Jones v. Jones

• Decision Date: 22 March 1995
• Docket Number: No. 04-94-00310-CV,04-94-00310-CV
• Citation: 900 S.W.2d 786
• Parties: Donald J. JONES, Appellant, v. Gail M. JONES, Appellee.
• Court: Texas Court of Appeals

Page 786

900 S.W.2d 786

Donald J. JONES, Appellant, v. Gail M. JONES, Appellee.

No. 04-94-00310-CV.

Court of Appeals of Texas San Antonio.

March 22, 1995.

Rehearing Denied May 15, 1995.

Jeffrey L. Pfeifer, San Antonio, for appellant.

Richard J. Karam, Bill Jolly, Karam, Naranjo, Kruger, Mery & Pina, San Antonio, for appellee.

Before CHAPA, C.J., and STONE and GREEN, JJ.

CHAPA, Chief Justice.

Appellant Donald J. Jones appeals from the trial court's judgment enforcing a divorce decree in favor of appellee, Gail M. Jones. The issue before this court is whether res judicata bars a collateral attack on the trial court's division of appellant's retirement benefits in the initial divorce decree. We hold that under Texas law res judicata bars collateral attack and affirm the judgment.

Appellant and Appellee were married in 1978 and divorced in May 1988. As a result of an agreement of the parties, the court entered the consent decree with the additional stipulation that the decree was a contract between the parties. Because appellant had not yet retired from the service, the court disposed of the military retirement by providing that the appellee have judgment against appellant in the following manner:

... if, as, and when retirement is received by DONALD J. JONES, a monthly amount equal to twenty-five percent (25%) of that monthly amount that a retired Major with 20 years service will receive on the date DONALD J. JONES begins to receive his retirement, with the same percentage of any and all costs of living related increases to which DONALD J. JONES shall become entitled for the period beginning on the date of retirement and ending on the death of DONALD J. JONES.

Appellant retired from the U.S. Army on October 31, 1991. At the time of his retirement, appellant was assigned a 40% disability rating, which he accepted in lieu of an equivalent amount of his retirement. The result was that his retirement pay was reduced by an amount of $463.00 per month, which he now contends is not subject to division as a community asset under the prohibitions of the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted on September 8, 1982. ¹ However, the 1988 consent divorce decree became final and was not appealed by either party. Appellant's attack on the divorce decree in response to appellee's motion to enforce the divorce decree was therefore a collateral attack on a final and unappealed judgment, thereby raising the issue of res judicata.

In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the United States Supreme Court held that the USFSPA barred state courts from treating, as property divisible upon divorce, military retirement pay that has been waived to receive Veterans Administration disability benefits. Id. at 594-95, 109 S.Ct. at 2031, 104 L.Ed.2d at 689. The court also explicitly left the question of retroactive application of the USFSPA for state courts to determine under existing state law. Id. at 586 n. 5, 109 S.Ct. at 2027 n. 5, 104 L.Ed.2d at 684 n. 5. The court gave retroactive application in Mansell based on a determination by the California Court of Appeals that it was appropriate, under California law, to reopen the final settlement order. Id. The issue here, however, is whether Texas law permits a similar result or whether res judicata bars a collateral attack on a final divorce decree.

In the absence of findings of fact and conclusions of law, a trial court's judgment will be upheld on any legal theory that finds support in the evidence of the law. Young v. Kirsch, 814 S.W.2d 77, 81-82 (Tex.App.--San Antonio 1991, no writ). "A collateral attack on a judgment is an attempt to avoid its binding force in a proceeding not instituted for the purpose of correcting, modifying, or vacating it, but in order to obtain some specific relief against which the judgment stands as a bar." Hogan v. City of Tyler, 602 S.W.2d 555, 558 (Tex.Civ.App.--Tyler 1980, writ ref'd n.r.e.). As a general rule, the only judgments subject to collateral attack are those which are void and not merely voidable. Jefferson Sav. & Loan Ass'n v. Adams, 802 S.W.2d 811, 814 (Tex.App.--San Antonio 1990, writ denied).

In Berry v. Berry, 786 S.W.2d 672 (Tex.1990), an issue similar to the one before us was presented to the Texas Supreme Court. The parties in Berry divorced in 1980, and the court entered an order granting the wife twenty-five percent of the gross amount of her husband's Air Force disability retirement pay, which the husband had elected to receive in lieu of military retirement benefits. On June 8, 1987, as a result of a contempt action filed by the wife to enforce the decree, the trial court mandated payment pursuant to an agreed order. On September 1, 1987, the husband waived a portion of the Air Force disability pay in exchange for similar benefits from the Veterans Administration, thus reducing the amount he received from the Air...