Harvey Dee Spiars v. Phyllis Carol Watson--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00200-CV
Harvey Dee SPIARS,
Appellant
v.
Phyllis Carol WATSON,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 1980-CI-18587
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: August 29, 2007

 

AFFIRMED

This is an appeal from a trial court's Division of Retirement Benefits Order entered pursuant to section 9.013 of the Texas Family Code. Harvey Dee Spiars raises one issue in which he contends the trial court substantially altered the terms of the original divorce decree regarding the division of retirement benefits in violation of section 9.007 of the Texas Family Code. We affirm.

 

Factual and Procedural Background

Harvey Dee Spiars and Phyllis Carol Watson (f/k/a Phyllis Carol Spiars) were divorced on February 18, 1981. (1) The divorce decree, which was signed later that year, divided the marital estate including Spiars's San Antonio Police Department (SAPD) retirement benefits. That portion of the decree states:

14. That portion of the pension right which Harvey Dee Spiars is entitled to as a result of his past and current employment with the San Antonio Police Department (SAPD) which shall be determined by taking any and all monthly payments to which Harvey Dee Spiars shall hereafter become entitled and taking that proportion of it which is determined to multiply each and every payment by a fraction, the numerator of which is one-half ( ) of the months Harvey Dee Spiars worked under such employment or such plan as of February 18, 1981, and a denominator as the total number of months which Harvey Dee Spiars shall have worked during the term of such plan or plans.

 

At the time the decree was entered, Spiars was employed by SAPD and continued his employment until his retirement on March 1, 1991. Spiars began receiving pension benefits on or about the date of his retirement.

On September 30, 2004, Watson filed a Petition for Enforcement of Property Division and for Issuance of a Qualified Domestic Relations Order seeking her share of Spiars's SAPD pension benefits. On September 14, 2005, the trial court entered an order calculating Watson's interest in the pension benefits at 33.5%. (2) The order further stated:

IT IS ORDERED that PHYLLIS CAROL WATSON is granted judgment against HARVEY DEE SPIARS for $136,536.71, plus prejudgment interest of $56,507.71, for a total judgment of $193,044.42, such judgment bearing interest at five (5%) percent per year compounded annually from the date this order is signed, for which let execution issue.

 

The trial court also entered a qualified domestic relations order. This order was submitted to the San Antonio Fire and Police Pension Fund administrator but was returned to be redrafted in a form that met the Fund's requirements. Accordingly, on February 10, 2006, a Division of Retirement Benefits Order was signed by the trial court and stated, in pertinent part (3):

B. Phyllis Carol Watson (hereafter "Non-Participant") is awarded a portion of the monthly retirement benefits payable subsequent to the effective date of this Order by the Fund to Participant, that portion being 33.5% of $2,686.32, or $899.92 monthly.

 

Spiars contends the trial court erred in entering this order. He argues Watson is not entitled to 33.5% of $2,686.32, the value of his accrued pension benefits as of the date of his retirement; rather, he contends she is only entitled to 33.5% of $539.51, the value of his accrued benefits as of the date of the divorce. Spiars claims the trial court's order improperly altered the original decree, which he contends clearly set a "cut off date of February 18, 1981" for determination of value of pension benefits. Applicable Law

To determine whether the trial court was correct in using the date of retirement to determine the value of the pension benefits Watson was to receive, we must interpret the divorce decree. When interpreting a divorce decree, courts are to construe the decree as a whole in an effort to harmonize and give effect to the entire decree. Caracciolo v. Caracciolo, No. 04-06-00208-CV, 2007 WL 1341156, at *2 (Tex. App.-San Antonio May 9, 2007, Rule 53.7(f) mtn. filed) (citing Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003)). If the decree is unambiguous, it must be effectuated pursuant to its literal language. Id. If, on the other hand, the decree is ambiguous it must be construed to correctly apply the law. Id. Whether a decree is ambiguous is a question of law for the court. Id.

When we analyze the decree in this case we find no ambiguity. Paragraph 14 is clearly a straightforward application of the Taggart formula, devised by the Texas Supreme Court in 1977. See Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977). The Taggart formula calculated a non-employee spouse's community interest in an employee-spouse's retirement benefits by taking the number of months the parties had been married under the plan divided by the total number of months the employee-spouse was employed under the plan at the time of retirement. Caracciolo, 2007 WL 1341156, at *2 (citing Taggart, 552 S.W.2d at 424). The trial court then multiplied this fraction by the amount it determined to be the non-employee's just and right share in the community and then multiplied by the value of the benefits received by the employee spouse at retirement. Id. (4)

The result was the amount due the non-employee spouse each month from the employee-spouse's retirement benefits.

In this case, the second half of paragraph 14 of the divorce decree sets forth the numerator (the number of months Spiars worked with SAPD until the date of divorce), the denominator (the number of months Spiars worked with SAPD until retirement), and multiplies this fraction by one-half (Watson's "just and right" share of the pension benefits). The parties do not dispute the trial court's calculation of the percentage due Watson from Spiars's pension-both agree the proper percentage is 33.5%-which is directly based on the language from the second half of paragraph 14. The only dispute is whether this percentage is to be multiplied by the value of the pension benefits at the time of divorce (February 18, 1981) or the value at the time of Spiars's retirement (March 1, 1991). The difference is far from de minimis. If the percentage is based on the value of the benefits when Spiars retired, Watson is entitled to 33.5% of $2,686.32. If, however, the percentage is based on the value of the benefits at the time the parties divorced, Watson is only entitled to 33.5% of $539.51 (value of benefits on day of divorce).

The second half of paragraph 14 covers all of the requirements of the Taggart formula except the last one-multiplying the non-employee spouse's percentage either by the value of the benefits at the time of retirement or at the time of divorce. Thus, we look to the first half of paragraph 14 to determine this last requirement. The first half of paragraph 14 specifically states that Watson's portion of Spiars's pension right is to be based on "any and all monthly payments to which HARVEY DEE SPIARS shall hereafter become entitled." (emphasis added). This unambiguously refers to all payments Spiars is entitled to receive up to the date of retirement as required by Taggart, which was the law at the time the parties divorced. See Taggart 552 S.W.2d at 424. In other words, the decree entitled Watson to 33.5% of the value of Spiars's pension as of the date of his retirement or 33.5% of $2,686.32, as ordered by the trial court on February 10, 2006.

Even if we were to hold that paragraph 14 was somehow ambiguous in light of the rest of the decree, we would be required to apply a construction that would correctly mirror the law as it existed at the time of the parties' divorce. See Baxter v. Ruddle, 794 S.W.2d (Tex. 1990) (holding Berry does not apply retroactively to modify a decree); Caracciolo, 2007 WL 1341156, at *2 (citing Shanks, 110 S.W.3d at 447) (holding that if decree is ambiguous it must be construed to correctly apply the law). That would require us to apply Taggart, which mandated that a non-employee spouse's percentage was to be multiplied by the value of the benefits received by the employee spouse at retirement. See Caracciolo, 2007 WL 1231156, at *2 (citing Taggart, 552 S.W.2d at 424). This results in the same outcome.

Based on the foregoing, we hold the trial court did not modify or alter the divorce decree in violation of the Texas Family Code, which prohibits courts from modifying, altering, or changing a division of property made or approved in a final decree. See Tex. Fam. Code Ann. 9.007(a) (Vernon 2006). Rather, the trial court's Division of Retirement Benefits Order of February 10, 2006, was consistent with the terms of the original decree and was merely a rendition of an order permitting payment of benefits to Watson pursuant to section 9.103. Id. at 9.103 (permitting party to petition court to render qualified domestic relations order or similar order if prior final decree of divorce did not include order permitting payment of benefits to alternate payee or other lawful payee). Accordingly, we overrule Spiars's sole issue.

Frivolous Appeal

Watson asks this court to find Spiars's appeal is frivolous and to award her attorney's fees and costs as sanctions. See Tex. R. App. P. 45. Rule 45 provides as follows:

If the court of appeals determines that an appeal is frivolous it may-on motion of any party or on its own initiative, after notice and a reasonable opportunity for response-award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the records, briefs, or other papers filed in the court of appeals.

 

Id. It is within the discretion of the appellate court to grant or deny appellate sanctions. Tabrizi v. Das-Rez Corp., No. 04-05-00945-CV, 2007 WL 671323, at *4 (Tex. App.-San Antonio Mar. 7, 2007, no pet.) (mem. op.). We must exercise this discretion "with prudence, caution, and after careful deliberation." Id. (quoting Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 448 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). While Spiars's appeal is without merit, we decline to impose sanctions. Thus, we deny Watson's request for appellate sanctions.

Conclusion

We affirm the trial court's judgment. We deny Watson's request for sanctions pursuant to Rule 45.

 

Steven C. Hilbig, Justice

1. The final decree of divorce was signed by the Honorable Carol Haberman.

2. The order on Watson's petition was signed by the Honorable Olin Strauss.

3. This order, which is the order that is the subject of this appeal, was signed by the Honorable Janet P. Littlejohn.

4. The formula was changed by the Texas Supreme Court in Berry v. Berry, 647 S.W.2d at 945 (Tex. 1983). Id. (citing Berry, 647 S.W.2d at 946-47). Today, while the numerator remains the same, the formula's denominator is no longer based on the total number of months the employee-spouse was employed at the time of retirement; rather, it is based on the total number of months the employee-spouse was employed at the time of divorce. Id. And while the resulting fraction is multiplied by the amount determined to be the non-employee's just and right share in the community, it is no longer multiplied by the value of the benefits received by the employee at the time or retirement; rather, it is now multiplied by the value of the benefits received by the employee spouse at divorce. Caracciolo, 2007 WL 1341156, at *2 (citing Contreras v. Contreras, 974 S.W.2d 155, 157 (Tex. App.-San Antonio 1998, no pet.)).