Bloomer v. Bloomer
| Decision Date | 13 June 1996 |
| Docket Number | No. 01-91-01428-CV,01-91-01428-CV |
| Citation | 927 S.W.2d 118 |
| Parties | David A. BLOOMER, Appellant, v. Patricia Anne BLOOMER, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
James N. Higdon, San Antonio, Martin D. Carden, Richmond, for appellant.
Ronald R. Pope, Richmond, for appellee.
Before SCHNEIDER, C.J., and O'CONNOR and WILSON, JJ.
The issue in this case is the proper method of characterization of reserve duty military and civil service retirement benefits. This is an appeal from the rendition of a final divorce decree after a bench trial. Appellant David A. Bloomer challenges in two points of error the characterization and award of part of his Air Force and civil service retirement benefits to appellee Patricia Anne Bloomer, his former wife. 1 We reverse.
The Bloomers were married a total of 160 months from March 18, 1978 to June 19, 1991, the date the trial court rendered a decree granting their divorce. At trial, David testified without objection that he earned 2479 points for his Air Force reserve service before his marriage and 906 points during his marriage, for a total of 3385 points. 2 The trial court, however, characterized and awarded the military retirement benefits to Patricia as follows:
All right, title, and interest in and to 34% ( 1/2 X 160/236) of the United States Air Force disposal retired [sic] or retainer pay to be paid as a result of DAVID A. BLOOMER's service in the United States Air Force, and 34% of all increases in the United States Air Force disposable retirement or retainer pay due to cost of living or other reasons, if, as, and when received.
The characterization and award was based on David's months of military service, rather than the points he accrued during marriage. The court explained the award by stating,
In David's first point of error, he contends the trial court erred in rendering its divorce decree because the court awarded a portion of his separate property, the military retirement benefits, to Patricia. See TEX.FAM.CODE ANN. § 5.01(a)(1) (Vernon 1993) (). David argues that the 2479 points he accrued before his marriage are his separate property and the 906 points he accrued during his marriage are community property. We agree.
Patricia is entitled to a just-and-right division of the community estate's interest at the time of divorce in David's contingent right to military retirement benefits. Taggart v. Taggart, 552 S.W.2d 422, 423 (Tex.1977); see TEX.FAM.CODE ANN. § 3.63(a) (Vernon 1993); Berry v. Berry, 647 S.W.2d 945, 947 (Tex.1983). The trial court apparently attempted to follow Taggart literally in characterizing the community estate's share of David's military retirement benefits. In Taggart, the former husband had 360 months of active and retired naval service, with 246 months of those months earned during marriage. The supreme court held the former wife was entitled to a division of the percentage of the former husband's retirement benefits that belonged to the community estate, i.e., 246/360. Taggart, 552 S.W.2d at 424.
A literal application of the characterization of property under the facts in Taggart would be inappropriate in this case. A California appellate court has observed that military retirement benefits for active duty personnel are in effect based on the number of months served, as long as the retiree has the minimum number of years of service, i.e., 20 years. In re Marriage of Poppe, 97 Cal.App.3d 1, 158 Cal.Rptr. 500, 501 (Ct.App.1979); see 10 U.S.C.S. §§ 12731(a), 12732(a)(2) (Law. Co-op Supp.1996). Military retirement benefits for reserve personnel, however, are based on the total number of points the retiree accumulated during reserve duty, as long as the retiree accumulated at least 20 years in which at least 50 or more points were earned. Poppe, 158 Cal.Rptr. at 501; see 10 U.S.C.S. §§ 12731(a), 12732(a)(2) (Law. Co-op Supp.1996). 3 Depending on how active a reservist is, the reservist could accumulate more points before marriage than are accumulated during marriage, even though the reservist has spent more calendar time as a married reservist than as an unmarried one.
In Poppe, the court was faced with facts similar to this case. The Poppe court concluded that the California trial court's apportionment was erroneous because the basis of the apportionment, the ratio of the months of reserve duty service during marriage compared to the total months of reserve duty service, bore no substantial rational relationship to the amount of the pension. Poppe, 158 Cal.Rptr. at 503. We adopt the rationale of Poppe and apply it to this case.
The trial court should have characterized David's military retirement benefits by comparing his points accrued while married to the total accrued points, i.e., 906/3385, or 26.77 percent. It was this 26.77 percent of David's military retirement benefits that was subject to a just-and-right division. The remaining 73.23 percent was his separate property and was not subject to division. 4 The trial court's decree divested David of a portion of his separate property, which the court did not have the power to do. 5 See Cameron v. Cameron, 641 S.W.2d 210, 215 (Tex.1982); Powell v. Powell, 822 S.W.2d 181, 184 (Tex.App.--Houston [1st Dist.] 1991, writ denied). Accordingly, we sustain David's first point of error.
David testified without objection at trial that he had worked for the Department of Veterans Affairs and its predecessor, the Veterans Administration, from December 1978 to the present, which amounts to a total of 151 months from December 1978 to the rendition of the divorce decree. David also testified that he was married to Patricia during the entire time he was employed by the VA and that the present value of his civil service retirement was $34,454.25.
The trial court characterized and awarded a portion of David's civil service retirement to Patricia as follows:
All right, title, and interest in and to the monthly amount determined under the formula set forth below from the gross annuity to be paid by the Civil Service Retirement System (or the Federal Employees Retirement System in the event DAVID A. BLOOMER transfers from the Civil Service Retirement System to the Federal Employees Retirement System Basic Plan) as a result of DAVID A. BLOOMER's employment in the civil service of the United States of America (and any service in the Armed Forces of the United States of America and all employment which is creditable in determining retirement benefits), if, as, and when payable, and a proportional share of all costs of living increases therein, in the proportional share that the award to PATRICIA ANNE BLOOMER on a monthly basis bears to the total monthly annuity payment paid, all of said payments to be paid as set forth below. In the event a lump sum credit is paid from the Civil Service Retirement System Basic Plan (or the Federal Employees Retirement System in the event DAVID A. BLOOMER transfers from the Civil Service Retirement System to the Federal Employees Retirement System Basic Plan) PATRICIA ANNE BLOOMER is awarded and shall receive an amount determined under the formula set forth below from such lump sum payment to be paid as set forth below.
The Formula to determine the monthly amount to be paid to PATRICIA ANNE BLOOMER is:
1. 151 months divided by the total number of months credited toward DAVID A. BLOOMER's retirement in the Civil Service Retirement System (or Federal Employees Retirement System) times 1/2 times the amount of the gross annuity (or the amount of the lump sum credit if that is what is paid).
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