Southern v. Glenn

• Decision Date: 20 June 1984
• Docket Number: No. 04-83-00172-CV,04-83-00172-CV
• Parties: Mary Janice (Glenn) SOUTHERN, Appellant, v. James Jerry GLENN, Appellee.
• Court: Texas Court of Appeals

Page 576

677 S.W.2d 576

Mary Janice (Glenn) SOUTHERN, Appellant, v. James Jerry GLENN, Appellee.

No. 04-83-00172-CV.

Court of Appeals of Texas San Antonio.

June 20, 1984.

Rehearing Denied Aug. 28, 1984.

John W. Benbow, Benbow & Gross, Inc., San Antonio, for appellant.

John W. Bell, Mayo J. Galindo, San Antonio, for appellee.

Before BUTTS, REEVES and TIJERINA, JJ.

OPINION

BUTTS, Justice.

The question is whether the Texas state court acquired jurisdiction of the defendant, a retired member of the military service, in light of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (1983). ¹

Plaintiff Mary Janice (Glenn) Southern appeals from the trial court's order dismissing for want of jurisdiction her suit for partition of military retirment benefits. § 1408(c)(4). Defendant James Jerry Glenn entered his special appearance to contest jurisdiction of the Texas court pursuant to TEX.R.CIV.P. 120a. Trial was before the court, which filed findings of fact and conclusions of law. We affirm.

A chronology of pertinent events follows:

1960--James enters military service in Mississippi

November 2, 1962--Mary and James are married in San Antonio, Texas

May 17, 1982--Mary and James are divorced in San Antonio, Texas

May 18, 1982--James takes terminal leave from the military and returns to Mississippi

May 31, 1982--James retires from the military

November 10, 1982--Mary files a partition suit for military retirement benefits in San Antonio, Texas

Mary, in her partition suit, asks for one-half of prior and future payments of defendant's military retirement benefits, based upon their period of marriage between November 2, 1962 and May 17, 1982. It is well settled Texas law that a divorce suit and a subsequent partition suit are two different causes of action. Balazik v. Balazik, 632 S.W.2d 939, 941 (Tex.App.--Fort Worth 1982, no writ); Matthews v. Houtchens, 576 S.W.2d 880, 883 (Tex.Civ.App.--Fort Worth 1979, no writ). When a divorce decree fails to provide for the division of all of the community property, as here, the husband and wife become tenants in common or joint owners of that property which was not divided. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970).

The divorce decree did not provide for the partition of military retirement benefits, being rendered in the hiatus between the decision of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (decided June 26, 1981), and the enactment of the FSPA in 1982.

Until displaced by the FSPA, McCarty mandated that military retirement benefits were the separate property of the retiree and not subject to community property division upon divorce between the retiree and his spouse. 453 U.S. at 233, 101 S.Ct. at 2741, 69 L.Ed.2d 589 at 606. Interpreting McCarty, the Texas Supreme Court has held the Supremacy Clause, U.S. CONST. art. VI, cl. 2, precluded the apportionment of nondisability military retirement benefits upon divorce. Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981). See also Voronin v. Voronin, 662 S.W.2d 102, 104 (Tex.App.--Austin 1983, writ dism'd); Gordon v. Gordon, 659 S.W.2d 475, 477 (Tex.App.--Corpus Christi 1983, no writ). Nor could the trial court even consider such military retirement pay in its apportionment of the community estate. See Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982).

That section of the FSPA which overrides the McCarty decision provides:

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. [Emphasis added.]

§ 1408(c)(1). This section purports to reinstate Texas law on military retirement benefits as it existed prior to the McCarty decision. The FSPA is retroactive to June 25, 1981, the day before the McCarty decision, so that military retirement benefits are made subject to division both before and after June 25, 1981. Voronin, supra at 106; Gordon, supra, at 478; Congressional Conference Report, U.S.Code Cong. & Ad.News 1570 (1982).

Prior to McCarty, the Texas law designated military benefits earned during marriage as property subject to division upon divorce. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, supra. Cearley, supra, at 664, also states the formula for division of military retirement benefits between spouses:

Months married

---------------- X final benefit X 1/2

Months in service

This formula allows for the division of future military retirement benefits. Id. at 663. Thus, even though James retired subsequent to his divorce, his unmatured retirement benefits would still be subject to apportionment as part of the community property estate. Id. at 664. Under the Texas formula, Mary would be entitled to a little less than one-half of his military retirement benefits since the parties were married for about eighteen of the twenty years that James was in the service.

The trial court filed the following findings of fact:

1. Plaintiff is a resident of San Antonio, Bexar County, Texas.

2. The Defendant, JAMES JERRY GLENN, was a domiciliary and resident of Taylorsville, Mississippi when he entered the United States Army on July 15, 1960.

3. Plaintiff and Defendant were married on November 2, 1962 and were husband and wife until Plaintiff divorced Defendant May 17, 1982 by decree of the 45th Judicial District Court of Bexar County, Texas in cause no. 81-CI-10565, in cause styled "In the matter of the marriage of Mary Janice Glenn and James Jerry Glenn."

4. At the time Plaintiff instituted divorce proceedings in Bexar County the Defendant was a resident of Bexar County pursuant to his military assignment at Fort Sam Houston, Texas. At this time, he was, however, a domiciliary and citizen of the State of Mississippi.

5. At all times that Defendant served in the Armed Forces of the United States of America he was a citizen and domiciliary of the State of Mississippi although a resident of other states without the State of Mississippi pursuant to military orders.

6. Even before the divorce decree was rendered in cause No. 81-CI-10565 the Defendant, on April 18, 1982, left the State of Texas and reestablished his residence in Taylorsville, Mississippi.

7. Since that time the Defendant has continuously resided and been a domiciliary of the State of Mississippi.

8. On 11-10-82, at the time Plaintiff instituted the instant cause the Defendant, JAMES JERRY GLENN, was a resident and domiciliary of Taylorsville, Mississippi.

9. The Defendant has not voluntarily appeared nor consented to the assumption of jurisdiction by this Court over his person in this cause.

10. After the parties were divorced by decree of the Bexar County, District Court on May 17, 1982, no motion for new trial was filed by either party.

Such findings of fact have the same force and effect as jury answers to special issues and are treated with the same dignity on appellate review. 4 R. McDONALD, TEXAS CIVIL PRACTICE § 16.05 (rev.1971). Unchallenged findings are binding on appeal. Whitten v. Alling & Cory Co., 526 S.W.2d 245, 248 (Tex.Civ.App.--Tyler 1975, writ ref'd).

The trial court also filed the following conclusions of law:

1. The instant suit is a separate and independent cause of action from the previous divorce cause which resulted in a final judgment.

2. The Uniformed Services Former Spouses' Protection Act 10 U.S.C. 1408 preempts the subject matter of this suit and limits the power of this Court to grant Plaintiff the relief sought by her in the premises.

3. 10 U.S.C. 1408(c)(4) limits this Court's power (jurisdiction) to dispose of military retirement or retainer pay unless it is the Court of Defendant's residence other than because of military assignment, the Court of his domicile, or a Court with jurisdiction based on the member's consent.

4. At the time Plaintiff instituted the instant suit on November 10, 1982, the Defendant was neither a resident nor a domiciliary of Bexar County, Texas, and has never consented to the assumption of jurisdiction by this Court over his person or the subject matter.

The principal usefulness of conclusions of law is to denote to the appellate court the theory on which the action was tried. If the controlling findings of fact will support a correct legal theory, incorrect legal conclusions will not require a reversal. City of Corpus Christi v. Davis, 575 S.W.2d 46, 55 (Tex.Civ.App.--Corpus Christi 1978, no writ); 4 R. McDONALD, supra, at § 16.05.

In points of error one and two, plaintiff challenges conclusions of law two and three that the trial court had no personal jurisdiction over James in that the FSPA is not applicable to partition suits. In point of error three, plaintiff challenges findings of fact four through seven that James is a resident and domiciliary of Mississippi. Therefore the remaining unchallenged findings, including finding of fact nine that James did not consent to the court's jurisdiction, are binding on appeal. Whitten, supra, at 248.

Section 1408(a)(2) provides:

"Court order" means a final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or a court ordered, ratified, or approved property settlement incident so such previously issued decree), which--

(A) is issued in accordance with the laws of the jurisdiction of that court;

(B) provides for--

(i) payment of child support (as defined in section 462(b) of the Social Security Act (42 U.S.C. 662(b));

(ii) payment of alimony (as defined in section 462(c) of the Social Security Act (42 U.S.C. 662(c)); or

(iii)...