Koepke v. Koepke
| Decision Date | 27 May 1987 |
| Docket Number | No. C-6350,C-6350 |
| Citation | 732 S.W.2d 299 |
| Parties | Dorothy J. KOEPKE, Petitioner, v. Charles H. KOEPKE, Respondent. |
| Court | Texas Supreme Court |
Jane Freeman Deyeso, Deyeso & Deyeso, San Antonio, for petitioner.
Earle Cobb, Jr., San Antonio, for respondent.
This is a partition suit brought by the former wife of a military serviceman to obtain division of military retirement benefits. The trial court rendered summary judgment partitioning the retirement benefits. The court of appeals reversed the summary judgment and rendered judgment for the former serviceman/husband holding that the prior divorce decree had disposed of the retirement benefits and was accordingly res judicata of the issue. 726 S.W.2d 615 (Tex.App.1987) A majority of this court reverses the judgment of the court of appeals and affirms the judgment of the trial court.
The divorce decree was rendered after the decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), but before the effective date of the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (February 1, 1983). McCarty forbade the division of military retirement benefits by state courts and further forbid any adjustment in the award of other community property to balance the loss of these benefits. The effect of USFSPA was to erase all memory of McCarty. See Allison v. Allison, 700 S.W.2d 914 (Tex.1985).
Since the enactment of USFSPA, we have approved partition as a means to remedy certain injustices caused by McCarty. Partition, however, has been limited to those post-McCarty divorce decrees which did not expressly award the military retirement benefits to the serviceman. Compare Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985) with Allison v. Allison, 700 S.W.2d 914 (Tex.1985). The express award of retirement benefits in a divorce decree operates as a bar to any subsequent partition suit under principles of res judicata. Constance v. Constance, 544 S.W.2d 659, 660-61 (Tex.1976).
The court of appeals in the present case attempts to apply Constance, holding that the following language constitutes an express award of the military retirement benefits: "All relief requested in this case and not expressly granted herein be and is hereby denied." To construe this language, the court of appeals looked behind the judgment to the pleadings of the former wife which purportedly sought part of the military retirement benefits. The court of appeals then deduced that the failure to award the former wife a share of the military retirement benefits must have been an award of such benefits to the former serviceman/husband because a judgment which incorporates the above language "expressly disposes of all parties and issues in the case," citing...
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