Lumpkins v. Lumpkins

519 S.W.2d 491, 1975 Tex. App. LEXIS 2411

• Court: Court of Appeals of Texas
• Decided: February 19, 1975
• Docket: 12227
• Status: Published

Opinions

SHANNON, Justice.

The subject of this appeal is whether the divorce court has the power to divide non-vested military retirement benefits. As we are of the opinion that the divorce court does not have that authority, we will affirm the judgment.

Appellant, Bettye Jo Lumpkins, sued ap-pellee, Lieutenant Colonel William J. Lumpkins, Jr., for divorce in the district court of Travis County. The parties were able to agree concerning the division of a part of their property and its value. Upon trial to the court the court entered a divorce decree, dissolving the marriage, appointing appellant as managing and posses-sory conservator of the parties’ one child below the age of eighteen years, ordering appellee to pay the sum of $270.00 as monthly child support payments, and dividing the property.

By the terms of the divorce decree appellant obtained real and personal property of a value in excess of $100,000. Appellee received by the terms of the decree property of a value of about $12,172.00.

Upon request the court filed findings of fact and conclusions of law and found, among other things, that appellee was a lieutenant colonel in the United States Army and that at trial time he had served a little more than nineteen years of active service in the Army, fourteen of those years of service being served during the marriage of the parties. At the time of trial appellee was in the active service of the United States Army and he intended to remain in service at least until he is eligible for retirement. Appellee intended to continue his service in the Army past his retirement date if allowed to do so by the Army officials.

The parties stipulated that appellee was forty-three years of age and was eligible for retirement from the Army on or after February 28, 1975. It was stipulated further that should appellee elect to take retirement on that date, he would be eligible to receive a monthly retirement benefit for the balance of his life of $1,136.00 each month, the present value of which was $177,957.00.

The court concluded that it did not have power to apportion to appellant any part of the military retirement benefits, and that under those circumstances, the division of the property made in divorce decree was fair and equitable. The court concluded further that if it had the power to apportion to appellant any part of the military retirement benefits, it would have done so, and would have made a division of the other community property that would have been fair and equitable in light of the division of the said retirement benefits. The court was of the further opinion that in order to have effected a fair and equitable division of the estate it would have been necessary to have set aside to appellant a portion of the retirement benefits.

Appellant attacks the judgment by one point of error to the effect .that the court erred in concluding that it was without power to apportion to appellant a part of the military retirement benefits even though it was necessary to do so to achieve a fair and equitable division of the estate of the parties.

In Busby v. Busby, 457 S.W.2d 551 (Tex.1970) the Supreme Court held the husband’s existing entitlement to future military retirement benefits constituted a vested property right subject to division by decree of the court. As Justice Steakley explained in Nail v. Nail, 486 S.W.2d 761 (Tex.1972), the crucial consideration in Busby was the vesting of a right when the husband reached the requisite qualifications for retirement benefits; the fact that the benefits were subject to divestment under certain conditions did not reduce the right to a mere expectancy. See also Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ). Until an officer has served in the military for the length of time necessary to retire, he has no property rights or property interest which are subject to division by the divorce court. Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973, writ dism’d); See University of Texas: Hughes, Community-Property Aspects of Profit-Sharing and Pension Plans in Texas — Recent Developments and Proposed Guidelines for the Future, 44 Texas L.Rev. 860, 869 (1966) ; University of Texas: Dutton, The Wife’s Community Interest in Her Husband’s Qualified Pension or Profit-Sharing Plan, 50 Texas L.Rev. 334, 340 (1972).

Appellant urges this Court to follow Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d). In that case the husband, an enlisted man, re-enlisted for a period of time past voluntary retirement age. His right to retirement benefits had not vested at the time of the entry of the divorce judgment. The Dallas Court of Civil Appeals, nevertheless, concluded that the benefits were subject to division by the divorce court for the stated reason that “logic and reason” demanded that result.

In the case at bar, appellee was required to serve twenty years in the Army before his right to retirement benefits vested. Should appellee leave the Army before the completion of that period, he would be entitled to nothing. It is plain that as of the date of the entry of the divorce judgment, appellee’s right to those benefits had not vested. At that time he had no property rights, but instead merely an expectancy. The controlling case law requires that before military retirement benefits are subject to division by the decree of the divorce courts, those benefits must be vested.

The judgment is affirmed.