In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00182-CV
___________________________
FABIAN THOMAS, Appellant
V.
DENISE DANIEL, Appellee
On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 20-6807-462
Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Years after their divorce, Fabian Thomas and Denise Daniel are embroiled in a
dispute over their rights to the former’s pension benefits. Thomas moved for an order
to clarify that Daniel had a limited stake in the benefits, but the trial court denied him
relief. We hold that Thomas was entitled to such a clarifying order, and so we reverse
and remand.
I. BACKGROUND
Thomas began working for the federal government in 1989. He and Daniel
married in 2000. A divorce decree dissolved the marriage in September 2011.
One of the assets divided in the decree was Thomas’s federal pension benefits.
Various provisions in the decree appeared to award Daniel half of the community portion
of Thomas’s pension benefits, which he earned during the marriage. However, one
provision in the decree appeared to improperly award Daniel half of all the pension
benefits, including those benefits that were separate property, which Thomas earned
before and after the marriage. The decree further provided that the “community
portion” of the benefits would be “more particularly defined in a Court Order
Acceptable for Processing.” But in January 2012, a court order acceptable for
processing (COAP) was rendered, and it instead reflected that Daniel was awarded 50%
2
of all the pension benefits. Thomas appealed the divorce decree on grounds unrelated
to this appeal, but he was unsuccessful.1
The problem with the decree went unnoticed until Thomas retired. When he
began drawing pension benefits in 2018, he noticed that he was receiving less money
than he expected. Thomas protested to the pension plan administrator, to no avail.
So, Thomas filed a motion for an amended COAP to clarify his entitlement to
the pension benefits, which gave rise to this suit. He argued that the COAP was
erroneous because it conflicted with the divorce decree in that it awarded Daniel a
greater-than-intended share of the benefits.
After the trial court reviewed the relevant documents and heard testimony from
Thomas and Daniel, it denied Thomas’s motion for an amended clarifying order. This
appeal ensued.
II. AMENDED CLARIFYING ORDER
In his first and second issues, Thomas challenges the denial of his motion for an
amended clarifying order. According to Thomas, the decree was intended to divide
only the community portion of his benefits. He asserts that the original COAP
1
See Thomas v. Daniel, No. 02-12-00397-CV, 2013 WL 3771321, at *2–3 (Tex.
App.—Fort Worth July 18, 2013, no pet.) (mem. op.) (rejecting Thomas’s arguments
concerning attorney’s fees and the use of unsworn testimony); Thomas v. Daniel, No. 02-
12-00107-CV, 2012 WL 3600060, at *1 (Tex. App.—Fort Worth Aug. 23, 2012, no pet.)
(per curiam) (mem. op.) (dismissing Thomas’s appeal at his behest); Thomas v. Daniel,
No. 02-12-00038-CV, 2012 WL 1868613, at *1 (Tex. App.—Fort Worth May 24, 2012,
no pet.) (per curiam) (mem. op.) (dismissing Thomas’s appeal for want of prosecution).
3
conflicted with the divorce decree and erroneously reflected that half of all the pension
benefits was awarded to Daniel, effectively modifying the decree’s intended division of
property. In Thomas’s view, the trial court’s refusal to issue a new COAP to correct
this problem was an abuse of discretion.
Daniel argues that it has been too long since the divorce decree and COAP were
rendered for the trial court to issue a new COAP. By Daniel’s account, the 2011 decree
and the 2012 COAP clearly spelled out what was to happen with Thomas’s pension
benefits, and any attempt to alter that division now is an impermissible collateral attack.
A. Standard of Review & Applicable Law
We review the trial court’s ruling on a motion for enforcement or clarification of
a divorce decree under an abuse-of-discretion standard. Murray v. Murray, 276 S.W.3d
138, 143 (Tex. App.—Fort Worth 2008, pet. dism’d). A trial court abuses its discretion
when it acts unreasonably, arbitrarily, or without reference to any guiding rules or
principles. Id.
As with other final, unappealed judgments that are regular on their face, divorce
decrees and judgments are not vulnerable to collateral attack. Hagen v. Hagen, 282
S.W.3d 899, 902 (Tex. 2009). The decree must be void, not voidable, for a collateral
attack to be permitted. Id. Errors other than lack of jurisdiction over the parties or the
subject matter render the judgment voidable and may be corrected only through a direct
appeal. Id.
4
A trial court retains continuing subject-matter jurisdiction to clarify and to
enforce a divorce decree’s property division. J.K. v. A.K., No. 02-19-00010-CV, 2019
WL 5792662, at *5 (Tex. App.—Fort Worth Nov. 7, 2019, no pet.) (mem. op.) (citing
Tex. Fam. Code Ann. §§ 9.002, .006, .008). “Such orders may more precisely specify
how the previously ordered property division will be implemented so long as the
substantive division of the property is not altered.” Id. (cleaned up). “[C]ourts may not
‘amend, modify, alter, or change the division of property’ originally set out in the
decree.” Hagen, 282 S.W.3d at 902 (quoting Tex. Fam. Code Ann. § 9.007(a)). “The
remedy of clarification applies not only to property divisions specifically set forth in the
decree but to those divisions which are merely approved and incorporated by reference
in the decree.” Marshall v. Priess, 99 S.W.3d 150, 156–57 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (citing Dechon v. Dechon, 909 S.W.2d 950, 956 (Tex. App.—El Paso
1995, no writ)).
Once the trial court’s plenary power has expired, attempting to obtain an order
that alters or modifies a divorce decree’s property division is an impermissible collateral
attack. Hagen, 282 S.W.3d at 902; see Beshears v. Beshears, 423 S.W.3d 493, 501 (Tex.
App.—Dallas 2014, no pet.). “[S]imply put, res judicata applies to the property division
in a final divorce decree, just as it does to any other final judgment, barring subsequent
collateral attack even if the divorce decree improperly divided the property.” Murray,
276 S.W.3d at 144.
5
The federal ERISA regime gave birth to a “species of post-divorce enforcement
order” called qualified domestic relations orders or QDROs.2 In re Marriage of Denning
& Stokes, No. 14-19-00646-CV, 2021 WL 3577731, at *2 (Tex. App.—Houston [14th
Dist.] Aug. 10, 2021, no pet.); Beshears, 423 S.W.3d at 500. A QDRO is a statutorily
sanctioned domestic relations order that creates or recognizes an alternate payee’s right
to, or assigns to an alternate payee the right to, a portion of the benefits with respect to
a participant under a plan. Denning, 2021 WL 3577731, at *2; Lipsey v. Lipsey, 983 S.W.2d
345, 349 (Tex. App.—Fort Worth 1998, no pet.). A court order acceptable for
processing or COAP, though unrelated to ERISA, is similar in kind to a QDRO and
will be discussed herein as if synonymous with a QDRO. See Private retirement plans:
federal law—State procedures for entering QDROs, 2 Equit. Distrib. of Prop., 4th § 6:20 nn.1,
26; see also Marshall, 99 S.W.3d at 159 (treating a COAP as it would a QDRO). See
generally 5 C.F.R. § 838.103.
The trial court may render a postdecree QDRO “to ‘correct’ or ‘clarify’ a prior
QDRO ‘to effectuate the division of property ordered by the court’ in the final decree.”
Dalton v. Dalton, 551 S.W.3d 126, 139 (Tex. 2018) (quoting Tex. Fam. Code Ann.
§ 9.1045(a)); see Marshall, 99 S.W.3d at 157 (same as to COAPs). But as with any
2
ERISA’s preemption provisions “are designed to establish pension and benefit
plan regulation as an exclusive federal concern.” Arena v. Arena, 822 S.W.2d 645, 648
(Tex. App.—Fort Worth 1991, no writ). ERISA provides that its preemption rule does
not apply to QDROs, which are orders that meet certain statutory requirements. Id.
(citing U.S.C.A. § 1144(b)(7)); see 29 U.S.C.A. § 1056(d).
6
postdivorce enforcement or clarification order, “trial courts are ‘without authority to
enter a QDRO altering the terms of the decree.’” Dalton, 551 S.W.3d at 140 (quoting
Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003)); Denning, 2021 WL 3577731, at *2.
“To determine whether a subsequent order clarifies or modifies a decree, ‘we
must interpret the decree to determine not what the trial court should have done but,
if possible, what the trial court actually did.’” Murray, 276 S.W.3d at 144 (quoting, with
some license, Shanks, 110 S.W.3d at 447). Agreed judgments are interpreted in
accordance with contract law. Id. We consider the entire written instrument and
attempt to harmonize and to give effect to all of the provisions of the contract by
analyzing the provisions with reference to the whole agreement. Waldrop v. Waldrop,
552 S.W.3d 396, 407 (Tex. App.—Fort Worth 2018, no pet.) (op. on reh’g en banc).
Even if none of the parties assert that a contract is ambiguous, a court may determine
that it is ambiguous. J.K., 2019 WL 5792662, at *5. 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. Shanks, 110 S.W.3d at 447. “If the decree is
ambiguous, the court should review the record along with the decree to aid in
interpreting the judgment.” Id. “In addition, if a judgment is ambiguous—that is,
subject to more than one reasonable interpretation—courts should adopt the
construction that correctly applies the law.” Id. As with other written instruments,
whether a divorce decree is ambiguous is a question of law. Id.
7
Texas law generally prohibits courts from divesting spouses of their separate
property. Id. at 448. In Texas, pension benefits accruing for services rendered after a
divorce are not part of the parties’ community estate subject to a just and right division.
Marshall, 99 S.W.3d at 158.
B. Analysis
We begin by reviewing the divorce decree’s terms, which conflict with one
another as to what portion of the pension benefits were meant to go to Daniel. One
of the decree’s provisions appeared to state that Daniel was entitled to half of all the
benefits, including Thomas’s separate property; it provided that the portion awarded to
Daniel is “fifty (50%) percent of the Husband’s Gross Monthly Annuity . . . determined
as of the date the Court signs this Final Decree of Divorce.” See Reiss v. Reiss, 118
S.W.3d 439, 441–42 (Tex. 2003) (holding that a divorce decree provision that a non-
employee spouse “shall receive fifty percent (50%) of such retirement or pension
benefit to which [the employee spouse] is entitled” unambiguously awarded the non-
employee spouse half of the total retirement benefits rather than half of the community
portion of those benefits).
Many other provisions in the decree instead stated that Daniel was meant to
receive half of only the community portion of the benefits. One provision stated that
Daniel was entitled to half of “the vested community portion” of the benefits. Another
provision stated that Daniel was awarded 50% of the benefits earned “as a result of
Husband’s employment . . . during the period of the parties’ marriage,” which would be
8
the community portion of the benefits. A third provision likewise referred to “the
community portion of the benefit awarded to Wife herein.” And a fourth provision,
which was found among the awards to Thomas, stated that he was entitled to the
remaining portion of the pension benefits “after the award to Wife . . . of her 50%
interest in the vested community portion of same.”
The COAP that was incorporated into the decree only added to the conflict and
confusion. The decree indicated that Daniel’s 50% stake in the “vested community
portion” of the benefits was to be “more particularly defined in a Court Order
Acceptable for Processing,” and the decree thus indicated that the incorporated COAP
would deal only with the community portion of the benefits. However, the
incorporated COAP itself appeared to flatly provide Daniel with half of all the benefits,
and that is how the pension plan administrator interpreted the COAP; the COAP stated
that Daniel “is entitled to a share of those benefits . . . , with that share being Fifty
Percent (50%) of the [Employee’s] Gross Monthly Annuity under FERS.” See id.
Often, a QDRO or COAP is employed as a post-decree clarification of the
decree’s meaning. In this case, however, the trial court expressly incorporated the
COAP into the terms of the decree, and it did so within plenary power.3 As an
3
The entry of the COAP came months after the decree, but it was rendered
within plenary power, while the trial court still retained the ability to modify its decree
and incorporate the COAP. Generally, a trial court may correct or revise its judgment
only during the period of its plenary power, which is within thirty days after the
judgment. Moore v. Brown, 993 S.W.2d 871, 874 (Tex. App.—Fort Worth 1999, pet.
denied) (citing Tex. R. Civ. P. 329b(d)). That period is extended if, within the thirty
9
incorporated part of the decree, the COAP was not a clarification of the decree, but a
source of further conflict among the decree’s terms. See Fox v. Fox, No. 03-04-00749-
CV, 2006 WL 66473, at *7 (Tex. App.—Austin Jan. 13, 2006, no pet.) (mem. op.)
(concluding that where an instrument was incorporated into a decree and the
instrument conflicted with the decree’s terms, this gave rise to an ambiguity in the
decree); see also In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (orig. proceeding).
“This conflict creates an ambiguity . . . .” Coker v. Coker, 650 S.W.2d 391, 394
(Tex. 1983); see Shearn v. Brinton-Shearn, No. 01-17-00222-CV, 2018 WL 6318450, at *9
days, a motion assailing the judgment is filed. Shakouri v. Shakouri, No. 02-20-00297-
CV, 2022 WL 189084, at *1 (Tex. App.—Fort Worth Jan. 20, 2022, no pet. h.) (mem.
op.). “[A] timely filed postjudgment motion that seeks a substantive change in an
existing judgment qualifies as a motion to modify under Rule 329b(g), thus extending
the trial court’s plenary jurisdiction and the appellate timetable.” Lane Bank Equip. Co.
v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000).
The decree was rendered on September 23, 2011. Daniel filed a motion for
clarification within thirty days of the decree’s rendition, and a motion for clarification
may qualify as a postjudgment motion that seeks a substantive change in the judgment.
See Palmer v. Palmer, No. 02-11-00098-CV, 2012 WL 1130417, at *2 (Tex. App.—Fort
Worth Apr. 5, 2012, no pet.) (per curiam) (mem. op.); Treadway v. Shanks, 110 S.W.3d 1,
5 (Tex. App.—Dallas 2000), aff’d, 110 S.W.3d 444 (Tex. 2003); see also Tex. Emps. Ins.
Ass’n v. Rivera, 673 S.W.2d 690, 692 (Tex. App.—Austin 1984, no writ) (per curiam).
The 2011 motion for clarification does request a substantive change in the judgment,
especially in that it pursues attorney’s fees and other adjustments of the order. See Lane
Bank, 10 S.W.3d at 312 (deeming a request for a new order awarding attorney’s fees to
be a proposal for “a substantive modification to the former judgment”). As a motion
seeking a substantive change, the motion for clarification had the effect of extending
the trial court’s power to 105 days, such that the trial court retained plenary power to
modify its judgment when, on January 5, 2012, it rendered the COAP. See In re Burlington
Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig.
proceeding). The COAP was thus incorporated into the decree itself. See Moore, 993
S.W.2d at 874.
10
(Tex. App.—Houston [1st Dist.] Dec. 4, 2018, no pet.) (mem. op.) (reasoning that
conflicting provisions in a decree gave rise to an ambiguity); Guerrero v. Guerra, 165
S.W.3d 778, 783 (Tex. App.—San Antonio 2005, no pet.) (same); see also Fox, 2006 WL
66473, at *7 (similar). One reasonable interpretation is that the decree was intended to
award Daniel 50% of the community share of the benefits. Another reasonable
interpretation is that the decree was intended to award Daniel half of all the benefits,
even those portions that were Thomas’s separate property.
To decide which interpretation is correct, our next step is to construe the decree
in light of the record, but the record offers no solution to the ambiguity. See Shanks,
110 S.W.3d at 447. Thomas and Daniel were the only witnesses at the hearing, and
their testimony did not touch on how they intended to divide the pension benefits in
their agreed divorce decree. See Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590
S.W.3d 471, 483 (Tex. 2019). Four exhibits were admitted at the hearing—the decree,
the COAP, Thomas’s proposed draft of a new COAP, and a letter from the pension
plan administrator—and none of these exhibits shed further light on the parties’
intentions.
Lacking any “objective textual indicators” or signs in the record that would point
us to the parties’ true intent, we resort to default rules of construction. See Endeavor
Energy Res., L.P. v. Energen Res. Corp., 615 S.W.3d 144, 149 (Tex. 2020). One rule that
the Texas Supreme Court has endorsed in interpreting divorce decrees is that “if a
11
judgment is ambiguous . . . courts should adopt the construction that correctly applies
the law.” Shanks, 110 S.W.3d at 447; Reiss, 118 S.W.3d at 442.
In this case, the construction that faithfully applies the law is the one that affords
respect to Thomas’s separate property, for Texas law generally prohibits courts from
divesting spouses of their separate property. Shanks, 110 S.W.3d at 448. We therefore
adopt an interpretation of the decree that correctly applies this guiding principle by
giving a wide berth to Thomas’s separate property and dividing only the community
portion of the benefits.
Thomas petitioned the trial court for a new COAP to do just that. His proposed
draft of a new COAP would have clarified that Daniel’s share of pension benefits was
cabined to half of the community share, consistent with Texas law. This proposed
COAP would not modify the decree’s division of property, as we have interpreted it.
See Dalton, 551 S.W.3d at 140. Rather, it would more precisely specify how the division
was effected. See J.K., 2019 WL 5792662, at *5. By statute, the trial court retained
continuing jurisdiction to clarify the ambiguous decree in this fashion. See id. We
therefore cannot agree with Daniel’s argument that Thomas’s request for a new
clarifying order was an impermissible collateral attack.
The trial court abused its discretion by refusing to clarify the ambiguous decree
and incorporated COAP. See Windham v. Windham, No. 13-20-00118-CV, 2022 WL
242752, *4 (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2022, no pet. h.) (mem. op.)
(concluding that the denial of a clarifying QDRO was an abuse of discretion). We
12
sustain Thomas’s first and second issues. This renders it unnecessary to consider his
remaining issue, in which he complains of the exclusion of evidence.
III. CONCLUSION
We reverse the trial court’s judgment and remand the case to the trial court for
the entry of a clarifying order.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: March 3, 2022
13