Opinion issued December = 21,=20 2006
In The
For=20 The
BRENDA =
JOYCE=20
GAINOUS, Appellant THOMAS =
EARL GAINOUS,=20
Appellee
On =
Appeal from the=20
246th District Court Harris =
County,=20
Texas Trial Court Cause No.=20
1994-18001
Brenda=20
appeals from the judgment denying her motion for enforcement or,=20
alternatively, motion for clarification of the 1995 divorce decree =
between=20
herself and her former husband, Thomas. We determine (1) whether =
some of=20
Brenda's challenges were collateral attacks, which could be raised =
after=20
the trial court's plenary power had expired, on a post-divorce =
qualified=20
domestic relations order ("QDRO") and (2) whether the divorce =
decree=20
awarded Brenda half of Thomas's benefits under the Houston =
Firemen's=20
Relief and Retirement Fund ("the Fund").
Brenda and=20
Thomas were married on April 14, 1973. On June 19, 1978, Thomas =
began=20
working for the Houston Fire Department. He then began =
participating in=20
the Fund, which was a defined-benefit plan. The couple was =
divorced, by=20
consent decree, on October 9, 1995, before Thomas was eligible to =
retire=20
from the fire department. The decree provided, in pertinent part, =
that=20
each party was awarded "[o]ne-half (1/2) of the Houston Firemen's =
Relief=20
and Retirement Fund standing in the name of THOMAS E. GAINOUS." =
Neither=20
party appealed the divorce decree, and no post-judgment motion =
challenging=20
the decree appears in the record. On January=20
25, 1996, the trial court entered a QDRO to effectuate the =
decree's=20
division of the Fund's benefits. The record does not reveal who =
sought the=20
QDRO, but it does show that Brenda sent the QDRO to the Fund. The =
QDRO=20
provided, in pertinent part, as follows: 4. 5. 6. 7. 8. . =
.=20
. . 11. . =
.=20
. g. This=20
Order shall not be interpreted to award [Brenda] any future =
benefit=20
increases that are provided or required by the=20
Legislature. h. In the=20
event that after the date of this Order, the amount of any benefit =
otherwise payable to [Thomas] is reduced by law, the portion of =
benefits=20
payable to [Brenda] shall be reduced by a proportionate=20
amount. (Emphasis=20
added.) Neither party appealed the QDRO, and no post-judgment =
motion=20
challenging the QDRO appears in the record. On June 19,=20
1998, upon 20 years of service with the fire department, Thomas =
became=20
eligible to retire. See Tex. Rev. Civ. Stat. Ann. art.=20
6243e.2(1), =A7 4(a) (Vernon Supp. 2006). Rather than retire, =
however,=20
Thomas elected to participate in the Fund's Deferred Retirement =
Option=20
Plan ("DROP") on November 1, 1998. See id. =A7 5 (Vernon =
Supp.=20
2006). Under the Fund's DROP, Thomas could, for up to 10 years, =
continue=20
as an active employee while having an amount equal to his =
service-pension=20
benefit, In=20
approximately August 2003, Thomas retired. Shortly before then, on =
June=20
25, 2003, Brenda filed a motion for enforcement or for =
clarification of=20
the divorce decree and later amended that motion. Among other =
things,=20
Brenda argued that (1) the QDRO "reduced and materially altered" =
the=20
division of the Fund benefits by excluding her from sharing in any =
portion=20
of the DROP payments; (2) "a conflict" thus existed "between the=20
provisions of the [divorce] decree and the QDRO," so that the =
divorce=20
decree's award to her of a portion of the Fund's retirement =
benefits "may=20
not be specific enough to be enforceable by contempt" and should =
be=20
"clarified"; and (3) she was also entitled to receive a portion of =
four=20
other Fund benefits, which were not technically Thomas's =
service-pension=20
distributions, but which Thomas would receive at retirement from =
the Fund=20
as part of his overall benefit. In all, Brenda sought an order =
clarifying=20
that she was to receive not only her portion of the =
service-pension=20
benefit that Thomas received (to which Thomas has never disputed =
that=20
Brenda is entitled), but also a portion of the following Fund =
benefits,=20
the dispute over which forms the basis of this appeal: the DROP=20
funds, including a two percent increase in benefits accrued for =
each year=20
of Thomas's DROP participation, but excluding bi-weekly =
contributions that=20
Thomas continued to make to the DROP account while working during =
DROP=20
participation; an annual=20
three percent cost-of-living adjustment ("COLA"), applied to her =
portion=20
of Thomas's service-pension benefits and DROP account=20
balance; a =
one-time,=20
lump-sum payment of $5,000 that Thomas would receive upon =
retirement; a =
$150=20
monthly supplemental payment, which Thomas would begin receiving =
upon=20
retirement; an annual=20
supplemental payment benefit, also called the "13th-benefit =
payment,"=20
which was intended to help pensioners of low income, and which =
Thomas=20
could begin receiving upon retirement. Thomas=20
responded below that (1) res judicata and estoppel barred Brenda's =
claim=20
to the DROP funds and the COLAs because the 1996 QDRO, which she =
had not=20
appealed, expressly precluded her receiving any of these benefits; =
(2)=20
Government Code chapter 804 precluded her receiving a portion of =
the DROP=20
funds; In January=20
2004, after having held an evidentiary hearing, the trial court =
denied=20
Brenda's motion to enforce or to clarify and rendered a =
take-nothing=20
judgment against her. At the time of the hearing, Brenda was =
receiving=20
approximately $500 per month from the Fund, while Thomas was =
receiving=20
approximately $2,000. Brenda filed a motion seeking a new trial,=20
reconsideration, or reformation. The trial court denied the =
motion. The=20
trial court did not enter fact findings or legal =
conclusions.
We review=20
the trial court's ruling on a post-divorce motion for enforcement =
or=20
clarification of a divorce decree under an abuse-of-discretion =
standard.=20
See In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. =
App.--Texarkana 2003, pet. denied). When a trial court makes no =
separate=20
findings of fact or conclusions of law, we must draw every =
reasonable=20
inference supported by the record in favor of the trial court's =
judgment.=20
See Wordford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). =
Additionally, "the judgment of the trial court must be affirmed if =
it can=20
be upheld on any legal theory that finds support in the evidence." =
Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977), =
overruled=20
on other grounds, Cherne Indus., Inc. v. Magallanes, =
763=20
S.W.2d 768 (Tex. 1989). Nonetheless, in cases in which the =
appellate=20
record includes the reporter's record, the trial court's implied =
fact=20
findings are not conclusive and may be challenged for legal and =
factual=20
sufficiency of the evidence supporting them. See Tucker v.=20
Tucker, 908 S.W.2d 530, 532 (Tex. App.--San Antonio 1995, =
writ=20
denied). We review implied legal conclusions de novo. =
See=20
State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).
Under=20
issues one, two, and three, Brenda challenges the trial court's =
denial of=20
her motion to enforce or to clarify the divorce decree to the =
extent that=20
that ruling denied her any portion of Thomas's DROP =
funds. The Fund's=20
summary plan description, like the statute on which the plan was =
based,=20
provided that DROP participation, which was available to =
firefighters with=20
20 or more years of participation, would allow them "to =
accumulate, for up=20
to ten (10) years, a separate sum of money toward retirement while =
still=20
working as an active employee" and described that sum as a "cash =
amount=20
for retirement to be paid in addition to your [the employee's] =
monthly=20
retirement benefit." When you=20
enroll [in the DROP], you 'lock in' your service and benefit =
levels as of=20
the date your participation in the DROP takes effect. =
. . .=20
While you work, the Fund credits the value of your monthly =
retirement=20
benefit (based on your service as of the date you entered the =
DROP) into a=20
notional DROP account. . . . As long as you participate, =
the=20
value of the retirement benefit calculated for you upon entry into =
the=20
DROP and your employee contribution amounts are credited to your =
account=20
each month, and your account earns interest. See id.=20
=A7 5(b), (c). The statute=20
and plan also provided that, upon the firefighter's actual =
retirement, the=20
DROP account balances could be distributed in a lump sum, and the =
plan=20
provided, alternatively, that the DROP sums could be left in the =
DROP=20
account to accrue interest, less an administrative fee. See =
id. =A7=20
5(a), (e) (Vernon Supp. 2006). Pursuant to both the statute and =
the plan,=20
the firefighter's monthly benefit at retirement would be increased =
two=20
percent for every year of DROP participation, to be applied to the =
original service-pension benefit upon actual retirement, but not =
to be=20
added to the DROP account. See id. =A7 5(a). In addition, =
the=20
statute provided that A =
member=20
who has made a DROP election is not classified as retired, =
eligible to be=20
paid, or eligible to accrue or to receive any benefit that is =
accrued or=20
received by a member who has terminated active service =
. . .=20
unless the member who has made the DROP election has terminated =
active=20
service. B.=20
The QDRO's Provisions Concerning the DROP The QDRO=20
expressly precluded any portion of the DROP funds' being paid to =
Brenda.=20
Like the QDRO, the Fund's policies and procedures provided that =
DROP=20
"[c]ontributions (both monthly benefit payments and member =
contributions)=20
to the member's DROP account [would] not be affected by a QDRO =
applicable=20
to the member." The QDRO,=20
which was entered after the trial court's plenary power over the =
divorce=20
decree had expired, clearly precluded Brenda's receiving any =
portion of=20
the DROP funds. A QDRO is a final, appealable order. See,=20
e.g., Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. =
2003)=20
(considering appeal of post-divorce QDRO). Brenda did not =
appeal the=20
QDRO. Res judicata applies to final divorce decrees and, under the =
same=20
logic, applies to final post-divorce orders. See Baxter v.=20
Ruddle, 794 S.W.2d 761, 762 (Tex. 1990) (divorce decree); =
see=20
also Tex. Fam. Code Ann. =A7=A7 9.103, 9.104 (Vernon 1998). =
Moreover,=20
Brenda had the QDRO approved by the Fund and relied on the QDRO =
for=20
approximately seven years before her challenge. Accordingly, =
estoppel=20
might also normally bar her challenge. Cf. Waite v. =
Waite, 150=20
S.W.3d 797, 803 (Tex. App.--Houston [14th Dist.] 2004, pet. =
denied)=20
(noting, on appeal of divorce decree, that party who accepts =
judgment's=20
benefits is estopped from challenging judgment by =
appeal). Brenda=20
recognizes these potential obstacles, but contends that she may=20
nonetheless challenge the QDRO because hers is a collateral =
attack, which=20
is not barred by res judicata or estoppel. Brenda reasons as =
follows: (1)=20
the divorce decree awarded her a contingent interest in Thomas's=20
service-pension benefits, which included the DROP funds as a =
matter of=20
law; (2) the QDRO conflicted with the divorce decree by =
impermissibly=20
restricting the division of Thomas's service-pension benefits by =
excluding=20
the DROP funds from that property division; (3) the Family Code =
prohibits=20
post-divorce orders that amend, modify, alter, or change the =
divorce=20
decree's property division; and (4) the QDRO is void for =
impermissibly=20
having done so. A =
collateral attack does not attempt to secure the rendition of a =
single,=20
correct judgment in place of a former one, but, instead, seeks to =
avoid=20
the effect of a judgment through a proceeding brought for some =
other=20
purpose. Armentor v. Kern, 178 S.W.3d 147, 149 (Tex.=20
App.--Houston [1st Dist.] 2005, no pet.). To prevail in a =
collateral=20
attack, a party to the original judgment must show that the =
complained-of=20
judgment is void, not simply voidable. Id. A judgment is =
void=20
only when the court rendering judgment "'had no jurisdiction of =
the=20
parties, no jurisdiction of the subject matter, no jurisdiction to =
enter=20
the judgment, or no capacity to act as a court.'" Saudi v.=20
Brieven, 176 S.W.3d 108, 113 (Tex. App.--Houston [1st Dist.] =
2004,=20
pet. denied) (quoting Cook v. Cameron, 733 S.W.2d 137, =
140 (Tex.=20
1987)). If the challenged order is only voidable, as opposed to =
void, the=20
collateral attack fails. Ramsey v. Ramsey, 19 S.W.3d 548, =
552=20
(Tex. App.--Austin 2000, no pet.) (expressly stating same in =
collateral=20
attack of divorce decree); see Armentor, 178 S.W.3d at=20
149. 3.=20
The Validity of the QDRO's DROP Provisions If Brenda=20
is correct that the QDRO is void to the extent that it barred her =
from=20
sharing in a portion of the DROP funds, then she may challenge =
those QDRO=20
provisions even at this late time and despite having relied on the =
QDRO=20
previously. Otherwise, her challenge fails because of res judicata =
and=20
estoppel. Therefore, we examine whether the QDRO's challenged =
provisions=20
are void. A =
court=20
that rendered a divorce decree generally retains continuing =
subject-matter=20
jurisdiction to clarify and to enforce the decree's property =
division.=20
Tex. Fam. Code Ann. =A7=A7 9.002, 9.008 (Vernon 1998). =
Specifically, the court=20
has continuing jurisdiction to "render further orders to enforce =
the=20
division of property made in the decree of divorce . . . =
to=20
assist in the implementation of or to clarify the prior order."=20
Id. =A7 9.006(a) (Vernon 1998). Likewise, "[o]n a finding =
. . . that the original form of the division of property =
is not=20
specific enough to be enforceable by contempt," the court has =
continuing=20
jurisdiction to "render a clarifying order setting forth specific =
terms to=20
enforce compliance with an original division of property." =
Id. =A7=20
9.008(b) (Vernon 1998). However,=20
there are limitations on the enforcement and clarification powers =
of the=20
court that rendered the divorce decree. For example, "[t]he court =
may=20
specify more precisely the manner of effecting the property =
division=20
previously made if the substantive division of property is not =
altered=20
or changed." Id. =A7 9.006(b) (Vernon 1998) =
(emphasis added).=20
More specifically, the Family Code provides: (a) A court=20
may not amend, modify, alter, or change the division of property =
made or=20
approved in the decree of divorce or annulment. An order to =
enforce the=20
division is limited to an order to assist in the implementation of =
or to=20
clarify the prior order and may not alter or change the =
substantive=20
division of property. (b) An=20
order under this section that amends, modifies, alters or changes =
the=20
actual, substantive division of property made or approved in a =
final=20
decree of divorce or annulment is beyond the power of the =
divorce=20
court and is unenforceable. Thus, the=20
court that rendered the divorce decree (or any other final order =
dividing=20
property) also retains continuing, exclusive jurisdiction to =
render an=20
enforceable QDRO (or similar order) "permitting payment of =
pension,=20
retirement plan, or other employee benefits divisible =
. . . to=20
an alternate payee or other lawful payee." Tex. Fam. Code Ann.=20
=A7 9.101(a) (Vernon 1998). A party may petition the court =
for a QDRO=20
in two circumstances: (1) the court has not previously issued a =
QDRO or=20
similar order permitting payment of benefits from a pension, =
retirement,=20
or other employee-benefits plan or (2) the plan administrator (or =
person=20
acting in equivalent capacity) has determined that a previously =
entered=20
QDRO does not satisfy the requirements for a QDRO. Id. =
=A7=A7 9.103,=20
9.104 (Vernon 1998); see McKnight v. Trogdon-McKnight, =
132 S.W.3d=20
126, 132 (Tex. App.--Houston [14th Dist.] 2004, no pet.) (refusing =
to=20
affirm entry of amended QDRO when original QDRO did not conflict =
with=20
terms of divorce decree). Furthermore, like a final divorce =
decree, a=20
final QDRO may be clarified under Family Code section 9.008. =
In re=20
Marriage of Jones, 154 S.W.3d 225, 228 (Tex. App.--Texarkana =
2005, no=20
pet.) ("Section 9.008 allows clarification of a QDRO that is =
technically=20
adequate but for some reason needs to be made =
clearer."). A =
QDRO is a=20
species of post-divorce enforcement or clarification order. =
See=20
Shanks, 110 S.W.3d at 449 (indicating same by holding, "[A] =
court=20
'may not amend, modify, alter, or change the division of property =
made or=20
approved in the decree of divorce.' . . . The district =
court was=20
therefore without authority to enter a QDRO altering the terms of =
the=20
decree by limiting [former wife] to [an interest less than that =
awarded=20
under the divorce decree].") (quoting Tex. Fam. Code Ann. =A7 =
9.007(a));=20
In re Marriage of Jones, 154 S.W.3d at 228 (indicating =
same by=20
concluding, "Although [Family Code sections 9.101, 9.103, and =
9.104] allow=20
a trial court to create a QDRO where none exists, or to correct =
language=20
in a QDRO that renders it defective, they do not permit a court to =
substantively change a property division. A court may not amend, =
modify,=20
alter, or change the division of property made or approved in the =
decree=20
of divorce."). Therefore, as with any post-divorce enforcement or=20
clarification order, a QDRO may not amend, modify, alter, or =
change the=20
division of property made or approved in the decree of divorce or=20
annulment. See Shanks, 110 S.W.3d at 449; In re =
Marriage of=20
Jones, 154 S.W.3d at 228; Pate v. Pate, 874 S.W.2d =
186, 189=20
(Tex. App.--Houston [14th Dist.] 1994, writ denied); see also=20
Tex. Fam. Code Ann. =A7 9.007(a). The=20
threshold issue is, thus, whether the trial court is without=20
subject-matter jurisdiction to enter a post-divorce order that =
violates=20
Family Code section 9.007 by amending, modifying, altering, or =
changing=20
the divorce decree's property division because, if the court lacks =
subject-matter jurisdiction to enter such an order, then that =
order is=20
void. See Saudi, 176 S.W.3d at 113. Conversely, if the =
trial=20
court has subject-matter jurisdiction to enter such an order, then =
that=20
order is erroneous and voidable, but not void. See id.;=20
Ramsey, 19 S.W.3d at 552. Section=20
9.007(b) provides that orders amending, modifying, altering, or =
changing=20
the divorce decree's property division are "beyond the =
power of=20
the divorce court," and the section itself is entitled "Limitation =
on=20
Power of Court to Enforce." Tex. Fam. Code Ann. =A7 =
9.007(b)=20
(emphasis added). Similarly, when describing section 9.007's =
limitation on=20
post-divorce enforcement and clarification, case law employs terms =
like=20
"power," "jurisdiction," and "authority." b.=20
The Divorce Decree's Division of Thomas's Retirement Benefits in =
the Fund,=20
Including DROP Funds For the=20
above reasons, we must next determine whether the QDRO's DROP =
provisions=20
violated Family Code section 9.007 by conflicting with the divorce =
decree's division of Thomas's retirement-related benefits in the =
Fund.=20
That is, we must determine whether the divorce decree's division =
of these=20
benefits included DROP funds, so that the QDRO impermissibly =
precluded=20
Brenda from receiving them at any time. If these provisions of the =
QDRO=20
and the divorce decree conflict, then the QDRO's DROP provisions =
are void=20
and unenforceable; Brenda may maintain a collateral attack to =
challenge=20
them; Brenda is entitled to the portion of these monies awarded =
her in the=20
divorce decree; and the trial court could enter a clarifying order =
so=20
providing. In contrast, if these provisions of the QDRO and =
divorce decree=20
do not conflict, then the QDRO's DROP provisions are valid; =
Brenda's=20
collateral attack against them will fail; Brenda is not entitled =
to any=20
portion of the DROP funds; and the trial court did not abuse its=20
discretion in denying her motion to enforce or to clarify for that =
reason. "When=20
interpreting a divorce decree, courts apply the general rules =
regarding=20
construction of judgments." Shanks, 110 S.W.3d at 447. =
"Judgments=20
should be construed as a whole to harmonize and [to] give effect =
to the=20
entire decree." Id. "'[I]f the decree, when read as a =
whole, is=20
unambiguous as to the property's disposition, the court must =
effectuate=20
the order in light of the literal language used.'" Id. =
(quoting=20
Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). "If =
the=20
decree is ambiguous, the court should review the record along with =
the=20
decree to aid in interpreting the judgment." Id. =
"[W]hether a=20
divorce decree is ambiguous is a question of law." =
Id. The divorce=20
decree awarded Brenda "[o]ne-half (1/2) of the Houston Firemen's =
Relief=20
and Retirement Fund standing in the name of THOMAS E. GAINOUS." =
Nothing in=20
the plain language of the divorce decree excluded benefits such as =
DROP=20
funds from the division of Thomas's retirement-related benefits in =
the=20
Fund. Moreover, the decree provides that Brenda receive half of =
the=20
"Houston Firemen's Relief and Retirement Fund standing in =
the=20
name of THOMAS E. GAINOUS," not half of just the =
service-pension=20
benefits standing in the name of Thomas E. Gainous. (Emphasis =
added.)=20
This language is broad enough to give Brenda an interest in =
Thomas's Fund=20
benefits like the DROP funds. In fact,=20
this language is broad enough to award Brenda half of all =
of=20
Thomas's benefits in the Fund, not just those that could be =
considered=20
community property. The Texas Supreme Court has generally adopted =
the=20
following formula for determining a non-employee spouse's=20
community-property award of the employee spouse's defined-benefit =
plan=20
when the latter began plan participation during marriage, but =
retired=20
after divorce: 50% x [(number of months married and in plan) =F7 =
(number of=20
months in plan at time of retirement)] x (monthly benefit that =
employee=20
would have received at divorce date, whether then eligible to =
retire or=20
not). See Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983) =
(modifying apportionment formula in Taggart v. Taggart, =
552=20
S.W.2d 422 (Tex. 1977)). This formula excludes =
post-divorce=20
increases in the employee spouse's retirement benefits--such as =
raises,=20
promotions, services rendered, and contributions--that are the =
employee=20
spouse's separate property because they are attributable to his =
continued=20
employment after divorce. See Phillips v. Parrish, 814 =
S.W.2d=20
501, 505 (Tex. App.--Houston [1st Dist.] 1991, writ denied). In =
awarding=20
Brenda "[o]ne-half (1/2) of the Houston Firemen's Relief and =
Retirement=20
Fund standing in the name of THOMAS E. GAINOUS," the divorce =
decree did=20
not adopt a Berry formula. Rather, the divorce =
decree=20
awarded Brenda half of all of Thomas's retirement-related =
benefits from the Fund, without the type of qualification that=20
Berry requires. That is, the divorce decree's award to =
Brenda of=20
Thomas's Fund benefits necessarily--albeit improperly--included =
some of=20
Thomas's separate-property benefits in the Fund, i.e., =
half of=20
his separate-property, post-divorce benefits attributable to his =
continued=20
employment. We disagree=20
with Thomas that the phrase "standing in the name of THOMAS E. =
GAINOUS"=20
can be construed to mean "on the day of divorce" and thus may be =
read to=20
preclude the DROP funds from Brenda's award simply because Thomas =
was not=20
then eligible to elect to receive them, i.e., he did not =
then=20
have 20 years of service. Even if contingent benefits' =
unvested=20
status during marriage could somehow be equated with their=20
non-existence during marriage, We further=20
disagree with Thomas that the absence in the divorce decree of =
language=20
such as "if, as, and when received by Thomas" indicated that the =
decree=20
was intended to divide only those Fund benefits existing on the =
divorce=20
date. The Shanks court recently concluded that phrases =
like that=20
quoted immediately above are not terms of art evidencing an intent =
to=20
value a pension plan at the time of receipt, rather than at the =
time of=20
divorce; instead, they merely reflect the contingent nature of the =
interest awarded, not that interest's value. See Shanks, =
110=20
S.W.3d at 449 n.7. Accordingly, the lack of this phrase does not =
indicate=20
an intent either to value Brenda's award as of the divorce date or =
to=20
award her only a portion of the benefits extant on that date, but =
merely=20
acknowledges that the divided benefit might never come to =
fruition.=20
See id. We hold=20
that the divorce decree unambiguously included the DROP funds in =
its award=20
to Brenda of "[o]ne-half (1/2) of the Houston Firemen's Relief and =
Retirement Fund standing in the name of THOMAS E. GAINOUS." =
Because the=20
QDRO precluded Brenda from receiving any portion of Thomas's DROP =
funds at=20
any time, the QDRO impermissibly altered the decree's property =
division=20
and was void to the extent that it did so. See Tex. Fam. =
Code=20
Ann. =A7 9.007(b). Because the QDRO's provision excluding the DROP =
funds=20
from Brenda's award was void, Brenda could properly challenge it =
by=20
collateral attack, and res judicata and estoppel did not bar her=20
challenge. D.=20
Disposition For these=20
reasons, we hold that the trial court abused its discretion by=20
misconstruing the divorce decree as not having divided Thomas's =
DROP funds=20
and, therefore, that the court also abused its discretion by =
denying=20
Brenda's motion to enforce or to clarify to the extent that she =
sought a=20
portion of Thomas's DROP funds. We sustain issues one through =
three to the=20
extent that they challenge the trial court's refusal to enter an =
order=20
enforcing or clarifying the divorce decree's award to her of a =
portion of=20
Thomas's DROP funds.
Also under=20
issues one, two, and three, Brenda challenges the trial court's =
denial of=20
her motion to enforce or to clarify to the extent that that ruling =
denied=20
COLA increases to her portion of Thomas's service-pension benefits =
and of=20
his DROP account balance. Article=20
6243e.2(1) does not expressly mention COLAs, but Brenda's expert =
explained=20
that COLAs were "non-statutory" benefits that the Fund had =
discretion to=20
adopt under authority generally allowing increases to the Fund's =
benefits=20
under certain circumstances. See Tex. Rev. Civ. Stat. =
Ann. art.=20
6243e.2(1), =A7 10 (Vernon Supp. 2006) (entitled "Nonstatutory =
benefit=20
increases"). The Fund's summary plan description contained the =
following=20
provisions concerning COLAs: Upon=20
reaching eligibility, benefits (including survivor benefits) from =
the plan=20
will be adjusted each year by a 3% Cost of Living Adjustment, or =
COLA.=20
This adjustment will be added to your monthly =
benefit: Starting=20
with the October after you . . . retired if you were 48 =
years of=20
age at the date of retirement. On your=20
48th birthday . . . . If you are=20
eligible for [COLAs] that are made during your participation in =
the DROP,=20
your monthly pension benefit (being made to your DROP account) =
will be=20
adjusted by the value of the COLA. The 1996=20
QDRO expressly precluded the application of COLAs to Brenda's =
portion of=20
Thomas's service-pension benefits (and of Thomas's DROP benefits, =
as well,=20
because the 1996 QDRO excluded DROP funds altogether): "The amount =
payable=20
to [Brenda] under Paragraph 5 shall not be increased by any cost =
of living=20
adjustments made to [Thomas's service-pension or DROP] benefit[s] =
after=20
the date [of divorce]." Brenda=20
again raises a collateral attack, arguing that the QDRO's COLA =
provision=20
is void because the divorce decree awarded her a portion of this =
type of=20
benefit. For the reasons set out earlier, we conclude that, if the =
QDRO's=20
COLA provision and the divorce decree's property division =
conflict, the=20
QDRO's provision is void, and Brenda may maintain her collateral =
attack.=20
We thus determine whether the QDRO is void in this =
respect. As noted=20
above regarding the DROP, nothing in the plain language of the =
divorce=20
decree excluded benefits like COLAs from the division of Thomas's=20
retirement-related benefits in the Fund. And as we recognized =
above, the=20
decree provided that Brenda receive half of the "Houston Firemen's =
Relief=20
and Retirement Fund standing in the name of THOMAS E. GAINOUS," =
not simply=20
half of Thomas's service-pension benefits. Finally, for the =
reasons set=20
out above, we also reject Thomas's arguments that the decree's =
phrase=20
"standing in the name of THOMAS E. GAINOUS" can be equated with =
"on the=20
day of divorce" or that the lack of language like "if, as, and =
when=20
received" limited the portion or value of Brenda's award to the =
date of=20
divorce. We thus hold that the divorce decree's language is broad =
enough=20
to include COLAs to her portion of Thomas's service-pension =
benefits and=20
DROP account under the Fund, regardless of whether the COLAs can =
be=20
considered community or separate property. We thus=20
hold that the divorce decree unambiguously included COLAs to =
Thomas's=20
service-pension benefits and DROP funds under the Fund in its =
award to=20
Brenda of "[o]ne-half (1/2) of the Houston Firemen's Relief and =
Retirement=20
Fund standing in the name of THOMAS E. GAINOUS." Because the QDRO =
excluded=20
COLAs from being applied to any award of Thomas's service-pension =
and DROP=20
benefits that Brenda would receive at any time, the QDRO =
impermissibly=20
altered the decree's property division and was void to the extent =
that it=20
did so. See Tex. Fam. Code Ann. =A7 9.007(b). Because the =
QDRO's=20
provision excluding these COLAs from Brenda's award was void, =
Brenda could=20
properly challenge it by collateral attack, and res judicata and =
estoppel=20
did not bar her challenge. For these=20
reasons, we hold that the trial court abused its discretion by=20
misconstruing the divorce decree as not having divided Thomas's =
COLAs on a=20
portion of Thomas's service-pension and DROP benefits and, =
therefore, that=20
the court also abused its discretion by denying Brenda's motion to =
enforce=20
or to clarify to the extent that she sought COLAs on a portion of =
those=20
benefits. We thus sustain issues one through three to the extent =
that they=20
challenge the trial court's refusal to enter an order enforcing or =
clarifying the divorce decree's award to her of COLAs on a portion =
of=20
those benefits.
Finally=20
under issues one, two, and three, Brenda challenges the trial =
court's=20
denial of her motion to enforce or to clarify to the extent that =
that=20
ruling denied her any portion of (1) the one-time $5,000 lump-sum =
payment;=20
(2) the $150 monthly supplemental payment; and (3) the annual =
supplemental=20
payment benefit, also called the "13th-benefit =
payment." A.=20
The Divorce Decree's Language As with the=20
other benefits discussed herein, the divorce decree's award of =
"[o]ne-half=20
(1/2) of the Houston Firemen's Relief and Retirement Fund standing =
in the=20
name of THOMAS E. GAINOUS" does not expressly exclude these =
benefits from=20
the property division; awards Brenda a half interest in "the=20
. . . Fund," rather than in simply Thomas's =
service-pension=20
benefits; and cannot be read to restrict Brenda's interest to that =
existing on the date of divorce. Accordingly, whether these =
benefits were=20
community or separate property, the divorce decree gave half of =
them to=20
Brenda. B.=20
Disposition We hold=20
that the trial court abused its discretion by misconstruing the =
divorce=20
decree as not having divided Thomas's one-time $5,000 lump-sum =
payment,=20
the $150 monthly supplemental payment, and the 13th-benefit =
payment and,=20
thus that the court also abused its discretion by denying Brenda's =
motion=20
to enforce or to clarify to the extent that she sought a portion =
of these=20
three benefits. We thus sustain issues one through three to the =
extent=20
that they challenge the trial court's refusal to enter an order =
enforcing=20
or clarifying the divorce decree's award to her of these three =
remaining=20
benefits.
Under issue=20
four, Brenda argues that the trial court's judgment, to the extent =
that it=20
concerns the DROP funds and COLAs, cannot be supported by an =
implied legal=20
conclusion that Government Code section 804.003(g)(7) precluded =
the award=20
of any of these funds to her. See Tex. Gov't Code Ann. =
=A7=20
804.003(g)(7) (Vernon 2004). Section=20
804.003(g)(7) provides that a public retirement system "may reject =
a=20
domestic relations order as a [QDRO] unless the order =
. . . does=20
not purport to award any future benefit increases that are =
provided or=20
required by the legislature . . . ." Tex. Gov't =
Code Ann. =A7=20
804.003(g)(7) (Vernon 2004). The Fund's policies and procedures =
provided=20
that DROP contributions would not be affected by a QDRO. The 1996 =
QDRO=20
provided, "This Order shall not be interpreted to award [Brenda] =
any=20
future benefit increases that are provided or required by the=20
Legislature." Thomas=20
argued below that section 804.003(g)(7) allowed the Fund to =
prevent Brenda=20
from obtaining any QDRO at any time awarding her =
a=20
portion of the DROP funds or a portion of COLAs on his =
service-pension=20
benefits and DROP funds. In support, Thomas reasoned that, because =
the=20
DROP account did not exist until after the divorce, that account =
was=20
allegedly his separate property; thus, Thomas concluded, the =
account was=20
also a "future benefit increase[] . . . provided or =
required by=20
the legislature," and the Fund (and thus the trial court) could =
properly=20
reject any QDRO purporting to make such an award--such as the one =
that=20
Brenda sought by her 2003 motion to enforce or to clarify. He =
argued below=20
that section 804.003(g)(7) precluded post-divorce COLAs for the =
same=20
reasons. By its=20
plain terms, section 804.003(g)(7) has nothing to do with whether =
a trial=20
court may apportion future contingent retirement benefits like =
these in a=20
divorce decree or whether these types of contingent benefits are =
community=20
or separate property. A more reasonable interpretation of section=20
804.003(g)(7) than Thomas's is that section 804.003(g)(7) allows a =
public=20
retirement system to reject a QDRO that awards this type of =
benefit=20
increase when, at the time that the QDRO is obtained, =
that=20
benefit increase has not yet matured or accrued. Once Thomas =
retired in=20
approximately August 2003, the Fund could no longer reject, under =
section=20
804.003(g)(7), a QDRO concerning Thomas's DROP funds and any COLA=20
increases to Brenda's portion of Thomas's service-pension benefits =
and=20
DROP account balance. To read=20
section 804.003(g)(7) as Thomas does potentially allows a public=20
retirement system to refuse to qualify a domestic relations order =
that=20
validly apportions matured retirement benefits that an unappealed =
divorce=20
decree awarded to the non-employee spouse--properly or improperly. =
We do=20
not deem the Legislature to have intended such an absurd result. =
See=20
Tex. Gov't Code Ann. =A7=A7 311.021(3) (Vernon 2005) =
("In enacting a=20
statute, it is presumed that: . . . (3) a just and =
reasonable=20
result is intended . . . ."); 311.023(4), (5) =
(Vernon 2005)=20
("In construing a statute, . . . a court may consider =
among=20
other matters the: . . . (4) common law . . ., =
including laws on the same or similar subjects; [and] (5) =
consequences of=20
a particular construction. . . ."). We sustain=20
issue four. We reverse=20
the judgment and remand the cause for the trial court for further=20
proceedings consistent with this opinion. Tim=20
Taft Panel=20
consists of Justices Taft, Keyes, and Hanks. Justice=20
Keyes, concurring. Justice=20
Hanks, concurring in the judgment.=20
1. The Houston Firemen's Relief and =
Retirement Fund is=20
now known as the Houston Firefighter's Relief and Retirement Fund. =
Williams v. Houston Firemen's Relief & Ret. Fund, 121 =
S.W.3d=20
415, 415 n.1 (Tex. App.--Houston [1st Dist.] 2003, no pet.).=20
2. The "service-pension benefit" was the =
basic monthly=20
pension benefit, in which a firefighter vested after 20 years of =
active=20
service, that was calculated pursuant to, among other things, a =
formula=20
based on years of service and average salary. See Tex. =
Rev. Civ.=20
Stat. Ann. art. 6243e.2(1), =A7 4(a)-(b) (Vernon Supp. 2006).=20
3. Brenda's expert calculated that Brenda's =
interest=20
in the DROP funds was $34,682.86 as of the same date.=20
4. The Fund plan, as required by applicable =
statute,=20
provided that firefighters who participated in the DROP would =
still make=20
bi-weekly pension contributions. See Tex. Rev. Civ. Stat. =
Ann.=20
art. 6243e.2(1), =A7 5(b) (Vernon Supp. 2006); see also =
id. =A7 13(c)=20
(Vernon Supp. 2006). Recognizing that these bi-weekly pension=20
contributions were Thomas's separate property, Brenda advised the =
trial=20
court that she was not seeking a portion of them.=20
5. See Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2(1), =A7 10B (Vernon Supp. 2006).=20
6. See Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2(1), =A7 4(d) (Vernon Supp. 2006).=20
7. See Tex. Rev. Civ. Stat. Ann. =
art.=20
6243e.2(1), =A7 10A (Vernon Supp. 2006).=20
8. See Tex. Gov't Code Ann. =A7 =
804.003(g)(7)=20
(Vernon 2004).=20
9. See id.=20
10. Brenda's expert explained that DROPs =
existed to=20
allow certain federal tax benefits while an employee who is =
eligible for=20
retirement continued to work.=20
11. However, the Policies and Procedures =
also=20
provided that "[p]ursuant to a QDRO, if an Alternate Payee is =
specifically=20
awarded a dollar amount or a percentage of the member's DROP =
account, such=20
amount or percentage will be distributed . . . in =
accordance=20
with the member's election."=20
12. Brenda also argues that the QDRO's DROP =
provisions are void because "there is no evidence" that whoever =
petitioned=20
for the QDRO obtained service by citation on the other party. =
See=20
Tex. Fam. Code Ann. =A7 9.102(c) (Vernon 1998). However, we =
must=20
presume that the QDRO was valid (that is, that service of citation =
occurred), and the burden was on Brenda to show otherwise. See =
Stewart=20
v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 =
(Tex.=20
1994) (presumption); Armentor v. Kern, 178 S.W.3d 147, =
149 (Tex.=20
App.--Houston [1st Dist.] 2005, no pet.) (burden). Any gap in the =
record=20
as to service of citation for the QDRO thus defeats this =
particular=20
challenge. See id. Accordingly, we overrule this =
challenge under=20
Brenda's issue three.=20
13. See Shanks v. Treadway, 110 =
S.W.3d 444,=20
449 (Tex. 2003) ("no authority"); In re Marriage of =
Jones, 154=20
S.W.3d 225, 228 (Tex. App.--Texarkana 2005, no pet.) ("beyond the =
power,"=20
citing statute); In re Marriage of McDonald, 118 S.W.3d =
829, 833=20
(Tex. App.--Texarkana 2003, pet. denied) ("outside the scope of =
the trial=20
court's authority"); Marshall v. Priess, 99 S.W.3d 150, =
157, 158,=20
160 (Tex. App.--Houston [14th Dist.] 2002, no pet.) ("beyond the =
power,"=20
citing statute; "no authority"; and "exceeded its authority"); =
see=20
also Hurley v. Hurley, 960 S.W.2d 287, 288 (Tex. =
App.--Houston [1st=20
Dist.] 1997, no pet.) ("power"); In re Marriage of Clark, =
No.=20
07-02-0285-CV, 2004 WL 350988, at *3 (Tex. App.--Amarillo Feb. 25, =
2004,=20
no pet.) (memo. op.) ("lacked jurisdiction").=20
14. Thomas views the DROP funds as his =
separate=20
property because (1) the DROP account did not begin until after =
the=20
divorce and (2) retirement benefits that are attributable to =
post-divorce=20
employment are separate property. That is, Thomas views the DROP =
funds as=20
wholly new benefits that sprang into existence when he =
became=20
eligible to retire. In contrast, Brenda views the DROP funds as =
community=20
property because (1) eligibility to participate in the DROP is =
based upon=20
years of service, most of which occurred during the marriage, and =
(2) the=20
monies paid into Thomas's DROP account (with the exception of =
Thomas's=20
contributions during DROP participation) were merely deferred =
retirement=20
benefits being held for him, and allowed to accrue interest, until =
he=20
retired. That is, Brenda views the DROP funds not as wholly new =
benefits=20
that sprang into existence when Thomas became eligible to retire, =
but,=20
instead, as deferred service-pension benefits (plus =
interest and=20
COLAs) that Thomas merely allowed the Fund to keep until he left =
this=20
employment. The=20
Fourteenth Court of Appeals, in a well-reasoned opinion adopting =
the=20
position that Brenda takes here, has concluded that DROP funds =
paid as a=20
benefit under a defined-benefit plan are community property, =
subject to=20
just and right division to the extent that they were earned during =
marriage, with the exception of the employee spouse's post-divorce =
contributions. See Stavinoha v. Stavinoha, 126 S.W.3d =
604, 612=20
(Tex. App.--Houston [14th Dist.] 2004, no pet.). We need not =
determine=20
whether Stavinoha is persuasive in our case or whether =
Thomas's=20
DROP funds were partially community property because, even if they =
were=20
not, the unappealed divorce decree awarded half of them to Brenda. =
15. We recognize that, in addition to using =
the=20
decretal language cited above, the trial court recited elsewhere =
in the=20
Gainouses' divorce decree that it was dividing the "estate of the=20
parties," i.e., the community-property estate. However, =
as=20
indicated in the parenthetical above, the Reiss court =
construed a=20
very similar decree to divide half of all retirement-plan =
benefits when the decree's decretal language purported to divide =
all of=20
that asset, despite the decree's also having recited that the =
court was=20
dividing "community property" and that the disputed =
retirement-plan=20
benefits were part of that community property. See Reiss v.=20
Reiss, 118 S.W.3d 439, 440 (Tex. 2003). If the decree in=20
Reiss could not be construed to have divided only =
community=20
property, then neither can this decree. Justice=20
Hanks, in his concurring opinion, indicates that he joins only the =
judgment of the Court because he disagrees with Reiss. =
However,=20
whether we disagree with Reiss is irrelevant: it is =
binding=20
precedent that cannot be distinguished from this case.=20
16. But see Cearley v. =
Cearley, 544=20
S.W.2d 661, 662 (Tex. 1976) (holding that retirement benefits =
earned by=20
spouse during marriage are contingent community property, even =
though not=20
then subject to possession and enjoyment).=20
17. As it did with DROP funds, the =
Stavinoha=20
court held that COLAs were contingent community property subject =
to=20
division for the reason that they were granted upon eligibility to =
retire,=20
which was governed by years of service (some of which occurred =
during the=20
community's existence), and were not increases due to continued=20
employment. Stavinoha, 126 S.W.3d at 613-14. The =
Stavinoha=20
court's holding comports with our own court's view of =
post-divorce=20
COLAs to retirement benefits. See Reiss v. Reiss, 40 =
S.W.3d 605,=20
611 n.5 (Tex. App.--Houston [1st Dist.] 2001), rev'd on other=20
grounds, 118 S.W.3d 439 (Tex. 2003); Phillips v. =
Parrish,=20
814 S.W.2d 501, 504-05 (Tex. App.--Houston [1st Dist.] 1991, writ =
denied).=20
Again, it is irrelevant whether the COLAs were community or =
separate=20
property because, even if they were separate property, the =
unchallenged=20
divorce decree divided them.=20
18. Article 6243e.2(1) provided that each =
of these=20
three benefits would be paid to a firefighter who retired. See =
Tex. Rev. Civ. Stat. Ann. art. 6243e.2(1), =A7=A7 4(d), 10A, =
10B (Vernon=20
Supp. 2006). A firefighter was not eligible for retirement until =
he had at=20
least 20 years of participation in the Fund. Id. =A7 =
4(a). For this=20
reason, the Stavinoha court held that such benefits are =
community=20
property--to the extent that the employee's years towards =
retirement were=20
earned during the marriage--subject to division. See =
Stavinoha,=20
126 S.W.3d at 613. However, the Gainouses were divorced before =
the Legislature created these benefits; in =
Stavinoha, in=20
contrast, the Stavinohas divorced in October 1995, after =
the=20
Legislature had created these benefits. See Act of May =
21, 1997,=20
75th Leg., R.S., ch. 1268, =A7 1, 1997 Tex. Gen. Laws 4794, 4799=20
(amended 1999, 2001) (current version at Tex. Rev. Civ. =
Stat.=20
Ann. art. 6243e.2(1), =A7 4(d) (Vernon Supp. 2006)); Act of May =
10, 1999,=20
76th Leg., R.S., ch. 211, =A7 9, 1999 Tex. Gen. Laws 687, 692-93 =
(amended=20
2001) (current version at Tex. Rev. Civ. Stat. Ann. art. =
6243e.2(1), =A7=A7=20
10A, 10B (Vernon Supp. 2006)); Stavinoha, 126 S.W.3d at =
613. We=20
need not determine whether these three benefits were community or =
separate=20
property, however, because even if they were separate property, =
the=20
uncontested divorce decree divided them.=20
19. Thomas's response to Brenda's motion to =
enforce=20
or to clarify asserted section 804.003(g)(7) against only her =
request for=20
a portion of his DROP funds and COLAs. He did not argue that that =
section=20
precluded the entry of a QDRO awarding the three other contested =
benefits.=20
The issue of whether section 804.003(g)(7) and the Fund's policies =
precluded a QDRO awarding Brenda a portion of the three remaining =
benefits=20
does not appear to have been litigated below, and the issue thus =
does not=20
appear to have been a basis for the court's judgment, which did =
not recite=20
the bases on which it was rendered. To the extent that the trial =
court=20
could be construed as nonetheless having implicitly ruled on =
section=20
804.003(g)(7)'s effect on Brenda's request for a QDRO concerning =
the three=20
remaining benefits, however, Brenda's challenge concerning that =
implicit=20
ruling under section 804.003(g)(7) would be controlled by our =
discussion=20
here.