Ex parte Gaudion

• Decision Date: 03 February 1982
• Docket Number: No. 13642,13642
• Citation: 628 S.W.2d 500
• Parties: Ex Parte John Joseph GAUDION, Relator.
• Court: Texas Court of Appeals

Page 500

628 S.W.2d 500

Ex Parte John Joseph GAUDION, Relator.

No. 13642.

Court of Appeals of Texas, Austin.

Feb. 3, 1982.

Terral R. Smith, Schaubhut, Smith & O'Meara, Austin, for relator.

James W. George, George & George, Austin, for respondent.

PHILLIPS, Chief Justice.

Relator is subject to confinement by virtue of a commitment issued by the district court of Travis County, whereby he was adjudged in contempt of the court for the alleged violation of an order of the court rendered August 8, 1979, ordering relator to pay his former wife, Prudence Gaudion, a portion of his gross monthly military retirement pay, based on a formula set out in the order. Upon presentation of relator's petition, this Court granted a writ of habeas corpus and ordered relator released on bond. After hearing, we now order relator remanded to the custody of the Sheriff of Travis County.

The issue before us is whether McCarty v. McCarty, --- U.S. ---, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), should be applied retroactively to final judgments which were based on prior Texas law, as set out in Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearly v. Cearly, 544 S.W.2d 661 (Tex.1976); Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ.App.-El Paso 1972), cert. denied, 409 U.S. 1028, 93 S.Ct. 462, 34 L.Ed.2d 321 (1972); and Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

The divorce judgment that relator is collaterally attacking in this proceeding is a final judgment, all avenues of appeal having been exhausted. Gaudion v. Gaudion, 601 S.W.2d 805 (Tex.Civ.App.-Austin 1980, no writ).

McCarty, cited above, holds state courts are without authority to divide, apportion, or to in any way interfere with a military person's retirement income. Relator argues the prior division of his military income in the divorce proceeding, described above, is void. He bases his argument, principally, on Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940) and Ex parte Buckhanan, 626 S.W.2d 65 (Tex.App.-San Antonio, October 15, 1981, not yet reported). ¹ In our judgment, Kalb is not on point, as it is clearly distinguishable from the case at bar, and, although Ex parte Buckhanan is directly on point, we decline to follow it for reasons hereinafter presented. ²

Kalb was a bankruptcy case in which a state court clearly disregarded federal law and allowed a foreclosure of real property after a petition for bankruptcy was on file. Bankruptcy has always been reserved for the exercise of Federal authority and the holding in Kalb is inapposite to the case at bar. Indeed, Kalb, is a matter of the direct preemption of a state decision and not a question, as we have here, of whether a subsequent overruling decision, declaring a federal preemption exists, should be applied retroactively to final judgments which the court clearly had jurisdiction to make when rendered. Dominey v. Dominey, supra.

In addition to basing its decision on Kalb, the court in Ex parte Buckhanan relies on Ex parte Johnson, 591 S.W.2d 453 (Tex.1979). Johnson was not a case in which the doctrine of retroactivity was applied, but rather the Texas Supreme Court chose to analyze the case on preemption grounds. The federal statute, there involved, was quite clear in stating that Veterans Administration benefits were a personal entitlement and not the result of an earned property right. The statute stated "... such payments shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary."

In the pre-McCarty decision in Gaudion v. Gaudion, 601 S.W.2d 805 (Tex.Civ.App.-Austin 1980, no writ), this Court held there was no such express preemption in the federal statutes governing military retirement benefits and none was implied. Also, the Texas Supreme Court in Burson v. Burson, 615 S.W.2d 192 (Tex.1981), expressly distinguished the military retirement statutes from those governing V.A. benefits, citing Gaudion.

We will follow that line of decisions handed down by the United States Supreme Court, such as Linkletter v. Walker, ³ 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), which deal specifically with the problems involved in applying a law retroactively.

In Linkletter, the issue was whether the exclusionary evidence rule made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), should be made retroactive to cases decided prior to Mapp, those cases having followed the previous rule set out in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Wolf held the exclusionary evidence rule did not apply to the states. In Mapp, Wolf was overruled and the exclusionary rule, with its far-reaching effect in the area of search and seizure law and the attendant constitutional rights of individuals accused of crime, was made directly applicable to state courts. The Linkletter doctrine applies to the constitutional area of the law, as well as to long-established common law rules, the criminal and the civil law. Linkletter weighs the factors, involved such as the prior history of the rule in question, and then determines whether retroactive operation will further or retard its operation. The doctrine also considers the purpose of the overruling decision, the reliance placed on the previous decisional law, and the effect on the administration of justice of a retroactive application of the overruling decision.

The rationale in McCarty for protecting military retirement was to make the military more attractive to those persons enlisting in the future. To apply the ruling to those now retired would in no way further the purpose of the decision. Moreover, in relitigating previous divorces, the Texas courts would be faced with piecing together lost, dispersed, used and possibly wasted assets, in an attempt to decide how best to redistribute the marital property. Finally, those cases in which the military retirement benefits were the sole substantial asset of the marriage would need to be handled by money judgments, assuming such would ever be collectible by the non-military ex-spouse.

The court, in Linkletter quoted Justice Holmes saying "(t)he life of the law has not been logic; it has been experience." 381 U.S. at 627, 85 S.Ct. at 1736. The court then observed "... that the existence of the Wolf doctrine prior to Mapp is an operative fact and ... cannot be ignored;" "the thousands of cases that were finally decided on Wolf cannot be obliterated;" "(t)o make ... Mapp retroactive would tax the administration of justice to the utmost." Id. 367 U.S. at 636, 85 S.Ct. at 1741.

A propos to our decision is the emphasis that the present United States Supreme Court places on the doctrine of res judicata. In Federated Department Stores v. Moitie, --- U.S. ---, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), the Supreme Court stated:

a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in...