ACCEPTED
13-15-00150-CV
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG 7/2/2015 10:52:24 AM
CECILE FOY GSANGER
CLERK
07/02/15
NO. 13-15-00150-CV
CECILE FOY GSANGER, CLERK
BY cholloway
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH DISTRICT OF TEXAS
7/2/2015 10:52:24 AM
CECILE FOY GSANGER
Clerk
CORPUS CHRISTI - EDINBURG
TRACIE MARIE SCHEFFLER F/K/A
TRACIE MARIE PARSON, APPELLANT,
v.
PAUL MICHAEL PARSON, APPELLEE.
On Appeal From the 81st Judicial
District Court of Wilson County, Texas,
Trial Court Cause No. 10-10-0579-CVW
APPELLANT’S BRIEF
__________________________________________________________________
Kirk Dockery, Attorney in Charge
State Bar No. 05929220
Email: kirkdockery@gmail.com
Scott R. Donaho
State Bar No. 05967755
Email: srdonaho@floresville.net
The Law Offices of
DONAHO & DOCKERY, P.C.
P.O. Box 459
Floresville, Texas 78114
Tel: 830-393-2700
Fax: 830-393-3029
ATTORNEYS FOR
TRACIE MARIE SCHEFLLER
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case and were parties to the trial court's order
in this matter. These representations are made so the Judges of this Court may
evaluate possible disqualification or recusal.
APPELLANT: Tracie Marie Scheffler, referred to as “Scheffler” or “wife”
Counsel for Appellant are:
The Law Offices of
DONAHO & DOCKERY, P.C.
Kirk Dockery
Email: kirkdockery@gmail.com
State Bar No. 05929220
Scott R. Donaho
Email: srdonaho@floresville.net
State Bar No. 05967755
P.O. Box 459
Floresville, Texas 78114
Telephone: 830-393-2700
Fax: 830-393-3029
APPELLEE: Paul Michael Parson
Counsel for Appellee are:
DIAZ JAKOB, LLC
Jason J. Jakob
State Bar No. 29042933
Email: jjakob@diazjakob.com
The Historic Milam Building
115 E. Travis Street, Suite 333
San Antonio, Texas 78205
Tel.: (210)226-4500
Fax: (210)226-4502
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
APPELLANT'S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT AND AUTHORITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jurisdiction: Clarification or Modification?. . . . . . . . . . . . . . . . . . . . . . . . . . 6
The DRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Calculation of Retirement Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii
INDEX OF AUTHORITIES
Cases
Allen v. Allen, 717 S.W.2d 311 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Baxter V. Ruddle, 794 S.W.2d 76 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Berry v. Berry, 647 S.W.2d 945 (Tex.1983). . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 10
Beshears v. Beshears, 423 S.W.3d 493 (Tex.App. Dallas, 2014). . . . . . . . . . . . . 17
Coker v. Coker, 650 S.W.2d 391 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App. El Paso, 2014).. . . . . . . . . . 7
Gainous v. Gainous, 219 S.W.3d 97 (Tex.App. Houston [1 Dist.], 2006).. . . . . . 17
Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex.App.-San Antonio 2002,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re R.F.G., 282 S.W.3d 722 (Tex.App.-Dallas 2009, no pet.).. . . . . . . . . . . . 8, 16
Joyner v. Joyner, 352 S.W.3d 746 (Tex.App. San Antonio, 2011). . . . . . . . . . . . . 7
National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d
517 (Tex.,1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Quijano v. Quijano, 347 S.W.3d 345 (Tex.App.-Houston [14th Dist.] 2011, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . 17
Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex.2002)
.................................................................. 7
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) . . . . . . . . . . . . . . . . . . . . . . 7
iv
State Statutes
Tex.Fam.Code Ann. 9.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex.Fam.Code Ann. 9.006(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex.Fam.Code Ann. 9.008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Federal Statutes
29 U.S.C. § 1056(d)(3)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
v
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the errors in this case are evident from the documents
contained in the clerks record, and the appendix of this brief, and the issues presented
by this brief, and that oral argument would do little to aid the court in determination
of those issues.
vi
ISSUES PRESENTED
First Point of Error
The trial court erred in granting appellee’s motion to dismiss for lack of
jurisdiction.
Second Point of Error
The trial court abused its discretion in granting appellee’s motion to
dismiss for lack of jurisdiction.
Third Point of Error
The trial court abused its discretion in failing to grant the relief
requested by Appellant to clarify the valuation of the military retirement in
the decree of divorce and the domestic relations order.
vii
NO. 13-15-00150-CV
IN THE COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TRACIE MARIE SCHEFFLER F/K/A
TRACIE MARIE PARSON, APPELLANT,
v.
PAUL MICHAEL PARSON, APPELLEE.
On Appeal From the 81st Judicial
District Court of Wilson County, Texas,
Trial Court Cause No. 10-10-0579-CVW
APPELLANT'S BRIEF
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
Tracie Marie Scheffler, herein after sometimes referred to as Scheffler,
Appellant, “wife,” or “former wife,” presents this brief in support of her request that
this Court reverse the order of the trial court dismissing the petition to clarify the
division of military retirement in the DRO for lack of jurisdiction.
STATEMENT OF THE CASE
This appeal lies from the trial court’s entering an order dismissing the former
1
wife’s petition to clarify the military retirement DRO for lack of jurisdiction.
Appellant raises three points of error. First, the trial court erred in granting
appellee's motion to dismiss for lack of jurisdiction.
Second, that the trial court abused its discretion in granting appellee's motion
to dismiss for lack of jurisdiction.
Third, that the trial court abused its discretion in failing to grant the relief
requested by Appellant to correct the valuation of the military retirement in the decree
of divorce and the domestic relations order.
STATEMENT OF FACTS
Appellant, Tracie Marie Scheffler, then known as Tracie Marie Parson, filed
suit for divorce in the 81st Judicial District Court of Wilson County, Texas, in October
2010.
Appellee, Paul Michael Parson, herein after sometimes referred to as Appellee,
“husband,” or “former husband,” was a member of the United States Armed Services
prior to the marriage and continued to be a servicemember after the divorce, and
therefore a portion of his military retirement was his separate property.
On February 3, 2011, the parties and their respective counsel or record met for
a settlement conference at the conclusion of which both parties and counsel signed
a rule 11 agreement which provided, in relevant part:
2
"5. Wife awarded:
.....
“h. ½ community interest in military retirement.
....
“6. Husband awarded:
....
“c. ½ community interest in military retirement + all H's SP
interest." (CR 92,93) (APP 1)
On May 24, 2011, the trial court entered a "Corrected Final Decree of Divorce"
which provided that wife was to receive a portion of husband’s military retirement.
Mr. Parson was at that time an active duty member of the armed services. Regarding
military retirement, the decree awarded husband the following:
“H-4. All sums, whether matured or unmatured, accrued or unaccrued,
vested or otherwise, together with all increases thereof, the proceeds
therefrom, and any other rights related to or as a result of PAUL MICHAEL
PARSON's service in the United States Navy, including any accrued unpaid
bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits
existing by reason of or as a result of PAUL MICHAEL PARSON's past,
present, or future employment, except that portion of PAUL MICHAEL
PARSON's U.S. military retirement that has been awarded in this decree to
TRACIE MARIE PARSON as more particularly specified in the domestic
relations order signed in conjunction with this decree and incorporated
verbatim in it by reference.” [emphasis added] (CR 71) (APP 2)
The decree also awarded wife the following:
“W -6. All sums, whether matured or unmatured, accrued or unaccrued, vested
or otherwise, together with all increases thereof, the proceeds therefrom, and
any other rights related to or as a result of PAUL MICHAEL PARSON's
service in the United States Navy, including any accrued unpaid bonuses,
disability plan or benefits, Thrift Savings Plan, or other benefits existing by
reason of or as a result of PAUL MICHAEL PARSON's past, present, or future
employment, except that portion of PAUL MICHAEL PARSON's U.S. military
retirement that has been awarded in this decree to PAUL MICHAEL PARSON
as more particularly specified in the domestic relations order signed in
conjunction with this decree and incorporated verbatim in it by reference.”
3
[emphasis added] (CR 73) (APP 2)
This section is perhaps inartfully drafted in that it awards wife “all” of
husband’s military retirement except that portion awarded to husband as specified in
the DRO. However, the DRO does not award the husband any portion of the military
retirement, as it only awards the former spouse a portion thereof. A strict reading of
these sections would result in the former husband receiving none of his own
retirement. This demonstrates some need for clarification.
Also on May 24, 2011, the trial court entered a "Domestic Relations Order -
Military Retirement" awarding wife a portion of husband’s military retirement which
provides as follows:
"IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States Navy, the amount of disposable retired pay calculated as
follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
multiplied by the high-36 month base pay of the Servicemember, which is
$3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
the date of divorce, which is 18 years 3 months, determined on the date of
Servicemember's retirement divided by Servicemember's monthly gross
retired pay at retirement multiplied by Servicemember's monthly disposable
retired pay at retirement." [emphasis added] (CR 80) (APP 3)
From the formula as stated in the DRO it is impossible for anyone to determine
what numbers were used for the numerator and the denominator of the fraction in
order to arrive at the “16.66 percent.” The same is also true for the formula used to
calculate the “35.0 percent.” Only by using the correct numbers, which are known
from the facts of the case, and which are correctly stated in the DRO, can we
4
determine that the wrong values have been used to for the valuation of the military
retirement in this DRO.
Former husband retired from the military on October 31, 2014. Based on
former husband’s retirement statement, former wife determined that her share of the
military retirement under the standard formula provided in Berry v. Berry, 647
S.W.2d 945 (Tex.1983), should be approximately $282.00 per month. However, when
the formula stated in the DRO was applied, the resulting figure is merely $92.00 per
month. Only then did the former wife discover that the DRO gives former husband
a windfall of approximately $190.00 per month for the remainder of his life. (CR 86)
(APP 4)
On January 6, 2015, former wife filed her “Motion to Correct or Amend
Domestic Relations Order for Military Retirement” requesting clarification of the
formula used in the DRO. (CR 85) (APP 4)
At a hearing on that motion on February 9, 2015, the former wife presented her
motion for clarification to the trial court. At that time the former husband presented
his motion to dismiss the former wife’s motion because it would be an impermissible
modification of the divorce decree, and therefore the trial court lacked jurisdiction to
consider the motion. The trial court took both motions under advisement. On
February 13, 2015, the trial court entered its order dismissing the former wife’s
motion for lack of jurisdiction.
5
ISSUES PRESENTED
First Point of Error
The trial court erred in granting appellee’s motion to dismiss for lack of
jurisdiction.
Second Point of Error
The trial court abused its discretion in granting appellee’s motion to
dismiss for lack of jurisdiction.
Third Point of Error
The trial court abused its discretion in failing to grant the relief requested
by Appellant to clarify the valuation of the military retirement in the decree of
divorce and the domestic relations order.
ARGUMENT AND AUTHORITY
Jurisdiction: Clarification or Modification?
By granting the motion to dismiss for lack of jurisdiction the Appellant’s
motion to clarify the military retirement, the trial court failed to recognize the subtle
difference between a modification and a clarification of military retirement. (CR148)
(APP 5) Appellee, the former husband, asserts that the former wife is seeking to
modify the apportionment of the community estate’s share of the military retirement.
6
However, the former wife is instead seeking to clarify the valuation of the community
estate’s share of the military retirement. (CR 103) (APP 6) Both parties should be
entitled to reasonable certainty that the community portion of the military retirement
has been valued correctly.
A trial court's ruling on a post-divorce motion for clarification of a divorce
decree is reviewed for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990) (per curiam); Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App.
El Paso, 2014). A trial court abuses its discretion when it acts arbitrarily or
unreasonable or without reference to any guiding rules or principles. Id.
The trial court’s dismissal for lack of jurisdiction is a question of law that the
court of appeal should review de novo. Tex. Natural Res. Conservation Comm'n v.
IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Guevara v. H.E. Butt Grocery Co., 82
S.W.3d 550, 551 (Tex.App.-San Antonio 2002, pet. denied); 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 Appellant sought to “clarify” or to “modify” the DRO. Appellant
asserts that the DRO is ambiguous because, although there was an attempt to use the
formula set forth in Berry, the DRO failed to use the correct values for the valuation,
and the DRO reduced the Berry formula calculations to percentages without showing
the actual numbers used to performs those calculations. In other words, the DRO
failed to show the full math used for the valuation. Without showing those numbers,
7
and thus without making the valuation capable being verified, the parties can only
guess at what numbers were actually used in the formula.
Furthermore, any attempt to replicate the valuation set forth in the DRO using
all of the values, which are now known, results in a valuation of the community
portion that is far greater than that provided in the DRO. Consequently, the share
awarded to the former wife by the DRO is about one-third of the correct amount.
The DRO in this case is a part of the agreement between husband and wife
upon divorce. (CR 85) (APP 1) An agreed property division, although incorporated
into a final divorce decree, is treated as a contract and is controlled by the rules of
construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 313
(Tex. 1986); In re R.F.G., 282 S.W.3d 722, 725 (Tex.App.-Dallas 2009, no pet.). A
latent ambiguity can arise when a contract appears unambiguous on its face, but when
applied to the subject matter with which it deals an ambiguity appears. National
Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520
(Tex.,1995). Such is the manner in which this ambiguity was discovered. It was not
until the final variable was known, that being former husband’s disposable retired
pay, that former wife could perform the final calculation and determine that an error
had been made.
The primary problem in this case is the failure to correctly utilize the formula
prescribed in Berry v. Berry. All variants of that formula indicated that all original
8
values, that is, the numerators and denominators, etc., of the necessary calculations
be shown. Then let the DFAS perform its function and calculate the former spouses
share of the disposable retired pay. The DRO in this case takes the unusual step of
purporting to perform the calculations of the second and third variables down to
percentages, which had the effect of masking the fact that the incorrect numbers had
been used. The results of those calculations in the DRO cannot be replicated by using
the known number, which are elsewhere stated correctly in the same DRO. We will
never know where the error was made, but the fact that an error has been made is
easily demonstrated.
In any valuation of the community share of military retirement the relevant
numbers are easily determined from existing facts. In this case, either the wrong
numbers were used in the formula, or there has been mathematical error. Either way,
the result is a miscalculation of the community share of the military retirement.
It is easily understood that military retirement benefits earned during marriage
are community property. But for many years the courts struggled with valuing the
community property interest when the servicemember was still on active duty at the
time of divorce, or when the servicemember joined the military prior to marriage. The
formula in Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977), was created to
address the issue of apportionment of the community share. The Taggart formula
provides a fraction, the numerator of which is the number of months the
9
servicemember served during marriage and the denominator of which is the total
number of months the servicemember has served in the military at the time of divorce.
Case law stated the formula as follows:
months of service servicemember's
50% X during marriage X retirement benefit
------------------------
total months
of service
The first variable, fifty percent, indicates that the trial court intends to divide the
community portion equally between the parties. The division may be disproportionate
based on the circumstances presented.
The Taggart formula was problematic in that it did not recognize that
post-divorce military service belonged to the servicemember spouse's separate estate.
That changed six years later with Berry v. Berry, and since then Texas law has
clearly mandated that the community estate’s interest in military retirement be valued
as of the date of divorce, and that it include a method for determining what portion
of post-marital service belongs to the member's separate estate. The method used is
to provide that the percentage awarded to the former spouse shall be multiplied by the
benefit earned at the grade and time in service that exists as of the date of divorce,
plus an equal percentage of cost of living increases, if, as, and when received. The
formula therefore changed to:
10
months of service servicemember's
50% X during marriage X retirement benefit
------------------------ as earned by rank
total months at time of divorce
of service
With this formula the valuation becomes a matter of plugging in the known values as
of the date of divorce.
The 2010 version of the Texas Family Law Practice Manual states the formula
in the form for a military retirement DRO as follows:
"IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States [branch of service], the amount of disposable retired pay
calculated as follows:
[___________] percent [percentage awarded former spouse]
X multiplied by
[___________] [number of months of servicemember's service
during marriage]
÷ divided by
[___________] [number of months servicemember has been on
active duty on date of divorce] percent
X multiplied by
[___________] percent [0.025 multiplied by number of full months of
servicemember's creditable service toward
retirement on divorce divided by 12 1 ] percent
X multiplied by
[___________] [servicemember's high-36 month base pay on
1
The Defense Finance and Accounting Service has provided this formula post Berry to
more easily allow for this calculation in that servicemembers accrue retirement benefits at the
rate of 2.50% per month multiplied by their highest 36-month base pay.
11
date of divorce] (APP 7)
divided by Servicemember's monthly gross retired pay at retirement multiplied
by Servicemember's monthly disposable retired pay at retirement."
The final variables in the formula, that is, the amount of “Servicemember's
monthly gross retired pay at retirement multiplied by Servicemember's monthly
disposable retired pay at retirement” cannot be known until after the servicemember
has actually retired. Therefore, if the servicemember spouse is still active duty the
actual value of the former spouse’s portion of the military retirement cannot be
accurately calculated until the actual retirement occurs.
Upon retirement of the servicemember it should then be a simple procedure to
calculate the amount of the former spouse’s share of the military retirement using the
same formula, all of the previously known values, together with the final variable,
which is the disposable retired pay.
In this case, as of the date of divorce, each of the following facts was known,
and these facts are actually stated in the DRO:
a. The parties were married on June 5, 2004. (CR 41) (APP 3)
b. The parties were divorced on February 3, 2011. (CR 41) (APP 3)
c. During the marriage Respondent served 6 years and 8 months (80 total
months) of creditable service towards military retirement. (CR 41) (APP
3)
d. As of the date of divorce Respondent had served 18 years and 2 months
12
(218 total months) of creditable service towards military retirement.
(CR 41) (APP 3)
e. Respondent's high-36 month base pay on date of divorce was $3,322.16.
(CR 41) (APP 3)
Since Respondent's retirement on October 31, 2014, the following facts are
known:
a. Respondent's monthly gross retired pay at retirement is $2,341.00. (CR
90) (APP 4) [A
b. Respondent's monthly disposable retired pay at retirement is $2,243.14.
(CR 90) (APP 4)
The DRO
The DRO entered in this case stated:
“Award to Former Spouse
“IT IS THEREFORE ORDERED that Former Spouse have judgment against
and recover from Servicemember, on Servicemember's retirement from the
United States Navy, the amount of disposable retired pay calculated as
follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
multiplied by the high-36 month base pay of the Servicemember, which is
$3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
the date of divorce, which is 18 years 3 months, determined on the date of
Servicemember's retirement divided by Servicemember's monthly gross
retired pay at retirement multiplied by Servicemember's monthly disposable
retired pay at retirement.” (CR 80) (APP 3)
The DRO in this case fails to state the numbers used to obtain the second percentage,
that is, it fails to state the numerator and the denominator used to calculate the “16.66
13
percent.” The DRO also fails to state the variable used to calculate the third value,
that is, it fails to state the multiplier used to calculate the “35.0 percent.” How those
numbers were calculated we may never know, but Appellant can demonstrate that the
calculation is simply not correct. Thus, the valuation of the community share of the
military retirement benefit was not performed correctly.
Calculation of Retirement Pay
Using the known values from this case, the former wife’s share of military
retirement should be calculated as follows:
50.0% [percentage awarded former spouse]
X multiplied by
80 [number of months of servicemember's service
during marriage]
X multiplied by
218 [number of months servicemember has been on
active duty on date of divorce] percent
X multiplied by
(0.025 x 218 / 12)% [percentage of servicemember's gross retired pay
entitlement if servicemember were allowed to retire
on date of divorce, that is, 0.025 multiplied by
number of full months of servicemember's
creditable service toward retirement on divorce
divided by 12] percent
X multiplied by
$3,322.16 [servicemember's high-36 month base pay on date
of divorce]
÷ divided by
$2341.00 Servicemember's monthly gross retired pay at
retirement
X multiplied by
$2,243.14 Servicemember's monthly disposable retired pay at
retirement."
All calculations are performed as follows:
14
0.5 x 0.36697 x 0.45416 x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92
Stated another way:
50% x 36.697% x 45.416% x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92
The underlined numbers in each verison shows where the incorrect numbers have
been corrected. This demonstrates how the standard formula provided in Berry should
have been used in this case. The DRO actually contains all of the correct information,
that is, the beginning values, that are to be used in the stated formula. But for some
unknown reason, the DRO fails to use those correct values in the valuation of the
military retirement. And for that reason the DRO is ambiguous.
The DRO provides, “50.0 percent multiplied by 16.66 percent multiplied by
35.0 percent multiplied by the high-36 month base pay of the Servicemember, which
is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the
date of divorce, which is 18 years 3 months . . .” Importantly, we can determine the
intent of the parties and the court from the first number stated, that being the
percentage of the community estate’s portion of the military retirement awarded to
the wife. The DRO clearly states “50.0 percent." This amount coincides with the rule
11 agreement signed by the parties prior to the entry of the final decree.
From the formula we also know that the second value, stated as “16.66
percent,” should be the product of a fraction, the numerator of which is the “number
of months of servicemember's service during marriage,” which the DRO states is 80,
15
and the denominator of which is the “number of months servicemember has been on
active duty on date of divorce,” which the DRO states is 218. However, 80 divided
by 218 equals 36.697 percent. It does NOT equal 16.66 percent, the product of that
calculation stated in the DRO. Consequently, that portion of the DRO is ambiguous.
From the formula we also know that the third value, stated as “35.0 percent,”
should be the product of a calculation, the first multiplier of which is 0.025, the
second multiplier of which is the "number of months servicemember has been on
active duty on date of divorce," which the DRO states is 218, which is then divided
by 12. However, 0.025 multiplied by 218 and then divided by 12 equals 45.416
percent. It does NOT equal 35.0 percent, the production of that calculation stated in
the DRO. Consequently, that portion of the DRO is also ambiguous.
Because the DRO gives all the correct information necessary to calculate the
valuation of the military retirement properly, and then it utterly fails to calculate the
valuation of the military retirement in the proper manner, the DRO is ambiguous. And
thus clarification of the DRO is necessary so that the military retirement is correctly
valued.
Furthermore, because the valuation of the military retirement by the DRO is
ambiguous, then the trial court should have reviewed DRO in order to aid it in finding
the intent of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); In re
R.F.G., 282 S.W.3d at 725. Whether this DRO is ambiguous is a question of law this
16
court should review de novo. Coker, at 394; see also Shanks v. Treadway, 110 S.W.3d
444, 447 (Tex. 2003). The purpose of the DRO is to create or recognize the former
wife’s rights, and to assign to the former wife the right to receive, her awarded
portion of the military retirement. Quijano v. Quijano, 347 S.W.3d 345, 353–54
(Tex.App.-Houston [14th Dist.] 2011, no pet.); see also 29 U.S.C. § 1056(d)(3)(B)(i).
Res judicata applies to final divorce decrees and, under the same logic, to DRO’s.
Baxter V. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). But Appellant’s motion to
clarify the QDRO should not be barred by res judicata if she can demonstrate, as she
has, that a mistake has been made. Gainous v. Gainous, 219 S.W.3d 97, 105
(Tex.App. Houston [1 Dist.],2006). A trial court that renders a divorce decree and a
DRO generally retains the power to clarify the property division made or approved
in those documents. Tex.Fam.Code 9.002, 9.006(a), 9.008. The trial court had
jurisdiction to enter an order clarifying the ambiguities in the DRO in order to give
effect to the division of the property attempted therein, and had a duty to do so. Id.
§ 9.008(b). see also § 9.1045(a) (West 2006); Beshears v. Beshears, 423 S.W.3d 493,
500-01 (Tex.App. Dallas, 2014).
Appellant therefore requests that the order of the trial court dismissing the
motion of Appellant to clarify the DRO for lack of jurisdiction be reversed. Appellant
requests that the court find that the trial court abused its discretion in failing to grant
the relief requested, and issue clarification of the DRO in which the figures stated
17
therein of 16.66 percent for the calculated value resulting from the number of months
of servicemember's service during marriage divided by number of months
servicemember has been on active duty on date of divorce, be changed to the actual
calculated value of 36.697 percent. [80 ÷ 218 = 36.697%]. Appellant further requests
that the court find that the trial court abused its discretion in failing to grant the relief
requested, and issue clarification of the DRO in which the figure stated therein of
35.0 for the calculated value resulting from 0.025 multiplied by number of full
months of servicemember's creditable service toward retirement on divorce divided
by 12, be changed to the actual calculated value is of 45.416 percent. [0.025 x 218
÷ 12 = 45.416%].
PRAYER
Appellant prays that this Honorable Court reverse and remand the trial court’s
dismissal of the motion to clarify; that the requested clarification of the DRO be
rendered by the court; and for such other and further relief as this Honorable Court
deems fit to grant.
Respectfully submitted,
The Law Offices of
DONAHO & DOCKERY, P.C.
P.O. Box 459
Floresville, Texas 78114
Tel: 830-393-2700
Fax: 830-393-3029
/s/ Kirk Dockery
18
________________________________
Kirk Dockery, Attorney in Charge
State Bar No. 05929220
Email: kirkdockery@gmail.com
Scott R. Donaho
State Bar No. 05967755
Email: srdonaho@floresville.net
CERTIFICATE OF SERVICE
I certify that on July 1, 2015, a true and correct copy of the above and
foregoing document was delivered to all counsel of record by the Electronic Filing
Service Provider, as follows:
/s/ Kirk Dockery
Kirk Dockery
DIAZ JAKOB, LLC BY ELECTRONIC SERVICE
Jason J. Jakob
State Bar No. 29042933
Email: jjakob@diazjakob.com
The Historic Milam Building
115 E. Travis Street, Suite 333
San Antonio, Texas 78205
Tel.: (210)226-4500
Fax: (210)226-4502
19
CERTIFICATE OF COMPLIANCE
This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(2)(B)
because this brief consists of 4,089 words, excluding the parts of the brief exempted
by Tex. R. App. P. 9.4(i)(1).
/s/ Kirk Dockery
________________________________
Kirk Dockery
10201B
20
APPENDIX 1
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Combined Opinion