Cameron v. Cameron

• Decision Date: 23 October 1980
• Docket Number: No. 1578,1578
• Citation: 608 S.W.2d 748
• Parties: Paul Archibald CAMERON, Appellant, v. Sue Akers CAMERON, Appellee.
• Court: Texas Court of Appeals

Page 748

608 S.W.2d 748

Paul Archibald CAMERON, Appellant, v. Sue Akers CAMERON, Appellee.

No. 1578.

Court of Civil Appeals of Texas, Corpus Christi.

Oct. 23, 1980.

Rehearing Denied Nov. 20, 1980.

Charles R. Cunningham, Corpus Christi, for appellant.

Scott T. Cook, Harris, Cook & Browning, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

In this appeal from a part of the trial court's judgment in a divorce suit, Paul Archibald Cameron is appellant and Sue Akers Cameron is appellee. The judgment granted the divorce, appointed appellee as managing conservator of the one minor child, ordered appellant to pay child support, and divided the property of the parties. Although there are some fifteen points of error raised by appellant, the central issue in this appeal involves the trial court's divestiture of appellant's title to his separate personal property. We hold that such divestiture is not permissible by a trial court under the recent Supreme Court case of Campbell v. Campbell, 23 Tex.Sup.Ct.J. 391 (June 4, 1980). We accordingly reverse and remand in part.

A review of the pertinent facts of this case are as follows. Appellant entered the United States Air Force on June 22, 1954, in New York. In 1955, appellant was stationed at Lubbock Air Force Base in Texas. The parties married in Midland, Texas on September 29, 1957, and departed that day for California. The parties lived in California, a community property state, for three months. Thereafter, the parties lived in various common law states. Appellant retired from the military on September 1, 1977, at Grissom Air Force Base, Indiana. The parties then moved to Corpus Christi, Texas.

The parties were divorced on March 29, 1979. At the time of trial, appellant was receiving $1,507.31 per month under his military retirement benefits and earning an annual salary of $13,000.00 as an accounting instructor at Corpus Christi State University. Appellee, at the time of trial, was earning an annual salary of $18,000.00 as the Director of Placement at Del Mar College in Corpus Christi.

Appellant, in points of errors, one, two and seven, contends the trial court erred in divesting him of title to his separate property military retirement benefits. It is well settled that an interest in a military retirement plan is an earned property right. This property right accrues by reason of the years of service spent in the military by that spouse. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). Military retirement, being an earned property right, is subject to division upon dissolution of the marriage. The inception of title rule is applied to determine the existence of a community property interest in retirement benefits. Busby v. Busby, supra; Mitchim v. Mitchim, 509 S.W.2d 720 (Tex.Civ.App.-Austin 1974), rev'd on other grounds, 518 S.W.2d 362 (Tex.1975). Hence, the military retirement benefits which accrue during the marriage while residing in common law states and the benefits which accrue while single are the separate property of the spouse in the military. Conversely, the retirement benefits which accrue while residing in community property states are community property. Busby v. Busby, supra; Mitchim v. Mitchim, supra.

Appellee counters appellant's divestiture theory in her supplemental brief, filed after the Campbell decision, by stating that the trial court did not actually divest appellant of title to his separate personal property. We disagree.

The judgment reads, in part, as follows:

"Paul A. Cameron, Jr. is awarded as his sole and separate property all interest, separate and community, in the United States Military Retirement Plan described above, subject only to the life interest of Sue A. Cameron and the Survivor Benefit Package as hereinabove specified."

This language is found in the judgment under the heading "Division of Military Retirement." The court also ordered the following division of property:

"A. Property to Petitioner. Petitioner is awarded the following as Petitioner's sole and separate property, and Respondent is hereby divested of all rights, title and interest in and to such property: ... (8) that percentage of the United States Military Retirement of Paul A. Cameron, Jr. in accordance with the terms hereinafter set forth."

The judgment further recited that the United States Government would not directly forward to appellee her separate share of the retirement benefits. The court, therefore, made appellant constructive trustee of thirty-five percent of the retirement benefits and ordered him to pay such sum to appellee within five days of receipt.

In construing the meaning of a judgment, the entire contents of the instrument must be considered. The judgment should be read as a whole and each part should be interpreted with reference to its entirety. Lone Star Cement Corporation v. Fair, 467 S.W.2d 402 (Tex.1971); State v. Starley, 413 S.W.2d 451 (Tex.Civ.App.-Corpus Christi 1967, no writ). We hold the judgment clearly divested appellant of title to thirty-five percent of his retirement benefits.

Prior to the recent Supreme Court case of Campbell v. Campbell, supra, several of the Courts of Civil Appeals had held that while a trial court may not divest one spouse of title to his or her separate real property and transfer title to the other spouse (Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977)) the trial court could divide the separate personal property of the parties. The Supreme Court, however, in Campbell clearly stated that they consider...