Davis v. Davis

• Decision Date: 10 May 1973
• Docket Number: No. 18062,18062
• Citation: 495 S.W.2d 607
• Parties: Thomas D. DAVIS, Appellant, v. Sandra Rose DAVIS, Appellee.
• Court: Texas Court of Appeals

Page 607

495 S.W.2d 607

Thomas D. DAVIS, Appellant, v. Sandra Rose DAVIS, Appellee.

No. 18062.

Court of Civil Appeals of Texas Dallas.

May 10, 1973.

Rehearing Denied June 7, 1973.

Wallace Heitman, Seward & Heitman, Dallas, for appellant.

Steven G. Condos, Condos & North, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

The sole question presented by this appeal is the validity, Vel non, of that portion of the trial court's judgment in this divorce action wherein the court decreed to the wife a proportionate part of the serviceman husband's future military retirement pay benefits which will not become payable to him under appropriate federal statutes until completion of twenty years' service in 1983, or elven years after the divorce decree. We hold that inasmuch as the rights of the husband to the retirement benefits provided by federal statutes had not been acquired at the time of divorce such did not constitute community property subject to be apportioned by the trial court.

The facts are undisputed. Thomas D. Davis entered the military service of the United States on July 12, 1963 and since that time has served continuously as an officer on active duty in the United States Air Force. He presently holds a commission as captain. Captain Davis and Sandra Rose Davis were married on July 3 1965 and to that marriage was born one child. On September 9, 1971 the husband instituted an action for divorce in the Domestic Relations Court of Dallas County. The parties entered into a property settlement agreement, and also an agreement concerning child support and child visitation. The property settlement agreement specified that the parties had not reached an agreement concerning possible retirement benefits which the husband might receive in the future from the United States Air Force and it was stipulated that this matter would be submitted to the court for decision.

The case came on for trial before the court, without a jury, on April 25, 1972. Captain Davis testified that as a member of the United States Air Force he did not contribute anything to his retirement benefits. He stated that to be eligible for receiving retirement pay from the United States Air Force he must complete a minimum of twenty years on active duty and also, during that period of time, he must be continuously promoted which would require a high standard of performance. He testified that as an officer he could resign from the Air Force at any time but that if he did so prior to the expiration of the twenty-year period he would receive no retirement benefits.

The trial court found, inter alia, that Captain Davis had a total of eight and one-half years in the service as of November 24, 1971 and that of this period of time eighty-two months were served during marriage to Mrs. Davis. The court also found that Captain Davis 'would earn retirement benefits after 20 years' service, subject to contingent forfeitures.' The court made the following conclusions of law: (1) Retirement benefits accruing for service in the military forces is a made of compensation for services rendered; (2) the officer's interest in the retirement benefits to accrue at selected or compulsory retirement is an earned property right and, 'under Art . 4619, ¹ the portion earned during marriage is community property'; (3) that the husband will not be entitled to retirement benefits until actual retirement and subsequent events may prevent any payments under earned retirement benefits, but if retirement does eventuate then the husband is entitled to share in keeping with the time served while married to the wife; (4) the right to retirement benefits, though not ripened by cessation of service, is not an expectancy but a property right, and the fact that death or dishonorable discharge may defeat actual payment, the wife is entitled to share in any benefits actually paid; and (5) the wife is entitled to receive one-half of 82 over the total number of months served by the husband, times the benefits payable at and during retirement.

The court rendered judgment dissolving the bonds of matrimony and incorporating the agreement of the parties concerning other properties, child support and visitation. The court then decreed:

'It is therefore ORDERED, ADJUDGED and DECREED by the Court that if and when the Petitioner, Thomas D. Davis, shall retire from the United States Air Force, and if and when he shall receive retirement benefits therefrom, the Petitioner, Thomas D. Davis, shall pay to the Respondent Sandra Rose Davis, an amount equal to one-half (1/2) of the fraction of 82 (representing the total number of months the Petitioner and Respondent were married while the Petitioner was a member of the United States Air Force) over a number figure representing the total months served by the Petitioner in the United States Air Force times the total monthly retirement amount the Petitioner shall receive in retirement benefits; such amount to be paid to the Respondent, Sandra Rose Davis, in monthly or other periodical payments as received by the Petitioner, Thomas D. Davis; to which action of the Court in ordering the Petitioner, Thomas D. Davis, to pay over to the Respondent, Sandra Rose Davis, a portion of retirement benefits derived from his service in the United States Air Force, if and when he shall receive such benefits, the Petitioner, Thomas D. Davis, duly and timely excepted and gave notice of appeal to the Fifth Court of Civil Appeals sitting at Dallas, Texas.'

Appellant husband attacks only the quoted portion of the decree in five points of error. The main thrust of these points is that the possibility of receipt of retirement benefits from the United States Air Force eleven years in the future does not constitute community property of the parties subject to be divided and apportioned presently in the divorce decree.

Section 3.63, Tex.Fam.Code, V.T.C.A. (1971) ² provides that in a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Section 5.01 of the Family Code ³ characterizes marital property as being either separate or community. It is therein provided that a spouse's separate property shall consist of (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise or descent; and (3) recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Then it is specifically provided that 'community property consists of the property, other than separate property, acquired by either spouse during marriage.'

The trial court in a divorce action, pursuant to the mandate of Section 3.63 of the Family Code to divide the estate of the parties, must determine the character of the marital property in the light of the definition provided by Section 5.01 of the code. The alleged 'property' attempted to be divided by the trial court in this case does not appear in the ordinary form of real property or tangible personal property. Whatever form it takes derives its genesis from acts of Congress of the United States. In 10 U.S.C.A. § 8911 it is provided that the Secretary of the Air Force may, upon the officer's request, retire a regular or reserve commissioned officer of the Air Force who has at least twenty years' service, at least ten years of which have been active service as a commissioned officer. A 'deferred' officer may be retired after twenty years' service, if not recommended for promotion or found to be disqualified for promotion, under specified conditions. 10 U.S.C.A. § 8913. He may be retired because of age. 10 U.S.C.A. § 8883 et seq. The officer's retirement pay is based upon his monthly basic pay at the time of his retirement in grade. 10 U.S.C.A. § 8991. An officer of the Air Force may resign at any time but if such resignation comes prior to the expiration of twenty years' active service no retirement pay benefits shall be made. The service man makes no contribution during his service to the retirement pay benefits.

When we consider the retirement payments provided by the federal statutes enumerated above in the light of the characterization of marital property set forth in § 5.01 of the Family Code a determination of whether such retirement pay benefits are a part of the community estate and subject to be divided by the trial court must be resolved by deciding whether such retirement benefits are actually property rights acquired during marriage. ⁴

It is settled law in Texas that the benefits paid upon retirement are not to be characterized as gifts which would constitute separate property even though the recipient of the retirement plan made no contribution in money to the accumulation of such benefits. Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923); Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738 (1928). The principal prerequisite to participation in a retirement plan is the continued employment of the participant and such retirement benefits are uniformly considered a form of employee compensation. Our courts have uniformly held that such benefits are community property provided that they are acquired during marriage. Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App., San Antonio 1960; and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App., San Antonio 1968). In the light of these authorities we hold that the retirement benefits paid by virtue of the federal statutes quoted above do not constitute a 'gift'.

We now turn to a consideration of the question of whether a right to participate in retirement benefits created by federal statutes is a property right which may be subject to the laws of this state which determine marital property rights. If it does constitute 'property' within the meaning of...