Tracie Marie Scheffler F/K/A Tracie Marie Parson v. Paul Michael Parson

ACCEPTED
13-15-00150-CV
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG 7/2/2015 10:52:24 AM
CECILE FOY GSANGER
CLERK
07/02/15
NO. 13-15-00150-CV
CECILE FOY GSANGER, CLERK
BY cholloway
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH DISTRICT OF TEXAS
7/2/2015 10:52:24 AM
CECILE FOY GSANGER
Clerk
CORPUS CHRISTI - EDINBURG
TRACIE MARIE SCHEFFLER F/K/A
TRACIE MARIE PARSON, APPELLANT,
v.
PAUL MICHAEL PARSON, APPELLEE.
On Appeal From the 81st Judicial
District Court of Wilson County, Texas,
Trial Court Cause No. 10-10-0579-CVW
APPELLANT’S BRIEF
__________________________________________________________________
Kirk Dockery, Attorney in Charge
State Bar No. 05929220
Email: kirkdockery@gmail.com
Scott R. Donaho
State Bar No. 05967755
Email: srdonaho@floresville.net
The Law Offices of
DONAHO & DOCKERY, P.C.
P.O. Box 459
Floresville, Texas 78114
Tel: 830-393-2700
Fax: 830-393-3029
ATTORNEYS FOR
TRACIE MARIE SCHEFLLER
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case and were parties to the trial court's order
in this matter. These representations are made so the Judges of this Court may
evaluate possible disqualification or recusal.
APPELLANT: Tracie Marie Scheffler, referred to as “Scheffler” or “wife”
Counsel for Appellant are:
The Law Offices of
DONAHO & DOCKERY, P.C.
Kirk Dockery
Email: kirkdockery@gmail.com
State Bar No. 05929220
Scott R. Donaho
Email: srdonaho@floresville.net
State Bar No. 05967755
P.O. Box 459
Floresville, Texas 78114
Telephone: 830-393-2700
Fax: 830-393-3029
APPELLEE: Paul Michael Parson
Counsel for Appellee are:
DIAZ JAKOB, LLC
Jason J. Jakob
State Bar No. 29042933
Email: jjakob@diazjakob.com
The Historic Milam Building
115 E. Travis Street, Suite 333
San Antonio, Texas 78205
Tel.: (210)226-4500
Fax: (210)226-4502
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
APPELLANT'S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT AND AUTHORITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jurisdiction: Clarification or Modification?. . . . . . . . . . . . . . . . . . . . . . . . . . 6
The DRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Calculation of Retirement Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii
INDEX OF AUTHORITIES
Cases
Allen v. Allen, 717 S.W.2d 311 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Baxter V. Ruddle, 794 S.W.2d 76 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Berry v. Berry, 647 S.W.2d 945 (Tex.1983). . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 10
Beshears v. Beshears, 423 S.W.3d 493 (Tex.App. Dallas, 2014). . . . . . . . . . . . . 17
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App. El Paso, 2014).. . . . . . . . . . 7
Gainous v. Gainous, 219 S.W.3d 97 (Tex.App. Houston [1 Dist.], 2006).. . . . . . 17
Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex.App.-San Antonio 2002,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re R.F.G., 282 S.W.3d 722 (Tex.App.-Dallas 2009, no pet.).. . . . . . . . . . . . 8, 16
Joyner v. Joyner, 352 S.W.3d 746 (Tex.App. San Antonio, 2011). . . . . . . . . . . . . 7
National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d
517 (Tex.,1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Quijano v. Quijano, 347 S.W.3d 345 (Tex.App.-Houston [14th Dist.] 2011, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . 17
Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex.2002)
.................................................................. 7
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) . . . . . . . . . . . . . . . . . . . . . . 7
iv
State Statutes
Tex.Fam.Code Ann. 9.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex.Fam.Code Ann. 9.006(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex.Fam.Code Ann. 9.008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Federal Statutes
29 U.S.C. § 1056(d)(3)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
v
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the errors in this case are evident from the documents
contained in the clerks record, and the appendix of this brief, and the issues presented
by this brief, and that oral argument would do little to aid the court in determination
of those issues.
vi
ISSUES PRESENTED
First Point of Error
The trial court erred in granting appellee’s motion to dismiss for lack of
jurisdiction.
Second Point of Error
The trial court abused its discretion in granting appellee’s motion to
dismiss for lack of jurisdiction.
Third Point of Error
The trial court abused its discretion in failing to grant the relief
requested by Appellant to clarify the valuation of the military retirement in
the decree of divorce and the domestic relations order.
vii
NO. 13-15-00150-CV
IN THE COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TRACIE MARIE SCHEFFLER F/K/A
TRACIE MARIE PARSON, APPELLANT,
v.
PAUL MICHAEL PARSON, APPELLEE.
On Appeal From the 81st Judicial
District Court of Wilson County, Texas,
Trial Court Cause No. 10-10-0579-CVW
APPELLANT'S BRIEF
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
Tracie Marie Scheffler, herein after sometimes referred to as Scheffler,
Appellant, “wife,” or “former wife,” presents this brief in support of her request that
this Court reverse the order of the trial court dismissing the petition to clarify the
division of military retirement in the DRO for lack of jurisdiction.
STATEMENT OF THE CASE
This appeal lies from the trial court’s entering an order dismissing the former
1
wife’s petition to clarify the military retirement DRO for lack of jurisdiction.
Appellant raises three points of error. First, the trial court erred in granting
appellee's motion to dismiss for lack of jurisdiction.
Second, that the trial court abused its discretion in granting appellee's motion
to dismiss for lack of jurisdiction.
Third, that the trial court abused its discretion in failing to grant the relief
requested by Appellant to correct the valuation of the military retirement in the decree
of divorce and the domestic relations order.
STATEMENT OF FACTS
Appellant, Tracie Marie Scheffler, then known as Tracie Marie Parson, filed
suit for divorce in the 81st Judicial District Court of Wilson County, Texas, in October
2010.
Appellee, Paul Michael Parson, herein after sometimes referred to as Appellee,
“husband,” or “former husband,” was a member of the United States Armed Services
prior to the marriage and continued to be a servicemember after the divorce, and
therefore a portion of his military retirement was his separate property.
On February 3, 2011, the parties and their respective counsel or record met for
a settlement conference at the conclusion of which both parties and counsel signed
a rule 11 agreement which provided, in relevant part:
2
"5. Wife awarded:
.....
“h. ½ community interest in military retirement.
....
“6. Husband awarded:
....
“c. ½ community interest in military retirement + all H's SP
interest." (CR 92,93) (APP 1)
On May 24, 2011, the trial court entered a "Corrected Final Decree of Divorce"
which provided that wife was to receive a portion of husband’s military retirement.
Mr. Parson was at that time an active duty member of the armed services. Regarding
military retirement, the decree awarded husband the following:
“H-4. All sums, whether matured or unmatured, accrued or unaccrued,
vested or otherwise, together with all increases thereof, the proceeds
therefrom, and any other rights related to or as a result of PAUL MICHAEL
PARSON's service in the United States Navy, including any accrued unpaid
bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits
existing by reason of or as a result of PAUL MICHAEL PARSON's past,
present, or future employment, except that portion of PAUL MICHAEL
PARSON's U.S. military retirement that has been awarded in this decree to
TRACIE MARIE PARSON as more particularly specified in the domestic
relations order signed in conjunction with this decree and incorporated
verbatim in it by reference.” [emphasis added] (CR 71) (APP 2)
The decree also awarded wife the following:
“W -6. All sums, whether matured or unmatured, accrued or unaccrued, vested
or otherwise, together with all increases thereof, the proceeds therefrom, and
any other rights related to or as a result of PAUL MICHAEL PARSON's
service in the United States Navy, including any accrued unpaid bonuses,
disability plan or benefits, Thrift Savings Plan, or other benefits existing by
reason of or as a result of PAUL MICHAEL PARSON's past, present, or future
employment, except that portion of PAUL MICHAEL PARSON's U.S. military
retirement that has been awarded in this decree to PAUL MICHAEL PARSON
as more particularly specified in the domestic relations order signed in
conjunction with this decree and incorporated verbatim in it by reference.”
3
[emphasis added] (CR 73) (APP 2)
This section is perhaps inartfully drafted in that it awards wife “all” of
husband’s military retirement except that portion awarded to husband as specified in
the DRO. However, the DRO does not award the husband any portion of the military
retirement, as it only awards the former spouse a portion thereof. A strict reading of
these sections would result in the former husband receiving none of his own
retirement. This demonstrates some need for clarification.
Also on May 24, 2011, the trial court entered a "Domestic Relations Order -
Military Retirement" awarding wife a portion of husband’s military retirement which
provides as follows:
"IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States Navy, the amount of disposable retired pay calculated as
follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
multiplied by the high-36 month base pay of the Servicemember, which is
$3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
the date of divorce, which is 18 years 3 months, determined on the date of
Servicemember's retirement divided by Servicemember's monthly gross
retired pay at retirement multiplied by Servicemember's monthly disposable
retired pay at retirement." [emphasis added] (CR 80) (APP 3)
From the formula as stated in the DRO it is impossible for anyone to determine
what numbers were used for the numerator and the denominator of the fraction in
order to arrive at the “16.66 percent.” The same is also true for the formula used to
calculate the “35.0 percent.” Only by using the correct numbers, which are known
from the facts of the case, and which are correctly stated in the DRO, can we
4
determine that the wrong values have been used to for the valuation of the military
retirement in this DRO.
Former husband retired from the military on October 31, 2014. Based on
former husband’s retirement statement, former wife determined that her share of the
military retirement under the standard formula provided in Berry v. Berry, 647
S.W.2d 945 (Tex.1983), should be approximately $282.00 per month. However, when
the formula stated in the DRO was applied, the resulting figure is merely $92.00 per
month. Only then did the former wife discover that the DRO gives former husband
a windfall of approximately $190.00 per month for the remainder of his life. (CR 86)
(APP 4)
On January 6, 2015, former wife filed her “Motion to Correct or Amend
Domestic Relations Order for Military Retirement” requesting clarification of the
formula used in the DRO. (CR 85) (APP 4)
At a hearing on that motion on February 9, 2015, the former wife presented her
motion for clarification to the trial court. At that time the former husband presented
his motion to dismiss the former wife’s motion because it would be an impermissible
modification of the divorce decree, and therefore the trial court lacked jurisdiction to
consider the motion. The trial court took both motions under advisement. On
February 13, 2015, the trial court entered its order dismissing the former wife’s
motion for lack of jurisdiction.
5
ISSUES PRESENTED
First Point of Error
The trial court erred in granting appellee’s motion to dismiss for lack of
jurisdiction.
Second Point of Error
The trial court abused its discretion in granting appellee’s motion to
dismiss for lack of jurisdiction.
Third Point of Error
The trial court abused its discretion in failing to grant the relief requested
by Appellant to clarify the valuation of the military retirement in the decree of
divorce and the domestic relations order.
ARGUMENT AND AUTHORITY
Jurisdiction: Clarification or Modification?
By granting the motion to dismiss for lack of jurisdiction the Appellant’s
motion to clarify the military retirement, the trial court failed to recognize the subtle
difference between a modification and a clarification of military retirement. (CR148)
(APP 5) Appellee, the former husband, asserts that the former wife is seeking to
modify the apportionment of the community estate’s share of the military retirement.
6
However, the former wife is instead seeking to clarify the valuation of the community
estate’s share of the military retirement. (CR 103) (APP 6) Both parties should be
entitled to reasonable certainty that the community portion of the military retirement
has been valued correctly.
A trial court's ruling on a post-divorce motion for clarification of a divorce
decree is reviewed for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990) (per curiam); Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App.
El Paso, 2014). A trial court abuses its discretion when it acts arbitrarily or
unreasonable or without reference to any guiding rules or principles. Id.
The trial court’s dismissal for lack of jurisdiction is a question of law that the
court of appeal should review de novo. Tex. Natural Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Guevara v. H.E. Butt Grocery Co., 82
S.W.3d 550, 551 (Tex.App.-San Antonio 2002, pet. denied); 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 Appellant sought to “clarify” or to “modify” the DRO. Appellant
asserts that the DRO is ambiguous because, although there was an attempt to use the
formula set forth in Berry, the DRO failed to use the correct values for the valuation,
and the DRO reduced the Berry formula calculations to percentages without showing
the actual numbers used to performs those calculations. In other words, the DRO
failed to show the full math used for the valuation. Without showing those numbers,
7
and thus without making the valuation capable being verified, the parties can only
guess at what numbers were actually used in the formula.
Furthermore, any attempt to replicate the valuation set forth in the DRO using
all of the values, which are now known, results in a valuation of the community
portion that is far greater than that provided in the DRO. Consequently, the share
awarded to the former wife by the DRO is about one-third of the correct amount.
The DRO in this case is a part of the agreement between husband and wife
upon divorce. (CR 85) (APP 1) An agreed property division, although incorporated
into a final divorce decree, is treated as a contract and is controlled by the rules of
construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 313
(Tex. 1986); In re R.F.G., 282 S.W.3d 722, 725 (Tex.App.-Dallas 2009, no pet.). A
latent ambiguity can arise when a contract appears unambiguous on its face, but when
applied to the subject matter with which it deals an ambiguity appears. National
Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520
(Tex.,1995). Such is the manner in which this ambiguity was discovered. It was not
until the final variable was known, that being former husband’s disposable retired
pay, that former wife could perform the final calculation and determine that an error
had been made.
The primary problem in this case is the failure to correctly utilize the formula
prescribed in Berry v. Berry. All variants of that formula indicated that all original
8
values, that is, the numerators and denominators, etc., of the necessary calculations
be shown. Then let the DFAS perform its function and calculate the former spouses
share of the disposable retired pay. The DRO in this case takes the unusual step of
purporting to perform the calculations of the second and third variables down to
percentages, which had the effect of masking the fact that the incorrect numbers had
been used. The results of those calculations in the DRO cannot be replicated by using
the known number, which are elsewhere stated correctly in the same DRO. We will
never know where the error was made, but the fact that an error has been made is
easily demonstrated.
In any valuation of the community share of military retirement the relevant
numbers are easily determined from existing facts. In this case, either the wrong
numbers were used in the formula, or there has been mathematical error. Either way,
the result is a miscalculation of the community share of the military retirement.
It is easily understood that military retirement benefits earned during marriage
are community property. But for many years the courts struggled with valuing the
community property interest when the servicemember was still on active duty at the
time of divorce, or when the servicemember joined the military prior to marriage. The
formula in Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977), was created to
address the issue of apportionment of the community share. The Taggart formula
provides a fraction, the numerator of which is the number of months the
9
servicemember served during marriage and the denominator of which is the total
number of months the servicemember has served in the military at the time of divorce.
Case law stated the formula as follows:
months of service servicemember's
50% X during marriage X retirement benefit
------------------------
total months
of service
The first variable, fifty percent, indicates that the trial court intends to divide the
community portion equally between the parties. The division may be disproportionate
based on the circumstances presented.
The Taggart formula was problematic in that it did not recognize that
post-divorce military service belonged to the servicemember spouse's separate estate.
That changed six years later with Berry v. Berry, and since then Texas law has
clearly mandated that the community estate’s interest in military retirement be valued
as of the date of divorce, and that it include a method for determining what portion
of post-marital service belongs to the member's separate estate. The method used is
to provide that the percentage awarded to the former spouse shall be multiplied by the
benefit earned at the grade and time in service that exists as of the date of divorce,
plus an equal percentage of cost of living increases, if, as, and when received. The
formula therefore changed to:
10
months of service servicemember's
50% X during marriage X retirement benefit
------------------------ as earned by rank
total months at time of divorce
of service
With this formula the valuation becomes a matter of plugging in the known values as
of the date of divorce.
The 2010 version of the Texas Family Law Practice Manual states the formula
in the form for a military retirement DRO as follows:
"IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States [branch of service], the amount of disposable retired pay
calculated as follows:
[___________] percent [percentage awarded former spouse]
X multiplied by
[___________] [number of months of servicemember's service
during marriage]
÷ divided by
[___________] [number of months servicemember has been on
active duty on date of divorce] percent
X multiplied by
[___________] percent [0.025 multiplied by number of full months of
servicemember's creditable service toward
retirement on divorce divided by 12 1 ] percent
X multiplied by
[___________] [servicemember's high-36 month base pay on
1
The Defense Finance and Accounting Service has provided this formula post Berry to
more easily allow for this calculation in that servicemembers accrue retirement benefits at the
rate of 2.50% per month multiplied by their highest 36-month base pay.
11
date of divorce] (APP 7)
divided by Servicemember's monthly gross retired pay at retirement multiplied
by Servicemember's monthly disposable retired pay at retirement."
The final variables in the formula, that is, the amount of “Servicemember's
monthly gross retired pay at retirement multiplied by Servicemember's monthly
disposable retired pay at retirement” cannot be known until after the servicemember
has actually retired. Therefore, if the servicemember spouse is still active duty the
actual value of the former spouse’s portion of the military retirement cannot be
accurately calculated until the actual retirement occurs.
Upon retirement of the servicemember it should then be a simple procedure to
calculate the amount of the former spouse’s share of the military retirement using the
same formula, all of the previously known values, together with the final variable,
which is the disposable retired pay.
In this case, as of the date of divorce, each of the following facts was known,
and these facts are actually stated in the DRO:
a. The parties were married on June 5, 2004. (CR 41) (APP 3)
b. The parties were divorced on February 3, 2011. (CR 41) (APP 3)
c. During the marriage Respondent served 6 years and 8 months (80 total
months) of creditable service towards military retirement. (CR 41) (APP
3)
d. As of the date of divorce Respondent had served 18 years and 2 months
12
(218 total months) of creditable service towards military retirement.
(CR 41) (APP 3)
e. Respondent's high-36 month base pay on date of divorce was $3,322.16.
(CR 41) (APP 3)
Since Respondent's retirement on October 31, 2014, the following facts are
known:
a. Respondent's monthly gross retired pay at retirement is $2,341.00. (CR
90) (APP 4) [A
b. Respondent's monthly disposable retired pay at retirement is $2,243.14.
(CR 90) (APP 4)
The DRO
The DRO entered in this case stated:
“Award to Former Spouse
“IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States Navy, the amount of disposable retired pay calculated as
follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
multiplied by the high-36 month base pay of the Servicemember, which is
$3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
the date of divorce, which is 18 years 3 months, determined on the date of
Servicemember's retirement divided by Servicemember's monthly gross
retired pay at retirement multiplied by Servicemember's monthly disposable
retired pay at retirement.” (CR 80) (APP 3)
The DRO in this case fails to state the numbers used to obtain the second percentage,
that is, it fails to state the numerator and the denominator used to calculate the “16.66
13
percent.” The DRO also fails to state the variable used to calculate the third value,
that is, it fails to state the multiplier used to calculate the “35.0 percent.” How those
numbers were calculated we may never know, but Appellant can demonstrate that the
calculation is simply not correct. Thus, the valuation of the community share of the
military retirement benefit was not performed correctly.
Calculation of Retirement Pay
Using the known values from this case, the former wife’s share of military
retirement should be calculated as follows:
50.0% [percentage awarded former spouse]
X multiplied by
80 [number of months of servicemember's service
during marriage]
X multiplied by
218 [number of months servicemember has been on
active duty on date of divorce] percent
X multiplied by
(0.025 x 218 / 12)% [percentage of servicemember's gross retired pay
entitlement if servicemember were allowed to retire
on date of divorce, that is, 0.025 multiplied by
number of full months of servicemember's
creditable service toward retirement on divorce
divided by 12] percent
X multiplied by
$3,322.16 [servicemember's high-36 month base pay on date
of divorce]
÷ divided by
$2341.00 Servicemember's monthly gross retired pay at
retirement
X multiplied by
$2,243.14 Servicemember's monthly disposable retired pay at
retirement."
All calculations are performed as follows:
14
0.5 x 0.36697 x 0.45416 x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92
Stated another way:
50% x 36.697% x 45.416% x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92
The underlined numbers in each verison shows where the incorrect numbers have
been corrected. This demonstrates how the standard formula provided in Berry should
have been used in this case. The DRO actually contains all of the correct information,
that is, the beginning values, that are to be used in the stated formula. But for some
unknown reason, the DRO fails to use those correct values in the valuation of the
military retirement. And for that reason the DRO is ambiguous.
The DRO provides, “50.0 percent multiplied by 16.66 percent multiplied by
35.0 percent multiplied by the high-36 month base pay of the Servicemember, which
is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the
date of divorce, which is 18 years 3 months . . .” Importantly, we can determine the
intent of the parties and the court from the first number stated, that being the
percentage of the community estate’s portion of the military retirement awarded to
the wife. The DRO clearly states “50.0 percent." This amount coincides with the rule
11 agreement signed by the parties prior to the entry of the final decree.
From the formula we also know that the second value, stated as “16.66
percent,” should be the product of a fraction, the numerator of which is the “number
of months of servicemember's service during marriage,” which the DRO states is 80,
15
and the denominator of which is the “number of months servicemember has been on
active duty on date of divorce,” which the DRO states is 218. However, 80 divided
by 218 equals 36.697 percent. It does NOT equal 16.66 percent, the product of that
calculation stated in the DRO. Consequently, that portion of the DRO is ambiguous.
From the formula we also know that the third value, stated as “35.0 percent,”
should be the product of a calculation, the first multiplier of which is 0.025, the
second multiplier of which is the "number of months servicemember has been on
active duty on date of divorce," which the DRO states is 218, which is then divided
by 12. However, 0.025 multiplied by 218 and then divided by 12 equals 45.416
percent. It does NOT equal 35.0 percent, the production of that calculation stated in
the DRO. Consequently, that portion of the DRO is also ambiguous.
Because the DRO gives all the correct information necessary to calculate the
valuation of the military retirement properly, and then it utterly fails to calculate the
valuation of the military retirement in the proper manner, the DRO is ambiguous. And
thus clarification of the DRO is necessary so that the military retirement is correctly
valued.
Furthermore, because the valuation of the military retirement by the DRO is
ambiguous, then the trial court should have reviewed DRO in order to aid it in finding
the intent of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); In re
R.F.G., 282 S.W.3d at 725. Whether this DRO is ambiguous is a question of law this
16
court should review de novo. Coker, at 394; see also Shanks v. Treadway, 110 S.W.3d
444, 447 (Tex. 2003). The purpose of the DRO is to create or recognize the former
wife’s rights, and to assign to the former wife the right to receive, her awarded
portion of the military retirement. Quijano v. Quijano, 347 S.W.3d 345, 353–54
(Tex.App.-Houston [14th Dist.] 2011, no pet.); see also 29 U.S.C. § 1056(d)(3)(B)(i).
Res judicata applies to final divorce decrees and, under the same logic, to DRO’s.
Baxter V. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). But Appellant’s motion to
clarify the QDRO should not be barred by res judicata if she can demonstrate, as she
has, that a mistake has been made. Gainous v. Gainous, 219 S.W.3d 97, 105
(Tex.App. Houston [1 Dist.],2006). A trial court that renders a divorce decree and a
DRO generally retains the power to clarify the property division made or approved
in those documents. Tex.Fam.Code 9.002, 9.006(a), 9.008. The trial court had
jurisdiction to enter an order clarifying the ambiguities in the DRO in order to give
effect to the division of the property attempted therein, and had a duty to do so. Id.
§ 9.008(b). see also § 9.1045(a) (West 2006); Beshears v. Beshears, 423 S.W.3d 493,
500-01 (Tex.App. Dallas, 2014).
Appellant therefore requests that the order of the trial court dismissing the
motion of Appellant to clarify the DRO for lack of jurisdiction be reversed. Appellant
requests that the court find that the trial court abused its discretion in failing to grant
the relief requested, and issue clarification of the DRO in which the figures stated
17
therein of 16.66 percent for the calculated value resulting from the number of months
of servicemember's service during marriage divided by number of months
servicemember has been on active duty on date of divorce, be changed to the actual
calculated value of 36.697 percent. [80 ÷ 218 = 36.697%]. Appellant further requests
that the court find that the trial court abused its discretion in failing to grant the relief
requested, and issue clarification of the DRO in which the figure stated therein of
35.0 for the calculated value resulting from 0.025 multiplied by number of full
months of servicemember's creditable service toward retirement on divorce divided
by 12, be changed to the actual calculated value is of 45.416 percent. [0.025 x 218
÷ 12 = 45.416%].
PRAYER
Appellant prays that this Honorable Court reverse and remand the trial court’s
dismissal of the motion to clarify; that the requested clarification of the DRO be
rendered by the court; and for such other and further relief as this Honorable Court
deems fit to grant.
Respectfully submitted,
The Law Offices of
DONAHO & DOCKERY, P.C.
P.O. Box 459
Floresville, Texas 78114
Tel: 830-393-2700
Fax: 830-393-3029
/s/ Kirk Dockery
18
________________________________
Kirk Dockery, Attorney in Charge
State Bar No. 05929220
Email: kirkdockery@gmail.com
Scott R. Donaho
State Bar No. 05967755
Email: srdonaho@floresville.net
CERTIFICATE OF SERVICE
I certify that on July 1, 2015, a true and correct copy of the above and
foregoing document was delivered to all counsel of record by the Electronic Filing
Service Provider, as follows:
/s/ Kirk Dockery
Kirk Dockery
DIAZ JAKOB, LLC BY ELECTRONIC SERVICE
Jason J. Jakob
State Bar No. 29042933
Email: jjakob@diazjakob.com
The Historic Milam Building
115 E. Travis Street, Suite 333
San Antonio, Texas 78205
Tel.: (210)226-4500
Fax: (210)226-4502
19
CERTIFICATE OF COMPLIANCE
This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(2)(B)
because this brief consists of 4,089 words, excluding the parts of the brief exempted
by Tex. R. App. P. 9.4(i)(1).
/s/ Kirk Dockery
________________________________
Kirk Dockery
10201B
20
APPENDIX 1
%rSc^ ^l
JJBC"—Ci^is. ^jr____hAa-"_ordLcS
Svh^-tcJr ~fo '
0-.
J-Wiitjary y @ M?5^S Ufs rf -Hjl^ i^tJE^.
^4^ncJjUf:^Mtc^.2M.cL" rnc0~ er^
(Lck. .",.M 30 daxjs nrviicQ.. _.„____^
^
ifk>,r-h^s u/ilfmc}' %-fir
.--•,-cL-„|-^jdrr5 A}J>fLt)tAC"^CULj^ C\js (^iUjdt /'z
--uQm :rL.^...
J^LfLLk^— j"lntiln^ is-/-
_-_"2-_.___C_tS dd"_r^.^ J^ hruarc^ Atre.^1^ —^ , .„
H. kjLaJi!<^..^lalur(iy±a_^ uii'm&ir.SOiin >/f-/ 'h/V\ C^ .
fXcsL^
'•h.. h< 5"^ -^S^- .
A Ui^JL r /
lOb^o Q-^ /OlCCcHaMs T/n l^
ۥ pK>f}f<~k^ /VI Us ^-)ns&i.SXiavn -9-
re/ d-oMed rhiir / /?
^ /.y/'/i 2C^diLm
-A l6ofr,- /IrcJ-S M.
A. all Crtiif atr/i^ (n n(LWU^Cl4ii3a.Af^y^
h. Ina-v^ acued 'k> yviOAA
d. jy&cifbr np-jc.
A. rihk r,n 'yotr SA. 'h ell rt^A/eii coi f 's.
P- //i/zV-^ -lyi3i^SfC<. hr cUlpi rAcjuy^d .^/jncA
0/2^1/0
Hushnl pys;
_,5U__A // CDrJs IK\ JllS
Jbu. fiok 0 a. /jydi 1 (Sold Birni^
C.. ir\nk ny) SjJjOY'ca-^
d. AU kt% (M r\647 S.W.2d 945 (Tex. 1983)) that are autho-
rized by Congress. See James N. Higdon, Military Retirement
and Divorce, chapter 63.2, State Bar of Texas 35th Advanced
Family Law Course, August 2009, for a discussion of this issue
in the calculation of military retired pay.
Or
When representing the servicemember, use the following for
an active duty servicemember who entered the service on or
after September 8, 1980.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of disposable retired pay calculated as follows: [percentage awarded
former spouse] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of months of servicemem-
ber’s service during marriage divided by number of months servicemember has been on active
duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired
pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-
plied by number of full months of servicemember’s creditable service toward retirement on
divorce divided by 12] percent multiplied by [servicemember’s high-36 month base pay on
date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multi-
plied by Servicemember’s monthly disposable retired pay at retirement.
Or
25-31-6 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
When representing the former spouse, use the following for an
active reservist servicemember who entered the service on or
after September 8, 1980.
Because the servicemember’s high-36 month base pay at the
time of retirement for his or her pay grade and longevity on the
date of divorce cannot be determined on the date of divorce
but must wait for his or her retirement, it will probably be nec-
essary to “clarify” the DRO at or after the date the servicemem-
ber retires because DFAS may not accept for processing an
order that contains the “high-36 month base pay at the time of
retirement” hypothetical. Therefore, both parties should be
notified that a clarification suit will probably have to be filed and
a clarifying order entered at that time.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of disposable retired pay calculated as follows: [percentage awarded
former spouse] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of months of servicemem-
ber’s service during marriage divided by number of months servicemember has been on active
duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired
pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-
plied by number of full months of servicemember’s creditable service toward retirement on
divorce divided by 12] percent multiplied by the high-36 month base pay of a servicemember
with Servicemember’s pay grade and longevity on the date of divorce determined on the date
of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at
retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.
Or
Use the following for an active duty servicemember who is
retired at the time of divorce whether representing the service-
member or the former spouse.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [percentage of community interest in servicemember’s military retired pay
© STATE BAR OF TEXAS 25-31-7
Form 25-31 Domestic Relations Order [Military Retirement]
entitlement, that is, number of months of servicemember’s service during marriage divided by
total number of months of servicemember’s service at retirement] percent multiplied by Ser-
vicemember’s monthly disposable retired pay.
Or
When representing the servicemember, use the following for
an active reservist servicemember who entered the service
before September 8, 1980.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-
ally 50 percent)] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of retirement points earned
during marriage divided by total number of retirement points earned by servicemember on date
of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement
if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-
member’s total retirement points on divorce divided by 360] percent multiplied by [service-
member’s base pay on date of divorce] divided by Servicemember’s monthly gross retired pay
at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.
Or
When representing the former spouse, use the following for an
active reservist servicemember who entered the service before
September 8, 1980.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-
ally 50 percent)] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of retirement points earned
25-31-8 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
during marriage divided by total number of retirement points earned by servicemember on date
of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement
if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-
member’s total retirement points on divorce divided by 360] percent multiplied by the base pay
of a servicemember with Servicemember’s pay grade and longevity on the date of divorce
determined on the date of Servicemember’s retirement divided by Servicemember’s monthly
gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay
at retirement.
Or
When representing the servicemember, use the following for
an active reservist servicemember who entered the service on
or after September 8, 1980.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of disposable retired pay calculated as follows: [percentage awarded
former spouse] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of retirement points earned
during marriage divided by total number of retirement points earned by servicemember on date
of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement
if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-
member’s total retirement points on divorce divided by 360] percent multiplied by [service-
member’s high-36 month base pay on the date of divorce] divided by Servicemember’s
monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable
retired pay at retirement.
Or
© STATE BAR OF TEXAS 25-31-9
Form 25-31 Domestic Relations Order [Military Retirement]
When representing the former spouse, use the following for an
active reservist servicemember who entered the service on or
after September 8, 1980.
Because the servicemember’s high-36 month base pay at the
time of retirement for his or her pay grade and longevity on the
date of divorce cannot be determined on the date of divorce
but must wait for his or her retirement, it will probably be nec-
essary to “clarify” the DRO at or after the date the servicemem-
ber retires, because DFAS may not accept for processing an
order that contains the “high-36 month base pay at the time of
retirement” hypothetical. Therefore, both parties should be
notified that a clarification suit will probably have to be filed and
a clarifying order entered at that time.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember, on Servicemember’s retirement from the United States [branch
of service], the amount of disposable retired pay calculated as follows: [percentage awarded
former spouse] percent multiplied by [percentage of community interest in servicemember’s
military retired pay entitlement on date of divorce, that is, number of retirement points earned
during marriage divided by total number of retirement points earned by servicemember at
divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if
servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-
member’s total retirement points on divorce divided by 360] percent multiplied by the high-36
month base pay of a servicemember with Servicemember’s pay grade and longevity on the
date of divorce determined on the date of Servicemember’s retirement divided by Service-
member’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly
disposable retired pay at retirement.
Or
Use the following for a reservist servicemember who is retired
and receiving retired pay at the time of divorce whether repre-
senting the servicemember or the former spouse.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [number of servicemember’s retirement points earned during marriage
25-31-10 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
divided by total number of servicemember’s retirement points at retirement] percent multiplied
by Servicemember’s monthly disposable retired pay.
Or
Important: The attorney representing a servicemember who is
retired but not accruing points or receiving retired pay will want
to have the “retired pay” determined on the date of divorce
rather than using a percentage of retired pay at retirement. In
the latter formulation, the former spouse would receive the
benefit of the cost-of-living increases that accrue from the date
of the “retirement” or divorce to the date when the service-
member begins receiving retired pay, usually at age sixty. (In
2009, Congress passed a law to allow reservists and guards-
men who were recalled to and performed active duty on and
after January 30, 2008, to be entitled to receive retired pay
earlier than age sixty, at their election.)
Use the following for a reservist servicemember who is retired
and not accruing retirement points but not receiving retired pay
at the time of divorce, that is, one who is no longer a drilling
reservist but has not yet become entitled to receive retired pay.
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [percentage of community interest in servicemember’s military retired pay
entitlement on date of divorce, that is, number of servicemember’s retirement points earned
during marriage divided by total number of servicemember’s retirement points at divorce] per-
cent multiplied by [0.025 multiplied by servicemember’s total retirement points earned on date
of divorce divided by 360] percent multiplied by [servicemember’s high-36 month base pay at
divorce] divided by Servicemember’s gross retired pay at retirement multiplied by Service-
member’s disposable retired pay at retirement.
Or
Use the following when representing the former spouse of a
reservist servicemember who is retired and not accruing retire-
ment points but not receiving retired pay at the time of divorce.
© STATE BAR OF TEXAS 25-31-11
Form 25-31 Domestic Relations Order [Military Retirement]
IT IS THEREFORE ORDERED that Former Spouse have judgment against and
recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [percentage of community interest in servicemember’s military retired pay
entitlement on date of divorce, that is, number of servicemember’s retirement points earned
during marriage divided by total number of servicemember’s retirement points at divorce] per-
cent multiplied by Servicemember’s disposable retired pay at retirement.
Select one of the following COLA provisions.
Use the following if the former spouse is to receive COLAs.
IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former
Spouse each month the calculated percentage of Servicemember’s disposable retired pay at
retirement, together with all COLAs applicable thereto, payable IF, AS and WHEN received
by Servicemember.
Use the following if the former spouse is not to be awarded
and receive COLAs.
IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former
Spouse each month the fixed dollar award out of Servicemember’s disposable retired pay at
retirement, payable IF, AS and WHEN received by Servicemember, but Former Spouse shall
not be entitled to receive any COLAs related thereto.
Continue with the following when representing the former
spouse if the court will include this language, since it protects
the interest being awarded to the former spouse from the
effects of VA waiver and/or the servicemember’s application
for combat-related special compensation (CRSC) (10 U.S.C.
§ 1413a).
IT IS FURTHER ORDERED AND DECREED that the award herein shall in no event
be less than [number] dollars ($[amount]) per month, together with all COLAs hereafter appli-
cable thereto, of Servicemember’s retired pay. The Court recognizes, in making this award,
that DFAS, pursuant to the USFSPA, is authorized to pay Former Spouse only the herein-
25-31-12 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
awarded percentage of Servicemember’s “disposable retired pay,” and this Order, as to DFAS,
should be so construed.
Include the following if applicable.
If the former spouse is to be awarded the right to receive the
servicemember’s Survivor Benefit Plan (SBP) annuity benefits,
a decision must be made about who is to pay for it. If the
former spouse is to pay the full cost of the SBP premiums, the
simplest way to accomplish this result is to adjust the former
spouse’s percentage share of the disposable retired pay. The
attorney who is not adequately informed on this issue should
consult with someone who fully understands this aspect of
retired pay calculation before reaching an agreement on this
adjustment. If the former spouse’s share is to be adjusted to
provide for the former spouse’s paying all of the cost of the
monthly SBP premium, something like the following should be
inserted at this point in the order unless the servicemember is
already retired.
IT IS FURTHER ORDERED that the foregoing calculated percentage awarded Former
Spouse shall further be reduced, as necessary, to provide for Former Spouse’s payment of all
of the monthly Survivor Benefit Plan premium cost.
Continue with the following.
IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired
pay of Servicemember is the sole and separate property of Servicemember.
Amounts in Excess of 50 Percent
IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take
effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Former Spouse the
maximum amount allowable under the USFSPA and Servicemember shall be responsible for
paying the balance of the award each month to Former Spouse, and it is accordingly
ORDERED.
If DFAS is not allowed to pay Former Spouse the full amount of Former Spouse’s enti-
tlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within
seven days of being notified by Former Spouse that Former Spouse is not receiving the full
© STATE BAR OF TEXAS 25-31-13
Form 25-31 Domestic Relations Order [Military Retirement]
amount of Former Spouse’s interest in the retired pay, to execute and deliver to DFAS all
forms or documents that may then be necessary to effect an allotment payable to Former
Spouse in the amount of the difference between the amount being paid directly to Former
Spouse by DFAS and the full amount of Former Spouse’s interest in the retired pay. Service-
member is FURTHER ORDERED to keep and maintain in full force and effect any allotment
required by this provision, payable to Former Spouse at [address, city, state, zip code], or such
other address as Former Spouse may hereafter specify in writing, until such time as Former
Spouse begins receiving Former Spouse’s full separate-property share of Servicemember’s
disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled
by Servicemember if and when Former Spouse begins receiving, and for as long as Former
Spouse is receiving, Former Spouse’s full separate-property share of Servicemember’s dispos-
able retired pay directly from DFAS, but only in that event or to avoid double payment of
sums.
Include the following paragraph if applicable.
Since Former Spouse has been awarded the right to receive that share attributable to the
interest awarded to Former Spouse herein of any and all COLAs or other increases in the
monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from
DFAS [her/his] full share of the retired pay herein awarded to Former Spouse, if and when
COLAs are made to the retired pay received by Servicemember, Servicemember is hereby
ORDERED to execute and deliver to DFAS all forms or documents that may then be neces-
sary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-
and-cents equivalent of that COLA attributable to Former Spouse’s share of that disposable
retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if
applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working
days of the date Servicemember is notified by DFAS of the effective date of each COLA to
the monthly retired pay payment.
25-31-14 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
Constructive Trust
IT IS FURTHER ORDERED that Servicemember be and is hereby designated a con-
structive trustee for the benefit of Former Spouse for the purpose of receiving the retired pay
awarded herein to Former Spouse as Former Spouse’s sole and separate property, and Ser-
vicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to
Former Spouse at [her/his] last known address by negotiable instrument that portion of each
monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allot-
ment) by DFAS within three days of the receipt of any such payments by Servicemember. All
payments made directly to Former Spouse by DFAS shall be a credit against this obligation.
For purposes of this order, Servicemember is specifically directed, on penalty of con-
tempt, to pay Former Spouse’s interest in the disposable retired pay as ordered in this order,
and IT IS SO ORDERED. Servicemember is specifically directed that [he/she] is not relieved
of that obligation except to the extent that [he/she] is specifically notified that 100 percent of
Former Spouse’s interest in the retirement benefit has been directly paid by DFAS, and IT IS
SO ORDERED.
IT IS FURTHER ORDERED that any election of benefits that may hereafter be made
by Servicemember shall not reduce the amount equal to the percentage of the retired pay or
the amount of the retired pay the Court has herein awarded to Former Spouse, except as pro-
vided by federal law and prohibited from being changed by a state court order. In this regard,
IT IS FURTHER ORDERED that Servicemember shall not merge [his/her] military retired
pay with any other pension and shall not pursue any course of action that would defeat,
reduce, or limit Former Spouse’s right to receive Former Spouse’s full separate-property share
of Servicemember’s retired pay as awarded in this order, unless otherwise ordered herein.
© STATE BAR OF TEXAS 25-31-15
Form 25-31 Domestic Relations Order [Military Retirement]
Death
IT IS ORDERED that the payment of the retired pay awarded in this order to Former
Spouse shall continue until the death of Servicemember or Former Spouse.
Retiree Account Statements and Privacy Waiver
IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to
Former Spouse at [former spouse’s mailing address], or such other address as Former Spouse
may hereafter specify in writing, a true and correct legible copy of each Retiree Account
Statement received by Servicemember from DFAS within five days of its receipt.
IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may
be required for Former Spouse to obtain information relating to Servicemember’s date of
retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or
other information that may be required to enforce this award or to revise this order to make it
enforceable.
Include the following if applicable.
Retirement
IT IS ORDERED that Servicemember shall notify Former Spouse of [his/her] applica-
tion for retired pay, and provide Former Spouse with a true copy of [his/her] Application for
Retired Pay Benefits, on the date [he/she] applies for those benefits. This notification shall be
mailed by Servicemember to Former Spouse at [her/his] last known address. Servicemember
is FURTHER ORDERED to provide to Former Spouse a true and correct copy of the first
Retiree Account Statement received by [him/her] within five days of its receipt.
Continue with the following.
25-31-16 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
Application for Direct Payment of Retired Pay
Former Spouse is hereby directed to apply for Former Spouse’s entitlement to a portion
of Servicemember’s retired pay by contacting the DFAS Legal Department, completing the
Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it
along with a certified copy of this DRO (certified within ninety days of its delivery to DFAS)
and a photocopy of the parties’ marriage certificate to: DFAS-HGA-CL, Assistant General
Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by
certified mail, return receipt requested.
DD Form 2293 can be accessed and downloaded at www
.dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf.
Taxes
IT IS FURTHER ORDERED that Former Spouse shall include in [her/his] gross
income for [her/his] taxable years of receipt all retired pay received by Former Spouse pursu-
ant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Service-
member shall not include such benefits in Servicemember’s gross income for such taxable
years.
© STATE BAR OF TEXAS 25-31-17
Form 25-31 Domestic Relations Order [Military Retirement]
Survivor Benefit Plan
Important: If being awarded, it is mandatory that the order
state clearly that Survivor Benefit Plan (SBP) benefit coverage
is being awarded to the former spouse, to the parties’ children,
or to both, as applicable.
Payment of the SBP monthly premiums is deducted from the
gross retired pay by DFAS before DFAS applies the former
spouse percentage, that is, divides the retired pay between the
former spouse and the servicemember. If the attorney does
not want the spouses to share in the cost and wants the former
spouse to pay all of the cost of the SBP annuity, the premium
should be deducted from the former spouse’s share by reduc-
ing the percentage, or the former spouse can pay the service-
member each month (or other frequency period) for the
coverage. Ensure that the former spouse pays only his or her
share of the premium. For instance, if the former spouse is not
receiving 50 percent of total retired pay, the former spouse will
not be paying 50 percent of the premium, but will be paying
only the percentage of the disposable pay that has been
awarded to the former spouse. If the former spouse remarries
before age fifty-five, his or her entitlement to be a SBP benefi-
ciary is suspended for the duration of that marriage, but the
former spouse can, on the termination of that marriage, peti-
tion DFAS for reinstatement of the suspended benefit. During
the period of the suspended benefit, DFAS should, if timely
notified, also suspend the payment of the monthly premiums.
A servicemember may designate only one class of beneficiary
for the survivor benefits. Thus, if a former spouse beneficiary
has been designated, a new spouse cannot be designated as
a “spouse beneficiary” unless the former spouse is no longer
an eligible beneficiary. Also, the servicemember is not permit-
ted to award a fractional interest to the former spouse and
leave a portion for a future spouse. DFAS will pay the survivor
benefit to only the designated beneficiary(ies), i.e., spouse,
spouse and children, former spouse or former spouse and chil-
dren, on the death of the servicemember. Generally, the desig-
nation, once made, is irrevocable.
Select one of the following.
Use the following paragraph if the servicemember is retired,
the spouse is currently designated as a spouse beneficiary of
servicemember’s SBP, and the spouse is to be redesignated
as a former spouse beneficiary.
The Court further finds that Former Spouse is presently named a spouse beneficiary of
Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the
Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember’s election
to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by
25-31-18 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
Former Spouse’s being designated as a former spouse beneficiary and that Former Spouse’s
designation as a former spouse beneficiary should not hereafter be modified, amended, with-
drawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO
ORDERED.
Or
Use the following paragraph if the servicemember is not retired
and the spouse is to be designated as a former spouse benefi-
ciary of the SBP.
The Court further finds that Former Spouse should be designated as a former spouse
beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to
include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember
is ordered to designate Former Spouse as a former spouse beneficiary of the Survivor Benefit
Plan and that Former Spouse’s designation as a former spouse beneficiary should not hereaf-
ter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former
Spouse’s lifetime, and IT IS SO ORDERED.
Or
If an election is made to have the parties’ children covered as
beneficiaries of the SBP, recognize that the coverage will con-
tinue only as long as one or more of the children are under the
age of eighteen; the coverage can be continued until age
twenty-one if the child(ren) are enrolled in college or another
qualifying educational institution. If electing such a coverage,
use the following as applicable.
The Court further finds that [the parties’ child[ren]/Former Spouse and the parties’
child[ren]] should be designated as [a child beneficiary/child beneficiaries/former spouse and
child beneficiaries] of Servicemember’s Armed Forces Survivor Benefit Plan (which is
deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Ser-
vicemember is ordered to designate [the parties’ child[ren]/Former Spouse and the parties’
child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of
© STATE BAR OF TEXAS 25-31-19
Form 25-31 Domestic Relations Order [Military Retirement]
the Survivor Benefit Plan and that the designation of [the child[ren]/Former Spouse and the
child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries]
should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember
during the child[ren]’s eligibility [include if applicable: or Former Spouse’s lifetime], and IT
IS SO ORDERED.
Or
Although it is not necessary to specifically provide that there
will be no SBP former spouse coverage for the former spouse
since the failure to award the SBP benefit at the time of divorce
is res judicata on the issue (In re A.E.R., 2006 WL 349695
(Tex. App.—Fort Worth 2006) (mem. op.)), it is nevertheless
recommended that the following paragraph be included to spe-
cifically address the benefit.
The Court further finds that Former Spouse should not be designated as a former
spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan, and IT IS SO
ORDERED.
Continue with the following if the survivor benefit is awarded.
IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former
Spouse as a former spouse beneficiary of Servicemember’s Survivor Benefit Plan. IT IS FUR-
THER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed desig-
nated, to the extent permitted by law, a former spouse beneficiary of Servicemember’s
Survivor Benefit Plan to receive
Include one of the following.
the highest Survivor Benefit Plan entitlement allowed by law.
Or
[number] dollars ($[amount]) per month.
Or
25-31-20 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
the percentage equal to the percentage of Servicemember’s disposable retired pay awarded
Former Spouse in this order.
Or
[set out other formula for determination of share].
Continue with the following.
To the extent that Servicemember fails or otherwise refuses to cooperate in filing the
documents required to elect to designate Former Spouse as a former spouse beneficiary of
Servicemember’s Survivor Benefit Plan, Former Spouse is directed to apply for Former
Spouse’s entitlement to be deemed a former spouse beneficiary of Servicemember’s Armed
Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court’s deemed
election pursuant to 10 U.S.C. § 1447 et seq., completing a DD Form 2656-10 to effect the
deemed election, and sending it, along with a certified copy of this order, to U.S. Military
Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, return receipt
requested. Former Spouse’s failure to register [her/his] deemed election within one year of
the date this DRO is signed may, if not will, forever bar such an election for Former Spouse.
IT IS ORDERED that Servicemember shall not during Former Spouse’s lifetime mod-
ify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a
former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan.
© STATE BAR OF TEXAS 25-31-21
Form 25-31 Domestic Relations Order [Military Retirement]
DD Form 2656-1, the form for a servicemember to make a vol-
untary election for former spouse and/or child coverage, can
be accessed and downloaded at www.dtic.mil/whs/
directives/infomgt/forms/eforms/dd2656-1.pdf.
DD Form 2656-10, the form for a former spouse to effect a
deemed election for former spouse and/or child coverage, can
be accessed and downloaded at www.dtic.mil/whs/
directives/infomgt/forms/eforms/dd2656-10.pdf.
One of these forms must be sent to DFAS at the London KY
address, along with a certified copy of the decree of divorce
and/or DRO, to register the former spouse as a former spouse
beneficiary within one year of the date of the signing of the
decree of divorce. Failure to do so within the one-year period
will probably bar the former spouse from former spouse cover-
age.
Medical and Commissary Benefits
The following provision for medical and commissary benefits is
applicable only under certain circumstances. See the practice
notes at section 25.80.
The Court further finds that Former Spouse is entitled to receive medical and dental
care under the terms of 10 U.S.C. section 1071 et seq. and to commissary and post exchange
privileges to the same extent and on the same basis as a surviving spouse of a retired member
of the United States Armed Forces following the date the Final Decree of Divorce is signed.
Continued Jurisdiction and Clarification
The following provision may be added if the parties were mar-
ried for ten or more years during which the servicemember
performed ten or more years of active/qualifying reserve duty.
Otherwise, it should not be included in the order since DFAS
will not, under current law, pay the former spouse’s share of
retired pay directly to her/him in those circumstances.
Although the Court and the parties intend that DFAS make direct payments to Former
Spouse of Former Spouse’s interest in the disposable retired pay awarded herein, IT IS FUR-
THER ORDERED that, if this order does not qualify for direct payment, Servicemember shall
cooperate and do all things necessary to aid Former Spouse in obtaining a clarification of this
order that will qualify for direct payment of Former Spouse’s interest in the disposable retired
25-31-22 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement] Form 25-31
pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to
enter such a clarifying order.
Continue with the following.
Without affecting the finality of the Final Decree of Divorce or this Domestic Relations
Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas
Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO
ORDERED.
SIGNED on ________________________________.
_ ______ _____ ______ ______ _____ ______ ______ _____ ______ _____ _ _____ _____ ______ ______ _____ ______ _____ ______ ______ _____ ___ ___ _____ ______ _____ ______ ______ _____ ______ ___
JUDGE PRESIDING
© STATE BAR OF TEXAS 25-31-23