Allen v. Allen

Lawrence Allen, Appellant v. Claire L. Allen, Appellee

NO. 03-18-00287-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 12, 2019

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT

NO. 2014-0804-F425, HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING

MEMORANDUM OPINION

This appeal concerns the interpretation of a divorce decree providing Claire L. Allen with one-third of "an amount equal to [Lawrence Allen's] U.S. Army Retirement Pay" as spousal maintenance.¹ At issue is whether Claire is entitled to spousal maintenance based on Lawrence's retirement pay amount when Lawrence has waived the retirement pay to receive disability benefits. After a bench trial, the trial court rendered final judgment in Claire's favor. We agree and affirm.

BACKGROUND

The relevant facts are undisputed and taken from the evidence admitted at trial.² In 1982, Lawrence retired from the United States Army and started receiving military retirement benefits. In 1984, Lawrence and Claire were divorced by Decree of Dissolution of Marriage (Divorce Decree) in the superior court of Whatcom County, Washington (Washington Court). At issue in this appeal is the following Divorce Decree provision:

By way of child support and spousal maintenance Lawrence H. Allen shall pay through the registry of the Superior Court for Whatcom County for the benefit of Claire L. Allen on the first day of each calendar month an amount equal to his U.S. Army retirement pay (presently $1,240 per month, subject to periodic cost of living increases). Of such amount one-third of the total payment shall be deemed spousal maintenance and such payment shall continue so long as both parties survive; two-thirds of such monthly payment shall be deemed child support for the parties['] three minor children.

Before September 2013, Lawrence paid Claire spousal maintenance by way of garnishment through the Defense Finance and Accounting Service (DFAS), which administers military retirement pay. However, in 2013, Lawrence waived his retirement payment to receive Combat-Related Special Compensation (CRSC) and Veterans Affairs disability (collectively, Disability Benefits), see 10 U.S.C. § 1413a(b); 38 U.S.C. §§ 5304(a)(1), 5305, and then stopped paying spousal maintenance. Nevertheless, Lawrence continued receiving monthly Retiree Account Statements and CRSC pay statements from the DFAS that showed the amount of retirement pay Lawrence was waiving.³

Claire filed a petition to enforce the Divorce Decree under the Uniform Enforcement of Foreign Judgments Act. See Tex. Civ. Prac. & Rem. Code §§ 35.001-.008. Following proceedings on competing summary judgment motions and an appeal to this Court,⁴ the trial court conducted a bench trial on December 12, 2017, at which both parties testified. After the trial, the court rendered final judgment in Claire's favor, awarded Claire attorney's fees, and entered findings of fact and conclusions of law. As relevant here, the court found and concluded that:

• "The clear and unambiguous terms of the Divorce Decree require Lawrence to make a monthly payment of spousal maintenance to Claire in an amount equal to one-third of his Army Retirement Pay plus cost-of-living adjustments";

• Lawrence's monthly payment to Claire under the Divorce Decree is spousal maintenance and "Claire was not awarded any portion of Lawrence's military retirement as property";

• federal law distinguishes between property and spousal maintenance;

• although federal law prohibits states from treating retired pay as community property, it does not prohibit taking account of amounts waived for disability in calculating spousal support;

• Lawrence's monthly pay statements "show the amount of retired pay awarded to Lawrence each month and the amount waived for V.A. Disability each month";

• Claire received partial spousal maintenance payments from September 2013 through March 2014 totaling $226.22 and no spousal payments since March 2014;

• "Lawrence owes Claire a total spousal support arrearage as of December 12, 2017 of $41,575.18, which should be awarded as a judgment against Lawrence in favor of Claire"; and

• "Claire incurred reasonable and necessary attorney's fees of $11,600[.]"⁵

Lawrence now appeals the trial court's judgment.

STANDARD OF REVIEW

A foreign divorce decree becomes a final, enforceable Texas judgment entitled to full faith and credit when properly filed in Texas court. Dalton v. Dalton, 551 S.W.3d 126, 135 (Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code §§ 35.001, .003(a)). In construing a divorce decree, we interpret the language as we do other judgments of courts. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). If the language is unambiguous, we adhere to the literal language used; if ambiguous, we interpret the decree in light of the record and the decree as a whole. Id.

A trial court's ruling enforcing a divorce decree is reviewed under an overarching abuse of discretion standard. Foreman v. Foreman, No. 03-13-00245-CV, 2014 WL 711249, at *3 (Tex. App.—Austin Feb. 19, 2014, no pet.) (mem. op.) (citing Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.—Fort Worth 2008, pet. dism'd); Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.—Dallas 2008, no pet.)). "A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or principles." Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). However, to the extent the trial court's ruling rests on questions of law, we review those determinations de novo. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (observing that trial court has no "discretion" to misinterpret or misapply law).

DISCUSSION

The parties do not dispute that the Divorce Decree is a valid foreign judgment entitled to full faith and credit under Texas law that awarded spousal maintenance to Claire but did not award a share of Lawrence's military retirement as an award of property. Nor do the parties dispute the trial court's calculations in determining the $41,575.18 amount owed in spousal maintenance arrearages if Lawrence is unsuccessful on appeal. Lawrence instead raises the following three issues on appeal. First, he argues that no evidence supports the trial court's findings regarding his spousal maintenance arrearages because his Disability Benefits are not "retirement pay" under federal law and that to use the Disability Benefits as the basis for calculating the spousal maintenance amount is contrary to and preempted by federal law. Second, he asserts that the Divorce Decree unambiguously provides that "Claire is to receive her spousal maintenance based upon a percentage of the Army Retirement Pay Lawrence receives" and that the trial court failed to give full faith and credit to the unambiguous language of the Divorce Decree. Third, he agrees that attorney's fees should be awarded to Claire if she prevails, see Tex. Fam. Code § 159.313, but argues that there is no basis for an award of attorney's fees or interest because she should not prevail on the first two issues. Because Lawrence's second issue concerns the actual language of the Divorce Decree—an issue essential for determining his first issue regarding federal law—we turn first to the language of the Divorce Decree and then to the question of federal law and attorney's fees.

Language of the Divorce Decree

The trial court entered a finding of fact that "[t]he clear and unambiguous terms of the Divorce Decree require Lawrence to make a monthly payment of spousal maintenance to Claire in an amount equal to one-third of his Army Retirement Pay plus cost-of-living adjustments." Lawrence argues first that the trial court has "rewrit[ten]" the Divorce Decree contrary to its unambiguous language because pursuant to Hagen, 282 S.W.3d at 899, "Claire is to receive her spousal maintenance based upon a percentage of the Army Retirement Pay Lawrence receives" (emphasis added); and second that "the trial court has calculated Lawrence's spousal support obligation based on his Veterans Administration disability payment and his Combat-Related Special Compensation—not on his U.S. Army retirement pay." We find both arguments unavailing.

First, the Divorce Decree does not require that Lawrence actually receive the specified retirement pay amount for it to serve as the basis for calculating the spousal maintenance amount. Instead, the Divorce Decree expressly states that Lawrence "shall pay . . . an amount equal to his U.S. Army Retirement Pay," and one-third of that payment "shall be deemed spousal maintenance." Lawrence's only argument is to cite Hagen and state: "To paraphrase, and rephrase, the Hagen court's statement: The Allens' 1984 divorce decree is unambiguous. It provides Claire is to receive her spousal maintenance based upon a percentage of the Army Retirement Pay Lawrence receives." But Hagen is inapposite to the Divorce Decree here because the Hagen divorce decree expressly addressed whether the retirement pay is calculated when received by awarding it as community property: "One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN RECEIVED." Id. at 901. The Hagen Court noted that "[t]he Hagens' decree plainly entitled Doris only to part of the Army or military retirement pay Raoul received, if, as, and when he received it." Id. at 907. "[T]he language used in divorce decrees is important, and we must presume the divorce court chose it carefully," strictly adhering to the unambiguous language of the Divorce Decree. See id. at 901, 908. Here, there is no comparable language to the Hagen decree's language of "IF, AS AND WHEN RECEIVED"; instead, the Washington Court in the Divorce Decree chose not to limit the retirement pay to the amount actually received for purposes of calculating spousal maintenance.

Second, Lawrence's assertion that the trial court calculated the spousal maintenance arrearages based on the amount of Disability Benefits Lawrence received is incorrect....