Opinion issued August 3, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00178-CV
__________
MICHAEL ALLEN BAKER, Appellant
V.
KAREN RUTH DONOVAN, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 1987-34019
CONCURRING OPINION ON REHEARING
Appellant, Michael Allen Baker, challenges the trial court’s order granting relief to his ex-wife, appellee, Karen Ruth Donovan, on her Petition for Enforcement and Clarification of their 1987 divorce decree. In the decree, the trial court awarded Donovan “50% of [Baker]’s present accrued benefit as of the date of this decree, in the U.S. Military Retirement System, if, as, and when payable or paid to or for Respondent, MICHAEL ALLEN BAKER.” In his sole issue, Baker contends that the trial court erred in characterizing his Veteran’s Administration (“VA”) disability pay as community property and awarding Donovan half of it. He contends that veterans’ disability benefits are not community property divisible upon divorce, but rather separate property under the Uniformed Services Former Spouses’ Protection Act (USFSPA) and Supreme Court authority. See 10 U.S.C. § 1408 (2000); Mansell v. Mansell, 490 U.S. 581, 594–95, 109 S. Ct. 2023, 2032 (1989) (holding that “the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits”). Thus, he contends, the trial court erred by failing to reduce the amount of his military benefits awarded to Donovan by the amount of the disability benefits he elected to receive in lieu of retirement benefits.
The majority correctly points out that the relief Baker seeks—characterization of a portion of his military benefits as his separate property and recalculation of the property settlement in the 1987 divorce decree—can only be considered upon the timely filing of a motion to modify the decree and that Baker, having failed to timely challenge the incorrect division of property in the divorce decree through appeal cannot attack it by a “motion for clarification.” However, this Court’s holding requires more of an explanation than the majority accords it.
In Berry v. Berry, the Supreme Court of Texas considered whether Mansell permitted modification of a property settlement that had become final prior to the enactment of the USFSPA. 786 S.W.2d 672 (Tex. 1990). The court held that although divorce judgments that are regular on their face may be erroneous or voidable, they are not subject to collateral attack. Id. at 673. Thus, “the subsequent adoption of the USFSPA [could] not be used to collaterally attack the Berrys’ final divorce decree.” Id. Subsequently, the Austin Court of Appeals held that a judgment that awarded a former wife a portion of her former husband’s military pension benefits gave her a vested right in that portion, and thus the doctrine of res judicata barred him from reopening the issue of whether she possessed that right. Trahan v. Trahan, 894 S.W.2d 113, 117–18 (Tex. App.—Austin 1995, writ denied). The court pointed out that private rights that have become vested under a judgment cannot be taken away by a subsequent legislative act without compensation. Id. at 118. It reaffirmed earlier Texas holdings that “military retire[ment] pay is subject to division upon divorce as a vested community property right even if the present right to the pay had not fully matured” at the time of the divorce. Id. at 119; see also Taggart v. Taggart, 552 S.W.2d 422, 423 (Tex. 1977); Brannon v. Randmaa, 736 S.W.2d 175, 177 (Tex. App.—Austin 1987, writ denied). Thus, an amendment to the USFSPA that intended to make the USFSPA retroactive to divorces occurring before June 25, 1981 had no effect to alter a divorce decree; rather, it was prohibited from doing so by article I, section 16, of the Texas Constitution, which prohibits retroactive laws. See Trahan, 894 S.W.2d at 118.
Here, likewise, Donovan’s 50% interest in Baker’s military retirement benefits became a vested right in the final divorce decree that issued in 1987. Even though the trial court improperly awarded Donovan benefits that, by statute, were Baker’s separate property, Baker did not timely complain. Under Berry and its progeny, the division of property in the divorce decree is res judicata, and the property may not now be reapportioned. See Berry, 786 S.W.2d at 673; Trahan, 894 S.W.2d at 119; Jones v. Jones, 900 S.W.2d 786, 787–88 (Tex. App.—San Antonio 1995, writ denied) (holding that res judicata barred former husband’s collateral attack on final unappealed divorce decree entitling former wife to portion of military retirement pay when husband argued that disability benefits he accepted in lieu of retirement benefits were not subject to division). I, therefore, concur with the majority that the judgment of the trial court should be affirmed.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, concurring.