Busby v. Busby

• Decision Date: 29 July 1970
• Docket Number: No. B--1553,B--1553
• Citation: 457 S.W.2d 551
• Parties: Earl E. BUSBY, Petitioner, v. Mary Lou BUSBY, Respondent.
• Court: Texas Supreme Court

Page 551

457 S.W.2d 551

Earl E. BUSBY, Petitioner, v. Mary Lou BUSBY, Respondent.

No. B--1553.

Supreme Court of Texas.

July 29, 1970.

Jones, Blakeslee, Minton, Burton & Fitzgerald, Charles R. Burton, Austin, for petitioner.

Mitchell, Gilbert & McLean, Phillip W. Gilbert, Charles E. Johanson, Maurice Angley, Jr., Austin, for respondent.

SMITH, Justice.

Respondent, Mary Lou Busby sued her former husband, Earl E. Busby, for partition of certain Air Force Disability Retirement benefits, which had not been divided by a judgment of divorce entered on June 25, 1963. The trial court, without the intervention of a jury, entered judgment that Respondent take nothing. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Respondent recover one-half of the retirement benefits. 439 S.W.2d 687. We affirm. The parties will be designated as they were in the trial court.

The first question for decision is whether the disability retirement benefits were or were not, community property at the time of the divorce of the plaintiff and the defendant. We have concluded that they were.

The facts are these. The defendant entered the United States Air Force on September 14, 1942. The defendant and plaintiff were married on March 1, 1946. On September 14, 1962 defendant completed 20 years of service in the Air Force and thus became eligible for voluntary retirement. On June 25, 1963 the Air Force ordered defendant's disability retirement on account of a diabetic condition and a thyroid deficiency, to be effective July 19, 1963. Defendant, at the time of the trial, had received, as disability retirement pay, the sum of $21,690.53 from July 20, 1963 through the date of trial in this case, January 31, 1968. The divorce decree disposed of certain real and personal property, but no disposition whatever was made of the retirement benefits involved in the present controversy. The Motion for New Trial in the divorce suit was overruled on July 1, 1963.

On November 1, 1967 the plaintiff filed this suit against the defendant to recover and have partitioned equally the disability retirement benefits which had been paid to the defendant at the time of trial as well as an equal one half of all benefits accruing in the future. The plaintiff contends that the defendant's right to the disability benefits accrued as a property right during the time of their marriage and thus was the community property of the parties at the time of their divorce. The defendant contends that he never possessed a 'property right' in the disability retirement benefits during the time of the marriage of the parties and therefore the benefits were not community property at the time of the divorce, and are now his separate property. He also asserts that if he did have a 'property right' in the benefits at the time of the divorce, such right arose prior to the marriage of the parties, and hence is separate property. We do not agree with the defendant's contentions for the reasons now to be stated.

We are persuaded by the decisions in the cases of Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App. 1960) no writ, and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968) writ dism'd., in reaching our decision in this case. The defendant contends that the result reached in those cases can only be rationalized as a division of the estate of the parties under the broad equity powers given to the trial court in a case of divorce, and that the case now before the Court is fundamentally different in that it is a partition suit and not a case of divorce.

In Kirkham, the trial court granted the wife a divorce and awarded her: custody of a child, support for the child, a portion of certain unspecified community property, and a thirty per cent interest in and to the military retirement pay account of the husband. The husband attacked only the part of the judgment that awarded the wife a thirty per cent interest in his retired pay account. His three points of error were that (1) the military retired pay account Was not the community property of the parties, (2) that it was error to award the wife Thirty per cent of it, and (3) that it was error to award the wife a Money judgment for part of it. The Court of Civil Appeals overruled all three of these points. It held that the military retirement pay account was not a gift or gratuity but an Earned property right which accrued to him by reason of his years of service in military service; the military retirement pay account was earnings of the husband during marriage, and as such, community property, citing Art. 4619, Vernon's Ann.Civ.Stats. The Court of Civil Appeals affirmed the trial court action of awarding the wife thirty per cent of the retirement pay account, instead of the correct 27.8% As argued by the husband, on the theory that the trial court is vested with a wide discretion in adjudicating a partition of the community estate in cases of divorce. Finally, the last point was overruled on the authority of Berg v. Berg, 115 S.W.2d 1171 (Tex.Civ.App. 1938) writ dism'd, and Keton v. Clark, 67 S.W.2d 437 (Tex.Civ.App. 1934) writ refused.

Mora was a divorce suit in which the wife on appeal complained of the failure of the trial court to find that a portion of the husband's interest in a military service retirement plan was the community property of the parties. The Court of Civil Appeals relied upon its earlier decision in Kirkham v. Kirkham for the proposition that an interest in a military retirement plan was an earned property right which accrued by reason of his military service, and that the portion earned during marriage constitutes community property under Article 4619, Supra. The Court held that the husband acquired a vested property right when he had served a length of time sufficient to entitle him to retirement benefits upon his election to retire, even though at the time of trial he had not yet retired, and even though retirement payments would not be payable until he did retire, citing Herring v. Blakeley, 385 S.W.2d 843 (Tex.Sup., 1965). The court also held that the fact that, the service man might die or receive a dishonorable discharge before retirement, and thus forfeit his retirement benefits, did not reduce his interest in his retirement benefits to the status of a 'mere expectancy.' Those contingencies merely made his interest subject to divestment, but it was nevertheless a vested property right. The court further held that the interest of the community in the retirement plan was represented by the fraction 176/308, because the interest was earned as the result of 308 months of military service, including 176 during the time of the marriage of the parties. The case of Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969) no writ, is also in accord with Kirkham and Mora.

In considering the same question, the Supreme Court of Washington in Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966) quoted extensively from Kirkham, and held:

'The retirement pay account is not a gift or gratuity accruing to appellant, but is an earned property right which accrues by reason of his years of service in military service.'

The decision of the Supreme Court of New Mexico in LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969) is also in accord, citing Kirkham and Mora.

The defendant has sought to distinguish all of the above cases on the ground that they dealt with Voluntary retirement from military service which he contends is different from the Disability retirement situation involved in this case. We can see no distinction. 'Voluntary retirement' refers to the right of a service man to voluntarily retire, upon his election to do so, after he has completed a required tenure of service. See Title 10 United States Code Annotated, Article 8911 ¹ for the statute pertaining to the Air Force. Similar Statutes govern other branches of the military service. ² In all of the cases herein above discussed, the service man had satisfactorily completed the required tenure of service that made him eligible for voluntary retirement, subject only to his election to so retire. The right having become fixed subject to the sole contingency of the service man's election, during the time the marital relationship existed, it was held to be vested as community property, to the extent that it accrued during the time of the marriage even though the voluntary election to retire had not been made as of the date of the divorce of the parties. Judgments were rendered providing for the wife's portion 'if, when, and as' the benefits were paid to the husband.

The retirement benefits...