U.S. v. Stelter, B-6997

Citation567 S.W.2d 797
Decision Date21 June 1978
Docket NumberNo. B-6997,B-6997
PartiesUNITED STATES of America, Petitioner, v. Dorothy M. STELTER, Respondent.
CourtSupreme Court of Texas

Jamie C. Boyd, U. S. Atty., Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, for petitioner.

Charles A. Deason, Jr., El Paso, for respondent.

GREENHILL, Chief Justice.

The United States, as a sovereign, cannot be sued without its consent. Unless it so consents, it is immune from suit.

The problem in this case is whether the United States has given its consent to be sued in the garnishment proceeding before us. We hold that it has not. While the result here is regrettable, it is our duty to hold that the plea of sovereign immunity made by the U. S. attorney must be sustained. Accordingly we must reverse the judgment of the court of civil appeals. 553 S.W.2d 227.

The background of the case is this: Dorothy and Robert W. Stelter, who had no children, were divorced in El Paso in 1973. Dorothy was awarded their home in El Paso which had been community property, an automobile, all of her civil service retirement benefits, her life insurance policies, her personal effects and a German Shepard dog. Robert was awarded a pickup truck and his personal effects. The balances due on certain debts were allocated between them.

Robert had been retired from the U. S. military after twenty years of service. He was married to Dorothy during fourteen of those years. In the decree of divorce, he was ordered to pay into the registry of the court 7/20ths of his retirement pay within five days after its receipt; and such sums were then to be paid to Dorothy. The judgment of divorce was not appealed by either party and is final.

Robert, however, has disobeyed the orders of the Texas divorce court to pay the portion of the retirement pay into the registry of the court; and he has left the State. Dorothy has, therefore, not been paid the amounts due her; and Robert is beyond the jurisdiction of our courts to enforce the divorce decree.

Dorothy Stelter has brought this garnishment suit against the United States. Her prayer is that the United States be required to pay her directly her portion of the military retirement benefits. This brings us to the Act of Congress which she contends constitutes a consent of the government to be sued for this purpose.

The Act is found in 42 United States Code, Section 659. That law does give consent to suits for "legal obligations to provide child support or make alimony payments."

The Act defines the word "alimony." In so doing, it says in Section 662(c).

Such term (alimony) does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.

" Alimony" after divorce, as such, is not permitted in Texas. We shall assume, however, that the payments in question are not within the Texas definition of "alimony" since at least a part of the military retirement benefits were earned by the husband and wife during marriage. Francis v. Francis, 412 S.W.2d 29 (Tex.1967); Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

We shall further assume without deciding, under the logic of the cases set out just above, that the wife's attempt to enforce her divorce decree is not a suit to make a garnishment of "current wages for personal services." 1

We will also assume that Congress could have provided for consent for the United States to be sued for these military retirement benefits even if it called them "alimony." As set out above, however, Congress excluded from the word "alimony" payments or transfers of property "in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses."

Our statute provides that upon divorce, "the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party . . . ." Family Code, Section 3.63.

In Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), we held that military pension benefits earned during marriage were community property and were subject to division upon divorce even though some benefits would be payable and receivable in the future.

When the military retirement benefits were not taken into account in the divorce court's "division of the estates" of the parties, i. e., were not brought to the court's attention when the court divided the properties of the spouses upon divorce, it was held a particular fraction of military retirement benefits should go to the spouses as earned during the community of the marriage. Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

When the community military retirement benefits are...

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17 cases
  • Eichelberger v. Eichelberger
    • United States
    • Texas Supreme Court
    • May 23, 1979
    ...distribution of property, or other division of property between spouses or former spouses." 42 U.S.C.A. § 662(c). In United States v. Stelter, 567 S.W.2d 797 (Tex.1978), this court held that a former wife could not garnish her ex-husband's military retirement payments of which she had been ......
  • Hisquierdo v. Hisquierdo
    • United States
    • U.S. Supreme Court
    • January 22, 1979
    ...of garnishment included community property. Compare United States v. Stelter, 553 S.W.2d 227, 229 (Tex.Civ.App.1977), rev'd, 567 S.W.2d 797 (Tex.1978); Williams v. Williams, 338 So.2d 869 (Fla.App.1976), with Marin v. Hatfield, 546 F.2d 1230 (C.A.5 1977); Kelley v. Kelley, 425 F.Supp. 181, ......
  • Ex parte Burson
    • United States
    • Texas Supreme Court
    • April 22, 1981
    ...has the power to enforce a decree ordering a spouse to make payments out of the Air Force disability retirement pay. United States v. Stelter, 567 S.W.2d 797, 799 (Tex.1978). If there is no appeal from the divorce court's division of the property, that decree may not be collaterally attacke......
  • Hagen v. Hagen
    • United States
    • Texas Supreme Court
    • May 1, 2009
    ...Wingard v. Wingard, 11 Pa. D. & C.4th 343, 345 (1991). 31. See 38 U.S.C. § 5301(a)(1). 32. See TEX. FAM.CODE § 7.001; U.S. v. Stelter, 567 S.W.2d 797, 798 (Tex. 1978); Limbaugh v. Limbaugh, 71 S.W.3d 1, 17 n. 14 (Tex.App.-Waco 2002, no pet.); Rothwell v. Rothwell, 775 S.W.2d 888, 892 (Tex.A......
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