Buys v. Buys
| Decision Date | 14 December 1994 |
| Docket Number | No. 04-93-00302-CV,04-93-00302-CV |
| Parties | Alene M. BUYS, Appellant/Appellee, v. Norbert F. BUYS, Appellee/Appellant. |
| Court | Texas Court of Appeals |
Leonard J. Gittinger, Jr. and L. John Gittinger, III, Gittinger & Gittinger, San Antonio, for appellant.
Gary A. Beahm, Law Offices of Gary A. Beahm, San Antonio, for appellee.
Before BUTTS, RICKHOFF and HARDBERGER, JJ.
This case decides in a post-divorce action what benefits a husband (Norbert) receives and what benefits a wife (Alene) receives of:
1. Military Retirement benefits;
2. Civil Service Retirement benefits.
The following dates are significant
September 22, 1953 -- Marriage of Norbert and Alene
January 22, 1970 -- Divorce of Norbert and Alene
February, 1985 -- Norbert retires from Civil Service
February 3, 1990 -- Norbert retires from the Air Force Reserve
July 13, 1990 -- Suit brought by Alene for retirement benefits from both
the Air Force and the Civil Service.
Of significance is that the Uniformed Services Former Spouses Protection Act and its 1990 amendment holds that there can be no benefit division from military retirement if the divorce happened before 1981, and the benefits were not divided before or at that time. Alene's position is that that divorce decree of 1970 has already partitioned those benefits because of the residuary clause in the decree which says that all community property not specifically mentioned, goes to Alene. There was no specific mention of either the Air Force or the Civil Service retirement benefits. Thus there is a conflict between the Former Spouses Act and the residuary clause of the divorce.
We hold that the Former Spouses Act and its 1990 amendment defeats whatever claim Alene may have under the residuary clause as to any military pension benefits. We also hold that Alene is entitled to her community interest in the Civil Service Retirement benefits.
Alene M. Buys and Norbert F. Buys were married on September 22, 1953. The parties were divorced on January 22, 1970. The divorce included an Agreement of Property Settlement and Partition of Property which did not expressly address either military or civil service retirement benefits but did contain a residuary clause awarding all community property, not specifically mentioned, to Alene Buys.
At the time of the divorce Norbert Buys was a member of the United States Air Force Reserve serving in the pay grade of E-7 (Master Sergeant). In addition he was working for the United States Civil Service in the pay grade of W-F-7 and had worked for the Civil Service for approximately 14 years. Norbert Buys retired from Civil Service in February of 1985 and from the United States Air Force Reserve on February 3, 1990.
Alene Buys filed an Original Petition on July 13, 1990 to determine and enforce her entitlement in the accrued or vested interests of the parties to both the Civil Service Retirement Annuity and the United States Air Force Retirement. The case was tried to the court which entered judgment that the 1970 Decree of Divorce failed to divide the retirement rights. The court proceeded to divide both the Civil Service Annuity and the United States Air Force Retirement.
The court found that Norbert Buys had accrued two hundred and forty (240) months of active duty service and active reserve service towards retirement in the United States Air Force Reserve. The court also found that two hundred and ten (210) months out of the total were community property. The court awarded Alene Buys one half of the community interest in the military retirement pay which amounts to 43.75% of the total military retirement pay. Alene was also awarded $7,501.41 which represented 43.75% of the total sum of military retirement pay received by Norbert Buys between the date of his retirement and the date of trial.
Concerning the civil service retirement pay, the court found that Norbert Buys had accumulated three hundred and ninety (390) months total service and that two hundred nine and a half (209.5) months out of the total were community property. The court also awarded Alene one half of the community's interest in the civil service retirement pay which equals 23.86% of the total civil service retirement benefits. Alene was awarded $30,890.06 which represents 23.86% of all civil service retirement benefits received by Norbert Buys from the date of retirement through the date of trial. Both parties appealed from the judgment.
Alene Buys argues in her first point of error that the trial court erred in finding that the divorce's Property Settlement Agreement did not divide all of the then accrued or vested rights in both the Civil Service Retirement Annuity and the United States Air Force Retirement. She says it did. Norbert Buys argues in his second cross-point of error 1 that the trial court was without jurisdiction to divide his military retirement pay and award a proportionate share to Alene because the 1970 divorce decree didn't discuss his military retirement and thus any post-divorce attempt to partition his retirement is preempted by the 1990 amendment to 10 U.S.C. § 1408, the Uniformed Services Former Spouses' Protection Act, (Former Spouses Act). We will consider both points together.
Traditionally, Texas courts considered military retirement and disability benefits community property divisible upon divorce. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.--San Antonio 1960, no writ). If military benefits were not divided at divorce then the parties jointly owned the retirement benefits as tenants in common and partition was the correct way to divide the benefits. Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985); Busby, 457 S.W.2d at 554. However, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court prohibited 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.
In response to McCarty, Congress enacted the Uniformed Services Former Spouses' Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (). The purpose of the Former Spouses Act was to reverse the effect of the McCarty decision. Cameron v. Cameron, 641 S.W.2d 210, 212 (Tex.1982). Under the Former Spouses Act, a court may divide military retirement pay between spouses in accordance with the law of the jurisdiction of that court. The act limits the division of retirement pay to periods beginning after June 25, 1981. 10 U.S.C. § 1408(c)(1).
In 1990, Congress amended the Former Spouses Act to restrict the ability of courts to partition military retirement benefits that were not addressed in a final decree of divorce entered before 1981. The 1990 amendment to the Former Spouses Act reads as follows:
A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.
10 U.S.C.A. § 1408(c)(1) (West Supp.1993). The 1990 amendment was enacted to correct an unforseen and unintended consequence of the Former Spouses Act--the reopening of numerous divorce cases finalized before McCarty. See Redus v. Redus, 852 S.W.2d 94, 96 (Tex.App.--Austin 1993, writ denied). The purpose of the 1990 amendment is clearly set forth:
The committee is concerned because some state courts have been less than faithful in their adherence to the spirit of the law [USFSPA]. The reopening of divorce cases finalized before the Supreme Court's decision in McCarty v. McCarty that did not divide retired pay continues to be a significant problem. Years after final divorce decrees have been issued, some state courts, particularly those in California, have reopened cases (through partition actions or otherwise) to award a share of retired pay. Although congress has twice stated in report language that this result was not intended, the practice continues unabated. Such action is inconsistent with the notion that a final decree of divorce represents a final disposition of the marital estate.
H.R.Rep. No. 665, 101st Cong., 2d Sess. 279, reprinted in 1990 U.S.Code Cong. & Admin.News 2931, 3005 (emphasis added). The 1990 amendment to the Former Spouses Act is intended to grant repose to pre-1981 divorce decrees that failed to award military retirement benefits. Redus, 852 S.W.2d at 96.
In the present case, it is undisputed that the parties marriage was ended by a final decree of divorce issued before June 25, 1981. The parties disagree about whether the 1970 divorce decree "treated" Norbert's military retirement benefits. Norbert argues that the 1970 divorce decree did not treat his military retirement benefits and thus falls within the parameters of amended 10 U.S.C. § 1408(c)(1) barring Alene from bringing an action to partition those benefits. Alene counters that the 1970 divorce decree in fact did treat the military retirement in the residuary clause and thus the judgment in the current action falls outside the scope of the 1990 amendment.
It is undisputed that the 1970 divorce decree did not expressly mention Norbert Buys' military retirement benefits. The property settlement agreement incident to the divorce did contain the following residuary clause:
All of the other...
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