Anderson v. Anderson

• Decision Date: 27 February 1986
• Docket Number: No. 13-85-158-CV,13-85-158-CV
• Parties: William R. ANDERSON, Jr., Appellant, v. Opal Marie ANDERSON, Appellee.
• Court: Texas Court of Appeals

Page 166

707 S.W.2d 166

William R. ANDERSON, Jr., Appellant, v. Opal Marie ANDERSON, Appellee.

No. 13-85-158-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 27, 1986.

Rehearing Denied March 20, 1986.

George Ann Harpole, Corpus Christi, for appellant.

Pat Morris, Corpus Christi, for appellee.

Before BENAVIDES, UTTER and SEERDEN, JJ.

OPINION

BENAVIDES, Justice.

Upon divorce, the parties entered into an agreed Property Settlement Agreement (PSA), and agreed Divorce Decree which incorporated by reference the PSA. Appellee sought to enforce the decree with regard to appellant's military retirement benefits. The trial court awarded appellee one-half of the accrued and future military retirement benefits received or receivable by appellant, plus attorney's fees, which resulted in this appeal.

The parties were married on September 14, 1946, and divorced June 21, 1971. Appellant served on active duty with the United States Army from July 6, 1942, to July 30, 1946, then served in the Army Reserve from May 16, 1942 to July 5, 1942, and July 31, 1946 to July 30, 1963, with an additional year credited to June 30, 1964. At the time of divorce, Mr. and Mrs. Anderson entered into an agreed Property Settlement Agreement and Divorce Decree which, among other things, divided appellant's military retirement benefits. In 1983, two years after appellant became eligible to receive benefits, appellee sought enforcement of the decree by contempt, and asserted breach of contract, fraud, and breach of fiduciary duty. Appellant counterclaimed with a declaratory judgment action seeking to limit appellee's share of his retirement pay to one-half of her community property interest valued at the time of divorce.

Appellant brings three points of error, claiming: (1) the trial court erred in awarding appellee one-half of his retirement benefits based on present and future values instead of being valued at the date of divorce "as directed by the Supreme Court of Texas in Berry v. Berry, 647 S.W.2d 945 (Tex.1983);" (2) the trial court erred in not limiting appellee's entitlement to her "community property" interest in appellant's retirement pay, valued at the date of divorce, in accordance with the provisions of the divorce decree; and (3) the trial court erred in awarding appellee attorney's fees.

Appellant's first point of error questions the value of the benefits awarded; his second point examines the extent of the benefits awarded to appellee. In determining whether the trial court awarded appellee her proper share of appellant's retirement benefits, we must first examine the exact words of the Property Settlement Agreement. The PSA, in pertinent parts, reads as follows:

II.

William Robert Anderson, Jr. does hereby relinquish all of his interest in the community property heretofore owned by the Petitioner and the Respondent and hereinafter identified in this Section II of this agreement; and the Petitioner and Respondent do each agree that the Respondent, Opal Marie Anderson, shall have and be awarded as her separate property and estate each and all of the following properties as her full and complete share of all of her rights, claims and demands in and to all community property owned by the Petitioner and the Respondent and in complete settlement of all her rights, claims and demands of accounting with reference to such community property;

(f) One-half interest in U.S. Army Reserve Retirement of William R. Anderson, Jr., said interest payable at the said William R. Anderson, Jr. attaining age 60. [Emphasis added.]

The portion of the agreed Divorce Decree which appellee sought to enforce reads as follows:

IT IS THEREFORE ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court that the Property Settlement Agreement hereto attached and marked Exhibit "A" and made a part hereof for all intents and purposes, heretofore made and entered into by and between Petitioner and Respondent, be and the same is hereby approved, adopted and ordered entered as the Judgment of this Court.

Further, in accordance with said attached agreement, should Respondent, Opal Marie Anderson for any reason be unable to collect her separate property one-half interest in United States Army Reserve Retirement referred to in the attached agreement which becomes payable when Petitioner attains age sixty (60), from the appropriate governmental disbursing officer, and the full amount of said retirement is paid to Petitioner, then Petitioner shall and may only accept the same in a fiduciary capacity to the extent of one-half thereof for the benefit of Respondent, and Petitioner is hereby ordered and required, as each such payment is received, to forthwith immediately remit to Respondent her said one-half of said retirement benefits as they are paid to him.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that each of the parties hereto fully carry out the terms, provisions, intents and purposes of the attached settlement agreement. [Emphasis added.]

Appellee was awarded one-half of appellant's retirement benefits which he received from December 1981 (the effective date of his retirement), to the date of trial, and one-half of those received or receivable in the future. Appellant claims that the award should be determined by the amount he was eligible to receive as of the date of divorce, citing Berry v. Berry, 647 S.W.2d 945 (Tex.1983).

The main question is whether the benefits were to be valued as of the divorce date. At the time of divorce (June 21, 1971), appellant would have received $273.79 per month had he been eligible to receive benefits; when he became eligible for benefits (i.e., December 1981, when appellant reached 60 years of age), he began actually receiving $530.42 per month. Appellant claims that appellee is only eligible to receive a percentage of benefits as valued at divorce and only that percentage earned during marriage, in accordance with the formula outlined in Berry. We disagree. As appellant notes, Berry was a post-divorce suit for partition in which the husband worked an additional twelve years after divorce, resulting in increased retirement pay.

This is not a post-divorce partition suit, nor did Mr. Anderson work any extra years in the military after divorce; he was merely waiting to live ten more years to collect on what had already accrued in his behalf.

Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983), cert. denied, 464 U.S. 894, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983), controls the disposition of appellant's first point of error. In Segrest, the divorce decree incorporated a property settlement agreement which treated military retirement benefits as part of the community estate of the parties. The Supreme Court held that the United States Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that military retirement benefits are not divisible as community property in state court, did not require retroactive application as to divorce decrees which were final prior to the announcement of that decision and which treated military retirement benefits as community property. The Court also held the divorce decree may have been erroneous or voidable, but not void; thus, the rule of res judicata was applicable and a declaratory judgment suit was an improper and impermissible attack on the final decree of divorce.

In this case, the divorce was final in June, 1971; McCarty was decided ten years later. The trial court was not required by law to value appellee's interest in appellant's retirement benefits as of the date of divorce, nor was the court required to apply the Berry formula to limit appellee's portion of benefits to those earned during marriage. See Tyson v. Alexander, 672 S.W.2d 624 (Tex.App.--Amarillo 1984, no writ); Ex parte Deckard, 656 S.W.2d 151 (Tex.App.--El Paso 1983, no writ); Gaudion v. Gaudion, 601 S.W.2d 805 (Tex.Civ.App.--Austin 1980, no writ), affirming awards similar to the award in the case at bar. Moreover, post-divorce increases in future payments of a husband's non-disability military retirement benefits do not constitute the separate property of the retired spouse, but rather, both parties will share in future "increases" and "decreases" in the retirement benefits. Neese v. Neese, 669 S.W.2d 388 (Tex.App.--Eastland 1984, writ ref'd n.r.e.).

This...