Hagen v. Hagen

• Decision Date: 01 May 2009
• Docket Number: No. 07-1065.,07-1065.
• Citation: 282 S.W.3d 899
• Parties: Raoul HAGEN, Petitioner, v. Doris J. HAGEN, Respondent.
• Court: Texas Supreme Court

282 S.W.3d 899

Raoul HAGEN, Petitioner, v. Doris J. HAGEN, Respondent.

No. 07-1065.

Supreme Court of Texas.

Argued January 14, 2009.

Decided May 1, 2009.

Ryan G. Anderson, McClenahan, Anderson & Stryker, P.L.L.C., Robert S. Thompson, Thompson & Thompson, San Antonio, TX, for Petitioner.

Gary A. Beahm, Law Offices of Gary A. Beahm, San Antonio, TX, for Respondent.

Justice JOHNSON delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice GREEN, and Justice WILLETT joined.

Doris and Raoul Hagen's 1976 divorce decree awarded a percentage of Raoul's military retirement pay to Doris to be paid if, as, and when he received it. After Raoul's subsequent retirement from the Army, he was determined by the Veterans' Administration (VA) to have a service-connected disability. He then elected to be paid VA disability benefit payments, which are not subject to federal income taxes, in place of part of his military retirement payments, which are subject to income taxes. Raoul's election reduced the amount of military retirement pay he received. When Doris began receiving her percentage of the reduced Army retirement pay Raoul received, she sought enforcement and clarification of the divorce decree. The trial court determined that the decree divided only the military retirement pay being received by Raoul, it did not divide his VA disability benefits, and Doris was entitled to only a percentage of the military retirement pay. The court of appeals reversed. The appeals court held that the trial court modified the 1976 decree instead of clarifying it, and the modification was barred by res judicata principles. 283 S.W.3d 1, 2-3. We hold that the trial court correctly clarified the unambiguous original decree, and its action was not a modification barred by res judicata principles. We reverse the court of appeals' judgment and affirm the judgment of the trial court.

I. Background

Doris and Raoul Hagen divorced in 1976. At the time of the divorce, Raoul was a member of the United States Army. The decree awarded Doris right, title, and interest to

One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN RECEIVED, and the Petitioner RAOUL HAGEN shall be a Trustee of the One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, for the use and benefit of DORIS J. HAGEN, and shall pay the same immediately upon each receipt of the same, to DORIS J. HAGEN.

When Raoul retired from the Army in 1992 his retirement compensation consisted solely of military retirement pay, which was subject to federal income taxes. In 2003, the VA determined Raoul had a service-connected disability rating of forty-percent. As allowed by federal statute, Raoul elected to waive part of his retirement pay and be paid VA disability in its place. See 38 U.S.C. § 5305. The VA disability pay is not subject to federal income taxes. See id. § 5301(a)(1). After Raoul made his election, payments to Doris were reduced to an amount calculated by applying the decree's formula to only the military retirement pay Raoul received.

Doris filed a combined motion for contempt, clarification of the decree, and petition for damages. She claimed that Raoul failed to comply with the 1976 decree because he failed to pay her the proper amount of his gross retirement pay, and in the alternative, she sought clarification of the decree. She also sought damages from Raoul alleging that by electing to be paid VA disability pay and waive part of his retirement pay, he breached a fiduciary duty to her and converted payments she should have received. Following a non-jury hearing, the trial court (1) ordered that "the military retirement pay now being received by Raoul Hagen shall be divided according to the formula stated in the Original Decree of Divorce," (2) found the amount subject to division under the decree did not include Raoul's disability pay, (3) awarded attorney's fees in the event of appeal, and (4) denied all other relief.

Doris appealed, and the court of appeals reversed. 283 S.W.3d 1. Relying in large part on Berry v. Berry, 786 S.W.2d 672 (Tex.1990) (per curiam), the court of appeals held that res judicata barred Raoul's position as a collateral attack on the divorce decree, and the Uniformed Services Former Spouses' Protection Act (USFSPA)¹ could not be applied retroactively to collaterally attack the decree. 283 S.W.3d at 2-3. We hold that the trial court's action was a permissible clarification, not an impermissible modification, of the decree.

II. Interpreting Divorce Decrees

We interpret divorce decree language as we do other judgments of courts. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex.2003). We construe the decree as a whole to harmonize and give effect to the entire decree. Id. If the decree is unambiguous, the Court must adhere to the literal language used. Id. If the decree is ambiguous, however, the decree is interpreted by reviewing both the decree as a whole and the record. See Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.1997) (per curiam). Whether a divorce decree is ambiguous is a question of law. Shanks, 110 S.W.3d at 447.

As with other final, unappealed judgments which are regular on their face, divorce decrees and judgments are not vulnerable to collateral attack. Berry, 786 S.W.2d at 673. The decree must be void, not voidable, for a collateral attack to be permitted. Id. Errors other than lack of jurisdiction over the parties or the subject matter render the judgment voidable and may be corrected only through a direct appeal. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003).

The Family Code provides that trial courts may enter orders of enforcement and clarification to enforce or specify more precisely a decree's property division. TEX. FAM.CODE § 9.006(a) ("[T]he court may render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order."). But courts may not "amend, modify, alter, or change the division of property" originally set out in the decree. Id. § 9.007(a). Attempting to obtain an order that alters or modifies a divorce decree's property division is an impermissible collateral attack. See Reiss, 118 S.W.3d at 442 (holding that a trial court's correct construction of a divorce decree's award "does not impermissibly `amend, modify, alter, or change the division of property made or approved in the decree of divorce'" (quoting TEX. FAM. CODE § 9.007(a))).

III. The Decree in Question

A. The Decree's Language

The Hagens stipulated that their decree² awarded Doris "One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN RECEIVED," and directed Raoul to "pay the same immediately upon each receipt of the same, to DORIS J. HAGEN." Neither party claims the decree defined "Army Retirement Pay" or "Military Retirement Pay" to include any type of compensation or pay outside of the plain import of the words used. The decree language does not specifically reference VA disability compensation Raoul might receive, and the parties do not contend that VA benefits were referenced anywhere in the decree. We conclude the decree is unambiguous in dividing military retirement pay "if, as and when" Raoul received it. The question, then, is whether, at the time the decree was entered, military retirement pay included VA disability compensation. See Shanks, 110 S.W.3d at 447 (stating that we "must effectuate the order in light of the literal language used").

B. Retirement Pay and VA Disability Compensation

When the trial court entered the Hagens' decree on May 7, 1976, federal law provided two means by which a former service member could receive disability-related compensation: retirement pay for physical disability under Title 10 of the United States Code and VA disability compensation under Title 38. Armed Forces (Title 10), ch. 1041, 70A Stat. 91 (1956) (current version at 10 U.S.C. § 1201); Veterans' Benefits (Title 38), § 310, 72 Stat. 1119 (1958) (current version at 38 U.S.C. § 1110). Under Title 10, if a member was found to be disabled, the secretary of the applicable branch of the armed forces could "retire the member, with retired pay" computed under the statute. Armed Forces (Title 10), ch. 1041, 70A Stat. 91 (1956) (current version at 10 U.S.C § 1201). Title 38, on the other hand, mentioned nothing about retirement. Veterans' Benefits (Title 38), § 310, 72 Stat. 1119 (1958) (current version at 38 U.S.C. § 1110). Instead, it compensated for "disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." Id.; see also Veterans' Benefits (Title 38), § 331, 72 Stat. 1122 (1958) (current version at 38 U.S.C. § 1131) (providing VA disability compensation for peacetime injuries).

At the time the trial court entered the Hagens' decree, Texas courts recognized that only military disability pay that was an earned property right could be divided upon divorce, and VA disability compensation was not an earned property right. Busby v. Busby, 457 S.W.2d 551, 552-53 (Tex.1970); Dominey v. Dominey, 481 S.W.2d 473, 475 (Tex.Civ.App.-El Paso 1972, no writ); Ramsey v. Ramsey, 474 S.W.2d 939, 941 (Tex.Civ.App.-Eastland 1971, writ dism'd). In Busby, we did not address the question of VA disability benefits; we addressed only the two types of military retirement pay—voluntary retirement benefits and disability retirement benefits. 457 S.W.2d at 554. We held that military retirement pay—whether based upon a member's voluntary election to retire after having served the required time or whether based on retirement for disability—is not a gift or gratuity but an earned property right divisible upon divorce. Id. at 552. In Ramsey, the court of appeals applied Busby to VA disability benefits, holding that VA...