Mullins v. Mullins
| Decision Date | 28 August 2006 |
| Docket Number | No. 05,05 |
| Citation | 202 S.W.3d 869 |
| Parties | GLORIA JEAN MULLINS, Appellant, v. WILLIAM GERARD MULLINS a/k/a KAYO MULLINS, Appellee. |
| Court | Texas Court of Appeals |
Before Justices RICHTER, LANG, and MAZZANT.
Gloria Jean Mullins appeals the trial court's corrected final decree of divorce and second corrected qualified domestic relations order (QDRO), which awarded William Gerard Mullins a/k/a Kayo Mullins half of her retirement benefits. She also appeals the trial court's orders denying her motion to rescind the mediated settlement agreement, motion for new trial, motion for reconsideration, and motion to modify the corrected divorce decree and the first corrected QDRO.
Ms. Mullins raises four issues on appeal: (1) the trial court had no jurisdiction to enter the second corrected QDRO; (2) the trial court erred when it entered the corrected divorce decree because it varies from the terms of the parties' mediated settlement agreement with regard to Ms. Mullins's post-divorce retirement benefits; (3) the trial court erred when it entered the corrected divorce decree because it varies from the terms of the parties' mediated settlement agreement with regard to Ms. Mullins's pre-marriage retirement benefits; and (4) the trial court erred when it denied Ms. Mullins's motion to rescind the mediated settlement agreement, motion for new trial, motion for reconsideration, and motion to modify the corrected divorce decree and the first corrected QDRO. Mr. Mullins seeks modification of the corrected divorce decree and second corrected QDRO to correct typographical errors.
We conclude the trial court did not have jurisdiction to enter the second corrected QDRO. However, we conclude the trial court did not err when it entered the corrected divorce decree and denied Ms. Mullins's motion to rescind the mediated settlement agreement, motion for new trial, motion for reconsideration, and motion to modify the corrected divorce decree and the first corrected QDRO.
Mr. Mullins and Ms. Mullins were married on August 31, 1985. Mr. Mullins petitioned for divorce on November 18, 2002, and Ms. Mullins counter petitioned for divorce on December 16, 2002. Each party submitted a sworn inventory and appraisement reflecting his or her assessment of their community and separate property. In Ms. Mullins's appraisement, she only listed her retirement benefits as community property.
Mr. Mullins moved for the trial court to enter a final decree of divorce and QDRO. In response, Ms. Mullins filed a motion to rescind the mediated settlement agreement, claiming the agreement was erroneous due to a mutual mistake because it was not contemplated that Mr. Mullins would receive any portion of her retirement benefits earned outside of their marriage. In the alternative, she claimed the mediated settlement agreement was erroneous because there was no meeting of the minds. Also, Ms. Mullins objected to the entry of the QDRO. During the hearing on June 10, 2004, Ms. Mullins invoked her attorney/client privilege when questioned about the meaning of term number 5 in the mediated settlement agreement. However, the trial court admitted an email from the mediator to Ms. Mullins's attorney stating the mediator believed the mediated settlement agreement "could only have meant to split [Ms. Mullins's] retirement for the years of marriage, that is the community portion of it" and sustained Ms. Mullins's objection to the testimony of the mediator. After the hearing, the trial court entered a final decree of divorce and QDRO, awarding Mr. Mullins 50% of Ms. Mullins's retirement benefits as of the date of the decree. On July 15, 2004, the trial court entered an order denying Ms. Mullins's motion to rescind the mediated settlement agreement and granting Mr. Mullins's motion to enter a final divorce decree.
The parties filed an agreed motion to correct the divorce decree and QDRO to change the date of entry from June 10, 2004 to July 3, 2004. The trial court granted the motion and entered the corrected divorce decree and the first corrected QDRO on September 7, 2004. Meanwhile, on July 23, 2004, Ms. Mullins filed a request for findings of fact and conclusions of law. She also filed a motion for new trial and a motion for reconsideration, which reasserted her prior arguments and alleged a latent ambiguity in the mediated settlement agreement. During the hearing on Ms. Mullins's motions, the trial court took judicial notice of its file in this case, but no other evidence was presented. On September 15, 2004, Ms. Mullins filed her second request for findings of fact and conclusions of law. On September 22, 2004, the trial court denied Ms. Mullins's motion for new trial and motion for reconsideration.
On October 7, 2004, Ms. Mullins filed a motion to modify the corrected divorce decree and the first corrected QDRO and a second motion for new trial and reconsideration. The record does not show the trial court ruled on these motions. On October 18, 2004, the trial court issued its findings of fact and conclusions of law in response to Ms. Mullins's requests. Ms. Mullins filed a motion requesting amended findings of fact and conclusions of law. However, the trial court did not amend them.
On December 29, 2004, the trial court entered a second corrected QDRO, which added the following language:
5. The Court finds and the parties agree that in order to effect an equitable settlement of the estate, separate property of the participant is awarded to the alternate payee.
The record does not show that a motion requesting a second corrected QDRO was filed or that there was a hearing to that effect.
On September 23, 2005, James F. Newth, counsel for Mr. Mullins, filed a motion requesting a second supplemental clerk's record containing the following documents: (1) a letter dated November 15, 2004 from Vivien E. Whatley of the Teacher Retirement System of Texas to Mr. Mullins; (2) a letter dated December 3, 2004 from James Newth to Judge Parker; and (3) a letter dated December 10, 2004 from Gregory T. Perkes to Judge Parker. On September 29, 2005, this Court ordered the Dallas County District Clerk to file a second supplemental clerk's record containing those letters to the extent they were a part of the trial court's record.
The second supplemental clerk's record was filed on October 3, 2005. The second supplemental clerk's record contains only a letter from James F. Newth to the District Clerk that is file marked September 30, 2005. Mr. Newth's letter to the District Clerk requested that the attached letters be included in the second supplemental clerk's record. Attached to Mr. Newth's letter was a copy of this Court's order along with copies of the three letters he requested to be included in the second supplemental clerk's record. The letters attached to Mr. Newth's letter were not file marked and were labeled with exhibit numbers that corresponded to the exhibit numbers referenced in Mr. Newth's letter.
On November 3, 2005, Mr. Mullins filed his brief. In the appendix to his brief, Mr. Mullins included the three letters. In response to Ms. Mullins's first issue, he referred to those letters to show the trial court had jurisdiction to enter the second corrected QDRO. In her reply brief, Ms. Mullins argued these documents were not part of the clerk's record and requested that this Court strike the second supplemental clerk's record.
This Court requested the District Clerk to certify whether these letters were a part of the trial court's record before Mr. Newth sent them to the District Clerk on September 30, 2005. In response, the transcript clerk filed an affidavit stating that the letters were not included in the trial court's record before September 30, 2005 and they only appear in the record as attachments to Mr. Newth's September 30, 2005 letter. Accordingly, Ms. Mullins's motion to strike the second supplemental clerk's record is granted. Also, we will not consider the letters that are included in Mr. Mullins's appendix to his brief. See Tex. R. App. P. 38.1(f); Burke v. Ins. Auto Auctions, 169 S.W.3d 771, 775 (Tex. App.-Dallas 2005, pet. denied).
In her first issue, Ms. Mullins argues the trial court had no jurisdiction to enter the second corrected QDRO because it improperly effected a substantive change from the corrected final decree of divorce. Mr. Mullins responds that the Teacher Retirement System determined that the first corrected QDRO did not satisfy the requirements of a QDRO under section 9.104 of the Texas Family Code, which gives the trial court jurisdiction to correct the QDRO under such circumstances.
The question of jurisdiction is an issue of law an appellate court reviews de novo. Marshall v. Priess, 99 S.W.3d 150, 156 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Section 9.104 of the Texas Family Code allows the correction of a QDRO that is defective. See In re Marriage of Jones, 154 S.W.3d 225, 228 (Tex. App.-Texarkana 2005, no pet.)
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