Tressie A. McCaig v. B. H. McCaig--Appeal from 173rd District Court of Henderson County

NO. 12-06-00374-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TRESSIE MCCAIG APPEAL FROM THE 173RD

V. JUDICIAL DISTRICT COURT OF

B.H. MCCAIG HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Tressie McCaig filed a motion to enforce and clarify a final divorce decree and to modify and clarify a qualified domestic relations order. In one issue, Tressie complains that the trial court erred in denying her motion and failing to amend the qualified domestic relations order signed by the trial court on February 2, 1993. We reverse and remand.

Background

Tressie McCaig and B.H. (Mack) McCaig were married on April 9, 1964. Mack began working for what is now TU Electric on January 9, 1975, and he still worked for TU Electric when the McCaigs divorced. On February 2, 1993, the trial court signed a final divorce decree and a qualified domestic relations order ( QDRO ). Neither Tressie nor Mack appealed either of these orders. Pursuant to the divorce decree, Tressie was awarded one-half of any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, in the Retirement Plan for Employees of the Texas Utilities Company System together with all increases thereof, the proceeds therefrom, and any other rights existing by reason of [Mack] s employment with TU Electric. The QDRO awarded Tressie one-half ( ) of all sums held in the Retirement Plan for Employees of the Texas Utilities Company System in the name of [Mack], as of the date of divorce set above, together with all increases thereof and the proceeds therefrom and any other rights relating thereto until distribution to Alternate Payee. The QDRO was accepted by TU Electric.

Mack continued working for TU Electric for several years after the divorce. He retired on November 30, 2001, but Tressie did not learn of his retirement until approximately two years later. After learning of Mack s retirement and becoming unhappy with the distribution of retirement benefits, Tressie filed a motion to enforce and clarify the final divorce decree and to modify and clarify the QDRO. After an evidentiary hearing, the trial court denied the motion. The trial court did not file findings of fact or conclusions of law. This appeal followed.

Denial of the Motion

In her sole issue, Tressie complains that the trial court erred in denying her motion and failing to amend the QDRO signed by the trial court on February 2, 1993. Tressie acknowledges that the trial court may render further orders such as the QDRO to enforce the division of property made in the divorce decree. See Tex. Fam. Code Ann. 9.006(a) (Vernon 2006). However, she also points out that those further orders may not alter or change the substantive division of property. See Tex. Fam. Code Ann. 9.007(a) (Vernon 2006). In the motion, Tressie asserted that she was not receiving her proper share of retirement benefits because the QDRO fails to effectuate the division of property as set out in the divorce decree. Consequently, she requested clarification and/or modification of the divorce decree and the QDRO.

Standard of Review

We review the trial court s ruling on a motion for enforcement or clarification of a divorce decree under an abuse of discretion standard. In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App. Texarkana 2003, pet. denied). The trial court abuses its discretion when it 1) acts unreasonably, arbitrarily, or without reference to any guiding rules or principles or 2) erroneously exercises its power by making a choice outside the range of choices permitted the court by law. Id. When, as here, the trial court makes no separate findings of fact or conclusions of law, we draw every reasonable inference supported by the record in favor of the trial court s judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We must then affirm the judgment of the trial court on any legal theory that finds support in the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). When, as in this case, the appellate record includes the reporter s record, the trial court s implied fact findings are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). We review questions of law, including implied legal conclusions, de novo. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (op. on reh g).

The Divorce Decree

We interpret divorce decrees to determine not what the trial court should have done but, if possible, what the court actually did. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). We construe judgments as a whole to harmonize and give effect to the entire judgment. Id. If, when read as a whole, the divorce decree s disposition of property is unambiguous, we must effectuate the division in light of the actual language used. Id. On the other hand, if the divorce decree s disposition of property is ambiguous, we must review the record along with the decree to aid in interpreting the judgment. Id. And, if the decree is ambiguous, we adopt the construction that correctly applies the law. Id. Whether a divorce decree is ambiguous is a question of law. Id.

The trial court correctly stated that the Berry formula was at the time of the divorce, and still is, the correct formula for dividing the retirement benefits of a spouse who began plan participation during marriage but retired after divorce. The Berry formula is the nonemployee spouse s just and right share in the retirement plan x [(the number of months in the plan while married)/(the number of months in the plan at time of retirement)] x (the monthly benefit the employee would have received at the divorce date, whether then eligible to retire or not). See Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983). The Berry formula protects the postdivorce increases in the employee spouse s retirement benefits that are attributable to his continued employment after divorce because those benefits are separate property. Id.

Here, the divorce decree did not follow the Berry formula. Instead, the divorce decree provides that Tressie receives one-half of any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, in the Retirement Plan for Employees of the Texas Utilities Company System together with all increases thereof, the proceeds therefrom, and any other rights existing by reason of [Mack] s employment with TU Electric. In examining similar provisions, the Texas Supreme Court has held that such a division unambiguously entitles the recipient to an interest in all sums received under the retirement plan rather than an interest in presently accrued benefits under the plan. See Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003); Shanks, 110 S.W.3d at 448. These cases govern our analysis of this provision. Although the trial court s divorce decree improperly awards Tressie retirement benefits that are Mack s separate property, the divorce decree is unambiguous and final, and we must give it effect. See Shanks, 110 S.W.3d at 447 (trial court must enforce divorce decree as it is written, not as it should have been written).

Pursuant to the divorce decree, Tressie is entitled to one-half of the retirement benefits.1 Because the QDRO alters this division of property, we agree with Tressie that the QDRO violates Section 9.007(b) of the Texas Family Code. This does not end our analysis, however. Tressie s complaint that the February 2, 1993 QDRO in this case differs from the divorce decree is a collateral attack on the QDRO. While we agree that the QDRO does not match the division of property in the divorce decree, we must also examine whether Tressie s challenge to the QDRO is barred by res judicata.

The QDRO

A QDRO is a final, appealable order. See Reiss, 118 S.W.3d at 441 (post divorce QDRO reviewed by appeal). Res judicata applies to final divorce decrees and, under the same logic, applies to final post-divorce orders. Gainous v. Gainous, 219 S.W.3d 97, 105 (Tex. App. Houston [1st Dist.] 2006, pet. filed) (op. on reh g); see also Tex. Fam. Code Ann. 9.103-.104 (Vernon 2006); Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990) (applying res judicata to a divorce decree). But an attack on the QDRO is not barred by res judicata if it is shown that the QDRO is void. Gainous, 219 S.W.3d at 105. The QDRO is void if the trial court lacked jurisdiction over the parties or the subject matter, or to enter the judgment, or lacked capacity to act as a court. Id. The party challenging the QDRO has the burden to establish that the QDRO is void. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994); Gainous, 219 S.W.3d at 106.

Although a trial court that rendered a divorce decree generally retains continuing subject matter jurisdiction to clarify and enforce the decree s property division, there are limitations on those enforcement and clarification powers. Gainous, 219 S.W.3d at 106; see also Tex. Fam. Code Ann. 9.002, 9.006, 9.008 (Vernon 2006). And Section 9.007(b) provides as follows: An order under this section that amends, modifies, alters or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable. Tex. Fam. Code Ann. 9.007(b) (Vernon 2006) (emphasis added); see also Shanks, 110 S.W.3d at 449.

The First Court of Appeals examined the issue of jurisdiction in Gainous. There, the court recognized that a QDRO is a species of post-divorce enforcement or clarification order. Gainous, 219 S.W.3d at 107; see also Shanks, 110 S.W.3d at 449. The court further recognized that when describing the limitation imposed by Section 9.007 on postdivorce enforcement and clarification, the case law includes terms such as power, jurisdiction, and authority, indicating matters of subject matter jurisdiction. Gainous, 219 S.W.3d at 107-08. The First Court thus determined that Section 9.007 is jurisdictional and that orders violating its restrictions are void. We agree. A trial court lacks jurisdiction to enter a QDRO that is not in compliance with Section 9.007(a). Because the February 2, 1993 QDRO changed the actual, substantive division of property made in the divorce decree, the QDRO violated Section 9.007(a) and is void. Therefore, Tressie s complaint is not barred by res judicata. Thus, the trial court must amend the QDRO to effectuate the division of property ordered by the court in the divorce decree. See Tex. Fam. Code Ann. 9.1045 (Vernon 2006).

Past Benefits

Tressie further complains that past retirement benefits have been provided to Mack in a percentage greater than he is entitled to under the divorce decree. Tressie asks this court to require the trial court to set aside all of Mack s future retirement benefits until she has been fully reimbursed for the deficit in retirement payments. The trial court has broad discretion in determining how to correct the past shortfall. See Tex. Fam. Code Ann. 9.010 (Vernon 2006). We decline to restrict the method by which the payment of past benefits will be brought into compliance with the divorce decree. Instead, we remand this issue to the trial court.

Conclusion

Because the trial court abused its discretion in denying Tressie s motion to enforce and clarify the divorce decree and modify and clarify the QDRO, we sustain Tressie s sole issue. We reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

BRIAN HOYLE

Justice

Opinion delivered June 20, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 Tressie claimed entitlement to approximately 33% of the retirement benefits. But the QDRO division of the retirement benefits must match the divorce decree. Because the divorce decree awarded Tressie one-half of the retirement benefits, the QDRO should have reflected that division.