Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-22-00677-CV
Mark Edwin ALLEN, Appellant
v.
Cherelle M. ALLEN, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-16615 Honorable Cynthia Marie Chapa, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: March 27, 2024
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Appellant Mark Edwin Allen challenges the trial court’s July 27, 2022 Order Dividing
Military Retired Pay and Other Benefits (the DRO). We affirm the DRO in part, reverse it in part,
and remand the cause for further proceedings consistent with this opinion.
BACKGROUND
Mark and appellee Cherelle M. Allen married in 1995 and separated in 2021. During the
parties’ marriage, Mark served in the United States Armed Forces. It is undisputed that Mark’s
military service entitles him to receive certain retirement benefits. 04-22-00677-CV
During their divorce proceedings, Mark and Cherelle entered into a mediated settlement
agreement. On April 27, 2022, the trial court signed an Agreed Final Decree of Divorce
memorializing the parties’ agreement. The final decree contained the following paragraphs
dividing Mark’s military retirement benefits:
• IT IS ORDERED AND DECREED that Petitioner, CHERELLE M. ALLEN, is awarded the following as Petitioner’s sole and separate property . . . W-6. Husband’s Military Retirement. A portion of Husband’s military retirement benefits, and any successor Plan thereof, that portion being fifty percent (50%) of the community interest in vested accrued benefit as of the date that this Final Decree of Divorce is signed by the Court, and more particularly defined in a Domestic Relations Order signed by the Court on or after the date this Final Decree of Divorce is signed. This award does not include any portion of Husband’s VA disability benefits. 1 (emphasis added)
• IT IS ORDERED AND DECREED that Respondent, MARK EDWIN ALLEN, is awarded the following as Respondent’s sole and separate property . . . H-10. Husband’s Military Retirement. All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to or as a result of MARK EDWIN ALLEN’s service in the United States Army, Army National Guard, and Army Reserves, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of MARK EDWIN ALLEN’s past, present, or future employment, except that portion of MARK EDWIN ALLEN’s U.S. military retirement that has been awarded in this decree to CHERELLE M. ALLEN as more particularly described in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference. 2 (emphasis added)
Both Mark and his then-attorney signed the final decree, and it is undisputed that Mark agreed to
its terms.
On June 3, 2022, Mark filed a “Motion to Sign the Domestic Relations Order.” Mark’s
motion stated that he “believe[d] the proposed Domestic Relations Order accurately reflects the
agreements” memorialized in the final decree, and he asked the trial court to “enter the proposed
1 Mark refers to this provision as paragraph W-6. 2 Mark refers to this provision as paragraph H-10.
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Domestic Relations Order, which will be presented to the Court at the time of the hearing.” On
July 27, 2022, the trial court signed the DRO, as did the parties’ attorneys.
At some point after he filed his motion asking the trial court to sign the DRO, Mark
obtained new counsel. He filed a motion to vacate the DRO, arguing it was void because the trial
court rendered it outside of its plenary power. Specifically, he argued the final decree did not
constitute a rendition of judgment on the DRO. Alternatively, he argued the DRO should be
modified because its manner of calculating his military retirement pay for the purpose of
determining Cherelle’s share was contrary to federal law. The trial court denied Mark’s motion in
a written order.
Mark then filed a second motion to vacate or modify the DRO, which raised the same
arguments as his first motion. He added a new argument that the DRO improperly awarded
Cherelle “benefits as the Servicemember’s Former Spouse Survivor Benefit Plan (SBP)
beneficiary” that were not included in the final decree. During the hearing on this motion, Mark’s
current counsel argued that Mark did not see or approve the DRO before the trial court signed it.
Cherelle’s counsel, in contrast, represented that it was Mark’s responsibility to draft the DRO and
noted that he agreed to a final decree “that incorporated the terms of the DRO into the decree[.]”
While the appellate record does not contain a written order on Mark’s second motion to vacate or
modify the DRO, the trial court’s judge’s notes indicate that it denied that motion. Mark then
timely filed a notice of appeal from the DRO.
ANALYSIS
Rendition of the DRO
In his first issue, Mark argues the DRO is void because the trial court did not render the
order within its plenary power. In his second issue, he argues Cherelle did not follow the statutory
procedures necessary to obtain a post-plenary power DRO. Cherelle contends Mark’s first and
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second issues lack merit because the trial court rendered the DRO at the same time it rendered the
final decree.
Standard of Review and Applicable Law
The purpose of a DRO “is to create or recognize an alternate payee’s right to receive all or
a portion of the benefits payable to a participant under a retirement plan.” Gow v. Sevener, No. 05-
16-01037-CV, 2017 WL 5897448, at *2 (Tex. App.—Dallas Nov. 30, 2017, no pet.) (mem. op.).
The DRO in this case is intended “to direct a military service, rather than a civil pension plan
administrator,” to make payments out of Mark’s retirement benefits to Cherelle. See Hicks v.
Hicks, 348 S.W.3d 281, 285 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Like a divorce
decree, a DRO “is a final, appealable order.” In re Matter of Marriage of Denning & Stokes, 651
S.W.3d 60, 63 (Tex. App.—Houston [14th Dist.] 2021, no pet.).
“The power to award relief is an essential component of subject-matter jurisdiction[.]” Save
Our Springs All., Inc. v. City of Kyle, 382 S.W.3d 540, 544 (Tex. App.—Austin 2012, no pet.).
Whether a court has subject-matter jurisdiction is a question of law we review de novo. See Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A trial court generally
lacks authority to render additional orders after its plenary power over a final judgment expires. In
re Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).
“When a divorce decree does not render a DRO and the decree becomes final and unappealable,
the trial court can render a valid DRO only upon the filing of a petition and service in accordance
with the Texas Rules of Civil Procedure.” Wellington v. Wellington, No. 04-16-00707-CV, 2018
WL 521595, at *2 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.); see also TEX.
FAM. CODE ANN. § 9.102 (procedure for seeking post-judgment DRO).
“A judgment routinely goes through three stages: rendition, reduction to writing and
judicial signing, and entry.” Araujo v. Araujo, 493 S.W.3d 232, 235 (Tex. App.—San Antonio
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2016, no pet.) (internal quotation marks omitted). “A judgment is ‘rendered’ when the trial court’s
decision upon the matter submitted to it for resolution is officially announced either orally in open
court or by memorandum filed with the clerk.” Id. “In order to be an official judgment, the trial
court’s oral [or written] pronouncement must indicate an intent to render a full, final, and complete
judgment at that point in time.” Gamboa v. Gamboa, 383 S.W.3d 263, 270 (Tex. App.—San
Antonio 2012, no pet.).
Application
The trial court signed the final decree on April 27, 2022, and neither Mark nor Cherelle
filed any post-judgment motions from that decree. The parties agree that under these
circumstances, the trial court’s plenary power to clarify, modify, or amend the final decree expired
30 days later, on May 27, 2022. Additionally, Cherelle has not disputed Mark’s contention that
she did not follow the statutory procedures to obtain a post-judgment DRO. The resolution of
Mark’s first and second issues therefore turns on whether the trial court rendered the DRO at the
same time it rendered the divorce decree.
In resolving this question, we must first address Cherelle’s assertion that Mark did not
satisfy his burden to present a record showing reversible error. See Christiansen v. Prezelski, 782
S.W.2d 842, 843 (Tex. 1990) (per curiam). As Cherelle notes, the appellate record does not contain
a reporter’s record of either the April 27, 2022 hearing that resulted in the final decree or the
September 1, 2022 hearing on Mark’s first motion to vacate the DRO. Mark argues he was not
required to present a reporter’s record of these hearings because they were not evidentiary.
As explained above, a trial court may render judgment either orally or in writing. See
Araujo, 493 S.W.3d at 235. Rendition, whether oral or written, “is the critical moment when the
judgment becomes effective.” Id.; see also Wellington, 2018 WL 521595, at *2–3. For the purposes
of reviewing this issue, we will assume without deciding that the written final decree did not
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constitute a rendition of judgment on the DRO. Mark must also show, however, that the trial court
did not orally render judgment on the DRO during its plenary power. See Araujo, 493 S.W.3d at
235; cf. Christiansen, 782 S.W.2d at 843. If the trial court orally rendered judgment on the DRO
and its terms during its plenary power, its later signing of the written DRO was a purely ministerial
act. See James v. Hubbard, 21 S.W.3d 558, 561 (Tex. App.—San Antonio 2000, no pet.).
The Texas Supreme Court has held that “whether the court pronounced judgment orally
and the terms of the pronouncement are questions of fact.” Escobar v. Escobar, 711 S.W.2d 230,
232 (Tex. 1986). When there is a question about whether a trial court orally rendered judgment
during a certain hearing, the evidence necessary to resolve that question comes from the statements
the trial court made on the record during the relevant hearing. See Gamboa, 383 S.W.3d at 270–
71 (holding, based on trial court’s statements on the record, that judgment was not rendered at the
relevant time). Additionally, “[e]vidence of the judgment actually rendered may come from
witness testimony, docket entries, or the trial judge’s personal recollection.” In re M & O
Homebuilders, Inc., 516 S.W.3d 101, 110 (Tex. App.—Houston [1st Dist.] 2017, orig.
proceeding).
Here, the clerk’s record shows that the same trial court judge signed both the final decree
and the order denying Mark’s first motion to vacate the DRO. By rejecting Mark’s contention that
the DRO was void, the trial court necessarily found, as a matter of fact, that it rendered judgment
on the DRO within its plenary power. See Escobar, 711 S.W.2d at 232; see also In re J.P.L., 359
S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet. denied) (“An order signed after the trial
court loses plenary power is void.”).
In both his first and second motions to vacate the DRO, Mark recognized that without a
reporter’s record of the April 27, 2022 hearing that resulted in the final decree, it is impossible to
determine whether the trial court orally rendered judgment on the DRO during that hearing. Cf.
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Gamboa, 383 S.W.3d at 270. Additionally, without the record of the September 1, 2022 hearing
on Mark’s first motion to vacate the DRO, we have no way of knowing what evidence and
arguments—including evidence of “the trial judge’s personal recollection” of the April 27
hearing—persuaded the trial court to deny that motion. See In re M & O Homebuilders, Inc., 516
S.W.3d at 110. Because we do not have the records necessary to determine whether the trial court
orally rendered judgment on the DRO during the April 27 hearing, we agree with Cherelle that we
must presume the missing records support the trial court’s implied factual finding that it rendered
the DRO within its plenary power. See Bailey v. Gallagher, 348 S.W.3d 322, 325 (Tex. App.—
Dallas 2011, pet. denied). 3
For these reasons, we overrule Mark’s first issue. Based on our resolution of Mark’s first
issue, we need not reach his second issue regarding the requirements to obtain a DRO after a trial
court’s plenary power expires. Cf. Wellington, 2018 WL 521595, at *3 (because trial court
rendered DRO within its plenary power, no additional motion, petition, or service was required).
DRO’s Compliance with Applicable Law
In his third issue, Mark argues the DRO must be reversed because: (1) it prohibits him from
making elections that are permitted by federal law; and (2) the mathematical formulas it uses to
calculate his retirement pay—and, by extension, Cherelle’s post-divorce share of that pay—are
contrary to federal law. Within his challenge to the mathematical formulas, Mark argues the DRO
does not make factual findings required by federal law, does not calculate Mark’s retirement pay
as of the date of the parties’ divorce, and contains conflicting provisions.
3 As support for his assertion that the missing records were not necessary, Mark cites authority describing reporter’s records of nonevidentiary hearings as “superfluous” and noting Texas courts “generally presume that pretrial hearings are nonevidentiary[.]” See Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 910 (Tex. 2017). This authority is inapposite here. The relevant question in this appeal is not whether the parties presented evidence during the hearings, but whether the trial court’s own statements on the record support its finding that it rendered judgment on the DRO within its plenary power. Cf. Escobar, 711 S.W.2d at 232; Gamboa, 383 S.W.3d at 270.
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Standard of Review
With regard to both his third and fourth issues, Mark contends “[t]he question for this Court
is whether the [DRO] adhered to the applicable state and federal laws governing military retirement
and benefits and is pertinent to the construction of a contract which is a question of law for de
novo review.” However, Mark’s third issue does not require us to construe the parties’ agreement.
Instead, that issue asks us to determine whether the DRO correctly applies the law to the facts of
this case. “Most of the appealable issues in a family law case are evaluated against an abuse of
discretion standard,” including issues regarding the division of marital property. In re R.H.B., 660
S.W.3d 136, 147 (Tex. App.—San Antonio 2022, no pet.) (internal quotation marks omitted). We
conclude that Mark’s third issue implicates an abuse of discretion standard. See Gainous v.
Gainous, 219 S.W.3d 97, 103, 108 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (reviewing
ruling on motion to clarify/enforce DRO for abuse of discretion); In re N.T.P., 402 S.W.3d 13, 24–
25 (Tex. App.—San Antonio 2012, no pet.) (same). In a family law matter, a trial court abuses its
discretion if, inter alia, “it clearly fails to analyze and determine the law correctly or applies the
law incorrectly to the facts.” Smith v. Karanja, 546 S.W.3d 734, 738 (Tex. App.—Houston [1st
Dist.] 2018, no pet.).
Prohibition on Future Elections
A. Applicable Law
“Members of the Armed Forces who serve for a specified period, generally at least 20
years, may retire with retired pay.” Mansell v. Mansell, 490 U.S. 581, 583 (1989). Retired
servicemembers may also be eligible to receive disability benefit payments. Id. However, “to
prevent double dipping, a military retiree may receive disability benefits only to the extent that he
waives a corresponding amount of his military retirement pay.” Id. The United States Supreme
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Court has noted that “waivers of retirement pay [in favor of a corresponding amount of disability
pay] are common” because disability benefits are exempt from taxation. Id. at 583–84.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) permits state courts
to treat a military retiree’s “disposable retired pay payable to a member for pay periods beginning
after June 25, 1981” as community property that may be divided in a divorce. See 10 U.S.C.
§ 1408(c)(1); Mansell, 490 U.S. at 584–85. The USFSPA defines disposable retired pay as “the
total monthly retired pay to which a member is entitled less,” inter alia, any amount that is
“deducted from the retired pay of [the military retiree] . . . as a result of a waiver of retired pay
required by law in order to receive” disability benefits. 10 U.S.C. § 1408(a)(4)(A)(ii); Howell v.
Howell, 581 U.S. 214, 217 (2017).
The United States Supreme Court has described the USFSPA as “one of those rare
instances where Congress has directly and specifically legislated in the area of domestic relations.”
Mansell, 490 U.S. at 587. The Court has held that the USFSPA therefore “completely pre-empts
the States from treating waived military retirement pay as divisible community property.” Howell,
581 U.S. at 220. In Mansell, the Supreme Court applied this rule even though the divorce decree
that divided the military retiree’s benefits arose out of the parties’ settlement agreement. Mansell,
490 U.S. at 585–86, 594–95. In Howell, the Supreme Court applied this rule even though the
military retiree did not waive his retirement pay in favor of disability benefits until long after the
divorce. Howell, 581 U.S. at 220–21. Additionally, before the U.S. Supreme Court decided Howell
and Mansell, the Texas Supreme Court held that where federal law allows a military retiree to
make an election regarding his benefits, a Texas divorce decree cannot prohibit him from doing
so. Ex parte Burson, 615 S.W.2d 192, 196 (Tex. 1981).
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B. Application
The DRO in this case prohibits Mark from merging his military retirement pay “with any
other benefit, pension or other entitlement,” exercising any waivers of his military retirement pay
that “hav[e] the effect of reducing [his] disposable retired military pay,” or “otherwise tak[ing] or
forgo[ing] any action if it would have the effect of reducing or limiting [Cherelle’s] right to receive
[her] full separate property share of” his military retirement pay. These provisions are contrary to
the USFSPA, the U.S. Supreme Court’s holdings in Howell and Mansell, and the Texas Supreme
Court’s holding in Burson. See 10 U.S.C. § 1408(a)(4)(A)(ii); Howell, 581 U.S. at 220–23;
Mansell, 490 U.S. at 594–95; Burson, 615 S.W.2d at 196. Accordingly, we must reverse the DRO
as to those provisions and remand it to the trial court with instructions to delete them. See Freeman
v. Freeman, 133 S.W.3d 277, 280–81 (Tex. App.—San Antonio 2003, no pet.).
Calculation of Mark’s Retirement Pay and Required Fact Findings
Congress has promulgated mathematical formulas that shall be used to compute a
servicemember’s retirement pay. See generally, e.g., 10 U.S.C. §§ 1407, 12739. The USFSPA
provides that for purposes of post-divorce division of a servicemember’s retirement pay, “the total
monthly retired pay to which the member is entitled shall be” computed based on the applicable
formula “on the date of the decree of divorce, dissolution, annulment, or legal separation[.]” 10
U.S.C. § 1408(a)(4)(B)(i), (ii). “[A] state divorce decree, like other law governing the economic
aspects of domestic relations, must give way to clearly conflicting federal enactments.” Ridgway
v. Ridgway, 454 U.S. 46, 55 (1981).
The DRO provides that Cherelle’s share of Mark’s active-duty retirement pay is “to be
computed by multiplying 50% times a fraction, the numerator of which is 280 months of marriage
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during [Mark’s] creditable military service, 4 divided by [Mark’s] total number of months of
creditable military service.” Cherelle’s share of Mark’s reserve-duty retirement pay is “to be
computed by multiplying 50% times a fraction, the numerator of which is the total number of
Reserve retirement points earned during the period of the marriage . . . divided by [Mark’s] total
number of Reserve retirement points earned.” Stated differently, the DRO calculates Cherelle’s
share of Mark’s active-duty and reserve retirement pay, but it does not calculate or set out any
formulas by which to calculate the retirement pay from which that share will be taken.
To comply with the USFSPA, the DRO was required to calculate “the amount of
[disposable] retired pay to which [Mark] would have been entitled” at the time of the divorce. 10
U.S.C. § 1408(a)(4)(A), (B); see also 10 U.S.C. § 1408(d) (“[T]he Secretary shall make payments
. . . from the disposable retired pay of the member to the spouse or former spouse . . . in the amount
of disposable retired pay specifically provided for in the court order.”). Additionally, it was
required to use formulas promulgated by Congress to reach that number. See 10 U.S.C.
§ 1408(a)(4)(B). We agree with Mark that the DRO does not apply the required statutory formulas
to calculate either his active-duty or his reserve retirement pay. See id.; see also generally 10
U.S.C. § 1407 (establishing various retirement pay formulas based on servicemember’s “high-
three average”); 10 U.S.C. § 12739(a) (computing retirement pay based on product of base pay
under sections 1406 or 1407 and “2 ½ percent of the years of service credited to that person under
[10 U.S.C. § 12733]”). Additionally, the DRO does not specify that Mark’s active-duty retirement
must be calculated as of the date of the parties’ divorce. See 10 U.S.C. § 1408(a)(4)(B). Because
4 In his brief, Mark contends that he retired from the armed services in June of 2007 and the “‘number of months of marriage during [Mark’s] creditable military service’ should be 140 months,” not 280 months. Because Mark did not raise this complaint in either his first or second motion to modify the DRO, we do not address it. TEX. R. APP. P. 33.1(a). However, nothing in our opinion precludes Mark from presenting evidence on this point on remand.
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the DRO does not use the mathematical formulas required by Congress, we must reverse it. See
id.; Ridgway, 454 U.S. at 55; see also Mansell, 490 U.S. at 587.
As Mark noted in his motions to modify the DRO, determining which federal statutory
formula applies to a given situation “requires a lot of ‘jumping around’ Title 10” of the United
States Code. Arriving at the correct result after this “jumping around” requires the resolution of
numerous fact issues about the length and nature of the servicemember’s time in the military. See,
e.g., 10 U.S.C. § 1408(a)(4)(B) (providing that applicable statutory scheme is determined by the
circumstances of the military retiree); see also 10 U.S.C. § 1407(c) (retired pay base for
servicemembers who joined after September 7, 1980 for “regular service”); 10 U.S.C. § 1407(d)
(retired pay base for servicemembers who joined after September 7, 1980 for “nonregular
service”); 10 U.S.C. § 7314 (years of service required for retirement from enlisted service in the
Army); 10 U.S.C. § 7325 (computation of years of service in the Army); 10 U.S.C. § 12731 (age
and service requirements for retirement); 10 U.S.C. § 12733 (computation of retired pay); 10
U.S.C. § 12739 (computation of retired pay). Mark’s motions to modify the DRO and his appellate
briefing, both of which contain representations about factual matters such as the length of his
service and the number of reserve retirement points he earned, emphasize the necessity of this fact-
finding.
In the DRO, the trial court explicitly found that the parties’ marriage ended on April 27,
2022, that Mark served in the military for “22 years and 2 months or more” during the marriage,
and that Mark was “not on active duty at the time of” the rendition of the DRO. It also implicitly
found that Mark served in both active and reserve-duty roles. It did not, however, make any
findings about Mark’s age, his “high-three average,” his retired pay base, his creditable service
points (including reserve retirement points), the precise number of years he served, the bases upon
which he was entitled to receive miliary retirement, or other factors relevant to the computation of
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his retirement pay. See, e.g., 10 U.S.C. § 1408(a)(4)(B)(i), (ii) (providing for different outcomes
based on whether the servicemember is entitled to retirement pay for regular or nonregular
service). Accordingly, the trial court did not make the findings required by federal law to calculate
Mark’s retirement pay as of the date of divorce. See, e.g., id. Because we “cannot act as a fact-
finder,” see Rowlett/2000, Ltd. v. City of Rowlett, 231 S.W.3d 587, 590 (Tex. App.—Dallas 2007,
no pet.), we agree with Mark that the scope of our remand must include instructions to conduct
additional fact-finding.
Finally, Mark argues that Texas Supreme Court precedent requires the calculation of his
retirement pay to be based on his “number of months employed under the [retirement] plan at the
time of divorce” as a matter of Texas state law. See Berry v. Berry, 647 S.W.2d 945, 946–47 (Tex.
1983). Because we have already concluded that the calculation of Mark’s retirement pay must be
reversed and remanded as a matter of federal law, we need not reach this state-law issue. 5 See TEX.
R. APP. P. 47.1. For the same reason, we need not reach Mark’s argument that the DRO as currently
written contains two separate and conflicting formulas. See id.
For these reasons, we reverse the DRO and remand it to the trial court for further
proceedings to: (1) delete the DRO’s paragraphs regarding the calculation of Cherelle’s share of
Mark’s retirement pay; (2) conduct the fact-finding necessary to determine which of the federal
statutory formulas must be used to calculate Mark’s retirement pay for the purposes of determining
Cherelle’s post-divorce share; and (3) enter an amended DRO that: (a) complies with applicable
federal law, including Congress’s requirement that Mark’s retirement pay be calculated as of the
date of the parties’ divorce; (b) specifies the correct formula or formulas to be used to compute
5 We note, moreover, that Mark did not make this state-law argument below. See TEX. R. APP. P. 33.1(a)(1); USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510 (Tex. 2018) (Texas courts generally do not consider complaints not raised in trial court).
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Mark’s retirement pay; and (c) uses the results of those formulas to determine Cherelle’s post-
divorce share. See generally 10 U.S.C. §§ 1407, 1408, 12739.
We sustain Mark’s third issue.
Award of SBP Benefits
In his fourth issue, Mark challenges the portion of the DRO that orders him to name
Cherelle as a former spouse beneficiary under the Armed Forces Survivor Benefit Plan.
The SBP program permits “a member of the armed forces who is entitled to retirement pay
[to] elect to provide an annuity to a former spouse, payable to the former spouse upon the member’s
death.” In re A.E.R., No. 02-05-00057-CV, 2006 WL 349695, at *3 (Tex. App.—Fort Worth Feb.
16, 2006, no pet.) (mem. op.) (per curiam); see also 10 U.S.C. §§ 1448, 1450. Mark argues the
DRO’s award of SBP benefits to Cherelle imposed an obligation on him that was not contemplated
by the final decree.
Because this issue touches on whether the DRO is consistent with the parties’ agreement
as memorialized in the final decree, it presents a question of contract interpretation that we review
de novo. See Beshears v. Beshears, 423 S.W.3d 493, 500 (Tex. App.—Dallas 2014, no pet.); see
also McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984) (marital property agreement
incorporated into divorce decree is “governed by the law of contracts”). “When a contract’s
meaning is disputed, our primary objective is to ascertain and give effect to the parties’ intent as
expressed in the instrument. Objective manifestations of intent control, not what one side or the
other alleges they intended to say but did not.” URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763–
64 (Tex. 2018) (internal quotation marks and footnotes omitted).
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Paragraph W-6 of the final decree specifies that Cherelle was to receive a portion of Mark’s
“military retirement benefits, and any successor Plan thereof . . . and more particularly defined in
a [DRO].” Paragraph H-10 of the final decree specifies that Mark was to receive “[a]ll sums,
whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all
increases thereof, the proceeds therefrom, and any other rights related to or as a result of [Mark’s
military service] . . . except that portion of [Mark’s] U.S. military retirement that has been awarded
in this decree to [Cherelle] as more particularly specified in the [DRO] signed coincident with this
decree and incorporated verbatim in it by reference.” As noted above, it is undisputed that Mark
agreed to these terms.
Mark argues this language in the final decree divides his “military retirement pay and not
his SBP.” (emphasis added). We disagree. The plain language of the agreed final degree divides
Mark’s “military retirement benefits” (emphasis added) and his “U.S. military retirement.” The
decree does not contain any language limiting those terms to retirement pay, and we may not add
such a limitation where the parties did not. See In re Davenport, 522 S.W.3d 452, 456–58 (Tex.
2017) (orig. proceeding); see also URI, 543 S.W.3d at 763–64.
Moreover, we must presume the parties intended to give effect to the provision of the final
decree that expressly incorporates the DRO into its terms. See, e.g., Birnbaum v. Swepi LP, 48
S.W.3d 254, 257 (Tex. App.—San Antonio 2001, pet. denied). “When a document is incorporated
into another by reference, both instruments must be read and construed together.” St. David’s
Healthcare P’ship, LP v. Fuller, 627 S.W.3d 707, 712 (Tex. App.—Austin 2021, pet. dism’d). 6
6 Mark cites St. David’s Healthcare for the proposition that when a document is incorporated by reference, the parties “must be able to ascertain the document and have notice of its terms.” Because he contends he never saw or approved the DRO before the trial court signed it, he argues the necessary notice is lacking here. In St. David’s Healthcare, the court of appeals construed an employee agreement which noted the appellee’s employment was “subject to [the
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Here, the DRO provides that its terms were intended to divide Mark’s “military retired pay and
other military benefits payable in retirement under Texas law” (emphasis added), and it includes
the SBP benefits in that division.
Mark notes that in Hicks and A.E.R., two of our sister courts held that an award, in a DRO,
of SBP benefits to a former spouse was not included within a divorce decree’s division of military
retirement benefits. See Hicks, 348 S.W.3d at 287–88; A.E.R., 2006 WL 349695, at *3. But neither
Hicks nor A.E.R. involved a challenge to a DRO that was expressly incorporated into a divorce
decree. See Hicks, 348 S.W.3d at 284 (court “review[ed] the DRO as a separate order and not as
part of the agreed divorce decree”); A.E.R., 2006 WL 349695, at *1 (decree itself described DRO
as “a separate order”). The Hicks court specifically noted its holding was based on the fact that
“the DRO is not part of the parties’ agreement[.]” Hicks, 348 S.W.3d at 288. Because the rules of
contract interpretation require us to give effect to the parties’ expressed intention to incorporate
the DRO into the final decree, Hicks and A.E.R. are distinguishable from this case, and we decline
to apply their holdings to these facts.
We overrule Mark’s fourth issue.
CONCLUSION
We reverse the DRO as to the provisions that: (1) prohibit Mark from making elections
that may affect Cherelle’s right to receive retirement pay; and (2) set out the mathematical formulas
to be used to calculate Cherelle’s share of Mark’s retirement pay. We remand the DRO to the trial
court with instructions to:
appellant employer’s] policies and procedures applicable to employees.” St. David’s Healthcare, 627 S.W.3d at 711. The court concluded the agreement’s “subject to” language did not incorporate a separate arbitration policy that was not specifically mentioned in the agreement. Id. at 712–13. Here, in contrast, the DRO is expressly incorporated into the final decree. Accordingly, the language of the final decree “evidences an intent by the parties to incorporate” the DRO. Id. at 712.
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(1) delete the provisions that prohibit Mark from merging his military retirement pay “with any other benefit, pension or other entitlement,” exercising any waivers of his military retirement pay that “hav[e] the effect of reducing [his] disposable retired military pay,” or “otherwise tak[ing] or forgo[ing] any action if it would have the effect of reducing or limiting [Cherelle’s] right to receive [her] full separate property share of” his military retirement pay;
(2) delete the paragraphs of the DRO that calculate Cherelle’s share of Mark’s retirement pay;
(3) conduct the additional fact-finding necessary to determine which of the federal statutory formulas must be used to calculate Mark’s retirement pay for the purposes of determining Cherelle’s share; and
(4) enter an amended DRO that: (a) specifies the formula(s) and other requirements promulgated by federal law, including Congress’s requirement that Mark’s retirement pay be calculated as of the date of the parties’ divorce; and (b) applies those formulas to determine both Mark’s retirement pay and Cherelle’s share of that pay.
We affirm the remainder of the DRO, including its award of SBP benefits to Cherelle.
Beth Watkins, Justice
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