Diana Douglas/Eddie Douglas v. Eddie Douglas/Diana Douglas

454 S.W.3d 591, 2014 Tex. App. LEXIS 12398, 2014 WL 6090420
CourtCourt of Appeals of Texas
DecidedNovember 14, 2014
Docket08-12-00259-CV
StatusPublished
Cited by7 cases

This text of 454 S.W.3d 591 (Diana Douglas/Eddie Douglas v. Eddie Douglas/Diana Douglas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diana Douglas/Eddie Douglas v. Eddie Douglas/Diana Douglas, 454 S.W.3d 591, 2014 Tex. App. LEXIS 12398, 2014 WL 6090420 (Tex. Ct. App. 2014).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice.

In this appeal from the trial court’s post-divorce clarification order, both Diana Douglas and Eddie G. Douglas challenge the trial court’s division of Eddie’s disposable military retired pay. Diana argues the division is inconsistent with the unambiguous language in the decree. Eddie raises the same complaint, but also contends the trial court erred in awarding Diana an arrearage judgment and in failing to award him attorney’s fees and costs and to file findings of fact and conclusions of law. For the reasons discussed below, we agree the trial court improperly calculated the percentage of Eddie’s military retired pay to which Diana is entitled and the amount of arrearages owed. We, therefore, affirm in part, reverse and render in part, and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

Eddie and Diana married in January 1974 and divorced in September 1989. 1 At the time of the divorce, Eddie was a Captain in the United States Air Force with 150 months of creditable service. The de *594 cree apportioned Eddie’s military retirement pay as follows:

[T]he Court ORDERS that such military retirement benefits shall be divided and distributed as follows: [Diana] is invested in one-half (1/2) of [Eddie]’s ‘Gross Retired Income’ (military retired pay) as her community property interest share of [Eddie]’s military retired pay, if, and as received by [Eddie]. In the event [Eddie] retires from the United States Air Force, [Diana] shall have a community property interest share of one-half (1/2) times [Eddie]’s Air Force retirement, based upon a formula of one-half (1/2) times a fraction of which the numerator (150) is the number of months that the parties were married during which time [Eddie] had credible time in the United States Air Force toward retirement, prior to the date of divorce (150 months), and the denominator of which is the number of months that [Eddie] shall have of credible service toward his military retirement, times gross retirement benefits receivable, if [Eddie] were eligible for retirement at the time of the divorce, at his present rank of Captain.

Neither Eddie nor Diana appealed the divorce decree, and the record does not contain any post-judgment motion challenging the decree.

After the divorce, Eddie remained in the Air Force. In March 2009, he retired from the Air Force with the rank of Colonel. By then, Eddie had accrued 372 months of creditable service. Upon his retirement, Eddie began receiving $7,719.00 in gross retirement pay per month.

Shortly thereafter, Diana applied to the Defense Finance and Accounting Service (DFAS) for her share of Eddie’s military retirement and submitted a certified copy of the divorce decree in support of her application. In July 2009, DFAS notified Diana that it could not approve her application because the language in the decree dividing Eddie’s retired pay was faulty. DFAS advised Diana that this deficiency could be remedied if she obtained a clarifying order that: (1) awarded either a fixed sum or a percentage of Eddie’s retirement pay; or (2) that provided a formula “wherein the only missing element is the denominator (member’s years of service or total points earned by a reservist).”

In October 2009, Diana moved to clarify the divorce decree and to enforce the division of property. Specifically, Diana moved for an order dividing Eddie’s military retirement pension benefits, for an award of arrearages for underpayments, including pre- and post-judgment interest, and for an award of attorney’s fees. After answering, Eddie filed a counter-motion for clarification.

In March 2011, the trial court held an evidentiary hearing on the parties’ competing motions. 2 After taking the matter under advisement, the trial court issued a clarification order in July 2012. The order provides, in relevant part, that:

The former spouse, Ms. Diana Douglas, is entitled to receive j.096% of the Member, Mr. Eddie Granger Douglas’, Disposable Military Retired Pay. This interest in Mr. Eddie Granger Douglas’s retirement includes any future costs of living or other benefits which are not derived as a result of future services of the Member, Mr. Eddie Granger Douglas, and Ms. Diana Douglas is entitled to any future costs of living or other bene *595 fits which are not derived as a result of future services of the Member, Mr. Eddie Granger Douglas, absolutely and forever.
It is also ordered that because the Member, Mr. Eddie Granger Douglas, has not paid Ms. Diana Douglas her proportion of his military retired pay since 2009, this Court finds and orders that he owes Ms. Diana Douglas an arrearage in the amount of $9,877.54. [Emphasis added].

The order does not award attorney’s fees to any party.

Although the trial court’s order contained findings of fact and conclusions of law, they were rudimentary in nature and failed to explain the basis for .the trial court’s decision. Consequently, both parties timely requested findings of fact and conclusions of law, but none were issued. Eddie, but not Diana, timely filed a notice of past due findings and conclusions. Despite the notice, the trial court failed to file the requested findings and conclusions.

MILITARY RETIREMENT PAY

We begin by addressing the parties’ contentions that the trial court incorrectly calculated the percentage of Eddie’s military retirement pay to which Diana is entitled. Although both parties contend the trial court used the wrong formula in calculating that percentage, they urge different formulas.

In her sole issue, Diana insists the trial court should have used the following formula:

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According to Diana the dollar amount corresponding to Eddie’s “gross retirement benefits receivable” had he been entitled to retire on the date of divorce at his-then-rank of Captain is $2,808.60. As stipulated by the parties, this amount corresponds to the final base pay of a Captain with 150 months of longevity on September 14, 1989. Thus, under Diana’s formula, she is entitled to $1,404.03 per month (50 percent of $2,808.60). In his second-cross issue, Eddie is adamant the trial court should have used the following formula: ■

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Under Eddie’s formula, Diana is entitled to $134.48 per month (1.7421 percent of $7,719.00 — the gross retired pay Eddie began receiving upon retirement based on 372 months of creditable service).

We agree the trial court erred in concluding Diana is entitled to 4.096 percent of Eddie’s “Disposable Military Retired Pay”

Standard of Review

We review the trial court’s ruling on a post-divorce motion for clarification or enforcement of a divorce decree for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam).

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454 S.W.3d 591, 2014 Tex. App. LEXIS 12398, 2014 WL 6090420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diana-douglaseddie-douglas-v-eddie-douglasdiana-douglas-texapp-2014.