Voronin v. Voronin

• Decision Date: 16 November 1983
• Docket Number: No. 13987,13987
• Citation: 662 S.W.2d 102
• Parties: Juanita Lou VORONIN, Appellant, v. Bernard B. VORONIN, Appellee.
• Court: Texas Court of Appeals

Page 102

662 S.W.2d 102

Juanita Lou VORONIN, Appellant, v. Bernard B. VORONIN, Appellee.

No. 13987.

Court of Appeals of Texas,

Austin.

Nov. 16, 1983.

Rehearing Denied Dec. 14, 1983.

Philip C. Friday, Jr., Austin, for appellant.

William R. Travis, McDaniel & Travis, Austin, for appellee.

Before PHILLIPS, C.J., and EARL W. SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

This is a divorce case in which the trial court, sitting without a jury, entered judgment dissolving the marriage, appointing the wife managing conservator and the husband possessory conservator of the minor child, ordering child support to be paid by the husband, and dividing the estate of the parties. The husband was the petitioner in the trial court, the wife respondent.

The wife, appellant, contends that the trial court erred: in awarding appellee all his non-disability military retirement benefits on the theory that it (the court) was obliged to do so under McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981); in abusing its discretion by dividing the estate unequally in favor of the husband; and in its unequal division of the property because such a division was not supported by any evidence, or in the alternative, was supported by insufficient evidence. For the reasons herein stated, we reverse the judgment of the trial court and remand the cause.

The parties married February 19, 1955, and separated in January 1982. Appellee filed suit February 12, 1982, and the case was heard September 3, 1982, at which time appellee was forty-eight years of age. The decree of divorce, signed by the court on January 31, 1983, was subsequently re-dated February 1, 1983.

Appellee enlisted in the United States Marine Corps on December 13, 1951. He retired in June 1975, after having served 282 months; thus the parties were married for a total of 244 months during the period of appellee's creditable military service.

In the division of property, the parties agree that the two major assets requiring division by the court were the homestead (valued by the appellant at $38,000 net, and by the appellee at approximately $44,000) and the non-disability military retirement benefits of appellee. Appellee was also receiving military disability payments which are conceded to be his separate property. Appellant sought division of the community property interest and appellee's non-disability military retirement benefits. The record shows that the trial court awarded such benefits to appellee on the premise that under McCarty v. McCarty, supra, he was bound to award all the retirement benefits to appellee. This Court must determine whether, at the time of the signing of the divorce decree, or during the time when the trial court had absolute control of the divorce decree, the military pension benefits earned during marriage were property subject to division upon divorce, and if so, whether the trial court abused its discretion in awarding all of the benefits to appellee.

The law in Texas was well established that military benefits earned during marriage were property subject to division. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970). However, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that the supremacy clause of the United States Constitution, Article VI, precluded a state court from dividing military non-disability retirement pay on divorce. In Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981), the Supreme Court of Texas held that the supremacy clause effectively foreclosed the division of such military retirement benefits.

In Trahan, the wife brought suit in 1977 for partition of vested Air Force retirement benefits which had not been divided by property settlements in either of two divorce cases. The trial court concluded that 77.92% of the retirement pay was community property not considered at either divorce proceeding, and awarded the wife 38.96% of benefits accrued to the date of judgment and those which would be paid in the future. On appeal, the Court of Civil Appeals upheld the division of the benefits, but reformed the trial court's judgment relating to the method of the ex-wife's collection of the money judgment for past accrued benefits due her. See Trahan v. Trahan, 609 S.W.2d 820 (Tex.Civ.App.1980). The judgment of the trial court and that of the Court of Civil Appeals both preceded McCarty. The Supreme Court of Texas, in its opinion handed down November 18, 1981, held that McCarty controlled its decision on appeal, even though the McCarty decision was dated June 26, 1981, stating that "it is clear that McCarty controls the disposition of this case." Trahan v. Trahan, supra, at 487. That is, the Supreme Court gave effect to McCarty, even though the trial court and the Court of Civil Appeals had handed down their respective judgments before the decision in McCarty. The Supreme Court, in so holding, said "no final adjudication regarding Jack Trahan's military retirement benefits, therefore, has or will be made until this Court renders its opinion." Trahan v. Trahan, supra, at 488.

To determine whether McCarty controls this case, we look to the record and the latest decision of the Texas Supreme Court. This divorce case was filed February 12, 1982. The case was heard by the trial court on September 3, 1982. The decree of divorce was originally dated January 31, 1983, six and one-half years after appellee retired and began drawing his non-disability retirement benefits. (Appellant concedes that the January 31, 1983 date of the judgment should be considered as a proper date for this appeal.) The trial judge made it absolutely clear that he was awarding the retirement benefits to appellee because he felt that he was bound to do so by McCarty. The court said:

Now, I'm just not going to go against McCarty, gentlemen, and I am going to award the military and the retirement and disability benefits to Mr. Voronin.

The record shows that the judge and the parties were aware, at time of trial and the court's judgment, of legislation passed by Congress and awaiting the signature of the President, which would overturn the effect of the McCarty decision. Again, the court said:

You can call the President up, Mr. Savage [Attorney for appellant], and tell him to do something, maybe before I sign the decree or something like that, but I'm not going to hold this thing in abeyance....

When asked to find in the decree that he "was compelled by the McCarty decision and therefore did not consider the military retirement as far as dividing the property is concerned," the court refused to do so, and again said "I've told you that I'm not going against McCarty ... and as far as I am concerned--the court is concerned, it's the law."

Appellant timely filed a motion for new trial on February 23, 1983, in which she urged that before the entry of the court's decree the President of the United States signed into law the Uniform Services Former Spouse's Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (1982) (hereinafter called "The Act"), reversing the effect of McCarty, retroactive to June 25, 1981. The motion for new trial was overruled by operation of the law.

The trial court had plenary power under Tex.R.Civ.P.Ann. 329b(c) (Supp.1983) to modify, correct or set aside its judgment for a period of seventy-five days after the judgment was signed. The trial court had absolute control over its judgment for thirty days after the judgment was signed, whether or not a motion for new trial was filed. Tex.R.Civ.P.Ann. 329b(d) (Supp.1983).

We hold that Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982) is dispositive of this case. In Cameron, Paul Cameron joined the U.S. Air Force on June 22, 1954. He married Sue Akers September 29, 1957, and retired from the Air Force in August, 1977. The divorce suit was filed in Texas in 1978. On March 29, 1979, the trial court awarded the wife thirty-five percent of the gross military retirement funds received by the husband. Noting that under McCarty, the Supreme Court had held that the supremacy clause of the United States Constitution foreclosed the division of military non-disability retirement pay on divorce, the Supreme Court of Texas then held:

On September 9, 1982, the President signed into law the Uniform Services Former Spouse's Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (1982). The purpose of the act was to reverse the effect of the McCarty decision. Under the Act a divorce court may divide military retirement pay between the spouses in accordance with the law of the jurisdiction of that court. The Act limits such division of retirement pay to periods after June 25, 1981. Id. § 1002(a) [to be codified as 10 U.S.C.A. § 1408(c)(1) ].

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The divorce decree, dated March 29, 1979, awards Sue Cameron "thirty-five percent (35%) of the gross present and future military retirement presently being received." Sue Cameron is entitled to receive that thirty-five percent, but not for the period from March 25, 1979 to June 25, 1981. Therefore, we affirm that part of the trial court judgment awarding Sue Cameron thirty-five percent of the military retirement pay, but only for the period beginning after June 25, 1981. (emphasis added).

Cameron v. Cameron, supra, at 212-213. See Segrest v. Segrest, 649 S.W.2d 610, 613, fn. 2 (Tex.1983) where the Supreme Court said:

Title 10, Section 1408 of the Department of Defense Authorization Act of 1983 makes McCarty nugatory with respect to its application to judgments rendered after the date of the decision. Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982); 10 U.S.C.A. § 1408(c)(1); 128 Cong.Rec. H5999-6000 (daily ed. August 16, 1982 conference explanation). (emphasis supplied)

The Texas Supreme Court correctly recognized that the purpose and intent of the quoted language of subsection (c)(1) of the Act--indeed...