Brauer v. Brauer

• Decision Date: 20 September 2012
• Docket Number: NO. 02-11-00109-CV,02-11-00109-CV
• Parties: BARBARA ANN BRAUER APPELLANT v. MICHAEL GLEN BRAUER APPELLEE
• Court: Texas Court of Appeals

BARBARA ANN BRAUER APPELLANT

v.MICHAEL GLEN BRAUER APPELLEE

NO. 02-11-00109-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: September 20, 2012

FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION¹

In five issues, Appellant Barbara Ann Brauer contends that the trial court had no jurisdiction over this case, that the trial court erred by failing to apply applicable federal law and regulations, and that the trial court abused its discretion by awarding attorney's fees. Because we hold that the trial court did not reversibly err or abuse its discretion, we affirm the trial court's judgment.

I. Background Facts

Barbara and Appellee Michael Glen Brauer divorced in 1990. In the property division, the trial court awarded Barbara fifty percent of the civil service retirement earned by Michael during the marriage. The decree further provides,

IT IS FURTHER ORDERED that [Michael] shall not revoke, modify, amend, withdraw, or in any other form alter the designation of [Barbara], former spouse, the recipient of the Civil Service Retirement System [CSRS] Annuity.

The Court finds . . . as follows:

. . . .

5. That it is intended by the Court and the parties that the United States of America Office of Personnel Management [OPM] make the payments due to [Barbara] of her interest in the retirement benefits awarded in this decree directly to her . . . .

IT IS THEREFORE FURTHER ORDERED AND DECREED that the [OPM] pay to [Barbara], former spouse, directly, her interest awarded above in the retirement benefit to be paid by the [CSRS] or Basic Plan of the Federal Employee Retirement System [FERS] . . . in the proportion that the amount of the retirement benefit awarded herein on a monthly basis to [Barbara] bears to the total monthly retirement benefit paid on a monthly basis, if, as, and when such retirement benefits are due to be paid.

. . . .

IT IS FURTHER ORDERED AND DECREED that all payments shall be made directly to [Barbara] at [her address] or such other address as may be provided in writing to the [OPM].

IT IS FURTHER ORDERED AND DECREED that [Michael] is appointed a trustee for the benefit of [Barbara] to the extent of [her] interest awarded herein in the retirement benefits paid by the [CSRS] or by the Basic Plan of the [FERS]. [Michael] is ORDERED to pay [Barbara] her interest in same each month as it is received by [Michael] and in no event later than the 5th day of each month in which [he] receives such retirement pay following the date this final decree of divorce is signed by the Court. This paragraph shall be applicable tothe extent that the [OPM] fails to pay directly to [Barbara] the retirement benefits awarded to her herein, although it is anticipated by the Court that the [OPM] will make such payment directly.

For purposes of this decree, [Michael] is specifically directed to pay to [Barbara her] interest in the retirement benefits as received and no later than the 5th day of each month, upon penalty of being held in Contempt of Court if he fails to do so. [Michael] is specifically directed that he is not relieved of such obligation except in the event that he is specifically notified that the interest of [Barbara] in such retirement benefits has been paid directly to her by the [OPM].

IT IS FURTHER ORDERED AND DECREED that payment of all retirement benefits awarded herein to [Barbara] shall continue until the death of [Barbara].

But in September 1998, before any retirement benefits were paid to either party, they each signed a document providing that in exchange for Michael's payment to Barbara of the lump sum of $42,000 to be used by her as a down payment on a house, Barbara agreed to waive her portion of his retirement benefits. Michael also retained a five-year right of first refusal on the house Barbara planned to buy. The agreement additionally provided, "It is understood that Barbara . . . is freely accepting this revision to the divorce decree to facilitate purchase of the above noted residence."

In 2009, though, despite her earlier written agreement to waive her portion of the retirement benefits in exchange for $42,000, Barbara applied to the OPM for her share of the retirement benefits as provided in the decree, and the OPM began sending monthly payments to her. Michael sued for a declaratory judgment, filing his suit in the same court which granted the divorce.

In his first amended petition for declaratory judgment, Michael sought "judicial ratification and declaration of an agreement reached by the parties and memorialized in a writing signed by both parties." He also raised unjust enrichment and fraud claims and requested damages, exemplary damages, attorney's fees, interest on the judgment, and court costs.

After a bench trial, the trial court rendered judgment for Michael. In the judgment, the trial court designated Barbara as a trustee of any of the retirement benefits she receives and ordered her to turn over to Michael any retirement benefits immediately upon receipt. The trial court also granted Michael a judgment of $27,098.80 plus interest at the rate of 7.25% per year, which amount represents $15,506.80 already paid to Barbara from the retirement benefits and $11,592.00 of reasonable and necessary attorney's fees and costs. No one requested findings of fact or conclusions of law.

II. Subject Matter Jurisdiction Under State Law

In part of her first issue as well as parts of her third and fourth issues, Barbara contends that state law deprived the trial court of subject matter jurisdiction over this matter. She bases this contention on the assertion that Michael's declaratory judgment action was a collateral attack on the divorce decree. But Michael's lawsuit was based on the written agreement that he and Barbara entered into several years after the divorce; the lawsuit did not challenge the original property division but instead challenged Barbara's later actions of seeking and receiving the retirement benefits despite having given them up in writing in exchange for $42,000 severalyears after the divorce. This case is thus distinguishable from all the cases Barbara cites in support of her first issue. The trial court's judgment here did not modify the divorce decree; it enforced the written agreement entered into by the parties years after their divorce.

As the trial court stated,

THE COURT: [Barbara's Trial Counsel], this is a contract action.

[Barbara's trial counsel]: May we have . . . the Court's ruling that it is limited to a contract action?

THE COURT: You certainly have. The Court has told you this is a contract action. The Court has told you that is the evidence the Court —the only issue raised by the petition for declaratory judgment is this contract . . . . That's as simple as I know how to do it.

We express no opinion on whether the trial court was the only proper trial court to preside over this case, but Texas law provides that the trial court had subject matter jurisdiction over this suit.² We overrule this part of Barbara's first issue and those portions of her third and fourth issues arguing that this order is an impermissible modification of the divorce decree.

III. Subject Matter Jurisdiction Under Federal Law

In another part of her first issue and in part of her second issue, Barbara contends that the trial court lacked subject matter jurisdiction under the federal pre-emption doctrine. A defendant may raise a pre-emption argument for the first timeon appeal only if the issue of pre-emption implicates the subject matter jurisdiction of the court, that is, the choice of forum rather than merely the choice of law.³

Barbara does not argue that this case belongs in federal court. She does argue in part that the OPM has exclusive jurisdiction over whether her revocation of her waiver of rights in the agreement is valid. But the OPM performs no adjudicatory functions; it instead "performs purely ministerial actions" in following the trial court's instructions.⁴ Regulation 838.101(a)(2) provides,

In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court.⁵

Further, as our sister court in San Antonio has explained,

While Congress charged the OPM with making the benefits determinations concerning federal civilian employees, it also mandated that the OPM avoid resolving disagreements between parties concerning the validity or the provisions of court orders. Congressprovided that jurisdiction over such disagreements rests with the courts. ⁶

We therefore hold that the trial court was an appropriate forum for this dispute and overrule those portions of Barbara's first and second issues raising subject matter jurisdiction.

IV. Affirmative Defenses

A. Federal Pre-emption

Barbara's remaining pre-emption argument is based on choice of law, not choice of forum. She argues in portions of her first four issues that the trial court had no choice but to apply the Federal Civil Services Retirement Act⁷ and that federal law demanded a ruling in her favor despite the parties' agreement. Pre-emption in this case is therefore an affirmative defense.⁸

An affirmative defense generally must be set forth in a defendant's answer, or the issue will be waived.⁹ But the law also allows affirmative defenses to bepreserved if they are raised in summary judgment pleadings¹⁰ or the pleadings of other parties¹¹ or if they are tried by consent.¹² Barbara did not raise pre-emption in her answer or in a motion for summary judgment, nor do Michael's pleadings raise the issue. Our review of the reporter's record likewise reveals no...