Arrambide v. Arrambide

• Decision Date: 04 June 1980
• Docket Number: No. 6922,6922
• Citation: 601 S.W.2d 197
• Parties: Severo ARRAMBIDE, Appellant, v. Isabel ARRAMBIDE, Appellee.
• Court: Texas Court of Appeals

Page 197

601 S.W.2d 197

Severo ARRAMBIDE, Appellant, v. Isabel ARRAMBIDE, Appellee.

No. 6922.

Court of Civil Appeals of Texas, El Paso.

June 4, 1980.

David L. Evans, Law Office of Byron L. McClellan, Jr., Copperas Cove, on appeal only; Byron L. McClellan, Jr., Copperas Cove, Edward C. Hughes, El Paso, Loveless, Hartley, Eakman, David L. Evans, Fort Worth, for appellant.

Arne Carl Schonberger, El Paso, for appellee.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit by a former wife against her former husband seeking partition of military retirement benefits that were not divided when the parties were divorced. The principal question presented is whether the Texas community property law has been preempted by a federal statute. The trial Court rendered judgment for the former wife, awarding her a percentage of the former husband's past and future military retirement benefits. We reverse and remand for another trial.

Appellant and Appellee were married in 1948 and were divorced in 1967, having been married 228 months. Appellant entered the United States Army in November of 1943, and retired from military service on September 1, 1974, having 381 months in the service. At the time of divorce, the wife was awarded the home and furniture, which was the only property of the marriage. Appellant's military retirement benefits were not matured at that time, and no division or mention of them was made in the judgment of divorce. The 1967 divorce was heard eight years before the Supreme Court decided in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), that the retirement benefits are subject to division as vested contingent community property rights, even though the right had not fully matured. It is now well settled that such military retirement benefits are a part of the community estate and subject to division at the time of divorce, whether matured or unmatured. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Busby v. Busby, 457 S.W.2d 551 (Tex.1970). But, in some instances, federal statutes may prohibit such division and that is the question that confronts us here.

In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the Supreme Court held that benefits payable under the Railroad Retirement Act, and the expectation of ultimately receiving future benefits under the Act, are not subject to division by a state court as "property" upon divorce. Section 231m of the Railroad Retirement Act provides in part that payments under it shall not be subject to any "legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated . . .." The Supreme Court held that the California state court was precluded from applying its community property law to award the wife an interest in the husband's expectation of ultimately receiving benefits under the Act since, under the supremacy clause of the United States Constitution, such an award would impermissibly conflict with the provisions of the Railroad Retirement Act. 45 U.S.C.A. section 228a et seq. In Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979), the Texas Supreme Court held that it was bound by the Hisquierdo decision, and that the award of 40% of the husband's railroad retirement benefits to the wife as a division of the property of the parties was erroneous. A similar result was reached in Perez v. Perez, 587 S.W.2d 671 (Tex.1979), when it was held that military readjustment benefits paid to a spouse pursuant to a federal statute were not community property under Texas law. In accordance with the holding in the Hisquierdo case, the Court carried out the Congressional intent and classified the benefits as a gift under Texas property rules to comport with the stated federal objectives.

In December of 1979, the Texas Supreme Court was again faced with a preemption question in Ex parte Johnson, 591 S.W.2d 453. It was held that an award to a divorced wife of 50% of the husband's anticipated future disability benefits from the Veterans Administration conflicted with the clear intent of Congress that such benefits be solely for the use of the disabled veteran and are exempt from seizure under legal process. Following service in the Navy, the...