Mora v. Mora

• Decision Date: 15 May 1968
• Docket Number: No. 14651,14651
• Citation: 429 S.W.2d 660
• Parties: Flora Mae MORA, Appellant, v. Gilberto R. MORA, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 660

429 S.W.2d 660

Flora Mae MORA, Appellant, v. Gilberto R. MORA, Appellee.

No. 14651.

Court of Civil Appeals of Texas San Antonio.

May 15, 1968.

Rehearing Denied June 19, 1968.

Bonilla, DePena, Read & Bonilla, Hector DePena, Corpus Christi, for appellant.

Eduardo E. DeAses, Corpus Christi, for appellee.

CADINA, Justice.

The challenged judgment is one granting appellee, Gilberto R. Mora, plaintiff below, a divorce from appellant, Flora Mae Mora, and partitioning the community estate of the parties.

By her first two points appellant contends that, under the evidence, the trial court should have denied appellee's prayer for a divorce and should have granted her a divorce on her cross-action.

There is no reason to detail the evidence heard by the trial court . We have before us a situation, not unusual in divorce litigation, where each party testified that the other party, while the recipient and beneficiary of affection, kindness and forbearance, nevertheless, was guilty of behavior which only a martyr could be expected to tolerate. While appellant's testimony, if true would entitle her to a divorce, the judgment reflects that the court below believed the testimony of appellee. Such testimony supports the action of the trial court in granting appellee a divorce.

Appellant next complains of the failure of the trial court to find that a portion of appellee's interest in a military service retirement plan was the community property of the parties.

The judgment, after reciting that the community estate consisted solely of items of personal property enumerated in the judgment, divided such items between the parties. The enumeration made no mention of the interest in the retirement plan, and it is plain that the trial court concluded that such interest was not community property.

At the time of trial, appellee had completed 25 years and 8 months of service in the United States Marine Corps. The last 14 years and 8 months of such service had been rendered while appellant and appellee were married. According to appellee's testimony he was eligible for retirement at the time of trial and, in the event of such retirement he would be entitled, on the basis of his service until the date of trial, to receive retirement pay in the amount of $389.00 per month.

Despite an early tendency to view retirement and pension plans as a gratuity bestowed by a generous employer upon retiring employees for long and faithful service, the courts today regard retirement plans as a mode of employee compensation. Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App .--San Antonio 1960, no writ); Inland Steel Co. v. N.L.R.B., 170 F.2d 247, 12 A.L.R.2d 240 (7th Cir., 1948, cert den., 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112). As this Court held in Kirkham, appellee's interest in the retirement plan is an earned property right which accrued by reason of his military service and, under Article 4619, Vernon's Ann.Civ.St., the portion earned during marriage constitutes community property. 335 S.W.2d at p. 394.

It is true that, at the time of the trial, appellee had not retired from the military service and that he would be entitled to no payments until his actual retirement. However, since he had served in the Marine Corps for a length of time sufficient to entitle him to retirement benefits, he has obtained a property right which is vested even though the benefits were not payable at the time the divorce was granted. Herring v. Blakeley, 385 S.W.2d 843 (Tex.Sup., 1965), noted 19 S.W.L.J. 370.

Appellee points out that the retirement plan considered by the Supreme Court in Herring apparently contained no forfeiture provisions, while the testimony in this case shows that appellee's rights under the retirement plan would be forfeited if he received a dishonorable discharge or died while he was still in the service. However, the fact that appellee's rights may be forfeited if certain contingencies should occur prior to his retirement does not divest such rights of their status as property which is subject to the community property laws of this State. Hughes, Community Property Aspects of Profit-Sharing and Pension Plans in Texas, 44 Tex.L.Rev. 860, 869 (1966). Cf. Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470 (1945), concerning the interest of a beneficiary under a policy of life insurance.

The fact that a right may be forfeited does not reduce it to the base status of a 'mere expectancy.' Only rights in existence can be forfeited. A forfeiture provision in a...