Morris v. Morris
| Decision Date | 28 February 1995 |
| Docket Number | No. 2-94-063-CV,2-94-063-CV |
| Parties | Donald L. MORRIS, Appellant, v. Elizabeth Lawler MORRIS, Appellee. |
| Court | Texas Court of Appeals |
Richard B. Tanner, Dallas, for appellant.
Leigh Ann Fouts, Grand Prairie, for appellee.
Before LATTIMORE and DAY, JJ.
Appellant Donald L. Morris appeals from a final decree of divorce which divided property, allocated debts and determined child custody and support. He brings five points of error: (1) the trial court erred by awarding appellee an amount of money and a percentage of any increase in appellant's military retired pay; (2) the trial court erred by imposing alimony upon a retired military member; (3) the trial court abused its discretion in disproportionate division of the property and debts of the parties; (4) the trial court erred by failing to insure that the signed decree followed its rendition as to the amount of monthly child support and circumstances of any increase; and (5) the trial court erred by prohibiting appellant from changing his survivor benefit beneficiary. Appellee brings one cross-point, claiming Donald's appeal has been taken for purposes of delay and without sufficient cause, and asking us to award her damages under the Texas Rules of Appellate Procedure. We overrule appellant's first, second, third and fifth points of error and appellee/counter-appellant's cross-point. We sustain appellant's fourth point of error and modify the judgment of the trial court accordingly.
Donald Morris ("Donald") entered the military in 1969. In 1970, he married appellee Elizabeth Lawler Morris ("Elizabeth"). Elizabeth filed for divorce on March 4, 1992, four days after Donald's retirement from the United States Navy. At the time she filed for divorce, Elizabeth was separated from Donald and was living in Arlington, Texas. Donald was living in Lancaster, Texas. Donald filed an Original Answer, containing a General Denial, on March 20, 1992.
Donald and Elizabeth entered into Agreed Temporary Orders on May 28, 1992, wherein Donald was to pay $400.00 per month in child support and to pay the younger child's orthodontic bill to Dr. John Valant. The case was called to trial on April 14, 1993, and the parties entered into an agreed settlement at that time. Such agreement called for Donald to pay $120.00 per month in child support and for Elizabeth to receive 50 percent of Donald's military retirement benefits pay. Shortly thereafter, Donald learned he would be receiving disability payments in lieu of his retirement, which would preclude Elizabeth from receiving her full share of Donald's retirement benefits. Donald informed Elizabeth of this change and offered to pay $400.00 in monthly child support if Elizabeth would not go after Donald's retirement benefits if he were to discontinue receiving disability and resume receiving the retirement pay.
On July 8, 1993, Elizabeth filed a Motion to Enforce Master's Recommendation because of Donald's failure to pay child support and the orthodontic bills. The trial court entered an Order to Set Aside Prior Agreement, and the case was set for final trial on August 26, 1993. At that time, the court ordered Donald to pay $110.00 per month in child support and also ordered Donald to pay $275.00 per month in child support if for any reason in any month Donald received disability income in lieu of his normal retirement income. Although Elizabeth was awarded one-half of Donald's retirement benefits, she maintains he continues to refuse to pay her that portion of the benefits owed.
In his first point of error, Donald claims the trial court committed reversible error by awarding Elizabeth an amount of money and a percentage of any increase in Donald's military retired pay. Donald concedes the trial court had in personam jurisdiction and that the trial court had general family law subject matter jurisdiction; however, he argues the trial court lacked jurisdiction over disposable retired pay under the Uniformed Services Former Spouses' Protection Act ("FSPA"), 10 U.S.C.A. § 1408 (1983). Donald says the FSPA was intended to protect servicepersons from state laws which would not have been imposed absent assignment for military duty in the situs state. He says that, although the twenty-nine page final divorce decree references the jurisdictional aspects of the FSPA, all references pertain to Elizabeth, not to Donald. He argues that the trial court lacked the power to treat any disposable retired pay as property of the parties and that the disposition, as a result, is void.
Elizabeth's response, unchallenged by appellant, is that Donald has remained in Texas since retirement and conducts several businesses out of his home in Texas. At the time the divorce was filed, Donald did not file a special appearance but instead filed a general answer, appeared at temporary hearings and entered into agreed temporary orders, appeared at two trials and never objected to the jurisdiction of the court to hear the divorce or any related matter. Donald does not dispute that he has remained in Texas, conducted several businesses out of his home in this state, or that in failing to file a special appearance to contest jurisdiction he has effectively waived this point.
Texas Rules of Civil Procedure allow a party to challenge the jurisdiction of a court over a person or property through a special appearance; however, the rule authorizing the special appearance mandates strict compliance. TEX.R.CIV.P. 120a; Slater v. Metro Nissan of Montclair, 801 S.W.2d 253 (Tex.Civ.App.--Fort Worth 1990, writ denied). Once a party enters an appearance by filing an answer without challenging jurisdiction, he is before the court for all purposes. West v. City Nat'l Bank of Birmingham, 597 S.W.2d 461, 464 (Tex.Civ.App.--Beaumont 1980, no writ).
10 U.S.C.A. § 1408(c)(4) (1983) provides as follows:
A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.
Paragraph (1) of the FSPA states that:
Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.
10 U.S.C.A. § 1408(c)(1) (1983) (emphasis added).
Where the former serviceperson wishes to challenge jurisdiction, he or she must comply with the requirements of Rule 120a by filing a special appearance. Where the former serviceperson allows a trial to proceed without obtaining a ruling on his Rule 120a motion, the special appearance is waived and the party has consented to the court's jurisdiction. Seeley v. Seeley, 690 S.W.2d 626, 628 (Tex.Civ.App.--Austin 1985, no writ).
Donald did not file a special appearance but instead filed a general answer. He appeared at hearings and was generally involved in the process between March 20, 1992, when he filed his answer, and December 9, 1993, when his Motion for New Trial was filed. Donald did nothing to challenge or contest the trial court's jurisdiction during the entire process and waited to raise the issue during his appeal. Accordingly, point of error one is overruled.
In his second point of error, Donald claims the trial court erred by imposing alimony upon a retired military member. Donald claims the Texas marital property scheme as applied to disposable retired pay conflicts with the intent of the Texas legislature to not have permanent alimony. He says the division of military benefits here violates state law because it effectively imposes alimony upon him and that it also infringes upon his rights under the due process and/or equal protection clause of the Fourteenth Amendment to the United States Constitution. He fails, however, to cite a single Texas case which even remotely defines the division of disposable retired military pay as alimony and instead offers a history lesson detailing Congress' desire to demonstrate special concern for service personnel and a general, if unconvincing, public policy argument.
The FSPA allows state courts to continue to apply community property laws. See 10 U.S.C.A. § 1408; Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982). It is well-settled that military retirement benefits earned from years of service during the marriage are community property. TEX.FAM.CODE ANN. § 5.01 (Vernon 1993); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). Military retirement pay is a vested community property right, subject to division by the divorce court, and it is not alimony. United States v. Stelter, 553 S.W.2d 227, 229 (Tex.Civ.App.--El Paso 1977), reversed on other grounds, 567 S.W.2d 797 (1978). Donald's second point of error is overruled.
In his third point of error, Donald claims the trial court erred in ordering him to pay all debts of the marriage and $1,500.00 in attorney fees. Donald claims it was a clear abuse of discretion for the trial court to depart from the basic rule of equitable distribution of assets and liabilities but fails to argue these bald assertions.
Elizabeth responds that among the debts awarded to Donald were debts to Beneficial Finance, Mike Stringer and Softron International. Elizabeth notes Donald refinanced the Beneficial Finance debt in his own name during the marital separation and the creditor agreed to look only to him for payment. The debts owed Mike Stringer and Softron International were debts incurred by Donald for his businesses. Finally, Elizabeth notes the income tax debt was...
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