Jindrich v. Weihele
| Citation | 656 S.W.3d 519 |
| Decision Date | 31 October 2022 |
| Docket Number | 08-20-00203-CV |
| Parties | Edward S. JINDRICH, Jr., Appellant, v. Michaela WEIHELE, Appellee. |
| Court | Court of Appeals of Texas |
ATTORNEY FOR APPELLANT: Leonard Morales, 221 N. Kansas St., Ste 1103, El Paso, TX 79901.
ATTORNEY FOR APPELLEE: Kristina Voorhies Legan, Kristina Voorhies Legan, PLLC, 1131 Wyoming Ave., El Paso, TX 79902.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Edward S. Jindrich, Jr., Appellant, and Michaela Weihele, Appellee, married and divorced in Germany, where Appellant was stationed while serving in the United States Army. After the German court granted their divorce, Appellee sought partition of Appellant's military retirement benefits in an El Paso trial court. Appellant appeals from the trial court's order partitioning his military retirement.
Appellant raises four issues. In his first and fourth issues, he questions subject-matter jurisdiction—whether the trial court erred in determining the German court did not have jurisdiction over the retirement benefits and determining it did]. In his second issue, Appellant argues the German divorce decree should be interpreted under Texas contract law. In his third issue, Appellant urges the trial court erred in determining the German court had not disposed of the military retirement in its decree. We affirm the trial court's ruling, holding the trial court properly determined it had subject-matter jurisdiction to apportion Appellant's military retirement benefits.
Appellant and Appellee married in 1990, in the Republic of Germany, where Appellant was stationed with the United States Armed Forces. Appellee is a German citizen, and they resided in Germany during their entire marriage. A German family court heard their divorce proceeding and issued an order granting the divorce on October 6, 2009.
Appellant retired from the military on November 1, 2016.1 He receives certain retirement benefits from the U.S. military. Appellee expects to retire on January 1, 2037. She has held jobs that will entitle her to benefits under the German pension system.
The German divorce decree contains two references to pensions. The first appears on page two of the decree as part of a listing of six shorter statements which appear to be holdings of the court (although there was no testimony specifically calling these statements holdings):
3. There will be no pension rights adjustments under public law. The agreement of the parties concerning this matter is approved by the family court.
(Hereinafter referred to as Ref. 1).
The second appears on page four, in a list of six longer paragraphs under the heading "Facts of the case and reasons for the decision:"
III. Pension rights adjustments. During the oral proceedings, the parties have agreed that the pension rights adjustments shall be carried out under the law of obligations. In view of the fact that the petitioner has obtained only foreign pension rights the agreement reached is appropriate and to be approved for that reason.
(Hereinafter referred to as Ref. 2).
At trial, Appellee's expert referred to a document called the "Protocol," from which he testified about the following provision:
The parties agreed that the pension rights adjustment should be implemented according to the law of obligations and not according to public law.
hereinafter referred to as the Protocol). The Protocol, dated June 17, 2009, appears to be a paraphrasing of testimony that took place at docket call.
On January 8, 2010, Appellee filed a Petition to Register Foreign Judgment and to Partition Undivided Marital Property. At that time, Appellant was deployed with the U.S. Army to Afghanistan. Appellant availed himself of the relief provided by the Servicemembers’ Civil Relief Act during his deployment. He retired on November 1, 2016 and responded to the petition on March 21, 2017.
The trial court heard the matter on March 5, 2020. Each party presented an expert witness, each of them a German attorney with expertise in German family law.
Appellee called Andreas Hanke, an attorney in Berlin. Hanke testified that Ref. 1 from the German decree is binding on the court, but Ref. 2 is not. He said the parties were divorced in this proceeding, but the German court did not have jurisdiction over the foreign pension. Germany does not have jurisdiction over American military retirement pensions. Hanke testified German law specifically says, "a foreign pension cannot be divided in a divorce proceeding." He cited a case from the German Supreme Court on Civil Matters for the proposition, because they are not subject to the jurisdiction of German courts, foreign pension benefits "cannot and must not be divided in a German court." He restated the holding: "[T]he foreign pension cannot be divided by German courts because the German courts lack jurisdiction regarding such assets."
Hanke testified, in Europe, there are many international legal instruments that allow for a choice of law or a choice of jurisdiction regarding marital property, other than pension benefits, spousal support, or even the divorce itself. However, there are no legal instruments that allow one to choose the law or the jurisdiction regarding the division of pension rights.
Hanke testified to the meaning of the public law and the law of obligations as they relate to pensions. Under public law, the division of pensions occurs according to a certain formula, and the pension entities will be bound by that order. When both parties have German pensions, the German court would divide those assets. Under the law of obligations, the parties agree to apportion rights as with a contract, but they cannot do this until both parties reach retirement age. That proceeding is only between the spouses; the pension entities are not involved. The party requesting reimbursement has the burden of proving they are owed money, such as proving there are still undivided pension assets. It is a voluntary proceeding, not automatically initiated. If one of the parties dies before both reach full retirement age, "there's a risk that the pension rights cannot be divided or that there will be no financial compensation." And if one of the parties has become insolvent by that time, it might be a dead end, with no money to satisfy the other party's claim.
The parties to this case could not divide their pensions under public law because the court did not have jurisdiction over the foreign pension. Under German law there was no other way to proceed except under the law of obligations or waive their rights to the pension rights adjustment.
Hanke testified that Appellee has not breached the agreement to go under the law of obligations by bringing this proceeding in the United States. Her request to divide the pension now is not a violation of the law of obligations.
Hanke testified in his personal experience, if a client had a spouse with a pension benefit in the United States, his clients have sought compensation in the United States.
Michael Hemming testified as Appellant's expert. Hemming's testimony regarding subject-matter jurisdiction and the public law and the law of obligations as they relate to pensions align with Hanke's. Hemming stated a process called equalization of pension benefits takes place in every divorce. If both spouses have German pensions, that is apportioned under public law, during the divorce, within the German pension system. If that cannot be accomplished during the divorce, it is completed under the law of obligations after both spouses reach full retirement age. German law does not prevent Appellant from spending his retirement benefits before that occurs. The German court cannot prevent a foreigner from spending his retirement benefits, "[b]ut he can be held responsible." Pension division proceeds in this manner because under public law, the judge has jurisdiction over the German pension system, while under the law of obligations, the judge cannot direct the foreign pension carrier to pay out or transfer benefits to the other spouse, because the German judge does not possess jurisdiction over the U.S. pension system. German courts have no jurisdiction over foreign pensions.
Hemming said both spouses have an obligation at the time of the divorce to disclose the amounts in their pension accounts. While the German court cannot touch the money in a U.S. retirement account, the German court can determine the value of that account or the money in that account, and then, like in a balance sheet, add this amount to the calculation of any distribution. Hemming said Appellee's attorney did not do this at the time of the...
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