Opinion
No. 04-04-00277-CV
Delivered and Filed: December 22, 2004.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 1982-CI-16809, Honorable David A. Berchelmann, Jr., Judge Presiding.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Sam and Gloria Lopez were divorced on March 28, 1983, when the trial court signed a final divorce decree. Neither Sam nor Gloria appealed the judgment. In January 2003, Gloria filed a Petition for Clarification, Enforcement and Issuance of a Post-Decree Domestic Relations Order, seeking a clarification of the apportionment of Sam's United States Air Force retirement benefits. In December 2003, Gloria moved for a partial summary judgment and on January 30, 2004, the trial court rendered a summary judgment in her favor. In its judgment, the trial court declared the decree was a contract and a final, non-appealable judgment which is res judicata. The trial court also awarded Gloria a percentage of the value of Sam's military retirement based on Sam's rank and pay as of the date of his retirement.
On appeal, Sam asserts that 1) there are material fact issues that would preclude the trial court's judgment entitling Gloria to share his military retirement as valued on the date of retirement as opposed to the date of divorce, and 2) the trial court erred in declaring the divorce decree is a contract. Because we conclude the divorce decree unambiguously states Gloria was entitled to the maximum allowable portion of Sam's military retirement when he retires, we affirm.
BENEFITS VALUED AT DATE OF RETIREMENT
Prior to 1983, to determine the community interest in retirement benefits and the non-employee spouse's share of that interest, trial courts applied the formula set forth in Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977). The Taggart court used a fraction to apportion the community interest: the number of months married under the plan divided by the total number of months employed under the plan at the time of retirement. Id at 424. (emphasis added). That fraction was multiplied by the non-employee spouse's "just and right" share in the community interest as determined by the trial court (often fifty percent) and then multiplied by the value of the benefits received by the employee spouse at retirement. Id. On March 9, 1983, the Supreme Court issued its opinion in Berry and altered the Taggart formula by changing the fraction's denominator to the number of months employed under the plan at the time of divorce. Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983) (emphasis added).
In this case, the trial court applied the Taggart formula when issuing the divorce decree, which provides in pertinent part:
5. Respondent shall be entitled to the maximum allowable portion of the Petitioner's military retirement when he retires. The amount is to be determined at the date of the Respondent's retirement based on the following formula:
½ × months married and in plan over months in plan at time of retirement × benefits received.
(Emphasis added). Sam asserts the value of the benefits from the retirement account are to be apportioned based on the value of the community interest at the time of divorce and not at the date of retirement, in accordance with Berry. However, for Berry to govern the division of retirement benefits in this divorce decree, Sam must have raised this argument on direct appeal. Because an appeal was not timely perfected, res judicata bars a subsequent collateral attack on the divorce decree, even if the decree improperly divided the property. Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990). Therefore, Sam may not now attempt to apply Berry retrospectively to modify the terms of the divorce decree. Id.
INTERPRETING THE DIVORCE DECREE
Sam also asserts the divorce decree contains unclear language that precludes awarding Gloria a percentage of his retirement benefits valued at the date of his retirement. When interpreting a divorce decree, courts apply the general rules regarding construction of judgments. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). If the decree 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. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003). If the decree is ambiguous, that is, subject to more than one reasonable interpretation, the court should review the record along with the decree to aid in interpreting the judgment. Shanks, 110 S.W.3d at 447. In addition, if a decree is ambiguous, courts should adopt the construction that correctly applies the law. Id. Whether a decree is ambiguous is a question of law. Id.
In her motion for summary judgment, Gloria argued the trial court should effectuate the plain language of the decree pursuant to Shanks and Reiss. We agree. In Reiss, the Texas Supreme Court construed a decree that provided as follows: "[appellant] shall receive fifty percent (50%) of such retirement or pension benefit to which [appellee] is entitled to receive from Goodyear Tire Rubber Company." Reiss, 118 S.W.3d at 440 (emphasis added). Upon Mr. Reiss' retirement, the former Mrs. Reiss sought to enforce the decree's division of pension benefits by moving for a Qualified Domestic Relations Order that would entitle her to fifty percent of the total benefits earned under the pension plan, including any sums accrued after the divorce. Id. at 440-41. The Supreme Court held the plain language of the decree unequivocally awarded Mrs. Reiss half of Mr. Reiss' retirement benefits regardless of when they accrued. Id. at 442. Similarly, the decree in Shanks awarded the non-employee spouse [Kenda] "a `pro-rata interest' . . . of any and all sums received or paid to the employee spouse [George] from the pension plan." Shanks, 110 S.W.3d at 444. The decree defined "pro rata interest" as "25% of the total sum or sums paid or to be paid to [the employee spouse] from such pension or retirement plan." Id. The Supreme Court held that the decree unambiguously provided that Kenda should receive twenty-five percent of George's total retirement benefits. Id. at 447.
Here, it is clear from the unambiguous use of the terms "maximum allowable when he retires," "to be determined at the date of Respondent's retirement," and "in plan at the time of retirement," that the decree awards to Gloria a percentage of Sam's retirement benefits valued at the date of his retirement. If the parties intended otherwise, they could have expressly limited Gloria's share to the value at divorce. Hurley v. Hurley, 960 S.W.2d 287, 288-89 (Tex.App. 1997, no pet.). Sam also contends the trial court erred in declaring the divorce decree was a contract. He asserts that nothing in the decree indicates the parties entered into a settlement or agreed judgment, and that the parties' signatures approving the decree do not establish that the decree is a contract. However, whether the decree is a contract or not is not determinative here. When a judgment is unambiguous, there is no room for interpretation, and it is the duty of the court to declare the effect of the judgment in light of the literal meaning of the language used. Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex.App. 1986, writ dism'd). Therefore, the trial court had the power to enforce the decree as written, and it did not exceed its authority by clarifying the decree. See Baxter, 794 S.W.2d at 763 (requiring trial judge to give effect to the literal meaning of divorce decree if it is unambiguous).
See also Baxter, 794 S.W.2d at 763 (holding "gross benefits, if, as and when . . . received" and "total benefits received each month" as unambiguous language that entitled Baxter to a percentage of Ruddle's total benefits, including post-divorce increases).
CONCLUSION
We overrule Sam's issues on appeal, and affirm the trial court's judgment.