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
OPINION ON REHEARING
We withdraw our Opinion of May 4, 2006 and issue this one in its stead. Appellant’s motion for rehearing is denied.
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. In his sole issue, Baker contends that the trial court erred in awarding Donovan $387.87 per month of Baker’s military retirement because it failed to take into account his Veteran’s Administration (“VA”) disability pay and, thus, failed to reduce the retirement pay by the amount of disability pay. We affirm.
Background
Donovan filed for divorce on July 28, 1987. Thereafter, Donovan and Baker agreed on the terms of the divorce, including a division of the property of the parties, which was contained in an Agreed Final Decree of Divorce signed on October 16, 1987. The decree of divorce provided for conservatorship of the minor children of the marriage and divided the parties’ property, including Baker’s military retirement benefits.
Baker was a Lieutenant Commander in the United States Navy with eleven years, nine months of service at the date of divorce. The provision of the decree dividing Baker’s military retirement benefits read as follows:
IT IS ORDERED AND DECREED that Petitioner, KAREN RUTH BAKER, shall have judgment against and recover of and from Respondent, MICHAEL ALLEN BAKER, 50% of MICHAEL ALLEN 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.
Beginning March 1, 2002, Baker began receiving retirement pay of approximately $5,000.00 per month, which included $1,069.00 designated as VA disability pay. When Baker failed to pay Donovan’s portion of his retirement, Donovan filed a petition to enforce and clarify the terms of the 1987 divorce decree dividing Baker’s military retirement benefits. At trial, the parties stipulated:
a. Karen Ruth Donovan and Michael Allen Baker were divorced on October 16, 1987;
b. Michael Allen Baker had been a member of the United States Navy for eleven years and nine months on October 16, 1987;
c. Michael Allen Baker’s accrued interest in the United States Military Retirement System was divided 50% to Karen Ruth Donovan and 50% to Michael Allen Baker on October 16, 1987;
d. Michael Allen Baker’s interest in the United States Military Retirement System accrued at the rate of 2.5% of base pay per year of service;
e. Michael Allen Baker’s base pay per month on October 16, 1987 was $2,645.10;
f. Michael Allen Baker’s accrued interest in the United States Military Retirement System was $775.75 per month on October 16, 1987; and
g. Michael Allen Baker retired from the United States Navy on or about March 1, 2002.
The trial court found that the original form of the division of Baker’s military retirement benefits in the decree was not specific enough to be enforceable by contempt and that a clarifying order setting forth specific terms to enforce compliance with the original division of property was necessary. The trial court clarified the provisions of the decree dividing Baker’s military retirement benefits as follows:
The Court finds that on October 16, 1987, the date of divorce, Respondent, Michael Allen Baker . . . (i) was a Lt. Commander in the United States Navy, (ii) had been a member of the United States Navy for 11 years and 9 months, (iii) had an accrued interest in the United States Military Retirement System in the amount of $775.75 per month, (iv) the community interest in the United States Military Retirement System was 100%, and (v) Karen Ruth Donovan’s (formerly Karen Ruth Baker) community interest was 50%.
IT IS THEREFORE ORDERED AND DECREED that Karen Ruth Donovan have judgment against and recover from Michael Allen Baker the sum of $387.87 per month of the disposable military retirement pay of Michael Allen Baker.
Motion for Enforcement and Clarification
In his sole issue, Baker asserts that the trial court erred in awarding Donovan $387.87 per month of his military retirement benefits because the trial court failed to take into account his VA disability pay and, thus, failed to reduce the retirement pay by the amount of disability pay. We disagree.
In a divorce, a trial court shall divide the parties’ marital estate in a manner that the court determines is just and right, having regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (Vernon 2003). However, once the marital estate is divided, a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. Tex. Fam. Code Ann. § 9.007 (b) (Vernon 2003). An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property. Tex. Fam. Code Ann. § 9.007 (a) (Vernon 2003). An order that amends, modifies, alters, or changes the division of property made or approved in a final decree of divorce is beyond the trial court’s power and is unenforceable. Tex. Fam. Code Ann. § 9.007 (b).
If the trial court finds that the original form of the division of property is not specific enough to be enforceable by contempt, it may render a clarifying order setting forth specific terms to enforce compliance with the original division of property awarded by the divorce decree. See Tex. Fam. Code Ann. § 9.008 (Vernon 2003). Clarifying orders may more precisely specify the manner of carrying out the property division previously ordered so long as the substantive division of the property is not altered. McPherren v. McPherren, 967 S.W.2d 485, 490 (Tex. App.—El Paso 1998, no pet.).
We review a trial court’s denial of a motion for a clarification order for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner or without reference to any guiding rules and principles or erroneously exercises its power by making a choice that was not within the range of choices permitted by law. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
In this case, Donovan filed a document with the trial court entitled “Petition for Enforcement and Clarification.” In the petition, Donovan specifically requested the trial court to issue an order that would require Baker to deliver a sum of money equivalent to the amount of her interest in his U.S. Military Retirement System retirement benefits due and owing to her. She also asked the court to enter a clarifying order restating the terms of the order, decree, or judgment in a manner specific enough to allow enforcement. Donovan requested that the clarifying order set forth the monthly payment that is due to her from Baker’s retirement benefits.
Baker argues that the trial court erred in entering the clarification order because it failed to reduce the amount of Donovan’s portion of Baker’s retirement benefit by the reduction in Baker’s retirement benefits attributed to his VA disability payment. He argues that state and federal law require that the non-military spouse’s portion of retirement benefits be reduced by the amount of VA disability benefits the military retiree elects. See Ex parte Burson, 615 S.W.2d 192, 196 (Tex. 1981) (holding that Texas courts cannot expressly or impliedly prohibit retired service member from unilaterally waiving some or all of his “disposable retired pay” after divorce in exchange for VA benefits); see also Freeman v. Freeman, 113 S.W.3d 277, 280 (Tex. App.—San Antonio 2003, no pet.) (recognizing that trial courts are prohibited under state and federal law from preventing future waiver of portion of retirement pay).
Although Freeman correctly states that a court cannot expressly or impliedly prohibit a retired service member from unilaterally waiving some or all of his disposable retired pay after divorce in exchange for VA benefits, if there is no appeal from the divorce court’s division of the property, that decree may not be collaterally attacked. Burson, 615 S.W.2d at 194. The record does not reflect that there was ever an appeal from the divorce court’s original division of the property.
Asking the court to consider Baker’s VA disability pay through a motion for enforcement and clarification and not a motion to modify the divorce decree would have required the trial court to alter or change the substantive division of property and, thus, was a request beyond the power of the trial court. See Tex. Fam. Code Ann. § 9.007(b). Such relief can only be considered upon the timely filing of a motion to modify the divorce decree. See, e.g., Bloomer v. Bloomer, 927 S.W.2d 118, 119 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (providing proper method to challenge characterization of military retirement benefits in final divorce decree). Accordingly, we hold that the trial court properly exercised its discretion when it awarded Donovan $387.87 per month of Baker’s military retirement.
We overrule Baker’s sole issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, concurring.