Harrell v. Harrell

• Citation: 684 S.W.2d 118
• Decision Date: 18 October 1984
• Docket Number: No. 13-84-077-CV,13-84-077-CV
• Parties: Opal Frances HARRELL, Appellant, v. Herbert C. HARRELL, Appellee.
• Court: Court of Appeals of Texas

Page 118

684 S.W.2d 118

Opal Frances HARRELL, Appellant, v. Herbert C. HARRELL, Appellee.

No. 13-84-077-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 18, 1984.

First Motion for Rehearing Granted in Part Nov. 20, 1984.

Second Motion Denied Jan. 10, 1985.

Ann E. Coover, Coover & Coover, Corpus Christi, for appellant.

Pat Morris, Corpus Christi, for appellee.

Before UTTER, YOUNG and SEERDEN, JJ.

OPINION

UTTER, Justice.

This is an appeal from a take-nothing judgment in a suit for partition of military retirement benefits. Trial was to the court. Findings of fact and conclusions of law were requested and filed. We reverse and remand for a new trial.

Appellant and appellee were married on July 3, 1959, and were divorced on October 29, 1981. During the marriage, appellee served a total of one hundred sixty-eight (168) months in the military. Prior to the marriage, appellee had served a total of eighty-two (82) months in the military. It is apparent from the record that appellee had retired from the military prior to the entry of the final decree of divorce.

The final decree of divorce: (1) dissolved the marriage of parties; (2) awarded conservatorship and child support of the minor child of the marriage; (3) divided certain community property of the parties; and, (4) assigned liability for certain debts. All relief requested and not expressly granted in the divorce decree was denied. No specific reference was made in the divorce decree regarding appellee's military retirement benefits. The divorce decree was not appealed and became final.

On May 16, 1983, appellant filed in the trial court an "Original Petition," in which she alleged that community property, i.e. an interest in appellee's military retirement benefits, was accumulated during their marriage and was not apportioned by the trial court's final decree of divorce. In her suit, appellant sought (1) partition of the military retirement benefits in accordance with the parties' respective interests and prejudgment interest on any sums due her beginning October 29, 1981, and (2) attorney's fees. On November 3, 1983, the trial court entered a take-nothing judgment. In its findings of fact, the trial court found that:

"9. The military retirement benefits of Herbert C. Harrell were before the divorce court and were requested to be 'awarded, divided and partitioned' as community property set forth in the pleadings of Opal Frances Harrell, and testimony of both parties and as being received in Herbert C. Harrell's statement of expenses and income.

10. The divorce court in the Harrell divorce considered and disposed of the military retirement benefits by denying all relief requested and not expressly granted in the Decree of Divorce.

11. The divorce court in the Harrell divorce considered and disposed of the military retirement benefits as community property as noted in the unequal division of the other community assets.

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13. The decision of the divorce court in the Harrell divorce is a final, unappealed decision.

14. The issue of the division of military retirement benefits was decided by the divorce court in the Harrell divorce, and any subsequent attempt to partition these benefits is barred by res judicata.

15. Herbert C. Harrell and Opal Frances Harrell are not tenants in common as to the military retirement benefits.

16. The Texas Supreme Court has held that McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), precludes a division of a spouse's entitlement to military retirement benefits. Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981).

17. The Uniformed Services Former Spouse's Protection Act does not affect the authority of the Texas Supreme Court's holding in Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981)."

Appellant now comes before this Court asserting eight points of error.

Appellant's first, second, third, fourth and sixth points of error attack: (1) the trial court's finding that the divorce court considered and disposed of the military retirement benefits as community property in its divorce decree; (2) the trial court's finding that the divorce court considered and disposed of the military retirement benefits by denying all relief requested and not expressly granted in the divorce decree; and, (3) the trial court's finding that the partition suit of the military retirement benefits is barred by res judicata. It is established that appellant and appellee were divorced subsequent to the United States Supreme Court's June 26, 1981, ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and prior to the enactment of the Uniformed Services Former Spouses' Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (1982), which is now codified in 10 U.S.C. § 1408 (effective February 1, 1983).

The enactment of the Uniformed Services Former Spouses' Protection Act (hereafter "the Act") over a year and a half after the United States Supreme Court's decision in McCarty created by necessity, the very problem before this Court today. Divorces, wherein military retirement benefits are present and which are granted subsequent to the enactment of the Act, can be treated in the same manner as prevailed prior to the McCarty decision. Divorces, wherein military retirement benefits were present and which were granted in the interim period but were not yet final on the date of the enactment of the Act, can be remanded to afford the trial court an opportunity to divide the military retirement benefits in light of its previous division of the parties' estate and other equitable considerations present at the time of the parties' divorce. ¹ A much more difficult decision comes with applying existing Texas law to those divorce cases, wherein military retirement benefits were present and in which the divorce decree was granted in the interim period became final prior to Congress' enactment of the Act and were based upon and conformed with the McCarty decision.

Clearly, Congress was aware of the existence of this type of anomaly. S.REP. No. 97-502, U.S.CODE CONG. & AD.NEWS 1982, pp. 1555, 1596 (July 22, 1982) sets forth that:

"The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation." (Emphasis added.)

Two states have expressly dealt with the problem before us today and, in both instances, have allowed the divorce to be reopened for the purposes of receiving additional evidence and argument with respect to valuation and equitable distribution of military retirement benefits. ² Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984); Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983). ³

In Gordon v. Gordon, 659 S.W.2d 475 (Tex.App.--Corpus Christi 1983, no writ), this Court examined the circumstances created by a divorce, which was granted subsequent to the McCarty decision but prior to the effective date of the Uniformed Former Spouses' Protection Act and in which military retirement benefits were present. We concluded that, under rules set forth in Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981), and Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982), a trial court during this period could neither consider nor apportion nondisability military retirement benefits in its division of the community estate upon divorce. Gordon, 659 S.W.2d at p. 477.

Regarding the issue of res judicata, appellant's claim to appellee's military retirement benefits cannot be barred by res judicata because res judicata applies to those issues, which either were previously litigated or could have been litigated in a prior action. See Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983); Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979). Here, the division of the military retirement benefits was precluded, by law, from being litigated at the time of divorce.

Three rules of law are generally accepted regarding the division of community property upon dissolution of a marriage. First, in dividing the property upon divorce, the trial court need not make an equal division; in arriving at its division, the trial court can consider a myriad of equitable considerations, including: (1) disparity in earning power; (2) business opportunities; (3) earning capacities and opportunities; (4) age and physical conditions of the parties; (5) their relative need for future support; (6) educational background; and, (7) financial obligations. Second, when a divorce decree is silent regarding the division of a particular community asset, the ex-spouses become tenants-in-common or joint owners of that asset; and, a subsequent division of that asset is obtained through partition. Third, military retirement benefits are a community asset, which is subject to division upon dissolution of a marriage.

Appellant came before the trial court seeking a partition of appellee's military retirement benefits. As we have already noted, this would normally be the method for apportioning community property, which was not considered by the trial court in its decree of divorce. However, the circumstances created by retroactive effect of the Act require that we consider whether partition should be applied to the situation at hand.

In a suit to partition undivided community property, filed subsequent to a final decree of divorce, such mandatory partition, in effect,...