Gainous v. Gainous, 01-04-00427-CV.

CourtCourt of Appeals of Texas
Citation219 S.W.3d 97
Docket NumberNo. 01-04-00427-CV.,01-04-00427-CV.
PartiesBrenda Joyce GAINOUS, Appellant, v. Thomas Earl GAINOUS, Appellee.
Decision Date21 December 2006
219 S.W.3d 97
Brenda Joyce GAINOUS, Appellant,
Thomas Earl GAINOUS, Appellee.
No. 01-04-00427-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 21, 2006.

[219 S.W.3d 100]

Lynn S. Kuriger, Teresa J. Waldrop, Houston, TX, for Appellant.

Richard C. Mumey, Robert C. Kuehm, Houston, TX, Vincent L. Marable, III, Paul Webb, P.C., Wharton, TX, for Appellee.

Panel consists of Justices TAFT, KEYES, and HANKS.


TIM TAFT, Justice.

Appellant, Brenda Joyce Gainous ("Brenda"), has moved for rehearing of the Court's August 24, 2006 judgment. Appellee, Thomas Earl Gainous ("Thomas"), has filed a response to Brenda's motion. After due consideration, we grant Brenda's motion for rehearing and withdraw our opinion and judgment dated August 24, 2006. We issue this opinion and judgment in their place.

Brenda appeals from the judgment denying her motion for enforcement or, alternatively, motion for clarification of the 1995 divorce decree between herself and her former husband, Thomas. We determine (1) whether some of Brenda's challenges were collateral attacks, which could be raised after the trial court's plenary power had expired, on a post-divorce qualified domestic relations order ("QDRO") and (2) whether the divorce decree awarded Brenda half of Thomas's benefits under the Houston Firemen's Relief and Retirement Fund ("the Fund").1 We reverse the judgment and remand the case.


Brenda and Thomas were married on April 14, 1973. On June 19, 1978, Thomas began working for the Houston Fire Department. He then began participating in the Fund, which was a defined-benefit plan. The couple was divorced, by consent decree, on October 9, 1995, before Thomas was eligible to retire from the fire department. The decree provided, in pertinent part, that each party was awarded "[o]ne-half (1/2) of the Houston Firemen's Relief and Retirement Fund standing in the name of THOMAS E. GAINOUS." Neither party appealed the divorce decree, and no post-judgment motion challenging the decree appears in the record.

On January 25, 1996, the trial court entered a QDRO to effectuate the decree's division of the Fund's benefits. The record does not reveal who sought the QDRO, but it does show that Brenda sent the QDRO to the Fund. The QDRO provided, in pertinent part, as follows:

4. Plan Information. On the 9th day of October, 1995, [Thomas] had 16 years 11 months and 19 days of service

219 S.W.3d 101

under the Plan. [Thomas's] total contributions as of such date are $37,967.47. [Thomas's] average monthly salary (as defined in the Plan) as of such date is $3,163.79.

5. Benefit Award. The Court hereby awards to [Brenda] 50% of each payment otherwise payable to [Thomas] from the Plan after the date specified in Paragraph 4, but only with respect to the portion of such payment that is based on [Thomas's] accrued benefit as of such date (taking into account only contributions as of such date). If the payment to [Thomas] is a refund of contributions, the benefit calculated as of the date specified in Paragraph 4 shall be adjusted on a proportionate basis for any earnings attributable to such benefit under the terms of the Plan from such date to the date of distribution. This Paragraph does not award [Brenda] any interest in any monthly amounts credited to any DROP [deferred retirement option plan] account established for [Thomas] under the terms of the Plan. This award applies to each type of benefit distribution under the Plan (including a service, deferred, or disability retirement pension, and a withdrawal of contributions) other than a distribution from any DROP account established on behalf of [Thomas]. The provisions of this Paragraph 5 shall be construed to fix the amount (but not the type) of [Thomas's] benefit that is subject to division and payment to [Brenda] as of the date set forth in Paragraph 4, and shall be determined under the terms of the Act [TEX.REV.CIV. STAT. ANN. art. 6243e.2(1) (Vernon Supp.2006)] in effect on such date. The award to [Brenda] herein shall not be increased by [Thomas's] additional contributions, service accruals, or salary increases occurring after the date set forth in Paragraph 4.

6. DROP Account. Notwithstanding any other provision of this Order, [Brenda] shall not share in any portion of the contributions to or distributions from a DROP account established under the Plan on behalf of [Thomas].

7. Cost of Living Adjustments. The amount payable to [Brenda] under Paragraph 5 shall not be increased by any cost of living adjustments made to [Thomas's] benefit after the date set forth in Paragraph 4.

8. Time and Manner of Payment. The Plan shall make payments to [Brenda] of the amount specified in Paragraph 5, if, as, and when payments are made to [Thomas]....


11. Limitations. This Order and the award to [Brenda] herein is expressly made subject to the following provisions:


g. This Order shall not be interpreted to award [Brenda] any future benefit increases that are provided or required by the Legislature.

h. In the event that after the date of this Order, the amount of any benefit otherwise payable to [Thomas] is reduced by law, the portion of benefits payable to [Brenda] shall be reduced by a proportionate amount.

(Emphasis added.) Neither party appealed the QDRO, and no post-judgment motion challenging the QDRO appears in the record.

On June 19, 1998, upon 20 years of service with the fire department, Thomas became eligible to retire. See TEX.REV.CIV. STAT. ANN. art. 6243e.2(1), § 4(a) (Vernon Supp.2006). Rather than retire, however,

219 S.W.3d 102

Thomas elected to participate in the Fund's Deferred Retirement Option Plan ("DROP") on November 1, 1998. See id. § 5 (Vernon Supp.2006). Under the Fund's DROP, Thomas could, for up to 10 years, continue as an active employee while having an amount equal to his service-pension benefit,2 plus continued pension contributions from his salary, credited to a "notional" DROP account, with the account's total sum to be distributed to or held for him upon retirement. See id. By the end of October 2003, Thomas's DROP balance with the Fund was $157,033.72.3

In approximately August 2003, Thomas retired. Shortly before then, on June 25, 2003, Brenda filed a motion for enforcement or for clarification of the divorce decree and later amended that motion. Among other things, Brenda argued that (1) the QDRO "reduced and materially altered" the division of the Fund benefits by excluding her from sharing in any portion of the DROP payments; (2) "a conflict" thus existed "between the provisions of the [divorce] decree and the QDRO," so that the divorce decree's award to her of a portion of the Fund's retirement benefits "may not be specific enough to be enforceable by contempt" and should be "clarified"; and (3) she was also entitled to receive a portion of four other Fund benefits, which were not technically Thomas's service-pension distributions, but which Thomas would receive at retirement from the Fund as part of his overall benefit. In all, Brenda sought an order clarifying that she was to receive not only her portion of the service-pension benefit that Thomas received (to which Thomas has never disputed that Brenda is entitled), but also a portion of the following Fund benefits, the dispute over which forms the basis of this appeal:

• the DROP funds, including a two percent increase in benefits accrued for each year of Thomas's DROP participation, but excluding bi-weekly contributions that Thomas continued to make to the DROP account while working during DROP participation;4

• an annual three percent cost-of-living adjustment ("COLA"), applied to her portion of Thomas's service-pension benefits and DROP account balance;

• a one-time, lump-sum payment of $5,000 that Thomas would receive upon retirement;5

• a $150 monthly supplemental payment, which Thomas would begin receiving upon retirement;6 and

• an annual supplemental payment benefit, also called the "13th-benefit payment," which was intended to help pensioners of low income, and which

219 S.W.3d 103

Thomas could begin receiving upon retirement.7

Thomas responded below that (1) res judicata and estoppel barred Brenda's claim to the DROP funds and the COLAs because the 1996 QDRO, which she had not appealed, expressly precluded her receiving any of these benefits; (2) Government Code chapter 804 precluded her receiving a portion of the DROP funds;8 (3) Government Code chapter 804 also precluded her receiving a portion of any post-divorce COLAs;9 and (4) the Legislature did not create the remaining three benefits that she sought until after the divorce date, precluding their being community property.

In January 2004, after having held an evidentiary hearing, the trial court denied Brenda's motion to enforce or to clarify and rendered a take-nothing judgment against her. At the time of the hearing, Brenda was receiving approximately $500 per month from the Fund, while Thomas was receiving approximately $2,000. Brenda filed a motion seeking a new trial, reconsideration, or reformation. The trial court denied the motion. The trial court did not enter fact findings or legal conclusions.

Standard of Review

We review the trial court's ruling on a post-divorce motion for enforcement or clarification of a divorce decree under an abuse-of-discretion standard. See In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex.App.-Texarkana 2003, pet. denied). When a trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Additionally, "the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence." Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977), overruled on other grounds, Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Te...

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