Dissolving the marriage of Kenneth Marshall Grant and Bonnie F. Grant on 9 April 1981, the trial court ordered the division of community property the parties agreed upon in open court. The division includes an award to Bonnie of thirty-five (35%) percent of Kenneth's military nondisability retirement pay.
Timely appealing, Kenneth contends that under the 26 June 1981 decision in McCarty v. McCarty, 453 U.S. 210,101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the trial court did not have jurisdiction to divide his military retirement benefits as community property. Bonnie denies the contention, particularly claiming that under Alexander v. Alexander, 373 S.W.2d 800,804-05 (Tex.Civ.App.-Corpus Christi 1963, no writ), Kenneth is contractually bound by the consent judgment which, by authority of Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900,908 (1955), cannot be repudiated on appeal.
We conclude that the McCarty decision controls to preclude a division of Kenneth's military nondisability retirement benefits through application of Texas community property laws by the divorce judgment which has not become final. Accordingly, we reverse and remand.
The trial court's 9 April 1981 judgment recites, in part, that
The Court further finds that the parties have acquired a community property estate during their marriage and that the parties have agreed in open Court that the following division of said properties should be made:
Bonnie F. Grant shall take as her separate property and estate the following:
1. Thirty-five (35%) percent of the gross payments, benefits and any increases thereof which are being paid to Kenneth M. Grant as a U.S. Air Force retiree under Air Force account number 653497. In connection with said retirement account it is hereby ORDERED that Kenneth M. Grant is made the trustee to receive the entire amount of said monthly retirement and benefits and any increases therein, and the said Kenneth M. Grant, as trustee, is herewith ordered to pay to Bonnie F. Grant 35% of the gross amount, benefits and increases of said retirement checks, same to be paid to Bonnie F. Grant not later than the 2nd day of each month commencing May 2, 1981.
At the time the judgment was rendered, military retirement benefits earned during *Page 255
marriage constituted, under Texas law, community property subject to division upon divorce. Trahan v. Trahan, 626 S.W.2d 485,487 (Tex. 1981). However, before the judgment could become final by virtue of the appeal, the United States Supreme Court had considered in McCarty v. McCarty, supra, the application of community property principles to military retirement pay provided by Congressional enactment of the military retirement system. Upon the rationale expressed in McCarty, the Court held that under the Supremacy Clause of the United States Constitution, the courts of California, a community property state, were precluded from dividing military nondisability retirement pay upon divorce.
In urging the application of the McCarty holding for a reversal of the judgment, Kenneth has cast his sole point of error in this language: "The trial Court did not have jurisdiction to consider the question of the divisibility of military retirement benefits as community property." Yet, it is unnecessary that we consider the appellate issue as one of jurisdiction, a term of different meanings and often used without any determinate signification, 50 C.J.S.Jurisdiction, pp. 1089-90 (1947), thereby conjuring the specter of the invalidity of similar, but final, judgments that otherwise have been protected by res judicata consequences. See, e.g., Erspan v. Badgett, 659 F.2d 26 (5th Cir. 1981), cert. denied, ___ U.S. ___ ,102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). It suffices that in the light of the statement and argument under the point of error, our attention is directed to the matter complained of for a determination of reversible error. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex. 1976).
The McCarty decision is recognized and followed in Texas as the supreme law of the land to which Texas law is subject. Trahan v. Trahan, supra, at 487. As such, it preempts division of a spouse's entitlement to military nondisability retirement benefits through application of Texas community property law, and mandates that such benefits shall not be divided in a divorce action in which there has not been, as here, a final adjudication. Id. at 487-88.
Consequently, the judgment must be, and is, reversed. The cause is remanded to the trial court for its determination of a just and right division of the estate of the parties, sans a division of Kenneth's military nondisability retirement benefits, as prescribed by Section 3.63 of the Texas Family Code (Vernon 1975). See Eichelberger v. Eichelberger, 582 S.W.2d 395,403 (Tex. 1979); McKnight v. McKnight, 543 S.W.2d 863 (Tex. 1976).