McCLOUD, Chief Justice,
Dorothy Neese sued her former husband, Melvin Neese, seeking to enforce a divorce decree awarding her a 43.5 percent interest ¡n defendant’s nondisability military retírement benefits.
The parties were divorced on June 24, 1976. At that time, defendant was retired from the United States Air Force and he was receiving military retirement pay in the gross amount of $461.94 per month. The divorce decree awarded the wife a “43.5 percent interest in the gross amount of all U.S. Air Force Retirement Benefits.” Defendant made monthly benefit payments to the plaintiff until July 1981. He stopped making the payments at that time because of his interpretation of the decision by the United States Supreme Court in
McCarty v. McCarty,
453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).
Defendant resumed making monthly payments to plaintiff in January 1983 following the enactment of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. sec. 1408 (1983).
Plaintiff sought recovery of 43.5 percent of the retirement benefits received by defendant during the 18 month period between July 1981, when payments were stopped, and January 1983, when payments were resumed. The trial court awarded plaintiff a judgment for $4,968.82 in past benefits, 43.5 percent of the gross amount of all future benefits less “federal employment and income taxes,”
and attorney’s fees. By July 1981, defendant’s gross retirement pay had increased to $718.00 per month. In calculating the $4,968.82 judgment, the trial court included increases in defendant’s gross retirement pay.
Defendant argues that his former wife is not entitled to share in the post-divorce increases in his retirement pay. We disagree.
Defendant recognizes that
McCarty
has no retroactive effect in Texas. See
Segrest v. Segrest,
649 S.W.2d 610 (Tex.1983);
Ex Parte Welch,
633 S.W.2d 691 (Tex.App.— Eastland 1982) (original proceeding). He urges that Section 1408(c)(1)
of the Uniformed Services Former Spouses’ Protection Act required the trial court to treat the “disposable retired pay” payable after June 25, 1981, “in accordance with the law” of Texas. Defendant contends that under Texas law his former wife cannot share in the retirement benefit increases because the value of the community interest in the retirement benefits was forever fixed at $461.94 per month at the time of their divorce in accordance with
Berry v. Berry,
647 S.W.2d 945 (Tex.1983).
We will assume, without deciding, that Section 1408(c)(1) is applicable to the present case. We note that the apparent purpose of the “June 25, 1981” date in Section 1408(c)(1) is to place the courts in the same position that they were in on June 26, 1981, when
McCarty
was decided. See S.Rep. No. 97-502, 97th Cong. 2d Sess. 1, 16, reprinted in, 1982 U.S.Code Cong, and Ad.News 1555, 1596, 1611.
Berry
does not control our disposition. In the instant case, the defendant was retired and receiving retirement benefits from the military when the parties were divorced on June 24, 1976. The retirement benefits had matured and were divided by the trial court in the divorce decree.
Berry
was a post-divorce suit to partition retirement benefits which had not matured at the time of divorce, and were not divided in the divorce decree. The Supreme Court noted that Mr. Berry had continued to work for 12 years after the divorce and that the improved retirement pay resulted from his post-divorce employment. Relying on
Cameron v. Cameron,
641 S.W.2d 210 (Tex.1982),
Berry
held that the post-divorce increases could not be awarded to Mrs. Berry because to do so would invade Mr. Berry’s separate property. The increases in the instant defendant’s monthly retirement pay do not constitute his separate property. Our Supreme Court observed in
Cearley v. Cearley,
544 S.W.2d 661 (Tex.1976) that a “serviceman’s military pension ... is a form of deferred compensation which is earned during each month of his military service.” We also note that in
Cameron,
our Supreme Court approved an award to the wife for 35 percent of the gross present and “future” military retirement benefits paid to the husband. It appears that
Cameron
recognizes that, under facts similar to the instant case, .post-divorce increases in future payments do not constitute separate property of the retired spouse. Both parties will share in the future “increases” and “decreases” in retirement benefits. We overrule defendant’s first point of error. Defendant’s former wife is entitled to share in the increased retirement benefits.
Defendant alternatively urges that the trial court erred in awarding a judgment based on “gross retirement pay” rather than “disposable retirement pay.” He specifically asserts that he is entitled to a deduction from his gross retirement pay for payments to his Survivor Benefit Plan before plaintiff is entitled to 43.5 percent of his retirement pay. Again, we will assume, without deciding, that 10 U.S.C. sec. 1408(a)(4) (1983) is applicable.
Section 1408(a)(4) provides in pertinent part:
“Disposable retired or retainer pay” means the total monthly retired or retainer pay to which a member is entitled ... less amounts which—
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(F) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired or retainer pay is being
made pursuant to a court order under this section.
(Emphasis added)
There is no evidence that the defendant is providing an annuity to a spouse or former spouse “pursuant to a court order under this section.” Defendant’s payments, therefore, do not qualify under Section 1408(a)(4). Defendant’s point of error is overruled.
Finally, defendant urges that the trial court did not have the authority to award attorney’s fees to plaintiff. We agree.
We follow
Etzel v. United States Dept. of Air Force,
620 S.W.2d 853, 855 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref’d n.r.e.) where the court, when faced with the same issue, stated:
Upon examination of the record, we find in this case there existed no right for the recovery of attorney’s fees at the enforcement proceeding as related to the delinquent retirement benefits.
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McCLOUD, Chief Justice,
Dorothy Neese sued her former husband, Melvin Neese, seeking to enforce a divorce decree awarding her a 43.5 percent interest ¡n defendant’s nondisability military retírement benefits.
The parties were divorced on June 24, 1976. At that time, defendant was retired from the United States Air Force and he was receiving military retirement pay in the gross amount of $461.94 per month. The divorce decree awarded the wife a “43.5 percent interest in the gross amount of all U.S. Air Force Retirement Benefits.” Defendant made monthly benefit payments to the plaintiff until July 1981. He stopped making the payments at that time because of his interpretation of the decision by the United States Supreme Court in
McCarty v. McCarty,
453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).
Defendant resumed making monthly payments to plaintiff in January 1983 following the enactment of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. sec. 1408 (1983).
Plaintiff sought recovery of 43.5 percent of the retirement benefits received by defendant during the 18 month period between July 1981, when payments were stopped, and January 1983, when payments were resumed. The trial court awarded plaintiff a judgment for $4,968.82 in past benefits, 43.5 percent of the gross amount of all future benefits less “federal employment and income taxes,”
and attorney’s fees. By July 1981, defendant’s gross retirement pay had increased to $718.00 per month. In calculating the $4,968.82 judgment, the trial court included increases in defendant’s gross retirement pay.
Defendant argues that his former wife is not entitled to share in the post-divorce increases in his retirement pay. We disagree.
Defendant recognizes that
McCarty
has no retroactive effect in Texas. See
Segrest v. Segrest,
649 S.W.2d 610 (Tex.1983);
Ex Parte Welch,
633 S.W.2d 691 (Tex.App.— Eastland 1982) (original proceeding). He urges that Section 1408(c)(1)
of the Uniformed Services Former Spouses’ Protection Act required the trial court to treat the “disposable retired pay” payable after June 25, 1981, “in accordance with the law” of Texas. Defendant contends that under Texas law his former wife cannot share in the retirement benefit increases because the value of the community interest in the retirement benefits was forever fixed at $461.94 per month at the time of their divorce in accordance with
Berry v. Berry,
647 S.W.2d 945 (Tex.1983).
We will assume, without deciding, that Section 1408(c)(1) is applicable to the present case. We note that the apparent purpose of the “June 25, 1981” date in Section 1408(c)(1) is to place the courts in the same position that they were in on June 26, 1981, when
McCarty
was decided. See S.Rep. No. 97-502, 97th Cong. 2d Sess. 1, 16, reprinted in, 1982 U.S.Code Cong, and Ad.News 1555, 1596, 1611.
Berry
does not control our disposition. In the instant case, the defendant was retired and receiving retirement benefits from the military when the parties were divorced on June 24, 1976. The retirement benefits had matured and were divided by the trial court in the divorce decree.
Berry
was a post-divorce suit to partition retirement benefits which had not matured at the time of divorce, and were not divided in the divorce decree. The Supreme Court noted that Mr. Berry had continued to work for 12 years after the divorce and that the improved retirement pay resulted from his post-divorce employment. Relying on
Cameron v. Cameron,
641 S.W.2d 210 (Tex.1982),
Berry
held that the post-divorce increases could not be awarded to Mrs. Berry because to do so would invade Mr. Berry’s separate property. The increases in the instant defendant’s monthly retirement pay do not constitute his separate property. Our Supreme Court observed in
Cearley v. Cearley,
544 S.W.2d 661 (Tex.1976) that a “serviceman’s military pension ... is a form of deferred compensation which is earned during each month of his military service.” We also note that in
Cameron,
our Supreme Court approved an award to the wife for 35 percent of the gross present and “future” military retirement benefits paid to the husband. It appears that
Cameron
recognizes that, under facts similar to the instant case, .post-divorce increases in future payments do not constitute separate property of the retired spouse. Both parties will share in the future “increases” and “decreases” in retirement benefits. We overrule defendant’s first point of error. Defendant’s former wife is entitled to share in the increased retirement benefits.
Defendant alternatively urges that the trial court erred in awarding a judgment based on “gross retirement pay” rather than “disposable retirement pay.” He specifically asserts that he is entitled to a deduction from his gross retirement pay for payments to his Survivor Benefit Plan before plaintiff is entitled to 43.5 percent of his retirement pay. Again, we will assume, without deciding, that 10 U.S.C. sec. 1408(a)(4) (1983) is applicable.
Section 1408(a)(4) provides in pertinent part:
“Disposable retired or retainer pay” means the total monthly retired or retainer pay to which a member is entitled ... less amounts which—
[[Image here]]
(F) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired or retainer pay is being
made pursuant to a court order under this section.
(Emphasis added)
There is no evidence that the defendant is providing an annuity to a spouse or former spouse “pursuant to a court order under this section.” Defendant’s payments, therefore, do not qualify under Section 1408(a)(4). Defendant’s point of error is overruled.
Finally, defendant urges that the trial court did not have the authority to award attorney’s fees to plaintiff. We agree.
We follow
Etzel v. United States Dept. of Air Force,
620 S.W.2d 853, 855 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref’d n.r.e.) where the court, when faced with the same issue, stated:
Upon examination of the record, we find in this case there existed no right for the recovery of attorney’s fees at the enforcement proceeding as related to the delinquent retirement benefits. There is no indication that a contract existed for the payment of attorney’s fees nor do we find any pleadings reflecting a proper statutory claim authorizing an award of attorney’s fees for the recovery of the retirement benefits.
Plaintiff’s reliance on
Chess v. Chess,
627 S.W.2d 513 (Tex.App. — Corpus Christi 1982, no writ) and
Peissel v. Peissel,
620 S.W.2d 796 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ) is misplaced.
Chess
and
Peissel
were each based on a “property settlement agreement.” The authority to award attorney’s fees came from the contract nature of the suits. See
McCray v. McCray,
584 S.W.2d 279 (Tex.1979) (per curiam); TEX.REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1982-1983). The instant case does not involve a property settlement agreement.
Plaintiff also argues that she is entitled to attorney’s fees under a new provision of the Family Code. See Act of June 17,1983, ch. 424, sec. 2, 1983 Tex.Gen.Laws 2346, 2353 (to be codified at Tex.Family Code sec. 3.77).
Plaintiff cannot take advantage of this new provision because the trial was held 21 days before the provision became effective. See
Shwiff v. Priest,
650 S.W.2d 894 (Tex.App. — San Antonio 1983, writ ref’d n.r.e.);
Villiers v. Republic Financial Services, Inc.,
602 S.W.2d 566 (Tex.Civ.App. — Texarkana 1980, writ ref’d n.r. e.). We hold that the trial court erred in awarding attorney’s fees to plaintiff.
The part of the trial court’s judgment awarding attorney’s fees is reversed and rendered. In all other respects, the judgment of the trial court is affirmed.