Taggart v. Taggart
| Decision Date | 25 May 1977 |
| Docket Number | No. B-6363,B-6363 |
| Parties | Ann TAGGART, Petitioner, v. George TAGGART, Respondent. |
| Court | Texas Supreme Court |
Wade & Cromwell, Charles W. Cromwell, Corpus Christi, for petitioner.
Auforth, Keas, McCrury, Karchmer & O'Reilly, Fred C. Auforth, Corpus Christi, for respondent.
Ann Taggart instituted this suit against George Taggart for the partition of military retirement benefits that were not divided when the parties were divorced. The trial court, upon a finding that the parties were married during the time that eight-ninths of the retirement benefits accumulated, rendered judgment that plaintiff was entitled to four-ninths of all retirement pay received by her former husband. The court ordered defendant George Taggart to receive plaintiff's share in trust for the plaintiff and make monthly disbursement to her of her share. The court of civil appeals reversed that judgment and rendered judgment that plaintiff take nothing. 540 S.W.2d 823. We reverse the judgment of the court of civil appeals and reform that of the trial court.
On June 5, 1943, George Taggart entered the United States Navy. Ann and George Taggart were married on October 7, 1947, and they were divorced on January 5, 1968. The divorce proceedings made no mention of retirement benefits. This is, therefore, another one of the succession of cases about retirement benefits which commenced with Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ), and includes Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.1973, no writ); Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism'd); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ); and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism'd). Once again we admonish counsel and trial judges of the state to make determinations whether such benefits are among the assets of the marriage. See Busby v. Busby, supra.
On July 1, 1964, three and one-half years before the divorce, George completed the equivalent of twenty years of active duty. George did not retire but elected to be placed in the Fleet Reserve. 10 U.S.C.A., § 6330. As an enlisted man in the regular Navy, he had to complete thirty years of active duty before he was eligible for retirement based on years of service. 10 U.S.C.A., §§ 6326, 6331 (1958). Mr. Taggart was retired from the Navy on April 1, 1974. Ann Taggart instituted this suit for the recovery of her share of the retirement benefits since April 1, 1974. She did not seek any part of the retainer pay that George Taggart earned for his service in the Fleet Reserve, nor was there any plea of limitations urged in this case.
The court of civil appeals decided this case in August, 1976, at which time the supreme court had granted a writ of error but had not written its opinion in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). We decided in Cearley that retirement benefits are subject to division as vested contingent community property rights even though the present right has not fully matured. We refused to follow the California case of French v. French, 17 Cal.2d 775, 112 P.2d 235 (1941), which treated an unmatured pension right as a nonvested expectancy instead of a vested right. In Cearley, we held that military retirement benefits were community property even though the benefits at the time of the divorce "had not matured and were not at the time subject to possession and enjoyment." There is no necessity to again analyze the relevant Texas decisions or the opinion of the California court in Brown v. Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), which rejected the rule of French v. French, supra, and recognized a present contingent right subject to divestment.
Since Cearley controls this case, we hold that Ann Taggart owned as her part of the community estate a share in the contingent right to military benefits even though that right had not matured at the time of the divorce. It appears, however, that the trial court did not make the correct computation of her fractional interest.
The trial court computed Ann Taggart's one-half interest in George Taggart's retirement benefits upon the basis of his twenty years of service as a member of the regular Navy. At the end of the twenty years, he was not entitled to receive any retirement benefits based upon his term of service, because he had to serve in the Fleet Reserve for an additional ten years. It was, therefore, his three hundred and sixty months of service that entitled him to the retirement benefits. According to the undisputed evidence, Ann and George Taggart's marriage coincided with his service in the Navy for a period of two hundred and forty-six months. The correct computation of Ann Taggart's vested interest is that she was entitled only to one-half of 246/360th's of the retirement pay.
George Taggart by a point in the court of civil appeals challenged the fraction found by the trial court, but upon prevailing in the court of civil appeals, presented no cross-point in the supreme court which called that matter to our attention. It is our opinion that this is an instance in which we should apply the rule of McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964). George Taggart, having obtained a totally favorable judgment in the court of civil appeals, did not carry forward by cross-point in his brief to the supreme court his contention that the amount of the judgment against him was incorrectly computed. A cross-point in this court would have more clearly called such a contention to the attention of the supreme court, but it is our opinion that George Taggart did not waive the point. This is in keeping with McKelvy which excused a respondent from carrying forward a cross-point to the supreme court which is aimed toward a judgment less favorable to him than the one he received in the court of civil appeals. See Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary's L.J. 303, 318-322 (1974).
The judgment of the court of civil...
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