Marshall v. Priess

• Decision Date: 31 January 2002
• Docket Number: No. 14-99-01399-CV.,14-99-01399-CV.
• Citation: 99 S.W.3d 150
• Parties: Janet Priess MARSHALL (Formerly Janet G. Priess), Appellant, v. Jarrell Joe PRIESS, Appellee.
• Court: Texas Court of Appeals

Page 150

99 S.W.3d 150

Janet Priess MARSHALL (Formerly Janet G. Priess), Appellant, v. Jarrell Joe PRIESS, Appellee.

No. 14-99-01399-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 31, 2002.

Leslie Werner de Soliz, Victoria, for appellant.

Charles J. Michael, Houston, for appellee.

Panel consists of Chief Justice BRISTER and Justices FOWLER and SEYMORE.

OPINION

WANDA McKEE FOWLER, Justice.

Appellant Janet Priess Marshall (formerly Janet G. Priess) appeals from orders amending previously entered qualified domestic relations orders ("QDROs"). These orders relate to the division and distribution of retirement benefits after Marshall's divorce from appellee Jarrell Joe Priess. Marshall contends that (1) Priess's motion to amend the QDROs was time-barred, (2) the trial court lacked jurisdiction to enter the amended orders, (3) the amended orders substantively changed the division of property ordered in the divorce decree and original QDROs, and (4) the trial court abused its discretion in entering the amended QDROs without due regard for Marshall's property rights. For the reasons discussed below, we affirm in part and reverse and remand in part.

FACTS

Appellant Janet Priess Marshall ("Marshall") and appellee Jarrell Joe Priess ("Priess") were married on June 23, 1957. On December 28, 1995, Priess filed for divorce. Marshall answered and countersued for divorce. During the pendency of the proceeding, the parties entered into a mediated settlement agreement. On June 19, 1997, the court granted the divorce in open court, and a final consent decree of divorce and judgment was signed August 15, 1997.

The decree recited that the parties "have agreed and consented to the terms of this proposed order pursuant to a mediated settlement regarding property, its character and division." The decree did not include a copy of the settlement agreement. However, the decree incorporated exhibits listing each party's award of community property. The decree further provided that both parties were to sign QDROs, and the exhibits included a statement that the retirement benefits awarded "shall be apportioned and divided pursuant to the necessary Qualified Domestic Relations Order or such other document as may be required and approved by the respective Plan Administrator."

On September 30, 1997, the court entered the two orders at issue here: (1) a Court Order Acceptable for Processing (the "COAP"), relating to Priess's Civil Service Retirement System ("CSRS") benefits, and (2) a Qualified Domestic Relations Order (the "QDRO"), relating to Marshall's retirement benefits under her San Jacinto Junior College 403(b) Plan.¹ The COAP provided as follows:

5. [Marshall] is entitled to a FIFTY AND NO/100 PERCENT (50.00%) of [Priess's] gross monthly annuity under the CSRS, unreduced for any option that may be selected by the Member.

* * *

9. Under section 8341(h)(1) of title 5, United States Code, Former Spouse is awarded the maximum possible former spouse survivor annuity under the CSRS unless Member remarries before retirement. If [Priess] remarries before retirement, ... [Marshall] is awarded a former spouse survivor annuity under the CSRS. The amount of the former spouse survivor annuity will be equal to FIFTY AND NO/100 PERCENT (50.00%).

10. The date of marriage was June 23, 1957 and the date of divorce was June 19, 1997.

The COAP also contained several other requirements pertinent to this appeal: (1) cost-of-living allowances applied to Priess's benefits were to be applied to Marshall's share; (2) Priess was designated a constructive trustee of any benefits he received that were due to Marshall; and (3) the specified benefit was payable to Marshall and was to commence as soon as administratively feasible upon Priess's retirement.

The QDRO relating to Marshall's retirement benefits under the San Jacinto Junior College 403(b) Plan provided the following:

5. [Priess] is hereby assigned FIFTY AND NO/100 PERCENT (50%) of [Marshall's] right, title and interest in and to the Plan as the first day of the month following the date of [Priess's] retirement from his employment with the United States Government and his commencement of benefits under the Civil Service Retirement System. In order for [Priess] to commence benefits under the Plan, [Priess] shall notify the Investment Companies that maintain the participant's investments under the Plain that he has retired from his employment with the United States Government and that he has commenced receiving benefits under the Civil Service Retirement System.

6. As soon as administratively practical after the Investment Companies have determined that this Order is a qualified domestic relations order and [Priess] has notified the Investment Companies that [Priess] has retired from his employment with the United States Government and has commenced benefits under the Civil Service Retirement System, the Plan shall establish a separate bookkeeping account for [Priess] to represent [Priess's] interest in the Plan ("[Priess's] Account"). [Priess] shall be entitled to direct the investment of [Priess's] Account among the Plan's investment funds to the extent permitted by, and in accordance with, the Plan's investment designation procedures.

7. Distributions under Plan are to begin to [Priess], at the option of [Priess], on or as soon as administratively practical after the date on which the Investment Companies have determined that this Order is qualified and has established [Priess]'s Account or at such later times as [Priess] may elect in writing to the Investment Companies. Distributions shall be made in any form allowed under the Plan, subject only to the Plan requirements.

PROCEDURAL BACKGROUND

Priess did not appeal the divorce decree or the entry of the COAP and QDRO. However, two years later, on September 20, 1999, Priess filed a "Motion to Enter Amended Qualified Domestic Relations Orders." In this motion, he sought two things: (1) to amend the COAP to reflect that Marshall's 50% interest in his benefits was to be determined as of the date of divorce, rather than the date of retirement; and (2) to amend the QDRO to provide that he can begin receiving benefits as of the date of Marshall's retirement, rather than his retirement.

In support of his motion, Priess attached a letter from the U.S. Office of Personnel Management ("OPM") notifying him that, as the COAP was written, Marshall would receive 50% of Priess's gross retirement benefit, including benefits accrued after the divorce. The OPM stated that it intended to honor the court's order and the survivor annuity award. The OPM did not state that the order was defective or that it could not be implemented.

The trial court conducted several hearings on the motion. Neither Priess nor Marshall testified substantively at any of the hearings, and no other evidence was introduced to show the parties' intentions regarding the division of property under the settlement agreement. At one of the hearings, the individual who prepared the original orders, Rick Johnson, was present and was questioned by the trial court. The trial court instructed Johnson to draft additional orders to reflect that Marshall's entitlement to Priess's CSRS benefits was limited to the benefits accrued as of the date of divorce, and to provide that Priess could access his interest in Marshall's retirement plan as the plan permitted, rather than at his retirement. The trial court instructed the parties' counsel to come back the next day for a hearing on the revised orders.

The next day, on November 9, 1999, the court was presented with five orders: one amended COAP relating to the Civil Service benefits, and four amended QDROs separately addressing each of the investments in Marshall's 403(b) Plan (which had previously been addressed in the one original QDRO). In addition to the requested revisions, the COAP included additional language requiring Marshall to pay the benefit premium for the survivor annuity. The court signed all of the orders as written. Marshall timely appealed from the orders.

After the instant appeal was filed, the trial court held another hearing at which it considered proposed findings of fact and conclusions of law. As finally entered, the trial court's findings of fact include the following:

1. That on or about June 19, 1997, Janet G. Priess and Jarrell Joe Priess were divorced in open court and on July 25, 1997, a Decree of Divorce was signed by the trial court.

2. That pursuant to the subject Decree of Divorce, each party was awarded a 50% community property interest in the other party's retirement plans and accounts.

The trial court also entered the following conclusions of law:

1. That this court has jurisdiction of the parties and of the subject matter of this case.

2. That this court has continuing, exclusive jurisdiction to enter the subject five (5) Qualified Domestic Relations Orders entered on November 9, 1999.

3. That the original Qualified Domestic Relations Orders entered by the trial court on September 30, 1997 did not properly set times for commencement of benefits ordered by the court.

4. That the changes reflected in the five (5) Qualified Domestic Relations Order [sic] entered on November 9, 1997,² were made in order to set dates for commencement of benefits in accordance with the trial court's division of retirement benefits as set forth in the Decree of Divorce.

5. That all legal prerequisites to the entry of the subject five (5) Qualified Domestic Relations Orders have been met.

The trial court made no findings or conclusions regarding (1) the intent of the parties to the original agreement, (2) why Marshall was to pay the survivor benefit premium, or (3) why a change was made to allow Priess to access his interest in Marshall's retirement benefits upon her retirement rather than his. Finally, the trial court entered no findings or conclusions that the divorce decree or the original COAP and...