Reversed and Remanded and Memorandum Opinion filed March 7, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-04-00938-CV
____________
MICHAEL PATRICK O=DONOVAN, Appellant
V.
KATHLEEN SCHNEEMAN O=DONOVAN, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 02-01861
M E M O R A N D U M O P I N I O N
Appellant, Michael Patrick O=Donovan, appeals the trial court=s entry of a qualified domestic relations order (AQDRO@) in favor of appellee, Kathleen Schneeman O=Donovan. We reverse the QDRO and remand the cause to the trial court for a new evidentiary hearing. On June 7, 2002, the trial court signed an agreed final decree of divorce.[1] The divorce decree divided three pension plans, one of which, the Houston Firefighters= Relief and Retirement Fund (the ARetirement Fund@), is related to Michael=s employment with the Houston Fire Department and is the subject of this appeal. With respect to the Retirement Fund, the divorce decree awarded the following to Kathleen:
6. 50% of Respondent=s [Michael=s] interest in the Houston Firemen=s Pension System retirement benefits multiplied by a fraction, the numerator of which is 16 [years] and the denominator of which is the number of years of Respondent=s [Michael=s] total service with the Houston Fire Department.
The divorce decree similarly awarded the following to Michael:
4. 50% of Respondent=s [Michael=s] interest in the Houston Firemen=s Pension System retirement benefits multiplied by a fraction, the numerator of which is 16 years, and the denominator of which is the number of years of Respondent=s [Michael=s] total service with the Houston Fire Department.
The relevant statute allows for enrollment in a Deferred Retirement Option Plan (ADROP@) when a member has achieved twenty years= service. Tex. Rev. Civ. Stat. Ann. art. 6243e.2(1), ' 5(a) (Vernon Supp. 2005). The parties agree that at the time of the entry of the agreed decree of divorce, Michael had not been employed as a firefighter for twenty years and was not eligible to participate in the DROP and, at the time of this appeal, he was still not eligible to participate in the DROP.
The appellate record does not contain a copy of the Plan, the Plan procedures, or any testimony by the Plan Administrator. Nonetheless, apparently in accordance with the Plan Administrator=s refusal to award Kathleen an interest in any DROP account, the trial court entered the following QDRO:
5. Division of Benefit. As part of a just and right division of the estate of the parties, the Court hereby awards to the Alternate Payee FIFTY AND NO/100 PERCENT (50.00%) of each payment otherwise payable to Participant from the Plan multiplied by a fraction the numerator of which is the number of months Participant and Alternate Payee were married during which the Participant was employed and made contributions to the Plan and the denominator of which is the number of months Participant was employed and made contributions to the Plan as of date of Participant=s retirement or DROP entry date, whichever shall first occur. This paragraph does not award Alternate Payee any interest in any monthly amounts credited to any DROP account established for Participant under the terms of the Plan. . . .
6. DROP Account. Notwithstanding any other provision of this Order, Alternate Payee shall not share in any portion of the contributions to or distributions from a DROP account established under the Plan on behalf of Participant.[2]
Because the Plan Administrator considers the formula cut-off date to be the Adate of participant=s retirement or DROP entry date, whichever shall first occur,@ the Administrator purportedly will not pay Kathleen any benefits from any potential DROP account, and the trial court=s order reflects that. However, the trial court also included a Asupplemental provision@ in its order directing Michael, as constructive trustee, to pay Kathleen her pro rata share of any payment he may receive from any potential DROP account:
This portion of this Order is intended to describe in detail certain additional benefits under the Plan awarded to Kathleen Schneeman O=Donovan in the Agreed Final Decree of Divorce in this Matter. Certain Plan rules and procedures relating to the qualification and administration of QDROs prohibit the payment of certain benefits to Kathleen Schneeman O=Donovan that have accrued during the parties= marriage. This Order is intended to set forth the Court=s order with respect to those benefits.
The following paragraphs of this Order are not intended to be portions of the Qualified Domestic Relations Order entered in this matter, but are intended to be additional orders of the Court related to the Plan nonetheless. The following paragraphs are not intended to be qualification issues related to the status of this Order as a qualified domestic relations order as set forth in Chapter 804, Title 8, Texas Government Code and in applicable plan rules. The following paragraphs do not require any action by the Plan.[3]
The Afollowing paragraphs@ referenced in the supplemental provision describe additional benefits awarded to Kathleen, which include portions of the DROP account, as well as future disability pension benefits,[4] annual supplemental benefits, etc.
As previously observed, the Plan and Plan procedures are not included in the record, and there is no testimony from the Plan Administrator concerning the Plan that was in effect at the time of the agreed divorce decree. Without such evidence, we cannot ascertain whether the subject order complies with the agreed decree of divorce.
Accordingly, the order of the trial court is reversed and we remand this case to the trial court for a new evidentiary hearing consistent with this opinion.
/s/ Margaret Garner Mirabal
Senior Justice
Judgment rendered and Memorandum Opinion filed March 7, 2006.
Panel consists of Justices, Frost, Seymore, and Mirabal.[5]
[1] The parties were married for almost 16 years.
[2] Emphasis in original.
[3] Emphasis in original.
[4] Michael was not receiving disability benefits at the time of the divorce, or at the time of this appeal.
[5] Senior Justice Margaret Garner Mirabal sitting by assignment.