ACCEPTED 07-15-00029-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 5/15/2015 4:35:56 PM Vivian Long, Clerk
CAUSE NO. 07-15-00029-CV FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS IN THE SEVENTH DISTRICT COURT OF APPEALS 5/15/2015 4:35:56 PM VIVIAN LONG AT AMARILLO, TEXAS CLERK
TIMOTHY PARRISH, APPELLANT
v.
TRISHA DUNAHOO, APPELLEE
APPEALED FROM THE 146TH DISTRICT COURT OF
BELL COUNTY, TEXAS
BRIEF OF APPELLEE
BOBBY DALE BARINA Texas Bar No. 01738480 455 East Central Texas Expressway, Suite 104 Harker Heights, Texas 76548 Tel: 254-699-3755 Fax: 254-699-1074 BobbyDaleBarina@Barinalaw.com ATTORNEY FOR TRISHA DUNAHOO, APPELLEE
APPELLEE REQUESTS ORAL ARGUMENT. IDENTITY OF PARTIES AND COUNSEL
Appellee, TRISHA DUNAHOO, submits the following list of all
parties and counsel pursuant to Tex. R. App. P. 38.1(a):
Appellant: Timothy Parrish Daniel Corbin Appellate Counsel Texas Bar No. 04814300 And Trial Counsel Ashley Clapper for Appellant Texas Bar No. 24076317 Corbin & Associates, P.C. 603 North 8th Street Killeen, Texas 76541 Phone: 254-526-4523 Fax: 254-526-6711 Email: legal@corbinlegalteam.com
Appellee: Trisha Dunahoo Brett H. Pritchard Trial Counsel for Texas Bar Number 24010324 Appellee The Law Office of Brett H. Pritchard 1201 South W.S. Young Drive Killeen, Texas 76542 Phone: 254-501-4040 Fax: 254-953-1360 Email: Brett@bpattorney.com
Bobby Dale Barina Appellate Counsel for Texas Bar Number 01738480 Appellee Bobby Dale Barina 455 East Central Texas Expressway, Suite 104 Harker Heights, Texas 76548 Phone: 254-699-3755 Fax: 254-699-1074 Email: BobbyDaleBarina@barinalaw.com 2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.............................................. 2
TABLE OF AUTHORITIES ...................................................................... 4
STATEMENT ON ORAL ARGUMENT ................................................... 6
ISSUES PRESENTED FOR REVIEW ..................................................... 7
STATEMENT OF FACTS ......................................................................... 8
APPELLANT ARGUMENT I: The district court did not have subject matter jurisdiction to remove the provision ending the award of military retirement because it modified an unambiguous substantive property division from the divorce decree and the 2008 domestic relations order………………………………………………………12
RESPONSE TO APPELLANT ARGUMENT I: The Trial Court retains subject matter of the Domestic Relationship Order under Chapters 9.104 and 9.1045 of the Texas Family Code. Under these chapters, the court can amend the Domestic Relationship Order……..12
APPELLANT ARGUMENT II: The District Court erred in emoving the end of award provision for the Domestic Relations Order because a collateral attack was barred by Res Judicata……………...…19
RESPONSE TO APPELLANT ARGUMENT II: The Trial Court did not err when he clarified the Domestic Relations Order………………...19
PRAYER ............................................................................................... 22
CERTIFICATE OF COMPLIANCE ........................................................ 23
CERTIFICATE OF SERVICE................................................................. 23
APPENDIX TO BRIEF OF APPELLEE, TRISHA DUNAHOO ............ 24
3 TABLE OF AUTHORITIES
Cases Page(s)
Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex. App. 2002) .............................................................. 12
Harmon v. Harmon, 879 S.W.2d 213 (Tex. App. 1994) ............................................. 18, 21
In re N.T.P., 402 S.W.3d 13 (Tex. App. 2012) ..................................................... 16
McGinty v. Modern Film Effects, Inc., 553 S.W.2d 21 (Tex. Civ. App. 1977) ....................................... 18, 21
Pearcy v. Pearcy, 884 S.W.2d 512 (Tex. App. 1994) ................................................... 16
Quijano v. Quijano, 347 S.W.3d 345 (Tex. App. 2011) ................................................... 13
Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003) ...................................................... 14, 20
Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).............................................................. 12
Vargas v. Vaca, 376 S.W.2d 65 (Tex. Civ. App. 1964) ....................................... 18, 21
Williams v. Kaufman, 275 S.W.3d 637 (Tex. App. 2009) ............................................. 18, 21
Statutes
Tex. Fam. Code Ann. § 9.007(a) (West) .................................................. 15
Tex. Fam. Code Ann. § 9.007(b) .............................................................. 15
Tex. Fam. Code Ann. § 9.008 .................................................................. 16
Tex. Fam. Code Ann. § 9.008(b) ........................................................ 14, 16 4 Tex. Fam. Code Ann. § 9.104 (West 2006) .............................................. 15
Tex. Fam. Code Ann. §§ 9.002, 9.006(a), 9.008 (West) ........................... 14
Rules
Tex. R. App. P. 38.1(a) ............................................................................... 2
Tex. R. App. P. 9.4(i)(1) ........................................................................... 24
Tex. R. Civ. P. 296 ............................................................................. 17, 20
Tex. R. Civ. P. 296-299 ...................................................................... 17, 20
Tex. R. App. P. 9.4(i)(1)……………………………………………………….23
5 STATEMENT ON ORAL ARGUMENT
Appellee, Trisha Dunahoo, requests this Court to grant oral
argument. Oral argument would provide the Court with a more complete
understanding of the facts presented in this appeal and would
significantly aide the Court in analyzing the legal circumstances of this
case.
6 ISSUES PRESENTED FOR REVIEW
Issue 1: Did the District Court have subject matter jurisdiction
to remove the End of Award provision thereby modifying the
award of property as originally set out in the Final Decree of
Divorce and the 2008 Domestic Relations Order?
Response to Issue 1: The District Court had subject matter
jurisdiction to clarify the Domestic Relations Order.
Issue 2: Was the removal of the End of Award provision from
the 2008 Domestic Relations Order barred by res judicata and
therefore an error for the District Court remove the provision.
Response to Issue 2: Res Judicata did not bar the Trial Court
from Clarifying the 2008 Domestic Relations Order.
7 STATEMENT OF FACTS
Volume 1 of 1
This case was heard before the Honorable Jack W. Jones, Jr. on
May 6, 2014. The court called the case and proceeded to address the
matter of the clarification of a prior order. This Motion for filed by
father as he is referred to as the Movant. (1R.R. at 4) The following are
the summary the statements made by counsel and the court. The
mother, referred to as the Respondent, presented her own motion to
clarify the DRO. (1R.R. at ) The case was heard on argument alone
without witnesses. (1R.R. at 4).
MOVANT’S ARGUMENT (1R.R. at 4)
The parties were divorced on April 30, 2008 and the final decree
and the DRO was signed the same day. (1R.R. at 5) At the time of the
divorce the parties had been married for 13 years and 4 months. This
equaled 160 months of marriage. The movant retired December 2011.
The Movant’s request was to have the trial court amend or clarify the
DRO to reflect to that the wife receive a lower percentage of the father,
service member’s, retirement. (1R.R. at 6)
8 Counsel for the Movant then addressed the Respondent’s request
for relief. (1R.R. at 6) The movant stated that the original domestic
relations order, herein after referred to as DRO. (CR. at ) had an end
date to her receiving her portion of the military retirement. It was
stated as “end date of her award”. (1R.R. at 6) The wife was awarded
retirement of 13 years and four months. The movant requested that the
court leave the ending date intact in the order. The theories that they
relied upon was res judicata and that the agreement was contractual.
The respondent is requesting the court to remove the end date on the
DRO. (1R.R. at 6)
RESPONDENT’S ARGUMENT (1R.R. at 6)
The respondent filed a Motion to Amend the Domestic
Relationship Order. (1R.R. at 9) The court has jurisdiction of the
Domestic Relationship Order under Chapters 9.104 and 9.1045 of the
Texas Family Code. Under these chapters, the court can amend the
Domestic Relationship Order. (1R.R. at 9)
Her argument is that the divorce decree and the DRO were signed
at the same time. (1R.R. at 9) That the divorce decree is the substantive
document and contract of the parties and the DRO is not. The original
9 petition for divorce did not plea for a disproportionate share of property.
Nor did they plea to divest the Respondent of separate property. (1R.R.
at 9) The separate property was her portion of the military retirement.
(1R.R. at 9) She states that the DRO is not protected by the theory of
res judicata, because the court retains jurisdiction to amend the DRO.
(1R.R. at 10) Furthermore she adds that the divorce decree doesn’t
allow a disproportionate share of the property and that the divorce
decree did not included any findings that divested her of separate
property. Additionally that the DRO is an effectuating order that effects
the Divorce Decree. (1R.R. at 10) The DRO is not contractual (1R.R. at
11)
MOVANT’S REBUTTAL ARGUMENT (1R.R. at 12)
The Movant responded that the decree was the result of an
agreement of the parties. (1R.R. at 12) That parties can and do contract
away separate property rights. (1R.R. at 13) The court did not divest
her of her separate property rights she contracted them away. (1R.R. at
14)
RESPONDENT’S REBUTTAL ARGUMENT (1R.R. at 15)
10 The again reiterates that the DRO was an effectuating document
and that it was not incorporated by reference into the decree of divorce.
(1R.R. at 16) She again points out 9.101 and 9.1045. (1R.R. at 16)He
requested that the court enter a correct DRO. (1R.R. at 17)
The parties agreed that if she testified she would say that her
intention at the time of the divorce was to receive (1R.R. at 18) the
standard division of the retirement benefits. (1R.R. at 19)
11 Appellant’s Argument I
The district court did not have subject matter jurisdiction to remove the provision ending the award of military retirement because it modified an unambiguous substantive property division from the divorce decree and the 2008 domestic relations order.
Response to Appellant Argument I:
The Trial Court retains subject matter of the Domestic Relationship Order under Chapters 9.104 and 9.1045 of the Texas Family Code. Under these chapters, the court can amend the Domestic Relationship Order.
ARGUMENT AND AUTHORITIES
The Trial Court had the jurisdiction to review and clarify the 2008
domestic relationship order. The issue of jurisdiction in this case turns
on whether the Clarification Order was a modification of the Domestic
Relationship Order or simply a clarification of the Domestic Relationship
Order.
In the instant case the court clarified the Domestic Relations Order
to allow it to be enforceable.
Standard of Review.
Whether a trial court has jurisdiction is a question of law that we
review de novo. Texas Natural Res. Conservation Comm'n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002); Guevara v. H.E. Butt Grocery Co., 82 S.W.3d
12 550, 551 (Tex. App. 2002).
A Domestic Relations Order, such as the one here, “is a species of
post-divorce enforcement order.” Quijano v. Quijano, 347 S.W.3d 345, 353
(Tex. App. 2011)(Tex.App.-Houston [14th Dist.] 2011, no pet.). The
purpose of a Domestic Relations Order is to create or recognize an
alternate payee’s right, or to assign an alternate payee the right, to
receive all or a portion of the benefits payable to a participant under a
retirement plan. Id. at 353–54. The purpose is not to award separate
property or to divest a party of property. A trial court that renders a
divorce decree generally retains the power to enforce or clarify the
property division approved of or contained in the decree. Tex. Fam. Code
Ann. §§ 9.002, 9.006(a), 9.008 (West). The court may enter a clarifying
order to enforce compliance with the original division of the property.
Tex. Fam. Code Ann. § 9.008(b); see also § 9.1045(a) (providing that a
“court that renders a qualified domestic relations order retains
continuing, exclusive jurisdiction to amend the order to correct the order
or clarify the terms of the order to effectuate the division of property
ordered by the court”). However, after its plenary power expires, a court
may not alter, amend, or modify the substantive division of property in
13 the decree. Tex. Fam. Code Ann. § 9.007(a) (West); Shanks v. Treadway,
110 S.W.3d 444, 449 (Tex. 2003). An order that amends, modifies, alters,
or changes the actual, substantive division of property made or approved
in a final decree of divorce is beyond the jurisdiction of the trial court and
is unenforceable. Tex. Fam. Code Ann. § 9.007(b).
The Final Decree of Divorce clearly states that under property to
wife that:
“IT IS ORDERED AND DECREED that the wife, Trisha Ann Parrish, is awarded the following as her sole and separate property, and the husband is divested of all right, title, interest, and claim in and to that property: (CR at 27)
W-8. 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 TIMOTHY PARRISH's service in the United States Army, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of TIMOTHY PARRISH's past, present, or future employment, except that portion of TIMOTHY PARRISH's U.S. military retirement that has been awarded in this decree to TIMOTHY PARRISH as more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference.”
14 Therefore her separate property would be available to her through
the Domestic Relations Order. The 2008 Domestic Relations Order set up
a conflict that required clarification.
The 2008 Domestic Relations Order stated that the award of
separate property would one day end and no longer be Trisha Dunahoo’s
Separate property. The Domestic Relations Order states:
“End of Award IT IS ORDERED that the payment of the disposable retirement pay awarded in this order to TRISHA ANN PARRISH shall continue for 13 years and 4 months after it begins or until the death of TIMOTHY PARRISH or TRISHA ANN PARRISH, whichever event occurs first. (CR at 36)”
The appellant’s argument that the trial court erred because there
is no evidence or any finding that the original Domestic Relations Order’s
language was not specific enough to be enforceable by contempt or that
the agency in charge of administering military domestic relations orders
had any difficulty interpreting or implementing the Domestic Relations
Order. The Family Code provides that if a plan administrator
“determines that a domestic relations order does not satisfy the
requirements of a qualified domestic relations order or similar order, the
15 court retains continuing, exclusive jurisdiction over the parties and their
property to the extent necessary to render a qualified domestic relations
order.” Tex. Fam. Code Ann. § 9.104 (West 2006). However, nothing in
the Family Code section pertaining to qualified domestic relations orders
requires such a determination by a plan administrator as a prerequisite
to clarification of the order. In re N.T.P., 402 S.W.3d 13 (Tex. App. 2012)
Additionally, there does not have to be a finding that the original
order was not specific enough to be enforceable by contempt. Prior to the
2005 enactment of section 9.1045, courts looked to Family Code Tex.
Fam. Code Ann. § 9.008, which provided that “[o]n a finding by the court
that the original form of the division of property is not specific enough to
be enforceable by contempt, the court may render a clarifying order
setting forth specific terms to enforce compliance with the original
division of property.” Tex. Fam. Code Ann. § 9.008(b); see Pearcy v.
Pearcy, 884 S.W.2d 512, 514 (Tex. App. 1994)(relying on prior version of
Family Code Tex. Fam. Code Ann. § 9.008 to conclude clarification of
division of military pay was improper because “there was neither an
expressed nor implied finding that the division of military retirement was
so unspecific that it could not be enforced by contempt.”). However,
16 section 9.1045 provides that a “court that renders a qualified domestic
relations order retains continuing, exclusive jurisdiction to amend the
order to correct the order or clarify the terms of the order to effectuate
the division of property ordered by the court.” Id. § 9.1045(a). Nothing in
section 9.1045 requires a finding that the original Domestic Relations
Order was not enforceable by contempt as a prerequisite to clarification
of the order.
Clearly the court had jurisdiction to clarify the Domestic relations
Failure to secure Findings of Facts and Conclusions of Law
Timothy Parrish filed an untimely request that the trial court make
findings of fact and conclusions of law, and later he failed to file a notice
of overdue findings of facts and conclusions of law, and thus the trial
court was not required to make them. See Tex. R. Civ. P. 296-299. The
Domestic Relations Order that Timothy Parrish filed this appeal was
entered on November 12, 2014 (C.R. at 219) and the twenty day deadline
to request findings of facts and conclusions of law was December 2, 2014.
See Tex. R. Civ. P. 296. Timothy Parrish filed his Request for Findings of
Fact and Conclusions of Law on December 9, 2014. (C.R. at 225). The
17 courts have consistently held that the Trial court was not required to
make findings of fact and conclusions of law in bench trial, when the
request for findings of fact and conclusions of law was filed more than 20
days after judgment was signed. Williams v. Kaufman, 275 S.W.3d 637
(Tex. App. 2009), Harmon v. Harmon, 879 S.W.2d 213 (Tex. App. 1994),
writ denied (Dec. 1, 1994), abrogated by Ratisseau v. Ratisseau, 44
S.W.3d 695 (Tex. App. 2001), rehearing denied, writ denied. Where
appellant there are no findings of fact or conclusions of law, if there is
evidence to support the judgment of the trial court on any theory of the
case, the judgment should be affirmed and every issue raised by the
testimony will be resolved in support of the judgment. McGinty v. Modern
Film Effects, Inc., 553 S.W.2d 21 (Tex. Civ. App. 1977). Therefore all
disputed issues of fact had to be resolved in favor of the judgment and all
evidence in conflict therewith had to be disregarded where appellant did
not ask the trial court to make and file findings of fact or conclusions of
law. Vargas v. Vaca, 376 S.W.2d 65 (Tex. Civ. App. 1964).
In the instant case the parties agreed that if Trisha Dunahoo
testified she would say that her intention at the time of the divorce was
to receive (1R.R. at 18) the standard division of the retirement benefits.
18 (1R.R. at 19) This court should find that the facts and concluions
support the court decision in this case. Based on the conflict between
the decree and the 2008 Domestic Relations Order the court correctly
clarified the Domestic Relations Order. Additionally the Trial Court had
jurisdiction to clarify the Domestic Relations Order
The Court of Appeals should overrule the Appellant’s argument
and affirm the Trial Court’s decision.
Appellant’s Argument II
The District Court erred in removing the end of award provision for the Domestic Relations Order because a collateral attack was barred by Res Judicata.
Response to Appellant Argument II:
The Trial Court did not err when he clarified the Domestic Relations Order.
The Trial Court had the jurisdiction to review and clarify the 2008
domestic relationship order. The issue of jurisdiction in this case turns
on whether the Clarification Order was a modification of the Domestic
Relationship Order or simply a clarification of the Domestic
Relationship Order. In the instant case the court clarified the Domestic
Relations Order to allow it to be enforceable. Once this court determines 19 that the Trial Court clarified the order and then the court may enter a
“clarifying order”. Tex. Fam.Code § 9.008(b), a court “may not amend,
modify, alter, or change the division of property made or approved in
the decree of divorce. Shanks, 110 S.W.3d 444 Therefore the issue of
Res Judicata does not apply in this case, and this was not a collateral
attack.
Timothy Parrish filed an untimely request that the trial court make
findings of fact and conclusions of law, and later he failed to file a notice
of overdue findings of facts and conclusions of law, and thus the trial
court was not required to make them. See Tex. R. Civ. P. 296-299. The
Domestic Relations Order that Timothy Parrish filed this appeal was
entered on November 12, 2014 (C.R. at 219) and the twenty day deadline
to request findings of facts and conclusions of law was December 2, 2014.
See Tex. R. Civ. P. 296. Timothy Parrish filed his Request for Findings of
Fact and Conclusions of Law on December 9, 2014. (C.R. at 225). The
courts have consistently held that the Trial court was not required to
make findings of fact and conclusions of law in bench trial, when the
request for findings of fact and conclusions of law was filed more than 20
20 days after judgment was signed. Williams, 275 S.W.3d 637, Harmon, 879
S.W.2d 213, rehearing denied, writ denied. Where appellant there are no
findings of fact or conclusions of law, if there is evidence to support the
judgment of the trial court on any theory of the case, the judgment should
be affirmed and every issue raised by the testimony will be resolved in
support of the judgment. McGinty, 553 S.W.2d 21. Therefore all disputed
issues of fact had to be resolved in favor of the judgment and all evidence
in conflict therewith had to be disregarded where appellant did not ask
the trial court to make and file findings of fact or conclusions of law.
Vargas, 376 S.W.2d 65.
In the instant case the parties agreed that if Trisha Dunahoo
testified she would say that her intention at the time of the divorce was
to receive (1R.R. at 18) the standard division of the retirement benefits.
(1R.R. at 19) This court should find that the facts and concluions
support the court decision in this case. Based on the conflict between
the decree and the 2008 Domestic Relations Order the court correctly
clarified the Domestic Relations Order. Additionally the Trial Court had
21 The Court of Appeals should overrule the Appellant’s argument
PRAYER
WHEREFORE, PREMISES CONSIDERED, TRISHA DUNAHOO,
Appellant, requests this Court to AFFIRM in all things the November 12,
2014 Domestic Relations Order. TRISHA DUNAHOO prays for all other
relief to which she is entitled.
Respectfully submitted,
/s/ Bobby Dale Barina Bobby Dale Barina Texas Bar No. 01738480 455 East Central Texas Expressway, Suite 104 Harker Heights, Texas 76548 Tel: 254-699-3755 Fax: 254-699-1074 BobbyDaleBarina@BarinaLaw.Com ATTORNEY FOR TRISHA DUNAHOO
22 CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word 2013 and contains 2,769 words, as determined by the Tex. R. App. P. 9.4(i)(1), computer software's word-count function, excluding the sections of the document listed in
/s/ Bobby Dale Barina Bobby Dale Barina
CERTIFICATE OF SERVICE
I certify that on May 15, 2015, I served a copy of Brief of Appellee on Ashley Clapper, counsel for Appellant, by fax at 254-526-6711 respectively.