Timothy Parrish v. Trisha Dunahoo

ACCEPTED 07150029CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/17/2015 5:30:49 PM Vivian Long, Clerk CAUSE NO. 07-15-00029-CV FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS In the Court of Appeals 2/17/2015 5:30:49 PM ,, I For the Seventh Court of Appeals District VIVIAN LONG I CLERK Amarillo, Texas 1 I ] I J TIMOTHY PARRISH APPELLANT vs. TRISHA DUNAHOO APPELLEE ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL COUNTY, APPELLANT TIMOTHY PARRISH'S BRIEF CORBIN & ASSOCIATES, P.C., Attorneys ASHLEY CLAPPER SBN: 24076317 DANIEL A. CORBIN SBN: 04814300 603 North 81h Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 legal@corbinlegalteam.com Counsel for Timothy Parrish  TABLE OF CONTENTS IDENTITY OF THE PARTIES ..................................... 2 INDEX OF AUTHORITIES ...................................... 3 STANDARD OF REVIEW....................................... 4 STATEMENT OF THE CASE ..................................... 5 STATEMENT OF THE ISSUES PRESENTED ........................ 6 STATEMENT OF THE FACTS ................................... 7-10 SUMMARY OF THE ARGUMENT ............................... 11 ARGUMENT. ............................................... 12-22 PRAYER FOR RELIEF .......................................... 23 CERTIFICATE OF WORD COUNT ................................ 24 CERTIFICATE OF SERVICE..................................... 25 APPENDIX .................................................... 26 ·'' 1  IDENTITY OF THE PARTIES AND ATTORNEYS ATTORNEYS ASHLEY CLAPPER DANIEL CORBIN Corbin & Associates, P.C. 603 N. 8th Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 Attorneys for Timothy Parrish BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Dunahoo PARTIES Timothy Parrish, Appellant Trisha Dunahoo, Formerly Trisha Parrish, Appellee (hereinafter Trisha Parrish) 2  INDEX OF AUTHORITIES TEXAS CASES: Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987) ..................... 19 Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13, 17,18 Joynerv. Joyner, 352 S.W. 3d 746 (Tex. App.-SanAntonio 2011) ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 16 Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) .............. 12, 13, 15 Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir. Tex. Dec. 19, 2014) ........................................ 12 STATUTES: Tex. Fam. Code§ 9.006 (2014) .................................. 12 Tex. Fam. Code§ 9.007 (2014) ................................ 12, 13 Tex. Fam. Code§ 9.008 (2014) .................................. 12 3  STANDARD OF REVIEW The standard of review for determining whether the district court had subject matter jurisdiction is de novo. Joyner v. Joyner, 352 S.W. 3d 746, 749 (Tex. App.-San Antonio 2011). "The issue of jurisdiction in this case turns on whether the trial court modified or clarified the DRO." Id. at 749. 4  STATEMENT OF THE CASE Timothy Parrish filed a MotiQn for Clarification of Military Retirement in the 146th Judicial District Court seeking to clarify the award of military retirement awarded to Trisha Parrish at the conclusion of his military service. C.R. 153. Trisha Parrish filed a Motion for Enforcement of Military Retirement. Subsequently, Trisha Parrish filed a Supplemental Motion to Enforce Military Retirement. C.R. 185. The district court heard the Motion for Clarification of Military Retirement on May 6, 2014. C.R. 198. The district court took the matter under advisement and issued a Memorandum Ruling on May 22, 2014. C.R. 198. The Court ordered that the End ofAward provision contained in the 2008 Domestic Relations Order should be removed and a new Domestic Relations Order should be entered. (Exhibit C)'. The Court signed a new Domestic Relations Order on November 12, 2014. (Exhibit D? 'Memorandum Ruling 2 2014 Domestic Relations Order 5  STATEMENT OF THE ISSUES PRESENTED 1. Did the District Court have subject matter jurisdiction to remove the End ofAward provision thereby modifYing the award of property as originally set out in the Final Decree of Divorce and the 2008 Domestic Relations Order? 2. Was the removal of the End ofAward provision from the 2008 Domestic Relations Order barred by res judicata and therefore an error for the District Court remove the provision? 6  STATEMENT OF FACTS Timothy Parrish and Trisha Parrish were married on October 3, 1994. C.R. 5. Subsequently the couple divorced on April30, 2008 at which time the Judge signed a Final Decree of Divorce and a Domestic Relations Order. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The divorce decree and DRO were signed at the same time. (Trial Tr. Vol. 1, p. 9, May 6, 2014). The Final Decree of Divorce states in relevant part "The Court finds that the parties have entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance." (Exhibit Al To the extent permitted by law, the parties stipulate that the agreement is enforceable as a contract." (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Domestic Relations Order is incorporated into the final decree of divorce specifically on pages 15 and 16. (Exhibit At The parties signed the Final Decree of Divorce approving it as to both form and substance. (Exhibit A) 5 The Domestic Relations Order contained a provision that ended the award of military retirement to Trisha Parrish after she received the retirement for 3 Fina1 Decree of Divorce, page 1 4 Final Decree of Divorce, page 15-16 5 Final Decree of Divorce, page 20 7  thirteen years and four months (herein after known as the End ofAward provision). (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). Trisha Parrish signed the Domestic Relations Order, approving it as to both form and substance, and had it notarized prior to the entry of the Domestic Relations Order. (Trial Tr. Vol. 1, p. 6, May 6, 2014 and Exhibit B 6). Timothy Parrish continued his military service and retired in December 2011. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The Domestic Relations Order was submitted to Department Finance Accounting Services (herein after "DFAS"). (Trial Tr. Vol. 1, p. 5, May 6, 2014). Timothy Parrish subsequently filed a Motion for Clarification of Military Retirement Division on January 4, 2012 to clarify the amount of the award of the military ~j ~:1 J retirement Trisha Parrish was going to receive. (Trial Tr. Vol. 1, p. 6, May 6, :'I :j .I 'I ., ~ --~ 2014). Trisha Parrish filed a Petition for Enforcement of Retirement on November "'I 25, 2013 requesting the court to enforce the military retirement. C.R. 167. Subsequently, Trisha Parrish filed a Supplemental Petition for Enforcement of Retirement asking the court to remove the provision ending the award of military retirement that she would receive from the Domestic Relations Order. (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). The court held a hearing on May 6, 2014 regarding the clarification. C.R. 198. Timothy Parrish argued that the challenge to the End of 6 2008 Domestic Relations Order, page 5. 8 Award provision was barred by res judicata. (Trial Tr. Vol. 1, p. 6, May 6, 2014). Trisha Parrish argued that the court was not barred by res judicata because the provision was riot contained in the divorce decree but contained in the DRO. (Trial Tr. Vol. 1, p 16, May 6, 20 14). She reasoned that "the divorce decree is the substantive contract of the parties," and that the DRO is not substantive. (Trial Tr. Vol. 1, p. 9, May 6, 2014). "The contract was the Final Decree of Divorce, and all a Domestic Relations Order does is effectuates what the court has ordered." (Trial Tr. Vol. 1, p. 11, May 6, 2014). She goes on to say that Domestic Relations Orders are never incorporated by reference, and in this case are not incorporated by reference." (Trial Tr. Vol. 1, p. 16, May 6, 2014 ). Trisha Parrish further argues that the court has unlimited jurisdiction to amend a DRO. (Trial Tr. Vol. 1, p. 9, May 6, 2014). She argues that the End ofAward provision divests her of her separate property rights because she is entitled to the retirement until the death of herself or the death of Parrish. (Trial Tr. Vol. 1, p. 10, May 6, 2014). Parrish's rebuttal argument was that the 2008 DRO was incorporated into the Final Decree of Divorce and was a contract between the parties. (Trial Tr. Vol. 1, p.13, May 6, 2014). He argued that Trisha Parrish was trying to undo a substantive property division that was a final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). He points out that she had 30 days to file an appeal and she made no attempt to appeal 9 the final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Court took the matter of clarification under advisement and subsequently issued a memorandum ruling. (Trial Tr. Vol. 1, p. 21, May 6, 2014; Exhibit C7). The memorandum ruling clarified the calculation for Trisha Parrish's portion of the military retirement. (Exhibit C8). Additionally, the memorandum ruling removed the provision ending the award of military retirement from the Domestic Relations Order. (Exhibit C9). On April 30, 2008 the District Court signed the amended Domestic Relations Order. (Exhibit D 10). Timothy Parrish filed a notice of appeal on December 10, 2014 to challenge the district court's ruling and entry of the 2014 Domestic Relations Order. C.R. 220. 7 Memorandum of Ruling. 'Memorandum of Ruling 9 Memorandum of Ruling 10 2014 Domestic Relations Order 10  SUMMARY OF THE ARGUMENT The district court did not have subject matter jurisdiction to remove the End ofAward provision in the 2008 Domestic Relations Order. The district court has the power to clarify any ambiguous terms of the Domestic Relations Order but does not have jurisdiction to modify or amend the terms of the Domestic Relations Order if the terms are not ambiguous. The End ofAward provision was not ambiguous and therefore was a modification of a substantive property division that was beyond the jurisdiction of the district court. Additionally, the terms of the 2008 Domestic Relations Order constitute a final judgment. The removal of the End ofAward provision is a collateral attack on a final judgment and is barred by res judicata. 11  ARGUMENT I. THE DISTRICT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO REMOVE THE PROVISION ENDING THE AWARD OF MILITARY RETIREMENT BECAUSE IT MODIFIED AN UNAMBIGUOUS SUBSTANTIVE PROPERTY DIVISION FROM THE DIVORCE DECREE AND THE 2008 DOMESTIC RELATIONS ORDER. The Texas Family Code gives the trial court that rendered a divorce decree jurisdiction to enforce and clarify the property division contained in that decree. Tex. Fam. Code §9.006-9.008. "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio 2011). Subject matter jurisdiction cannot be waived and may be raised for the first time on appeal. Statin v. Deutsche Bank Nat 'l Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir, Tex. Dec. 19, 2014). "Judgments should be construed as a whole to harmonize and give effect to the entire decree." Shanks v. Treadway, 110 S.W. 3d 444, 447. "If the decree, when read as a whole, is unambiguous as to the property's disposition, the court must effectuate the order in light of the literal language used." !d. "When the signing of the DRO occurs 12 contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." Hicks v. Hicks 348 S.W. 3d 281, 284 (Tex. App-Houston [14th dist.] 2011). The trial court is without power to modify an unambiguous property division contained in a divorce decree. Tex. Fam. Code 9.007(b), Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio 20 II). "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Id. The Court in Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) signed a divorce decree in 1981 that awarded the wife a 25% interest in the husband's retirement benefits. There was no Domestic Relations Order entered at that time. Id at 445. In 1998, seventeen years later, the husband filed a Motion to Sign Qualified Domestic Relations Order. /d. His contention was that the wife's retirement benefits should be calculated as 25% as of the date of divorce. Id. The Wife asserted that the QDRO calculation was barred by res judicata and should be interpreted as a collateral attack on the property division set out in the divorce decree. Id. The trial court valued the wife's retirement benefits as of the date of divorce. Id at 446. The Court of Appeals reversed the trial court stating the "trial court's QDRO impermissibly altered the substantive division of property made in 13 the original divorce decree." !d. The Supreme Court of Texas affirmed the court of appeals. !d. The Supreme Court of Texas reasoned that the decree as written was unambiguous and was therefore not subject to clarification. Id at 447. They further assert that "the fact that the district court erroneously applied the law when it entered the divorce decree does not alter the decree's plain language." !d. In Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011) the husband asserts that the trial court lacked jurisdiction to enter a Domestic Relations Order that impermissibly modified the substantive provisions of his military retirement. !d. The parties divorced in 2001 at which time the court entered a divorce decree that awarded the wife a portion of the husbands military retirement "and stated that her portion would be 'more particularly defmed in a Domestic Relations Order."' Id at 74 7-7 48. The Court entered a Domestic Relations Order at the same time that awarded the wife 50% of the community share of the husband's retirement in a hypothetical calculation. !d. in 2005, after the husband retired, DF AS began paying the wife 50% of all accrued amounts of the husband's retirement. !d. The husband filed to clarify the award of military retirement. !d. The court entered an amended Domestic Relations Order that changed the wife's retirement to 37 percent. !d. The husband appealed the judgment stating that it was an impermissible change of the substantive property 14 division. Jd at 749. The court found that the award to the wife was "not ambiguous because it is expressed witb mathematical certainty," and was therefore not within tbe subject matter jurisdiction oftbe court to change. Jd at 750. Timothy Parrish presents an argument similar to Shanks, and contends tbat the district court did not have subject matter jurisdiction to remove the End of Award provision from the 2008 Domestic Relations Order because the provision was not ambiguous. This issue is raised for tbe first time on appeal. In this case, the trial court approved and signed a Final Decree of Divorce and Domestic Relations Order in 2008 tbat contained the End OfAward provision. Much like the specified percentage in Shanks was unambiguous this provision is not ambiguous. Trisha Parrish never asserts tbat the End ofAward provision is ambiguous and therefore subject to clarification. Instead, Trisha Parrish asserts that the original provision was not permissible under the law at the time the decree and the DRO were signed. However, the Supreme Court of Texas has struck down this argument in Shanks. The district court only has subject matter jurisdiction to clarifY an ambiguous term which is not the case here. The plain language of tbe 2008 Domestic Relations Order clearly stated that the award would end after she received the retirement for 13 years and 4 months after it began or until the death of one of the parties. The district court in this case wrongfully changed the award 15 that was set out in the original judgment in plain language which is beyond the scope of the court's subject matter jurisdiction. Additionally, the court in Joyner found that the court was without power to amend the DRO when the percentage was fixed with a mathematical certainty. Unlike the award in Joyner this case does not have a mathematical certainty. However, the language in the End ofAward provision specifies a total number of years and months that Trisha Parrish is to receive the award of military retirement. The specific end date is unambiguous and is not open to interpretation and is therefore, outside of the subject matter jurisdiction of the court to remove. Furthermore, Trisha Parrish argues that the Domestic Relations Order is simply an effectuating document and that the actual judgment is the Final Decree of Divorce that is subject to clarification. This contention is flawed in two different respects. First, the plain language ofthe Final Decree of Divorce states that the terms are "more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference." (Exhibit A) 11 • The justification she gives to the court is basically that even though the Final Decree of Divorce contains that language it does not really mean what 11 Final Decree of Divorce, page 15-16 16  the plain language states. This argument is simply without merit. The terms of the Final Decree of Divorce are "enforceable as a contract," including the provision that incorporates the 2008 Domestic Relations Order into the Final Decree of Divorce. Furthermore, by signing the Final Decree of Divorce Trisha Parrish agreed to the terms of the 2008 Domestic Relations Order that was incorporated into the decree, specifically the End ofAward provision. In addition to the plain language of the Final Decree of Divorce that incorporates the terms of the 2008 DRO, the courts have addressed this issue in Hicks v. Hicks, 348 S.W.3d 281 (Tex. App. -Houston [141h dist.] 2011). The parties in Hicks entered into an agreed Final Decree of Divorce which was signed by the court at the same time the Domestic Relations Order was signed. ld at 282. The divorce decree expressly deleted any reference to the DRO contained in the decree. ld at 284. The DRO contained a provision "designating Wife as the former spouse beneficiary of the [husband's] Survivor Benefits Plan when no such designation was made in the final decree of divorce." Id at 283. The husband appealed the judgment stating that the court erred in signing the DRO with the additional provision as it was not contained in the divorce decree. ld. The Court found that the general rule is "when the signing of the DRO occurs 17 ,j ' ' contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." !d. at 284. The court reasoned that in this spec'ific case, because the "references to the DRO are expressly deleted from the agreed decree", that the court was to view the DRO as a separate order and not to be read as part of the agreed divorce decree. Id. Trisha Parrish urges the court to view the Final Decree of Divorce as the final judgment and the 2008 DRO as an effectuating document, whose terms are not to be read as part of the substantive final judgment much like the Appellant in Hicks. However, unlike Hicks, the Final Decree of Divorce in this case specifically points to the 2008 Domestic Relations Order as an extension of the final decree to be "incorporated verbatim in [the final decree] by reference." (Exhibit A). In applying Hicks to this case the court must view the 2008 Domestic Relations Order to be read in conjunction with the divorce decree and the terms contained in the 2008 DRO should be treated as those contained in the divorce decree. When the Court reads the Final Decree of Divorce and the 2008 Domestic Relations Order as incorporated into the decree by virtue of the documents plain language, and under the court's decision in Hicks v. Hicks, 348 S.W. 3d 281 (Tex. 18 App.-Houston[14th dist.] 2011), as a whole, the court will find that the End of Award provision is unambiguous and therefore beyond the subject matter jurisdiction of the court to clarifY, As such, the Seventh Court of Appeals should reverse the ruling of the 146th Judicial District Court. II. THE DISTRICT COURT ERRED IN REMOVING THE END OF A WARD PROVISION FROM THE DOMESTIC RELATIONS ORDER BECAUSE A COLLATERAL ATTACK WAS BARRED BY RES JUDICATA. "The doctrine of Res Judicata bars relitigation of issues decided in a final judgment." Cookv. Cameron, 733 S.W. 2d 137, 140 (Tex. 1987). Errors other than lack of jurisdiction render the judgment merely voidable and must be attacked within the prescribed time limits. Id. "A judgment is void only when it is apparent that the court rendering the judgment 'had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court."' !d. "Errors other than lack of jurisdiction render a judgment merely voidable and must be attacked within prescribed time limits." !d. In Cookv. Cameron733 S.W. 2d 137 (Tex. 1987), the court signed a final decree in March 1979 that awarded thewife 35% of the husbands gross retired pay. Id at 138. The court also added a contingent award that would make the 19 award to the wife an amount equal to 45% ifthere were further litigation in the case, other than a direct appeal. Id at 139. There was a direct appeal taken (Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) and the court affirmed the award of 35% of the gross retirement to the wife but clarified dates that were not to be included in the calculation. !d. After the husband retired he refused to pay the wife 35% of the gross retirement because DFAS was paying 35% of the net retirement. !d. The wife subsequently filed an enforcement. !d. The trial court refused to enforce the decree as did the court of appeals stating that the amount of the award affirmed in the Texas Supreme Court opinion in Cameron v. Cameron, 608 S.W. 2d 748 (Tex. Civ. App.--Corpus Christie 1980) was ambiguous and subject to clarification. !d. The Supreme Court of Texas found that the refusal of the trial court and the appellate court to enforce the ruling in Cameron was a collateral attack on a final judgment. Id at 140. The Supreme Court of Texas reasoned that the doctrine of res judicata applied to the final judgment and the collateral attack was without merit. !d. The husband further argued that the judgment was void because the contingent award divested him of his separate property rights and was therefore subject to collateral attack. !d. The Court found that there had not been a direct appeal of the contingent award during the prescribed time limits and therefore that provision 20 was not subject to collateral attack. I d. The Court reasoned that "even though the contingent award was improper, the divorce decree, including the contingent penalty, is not subject to Cameron's collateral attack. Res judicata also applies here to prevent relitigation of issues which should have been litigated in an earlier appeal." Id. This case is almost identical to Cook. Timothy Parrish argued that Trisha Parrish is attempting to change substantive property division by removing the End ofAward provision contained in the 2008 Domestic Relations Order. He reasons that this provision in the final judgment cannot be collaterally attacked because it is barred by Res Judicata. The Court signed the Final Decree of Divorce and Domestic Relations Order on April 30, 2008 at which time the judgment became final. Trisha Parrish had 30 days to file an appeal of that judgment if she disagreed with the judgment, which she failed to do. Additionally, Trisha Parrish makes the exact same argument contained in Cook, that the trial court improperly divested her of her separate property rights. However, the Texas Supreme Court struck down that exact argument because it is one that should have been appealed directly after the judgment. The law does not allow Trisha Parrish to return to court six years later to attempt to change a property division that she is no longer happy with, that she agreed to in the original documents. 21  The Final Decree of Divorce and the Domestic Relations Order became a final judgment of the court 30 days after they were signed in 2008. Trisha Parrish did not appeal the substantive property division within the prescribed time limits. Therefore, the Seventh Court of Appeals should reverse the 146th District Court's ruling because the attack on the substantive property division was barred by res judicata. 22  PRAYER FOR RELIEF .I "-1 ,-·1 WHEREFORE, PREMISES CONSIDERED, Appellant, TIMOTHY ·' PARRJSH, respectfully prays this Court reverse the Trial Court's ruling. Appellant respectfully prays for any such other and further reliefto which Appellant may be entitled to at Jaw or in equity. Respectfully submitted, CORBIN & ASSOCIATES, PC ATTORNEYS 603 North gm Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 By:UUJCv) ASHLEY CLAPPER State Bar No. 24076317 DANIEL A. CORBIN State BarNo. 048I4300 Attorneys for Appellant : ..1' t: !-_; 23  CERTIFICATE OF SERVICE Pursuant to TEX. R. APP. P. 9.4(i), I certify that a copy ofthis brief has a word count of 4,193 words as counted by Wordperfect word count feature. 24  CERTIFICATE OF SERVICE Pursuant to TEX. R. APP. P. 9.5, I certify that a copy of this brief has been mailed via U.S. Mail, postage prepared to the following on d-/7- 6 . BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Ann Parrish 25  APPENDIX EXHIBITS A. Final Decree of Divorce B. 2008 Domestic Relations Order C. Memorandum Ruling D. 2014 Domestic Relations Order E. 2014 Domestic Relations Order Nunc Pro Tunc CASE LAW ,, ',, 1. Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.--corpus Christi 1980) 2. Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987) 3. Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ~- ; 4. Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011) 5. Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) 6. Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir. Tex. Dec. 19, 2014). 26  Puge 1 LexisNexis(i) Pnu1t\rchihnld C::uucrnn, Appellant,''· Sue Akers Cameron, Appellee No. 1578 Court of Civil AJ)pcals of Tcx11.s 1 Thirrc-clllh District, Corpu_s Chrisli 608.1: Wld 748; HSII Tex. App. tEXTS 40211 Oclulu:r 23, 1980 SUBSEQUENT HISTORY: ['*I] Rehearing Denied l*7SO] A review of the pertinent fncts of this case November 20 1 19SO. arc as follows. App~llanL entered the United Stales Air Force on .hmc 22, 1954, in New York. l**2] In 1955, PRIOR HISTORY: On Appeal from the 28th Dislrict appelhmt \\·as :;tationcd at Lubbock Air Force Base in Court ofNucccs County, Tcxns Texas. The parties married in Midland, Tcws on September 29, 1957, and departed that day for California. The panics lived in Califomia_. n community property COLI!"\SEL: For Appellant: Charlc' R. Cunninghmll · state, for thrc_c months. Thereafter, the· parties lived in Corpw:: ChristL TX. vnrious common law st.1tes. Appd1anl retired from the military m1 September I. 1977, at Grissom Air Force For Appdkc: ScouT. Cook- Corpus Christi, TX. Ba'iC, TJlCiiana, The partics_thcn moved tnCorpus Christi, Texas.. ,JLJDGI~S: Horace S. Voung, l\ssodatc Justice. The pariics were di\"Orccd on March 29~ 1979. AI OPIN!Ol"\ liY: YOUNG the time of' trinl, appellant was receiving Sl 1 507Jl pL'r month under hi_s military rctiremclll bencCit'i and caming OPINIO:'\ nn annual salary of SJJ,()OO.OO as an accounting mstructor i.ll Corpus Christi State University. Appellee, [*749] In this appeal from a part of the trial court's at the time of lrlal, wa~ earning an annual salary of judg-mclll in a divorce suit, Paul Archibald Cameron is $18,000.00 ns the DircCior or Placement at Del Mnr uppcllaut and Sue Akers Cij.mcron is. appcllcl!. The College in Corpus ChristL judgment granted the divorce, appointed appellee as 1 n:maging conscrvatQr o'f the one minor child, ordered Appellnnl, ln points of crrms, one, two and- seven. appellant 10 pay child support, u_nd divided the proper!); contends the trial__c:ourt erred in divesting him of title to of the parlic!'. AltJ10ugb there urc sOme fifteen points of his separnte propeny _military retir-ement bencflls. Jt is cnor raised by appellalll, the central issue in this uppcal well sclllt!d lhat an- interest in a mililmy rclircmc.nt plan is: mvnlvts the trial court'$ divestiture of' appellant's title to an eat·ncd property rlght. This property right accrues by his sep-arah': pen:ollill property. We hold that ~uch fCtlSOJ1 or tile years of Service spct1l in the militmy [**3J divestiture is not permissible by a trial com1 under the by thnt spouse. B1ryby 11• Busby, 4S7 S. JV.2d 551 (Te:r.Sup. recent Supreme Cmnt case of Campbd/1'. Campbell. 13 1970); Cearley "· Cearley, 544 S.W.2d 661 (Tex.Sup. Tcx.Supp.CU :191 (June 4, 1980). We accordingly /976). Milil:_uy retirement, being an earned property rc~1 crsc and rcnumd in part. rig.hl 1 is sul~cct to division upon dissolution- of the  Page 2 608 S.W.2d 748, •750; 1980 Tex. App. LEXIS 4020, ••3 marriage. The inception of title rule is applied to receipt. dctcnninc the existence of a community property interest in retirement benefits. Busby ~~. Busby, supra: Mitchim v. In construing lhe meaning of a judgment, the entire Mitdrim, 509 S. W.ld 710 (Tcx.Civ.App. -- Austin 1974), contents of the inslrUmenl [ .. 5] must be considered. re••'d on olhcr grounds, 518 S.W:ld J~] (fex.Sup. 1975). The judgmcm should be read as a whole and each pari lienee, the military rt:tircmcnt benefits which accrue should be interpreted with rcrcrcncc to its entirety. Lou~ during the marriage while residing in common law states S1ar Cement Cal'paralion v. Fair, 467 S. W.2d 401 and lhc benefits which accrue while single are 1hc (Tex.Sup. 1971); State v. Star·/ey, 413 S.lfl.]d 451 separate property of the spouse in lhe military. (Tcx.Civ.App. --Corpus Chrisli 1967, no wril). We hold Conversely. the retircmcna benefits which accrue while lhe judgmcnl clearly di\•cslcd appellant or lille to residing in community property states arc community thirty-five pcrccnl of his retirement benefits. property. Busby ''· Busby, s11pra; Mite/tim \'. Mile/Jim, [•751) Prior lo lhe rcccnl Supreme Court case of sup,·a. Campbell 1'. Cumphe/1, supra, several or the Courts of Appellee counters appellant's divestiture theory in Civil Appeals had held !hal while a lrial court tnay nol her supplemental brief, filed after lhc Campbell decision, divest one spouse of title to his or her separate real by stating that lhe trial court did not aclually divest property and transfer Iitie 10 the otl1er spouse [Eggemeyer appcllanl of tide lo his scparale personal property. We 1•. Eggemeyer, 554 S. lV.ld JJ7 (fex.Sup. /977)/lhc lrial disagree. court could divide the separate personal property of the parties. The Supreme Court. however, in Campbr!ll The judgrnem reads, in part, as follows: clearly slaled lhal lhcy consider lhcir holding in Eggemeyer as stare decisis and hence controlling upon "Paul A. (**4] Cameron, Jr. is awarded the issue of whether a trial conn may divest a spouse of as his sole and separate property all his or her separnlc personal property. The following interest. separate and community, in the language from Em:emeyer was quoled in Campbell: United States Milital}' Retirement Plan described above, subjccl only 10 lhe life "Trial Courts have a broad latitude in the interest of Sue A. Cameron and the di\·ision of the [.,..6) marital community Sun•ivor Benefit Package as hereinabove propeny, but that discretion docs not specified." extend to a taking of the fcc to the separate property of the one and its donation to the This language is found in the judgment under the heading other.•• ''Division of Military RctircmcnL'' The conn also ordered lhe following division of property: "A. Property lo Petitio11er. Petitioner is The Court accordingly held thai a lrial coun may not awarded the following as Pelitioner's sole divest one spouse of his or her title to separate personal and separale property, and Respondenl is property and trunsrcr Iitie 10 the olher spouse. Hence, lhe hereby divesled or all righls, lille and divesliture of appcllanl's lide 10 lhirly-five pcrcenl of his in1eres1 in and lo such property: ... (8) separate propcny military retirement benefits was 1ha1 percentage of lhe United States enoneous. Appellant's points of error one, two and seven Milit.ary Retirement of Paul A. Cameron, are sustained. Jr. in accordance with the terms hereinafter SCI rortb." Appellan1, in his third point of error~ contends that lhc lrial court erred in awarding one-half of lhe Unilcd The judgment funhcr rcciled lhal 1hc Uni1ed Sones States Savings Bonds to appellee. These bonds were Government would not directly rorward 10 appellee- her acquired from runds withheld from appellant•s military separate share of lhe retirement benefits. The court, pay. The record rcOccts that the appellant was in the lhcrcforc, made appellant constructive trustee of mililary for a lola I or 278 monlhs. or lhese 278 monlhs, thiny-five percent of thc retirement benefits and ordered appellant was single for 39 months. During the him to pay such sum to appellee within fh•e days of remaining 239 months the parties resided in common law states for 233 months and in a community propcny slate  Page 3 608 S.W.2d 748, •751; 1980 Tex. App.LEXJS 4020, ••6 for three months. We hold, therefore. that 275/278 of the making a claim against the panics for the 52,800.00 paid United Stales Savings Bonds were the separate property in error. of appellant. As we ha\'C mentioned, a trial court n1ay not divest one spouse ln7) of the title to his or her All propeny possessed by eitl1cr spouse at the separate property and transfer the same lO the other dissolution of the mnrriage [US] is presumed to be spouse. Campbell "· Campbell. supra. Appellant's third community property. Tex.Fam.Codc Ann. § 5.02. poinl of error is sustained. Appellant had the burden of rebutting the presumption lhat the sa\'ings account was part of the community Appellant, in his fifth point of error, contends that estate. Tan·er 1'. Tan'er, 394 S.lf'.ld 780 (fa.Sup. the trial coun erred in ordering him to pay a $2,800.00 1965); Cel,•ames ''· Cen•a111es, 59/ S.lf~2cl 332 debt This debt arose as a resuh of a savings account in (Tex.Civ.App. --Corpus Christi 1979, no writ). We find Wochovia Bank and Trust Company, Kingston, North that appellant has failed to overcome this burden. Carolina. There was testimony in the lower court with Appellant's fifih poinl of error is overruled. regard to the savings account Appellant testified that il was his separate property account Appellee testified that After a careful review of appellant's remaining points she was authorized to draw on the account and it was, of error and appellee's eross-poinl, we deem it therefore. a jointly owned sa\'ings account of the panics. unnecessary 10 consider these poinrs in light of our holding. Prior to lhe separation of the panics, appellee withdrew 52,800.00 from the savings account. This sum Under Rule 434, T.R.C.P., that the ponion of the was approximately one-half of the balance. Appellant judgment dividing the property of the partie.~ is reversed, thcrcaficr withdrew the remaining balance of the account !levered and remanded to the trial eoun for a new trial on plus an additional $2,800.00. Tile additional $2,800.00 that issue. The remainder of the judgment is affirmed. was withdrawn by appellant due to an error of the bank. The costs of this appeal are taXed one-half to each of the The bank, at the time of trial, was in the process of panics. .. ,  Page 1 LexisNexis® Sue Akers Cr1ok 1 formerly Sue Akers C:uneroni Jlclitinncr~ \'.Paul Archibald Cameron, Hcspondcnt No. C-4658 SUPREME COURT OF TEXAS 733S.W:2d !37; 1987Te>e IEYIS 369; JO Tex. Sup• .I. 550 .July 8, 1987, Decided PRIOR HISTORY: ['*I] FROM NIJECES 690. We reverse the. judgmcnl of the court of 1\f)pc.als nnd COUNTY TIIJRTEENHI DISTRICT. render judgmc.nt fm Conk. Sue Cnok, fonnerly Sue Cameron, und P;ml COLJJ\SEL: Dudley, Mr. Willi:un A.._ Harri:i, Cook. Camero!! divorced in l\·lUS Christi 1980). In TC\'ming JUDGES~ franklin S. Sj1ear:t, Jwaice. Concurring and that cou11 o f':uprcals' judgment, rhi.'l court stated: dissenthig opinlon by Wallace. The .divorce d~crc:c, d;:ttcJ March 29, OPINION lJY: SPEARS I ?79. nwards Sue Cameron hthirty-fivc perCclll (35 6,·0) of the gross prc...tcnl and OPJNJO~ futt.tt~ Military Retirement presently being received. n Sue Olmeron is entit-led to ["13Sj ON MOTION FOil REIIEAilJN(; recover that thirty-fi\'c J1etcent hut nol \Vc gmnt the motion for n.:hcaring. withdraw the !'rom the perind from ?\·farch .25, 1979 to June 25, 198 I. 11u~refore, we affirm thnt judgment and opiniou of March l~j J9~..:7, anU :iUbstitutc pari of' the trial court judgment awarding I his opinion. Sue Came-ron thirty-five percent of [~ J 39] This. is a post-judgment snit scekittg to enforce: our Lhc military retircmcnLpay .... (emphasis judgmcm in Cameron v. Cameron, 64 I S. H~2t! 210 (Te.\·, addeo) 1982). The trial court refused to nrdcr Paul Cameron to pny Sue Cook the difference between nur judgment 641 S.W2d 210,213. Our opinion further addr~.:sscd the afllrn1ing the divorce dr.cree_awnrding thirt.y-Hvc percent nwurd of .U.S. Saviugs Bonds. Ln tli~ conclu:~ion, this gross military rctit-cmc1u benefits und the govcrnn1ent's cnun hciU_rcgarding the military rcJitcJUellt bl:nefil.';: direct pnyment of lhirty-fivc percent net disposable \\:'e reverse that part of the: judgmcm of rerirt.!I11C11L The cmm of appeals nflinned. j()J S. Wld the cuun of uppcul~ that reversed the trial  Pagc2 733 S.W.2d 137, '139; 1987 Tex. LEXIS 369, "2; 30 Tex. Sup. J. 550 court's judgmcntlhat Sue Cameron rccciv~ Cameron her share of Military Retirement. . . ." 641 thirty-fi\•e percent of military retirement S. W..!d al 22.3. Even though the opinion earlier affinned pay, and we render judgment awarding the trial court's award of a gross percentage, the court of Sue Cameron her share of the military appeals st.Dted it was unclear whether ''her share of retirement pay but only from June 25, military retircmcnl" referred 10 gross or net disposable 1981. /d. ot22J. benefits. The court of appeals held the trial court had no jurisdiction (.. 5] to resolve the ambiguity or enforce the [•• 3] The divorce decree also granted Cook forty-jil'e judgment since the Supreme Coun had rendered our percent of Cameron's gross military retirement in the "ov.11 judgment." The court also affinned the uial court's cvcnl further litigation other 1han a direct appeal was refusal to award attorney's fees to Cook. required to enforce the award of tllil'ly-flve percenl gross. That provision was not appealed to this coun in On appeal here, Cook argues that the trial court and Cameron. the court of appeals erred in failing to enforce our Cmrwron judgment affinning the decree awarding This prcsenl action arose when Cameron disputed an thirty~tive percent of gross military retirement pay. Cook amount withdrawn by Cook fron1 a supcrccdcas bond on contends the trial coon had a duty to enforce the decree deposit whh the trial court. Cook returned to the trial as affinned. We agree. court that rendered the divorce decree and filed a n10tion for contempl against Cameron, a motion to enforce When an appellate coun affinns a trial court's judgment, and a motion in aid and clarification of judgment or renders a judgment which the trial court judgment. The trial court's order of July 25, 1983, held should have rendered, that judgment becomes the thai Cameron was required under this coun's judgmenl to judgment of both courts. Stale \'. Walker, 679 S.lf'.2d pay lhirty·five percent of his gross retiren1cn1 pay. The 484. 485 (Tex. 1984). "It is the duty of the trial court to trial court awarded Cook an equitable lien for the cnrorcc the judgment as [rendered)." C/Q• of Tyle•· v. St. arrcaragcs, but determined Cameron's non-compliance Louis S. W R.l'. Co., 405 S. W.2d JJO, 332 (Tex. 1966); see was in good faith. The court held him in contempt for not also TEX. FAM. CODE § 3.70) (Vernon Supp. furnishing an accounting statement Ia Cook, but refused 19R7)(enforccment of divorce decree). Cameron affinns to activate the contingent benefit provision awarding the trial court's decree of thirty~ti\'e percent gross military forty· five percent gross retirement. retirement pay. 641 S.W.ld ol 2/J. The trial court's judgment. therefore, became the judgment of this court, In June 1983, the United States Government began and the trial court erred in not enforcing the [.. 6] paying Mrs. Cook directly, but only in an amount equal judgment as rendered. 10 thirty-five t••4] percent of net dispo.r;able military retirement. Cameron refused lo pay the difference [•.140) Tile refusal or lhc courts below to enforce between our judgmenl and the government's direct the award of gross pay derives from their interpretation payment. Cook again rerumcd 10 lhe trial court in that the USFSPA only approves payment of net November, 1983 and filed a second amended motion for disposable retirement pay. While we recognize the trial contempt and a motion to enforce judgment, both of court's and the court of arpeals' concern that Cameron which lhe court denied. The trial court reasoned the may conflict with the USFSPA, Cameron affinncd the Unifonn Services Fonner Spouse's Protection Act /0 award of gross pay, and that judgment became final. The U.S.C. § 1408 (1983) (USFSPA) only applies to net doctrine of res judicata bars rclitigation of issues decided disposable retirement, and a court may not. by valid in a final judgment. Garcia ''· R.C. Cola •• 7-Up Bo11/ing judgment, compel a payment of gross. Co., 667 S.W2d 517. 519 (Tex. 1984). Paul Cameron correctly asserts thai a void judgment may be collaterally Cook then appealed to the court of appeals which attacked; however, if the trial court's award of gross pay affirmed the trial court's order. The court or appeals were void, we would have so held in Cameron. Thus, lhe determined the trial coun had no jurisdiction to hear lower courts' refusal to enforce Camel"on as wriucn Cook's motion for enforcement bccau.llie our Camcrmr because they disagreed with the award of gross bcnefitc; judgment was ambiguous. In the concluding sentences of was an improrcr rclitigation of issues delcrn1ined in lhe Cameron. we "render{ed] judgment awarding Sue prior final judgment. Although a holding may be  Page 3 733 S.W.2d 137, "140; 1987 Tex. LEXIS 369, ""6; 30 Tex. Sup. J. 550 subsequently overruled or disapproved, the O\lem.Jicd though the contingent award was improper, the di\'orce judgment remains final to the panics involved. Segrest v. decree. including lhe contingent penalty, is not subject lo Segrest, 649S.W.2d6/0, 612,<·ert. denied, 464 U.S. 894, Cameron's collaleral [....,9] attack. Res judicata also 78 L. Ed. 2d 232, /04 S. Ct. 242 (/983). applies here to prevent relitigation of issues which should have been liligated in an earlier appeal. Segrest, 749 We [ ... 7] next addres.'i the contingent increase S.W.2d nl 613. Determining lhat the contingent escalalion award of fony-nvc percent gross military retirement In is not void does not, however~ completely resolve Cook's the 1979 divorce decree, the trial conn ordered thirty-five contention that the trial court erred in refusing 10 aclivale percent gross retirement pay was just and right only if ~1c penalty. Cook rccei\•ed that amount 11 Wilhout further litigalion other than a direct appeal." In the event Cameron failed to The Family Code authorizes a trial court to issue comply with the award, the decree slated fony-five orders in aid or clarification of a fanner divorce decree. percent of the gross retirement pay was just and right. TEX. FAM. CODE ANN. § 3.70-.72 (Vernon Supp. Cook argues that the molions 10 force Cameron lo 1987). On Cook's first motion for contempl and motion in comply \\ith the conn's judgment constitute ''further aid and clarification, 1he trial court found Cameron in litigation," and therefore, she is entitled to the contingent contempt for failing lo forward an accounting statement increase. to Cook [•141) within five days of his rcccip~ bUithat 11 finding of contempt docs not amount to further Cameron contends the contingent increase is void liligalion." On Cook's amended second motion. the trial and unenforceable as a matter of law. He asserts (I) the court again refused Cook's request to activate lhe contingent provision renders the decree indefinite and contingent escalation. uncenain because "funhcr litigation" is undefined and unclear; (2) the trial court is authorized to make only one We hold the trial court's denial of Cook's request "just and right" division of property, and the contingent does not mandate reversal. Cameron's testimony at the increase constitutes a second propeny division; and (3) contempt hearing eslablished 10 the trial court that he did ITII DISTRICT, IIOUSTO:-.i 348,\: 11'.3<1 281; 2111 I Te.<. 1lPJ1· LEXIS 4909 ,June .JO, 21111, Opinion Filed PRIOI! IIISTOI!Y: [.. I] In November 2009, Wife filed :m nrig[nnl petit' ion for On Appeal f'rom the 245th District Court, llm-ris divon:c. In Deccmhcr 200iJ, Husbnnd filed an original .· . County. Texas: Trial Court Came No. 2009-73495. Judge Annette Kuntz . nnswer and an original coumcr-pc:tition for divorce. In January 20 I 0. the partie$ entered inlo an infomml !. ~, .; ) COUt\SEL: Jarnd N. Higdon or San /\JlHH\io, TX, t(1r appclh1nts. sdtlement ngrccml!nl purs\\"!lt to .\·ecJion 6.604 of the Tc~ms Famf(F Cruie. In March 2010, the trial court signed lhc fi.nal f""*2] decree of divorce, which was approved and consented lo as to lHHh form ~.fler l-lushnnd fil!!d a motion for the Willinm Leslie Shireman nr Houston. TX, for appclkcs. trial court 10 dll so. On the sumt: day, lhc trial cour1 signed the domt:stic rclalions order ("D.R0 11 ) at issue! JUDGES: Panel consists of Chief Jus1iee Hedges and :.1pprovcd by o11ly Wife und her altumcy. References to Justices Seymore and Boyce. the DRO nrc cros;'>Cd out in the final decree of divorce., One title ted rcfen,!IIGC. in the final decree wuh:r ''Property OI'INIO:-.i BY: Addc Hedges to Husband" is inlti:aled by 11 CI3" and !'LH," prcSUUH.IIJiy Wi fc a11d her attorney; .anoth(!r delc!cd reference under OPINION "Property to Wifi:::'' i$ initialed by "CB" only. l*-282] In this .di\'orcc ca$.C, Kyle Edward Bicks In .'\p_ril10 I0-' l-lusbi!nd filed a_ motion to correct or {''Hu$h:pcnscs in the order denying the .npplicable federal law to tbe court. and Husbnud Husband's motion to concct or reform rhc judgmem, We n;qu~stcd trial and appdla!c !lttmncy's fees;· c.\.pcnscs. ::lftirtll tile finn! decree of divotCI.! and the awmd of and co~ts. \VICe ·ntcd a rcspousc to the motion lo <.:orrcct attorney's fees and expenses. We reverse and remand 1he ur- refNm tiH; judgment, :>l:.t.ting that the motion wa~ domestic relations ordC"r for H.Irlhcr procl'ttlings g:rnundkss llild brought solely for the pUfllOSC of consistent with this opinion. hurassmcllt. In uddition, she requested lrial and appellate ntlorm.:y's fees, c:xpcmes, m1d costs. \\'ifc [UJ] riled a  Page 2 348 S.W.3d 281, "2R3; 2011 Tex. App. LEXIS 4909, ••J separate motion for sanctions pursuant to Rule I J_ of tl1e Husband and Wife aucsted by their signarurcs that Texas Rules of Ch•il Procedure. claiming that Husband's they appro\'cd and consented lo rhc di\'orcc decree as to motion to correct or refonn the judgment was groundless both form and substance. In lhc body of the decree. the and brough1 for the purpose of harassment. She requested trial court found thai the parties had (,.,.5] entered into a as sanctions ( t) that lhe trial coun deny lhe motion to written agreement, the wriUen agreemcnl being the Final correct or refonn the judgment and (2l that she be Decree of Divorce. The panics stipulared that the awarded anomey's fees and expenses incurred in agrecmcnl was enforceable as a con1rac1 to the exlent obtaining an order for sanctions. permiued by law. Because the parties entered inlo an agreed divorce decree, it is lreated as a contract between The trial coun held a hearing on Husband's motion to the parties with lhe law of contracts governing the correct or rcfonn the judgment and on \Vifc's request for interpretation of the dc:cn.-c's legal force and meaning. See attorney's fees in her response. I The trial court denied Pare v. Pate, 874 S.W.2d 186, 188 (Tex. App.--Hous/o/1 Husband's motion and ordered Husband to pay Wife's {14rll Disr.] 1994, writ denied). auomcy's fees and expenses in the amounl of S 1,950.00. After the hearing, with the trial court's permission, [•284) The DRO in this case was signed on lhc Husband's trial counsel introduced expert testimony same day as the agreed final decree of divorce. When the regarding the calculation of and the community interest in signing of the DRO occU11i contemporaneously with the his n>ilitary retirement pay. 2 This appeal followed. signing of the divorce decree, courts have construed the DRO as pnrt of the divorce decree. See, e.g.• Gilli11 v. At the hearing, Wife's trial counsel staled that Gillin, 307 S. W.3cl 395, 396 (Te.t. App.--San Antonio she would dismiss her motion for sanctions if the 2009, no (Jet.) (characterizing complaints aboul two trial court awarded the auomey's fees rcqucsled in provisions of an incorporated DRO as being an appeal her response, which the trial court did. from a divorce decree); Beyer ''· Beyer. No. 2 According to Husband's brier, lhis was done 03-06-00803-CV, 2009 Tex. App. LEXIS 5913, 2009 WL outside the presence of the trial judge. 1341857, at • I (Tex. App.--Auslill July 28, 2009, pel. de11iedJ (mem. op.) (appeal from domcs1ic relations order II, ASALYSIS ponion of decree). While the ORO in this case wa...~ A. [""4) DOMESTIC REI.ATIO~S 0ROER signed on the same day as lhe final decree of divorce, references [U6] 10 lh_c DRO arc expressly dclclcd from In his first issue, Husband contends thai the trial the agreed decree. The trial court approved lhc agreement coun erred in signing rhe DRO because the DRO of the parties "as conlaincd in this final Decree of contains a fonnula incorrectly calcularing (I) the Divorce.'' As "uch, we will review the DRO as a separate community interest in his mililary retirement pay and (2) order and not as pan of the agreed divorce dccrce.l the retirement pay itself. In addilion, Husband claims that the ORO designates Wife as the fom>cr spouse 3 Post·divorce DROs. for example. are beneficiary of his Survivor Benefit Plan when no such appealable orders. See Shanks "· Treadlt'ay. 110 S.ll'.3d 444, 446 (Tex. 2003). designation was made in lhe final decree of divorce. The parties entered into an agreed final decree of Initially, we reject Wife's contention that Husband divorce. For a consent judgment to be valid, each party failed to preserve error on his issue. To presen•e a musl explicilly and unmistakably gi\•e his or her consent complaint of error in a judgment, a party must inform the In re Browsard, Ill S. lfc3d 82 7, 831-33 (Tex. trial court of its objection by a timely riled motion to App.--/JoustoPJ {14111 Disr.] 2003, orig. proceeding). amend or correcl the judgment, a motion for new trial, or Appro\•al as to fonn and substance, slanding alone, docs some olhcr similar method, and 1hc trial court must rule not transform a judgment into a consent judgment. /J. on the motion either expressly or implicilly. See Tex. R. App. P. 33.1(a). Husband properly preserved error \\ith The body of the judgment musl sugges~ for example, ·that the judgment was rendered by consent. Clrang ''· Link his timely filed motion to correct or refonn the judgment Nguren, 81 S.W.3d 314, 316 PJ.l (Tex. App.--/Jou.and's first 7, 1980. 0 ld. § 1407. "High-36 montl1 average" means ~ssue d~alin~ with the calculation of the communi1y "the total amount of monthly basic pay to which the m1cres1 1n rcurcd JXIY found in the ORO. We reverse and member was entitled for lhe 36 months (wbelhcr or nol remand for the lrial Coun to adjust the formula in the consecutive) out of all the months of active- service of the member for which the monthly basic pay to which tbc  PageS 348 S.W.Jd 281, "287; 2011 Tex. App. LEXIS 4909, ••14 member was entitled was the highest, divided by 36. 11 !d. Therefore, we sustain the portion of Husband's first § 1407(c). Therefore. evidence of when Husband began issue dealing with the calculation of the retired pay itself unifonncd service is essential to Husband's argument that found in the DRO. We reverse and remand for the trial lhe "high 36" formula should be used 10 calculate his court to adjus1 the fonnula in the DRO to be consistent relired pay base. The existing formula in the DRO with federal and state law. references ''26+ years of creditable service as of 01/01/2010." This reference indicates thai Husband had Wife's Beneficiar)! Status 26 years and some months of creditable service in the military as of 0 1101/20 I 0. 7 Based on the reference in the Finally. Husband argues that the DRO is inconsislent DRO lo "26+ years of creditable service as of with the agreed di\'Orce decree in that the ORO pro\'ides that ''(f]onner Spouse shall be deemed to be lhe 01/01/2010:' Husband must have begun military service after September 7, 1980, and, therefore, the high·36 beneficiary of the Survivor Benefit Plan ("SBP") annuity month average will be used to calculate his relircd pay through Member's military relirement and Member shall cxcculc any documeniS as are required to make the [""IS] bo.) Do11gl:l~ Wayne JOY!\KR, Appcll:wl "·Jundt(' .\lnrit: JOVNEU, :\ppcllec No. 04-10-IJIJ56J-CV COURT OF APPI-:ALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO 352 S. H"3d 746; 20} I Tc<. .4pp. LEXJS 6731 August 24, 20ll~ Dcliverctl Augusl 24,201 J, File-d ~UHSEQUENT HlSTORY:: R~!lc;:~scd f01· Publicntiot, fliT' rehearing is granted, We withdraw our npinion and December 9, 2011. jlldgmcnl of April 6, 20 I I. nnd substitute this opinion mtJ ,.. i judgment A PRIOR HISTORY: 1"1] From the 40!::!h Jutlicial DJ~tricl Coun, Be:~~ CotUity, Doug uppcals the Lrinl court's or~kr denying h!$ Texas. Trial Couft No. 200H~CI-2133 I. 1-ltmotab/c David petition !br hill or review to s-et a;;; ide an agreed amc.nde.d A Bcrchclnumn, Jr., Judge Presiding. domestic rcl if all parties were alivc.' 1 THX. R. A flP. !'. OPINION 7.J{a){/). [•7471 HEVERSED & RENDERED BAChGIW\.1~0 Appellant Doug!Cis (Doug) \Vayne Joyner's motion Doug and Jandlc were di.,•orced in October .100 1.  Pagc2 352 S.W.3d 746, '747; 2011 Tex. App. LEX IS 6731, u2 The: divorce decree awarded Janelle a portion of Doug's trial court signed an order on June 22, 2007, denying the militnry retirement bcncfito;;. and stated that her Ponion motion for new trial. would be ''more particularly defined in a [*748) Domestic Relations Order. •• The court subsequently Doug retained new counsel and filed a pctilion for entered a [)omestic Relations Order (lhe DRO) awarding bill of review in December 2008 attacking. the jurisdiction Janelle 50% of the community share of Doug's of the trial coun to modify the property division in lhe I hypothetical retired pay, adjusted for cost of living ORO and divorce decree. After a preliminary hearing, the adjustments.2 Afler Doug retired from active service in trial court denied Doug's petition because Doug did not j December 2005, the Department of Finance and establish the clements of a bill of review: that another :I Accounting Services (OF AS) mistakenly began paying party, through fraud or acciden~ prevented him from Janelle 50°/o of Doug's actual disposable retired pay, nn asserting a meritorious defense. See EastiiJ v. Dial, 288 umount that was much (' '3] higher than what she wus S.W.3d 491, 497 (Tex. App.--San Alllonio 2009, pet. awarded in the divorce. denied). The trial court also found that Doug was at fuult or negligent by failing to pursue other legal ('*5] 2 The divorce decree described Doug's remedies. Doug's appeal followed. hypothetical retired pay as '(t]he disposable n10nthly retired pay of an E-7 with 16 years, 3 BILL OF REVIEW months of accrued crediaablc military service at date of di\'orcc.'' The trial court denied Doug's petition for bill of rC\'iew because he failed to satisfy the fonnal Doug, who was living in Arizona at that lime, requirements for a bill of review. Doug argues that if the retained local counsel to correct the mistake. Doug's record reveals that the trial court lacked jurisdiction to attorney filed a motion to clarify the ORO. In July 2006, enter the Amended DRO. he need not mecl lbe fom1al DF AS sent a lc11er to Doug and Janelle acknowledging requirements for a bill of review. \Ve agree. If a direct that it had overpaid Janelle for six months. DFAS also attack seeks 10 set aside a judgment because lhe lrinl stated lhat it had established a debt against Janelle's court lacked subject mauer jurisdiclion, the petitioner future payments and credilcd the amount of her debt to need not satisfy rhe formal bill of review requirements for Doug. In August 2006, the ponies entered into a Rule II the court to consider d1e jurisdictional challenge. agreement (the Agreemcnt)l in which the parties agreed Sweetwate1· Austill Props. LL.C. ''· [•749] SOS to the entry of an amended domestic relations order that Allia11ce, llu·.. 199 S.U,3d 879, 889 (Tex. App.--Au.rti11 was similar to the original DRO but provided that 2009. pet. Jellied): see also Middleton 1'. Mw:ff. 689 Janelle's interest was 37"/o of Doug's disposable retired S. W.ld 212. 213 (Tex. 198S) (per curiam) {op. on motion pay. In February 2007, the court signed an Amended ror reh'g). We. therefore. tum to the question of whether Domestic Relations Order (the Amended ORO) the coun lacked jurisdiction lo enter the Amended DRO. incorporating the lenns of the Agreement Jt!RIShiCTIOS 3 The Agreement was signed by the judge., Janelle, Janelle's auomcy, and Doug's anomey, Doug ar-'llcs that the Amended DRO is void because but not Doug. il modifies the substantive division of property fron1 the divorce decree and ORO, which provided un In March 2007. Doug's attorney moved for a new unambiguous award to Janelle of Doug's military trial because the Amended ["4] ORO did not address retirement benefits. Doug's DFAS credit and impennissibly changed the terms of the divorce decree. TI1e trial court granted the A. Stondard of Review & Applicable Law motion on the condition lhat Doug pay Sl,200 for Whether a trial court [u6] has jurisdiction is a Janelle's attomey's fees by June 7, 2007. The order slated question of law that we review de novo. Tex. Natw·al that 11 if the auomcts fcc payment condition herein is nol Res. Couservatioll Comm'n "· JT-Da1ry, 74 S.lf'.3d 849, timely mel, the Motion for New Trial is denied." Doug's 855 (fe.t. 2002); Guei'DI"tl v. H.E. Butt Grocery Co .. 81 counsel thercaflcr withdrew, and Doug alleged thai he S.W3d 550, 551 (Tex. App.-Sa11 A11to11io 2002. pet. was never aware of the conditional motion for new trial. dc11ied). The issue of jurisdiction in this case turns on When Janelle's attorney's fees were nol timely paid, lhc  Page) 352 S.W.Jd 746, •749; 2011 Tex. App. LEX IS 6731, ••6 whclhcr the trial coun modified or clarified d\C DRO effect to the entire decree." Shanks " Tregdwav /JQ when il enlered lhe Amended ORO. s w ld 441 147an 200!1. "'[J]r lhc decree, when read as a u•hole. is unambiguous as to the propeny's Any pany affected by n divorce decree may seck to disposition. the court must effectuate the order in light of enforce the decree by filing an enforcement action. TEX. the literal language used."' Jd, (quoting Wilde''· M1trcllie, FAM. CODE ANN.§ 9.00l{ii) (Wcsl 2006). The !rial court 949 S.IY.Zd 331, 332 (Tex. /997) (per curiam)). However, that rendered the divorce decree generally retains the if the decree is subject 10 more than one reasonable power to enforce or clarify the property di\'ision interpretation and is therefore ambiguous, coons should approved or or conU!incd in lhc decree. ld. §§ 9.002, apply lhe conSlruction lhal correclly applies lhc law. /d.. 9.006(a}, 9.008. Jr a court finds lhal u•• original ronn or ''[W)hcthcr a divorce decree is ambiguous is a question of the division of property is ambiguous or not specific law," /.d.. enough to be enforceable by contempt, the court may cnlcr a clarifYing order to enforce compliance wilh the B. Discussion original division orlhe propcny.ld. § 9.008(b). Howc\'er, "[a]n order ... that amends. modifies, alters. or changes Doug and Janelle's divorce decree prO\•idcs that the actual, substantive di\·ision of property made or Janelle is enlitlcd lo "[a) portion or [Doug)'s bencfilS in approved in a final decree of divorce ... is beyond the the military pension plan arising out of [Doug's] power of the divorce court and is unenforceable.'' /d. employment with the military, that portion being 50% of ["'7] § 9.007{b); .:ENllA CAROLYN (SHANKS) TREADWAY. RESPONDENT NO. 110-1325 SUI'llEME COURT 01' n:XAS 110 S. 11-:Jd 4.f.J; )U(J3 Tex.. LEX IS 87; 46 7£•~-.:. Sup. J. 8.ffl AJlril 24, 2002, Argued .June 26, 2003 1 Delivered PRIOI! IIISTOllV: [>+IJ ON PETITION FOR 1. H;tdtground REVIFW FllOM THE COURT OF APPEALS I'OR TilE FII'TI! DISTRICT OF TEXAS. Kcmla Carolyn Treadway i.i..nd GcoJ·gc P:.iyton Tremhmy \\ Shank.1·, 1 }() S. WJd }, 2000 Tex. "I PI'· Sh,mks 11\urdcd in 196~. George started WlHking for LEXJS 7945 (Tex. Apv Dallas. ,\'m·. 17. 2000) Amcric:m Airlines in \966 and began particip<~ting in Amcrit:: retirement in 1998. JlJD(-;J,:s: JUSTICE O~EILL delivered the (lpininn of the Court. Generally. ;:~n employee parlldpntiug in a ddiued benefit plan will rccci\'C a future benefit QflJ~IO:"i BV; Harriet O'Neill hasc:d on a specified formula thai often takes into nccl1Unl earnings, length of service,. or both. OI'TNTON Uruwu, Comtlllml. An lmerdiscipliwu:~~ Anu~\'sis Dfllw DNision o[Pe11sio11 Bc11ej'il.s in DiliOJ'Ce and l *-44-1] The is.'luc in this C;).S.C is lhc proper Po.H·.Judgmenl PiirlifirJI/ Acfions.' Cure:.1· Jot Jlw lJJtcrptc\Ullun of a 198:1 di\'orcc dccrc:c tim~ div[dcd, ll!cquiLies in Hf!ny 1', Ben}', 37 BAYLOR L anHmg other asscls, relircmelll benefits stemming !lorn REV. 107, 115-16 (1985). A defined contribution one spouse's employment bol!t dunng and after lhc plan, on the other hand, il' funded by conlributions marriage. The trial court held thtH the ["'445J divorce of a S)1cci lied amount thai are invested or placed dccrcl.! fl\\·ardcd the nun-employee spouse u specific 111 a trust fund. and the employee is cnlillcd upon percentage of the rctin.:mcnt b.;n~flts valued ar d1c d;.Hc of rctircrnclll to those contributions plus the t:arnings Jivorcc. The court of appcalf. reversed, cnndutling t.hut thercun. !d. en II J. the 1.kcrcc Ulmmbiguously nwardcd the nnn-cmployee SjJOliSC 11 JlCfCCIHngc of the the bell d)!_$ Oil luU\J Ul11dU11l oi' Gt·urgc nnd Kcnda divorced m 1981. Jn the div()rcc the date or retirement. 110 .\~ W3d 1. 2000 Tex. App. deCJcc. the districl court awitrdcd Ketlda a lwcnty-fi.vc LEXIS 79.fS. We hold that the court of ~1ppcals correctly pcrcc:.·m jntcrcsl in Gcorgc1S n.::litc.trtcnl benefits:, m1d inteq)rctcd lhc decree. Accordingly. we affirm the coun neither party appealed the ju~g.tilC~IL The relevant of appeals' judgmem. portious of[HJ] the decree provide:  Page 2 110 S.W.3d 444, "445; 2003 Tex. LEXIS 87, ""3; 46 Tex. Sup. J. 840 The Coun finds that [George] has earned ~crtain LEXIS 7945. The coun held that lhe divorce decree employee benefits under a pension plan arising out of unambiguously awarded Kcnda "a twenty-five percent past employment as an employee of American Airlines. interest of the 'total sum or sums paid or to be paid' from [George's] [ 00 5] pension plans and [did] not limit her [Kenda] is awarded a "pro-rala intcrcstu (as award to a percentage of the benefits accrued in the plans hereinafter defined) of any and all sums received or paid prior to the divorce." ld at 6, 2000 Tex App. LEXIS 7945 lo (George] from such pension plan and such sum or al • 11. The· court therefore remanded the case to the sums shall be payable to [Kenda] if, us and when paid by district court to enter a revised QDRO awarding Kenda a American Airlines or the trustee of such plan to [George] twenty-five percent interest in the entire amounl to be as pension or retirement employee benefits existing paid to George as retirement benefits. We agree with the because of[George's] employment appellate court's intcrpretntion of the decree and therefore alfmn the court of appeals' jud!,'ltlent. IT IS DECREED !hat [Kenda's] "pro-rata interest" shall be defined as that sum o(money equal to 25% of the II. Dh·ldlng Rellremenl BeneliiS total sum or sums paid or to be paid to [George] from such pension or retirement plan. We begin with an overview of the law that was in cffccl in this area at the time the decree was entered to dernonslrate the complexities involved in dividing retirement benefils upon divorce. Our decisions focused IT IS FURTHER DECREED that all remaining first on the recognition of pension interests as community right, tille and interest in and to such American Airlines propeny rights and lhen on the separate issues of pension and/or retiremem plan shall be and is hereby set apponionmcnt and valuation of benefits. In Cea,·leJJ "· aside to [George]. Cem·Jer, we considered whether future pension benefits On March 9, 1998, approximately two mon1hs before constitute community property rights subject to equitable his scheduled retirement dace. George filed a Motion to di\'ision upon divorce. 544 S.ll'.2d 661, 663-64, 20 Tex. Sign Qualified Domestic Relations Order ("QDR0 11 ). See Sup. Ct. J. 102 (Tex. 1976). We approved of the I I TEX FAM. CODE § 9.10]. In his motion, George proposition thai even "nonvcstcd 2 pension rights arc ... I proposed that !he court calculate [••4] lhe value of bolh a contingcnl in1crcst in propcny~" and nlo the cxlent thai the defined benefit and defined contribUiion plans as of [,...6] such rights derive from employment during the date of dh•orce in awarding Kcnda her t\venty-five covenure. they comprise n community asset subject to percent interest. In response, Kenda asserted thai res division in a dissolutiQn proceeding." /d. (quoting Brow11 1'. Brown, IS Cal. 3d 838, 126 Cal. Rptr. 633, 544 f'.2d judicata barred the attempted collateral attack. She requested that the district coun sign her proposed QDRO, 561, 561 (Cal. 1976)). We also discussed the difficulty of awarding her twenty-five percent of the tolal amount of computing lhc present value of such a contingent interest the benefits to be paid to George. and approved the method of making the award of the non-employee spouse's community interest 11 effective if, The district court signed two QDROs - George's as, and when the bencnts are received by the (employee] QDRO di\•iding lhe defined benefit plan valued at the spouse." 544 S. W.1d a/666. date of divorce and Kenda's QDRO dividing both plans valued as of the date 1hat George actually rcceh•cd 2 Pension plan bene fils become vested when the ["446] payment In light of lhc inconsistent order.;, employee has an unconditional ownership interest George moved for reconsidcr.uion. The coun granted in them; thai is, the employee has the right 10 George's motion, ''acated Kenda's QDRO, and entered receive the accrued benefits upon retirement another QDRO valuing the defined contribution plan al whether or not he is working for the same the date of divorce. Kenda appealed. employer. Brown, 37 BAYLOR L. REV. at 119. In comrast, pension benefits arc "matured" when The coun of appeals reversed the judgment, lhc employee is entitled to "immediate collection concluding that the trial court's QDROs impermissibly and enjoyment.'' ld. nltcrcd the substantive division of propcny made in the original divorce dccree.IIO S.II'.3J at 3, 1000 Tex. App. The 1983 case Bei'IJ' "· Bei'IJ'. 647 S. W.ld 945, 16 Tex. Sup. Ct. J. 166 (Te_,, 1983), currently go\'ems the  Page 3 110 S.W.3d 444, '446; 2003 Tex. LEXIS 87, "6; 46 Tex. Sup. J. 840 division of retirement [U7] benefits. However. w.hcn the ("8) Ill. Interpreting the Dlvor Mortgagee. EMC MORTGAGE ~ >famjlrfc.1c > Te~:o"IS 1-'mnlly Codr • 5f.'djnn 9.0116. F.nfotnml:'nt Of hhi~ion 0€ ProJil'rt)· Hoard of F'alcnt Appeuls St:1lc Laws .J i Alabama I Ariwna I California l-1orida § 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except Georgia as provided by this subchapter and by the Texas Rules of Civil lllinoi:; Procedute, the court aay render further orders to enforce the Indiana divi~ion of property made in the de~ree of divor~e or annulment to !\J;tss;Jchusclls assi~t in th@ implementation of or to clarify th@ prior order. ~lil·hig.an (b) The court may specify more precisely the manner of ~\~\·ada effecting the property division previously ~ade if the substantive !'\ew,Je~e~· division of property is not altered or changed. i'\cw \'ork (c) An order of enforcement does not alte~ or affect the Korth Carolina finality of the dec~ee of divorce or annulm9nt beinB enforced. Ort.,;on Added by Acts 1997 1 75th Leg., ch. 7, § 1, eff. April 17, 1997. Jlenns~·knnia Texas Vi1-ginin Washington Section: ~ Jl.3ll4 l!.3.ll5 .!l.l!l!.l !l.lll!:l !lJ!ll3 !l.l!lM 9&05 9.006 !LllllZ !IJ!l!l! !1J!!19 !l.lllll !1.!!.11 !IJll2. 9.Jll3 Nl:xt C:S Cudc Last modified: August u, 2007 1 USC • General Prm;sions 2 USC - The Congress ··-· Start 2015 by Saving Big ·-1·'~ 3 USC - The Prl'Sident --.. -1liSC- Flng and Se.d 5 USC - Gm·'t Organi1..1tion New Auto Insurance Itates from$15/Month · Get Free Quotes! 6 USC- Domrstic Securily 7 USC- Agriculture 8 USC- Aliens and Nationnlit\' 9 t.:'SC ·Arbitration · 1o VSC • Armed Fmtts 11 USC- Bnnkrupte)' 12 USC- Banks and Banking 13 t.:SC - C<'mms 1-1 USC- Coasl Guard 15 USC- Commerce and Trade 16 USC- Con!'ern&tion 17 USC- Copyrights 1S USC- Crimes 19l1SC- Cw:toms Duties 20 L"SC- Educntion 21 USC- Food and Drugs 2:! t:SC • Fort.•ign Relations 23 USC· Highways 24 L'SC · Hospital$ 25 L"SC · lndiuns 26 l"SC- lnlt>mal Rcnmue Code 27l:sc · Intoxicating liquors 28 USC- .ludician· 29 esc - t...bor · 30 USC- ~1int>rnl Lands 31 tSC- Money and Finant-e 32 USC -l'\ationnl Guard 33 t;SC- X11'igation 34 USC· J\"'7-" (repealed) 35 t.:SC - Patents 36liSC · l1altiotic Sodelies 3i USC- Uniformed Senices 36 liSC- Vctt.>rans' Benefits 39 USC - Po!"lal Scnice 40 USC • Public Property 41 USC- PublieContrncts 42 USC- Publie Health http1naw.anecle.oomnexasllamily/9.006.00.hlml 112 713!~015 Texas Family Code~ Scction-9.007. Umltation On Povver Of Cour1 To Enforce- Texas Attorney Resources- Texas Laws Search onecle Texas Family Code- Section g.007. Limitation On Power Of l_!S Suprt'me- C{)ml Court To Enforce US Ta;-.; Courl I Prnl It~«<""m'l! BfiD1e > ~ :>- }lamjl\' !',..,1" :- Tc~ll~ Family Code· ~lion r}.!Hl7. timihl.lit,u On Power OJtcurt 'l'o Borml of Pa~\:'nt Appeals Enf¢1\'C Slate La\\'s Al::!hama &ch!'lor'' l).,y Arizullll CaliforniH '"""""'' li"""'"'"""•'=' Bu!ir-.e" Ad;r.ll!~ Florida Hen!l!! Se~n~:B lrllomlo.ttoo S~l G<·or~in § 9.01:17. LIMITATION ON PO'.'IER Of CO\JRT TO ENfOHCE. (,1) (I Illinoi!i court may not amend, modify, alL~r 1 or ch~nr,e th~ division of Maner·J Del!!~ \;;dian;~ property made or approved in th~ decree of divorc~ or annulm~nt. An [;f)!-, ...... ~i'C,.,.,=~·koa:n.'>"~ Oregon (c) The 'PO'Nl'l' of the court to render further order·s to ll~tAd:;"nr 1-!c,lf\!:1~~~ l'enn!;)']\·ania assist in the implem~ntation of or to clarify ·the -prof!erty division EetJ:ato.1 TCXi~S is <1batcd whUC

X! :! USC- Tht: Con~rE's.s :{ L;~c- Tbl.' Prcsid('Jll Lruf modified: Atrgust 11,2007 ·I USC- Flag and S!.'.a\ 5 USC- GO\''l 0J'gani7-ntiou C1 l;SC • DomPstk SecLlril\' 7 USC- A~riculture · Start 2015 by Saving Big S USC- Ailcns ancl Nutionality New Au1o Tnsurance Rares from S15/lvl"onth ·Get FreE_Quotes! 'J CSC- Arbitral ion w USC- r\!11wrl Forrl~S 11 USC- I3ankrupt'c~· 12 L;sc- Banks aJ1ll Banldn~ 13 L;sc- Cl'HSUS 1.1 UK- Coast Gunrd tf) USC- Commerce Ctnd Tr;:tde H'> LSC- 0)11.5-L'n·atimt 17 esc- Cop_,Tight.~ JR CSC- Crimes 19 CSC- Cnslom::: Duties :w USC- Eduea!ion :..!J USC'- Food und Drugs 2.2 USC · Foreign Reh1tions 2;~ L:SC- Hig1m·-ays :.1.4 CSC- Hospital.-, 25USC- lndinn!; :26 USC ·lnlemal Rcn~m1e Code 27 L'SC ~Intoxicating Liquors :::>H USC- .ludidary 24 lfSC • L.abor :w t:sc · ,\Jine-rctl i.<-1) :35 CSC • Pattal Sen· icc iJO CSC- Public Proper!~· 41 L'SC- PublicContwcts ·\2. L:SC • Public Jlcalth !lltp:Jilaw.oneclo.com/texaslfamilyl9.007.00.h-tml 112 2t.ll2015 Texas Family Cede- Section9.008. Clarification Order. Texas Attorney Resources· Texas l.Jiws ·--·· ·------- ··~-- ~-------------------'':-SeaO ~ > Fnm!h·lndr > TCMS 1-'amily Cock- &x-tinn 9.0118. C'lnrlficatlon Ordet US Tax Court Boal'd of Paknl Appeals New 2015 Deals Available Stale Laws Auto Insurance kales from S15/Month Offe1 ends In 15 days! Save Now Alnhnma Arizona California § 9.888. ClARIFICATlOH ORDER. (a) On the request of a Floridil party or on the court's own motion~ the court ~y render a Georgia clarifying order before a motion for contempt is made or heard, in Illinois conjunction with a motion for contempt or on denial of a motion for Indiana contempt. (b) On a finding by the court that the original form of the Massachusl•lls division of property is not specific enough to be enforceable by ~Hrhigan contempt~ the court may t@nder a clarifying order setting forth ~e\"ada specific terms to enforce compliance with the original division of Xew,Jcr.=~ey property. New York (c) The court may not give retroactive effect to a Xorth Carolina clarifying order. Oregon (d) The court shall provide a reasonable time for c~~pliance Pennsyl\'nnin before enforcing a Cl3rifylng order by contempt or in another Tl',.a5 manner. \'iq:inia Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Wushington l'S Code Section: ~ 9.JWJ. 9.Jl1J._g 9.JW3 9JU!4 .9...QQS Ull!f! 9...0Jl2 g.oo8 9.JKl!l 9.&10. 9Jll1 9J11Z. 1 USC· General Pro\isions !Llll3 9.1114 !UW. lW;1 2 USC • The Congn-ss Last modified: August 11, 2007 3 USC - The President 4 l!SC • Fl•g und Se;d 5 USC - Go\''t Organi1..1tion > 6l:SC • Domestic Securitv 7 USC- Agriculture · 8 USC- Alil'n~ and Nottionalih· 9 USC· Arbitration · tO USC· Armed Forces n USC- nnnknaptcy 12 VSC- Banks and Bunking 13 l:SC - Census 1-1 USC- Coast Guard 15 L'SC- Commerce and Trade 16 l"SC- Consen:ntion 17 usc. COp)Tights 18 USC -Crimes 19 USC- Customs Duties 20 USC- Etluc..1.lion 21 USC- Food nnd Dn1gs 2:.! USC- Fon•ign Rdalions 23 USC- Highways 24 USC- Hospitals 25 USC- Indians 26 L'SC - lntt•rnal Re\·enue Code 27 USC ·Intoxicating Liquors 28 USC- ,Judiciary 29 \.:SC • Labor 30 USC - ~Hnl'ral Lands Jt USC -1\-Ione\' and Finance 32 USC· Natio'nal Guard 33 USC- N'a\igation 34 USC- N'a''Y (repe~1led) 35 USC • Patents 36 USC- Patriotic Societies 3i USC- Uniformed Senices 38 USC- Vet~mms' Uenf."fits 39 CSC- Po~tul Scni('c 40 l~SC- Public Property 4 t USC· Public Contr<~cls .p. l'SC- ruhlic Health http:inaw.onecle.comnexas"anilyl9.008.00.html 112  0 '·I' NO. 226,429-ll ('0 IN THE MA TrER OF § IN THE DISTRICT COURT ~)- THE MARRIAGE OF § § TliVIOTHY PARRISH AND § § !46TH .JUDICIAL DISTRICT 0' ,.. ,_ 0 TRISHA ANN PARRISH § ,--., ,.....-•\ < a: § ,., :·.· t;S~ c•I :.;...! AND IN THE INTEREST OF § ~-~.:: ~ ~ 08L:: JOSHUA ROBERT PARRISH AND ~-~· •. """' :::~ :2; I i 0 ZACHARY ALLEN PARRISH, § BELL COUNTY, TEXAS~~ ::~g~ I CHILDREN ·= t-1!.1 ('"'} ""' ---' I '""' ~~i ,_i "- I ~ FINAL D~:CREE OF DIVORCE = = ' = ...... CJ On --~A"'P--'RL..:3).__u0__,2,0,08,___ _ the Court heard this case. ,Jppearances Petitioner, Tl1viOTHY PARRJSH, app~ared in person and through attorney of record, DANIEL A. CORBfN, and announced ready for trial. Respondent, TRISHA ANN PARRJSH, wai vcd issuance and service of citation by waiver duly filed and did not otherwise appear. . Record The making ofn record of testimony was waived by the panies with the consent of the Coun. Jurisdiction and Domicile The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, I finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed I since the date the suit was flied. The Court finds that, at the time this suit was filed, Petitioner had I been a domiciliary ofTexas for the preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly cited. Jury A jury was waived, and questions of fact and of law were submitted to the Court . ..lgreement of Parries .i The Court finds that the parties haw entered into-a wriuen agreement as contained in this ! decree by vinue of having approved this decree as to both fonn and substance. To the extent permitted by law, the panics stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contair.ed in I his Final Decree at" Divorce. i"~:-.a!. :Je-:::-!!e or ::OO'Icer;:,e ':':~Cil/'1' PARR:SH "'· 7?.:SPJi.. ;vltl PAAIH$1t Page I  ·' Divorce IT IS ORDERED AND DECREED lhal TIMOTHY PARRISH, Pelilioner, and TRJSHA ANN PARRISH, Respondenl, are divorced-and thai 1he marriage between them is dissolved on the ground ofinsupportability. Children of the Marriage The Coun finds that Petitioner and Respondent arc the parents of the following children: Name: JOSHUA ROBERT PARRISH Sex: Male Birth date: March 26, 1996 Home state: Texas Social Security number: Name: ZACHARY ALLEN PARRISH Sex: Male Birth date: September 4, 2000 Home state: Texas Social Security number: The Court finds no other children of the marriage are expected. Conservatorship The Court, havin~considered the circumstances ofthe parents and of the children, finds that the following orders are m the best interest of the children. · IT IS ORDERED that TIMOTHY PARRISH and TRJSHA ANN PARRISH are appointed Joint Managing Conservators of the following children: JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH. IT IS ORDERED that, at all times, TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights: I. the right to receive infonnation from any other conservator ofthe children concerning the health, education, and welfare of the children; 2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; 4. the right to consult with a physician, dentist, or psychologist of the children; 5. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to anend school activities; r1='1a:i. O.,cree ~f ::~vorce: -:-:!o'IQ';'HJ PARRISH •;, ":'R:SHA MN PAP.RISH Page 2  ' 7. the right!.; be designated on the children's records as a person to be notified in case of an emergency; 8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, TRJSHA ANN PARRJSH, as a parent joint managing conservator, shall have the following rights: I. the right to receive information from any otherconservatorofthe children concerning the health, education, and welfare of the children; 2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; 4. the right to consult with a physician, dentist, or psychologist of the children; S. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to attend school activilies; 7. the right to be designated on the children's records as a person to be notified in case of an emergency; 8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, TIMOTHY PARRISH and TRJSHA ANN PARRISH, as parent joint managing conservators, shall each have the following duties: I. the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and 2. the duty to inform the other conservatorofthe children ifthe conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person's r.:.~•_J :ecrveo! :)1v=r;e i~~y PAAR!SH v, :a:sHA ~~ PARR:SH Page 3  .• requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVA"J:OR FAILS TO PROVIDE THIS NOTICE. IT IS ORDERED that, during his respective periods of possession, TIMOTHY PARRISH, as parent joint managing conservator, shall have the following rights and duties: I I. the duty of care, control, protection, and reasonable discipline of the children; I 2. the duty to support the children, including providing the children with clothing, food, ·I' shelter, and medical and dental care nol involving an invasive procedure; :.. 3. the right to consent for the children to medical and dental care not involving an invasive procedure; 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that, during her respective periods of possession, TRISHA ANN PARRISH, as parent joint managing conservator, shall have the following rights and duties: I. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; 3. the right to consent for the children to medical and dental care not involving an invasive procedure; and 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights and duty: I. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 3. the independent right to consent to psychiatric and psychological treatment of the children; 4. the independent ri~ht to represent the children in h.:gal action and to make other decisions of substantial legal sigmficance concerning the children; 5. the independent right to consent to marriage and to enlistment in the anned forces of the United States; · F~nnl Do~ree ot Dlvor~~ T:l'.O:H"/ P.UR:51-1 .,, ';'itliHA ;.."'N PARR.i:.SH Page-l  ' 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian ofthe children's estates or a guardian or auorney ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. IT IS ORDERED that TRISHA ANN PARRISH, as a parent joint managing conservator, shall have the following rights and duty: l. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 2. the independent right to consent to psychiatric and psychological treatment of the children; 3. the exclusive right to receive and give receipt for periodic payments for the suppon of the children and to hold or disburse these funds for the benefit of the children; 4. the independent right to represent the children in legal action and to make other decisions of substantial legal significance concerning the children; 5. the independent right to consent to marriage and to enlistment in the armed forces of the United States; 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian of the children's estates or a guardian or allomey ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. Geographical Restriction IT IS ORDERED and THE PARTIES AGREE that a geographical restriction is in effect limiting the residence of the panies to a 100 mile radius of Bell County, Texas for five years from the entry ofthis order. n::.a~ :ec:'I and necessarily incurred in enforcing this indemnity. I IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on I demand, for any payment made by the indemnified party at any time after the entl)' of the divorce decree to satisfy a judgment of any court of competent jurisdiction or in accordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates. The parties agree and IT IS ORDERED that each party will give the other party prompt wrinen notice of any litigation threatened or instituted against either party that might constitute the basis of a claim for indemnity under this decree. ClarifYing Orders 'I I Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the right to make orders necessary to clarify and enforce this decree. Final c~crcc ol Dlvorcv itMOTHY PARR.:SH v, RUHA ANN PMRISH Page 19  __.:...,,~ ....---·-····-·-·-·--· ..···-----·--··- ,• ReliefNot Granted IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which Jet execution and all writs and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable. Date ofJudgment SIGNED on _ ___,_A,_PR...,__..3u.Ou2,008,.,.__ __ OrtgiiHIISiped b)' Judge Fane~ H. Jezat JUDGE PRESIDING APPROVED AS TO FORM ONLY: Corbin & Associates, P.C., Allomeys 603 Nonh Eighth Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254} 526-6711 By: ~D~A~N~IE~L~A-.~CO~RB~~~------------ Attomey for Petitioner State BarNo. 04814300 TIMOTHiP SH ' Petitioner ,I ' ,, r-: T1~l Decree of Divorce o;MOTHY PM-.:SH ·1. TJU:.SHA A.'fff PAJUU'SH Page 20  NO. 226,429-ll IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § / ·§ TIMOTHY PARRISH § AND § 146TH JUIHCJAL DISTRICT O'l TIUSHA ANN PARRISH § CJ § ~ ~ AND JN THE INn:REST QF .JOSHUA ROBERT PARIUSH AND.' § § w rr.JJ ZACHARY ALLEN PARRISH, § CHILDREN § BELL COUNTY, TEXAS """"' M., = = DOI\H:STIC RELATfONS ORDER = ~ The Court, having entered a judgment of dissolution of marriage in this case on (t?'r\.),.5) ~, 2008,, and llnding that the entry of a domestic relations order i~ appropriate, makes the following fmdings and conclusions of Jaw and enters them as an order in this proceeding. Findings The Court tinds, in accordance with the Uniformed Scryices Pormer.Spouses' Protection I 'I I Act, 10 U.S.C, section 1408, as follows: :i I 1. This Court has jurisdiction over TIMOTHY PAIUUSH. The residence of"'TMOTHY I !' PARRISH is in Killeen, Bell County, Texas, other' than because ofmi1itary assignment. 2. Petitioner, TIMOTHY PARlUSH, and i\cspondcnt, TRISHA ANN PARRISH, were originally married in October 3, 1994, and were divorced on _________ , 2008. That marriag~ lusted for 13 years and 4 months during which time 'llMOTHY PARRISH served 13 years and 4 months or more of creditable service toward retirement. 3. TIMOT1-lY PARlUSH's Social Securi1y number is 2J2C94·1 168, his address is 472 Cactus Circle, Kilcen, 'I.'X 76542, and his birth date fs December 30, 1964. 4. TRISHAANN PARRISH's Social Secudty mtmbcr is XXX-XX-XXXX and her address is 6~9 Deer Run Road, Killeen, Texas 76549, and her birth date is April25. 1972. 5. The rights ofT!lvl<.JTHY PARRISH under the Servicemcmbcrs Civil Relief Act were fully complied with in this case. ~mentic t::cJ<~.t:.lt!IJU Ord!lr · MOl::l.t~;~;-y IU,'t.:.rerm.mt 1 i!~oLt)y 1-'arr!..o~ ..,._ 'fr1Bh.._ Ann p,.n ~~:h  ;:·.. : 6. TIMOTHY PARRISH is not retired from the United Stales United States Army at the time of this order. 7. The award of disposable retired_ pay made to TRlSHA AN:--1 PARRIS11 in tlus order is made in compliance with the. Uniformed Services Former Spouses' Protection Act. 8. It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) designee make the payments du~RJSHA ANN PARRISH of her interest in the disposable retired pay awarded in t~er directly lo TRISHA ANN PARRJSH. Award /o Nonmember Spouse IT IS THEREFORE ORDERED that TRISHA ANN PARRISH havejl!dgment against and recover from TIMOTHY PARRISH from the military retirement benefits of which resulted from his·service in the United Stales Armed Forces, according to the fraction calculated by the fonnula below. On the date of divorce, TIMOTHY PARRISH had achieved the grade ofCW3 and had served 13 years and 4 months. The high average pay over the last 36 months_ of the marriage was $5382.1 0. The number of months of marriage is one hundred sixty ( 160). :'I The formula is: Fifty per cent(50%) multiplied by the number of months married divided r~. .; by the total number of months served by TIMOTHY PARRJSH. This fraction is further '! multiplied by the disposable military retired pay to which is TIMOTHY PARRJSH entitled at 1 retirement, the result being the share thai TRISHA ANN l'ARRJSH, the Non-Member spouse, is II entitled to received, IF, AS and WHEN TIMOTHY PARRJSH receives retired pay or: ' I ·I 50% X Number of months married X Disposable military retired pay~Non-Member's share Total number of months served !TIS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRJSH each -~ month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH 's disposable military retired pay, together will all cost-of-living ~djustments applicable thereto, payable only IF, AS and WHEN received by TIMOTHY PARRJSH. ·• IT IS ORDERED that, if DFAS declines or refu.•es to pay TRISHA ANN PARRISH ~J each month, TIMOTIJY PARRJSH is ORDERED to calculate and pay TRISHA ANN I ~.x-..u.~:it: flelllt.ioru: Order - ':;"11r.oth\' flarrlflh v. 1'ri&he. Arln ~.l.lJ.tar~ J•&r~.i.&h Rtttlnne:.:.. [ :~ !'-, ;,.; rj i· l:.~ i,j PARRISH's share each month to TRISI-JA ANN PARRISH at her last known address by check, f:(! ,.,. i·-· ,."' money order, wire transfer, cash or any other method reasonably calculated to meet the ~ r:; ;·j ,., fl ! 1 conditions of this Order_ IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each il iJ 1 month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH's j 1 disposable retired pay at retirement, together with all cost-of-living adjustments applicable ~i K:t 'I ' thereto, payable, IF, AS, and WHEN received by TIMOTHY PARRISH. lj i"· !i Con.flrllclive Trust IT IS FURTHER ORDERED that TIMOTHY PARRISH be and is hereby designated a constructive trustee for the benefit ofTRISHA ANN PARRISH for the purpose of receiving the retired pay awarded herein to TRISHA ANN PARRISH as TRISHA ANN PARRISH's sole and separate property until the end of the award, and TIMOTHY PARRISH be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to TRISHA:ANN PARRISH at her last known address by negotiable instrument that portion of each monthly retired pay payments ' ··_; ' ;,,~ awarded to TR!SHA ANN PARRISH herein not paid directly (or by allotment) by DFAS within i :,:~.: :;,-; •·.~: three days of the receipt of any such payments by TIMOTHY PARRISH. All payments made ~: :1 ) ·t directly to TRISHA ANN PARRISH by DFAS shall be a credit against this obligation. '·l :·._~ >' ·t For purposes of this order, TIMOTHY PARRISH is specifically directed, on penalty of I :1 contempt, to payinterest in the disposable retired pay as ordered in this order, AND IT IS SO ::r -I TRISHA ANN PARRISH's ORDERED. TIMOTHY PARRISH is specifically directed that he is ;·: I, '(" 'i not relieved of that obligation except to the extent that he is specifically notified that I 00 percent ofTRISHA Al\'N PARRISH's interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED. :I IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by ~ " 1 TIMOTHY PARRISH shall not reduce the amount equal to the percentage of the disposable I retired pay or of the disposable retired pay the Court has herein awarded to TRJSHA AlliN I 'I PARR!SH , except as provided by Jaw. In this regard, IT IS FURTHER ORDERED that TIMOTHY PARRJSH shall not merge his military retired pay with any other pension and shall not pw-sue any course of action that would defeat, reduce, or limit TRISHA ANN PARRISH 's ~~st~c ~elUtlons Ord~r - Hili tory R~tir~~cn: 'I.HIOt!.y Pc.r:il!lt Y. :irJNI,iJ lt::JI I'A!'l'.iSh j  -·· right to receive TRISHA ANN PARRISH's full share of TIMOTHY PARRISH's retired pay as awarded in this order, unless otherwise lioaso.lor. M;lilooyltciUancnl 4 ·e PAIUUSH, TIMOTHY 11·1117·FM AC NOV 12 20ft SHj:~IA F. NORMAl~> ~~,:.,~~