Rankin v. Bateman

686 S.W.2d 707, 1985 Tex. App. LEXIS 6471

• Court: Court of Appeals of Texas
• Decided: February 20, 1985
• Docket: 04-82-00504-CV
• Status: Published

Opinions

OPINION

CADENA, Chief Justice.

Appellant, Mariann Bateman Rankin, appeals from an order interpreting that portion of a divorce decree which awarded her an interest in the military retirement benefits received by her former husband, Jack Norman Bateman.

We affirm the judgment below.

The proceedings which culminated in the challenged order were initiated when appellant filed a motion seeking to have appellee held in contempt because of his failure to make the payments which she claimed he was required to make under the decree. Her motion did not allege the amount of each monthly payment which she claimed to be due, nor did she allege the amount of the claimed arrearage. She did allege that under the property settlement which was incorporated in the divorce decree the ap-pellee was ordered to pay her “a pro rata share of the retirement benefits with 6.5 as the numerator of a fraction and with the denominator of said fraction being the number of years spent by [appellee] in the U.S. Army.”

On the day that the motion for contempt was set for hearing, the parties appeared before the court and announced that an agreement had been reached under which appellee was to pay appellant $6,500.00 and that such payment would absolve appellant of “all arrearages in the payment owed for military benefits accrued up to” the date of the hearing. Counsel for appellant then announced that the parties had been unable to agree concerning “the percentage of the retirement benefits [appellee] is to pay hereafter, and as to what dollar amount the percentage is to be applied to.” He added:

So, we are here submitting to the court for interpretation the divorce decree and with the evidence we have as to what the monies are and so forth as to how much percentage and of what base he should pay future military benefits. And with the court making that determination, we have agreed that as part of the order to be entered herein, that he will be ordered that the payments be made as interpreted by the court and further that he do all things to institute an allotment so that she would receive that money directly from the Army Finance Center each month.

Counsel for the parties then agreed that appellee would make all efforts to cause an allotment to be made, but that if his efforts proved unsuccessful he would be under order of the court to make the payments to appellant. Counsel for appellee, after it had been made clear to appellee that he would be hound to make the payments “whether the allotment occurs or not,” then said:

And, Judge, so the court understands what the real dispute is before the Court, let me just make this by way of predicate argument. We take the position that he was a Major at the time of the divorce. And we take the position that the decree and the intention of the parties was that the retirement benefits were to be based upon his rank; not the years of service. Because that was negotiated. That’s 6.50 over the years of service. But on his rank at the time of divorce.

They take the position that they are entitled to the entire amount that he receives now at the upgraded rank that he obtained after marriage. And that’s what the issue before the Court is, as I understand it.

Counsel then stated the issue before the court in terms of whether appellant was entitled to receive the stipulated percentage of the retirement pay based on the amount received by a lieutenant colonel on retirement after 30 years’ service or whether the payment due appellant was to be calculated on the basis of the percentage appellee would have received if he had retired as a major. Appellant’s attorney said: “He said that very well. I think that capsulized the dispute, crystallizes the dispute.”

The court then announced that he would order that the amount to be paid by appel-lee would be based on the retirement benefits received by a Major. Counsel for ap-pellee inquired whether the court’s order that the money to be received by appellant would be “based upon as if he retired as a Major and not as a Lieutenant Colonel, which he actually retired? ” The court answered, “That’s correct.”

There can be no doubt that Rule 67, TEX.R.CIV.P., is applicable.¹ Both parties made it clear to the court that they wanted the question decided and both presented arguments to persuade the court that their interpretation of the divorce decree was correct. Both expressly agreed on the nature of the question they wanted decided. A reading of the record compels the conclusion that both parties understood that the question was before the court, and neither party pointed out the defects in pleading to the court. See 2 R. McDONALD, TEXAS CIVIL PRACTICE § 5.18, p. 47 (rev. 1982).²

The cases relied on by Justice Tijerina in his dissent are not relevant. In Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex.1983), there is no mention of Rule 67 nor any discussion of trial by express or implied consent. A reading of the opinion reveals that the question of trial of un-pleaded issues by consent could not be in the case, since the order complained of in that case was entered without a hearing and the complaining part on appeal did not appear in court. It is impossible to speak of consent by a party who was not present in court and, therefore, could have no inkling concerning the issues the trial court believed were presented. In fact, a reading of the opinion makes it clear that no one appeared in court. It takes great imagination and even more determination to interpret Cunningham as a case limiting the effect of Rule 67 insofar as trial by consent is concerned. Since that issue was not and, indeed, could not be before the Supreme Court in that case, the complete failure of the opinion to address the question is understandable.

In Foxworth-Galbraith Lumber Company v. Southwestern Contracting Corp., 165 S.W.2d 221, 224 (Tex.Civ.App. — Fort Worth 1942, writ ref’d n.r.e.), which was decided about 13 months after Rule 67 became effective, the court did say that Rule 67 was not intended to establish “a general rule of practice” and that it was to be applied only “to the exceptional case where it clearly appears from the record as a whole that the parties tried out an un-pleaded issue, perhaps having overlooked the omission in the pleadings, or else having failed to plead carefully or clearly the issues upon which the case was tried.” This language in no way supports the position taken by the dissenter, since in the case before us “it clearly appears from the record as a whole that the parties tried out an unpleaded issue_” The actual holding in that case was the affirmance of a judgment which allowed recovery on an unpleaded cause of action.

Jay Fikes and Associates v. Walton, 578 S.W.2d 885 (Tex.Civ.App. — Amarillo 1979, writ ref’d n.r.e.), does not support the dissenter’s position. Insofar as Rule 67 is concerned, the court merely held that the record furnished no basis for concluding that the issue of recovery of attorney’s fees, which was not mentioned in the pleadings, had been tried by consent. The same is true of Realtex Corp. v. Tyler, 627 S.W.2d 441, 444 (Tex.App.Houston [1st Dist.] 1981, no writ), where the court pointed out that the record did not establish that the parties understood that the question of recovery of a trustee’s fee was before the trial court.

The trial court ruled that the retirement benefits to be paid to Mrs. Rankin under the decree of divorce should be based on the rank of Major, the rank held by the husband at the time of the divorce, and not the rank of Lieutenant Colonel, the rank held by him at the time of his retirement after the divorce.

The conclusion that the pro-rata share to be paid to Mrs. Rankin under the divorce decree must be based on the husband’s rank at the time of the divorce, rather than on the rank subsequently attained by him, is correct.

In Berry v. Berry, 647 S.W.2d 945, 947 (Tex.1983), the Supreme Court held that a divorce court, in dividing military retirements benefits, must base the division on the rank held by the prospective retiree at the time of the divorce, rather than upon the rank attained subsequent to the divorce. As applied to this case, an order awarding Mrs. Rankin a pro-rata share of a Lieutenant Colonel’s retirement, rather than a pro-rata share of a Major’s retirement, would invade the separate property of Mr. Bateman.

The judgment of the trial court is affirmed.

1 . Rule 67 reads in pertinent part as follows: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings...."

2 . Appellant did not raise the question of the sufficiency of the pleadings to support the judgment either in the court below or in this court. Although the question probably is not before us, the dissenting opinion’s sua sponte consideration of the question required a discussion of the correct application of Rule 67.