Ex parte Buckhanan, 04-81-00243-CV

• Citation: 626 S.W.2d 65
• Decision Date: 15 October 1981
• Docket Number: No. 04-81-00243-CV,04-81-00243-CV
• Parties: Ex parte Robert C. BUCKHANAN, Relator, Original Application for Writ of Habeas Corpus.
• Court: Court of Appeals of Texas

Page 65

626 S.W.2d 65

Ex parte Robert C. BUCKHANAN, Relator, Original Application

for Writ of Habeas Corpus.

No. 04-81-00243-CV.

Court of Appeals of Texas, San Antonio.

Oct. 15, 1981.

Rehearing Denied Oct. 28, 1981.

R. H. Wester, Jr., Lippe & Wester, Seguin, for appellant.

John Benbow, San Antonio, Judge B. B. Schraub, Seguin, for appellee.

Before CADENA, C. J., and CLARK and KLINGEMAN, JJ.

OPINION

CLARK, Justice.

Relator commenced this original habeas corpus proceeding after being adjudged in contempt by the district court for failing to obey that portion of a divorce decree ordering him to pay to his former spouse a part of his military nondisability retired pay. We grant the relief requested and order the relator discharged.

Relator and his former spouse, the respondent in this action, were divorced May 10, 1977, in Guadalupe County, by decree of the 25th Judicial District Court. Relator was at that time a member of the United States Air Force on active duty, with creditable service of approximately 18 years. As part of the division of community property, the court awarded relator's spouse a portion of relator's military retired pay "if and when received" by him. The former spouse's share was ordered to be paid to her monthly by the relator in an amount determined by a formula set out in the decree. Relator retired from active duty on September 30, 1980. At that time he became eligible to receive nondisability retired pay of $1,216.00 per month, and under the terms of the divorce decree he was obligated to pay approximately $468.00 of that benefit each month to his former spouse. Instead, he paid only $300.00 per month to her from October, 1980, through May, 1981, at which time he ceased making payments altogether. Contempt proceedings were initiated in the 25th Judicial District Court by the former spouse in an attempt to enforce that court's May 10, 1977, judgment. On September 2, 1981, after notice and hearing, relator was adjudged in contempt and ordered confined in the Guadalupe County Jail until he paid the sum of $700.00 to satisfy his arrearage. ¹ On September 10, 1981, relator sought relief by initiating this original proceeding, and the matter was submitted on briefs and oral argument on September 18, 1981.

Relator relies principally upon McCarty v. McCarty, --- U.S. ----, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and Ex parte Johnson, 591 S.W.2d 453 (Tex.1979), to support his contention that he cannot be held in contempt for failing to comply with the judgment in question.

Relator's application for relief by means of habeas corpus is a collateral attack upon a final judgment; i.e., the divorce decree of May 10, 1977. Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962). Relator cannot prevail unless the district court lacked the power to award part of his military retired pay to his former spouse, Ex parte Jones, id.; for a final judgment that is only erroneous, and not beyond the power of the court to enter, is not void, and cannot be attacked collaterally. Humble Oil & Ref. Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1953); Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895).

The question which governs our decision, then, is whether applicable federal law, through the supremacy clause ² of the United States Constitution, preempted the power of Texas courts to treat the relator's military retired pay as community property and divide it prospectively between him and his spouse upon their divorce. If the court's power was not preempted, then that provision of the decree may be enforced against relator by means of contempt; but if the court's jurisdiction over relator's retired pay was preempted, then that provision is void and the relator cannot be compelled to obey it. Ex parte Johnson, supra.

Our resolution of this important question is governed by two recent decisions of higher courts. The first is McCarty v. McCarty, --- U.S. ----, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), in which the United States Supreme Court, relying heavily upon its decision in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), held that state community property laws have been preempted by the military retirement statutes, and that state courts, therefore, have no power to reduce a retired military member's compensation by treating it as community property subject to division upon dissolution of the marriage. Whatever uncertainty may have existed before McCarty as to the power of state courts to divide military retired pay as community property has now been resolved. Notwithstanding a vigorous dissent, the court has found that Congress intended to preempt state community property laws in that regard.

Unlike the case before us, however, McCarty arose as a direct attack upon the judgment there in question, and the court did not deal with questions of retroactivity or res judicata. What, then, is the effect of McCarty upon state court judgments, such as the one under collateral attack by the relator, which have become final?

To determine whether Congress had preempted state community property laws with respect to military retired pay, the United States Supreme Court analyzed at length, in McCarty, the same federal statutes that govern the rights of the relator in this case. ³ Quoting what it described as the holding of Hisquierdo, the court said in McCarty: "(t)he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition." --- U.S. at ----, 101 S.Ct. at 2735, 69 L.Ed.2d at 598.

The Court then found in the applicable statutes and their legislative histories a statutory scheme sufficiently explicit to justify a finding that Congress had indeed preempted state community property laws. It also found a sufficient threat of "grave harm to 'clear and substantial' federal interests" to require nonrecognition of the conflicting state laws and concluded that "(s)tate courts are not free to reduce the amounts that Congress has determined are necessary for the retired member." --- U.S. at ----, 101 S.Ct. at 2741, 69 L.Ed.2d at 606.

In determining how McCarty affects the judgment under collateral attack before us, it is essential to focus upon what the court said, reduced to the plainest terms; i.e., that Congress, to protect "clear and substantial federal interests," preempted state community property laws with respect to military retired pay prior to 1977 by enacting the military retirement statutes in question. By definition, preemption by specific Congressional enactment took place when Congress acted, in accordance with the statutory scheme. The court, in its opinion of June 26, 1981, preempted nothing; it only considered, determined, and announced what Congress had already done.

The second authority which controls our decision is Ex parte Johnson, 591 S.W.2d 453 (Tex.1979), a case so strikingly similar to the one before us that in our view it cannot be distinguished. In Johnson the Texas Supreme Court, relying principally upon Hisquierdo, held that Veterans Administration disability benefits are not subject to division upon divorce as property, because of preemption by a federal statute, and that the supremacy clause of the United States Constitution precluded the district court from enforcing such an order by punishing the defaulting spouse for contempt. It should be noted that Johnson, like the case before us, was a collateral attack upon a district court judgment by means of a habeas corpus application. The Texas Supreme Court, speaking through Justice Barrow, discharged relator Johnson, saying:

We hold that under the terms of this statute, these benefits are not to be treated as 'property' and future benefits are not subject to division upon divorce as property. Therefore, under the supremacy clause the district court cannot imprison relator for violating such order.

591 S.W.2d at 454.

Implicit in Johnson, because of the success of the collateral attack, is a holding that the district court's judgment was void as to the purported division of benefits preempted by Congressional enactment, and not merely erroneous. Ex parte Jones, id.; Humble Oil & Ref. Co. v. Fisher, supra.

Respondent argues that the judgment under attack in the case before us is at worst erroneous, and not void, and that the relief sought by relator is thus barred by the doctrine of res judicata. We cannot agree. The court pointed out in McCarty that when Congress enacted the military retirement system, it acted pursuant to its express constitutional power over the armed forces; and the court observed further that "in no area has the court accorded Congress greater deference than in the conduct and control of military affairs." --- U.S. at ----, 101 S.Ct. at 2743, 69 L.Ed.2d at 608. When Congress has exercised its plenary power to deprive State courts of jurisdiction over a particular subject, judgments of State courts purporting to exercise jurisdiction over the preempted subject are "nullities and vulnerable collaterally." Kalb v. Feuerstein, 308 U.S. 433, 436, 60 S.Ct. 343, 344, 84 L.Ed. 370 (1940). ⁴ No matter how great our concern may be as to the wisdom of Congress' action or the legal and social ramifications of McCarty, we are bound by the authorities we have cited. The district court's power to subject relator's retirement funds to division as community property having been preempted by federal statute, the supremacy clause of the United States Constitution prevents the enforcement of that portion of the judgment of May 10, 1977. Ex parte Johnson, 591 S.W.2d 453 (Tex.1979).

As the United States Supreme Court observed in McCarty approximately 90 days ago:

... Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is...