Cameron v. Cameron

• Decision Date: 13 October 1982
• Docket Number: No. C-8,C-8
• Citation: 641 S.W.2d 210
• Parties: Sue Akers CAMERON, Petitioner, v. Paul Archibald CAMERON, Respondent.
• Court: Texas Supreme Court

Page 210

641 S.W.2d 210

Sue Akers CAMERON, Petitioner, v. Paul Archibald CAMERON, Respondent.

No. C-8.

Supreme Court of Texas.

Oct. 13, 1982.

Rehearing Denied Nov. 17, 1982.

Harris, Cook & Browning, Larry G. Hyden and Scott T. Cook, Corpus Christi, for petitioner.

Charles R. Cunningham, Corpus Christi, for respondent.

POPE, Justice.

The questions presented concern the trial court's division of military retirement pay and United States Savings Bonds between divorcing spouses in Texas. The property was acquired in states that do not have a community property system. The trial court awarded the wife thirty-five percent of the gross military retirement funds received in the future by the divorced husband and fifty percent of the United States Savings Bonds. Considerable other property was divided about which there is no dispute. The court of civil appeals reversed the judgment in part and held that the retirement pay and savings bonds, acquired by the spouses in a common law property state, were the husband's separate property and, thus, not subject to division. 608 S.W.2d 748. We reverse the judgment of the court of civil appeals with respect to the military retirement pay; we reverse the judgment of the court of civil appeals and affirm the trial court's judgment dividing the savings bonds.

Paul Cameron joined the United States Air Force on June 22, 1954. While in the military, Paul married Sue Akers in Midland, Texas, on September 29, 1957, and the couple immediately moved to California. The Camerons remained in California, a community property state, for only three months. During the balance of Mr. Cameron's military service, the two lived in Arkansas, Indiana, Maryland, Nebraska, Ohio and Oklahoma, all of which observe the common law property system. The Camerons' move to Texas in August 1977 coincided with Paul's retirement from the Air Force. At the time the divorce suit was filed in 1978, both spouses lived in Texas.

I. THE MILITARY RETIREMENT PAY

In awarding a fraction of Paul Cameron's military retirement pay to his wife, the trial court followed a number of Texas decisions approving such a division upon divorce. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965). While this cause was on appeal, the United States Supreme Court held that the supremacy clause of the United States Constitution, article VI, precludes a state court from dividing military nondisability retirement pay on divorce. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In the wake of McCarty, we held that the supremacy clause effectively foreclosed the division of military retirement benefits under Texas community property laws. Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981); see also In re Marriage of Jacanin, 124 Cal.App.3d 67, 177 Cal.Rptr. 86, 87-88 (Ct.App.1981); Dedon v. Dedon, 404 So.2d 904, 905 (La.1981); Hill v. Hill, 291 Md. 615, 436 A.2d 67, 70 (1981).

Mrs. Cameron urged that we should remand the cause to afford the trial court an opportunity to increase her award from the community property as a means of offsetting her loss of thirty-five percent of the future retirement pay. The United States Supreme Court had also closed the door to that remedy. McCarty, 453 U.S. at 228-29 n. 22, 101 S.Ct. at 2739 n. 22; see also Hisquierdo v. Hisquierdo, 439 U.S. 572, 588, 99 S.Ct. 802, 811, 59 L.Ed.2d 1 (1979).

On September 9, 1982, the President signed into law the Uniformed Services Former Spouses' Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (1982). The purpose of the act was to reverse the effect of the McCarty decision. Under the act, a divorce court may divide military retirement pay between the spouses in accordance with the law of the jurisdiction of that court. The act limits such division of retirement pay to periods beginning after June 25, 1981. Id. § 1002(a) [to be codified at 10 U.S.C. § 1408(c)(1) ].

Paul Cameron served in the military for more than nineteen years of his twenty-one and a half year marriage to Sue Cameron. Under the act, Sue Cameron is entitled to receive a portion of Paul Cameron's retirement pay. The divorce decree, dated March 29, 1979, awards Sue Cameron "thirty-five percent (35%) of the gross present and future Military Retirement presently being received." Sue Cameron is entitled to recover that thirty-five percent, but not for the period from March 29, 1979 to June 25, 1981. Therefore, we affirm that part of the trial court judgment awarding Sue Cameron thirty-five percent of the military retirement pay, but only for the period beginning after June 25, 1981.

II. THE U.S. SAVINGS BONDS

The court of civil appeals characterized the funds earned by Mr. Cameron in common law jurisdictions as his separate property and, through tracing principles, decided the bonds acquired with the common law funds belonged in his separate, Texas estate. As a part of Mr. Cameron's separate estate, the bonds, according to the court of civil appeals, could not be divested by the trial court. Sue Cameron seeks to uphold the trial court's disposition of the bonds by arguing that we should overrule our decision in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977), or, alternatively, treat separate personalty differently than separate realty. Although we view the nature of the savings bonds acquired in common law jurisdictions in a different light than the court of civil appeals, we first address these arguments advanced by Mrs. Cameron.

A. Eggemeyer Correctly States the Law

Since the early days of the Republic of Texas, Texas has carefully drawn a line between the separate and community property of spouses in an attempt to preserve the distinctions between and the integrity of the two classes of property. Any judicial divestiture of separate property would essentially disregard the constitutionally mandated distinction. At times pertinent to this action, the Texas Constitution has provided:

All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife ....

Tex. Const. art. XVI, § 15. In interpreting this provision, the court in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), ruled that the constitution contained the exclusive definition of separate property and that the legislature could neither alter nor enlarge upon it. Section 3.63 of the Family Code authorizes a "just and right" division of the estate of the parties, but it does not provide authority for the transmutation of one spouse's separate property into the other spouse's separate property. Allowing a trial court to divest separate property from one spouse and award it to the other spouse as part of the latter's separate estate would impermissibly enlarge the exclusive constitutional definition of separate property. See Eggemeyer, supra, at 140.

In addition to this constitutional reason for disallowing the divestiture of separate property on divorce, the statutory construction of section 3.63, Tex.Fam.Code Ann., does not imbue our courts with the authority to divest separate property. The Fourth Congress of the Republic of Texas approved in 1840 an "Act adopting the Common Law of England ... and to regulate the Marrital [sic] Rights of Parties." 1840 Laws of the Republic of Texas, at 3-6, 2 H. Gammel, Laws of Texas 177-180 (1898). In defining separate and community property, ¹ the congress decreed that land or slaves acquired before marriage or afterward by gift, devise or descent constituted separate property. All other marital acquisitions fell into the common or community estate of the spouses. One year later, the Fifth Congress of the Republic of Texas approved an act "Concerning Divorce and Alimony." The statute authorized a divorce court to "order a division of the estate of the parties ... as shall seem just and right," and added, "that nothing herein contained shall be construed to compel either party to divest him or herself of title to real estate or to slaves." 1841 Laws of the Republic of Texas, An Act Concerning Divorce and Alimony § 4, at 20, 2 H. Gammel, Laws of Texas 484 (1898) (emphasis added); see McKnight, Commentary on Sec. 3.63, 5 Tex.Tech. L.Rev. 337-338 (1974). The divorce statute made clear it was "the estate of the parties,"--the common property--that the court had the power to divide. In contrast, the congress directed that real estate and slaves--separate property as defined one year earlier by the Fourth Congress--should remain inviolate on divorce. The Fifth Congress, thus, forbade the divestiture of a spouse's separate property, as then defined, by the courts on divorce. Consequently, division of property by a divorce court was limited to the community estate.

The phrase "estate of the parties" has been carried forward in Texas divorce laws and now appears in Tex.Fam.Code Ann. § 3.63(a). This court in Eggemeyer, supra, at 139, affirmed the construction that the phrase referred only to community property. ² Four years after Eggemeyer, the 67th Texas Legislature amended section 3.63, but left undisturbed this court's decision that "estate of the parties" refers only to community property. In addition, the scheme enacted by the legislature in section 3.63(b) of the Family Code builds upon the law that property acquired before marriage or afterward by gift, devise or descent cannot be divided by Texas courts. ³ To now hold that the "estate of the parties" encompasses separate as well as community property would thwart the intent of this most recent pronouncement by the legislature.

Section 3.63(a), moreover, authorizes a "division" of the parties' estate, but provides no authority for a court to "divest" a divorcing spouse's separate property. Castleberry, Constitutional Limitations on the Division of Property Upon Divorce,...