Constance v. Constance, B--6141
| Decision Date | 15 December 1976 |
| Docket Number | No. B--6141,B--6141 |
| Parties | Ray CONSTANCE, Petitioner, v. Grace Carol CONSTANCE, Respondent. |
| Court | Texas Supreme Court |
Bartram, Reagan & Burrus, Charles E. Blackley, New Braunfels, for petitioner.
Dickson & Associates, William Dickson, Houston, for respondent.
This is an action by Grace Carol Constance, Respondent, against her former husband, Ray Constance, Petitioner, for partition of military retirement benefits received by him subsequent to their decree of divorce. The trial court ruled that the divorce decree adjudicated ownership of the benefits in the husband and sustained his plea of res judicata. The Court of Civil Appeals ruled otherwise and reversed the judgment of the trial court and remanded the cause. 537 S.W.2d 488.
The parties were married in September 1952 and were divorced on April 6, 1967. There were three sons born of the marriage who were between the ages of five and thirteen at the time of the divorce. The husband completed 20 years of service in the United States Army and became eligible for retirement in February 1965. He retired on May 1, 1967, approximately a month subsequent to the divorce. This suit was instituted by the wife in 1973.
The question to be decided is whether the decreed division of the property in the April 6, 1967 divorce judgment adjudicated ownership of the retirement benefits to be received by the husband after retirement. The wife agrees that if the benefits were awarded to her husband, the plea of res judicata was properly sustained by the trial court in this proceeding.
The controlling provisions of the divorce decree are as follows:
And it further appearing to the Court that there were three children born as issue of said marriage, to-wit: Ray Constance, Jr., a male child, born September 27, 1962; Charles Edward Constance, a male child, born March 3, 1954; and Robert Louis Constance, a male child, born June 3, 1960, and it further appearing to the Court that the best interest of said minor children will be served if the three minor children are awarded to Plaintiff. It is therefore ORDERED, ADJUDGED and DECREED by the Court that the care, custody and control of said minor children, Ray Constance, Jr., Charles Edward Constance, and Robert Louis Constance, Be and are hereby awarded to Plaintiff and that Defendant shall be afforded reasonable rights of visitation. And it further appearing to the Court that the Defendant is being retired as a Sergeant from the U.S. Army on a 20 year retirement plan and will receive approximately $220.00 per month as retired pay at this time, and that plaintiff has spent approximately fifteen years of the twenty years upon which the retirement is based as his wife, And inasmuch as no award is being made to Plaintiff for any portion of the retired pay, the Court finds that the sum of...
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