McDougall v. Havlen, 04-97-00413-CV
| Decision Date | 09 September 1998 |
| Docket Number | No. 04-97-00413-CV,04-97-00413-CV |
| Citation | 980 S.W.2d 767 |
| Parties | Vivian L. McDOUGALL (fka Havlen), Appellant, v. Harold HAVLEN, Appellee. |
| Court | Texas Court of Appeals |
Gary A. Beahm, Gary A. Beahm, P.C., San Antonio, for Appellant.
James N. Higdon, Higdon, Hardy & Zuflacht, L.L.P., for Appellee.
Before RICKHOFF, DUNCAN and ANGELINI, JJ.
This case requires us to decide whether the Texas policy treating undivided community property assets as tenancies in common is sufficient to satisfy the requirements of the federal Uniformed Services Former Spouses Protection Act ("USFSPA"). Because we find that Texas law does "treat" a military pension for purposes of USFSPA, we reverse and remand.
Harold Havlen ("Havlen") joined the Air Force in 1952; he and Vivian McDougal ("McDougall") were married in 1953. He retired in 1972; the two were divorced in 1976. The divorce decree inexplicably failed to apportion his pension, and there was no residuary clause. The only asset mentioned in the decree was the couple's house, which was awarded to Havlen; he testified he sold the house and split the proceeds with McDougall.
In 1996, McDougall filed a petition to partition the "undivided asset," namely the military retirement pay. Havlen moved for summary judgment based upon the pleadings alone, citing the federal statutory bar to reopening divorce decrees prior to 1981, 10 U.S.C.A. § 1408(c)(1)(West Supp.1998), the limitations found in the Family Code, and on the equitable principles of estoppel and laches. TEX. FAM.CODE ANN. §§ 3.70(c), 3.90(c) and 3.91 (Vernon 1994). The trial court granted summary judgment without specifying a ground.
In three points of error McDougall argues the trial court erred in granting summary judgment because her claim is not barred by 10 U.S.C. § 1408(c)(1); because her cause of action is not barred by TEX. FAM.CODE ANN. §§ 3.70(c) and 3.90(c); and because her cause of action is not barred by estoppel and laches.
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549.
A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A movant may also prove entitlement to summary judgment by conclusively proving all elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984). Conversely, since the trial court did not specify on which ground it based its grant of summary judgment, the summary judgment must be affirmed if any of the grounds advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).
Havlen moved for summary judgment on the pleadings, without accompanying evidence. We therefore take all facts, inferences and allegations in the pleadings as true and view them in the light most favorable to McDougall. Havens v. Tomball Community Hospital, 793 S.W.2d 690, 691 (Tex.App.--Houston [1st Dist.] 1990, writ denied); Wood Truck Leasing v. American Auto. Ins. Co., 526 S.W.2d 223, 224-225 (Tex.Civ.App.--San Antonio 1975, no writ).
Havlen first argues that McDougall's partition action is barred by federal law. We disagree.
In Texas, upon entry of a divorce decree the former spouses hold any undivided community property as tenants in common. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). The proper method for addressing an undivided asset is a partition suit. Id.; Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985). The court in such a partition suit has the power to divide the property in a manner that the court deems just and right. TEX. FAM.CODE ANN. § 3.91 .
However, the power of Texas courts to apportion military retirement pay as part of the community estate is circumscribed by federal statute. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the Supreme Court interpreted spendthrift language in military pension law to mean that Congress had preempted the power of state courts to divide military pensions on divorce. Congress responded by passing the United Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (1988) which granted a limited right to state family law courts to treat military retirement pay as community property.
Through various clauses of USFSPA, Congress sought to regulate its grant of jurisdiction to community property states to divide military pensions. One of these clauses is at issue here:
A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.
10 U.S.C.A. § 1408(c)(1) (West Supp.1997). The purpose of the 1990 amendment is clearly set forth:
The committee is concerned because some state courts have been less than faithful in their adherence to the spirit of the law [USFSPA]. The reopening of divorce cases finalized before the Supreme Court's decision in McCarty v. McCarty that did not divide retired pay continues to be a significant problem. Years after final divorce decrees have been issued, some state courts, particularly those in California, have reopened cases (through partition actions or otherwise) to award a share of retired pay. Although congress has twice stated in report language that this result was not intended, the practice continues unabated. Such action is inconsistent with the notion that a final decree of divorce represents a final disposition of the marital estate.
H.R.Rep. No. 665, 101st Cong., 2d Sess. 279 (1990), reprinted in 1990 U.S.C.C.A.N. 2931, 3005.
The question we face is whether Texas' practice "treat[s] (or reserve[s] jurisdiction to treat)" of the pension for purposes of the federal statute.
Two courts of appeals have addressed our issue and reached opposite conclusions. Compare Walton v. Lee, 888 S.W.2d 604 (Tex.App.--Beaumont 1994, writ denied), cert. denied, 516 U.S. 870, 116 S.Ct. 190, 133 L.Ed.2d 127 (1995) with Knowles v. Knowles, 811 S.W.2d 709 (Tex.App.--Tyler 1991, no writ).
In Knowles, the court confronted a 1975 divorce and undivided retirement benefits; it held, without elaborating, that § 1408(c)(1) precluded an award of the community interest in a military spouse's pension. Id. at 710. Its holding was also bottomed in an unambiguous residuary clause which it held granted the entire pension to the military spouse. Id. at 711.
In contrast, the Waltoncourt, confronted with a 1976 divorce and undivided military benefits, held that "under Texas law the courts automatically 'treat (or reserve jurisdiction to treat) any amount of retired pay of the member' by virtue of the laws governing ownership of undivided property, and subsequent partition is not precluded by federal law." Id. at 605 (quoting 10 U.S.C. § 1408(c)(1)). Because we do not have a residuary clause, we find Walton more applicable to the task at hand.
The Texas Supreme Court construed 10 U.S.C. § 1408(c)(1) in Buys v. Buys, 924 S.W.2d 369 (Tex.1996). In that case, the court held that a general residuary clause which did not specifically mention a pension was sufficient to "reserve jurisdiction to treat" the pension and satisfy the statute. Buys, 924 S.W.2d at 372-373. The court found that the residuary clause in the divorce decree encompassed the pension; therefore the pension was clearly treated as a matter of state contract law. Id. at 373. The court noted that, in order to reach the conclusion that the residuary clause did not "treat" the benefits in question for purposes of the federal statute, "Congress would have had to intend that military retirement benefits the divorce decree already gave to a party years ago under applicable state law were taken away by enactment of the statute." Id. (emphasis in original). It also noted that such a construction would further the principle that in construing federal statutes, courts should strive to leave state family law unaltered. Id. (citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979)).
Buysessentially held that an unambiguous residuary clause "treats" a military pension as a matter of state contract law. Id. at 372-373. In the instant case we are faced not with a matter dealt with by agreement of the parties, but of state property law operating in place of a residuary clause. However, using the guidance provided by Buys and Walton, we determine that the operation of state law, which converts an undivided asset into a tenancy in common, is indeed sufficient to "treat (or reserve jurisdiction to treat)" an undivided military pension for purposes of the statute.
First, Texas' historic practice of converting undivided community property into a tenancy in common, like the divorce decree in Buys, creates a vested property...
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