent right to act as an agent of the children in relation
to the children's estates if the children's action is required by a state, the United States, or a foreign
government; and
9. the independent duty to manage the estates of the children to the extent the estates
have been created by community property or the joint property of the parents.
IT IS ORDERED that TRISHA ANN PARRISH, as a parent joint managing conservator,
shall have the following rights and duty:
l. the independent right to consent to medical, dental, and surgical treatment involving
invasive procedures;
2. the independent right to consent to psychiatric and psychological treatment of the
children;
3. the exclusive right to receive and give receipt for periodic payments for the suppon
of the children and to hold or disburse these funds for the benefit of the children;
4. the independent right to represent the children in legal action and to make other
decisions of substantial legal significance concerning the children;
5. the independent right to consent to marriage and to enlistment in the armed forces of
the United States;
6. the independent right to make decisions concerning the children's education;
7. except as provided by section 264.0111 of the Texas Family Code, the independent
right to the services and earnings of the children;
8. except when a guardian of the children's estates or a guardian or allomey ad litem has
been appointed for the children, the independent right to act as an agent of the children in relation
to the children's estates if the children's action is required by a state, the United States, or a foreign
government; and
9. the independent duty to manage the estates of the children to the extent the estates
have been created by community property or the joint property of the parents.
Geographical Restriction
IT IS ORDERED and THE PARTIES AGREE that a geographical restriction is in effect
limiting the residence of the panies to a 100 mile radius of Bell County, Texas for five years from
the entry ofthis order.
n::.a~ :ec:'I
and necessarily incurred in enforcing this indemnity.
I IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on
I
demand, for any payment made by the indemnified party at any time after the entl)' of the divorce
decree to satisfy a judgment of any court of competent jurisdiction or in accordance with a bona fide
compromise or settlement of claims, demands, or actions for any damages to which this indemnity
relates.
The parties agree and IT IS ORDERED that each party will give the other party prompt
wrinen notice of any litigation threatened or instituted against either party that might constitute the
basis of a claim for indemnity under this decree.
ClarifYing Orders
'I
I Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves
the right to make orders necessary to clarify and enforce this decree.
Final c~crcc ol Dlvorcv
itMOTHY PARR.:SH v, RUHA ANN PMRISH Page 19
__.:...,,~ ....---·-····-·-·-·--· ..···-----·--··-
,•
ReliefNot Granted
IT IS ORDERED AND DECREED that all relief requested in this case and not expressly
granted is denied. This is a final judgment, for which Jet execution and all writs and processes
necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties
and is appealable.
Date ofJudgment
SIGNED on _ ___,_A,_PR...,__..3u.Ou2,008,.,.__ __
OrtgiiHIISiped b)' Judge Fane~ H. Jezat
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
Corbin & Associates, P.C., Allomeys
603 Nonh Eighth Street
Killeen, Texas 76541
Tel: (254) 526-4523
Fax: (254} 526-6711
By:
~D~A~N~IE~L~A-.~CO~RB``~------------
Attomey for Petitioner
State BarNo. 04814300
TIMOTHiP SH '
Petitioner
,I
'
,,
r-:
T1~l Decree of Divorce
o;MOTHY PM-.:SH ·1. TJU:.SHA A.'fff PAJUU'SH Page 20
NO. 226,429-ll
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
/ ·§
TIMOTHY PARRISH §
AND § 146TH JUIHCJAL DISTRICT O'l
TIUSHA ANN PARRISH § CJ
§ ~
~
AND JN THE INn:REST QF
.JOSHUA ROBERT PARIUSH AND.'
§
§
w
rr.JJ
ZACHARY ALLEN PARRISH, §
CHILDREN § BELL COUNTY, TEXAS ""'
M.,
=
=
DOI\H:STIC RELATfONS ORDER =
~
The Court, having entered a judgment of dissolution of marriage in this case on
(t?'r\.),.5) ~, 2008,, and llnding that the entry of a domestic relations order i~
appropriate, makes the following fmdings and conclusions of Jaw and enters them as an order in
this proceeding.
Findings
The Court tinds, in accordance with the Uniformed Scryices Pormer.Spouses' Protection
I
'I
I Act, 10 U.S.C, section 1408, as follows:
:i
I 1. This Court has jurisdiction over TIMOTHY PAIUUSH. The residence of"'TMOTHY
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!' PARRISH is in Killeen, Bell County, Texas, other' than because ofmi1itary assignment.
2. Petitioner, TIMOTHY PARlUSH, and i\cspondcnt, TRISHA ANN PARRISH, were
originally married in October 3, 1994, and were divorced on _________ , 2008. That
marriag~ lusted for 13 years and 4 months during which time 'llMOTHY PARRISH served 13
years and 4 months or more of creditable service toward retirement.
3. TIMOT1-lY PARlUSH's Social Securi1y number is 2J2C94·1 168, his address is 472
Cactus Circle, Kilcen, 'I.'X 76542, and his birth date fs December 30, 1964.
4. TRISHAANN PARRISH's Social Secudty mtmbcr is XXX-XX-XXXX and her address is
6~9 Deer Run Road, Killeen, Texas 76549, and her birth date is April25. 1972.
5. The rights ofT!lvl<.JTHY PARRISH under the Servicemcmbcrs Civil Relief Act were
fully complied with in this case.
~mentic t::cJ<~.t:.lt!IJU Ord!lr · MOl::l.t~;~;-y IU,'t.:.rerm.mt 1
i!~oLt)y 1-'arr!..o~ ..,._ 'fr1Bh.._ Ann p,.n ``:h
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6. TIMOTHY PARRISH is not retired from the United Stales United States Army at the
time of this order.
7. The award of disposable retired_ pay made to TRlSHA AN:--1 PARRIS11 in tlus order is
made in compliance with the. Uniformed Services Former Spouses' Protection Act.
8. It is intended by this Court and the parties that the Defense Finance and Accounting
Service (DFAS) designee make the payments du~RJSHA ANN PARRISH of her interest in
the disposable retired pay awarded in t~er directly lo TRISHA ANN PARRJSH.
Award /o Nonmember Spouse
IT IS THEREFORE ORDERED that TRISHA ANN PARRISH havejl!dgment against
and recover from TIMOTHY PARRISH from the military retirement benefits of which resulted
from his·service in the United Stales Armed Forces, according to the fraction calculated by the
fonnula below. On the date of divorce, TIMOTHY PARRISH had achieved the grade ofCW3
and had served 13 years and 4 months. The high average pay over the last 36 months_ of the
marriage was $5382.1 0. The number of months of marriage is one hundred sixty ( 160).
:'I The formula is: Fifty per cent(50%) multiplied by the number of months married divided
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by the total number of months served by TIMOTHY PARRJSH. This fraction is further
'! multiplied by the disposable military retired pay to which is TIMOTHY PARRJSH entitled at
1 retirement, the result being the share thai TRISHA ANN l'ARRJSH, the Non-Member spouse, is
II entitled to received, IF, AS and WHEN TIMOTHY PARRJSH receives retired pay or:
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50% X Number of months married X Disposable military retired pay~Non-Member's share
Total number of months served
!TIS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRJSH each
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month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH 's
disposable military retired pay, together will all cost-of-living ~djustments applicable thereto,
payable only IF, AS and WHEN received by TIMOTHY PARRJSH.
·• IT IS ORDERED that, if DFAS declines or refu.•es to pay TRISHA ANN PARRISH
~J each month, TIMOTIJY PARRJSH is ORDERED to calculate and pay TRISHA ANN
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PARRISH's share each month to TRISI-JA ANN PARRISH at her last known address by check,
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,."' money order, wire transfer, cash or any other method reasonably calculated to meet the
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conditions of this Order_
IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each
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1 month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH's
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1 disposable retired pay at retirement, together with all cost-of-living adjustments applicable
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' thereto, payable, IF, AS, and WHEN received by TIMOTHY PARRISH.
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Con.flrllclive Trust
IT IS FURTHER ORDERED that TIMOTHY PARRISH be and is hereby designated a
constructive trustee for the benefit ofTRISHA ANN PARRISH for the purpose of receiving the
retired pay awarded herein to TRISHA ANN PARRISH as TRISHA ANN PARRISH's sole and
separate property until the end of the award, and TIMOTHY PARRISH be and is hereby
ORDERED, on receipt thereof, to deliver by first-class mail to TRISHA:ANN PARRISH at her
last known address by negotiable instrument that portion of each monthly retired pay payments
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awarded to TR!SHA ANN PARRISH herein not paid directly (or by allotment) by DFAS within
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three days of the receipt of any such payments by TIMOTHY PARRISH. All payments made
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directly to TRISHA ANN PARRISH by DFAS shall be a credit against this obligation.
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·t For purposes of this order, TIMOTHY PARRISH is specifically directed, on penalty of
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:1 contempt, to payinterest in the disposable retired pay as ordered in this order, AND IT IS SO
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-I TRISHA ANN PARRISH's ORDERED. TIMOTHY PARRISH is specifically directed that he is
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'(" 'i not relieved of that obligation except to the extent that he is specifically notified that I 00 percent
ofTRISHA Al\'N PARRISH's interest in the retirement benefit has been directly paid by DFAS,
and IT IS SO ORDERED.
:I IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by
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1 TIMOTHY PARRISH shall not reduce the amount equal to the percentage of the disposable
I retired pay or of the disposable retired pay the Court has herein awarded to TRJSHA AlliN
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PARR!SH , except as provided by Jaw. In this regard, IT IS FURTHER ORDERED that
TIMOTHY PARRJSH shall not merge his military retired pay with any other pension and shall
not pw-sue any course of action that would defeat, reduce, or limit TRISHA ANN PARRISH 's
``st~c ~elUtlons Ord~r - Hili tory R~tir``cn:
'I.HIOt!.y Pc.r:il!lt Y. :irJNI,iJ lt::JI I'A!'l'.iSh
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right to receive TRISHA ANN PARRISH's full share of TIMOTHY PARRISH's retired pay as
awarded in this order, unless otherwise lioaso.lor. M;lilooyltciUancnl 4
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PAIUUSH, TIMOTHY 11·1117·FM AC
NOV 12 20ft
SHj:~IA F. NORMAl~>
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