Ex parte Acree
| Decision Date | 25 November 1981 |
| Docket Number | No. 08-81-00256-CV,08-81-00256-CV |
| Citation | 623 S.W.2d 810 |
| Parties | Ex parte Julian R. ACREE, Relator. |
| Court | Texas Court of Appeals |
John L. McKellips, El Paso, for relator.
Robert E. Golden, El Paso, for respondent.
Before STEPHEN F. PRESLAR, C. J., and OSBORN and WARD, JJ.
In this original proceeding, the Relator, Julian R. Acree, seeks relief from an order of the District Court in which he was adjudged in contempt of Court for failure to pay to his former wife a portion of his military retirement benefits. We grant the writ and order the Relator discharged.
Mr. and Mrs. Acree were divorced in 1979, and the judgment provided that Mr. Acree would pay to his former wife 25% of his army retirement benefits, including any V.A. and/or military disability benefits. Counsel for Mr. Acree acknowledges that his client only receives retirement benefits and no disability pay. Relator made payments as ordered until this year but he has made no payments for April, June and July. In November, 1981, he was adjudged in contempt of Court and ordered confined for a period of ten days for each violation, for a total commitment of 30 days.
He asserts that the 1979 divorce decree is not res judicata of his obligation to pay part of his retirement benefits to his former wife, and that under the decision in McCarty v. McCarty, --- U.S. ----, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that part of the decree which divided military retirement benefits is void and subject to this collateral attack. Because of the failure of the United States Supreme Court to speak to the issue of "retroactivity" of its decision, the Nation will soon be flooded with many conflicting decisions trying to resolve the effect of pre-McCarty judgments which divided military retirement benefits in divorce decrees.
We are aware of three such cases. On October 7, 1981, the California Fourth Court of Appeals in Sheldon v. Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981), wrote a very scholarly opinion analyzing the issue of retroactivity in considerable depth. The Court said:
"...
On October 9, 1981, the Fifth Circuit Court of Appeals in Erspan v. Badgett, 659 F.2d 26, on motion for rehearing, held that a pre-McCarty judgment dividing military retirement benefits was entitled to its usual res judicata effect. The majority of the Court concluded McCarty had no effect on the 1963 divorce decree involved...
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Ex parte Hovermale, 04-82-00017-CV
... ... Trahan, 626 S.W.2d 485 (Tex.1981); Ex parte Welch, 633 S.W.2d 691 (Tex.App.-Eastland 1982); Ex parte Gaudion, 628 S.W.2d 500 (Tex.App.-Austin, 1982); Ex parte Rodriguez, 636 S.W.2d 844 (Tex.App.1981); Ex parte Buckhanan, 626 S.W.2d 65 (Tex.App.-San Antonio 1981); Ex parte Acree, 623 S.W.2d 810 (Tex.App.-El Paso, 1981); Fellers v. Fellers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981); Sheldon v. Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981); Mahone v. Mahone, 123 Cal.App.3d 17, 176 Cal.Rptr. 274 (1981); Erbe v. Eady, 406 So.2d 936 (Ala.Civ.App.1981); Braden v. Reno, ... ...
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Marriage of Vinson, Matter of
... ... 1981) (1963 Texas decree was res judicata ) and In Re Marriage of Sheldon, supra, (McCarty not retroactive) with Ex parte Acree, 623 S.W.2d 810 (Tex.App.1981) (full retroactivity). We have independently reviewed the cases and literature to determine what, if any, rule ... ...
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Sutherland v. Sutherland
...628 S.W.2d 500 (Tex.App.—Austin 1982); Thompson v. Thompson, No. 82-23703, Slip Op. (Tex.App.—Houston Dec. 6, 1982). But see Ex parte Acree, 623 S.W.2d 810 (Tex.App.—El Paso 1981, no Wilson and Erspan II, therefore, preclude this court from any further examination of the merits of Vernon's ......
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Ex parte Gaudion
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