Marsh v. Wallace

• Decision Date: 05 June 1996
• Docket Number: No. 03-94-00313-CV,03-94-00313-CV
• Citation: 924 S.W.2d 423
• Parties: Richard Lee MARSH, Appellant, v. Wanda Maria WALLACE, Appellee.
• Court: Texas Court of Appeals

Page 423

924 S.W.2d 423

Richard Lee MARSH, Appellant, v. Wanda Maria WALLACE, Appellee.

No. 03-94-00313-CV.

Court of Appeals of Texas Austin.

June 5, 1996.

Terri Motl, Smith, Carter, Rose, Finley & Griffis, San Angelo, for appellant.

Richard O. Ely, II, Krohn & Ely, L.L.P., Houston, for appellee.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

ABOUSSIE, Justice.

This cause presents the issue of whether a divorce decree awarding a former spouse a portion of her ex-husband's military retirement benefits entitles her to receive a share of a Special Separation Benefit ("SSB") lump sum payment received pursuant to 10 U.S.C.A. § 1174a (West Supp.1996). Appellant Richard Lee Marsh ("Marsh") appeals from the trial court's order enforcing the decree by awarding a portion of the SSB payment to his former wife, appellee Wanda Maria Wallace ("Wallace"). We will affirm the trial court's order.

BACKGROUND

Marsh and Wallace were divorced in 1989. The divorce decree provided that Wallace receive twenty-nine percent of Marsh's retirement pay if, as, and when Marsh begins to receive retirement pay. ¹ At the time of the divorce, Marsh was not yet eligible to draw retirement pay but was serving on active duty with the United States Air Force, classified as an 0-3 with thirteen years of service. In 1992, Marsh elected to separate voluntarily from active duty in the Air Force. Taking advantage of newly enacted legislation, Marsh was able to be released from the service before becoming eligible for retirement but nevertheless receive a lump sum SSB payment of $86,892.16 based upon his rank, base pay and years of service. See 10 U.S.C.A § 1174a(b)(2) (West Supp.1996). Following his separation from active duty, Marsh has served in the military reserves, accruing additional credit toward retirement, as the statute permits. See 10 U.S.C.A. § 8911 (West Supp.1996). In the event that he eventually becomes eligible to receive retirement benefits, those benefits will be reduced by the amount of the SSB lump sum payment he received. See 10 U.S.C.A. § 1174a(g) (West Supp.1996).

Wallace filed a motion to enforce the divorce decree, alleging that the SSB payment was retirement pay as described in the property division. The trial court ordered Marsh to make an appearance. Marsh filed a pro se answer denying that he had received any retirement pay from the military, but he failed to appear at the hearing. The trial court rendered a default judgment against Marsh, implicitly concluding that the SSB payment was retirement pay and awarding Wallace almost $40,000, representing her share under the divorce decree. Marsh filed a motion to set aside the default judgment. The court declined to relitigate the legal issue of whether Marsh's SSB payment was retirement pay but granted a new trial with respect to the amount of the SSB payment Marsh had received and the proportionate share that should be awarded to Wallace. Following the second hearing, the trial court awarded Wallace $21,606.29 out of Marsh's

                net SSB payment and issued a conclusion of law that "Special Separation Pay received pursuant to 10 U.S.C. Sec. 1174a is retirement pay."   Marsh appeals the trial court's order by three points of error
                

DISCUSSION

In his first two points of error, Marsh complains that the trial court erred in concluding that the SSB payment he received pursuant to section 1174a was retirement pay and therefore divisible under the parties' divorce decree. Marsh contends that this issue presents a question of law. In his third point of error, Marsh argues alternatively that, if we determine the matter is a question of fact, then the court erred in failing to grant a new trial on the issue. We agree that whether the SSB payment was retirement pay is a legal issue for the court to determine. In any event, Marsh failed to support his third complaint with citation to any authority, and has therefore waived any error. See Tex.R.App. P. 74(f) (appellate brief must include discussion of the authorities relied upon to maintain the point at issue); see also D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.--Dallas 1993), no writ; Helle v. Hightower, 735 S.W.2d 650, 654 (Tex.App.--Austin 1987, writ denied); Rayburn v. Giles, 182 S.W.2d 9, 14 (Tex.Civ.App.--San Antonio 1944, writ ref'd) (failure to cite to applicable authority in support of point of error constitutes waiver of the point). Therefore, we overrule point of error three.

The divorce decree awarded Wallace a portion of Marsh's "retirement pay." The trial court awarded Wallace part of the SSB payment in enforcement of this property division. Therefore, the narrow issue before this court is whether the trial court erred in concluding that Marsh's SSB lump sum payment constituted retirement pay under the terms of the decree. Marsh argues that SSB benefits are in the nature of gratuitous severance pay awarded as compensation for lost future earnings, not deferred pension pay compensation earned for past services. In reaching our decision, we conclude that the SSB payment Marsh received was in the nature of retirement pay, compensating him now for the retirement benefits he would have received in the future. This is a case of first impression in Texas.

In support of his position, Marsh analogizes SSB benefits paid under U.S.C. § 1174a to benefits paid under U.S.C. §§ 687, 1201 and 1174, benefits which all have been deemed not to be divisible retirement pay because they are not deferred payment for past services. See Perez v. Perez, 587 S.W.2d 671 (Tex.1979) (noting Congressional intent that benefit received under section 687 following involuntary release from armed services deemed non-earned gratuity to service member to aid readjustment to civilian life, not payment for service previously rendered); Wallace v. Fuller, 832 S.W.2d 714 (Tex.App.--Austin 1992, no writ) (holding military disability benefits received pursuant to section 1201 are not included in the Former Spouses' Protection Act's ² definition of "disposable retirement pay" and therefore not subject to division); Kuzmiak v. Kuzmiak, 176 Cal.App.3d 1152, 222 Cal.Rptr. 644 , cert. denied, 479 U.S. 885, 107 S.Ct. 276, 93 L.Ed.2d 252 (1986) (noting Congressional intent that separation pay received under section 1174 upon involuntary discharge from military is not compensation for past services but payment to ease reentry into civilian life). Marsh also cites to decisions in other states addressing voluntary separation benefits under section 1175. See McClure v. McClure, 98 Ohio App.3d 27, 647 N.E.2d 832 (1994) (payments paid pursuant to 10 U.S.C. § 1175 were not divisible under facts of case where husband forced to "voluntarily" separate from service); Kelson v. Kelson, 647 So.2d 959 (Fla. 1st Dist.Ct.App.1994) (payments received pursuant to 10 U.S.C. § 1175 were not divisible, conflicting with Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th Dist.Ct.App.1994)). None of the cases Marsh cites addresses payments received under section 1174a. Although each party makes persuasive arguments, we distinguish the cases Marsh relies on and uphold the trial court's ruling.

We find Kuzmiak inapposite partly because it addressed separation pay for an involuntary discharge under section 1174, not a voluntary release under section 1174a. Kuzmiak, 222 Cal.Rptr. at 646. According to Kuzmiak, separation pay is the personal property of the recipient compensating the member for lost future earnings and designed to ease transition into civilian life. Retirement pay, on the other hand, is a contractual obligation constituting compensation for past services. Kuzmiak, 222 Cal.Rptr. at 646. The separation payment in Kuzmiak did not serve to compensate payment recipients for past services. See In Re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210, 213 (Ct.App.1994). Instead, the payments were given to armed forces members forced to leave the military to enable them to adjust to civilian life. Kuzmiak, 222 Cal.Rptr. at 647. Nevertheless, the court recognized the former wife's interest in the unmatured retirement benefits, including the separation pay, in the event the reenlisted member becomes eligible for retirement.

In an analogous case, the Texas Supreme Court addressed the character of readjustment payments to a member of the armed forces who was involuntarily released from active duty. Perez, 587 S.W.2d at 672. As in Kuzmiak, the court reasoned that readjustment payments to involuntarily severed service members are designed to ease transition into civilian life, not to serve as compensation for past services. Perez, 587 S.W.2d at 673. While the basis for these opinions is sound, they do not control our assessment of SSB payments.

SSB payments are designed to "assist separating personnel and their families," H.R.Rep. No. 665, 101st Cong., 2d Sess. (1990), U.S.Code Cong. & Admin.News 1990, pp. 2931, 2962 (emphasis added). They differ from payments made upon involuntary severance from the military. In consideration of receiving an SSB payment, one voluntarily elects to separate from active duty. In the process, the member voluntarily forfeits the opportunity to earn and receive future retirement benefits that otherwise would become due upon successful completion of the required service. If one who has accepted an SSB payment thereafter reenlists in the active reserve and eventually qualifies for retirement after all, the SSB payment...