Ghrist v. Ghrist, No. 03-05-00769-CV (Tex. App. 7/12/2007)

• Decision Date: 12 July 2007
• Docket Number: No. 03-05-00769-CV.,03-05-00769-CV.
• Parties: MARY GHRIST, Appellant, v. ROY GHRIST, Appellee.
• Court: Texas Court of Appeals

Page 1

MARY GHRIST, Appellant, v. ROY GHRIST, Appellee.

No. 03-05-00769-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: July 12, 2007.

Filed: May 11, 2007.

Appeal from the District Court of Travis County, 147th Judicial District, No. 378,930, Honorable Lora J. Livingston, Judge Presiding.

Affirmed.

Before Justices PATTERSON, PEMBERTON and WALDROP; Dissenting Opinion by Justice PATTERSON.

MEMORANDUM OPINION

BOB PEMBERTON, Justice.

This appeal concerns the enforceability of an agreed divorce decree. Roy Ghrist is retired from the United States Air Force. Mary Ghrist is Roy's ex-spouse.¹ The parties were divorced in 1985 and agreed to a property division that included a 50-50 split of Roy's monthly Air Force "retirement" payments. The decree also contained a provision that "[a]ny election of benefits by Roy A. Ghrist shall not reduce the amount or the percentage of the retirement awarded to Mary S. Ghrist."²

It is undisputed that in 1989, Roy waived a portion of his Air Force "retirement" in order to receive an equal amount of disability benefit payments from the Veteran's Administration. See 38 U.S.C.A. § 3105 (West 1982 & Supp. 1985) (current version at 38 U.S.C.A. § 5305 (West 2002)).³ Mary asserts that this change had the effect of unilaterally reducing the amounts she received each month from Roy's "retirement." See Mansell v. Mansell, 490 U.S. 581, 583, 584-93 (1989); Ex parte Burson, 615 S.W.2d 192, 194-96 (Tex. 1981). In 2003, Mary filed a petition for enforcement in which she alleged that "[c]ontrary to the Decree, [Roy] has failed to pay [Mary] any portion [of] the disability pay from the United States Air Force, and, after making an election to receive his disability pay from the Veteran's Administration, [Roy] has failed to pay [Mary] any portion of said disability pay." She relied on two chief contentions: (1) the "retirement" the parties had agreed to divide 50-50 in the decree included both Air Force retirement pay and Air Force disability pay, see 10 U.S.C. §§ 1201, 1401 (1982 & Supp. 1985); and (2) the election-of-benefits clause referenced above prohibited Roy from avoiding his obligation to pay her half of his Air Force disability retirement benefits by waiving a portion of his Air Force retirement to receive VA disability benefits. Mary prayed that the district court order Roy "to pay [her], monthly as said sums are received, fifty percent of the net amount of [Roy's] retirement and disability pay from the United States Air Force and United States Veteran's Administration."

Roy answered, asserting the affirmative defenses of estoppel and limitations, emphasizing that 18 years had elapsed since the divorce and almost 15 years had passed since Roy waived a portion of his Air Force "retirement" to receive VA disability benefits. Roy also asserted a plea in bar arguing that the district court had no jurisdiction to directly or indirectly apportion military retirement pay that has been waived to receive VA disability benefits or to prohibit such waivers. See Mansell, 490 U.S. at 594-95; Ex parte Burson, 615 S.W.2d at 196; Limbaugh v. Limbaugh, 71 S.W.3d 1, 14 (Tex. App.-Waco 2002, no pet.).

In April 2004, a hearing was held on Mary's petition for enforcement. Only argument was presented, and no evidence was introduced. Mary agreed that Roy couldn't be prohibited from "elect[ing] to take the VA disability," but maintained that "the judgment prohibits him from reducing the amount she received by any such election. . . . The decree contemplates that he would pay over to her one half of this net amount. That's what we're asking that he be ordered to do. I don't care if he gets it from [the] VA." Responding to Roy's plea in bar, Mary urged that Roy was attempting an impermissible collateral attack on the long-final divorce decree that was barred by res judicata. See Berry v. Berry, 786 S.W.2d 762, 763 (Tex. 1990); Jones v. Jones, 900 S.W.2d 786, 788 (Tex. App.-San Antonio 1995, writ denied).

In August 2005, the district court signed an order denying Mary's petition for enforcement as a matter of law. It subsequently made findings of fact and conclusions of law. The court found that under "the formula for division of the military retirement contained in the Decree . . . it is apparent that [Mary] has lost money and will continue to lose money each month which she otherwise would receive as her one-half interest in [Roy's] military retirement directly due to his post-divorce receipt of a portion of this retirement benefit in the form of disability payments from the Veteran's Administration rather than continuing to receive all of his retirement monies from the United State Air Force itself." However, the court concluded that enforcement of the decree against Roy "as it relates to military disability benefits is barred," that Mary "may not enforce a claim for money lost based on military retirement monies paid to [Roy] by the Veteran's Administration due to his disability," that Roy "may not be penalized nor held in contempt for receiving some of his retirement benefits as disability rather than all his retirement funds from the Air Force," and that "[m]ilitary disability funds paid as part of military retirement are not divisible."

Mary appeals. She brings two related issues disputing whether Roy can collaterally attack the divorce decree by opposing its enforcement where the decree is final and where the parties contractually agreed to it. On appeal, Roy re-urges his arguments that the district court had no jurisdiction to award Mary, directly or indirectly, half of his VA disability benefits or to effectively prohibit him from waiving Air Force retirement to obtain those benefits. However, he also disputes Mary's construction of the decree, urging that the instrument manifests the parties' intent to award Mary 50% of only his "disposable retired pay." Under the Uniformed Services Former Spouses Protection Act (USFSPA), which was in effect at the time the decree was entered, state courts may treat only "disposable retired pay" as community property subject to division. 10 U.S.C.A. § 1408 (West 1982 & Supp. 1985). The USFSPA defines "disposable retired pay" as the total monthly retired pay to which a member is entitled, excluding, among other things, amounts withheld for taxes, retired pay waived to receive VA disability benefits, and any military disability retirement. Id. § 1408(a)(4) (West 1982 & Supp. 1985). Thus, in Roy's view, the "retirement" that Mary was awarded did not include his disability payments (whether in the form of Air Force disability retirement or VA disability benefits). Accordingly, Roy's waiver of Air Force retirement to receive VA disability could not have violated the decree's requirement that "[a]ny election of benefits . . . not reduce the amount or the percentage of the retirement awarded to Mary S. Ghrist."⁴

At this procedural juncture, the parties' dispute concerning the proper construction of the divorce decree is not properly before us. As demonstrated by the district court's findings of fact and conclusions of law, the final order on appeal denying Mary's petition for enforcement judgment was founded solely upon Roy's plea in bar. Consistent with this procedural context, Roy did not join issue below with Mary's construction of the divorce decree, but relied solely on his contentions that the relief Mary requested is preempted and barred by federal law. We will accordingly consider only those grounds as support for the district court's order—and these grounds, as we hold below, are sufficient. For the same reasons, we do not reach whether we must consider extrinsic evidence concerning the circumstances of the divorce decree that Mary introduced at the hearing on entry of judgment, or any implications of such evidence for our construction of the decree.

We agree with the district court that the relief Mary requests is barred by federal law because she seeks directly or indirectly to obtain a portion of Roy's VA disability benefits, or to effectively prevent him from waiving his military retirement to obtain such benefits. Mansell, 490 U.S. at 594-595; Ex parte Burson, 615 S.W.2d at 194-96; Loria v. Loria, 189 S.W.3d 797, 798-99 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Limbaugh, 71 S.W.3d at 14. Res judicata does not bar Roy from raising this defense to enforcement. Ex parte Burson also involved a collateral attack in which a serviceman relied on his right to unilaterally waive military retirement to receive VA disability benefits as a defense to the enforcement of a divorce decree that purported to pay his ex-spouse a specified portion of his military retirement. Ex parte Burson, 615 S.W.2d at 194-96. The supreme court also relied on the fact that federal law explicitly makes VA disability benefits (unlike military retirement benefits) non-divisible and non-alienable, suggesting that this federal limitation would preempt any state res judicata principles that might otherwise apply and/or would render void any state court order that purported to directly or indirectly award such benefits. Ex parte Burson, 615 S.W.2d at 196 & n.4 (citing Hisquierto v. Hisquierto, 439 U.S. 572 (1979)); see 38 U.S.C.A. § 3105. None of the cases on which Mary relies in support of her res judicata argument address the implications of the federal anti-alienability provisions that govern VA disability benefits. Unless and until the Texas Supreme Court instructs us otherwise, we must continue to follow Ex parte Burson and, accordingly, we affirm the district court's order. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.-Austin 2004, no pet.).

APPENDIX

Excerpts from the divorce decree relating to Roy's military "retirement":

The Court finds that, through the service of Roy A. Ghrist in the United States Air Force, United States Military Retirement . . . has been acquired during the marriage. . . .

Petitioner [Roy] and Respondent [M...