Buys v. Buys

• Citation: 924 S.W.2d 369
• Decision Date: 14 June 1996
• Docket Number: No. 95-0521,95-0521
• Parties: 39 Tex. Sup. Ct. J. 756 Alene M. BUYS, Petitioner, v. Norbert F. BUYS, Respondent.
• Court: Texas Supreme Court

Page 369

924 S.W.2d 369

39 Tex. Sup. Ct. J. 756

Alene M. BUYS, Petitioner, v. Norbert F. BUYS, Respondent.

No. 95-0521.

Supreme Court of Texas.

June 14, 1996.

Rehearing Overruled July 12, 1996.

L. John Gittinger, Yolanda I. Gonzalez, Leonard J. Gittinger, Jr., Gittinger & Gittinger, San Antonio, for petitioner.

Gary A. Beahm, Law Office of Gary A. Beahm, San Antonio, for respondent.

BAKER, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, CORNYN, ENOCH, OWEN, and ABBOTT, Justices, join.

BAKER, Justice.

The main issue in this case is whether the residuary clause in a property settlement agreement incident to a divorce, granting the wife the community property rights in the husband's unidentified intangible property, must expressly mention military retirement benefits to comply with the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(1). The court of appeals held that the statute requires the divorce decree to expressly mention the military retirement benefits to "treat (or reserve jurisdiction to treat)" the benefits, without which an award or partition is unenforceable under the statute. 898 S.W.2d 903. We disagree. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion.

I. THE FACTUAL BACKGROUND

Alene and Norbert Buys married in 1953 and divorced in 1970. The divorce decree incorporated the parties' property settlement agreement. The residuary clause of the agreement stated:

All of the other properties, financial assets and belongings of the parties hereto, whether separate or community, not specifically set aside to the defendant [Norbert Buys] under Paragraph I. above shall be and is hereby specifically set apart, assigned, given, granted and conveyed to plaintiff [Alene Buys] as the separate property of the plaintiff herein and the defendant herein expressly releases, assigns, gives, grants and conveys to the plaintiff herein all the defendant's right title and interest in and to the property hereby set apart to Plaintiff that he now has or may have, free of and waiving any and all claims at law or in equity that he has or may have, in whole or in part to such property.

The agreement did not specifically mention military retirement benefits. The rest of the agreement, read as a whole, has nothing to conflict with giving the residuary clause its plain meaning.

During their marriage, Norbert served on active duty in the United States Air Force. He also served as an active reservist. He was in the Reserve when the parties divorced. After the divorce, Norbert served over twenty more years in the Reserve. He retired with military pension rights on February 3, 1990. Norbert, who had worked in the Civil Service during the marriage, also retired from Civil Service with retirement benefits in February 1985.

On July 13, 1990, Alene sued Norbert for a share of both the military and Civil Service retirement benefits. She sued for declaratory judgment that the property settlement agreement residuary clause covered both retirement benefits. Alternatively, she sued for partition of the community part of the benefits as community property not expressly divided in the divorce decree. Norbert defended, in part, on the ground that the Uniformed Services Former Spouses' Protection Act and its 1990 amendment prevents division of benefits from military retirement if the divorce was granted before 1981 and the benefits were not expressly divided in the divorce decree.

II. CASE LAW AND LEGISLATIVE HISTORY

To consider the federal statutes we review their legal history. When perhaps a majority of the states held to the contrary--that military retirement benefits did not become property until it vested--we held that military retirement and disability benefits earned during the marriage were community property subject to division upon divorce. Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965). We held that when the divorce decree did not divide the community military retirement benefits, the parties jointly owned them as tenants in common and that a partition suit was a proper remedy to divide these benefits after divorce. Harrell v. Harrell 692 S.W.2d 876 (Tex.1985); Busby, 457 S.W.2d at 554.

In 1981, the United States Supreme Court halted state suits to divide military nondisability retirement, whether by divorce suit, partition proceedings or otherwise. In this significant decision, the Court held that because of the government's interest in national defense, Congress intended that only the persons expressly specified, under the conditions set out in the military retirement statutes, could collect. The Court prohibited the division of military retirement benefits by state courts and further proscribed any adjustment in the award of other community property to offset the loss of these benefits. See McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

In 1982, Congress responded to McCarty by enacting the Uniformed Services Former Spouses' Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (codified as amended at 10 U.S.C. § 1408 (1983)). The purpose of this Act was to reverse McCarty 's effect and to once again allow state courts to treat retired pay of a spouse with military service as marital property subject to division under state law. Mansell v. Mansell, 490 U.S. 581, 584, 109 S.Ct. 2023, 2026, 104 L.Ed.2d 675 (1989); Grier v. Grier, 731 S.W.2d 931, 932 (Tex.1987); Cameron v. Cameron, 641 S.W.2d 210, 212 (Tex.1982). The Act used the day before the McCarty decision, June 25, 1981, to define which retirement pay period benefits could be divided under it.

Effective November 5, 1990, Congress amended the Act. This time Congress sought to limit the power of state courts that were abusing the original Act. The amendment states:

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 and 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. § 1408(c)(1)(emphasis added). Legislative history indicates that Congress did not intend for state courts to use the Former Spouses' Protection Act to reopen pre-McCarty divorces to divide military retirement benefits. "A number of courts ... interpreted the law differently, and ... reopened pre-McCarty decisions in order to award a share of retired pay to former spouses." H.R. REP. NO . 923, 101st Cong., 2d Sess., v.6, at 609 (1990), U.S.CODE CONG. & ADMIN. NEWS 2931, 3166. Congress enacted the amendment to stop that practice. One report elaborated on this abuse:

The committee is concerned because some state courts have been less than faithful in their adherence to the spirit of the law [Former Spouses' Protection Act]. 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., v.6 at 279, reprinted in 1990 U.S.CODE CONG. & ADMIN. NEWS 2931, 3005. Our task is to apply the amendment to the Buys' property settlement agreement incorporated into the divorce decree.

III. THE RESIDUARY CLAUSE

The court of appeals held that, as a matter of state law, the residuary clause did not reach the military retirement. The court further concluded that as a pure partition action, Alene's suit was prohibited by the 1990 amendment because the residuary clause does not "treat" the military retirement benefits. We reject the court of appeals' first holding. Consequently, we reach a somewhat different issue on the construction and application of the federal amendment.

A. Construction of the Residuary Clause

The rules of contract law govern the construction of a property settlement agreement incorporated into a divorce decree. If the agreement is worded so that we can give it a certain or definite legal meaning, it is not ambiguous and we construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Here the residuary clause is clear and unambiguous. It unambiguously includes the community property part of Norbert's military (and Civil Service) retirement benefits. Under Texas law when the parties divorced, a divorce decree's property settlement provisions could divide or assign the community portion of the retirement benefits. Under the terms of the residuary clause, Norbert "surrendered [his] community interests in" this retirement benefits property because the words used unambiguously include them. See Partin v. de Cordova, 464 S.W.2d 956, 957 (Tex.Civ.App.--Eastland 1971, writ ref'd); see also Phillips v. Parrish, 814 S.W.2d 501, 503 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

B. Decisions of the Courts of Appeals

In concluding that the Buys' residuary clause did not reach military retirement benefits, the court of appeals divided the reported cases into two inconsistent "lines."...