Sutherland v. Cobern, 6-91-122-CV

• Decision Date: 27 October 1992
• Docket Number: No. 6-91-122-CV,6-91-122-CV
• Parties: Vernon Douglas SUTHERLAND, Appellant, v. Hazel Joyce COBERN, Appellee.
• Court: Texas Court of Appeals

Page 127

843 S.W.2d 127

Vernon Douglas SUTHERLAND, Appellant, v. Hazel Joyce COBERN, Appellee.

No. 6-91-122-CV.

Court of Appeals of Texas Texarkana.

Oct. 27, 1992.

Rehearing Denied Nov. 18, 1992.

Rim Nall, Nall, Pelley and Wynne, Sherman, for appellant.

Lewis F. Boyd, Paris, Martin L. Kahn, Irving, Ann Crawford McClure, El Paso, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Vernon Sutherland appeals a judgment granting his former spouse, Joyce Cobern, a share of his past and future military retirement benefits. The primary question presented is whether either federal law or the doctrine of res judicata bars the division of Sutherland's military retirement benefits. We hold that the trial court's judgment is not barred, overrule other points of error, and affirm the judgment.

Sutherland and Cobern married in 1951, while he was on active duty with the United States Navy. In 1971, the parties divorced. At that time, Sutherland had retired from active duty in the Navy and had become a member of the Fleet Reserve. Cobern believed that the Fleet Reserve payments which Sutherland was receiving was retirement pay. Upon divorce, the trial court awarded Cobern an undivided interest in and to "that earned property right owned" as a result of Sutherland's service in the Navy and his "having been released from active duty and transferred to inactive duty" in the reserve.

At the time of divorce in 1971, the compensation for prior service which Sutherland received was, in law, labeled retainer pay. ¹ However, in the property division the trial court did not refer to the benefits by that name. In awarding Cobern a share of the earned property right, the court determined that the pay then being received by Sutherland by reason of his previous service in the U.S. Navy was community property and awarded her a share of such payments when received by Sutherland. ² Sutherland did not appeal from the divorce decree. He refused to pay Cobern her share of the benefits received. As a result, he was held in contempt. Sutherland filed a writ of habeas corpus with this court, which was dismissed. Ex parte Sutherland, 515 S.W.2d 137 (Tex.Civ.App.-Texarkana 1974, orig. proceeding). He also filed a writ of habeas corpus with the Texas Supreme Court, which was also unsuccessful. Ex parte Sutherland, 526 S.W.2d 536 (Tex.1975) (orig. proceeding).

In 1981, after Sutherland completed thirty years of combined active duty and inactive duty, the designation of his retirement compensation was changed from retainer pay to retired pay. He stopped making payments to Cobern. Cobern filed a motion to hold Sutherland in contempt for his failure to continue to pay her a share of his retired pay. The trial court dismissed Cobern's motion. In 1986, Cobern brought this suit to obtain her share of the military retired pay.

FEDERAL LAW PRECLUSION

We now turn to Sutherland's claim that any award of his retired pay is precluded by 10 U.S.C.A. § 1408 (West 1983 & Supp.1992). ³ This statute was enacted to reverse the effects of the Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In McCarty, the Court held that military retirement benefits could not be the subject of a state court divorce decree. McCarty, 453 U.S. at 218, 101 S.Ct. at 2734, 69 L.Ed.2d at 607. The statute erased the effect of McCarty. See Koepke v. Koepke, 732 S.W.2d 299, 299 (Tex.1987). As originally enacted, Section 1408 referred to retired and retainer pay and allowed division of these benefits in accordance with state law. In 1990, Section 1408(c)(1) was amended to provide that a court could not divide or partition retired pay as marital property if a final divorce decree was entered before June 25, 1981, the date of the McCarty decision, and such a decree had not originally treated any amount of the retired pay as marital property.

Sutherland's attorney contends that the trial court's decision does precisely what Section 1408(c)(1) prohibits; it partitions his military retired pay despite the fact that his pre-McCarty divorce decree did not address retired pay. When Congress added Section 1408(c)(1), it added Section 1408(a)(7) to the definitions section. Section 1408(a)(7) provides that the term retired pay includes retainer pay. Concurrently, all other references to the term "retainer pay" were stricken from the section. In the judgment being appealed, the trial court indicated that, because of its division of the retainer pay in the original divorce decree, Cobern is now entitled to receive a share of Sutherland's retired pay. ⁴ We agree.

When the court divided retainer pay, it in effect treated something which was a part of retired pay. See 10 U.S.C.A. § 1408(a)(7), which provides that the term retired pay includes retainer pay. ⁵ Since the trial court originally divided Sutherland's retainer pay, the original decree did treat an amount of Sutherland's retired pay and classified it as a divisible community asset. Accordingly, Section 1408(c)(1) does not preclude Cobern's partition action.

RES JUDICATA

We now turn to whether res judicata bars this suit. Res judicata is a legal doctrine literally meaning that the thing is decided. It means that a matter once judicially decided is finally decided. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). Res judicata may be invoked to bar further proceedings when the following prerequisites exist: (1) that the prior judgment was rendered by a court of competent jurisdiction; (2) that there was a final judgment on the merits; (3) that the parties, or those in privity with them, are identical in both suits; and (4) that the same cause of action is involved in both suits. Gorelick v. Harrison County, 720 S.W.2d 835, 836 (Tex.App.-Texarkana 1986, no writ). Sutherland's attorney maintains that res judicata bars this suit based on the original divorce decree. ⁶

The express award of retirement benefits in a divorce decree operates as a bar to any subsequent partition suit, seeking retirement benefits, under principles of res judicata. Koepke, 732 S.W.2d at 300. The original divorce decree divided Fleet Reserve pay, which is retainer pay. As we now know, retired pay includes retainer pay, and thus the divorce decree addressed retired pay, albeit by another name. Because the divorce decree does, in effect, divide retired pay, Cobern's action to partition Sutherland's retired pay might thus appear to be barred by res judicata. On the other hand, properly construed, this judgment seems to be more like a restatement of the first judgment than it is a "further proceeding" of the type which would be barred by res judicata. However, we need not decide whether res judicata might bar this proceeding because we conclude that Sutherland is estopped to assert res judicata as a bar in this instance.

Furthermore, in response to Cobern's 1983 motion for contempt, Sutherland pleaded that, if Cobern was entitled to any portion of his retirement benefits, a contempt action was inappropriate and that "the correct remedy ... would lie through a Suit for Partition and not a Motion for Contempt." It would be inequitable to allow Sutherland to avoid contempt by arguing that Cobern's remedy was to file a partition suit and then allow Sutherland to avoid Cobern's attempt at partition by arguing that it was barred by res judicata and, indeed, that the correct remedy would have been contempt. A party's actions and arguments during the course of litigation can cause him to be estopped from asserting res judicata. Cf. Sewell Paint & Glass Co. v. Booth Lumber & Loan Co., 50 S.W.2d 793, 794 (Tex.Comm'n App.1932, judgm't adopted) (party cannot assert in first suit that claim should not be litigated there, and then, in second suit, argue that claim should have been brought in first suit; litigants will not be allowed to profit from inconsistent positions); Bethel v. Norman Furniture Co., 756 S.W.2d 6, 8 (Tex.App.-Houston [1st Dist.] 1988, no writ) (party which opposed consolidation of actions is estopped from asserting res judicata or collateral estoppel in second action). Having previously pleaded that Cobern's remedy was to bring a partition action, Sutherland cannot successfully now claim that her action is barred by res judicata.

OTHER ISSUES

Sutherland argues that Cobern is barred by the doctrines of waiver and estoppel from asserting claims to a percentage of his military retirement benefits. Sutherland's waiver and estoppel arguments are grounded in the trial court's exercise of its fact finding power. No findings of fact were filed in this case. ⁷ However, we review the findings which were impliedly made in support of the judgment as we would review any other findings. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). Accordingly, we affirm the judgment if we can find any factual basis in the evidence to do so. See, e.g., Holliman v. State, 762 S.W.2d 656, 657 (Tex.App.-Texarkana 1988, no writ).

The implied factual findings include that Cobern did not waive her rights and is not estopped. No attack is made upon the sufficiency of the evidence to support the implied findings in support of the judgment. Had it been, we would find the evidence amply sufficient to support the findings.

Sutherland also contends that the trial court abused its discretion in awarding Cobern a percentage of the cost of living increases which he has received in his retirement pay subsequent to their divorce. Generally, the value of community assets, such as retirement benefits, are to be evaluated at the time of divorce, and subsequent increases in value are separate property. Berry v. Berry, 647 S.W.2d 945, 947 (Tex.19...