Thomas v. Piorkowski

• Decision Date: 11 June 2009
• Docket Number: No. 13-07-00372-CV.,13-07-00372-CV.
• Citation: 286 S.W.3d 662
• Parties: William A. THOMAS, Appellant, v. Alison PIORKOWSKI, Appellee.
• Court: Texas Court of Appeals

286 S.W.3d 662

William A. THOMAS, Appellant, v. Alison PIORKOWSKI, Appellee.

No. 13-07-00372-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 11, 2009.

Reynaldo Martinez, Jr., Attorney At Law, Corpus Christi, TX, for Appellant.

Gregory T. Perkes, The Perkes Law Firm, P.C., and James Lucas, Attorney At Law, Corpus Christi, for Appellee.

Before Justices YAÑEZ, RODRIGUEZ, and BENAVIDES.

OPINION

Opinion by Justice RODRIGUEZ.

This case involves clarification of a final decree of divorce. By three issues, appellant William A. Thomas challenges the trial court's clarification order alleging that the trial court erred (1) by clarifying the decree and awarding his disability benefits as disposable retirement pay, (2) in not considering retroactive application of his permanent disability status to set aside the clarification order, and (3) in entering a clarifying order that made a substantive change in the decree. We reverse and remand.

I. Background

Thomas and appellee Alison Piorkowski¹ were divorced on December 3, 2004. The final decree of divorce provided for a division of the marital estate. The decree awarded the following to Piorkowski:

W-5. All right, title, and interest in and to the sum equal to fifty percent (50%) of the disposable retired pay of WILLIAM A. THOMAS which accumulated, accrued or to which WILLIAM A. THOMAS is otherwise entitled between May 25, 1996 and the day this decree is signed which is a result of WILLIAM A. THOMAS's service in the United States Armed Forces, and that share attributable to the interest awarded to ALISON THOMAS of disposable retired pay, if, as and when received by WILLIAM A. THOMAS.

On May 5, 2006, Thomas was placed on the Temporary Disability Retirement List (TDRL) by the United States Armed Forces (Navy) with a thirty percent disability rating. See 10 U.S.C.A. § 1202 (1998) On June 1, 2006, Thomas began receiving benefits computed under section 1401. See id. § 1401 (Supp.2009).

On September 27, 2006, Piorkowski filed a motion to clarify the decree of divorce and to enforce the division of property. By her motion, Piorkowski sought to recover, as disposable retired pay, her share of Thomas's TDRL benefits. Piorkowski alleged that Thomas was receiving retirement pay and that he refused to deliver to Piorkowski her proportionate share. Piorkowski asked that the trial court enter a clarifying order restating the terms of the decree in a manner specific enough to allow enforcement by contempt. In response, Thomas objected, alleging that the decree of divorce was specific, unambiguous, and enforceable. He also contended that the TDRL benefits were based on his disability and thus, were a form of disability pay and not retirement pay subject to division by the trial court.

In March 2007, the trial court held an evidentiary hearing on Piorkowski's motion. Over Thomas's objections, the trial court granted the motion and entered a clarification order which set out, in relevant part, the following:

Clarification

The [c]ourt finds that certain terms of the prior order are not specific enough to be enforced by contempt and should be clarified as ordered below....

* * * * *

IT IS ORDERED that the prior order is clarified as follows:

1. That portion of the Final Decree of Divorce awarding property to wife and as contained in paragraph W-5 on page 40 is amended as follows:

Division of Military Benefits of William A. Thomas

The [c]ourt finds, in accordance with the Uniformed Services Former Spouses' Protection Act [USFSPA], 10 U.S.C. section 1408, as follows:

1. Alison T. Piorkowski is awarded as her sole and separate property, the sum of $510.86 per month of the disposable retired pay of William A. Thomas as long as William A. Thomas is placed on the Temporary Disability Retirement List and receiving monthly retirement pay.

2. William A. Thomas is Ordered to deliver to Alison T. Piorkowski the sum of $510.86 per month until such time as William A. Thomas receives a final disability rating from the U.S. Navy.

* * * * *

The award of disposable retired pay made to Alison T. Piorkowski in this decree is made in compliance with the [USFSPA].

IT IS THEREFORE ORDERED AND DECREED that Alison T. Piorkowski have judgment against and recover from William A. Thomas the sum of $510.86 per month of the disposable retired pay of William A. Thomas.

* * * * *

Findings

* * * * *

5. Since the date of divorce, William A. Thomas has been placed upon the Temporary Disability Retirement List by the U.S. Navy and is currently receiving retirement pay in the amount of $1,246.00 per month [s]ince July 1, 2006.

* * * * *

Relief Granted

IT IS ADJUDGED that Respondent, William A. Thomas, is in contempt for each separate violation enumerated above.

The [c]ourt finds that Respondent has failed to pay to Petitioner money that was awarded in the prior decree and that the amount of unpaid payments to which Petitioner is now entitled is $4,597.74.

Thomas filed a motion for new trial requesting that the clarifying order be set aside because it (1) awarded Piorkowski property she was not entitled to receive, (2) created an obligation that was not part of the relief requested and effectively reallocated property not consistent with the final decree of divorce, and (3) did not account for his level of disability or current disability rating. At the evidentiary hearing on his motion, having recently been declared eighty percent disabled by the Veterans Administration (VA), Thomas also asked that the order awarding retirement benefits be set aside by retroactive application of his disability status to the inception of his TDRL. Over objections, the trial court denied Thomas's motion for a new trial. This appeal ensued.

II. Standard of Review

We review the trial court's ruling on a post-divorce motion for clarification of a divorce decree or for enforcement under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam); Baker v. Donovan, 199 S.W.3d 577, 579 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (op. on reh'g); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex.App.-Texarkana 2003, pet. denied). The test for abuse of discretion is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).

III. Discussion

By his first issue, Thomas contends that the trial court abused its discretion by entering a clarifying order awarding Piorkowski $510.86 as disposable retired pay. Thomas asserts that the money awarded to Piorkowski was not disposable retired pay but was disability pay and was awarded in direct violation of section 1408(a)(4)(C) of the USFSPA. See 10 U.S.C.A. § 1408(a)(4)(C) (1998) (providing for payment of retired pay in compliance with court orders). We agree.

The decree of divorce awarded Piorkowski "fifty percent (50%) of the disposable retired pay ... if, as and when received by [Thomas]." In clarifying the decree, the trial court found that Thomas had been placed on the TDRL and had been receiving retirement pay in the amount of $1,246.00 per month since July 1, 2006. The court awarded Piorkowski $510.86 per month of Thomas's disposable retired pay as long as Thomas was on the TDRL and was receiving monthly retirement pay.

Under the USFSPA, military retirement benefits are generally apportionable by a divorce. See id. § 1408(c)(1) (1998); Mansell v. Mansell, 490 U.S. 581, 589, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989); Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 (Tex.App.-Waco 2002, no pet.); Wallace v. Fuller, 832 S.W.2d 714, 719 (Tex.App.-Austin 1992, no writ); Gallegos v. Gallegos, 788 S.W.2d 158, 162 (Tex.App.-San Antonio 1990, no writ). However, apportionable benefits are limited to "disposable retired pay," which is defined to exclude, among other things, disability pay including retirement benefits that may be waived in order to collect VA disability benefits and those computed using the percentage of disability on the date a person in the military is placed on TDRL. Limbaugh, 71 S.W.3d at 16-17, 17 n. 13 (citing 10 U.S.C.A. § 1408(a)(4)(A-D) (1998)); see Mansell, 490 U.S. at 589, 109 S.Ct. 2023 (determining that state courts have the authority to treat disposable retired pay, not total retired pay, as community property). Specifically, "disposable retired pay" does not include,

amounts which ... in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list);....

10 U.S.C.A. § 1408(a)(4)(C) (emphasis added). Thomas was entitled to retired pay only after being placed on the TDRL. His gross pay, in the amount of $1246.00, was computed using the percentage of disability (thirty percent) on the date he was placed on the TDRL. See id. § 1401. The statute expressly excludes from "disposable retired pay" temporary disability retirement benefits-the $1246.00 in this case. See id. § 1408(a)(4)(C). We conclude, therefore, that Thomas's gross pay, the money at issue in this case, was not disposable retired pay and therefore, was not divisible as marital property.

Moreover, placement on TDRL is governed by section 1202, which provides as follows:

Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 [permanent disability] of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall ... place the member's name on the temporary disability retired list, with retired pay computed under section 1401 of this title.

Id. § 1202. The statute requires a member...