Tracie Marie Scheffler F/K/A Tracie Marie Parson v. Paul Michael Parson

Opinion

ACCEPTED 13-15-00150-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 8/4/2015 5:45:39 PM CECILE FOY GSANGER CLERK

No. 13-15-00150-CV

FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH DISTRICT OF TEXAS 8/4/2015 5:45:39 PM CORPUS CHRISTI- EDINBERG CECILE FOY GSANGER Clerk

TRACIE MARIE SCHEFLLER F/KJA TRACIE MARIE PARSON, APPELLANT,

v PAUL MICHAEL PARSON, APPELEE.

On Appeal from the 8 81 T Judicial District Court of Wilson County, Texas Trial Court. Cause No. 10-10-0579-CVW

APPELLEE'S REPLY BRIEF

Respectfully Submitted,

'/11- ason J. ak Stat ar o. 24042933 . z J ob, LLC 15 . Travis, Suite 333 San Antonio, Texas 78205 Telephone: 210-226-4500 Telecopier: 210-226-4502 Email: jjakob@diazjakob.com Attorneys for Paul Michael Parson, Appellee

ORAL ARGUMENTS REQUESTED IDENTITY OF PARTIES AND COUNSEL

Appelee's Counsel APPELEE

Jason J. Jakob Paul Michael Parson DIAZ JAKOB, LLC 115 East Travis Street, Suite 333 San Antonio, Texas 78205 (210) 226-4500 (21 0) 226-4502 (fax) jjakob@diazjakob.com

Appelant's Counsel APPELLANT

Kirk Dockery Tracie Marie Sheffler Donaho & Dockey, P .C. f/k/a Tracie Marie Parson P.O. Box 459 Floresville, Texas 78114 (830) 393-2700 (830) 393-3029 (fax)

-i- TABLE OF CONTENTS

PAGE IDENTITY OF PARTIES AND COUNSEL ..................................................................... -i-

TABLE OF CONTENTS .................................................................................................. -ii-

INDEX OF AUTI-IORITIES ............................................................................................ -iv-

STATEMENT OF JURISDICTION ................................................................................ -vi-

ISSUES PRESENTED .................................................................................................... -vii-

ABBREVATIONS & RECORD REFERENCES ......................................................... -viii-

STATEMENT OF THE CASE ......................................................................................... -1-

ARGUMENT AND AUTHORITIES ......................................................................... -3- A. Trial court did not Error in granting Appellee's Motion to Dismiss for Lack of Judgment ......................................................................................... -3- B. The Corrected Divorce Decree With DRO Was Entered Into By Agreement and lacks ambiguity ............................................................................. -8- C. The Trial Court Did Not Abuse its Discretion in Failing to Grant the Relief Requested By Appellant to Clarify the Valuation of Military Retirement in the Decree of Divorce ........................................................................... -1 0- D. STANDARD OF REVIEW ...................................................................... -12-

CONCLUSION ........................................................................................................ -13-

PRAYER ................................................................................................................ -13-

CERTIFICATE OF SERVICE ....................................................................................... -14-

CERTIFICATE OF COMPLIANCE .............................................................................. -14-

APPENDIX ............................................................................................................. -16-

-11- INDEX OF AUTHORITIES

CASES PAGE

Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex.App.--Houston [1st Dist.] 2008, pet. filed) ........................................................................ -9-, -9-

EXXCONMOBIL Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex.App.-- Houston [1st Dist.] 2005, pet denied. filed) ........................................................................................... -2-, -4-

Garcia v. Alvarez, 367 S.W.3d 784-88 (Tex. App-Houston [14th Dist.], no pet.).) .......................................................................................... -8- 9-

Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 859 (Tex.App.--Dallas 2008, no pet.). -10-

Gary E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180, 197 (Tex.App.-- Houston [1st Dist.] 2008, pet. denied) ........................................................ -10-

Hagen v. Hagen, 282 S.W.3d 899,907 (Tex. 2009).) ..................................... ,-7-,-8-

ISG State Operations, Inc. v. National Heritage Insurance Company, 234 S.W.3d 711, 719 (Tex.App.--Eastland 2007, pet. denied) ................................................. -9-

lAC, LTD. v. Bel Helicopter Textron Corp., 160 S.W.3d 191, 203 (Tex. App. -Fort Worth 2005, no pet.)........................................................................ -7-

Microsoft C01p. v. Manning, 914 S.W.2d 602, 607 (Tex. App.- Texarkana 1995, writ dism'd)... ... ... ... ... ... . .. . .. . . . ... ... ... ... ... ... .. . .. . ... . .. ... ... ... ... .. . ... ... ... .. . ... -12-

National Family Care Life Ins. Co. v Fletcher, 57 S.W.3d 662, 667-668 (Tex. App.- Beaumont 2001) (Distinguished on other grounds) ......................................... -6-,-8-

Padilla. v. La France, 907 S.W.2d 454, 461 (Tex. 1995) .................................. -4-

Pearson v. Fillingim, 322 S.W.3d 361,363 (Tex. 2011) ........................ ,-7-, -9-,

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)......... -6-,-11-

STATUTES & RULES

-111- TEX. R. CIV. P. 11 .................................................................................................. -2-,-4-

TEX. FAM. CODE. §9.007 ................................................... -5-,-7-,-8-,-9-,-10-,-11-,-13-

TEX. FAM. CODE. §9.103 ............................................................................................. -11-

TEX. FAM. CODE. §9.104 ..................................................................................... -5-,-11--

10 U.S.C. 1408 ........................................................................... -11-,-12-

-iv- ISSUES PRESENTED

1). The trial court did not error in granting Appellee's Motion to Dismiss for Lack of Jurisdiction.

2.) The trial court did not abuse its discretion in granting Appellee's Motion to Dismiss for Lack of Jurisdiction.

3.) The trial court ruled properly and within its discretion in dismissing the relief requested by Appellant to clarify the valuation of the military retirement in the decree of divorce and domestic relations order

-v- ABBREVIATIONS & RECORD REFERENCES

Abbreviations:

Paul Michael Parson. (Appellee) .......................................................Mr. Parson

Tracie Marie Sheffler (Appellant) .................................................. Mrs. Sheffler

Han. Russell Wilson ............................................. Judge Wilson or the Trial Com1

Record References:

Cites to the Court's Record are in the form of (CR [page#]). Cites to any document included in the Appendix attached hereto are in the form of (App. [appendix tab no.]).

-vi- No. 13-15-00150-CV

IN THE COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBERG

TRACIE MARIE SCHEFLLER F/K/A TRACIE MARIE PARSON, APPELLANT,

v PAUL MICHAEL PARSON, APPELEE.

On Appeal from the 81 ST Judicial District Court of Wilson County, Texas Trial Court. Cause No. 10-10-0579-CVW

TO THE HONORABLE THE THRITEENTH COURT OF APPEALS: Appellee, herein Paul Michael Parson, submits this his Reply Brief in opposition

of Appellee's Brief and in support of the Trial Court's order dismissing the Appellee's

Petition to Clarify the Division of Military Retirement and in support of affirming the

Trial Courts dismissal for lack ofjurisdiction.

STATEMENT OF THE CASE A. History

On or about January 6, 2015 Appelant, TRACIE MARIE (PARSON) SHEFFLER

filed an Petition to CoiTect or Amend Domestic Relations Order for Military Retirement

in district court claiming the following:

-1- 1) Parties entered into an infmmal discussions, not Alternative Dispute

Resolution, and Appellant purports that such Rule 11 Agreement was filed with the court (CR 92-94) (APP 1). 1 The Corrected Decree of Divorce nor the Domestic Relations

Order in no manner incorporate the Rule 11 Agreement.

2) Approximately three months later, on or about May 24, 2011, an amended

Final Decree and Divorce was submitted and entered before the trial court along with a

Domestic Relations Order signed by the parties and the attorneys and by the court but

made retroactively effective as March 1, 2011 but signed by the court on May 24, 2011.

3) A Motion to Modify Parent-Child Relationship was filed by Appellee on October 31, 2013 and Temporary Orders were entered on February 1, 2014. A Motion

and Order granting mediation was November 18, 2014 by the trial court.

4) After an unsuccessful mediation Appellant filed a Petition to Correct or

Amend Domestic Relations Order For Military Retirement.

5) After Respondent's January 6, 2015, pleading was filed, Petitioner filed a

Petitioner's Plea to the Jurisdiction, Motion to Dismiss and Special Exceptions.

6) On January 14, 2015 the Honorable Judge Russell Wilson granted a order

re-setting the matter for arguments on Appellant (Respondent) and Appellee (Petitioner)

competing motions and final trial with agreement of counsel due to a death in Appellant counsel's family to February 9, 2015.

1 Note that the Rule 11 Agreement which has been produced to Appellant's Brief"It is not sufficient that a party's consent to a Rule 11 agreement may have been given at one time; consent must exist at the time that judgment is rendered. See, Exxon Corp. v. Valence Oper. Co., 174 S.W.3d 303, 309 (Tex.-App.-Houston [1st. Dist.] 2005, pet. denied). -2- 7) On February 9, 2015 the Honorable Judge Russell Wilson, Presiding Judge of the 218 Judicial District Court Wilson County, Texas, heard final trial on the Motion to Modify Parent-Child Relationship and partially heard arguments on the competing motions on whether the DRO should be corrected or dismissed for lack of jurisdiction,

etc. 8) After the court heard brief argument from Appellant and Appellee the court to a position that Appellant had brought no supporting documentation or case-law in support to substantiate appellant's position the court ordered that both parties legal counsel should submit a brief in support of their arguments for review.

The court sustained the motion to dismiss m favor of Appellee and against Appellee.

ARGUMENT AND AUTHORITIES

A. The Trial court did not Error in granting Appellee's Motion to Dismiss for

Lack of Judgment.

The trial court properly granted its dismissal of Appellant' "Respondent's Petition

to Correct or Amend Domestic Relations Order". The DRO was entered into by the

parties and the attorneys. Respondent counsel drafted the DRO as well as the Con·ected

Final Decree of Divorce and had opportunity to review and perform said calculation.

Appellee's counsel points out to the court that many hand written changes were made

on behalf of the parties on the Con·ected Divorce Decree and that the Parties Approved

-3- and Consented to The CoiTected Decree of Divorce as to both Form and Substance. The

parties entered into the agreement as noted by their signatures, both attorneys'

signature and that of the court which supersedes any prior Rule 11 Agreement and is in

of itself enforceable by contract made by and through the parties as not only a

enforceable judgment but that of a contract of the pa11ies. It is not sufficient that a pm1y's

consent to a Rule 11 agreement may have been given at one time; consent must exist at

the time that judgment is rendered. See, Exxon Cmp. v. Valence Oper. Co., 174 S.W.3d

303, 309 (Tex.-App.-Houston [1st. Dist.] 2005, pet. denied).

Furthermore the Corrected Final Decree of Divorce incorporates language

that dispels of an ambiguity to the meaning of the document Respondent is attempting

to incorporate (a previous Rule 11 Agreement) filed prior to the First Final Decree of

Divorce or that of the Conected Final Decree of Divorce. The CoiTected Final Decree of

Divorce does not have merger language, does not reference or incorporate the previous

Rule 11 Agreement in any manner. A Rule 11 Agreement is no longer binding and need

not be reflected in the judgment if the Rule 11 Agreement has been rescinded or

superseded at the time the judgment is signed. See Padilla v. La France, 907 S.W. 2d 454

(Tex. 1995). To interpret the CoiTected Final Decree of Divorce based on incorporation

by the Rule 11 Agreement would violate parole evidence rule, would not take into

account the plain and unambigious language of the CoiTected Final Decree of Divorce or

that of the parties right of contract. Appellant relies on a defect being noticed and rejected

by the DFAS when this order has not been sent to a plan administrator as is required.

-4- Because this DRO cannot be paid directly by DFAS to the servicemember's ex-spouse

who is married for less than ten (10) years. See TEX. FAM. CODE. §9.104.

Furthermore, in accordance with Tex. Fam. Code Chapter 9, titled, Limitation on

Power of the Com1 to Enforce, section 007. A court may not amend or modify, amend or

modify, alter, or change the division of property made or approved in the decree of

divorce or annulment. To do so would alter or change the substantive division of

property.

1. Texas Family Code § 9.007 Limitations on Power of Court to Enforce.

Furthermore, in accordance with Tex. Fam. Code Chapter 9, titled, Limitation on

Power of the Court to Enforce, section 007. "A court may not amend or modify, amend

or modify, alter, or change the division of property made or approved in the decree of

divorce or annulment". To do so would alter or change the substantive division of

property. [Appendix No.1].

According to the Corrected Final Decree of Divorce, the subject of this suit, set

forth:

Decree of Divorce husband is awarded:

All sums, whether mature or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof proceeds therefrom, and any and any other rights related to or as a result of PAUL MICHEAL PARON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits -5- existing by reason of or as result of PAUL MICHAEL PARSON'S past, present, or fitture employment, except that portion of PAUL MICHAEL PARSON's U.S. military retirement that has been awarded in this decree to Tracie MARIE PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated verbatim in it by reference. Corrected Final Decree of Divorce, H-4, Page 23.

In the same COlTected Final Decree of Divorce wife is awarded as follows:

The swns, whether matured or umnatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, any other rights related to or as a result of PAUL MICHAELS PARSON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of PAUL MICHAEL PARSON's past, present, or fiiture employment, except that portion of PAUL MICHAEL PARSON's U.S. military retirement that has been awarded in this decree to PAUL MICHAEL PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated herein by reference. Corrected Final Decree ofDivorce, W-6, Page 24.

The DRO was entered into by the pmiies and the attomeys. It is important to point out that Appellant's very legal counsel drafted the DRO as well as the Final Decree of

Divorce and Corrected Final Decree of divorce and had opportunity to review and perfom1 said calculation. Appellee's counsel points out to the court order had many hand

written changes were made on behalf of the parties, superseding any Rule 11, Agreement, the parties entered into the agreement in the DRO and Corrected Decree of Divorce as

noted by their signatures, both attomey's signature and that of the court. The Final Decree of Divorce incorporates language which dispels of any ambiguity to the meaning of the document Appellant is attempting to incorporate a previous to the Final Decree of Divorce Rule 11Agreement to interpret the meaning of the Rule II Agreement which is

-6- barred by the parole evidence rule. Fmihermore, in accordance with Texas Family Code, chapter 9, titled, Limitation on Power of the Comi to Enforce, section 007 states as follows:

(a) A court may not amend, modifY, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarifY the prior order and may not alter or change the substantive division ofproperty. (b) An order under this section that ani ends, modifies, alters or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable. (c) The power of the court to render further orders to assist m the implementation of or to clarifY the property division is abated while an appellate proceeding is pending.

In Pearson v. Fillingim, The Texas Supreme Court held " [T]he comi that renders a divorce decree retains jurisdiction to clarify and enforce the property division within that decree. If a decree is ambiguous, that court can enter a clarification order. [But an unambiguous judgment finalizing a divorce and dividing marital property barre-litigation of the property division, even if the decree incorrectly characterizes or divides the

property." See, Pearson v. Fillingim, 322 S.W.3d 361, 363 (Tex. 2011). Moreover, in a Hagen v. Hagen. the Texas Supreme Court holds:

"In the case before us, the [couple's] original divorce decree did not award [W] amounts 'calculated on' [H's] gross or even total retirement pay before deductions ... The [couples] decree plainly entitled [WJ only to part of the Army or military retirement pay [H] received, if as, and when he received it. [S]uch military retirement pay did not include VA disability benefits [that H elected to receive post-divorce in lieu of retirement pay. The trail court did not modify

-7- the [couples] decree; it only clarified the decree did not divide VA disability pay that was or might not become payable to [H] On the surface, it appears that [H's] post-divorce election to receive VA ben fits has worked an inequity on [W]. But the language used in divorce decrees is important, and we must presume the divorce court chose it carefully. See, Hagen v. Hagen, 282 S.W.3d 899,907 (Tex. 2009).

B. The Corrected Divorce Decree with DRO was entered into by agreement of the parties and lacks ambiguity.

When a divorce decree is a consent decree or agreed judgment and the court may

not amend modify, alter or change the decree of divorce. See TEX. FAM. CODE §9.007(a).

In Garcia v. Alvarez, 367 S.W.3d 784-88 (Tex. App-Houston [14th Dist.], no pet.).

"Agree divisions of marital property contained or incorporated into final divorce decrees

are treated as contracts and their legal force and meaning are governed by the law of

contracts". Here the parties have entered into an agreement as is evidenced by their

individual signatures. The divorce further has language that subjects the property award

verbatim by that of Domestic Relations Order which specifically enumerates the

percentage to be utilized. (CR 79-84) (Appendix No. 1).

The language specifically states:

According to the documents, the subject of this suit, set forth in the CotTected Final Decree of Divorce husband is awarded:

All sums, whether mature or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, proceeds therefi-om, and any and any other rights related to or as a result of PAUL MICHEAL PARON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as result of PAUL MICHAEL PARSON'S past, -8- present, or future employnzent, except that portion of PAUL MICHAEL PARSON's US. military retirement that has been awarded in this decree to Tracie MARIE PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated verbatim in it by reference. Corrected Final Decree of Divorce, H-4, Page 23.

In the same Corrected Final Decree of Divorce wife is awarded as follows:

The sums, whether matured or umnatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, any other rights related to or as a result of PAUL MICHAELS PARSON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of PAUL MICHAEL PARSON's past, present, or future employment, except that portion of PAUL MICHAEL PARSON's US. military retirement that has been awarded in this decree to PAUL MICHAEL PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated herein by reference. Corrected Final Decree ofDivorce, W-6, Page 24.

When the parties have concluded a valid, integrated agreement, the parol evidence rule

precludes enforcement of a prior or contemporaneous inconsistent agreement. Edascio,

L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex.App.--Houston [1st Dist.] 2008,

pet. filed); ISG State Operations, Inc. v. National Heritage Insurance Company, 234

S.W.3d 711, 719 (Tex.App.--Eastland 2007, pet. denied). The execution of a written

contract presumes that all prior negotiations and agreements relating to the transaction

have been merged into the written contract. Edascio, 264 S.W.3d at 796; ISG State

Operations, 234 S.W.3d at 719. Consequently, the agreement will be enforced as written

and cannot be added to, varied, or contradicted by parol evidence. Edascio, 264 S.W.3d

at 796; ISG State Operations, 234 S.W.3d at 719. The parol evidence rule is particularly

applicable when the written contract contains a recital that it contains the entire -9- agreement between the parties or a similarly-worded merger provision. Edascio, 264

S.W.3d at 796. Evidence that violates the rule is incompetent and without probative

force, and cannot properly be given legal effect. Garner v. Fidelity Bank, N.A., 244

S.W.3d 855, 859 (Tex.App.--Dallas 2008, no pet.). Parol evidence may be admissible to

show collateral, contemporaneous agreements that are consistent with the underlying

agreement. Gmy E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180, 197

(Tex.App.--Houston [1st Dist.] 2008, pet. denied); DeClab·e, 260 S.W.3d at 45. But this

exception does not permit parol evidence that varies or contradicts either the express

terms or the implied terms of the written agreement. Gary E. Patterson, 264 S.W.3d at

197; DeClaire, 260 S.W.3d at 45. These terms are expressed in the Conected Divorce

Decree. What Respondent is attempting to assert is the court violate the parol evidence

rule and incorporate a prior and inconsistent Rule 11 Agreement to interpret the express

language not to clarify but alter the division of property in and of itself.

If Appellant was allowed to recreate a DRO and Decree it would not only deprive

Appellee's of the right of contract but also violate the parol evidence rule and offend

elements and consistency in the rule of contract laws, and the Texas Family Code.

C. The Trial Court Did Not Abuse Its Discretion In Failing To Grant The Relief Requested By Appellant To Clarify The Valuation Of Military Retirement In The Decree Of Divorce And The Domestic Relations Order

Because there previously has been a DRO entered in this case the Texas Family

Code restricts when a DRO may be clarified and challenged to either conect the order or -10- clarify the order. See, TEX. FAM. CODE §9.103-104. Thereby, the DRO is this matter set

forth has not been found defective in acceptance from a plan administrator. The law as

cited states:

If a plan administrator or other person acting in an equivalent capacity determines that a domestic relations order does not satisfY the requirements of a qualified domestic relations order od similar order, the court retains jurisdiction over the parties and their property to the extent necessmy to render a qualified domestic relations order See, TEX. FAM. CODE 104.

This DRO has never been found defective by a plan administrator therefore how can it be

found defective. The Depmiment of Finance has given clear guidance on Acceptable

DROs in GUIDANCE ON DIVIDING MILITARY RETIRED PAY GARNISHMENT

OPERATIONS DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS)

Attached and incorporated herein as "CR 79 -[Appendix No.3]".

As is stated "The amount of a former spouse's award is entirely a matter of state law.

However, in order for the award to be enforceable under the USFSP A, it must be

expressed in a manner consistent with the USFSP A, and we must be able to determine the

amount of the award. The USFSP A states that for a retired pay as property award to be

enforceable, it must be expressed either as a fixed dollar amount or as a percentage of

disposable retired pay". Citing 10 U.S.C. §1408(a)(2)(C). at page 8. Further the manual

states "There is no magic language required to express a percentage or fixed dollar

award" pg. 9. The guidance further goes on to demonstrate a myriad of ways to divide

retirement pay unlike what is asserted in Respondent's Petition to Correct or Amend

Domestic Relations Order for Military Retirement.

-11- The Texas Family Practices Manual Form 25-31, attached and incorporated herein

by reference [Appendix No. 3] provides several manners in which to divide military

retirement. Respondent's assertion that there is only one manner is erroneous.

Furthermore, the Appellant does not qualify for direct payments and the QDRO

cannot be tendered to DFAS for direct payment. For a division of retired pay as property

award to be enforceable by direct payments under the USFSP A, the former spouse must

have been married to the member for a period of 10 years or more during which the

member performed at least 10 years of service creditable towards retirement eligibility .14

This requirement does not apply to the Court's authority to divide military retired pay,

but only to the ability of the former spouse to enforce the award by direct payments from

DF AS. This is a statutory requirement for direct payments, and not a personal right of the

member that can be waived. See citation provided in military guidance at pg. 5, citing 10

U.S.C. § 1408(d)(2).The QDRO therefore is not defective and to change it for a

percentage purpose would constitute are-division of already divided property.

D. Standard of Review

A trial court abuses its discretion if it fails to properly apply the law to the

undisputed facts, acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. Microsoft Corp v. Manning, 914 S.W.2d 602, 607 (Tex. App.-Texarkana 1995, writ dism'd). A trial court's application oflegal principles is reviewed for an abuse of discretion separately from its resolution of factual disputes.

Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex.l992). The Trial Court has no -12- discretion to misinterpret or misapply the law. Walker, 827 S.W.2d at 840. Here the court gave Appellant every attempt to come to court and present its evidence and arguments the court based off that evidence given at time of argument and brief.

CONCLUSION To cause a change in an Agreed Corrected Decree of Divorce which language in

unambiguous and specific language is utilized to incorporate the DRO "verbatim" into

the decree would be a re-division of community property which is not permissible under

the law. If the Appellate Com1 ruling rules in favor of Appellant's asse11ions that a new

DRO the Petitioner would not only be deprived of the right of contract but also violate

the parol evidence rule and offend elements and consistency in the rule of contract laws,

and the Texas Family Code.

PRAYER Appellee, Paul Michael Parson prays that this affinn the ruling of the trail court; and for other and fmiher relief as this Honorable Court deems fit and good.

Respectfully submitted,

Diaz* Jakob, LLC The Historic Milam Building 115 E. Travis Street, Suite 333 San Antonio, Texas 78205 (21 0) 226-4500 (210) 226-4502 facsimile Attorney for Petitioner Paul Michael Parson -13- Email: jjakob@diazjakob.com

CERTIFICATE OF SERVICE

I do hereby certify that the foregoing document has been forwarded in accordance with the Texas Rules of Civil Procedure to all counsel ofrecord as set out below, on this the 41h day of August, 2015 to: The Law Offices of VIA Email: kirkdockery@gmail.com DONAHO & DOCKERY P.C. Kirk Dockery, Esq. P.O. Box 459 Floresville, Texas 78114 Telephone: (830) 393-2700 Telecopier: (830) 393-3029

CERTIFICATE

I do hereby certify that the foregoing reply brief complies with the length limitations of TEX. R. App. P 9.4(i)(2)(B) as this brief consists of 3,677 words excluding the parts of the brief exempted by Tex. R. App. P. 9.4.i(1).

-14- APPENDIX TO BRIEF

This Appendix contains the following: 1. Copy of Corrected Final Decree with DRO (Appendix No.1) 2. Copy of Texas Practices Manual Form 25-31(Appendix No.2) 3. Copy of Guidance On Dividing Military Retired Pay (Appendix No.3) 4. A copy ofTexas Rule ofCiv. Procedure 11; 5. A copy of Texas Family Code§ 9.007; 6. A copy ofTexas Family Code§ 9.103; 7. A copy of Texas Family Code§ 9.104; 8. A copy of 10 USC §1408

In addition, Petitioner relies on the reporter's record taken in this matter.

-15- PPE D 0. 1

b THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 ....

NO.l0-10-0579-CVW

IN THE MATTER OF § IN THE DISTRicT COURT THE MARRIAGE OF § § TRACIE MARIE PARSON § AND § 81ST JUDICIAL DISTRICT PAUL MICHAEL PARSON § § AND IN THE INTEREST OF § FALIN GALE PARSON AND ROGAN § Wll..SON COUNTY, TEXAS DOVVPARE~N,CHILDREN §

CORRECTED FINAL DECREE OF DIVORCE

On February 3, 2011 the Court heard this case. Appearances Petitioner, TRACIE MARIE PARSON, appeared in person and through attorney of record, Kirk Dockezy, and announced ready for trial. Respondent, PAUL .MICH.AEL PARsON, appeared inperson and through attorney ofrecord, Dawn M. Laubach, and announced ready for trial. Record The record of testimony was duly reported by the court reporter for the 8 Ist Judicial District Court. Jurisdiction and Domicile The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court. after receiving evidence, tmds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed since the date the suit was filed. The Court further finds that, at the time this suit was filed, Petitioner had been a domiciliary ofTexas for the pre~ding six-mo_nth period and a resident ofthe county in which this suit was filed • for the precedirig ninety-day period. All persons entitled to citation were properly cited. Jury A jury was waived, and questions of fact and of Jaw were submitted to the Court. Divorce ITIS ORDERED AND DECREED that TRACIE MARIE PARSON, Petitioner, and PAUL MICHAEL PARSON, Respondent, are divorced and that the marriage between them is dissolved on the ground ofinsupportability. Children ofthe Marriage The Court fmds that Petitioner and Respondent are the parents oftbe following children:

Cause No. 10..10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 1 of29 Name: FALJN GALE PARSON Sex: Female Birth date: October 12, 2006 Home state: Texas Social Security number: XXX-XX-XXXX

Name: ROGAN DOW PARSON Sex: Male Birth date: January 15, 2009 Home state: Texas Social Security number: XXX-XX-XXXX

The Court finds no other children of the marriage are expected. Parenting Plan The Court finds that the provisions in this decree relating to the rights and duties of the parties with relation to the childrell., possession of and access to the children, child support, and optimizing the development of a close and continuing relationship between each party and the children constitute the parenting plan established by the Court. Conservatorship The Court, having considered the circumstances of the parents and ofthe children, finds that the following orders are in the best interest of the children. IT IS ORDERED that TRACIE MARIE PARSON and PAUL MICHAEL PARSON are appointed Joint Managing Conservators of the follo\ving children: FALIN GALE PARSON and ROGAN DOW PARSON. IT IS ORDERED that, at all times, TRACIE lvfARIE PARSON, as a parent joint managing conservator, shall have the following rights: 1. the right to receive information from any other conservator ofthe children concerning the health, education, and welfare of the children;

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental., psychological, and educational records of the children;

4. the right to consult with a physician, dentist, or psychologist of the children;

5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;

6. the right to attend school activities;

7. oti.fied in ease

8. the right to consent to medical, dental, and surgical treatment during an emergency ·

Cause No. l 0-1 0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 2 of29

... ·- --· ........... - ~ involving an immediate danger to the health and safety of the children; and

9. . the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

IT IS ORDERED that, at all times, PAUL MICHAEL PARSON, as a parent joint managin:g conservator, shall have the following rights:

the·~~~,~~,;;,1~:~~.~~~~~;~~~~~;:~ui1S.B;;I~ =:/d:e~1,eJ. 1 0

· 2. the right to confer with ·the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;

3. the right of access to medical, dental, psychological, and educational records of the children;

4. the right to consult with a physician, dentist, or psychologist of the children;

5. the right to consult with school officials concerning the children's welfare and educational status, including school activities;

6. the right to attend school activities;

7. ffi:a(l@ljtto;be·desj~¥~on~tiJ.e:ehildre:ti:'S'tecotds:'asA1 etSo 't(:fbC;notifi~'d/. case:· qf:·!~Rxoo~~~~~~Yfoi:fJ trs.--r-as·-JfrtNl(l!_; flat etrldiijiiiil7!ltf:/J. ···-- . . - ··: ~~L.. .... t

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and

9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parenfs family.

IT IS ORDERED that, at all times, TRACJE MARIE PARSON and PAUL N.IICHAEL PARSON, as parent joint managing conservators, shall each have the following duties:

l. the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and

2. the duty to inform the other conservator ofthe children if the conservator resides with for at least thirty days; marries, or intends to marry a persori who the conservator knows is registered as a sex offender under Chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS 0 RD ERED that the notice must include a description of the offense that is the basis of the person's requirement to register as a sex offender or of the offense with which the person is charged WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNfSHABLE AS A CLASS C MISDEMEANOR 1F 1HE CONSERVATOR FAILS TO PROVIDE TIUS NOTICE.

IT IS ORDERED that, during her periods of possession, TRACIE MARIE PARSON, as parent joint managing conservator, shall have the following rights and duties:

Cause No. 10-10-0579-CVW CORRECTED FTh!AL DECREE OF DIVORCE Page3 of29

~ ~· ~: -.:. . .·.····· .. : . .. .·. • ... ·- , .s.•;·• 1 • I •, •' .. .. _. ~-·· 1' • • ••• - • • • • ...··.-· 1. the duty of care, control, protection, and reasonable discipline of the children;

2. the duty to support the childre~ includingprovidingthe children with clothing, food, shelter, and medical and dental care not involving an invasive pro.cedure;

3. the right to consent for the children to medical and dental care not jnvolving an invasive procedure; and

4. the right to direct the moral and religious tiaining of the children.

IT IS ORDERED that, during bis periods of possession, PAUL MrCHAEL PARSON, as parent joint managing conservator, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the chlldren;

2. the duty to support the ch.ildre~ includingprovidingthechildren with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3. the right to consent for the chlldren to medical and dental care not involving an invasive procedure; and

4. the right to drrect the moral and religious training of the children. IT IS ORDERED that 1RA.CIE MARIE PARSON, as a parent joint managing conservator, shall have the following rights and duty: ·

....!.:.... ,'~.~~X~l.~jv~pgh.tJ.o.4esign~ate.·e J.Jrimruy~reide.P.~.:Qf!4.f?.~YF!~f.tr~g ~tl10u~ teg¥d '. s to ..' geograpllic location··tt;l()Aq fh •nlo' ·· · ·. : ·A· tlfiA'- · :.-~'\

3. the right, subject to the agreement of the other parent conservator, to consent to psychiatric and psychological treatment of the cmldren;

4. the exclusive right to receive and give receipt for periodic payments for the support of the cmldren and to hold or disburse these funds for the benefit of the children;

5. the right, subject to the agreement of the other parent conservator, to represent the chlldreu in legal action and to make other decisions of substantial legal significance concerning the children;

6. the right, subject to the agreement of the other parent conservator, to consent to marriage and to enlistment in the armed forces of the United States; ·'

7. the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education;

8. except as provided by Section 264.0 lll ofthe Texas Family Code, the independent right to the services and earnings of the children;

9. except when a guardian of the children's estates or a guardian or attorney ad litem has been appointed for the children, the exclusive right to act as an agent of the children in relation to

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 4 of29 the children's estates if the children's action is required by a state, the United States, or a foreign government; and

10. the exclusive duty to manage the estates ofthe children to the extent the estates have been created by community property or the joint property of the parent

IT IS ORDERED that PAUL :MfCHAELPARSON, as a parent joint managing conservator, shall have the following rights and duty: ·

1. the right, subject to the agreement of the other parent conservator, to consent to medical, dental, and surgical treatment involving invasive procedures;

2. the right, subject to the agreement of the other parent conservator, to consent to psychiatric and psychological treatment of the children;

3. the right, subject to the agreement of the other parent conservator, to represent the children in legal action and to make other decisions of substantial legal significance concerning the children;

4. the right, subject to the agreement of the other parent conservator, to consent to marriage and to enlistment in the armed forces of the United States;

5. the right, subject to the agreement ofthe other parent conservator, to make decisions concerning the children's education; and

6. except as provided by Section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children.

IT IS ORDERED that the follov~ing custodial account now held by the parties for the parties' children is placed under the sole and exclusive· control of1RACIE MARIE PARSON, as Trustee, for the children, FALlN GALE PARSON and ROGAN DOW PARSON: Navy Federal Credit Union CD Account number 680001223915. P AULMICHAEL PARSON is ORDERED to execute, have aclmowledged, and deliver to TRACIE MARIEPARSON all documents necessary to effectuate TRACIE MARIE PARSON's sole and exclusive control of the account IT IS ORDERED that the following property now held by the parties for the parties' children is placed under the sole and exclusive control of1RACIE MARJE PARSON: Navy Federal Credit Union CD. 1JUS~0R.D:ER::ED·fuiit TRAGIE·M.ARI'E- PA.RsbN:Shatfhave:the'exdusive:right·and~uty

tf?,Pf,f!P~~-~5!·~~:~~-~~et~renlrn~-~or~~8k)~M:JN94.~·-§ ~{W~():~d ROCrAN DOW l?.MS.QJ?!-:•·:.~. ,,@J.aJmS- WM /t ··- . 9jdJ1 ,(Jf():IJi::L(:JYJJl ... IT IS ORDERED that PAUL lvllCHAEL PARSON shall furnish such information to TRACIE MARIE PARSON as is requested to prepare federal income tax returns for the children's estates within thirty days ofreceipt ofa written request for the information, and in no event shall the information be furnished later. than March ·1 of that year. As requested information becomes available after that date, it shall be furnished within ten days of receipt.

Cause No. 10-l0-{)579-CVW CORRECTED FJNAL DECREE OF DNORCE Page 5 of29

t •j • o ~.. I'.:·: •••'••~ ··.~ .' •: •~., • ···:. ·.··.'!. -. , ••• ·•• .• : - Possession and Access 1. Standard Possession Order

IT IS ORDERED that each conservator shall comply with all terms and conditions ofthis Standard Possession Order. IT IS ORDERED that this Standard Possession Order is effective immediately and applies to all periods ofpossession occurring on and after the date the Court signs this Standard Possession Order. IT IS, TiffiREFORE, ORDERED: (a) Definitions 1. In this Standard Possession Order "scbool11 means the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides. 2. In this Standard Possession Order "child" includes each child, whether one or more, who is a subject ofthis suit while that child is under the age of eighteen years and not ofuerwise emancipated. (b) Mutual Agreement or Specified Terms for Possession IT IS ORDERED that the conservators shall have possession of 'the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession ofthe child under the specified. terms set out in this Standard Possession Order. (c) Parents Who Reside 100 Miles or Less Apart Except as otherwise expressly provided in this Standard Possession Order, when PAUL MICHAEL PARSON resides 100 miles or less from the primary residence ofthe child, PAUL MICHAEL PARSON shall have the right to possession of the child as follows: L Weekends- sL~·\ On weekends that occur during the regular school term, beginning at - {'lP ~ 6:00 p m..,on_the first, third, and fifth Friday of each month and ending at 6:00p.m. ,_,. W1 ~ on the followmg Sunday. .

5~y On weekends that do not occur during the regular school tenn, .·. beginning at 6·00 p.m., on the first, third, and fifth Friday of each month and ending ,, ~~· at 6:00p.m. on the following Sunday. 2. Weekend Possession Extended by a Holiday- Except as otherwise expressly provided in this Standard Possession Order, if a weekend period ofpossession by PAUL MlCHAEL PARSON begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term., as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Friday during the summer months when school is not ~n sess~on, that we~kend period of possession shall begin at~ ..· ..... on tl].e / mnnediatei.y preceding Thursday. · ffjz;r~ -~ ·..

Cause No. 10-1 0-0579-CVW CORRECTED FfNAL DECREE OF DIVORCE Page 6 of29

•• :~. • - 'I~- •• ·~- • - • - •. • t - . ·... Except as otherwise expressly provided in this Standard Possession Order, i{ a weekend period of possession by PAUL WCHAEL PARSON ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the ~egular school term, as determined by the school in which the child is enrolled, or a federal, state~ or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at~ 1&~~~~1Monday.

= :.~t'lf!JI!~· fSu y ~ r I ~-~L_ Thursdays- On Thursday ofeach week duringtheregular school term, beginning at : . and ending at 8:00p.m. PAUL .MICHAEL PARSON must ~~!,~.g~@";;~1rcW'&ti,ooyovernights1ays- . pring Vacation in Even-Numbered Years- In even-numbered years, beginning at 6: 0 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6!06 :p:m. on the day before school resumes after that vacation.

Notwithstanding the Thursday periods ofpossession during the regular school

Cause No. 10-10-0579-CVW . CORRECTED FINAL DECREE OF DIVORCE Page7 of29

·...· . .·.: -~: :·....: ._; : ..... ,: . :.-... • ~-'!- -~-~--- ...._:..- . - picks up the child from PAUL WGI~AEL PARSON and returns the child to that same place and that the weekend so designated does not interfere with Father's Day possession.

(d) Parents Who Reside More Than 100 Miles Apart - ~(JJ'(\5)_ Except as otherwise expressly provided in this Standard Possession Order, when PAUL MICHAEL PARSON resides more than 100 miles :from the residence of the child, PAUL -.MICHAEL PARSON shall have the right to possession of the child as follows:

1. Weekends- Unless PAUL WCHAEL PARSON elects the alternative period of weekend possession described in the next paragraph, PAUL :MICHAEL PARSON shall have the right to possession of the child on weekends that occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p;m. on the following Sunday, and on weekends that do not occur during the regular school te~ beginning at 6:00p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

Alternate Weekend Possession- In lieu of the weekend possession described in the foregoing paragraph, PAUL MICHAEL PARSON shall have the right to possession ofthe child not more than one weekend per month of PAUL MICHAEL PARSON's choice beginning at 6:00p.m. on the day school recesses for the weekend and ending at 6:oo·p.m. on the day before school resumes after the weekend. PAUL MICHAEL PARSON may elect an option for this alternative period of weekend possession by giving written notice to TRACIE MARIE PARSON within ninety days after the parties begin to reside more than 100 miles apart. If PAUL MICHAEL PARSON makes this election, PAUL MICHAEL PARSON shall give TRACIE MARIE PARSON fourteen days' written or telephonic notice preceding a designated weekend_ The weekends chosen shall not conflict with the provisions regarding Christmas, Thanksgiving, the child's birthday, and Mother's Day possession below.

2. Weekend Possession Extended by a Holiday-

Except as otherwise expressly provided in this Standaid Possession Order, if a weekend period of possession by PAUL MICHAEL PARSON begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday during the summer months when school is not in session, that weekend pe~od ofpossession shall begin at 6:00p.m. on the immediately preceqing

Cause No. 10-1 0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 8 of29

·.~··:· . .: .-<·:.> .:·:·_. ·.. ~ ':: .. · _. '................... . ·..• ~· . . Thursday

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by PAll... lMICHAEL PARSON ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term. as determined by the school in which the child is enrolled. or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00p.m. on that Monday.

3. Spring Vacation in AllYears- Every year, beginning at 6:00p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

4. Extended Summer Possession by PAll... MICHAEL PARSON-

With Written Notice by April 1 - If PAUL MICHAEL PARSON gives TRACIE MARIE PARSON written notice by April 1 of a year s ecii)'ing an extended period or periods of summer possession for that y PARSON shall have possession of the child fol1.lf9-~tw;g~:..... s beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than seven days before school resuri:J.es at the end ofthe summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period ofposses~ion begmning and ending at 6:00 p.m. on each applicable day, as specified in the written notice. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

Without Written Notice by Aprill - IfPAtrr... MICHAEL PARSON does not give TRAC1E MAR1E PARSON written notice by April 1 of a year specifYing an extended period or periods of summer possession for that year, PAUL MJCHAEL PARSON shall have possession ofthe child for forty-two consecutive days beginning at 6:00p.m. on June 15 and ending at 6:00p.m. on July 27 of that year.

Notwithstanding the weekend periods of possession ORDERED for PAUL .MICHAEL PARSON, it is expressly ORDERED that TRACIE MARIE PARSON shall have a superior right of possession of the child as follows:

1. Summer Weekend Possession by TRACIE MARIE PARSON - If TRACIE .MARIE PARSON gives PAUL .MICHAEL PARSON written notice by April 15 of a year, TRACIE MARJE PARSON shall have possession of the child on any one weekend beginning at 6:00p.m. on Friday and ending at 6:00p.m. on the following Sunday during any one period of possession by PAUL MICHAEL PARSON during PAUL MlCHAEL PARSON's extended summer possession in that year, provided that if a period of possession by PAUL MICHAEL PARSON in that year exceeds thirty days, TRACIE MARIE PARSON may have possession of the child under the. terms of this provision on any two nonconsecutive weekends during that period and provided that TRACIE MARIE PARSON picks up the chitd from PAll... l\IJ1CHAEL PARSON and returns the child to that same place and that the weekend so designated does not interfere with Father's Day possession.

2. Extended Summer Possession by TRACIE MARIE PARSON - If TRACIE MARIE PARSON gives PAUL MICHAEL PARSON written notice by April 15 of a year, TRACill MARIE PARSON may designate twenty-one days

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 9 of29

. .·.. ·.... .- ~~... . ·.·.·. _:·.-. -:. . ·.. beginning no earlier than the day after the child's school is dismissed for the summer · vacation and ending no la:ter than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, during which PAUL IviiCHAEL PARSON shall not have possession of the child, provided that the period or periods so designated do not interfere with PAUL IviiCHAEL PARSON•s period or periods of extended summer possession or with Father's Day possession. These periods of possession shall begin and end at 6:00p.m. on each applicable day. (e) Holidays Unaffected by Distance Notwithstanding the weekend and Thursday periods of possession ofPAUL MICHAELPARSON, TRACIEMARIEPARSONandPAULiviiCHAELPARSON shall have the right to possession of the child as follows:

1. Christmas Holidays in Even-Numbered Years - In even-numbered years, PAUL IviiCHAEL PARSON shall have the right to possession ofthe child · L,A. beginning at 6:00 ·p.m. on the day the child .is dismissed from sgb.ool fot ~·.[b_c eft\!MLL'l Christmas school vacation and ending at noon on tlscember 28("and TRACIE' MARlE PARSON shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00p.m.~ school resumes after that Christmas school vacation. ~~~.0\),p.~~·,bQ\iaR:.Q ? Christmas Holidays in Odd-Numbered Years- In odd-numbered years, TRACIE MARIE PARSON shall have the right to possession ofthe child beginning at 6:0.0 p.m. on t?e day the child is dismissed from school for the Christmas school ~ " 11\·. ~oOC vacation and ending at noon on Dem~mber 28, anEi-P1rt:1L M1CliAEL PARSON sh:iilr ~ru P'-' - have the right to possession of the child beginning at noon on December 28 and 19~ · ending at 6.;.0Q.-p:m. on ~hoot resumes after that Christmas school vacation, ~ODpvn. ~~ bL~ 3. Thanksgiving in Odd-Numbered Years - In odd-numbered years, ~LJI...~MICHAEL PARSON shall have the right to possession ofthe child beginning ( ~n the day the child is dismissed from school for the Thanksgiving holiday. and ending at..6.;.0G-p:m. on the Sunday following Thanksgiving.

4. T~~~ff.ttven-Nurnbered Years - In even-numbered years, ·TRACIE MARIE PARSON shall have the right to possession ofthe child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00p.m. on the Sunday following Thanksgiving. 5. Child's Birthday - If a parent is not otherwise entitled llilder this Standard Possession Order to present possession of a child on. the child's birthday, that parent shall have possession ofthe child and the child's minor siblings beginning ~~and ending at 8:00p.m. on that day, provided that that parent picks up '__... f/lClif,\' \ the children from the other parent's residence and returns the children~ . i!P"J v ~ ffi\ ~o.t 6. Father's Day- PAUL :MICHAEt-.PARSON shall have the right to possession ofthe child each~ar·,· beginning ~!@)~OJNU. on the Friday ~receding Father's Day and ending a1t ..QO:;;prli:i: on Father's Day, provided that If PAUL MlCHAEL PARSON is noto erwise entitled under this Standard Possession Order to present possession of the child, he shall pick up ~e child from TRACIE MARIE

Cause No. 10~10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 10 of29 PARSON's residence and return the child to that same place. 7. · Mother's Day- TRACIE MARJE PARSON sba1l have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day, provided that if TRACIE MARIE PARSON is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from PAUL MICHAEL PARSON's residence and return the child to that same place. (f) Undesignated Periods of Possession · TRACffi MARIE PARSON shall have the right of possession ofthe child at all other times not specifically designated in thls Standard Possession Order for PAUL MICHAEL PARSON. (g) General Terms and Conditions Except as otherwise expressly provided inthis Standard Possession Order, the terms and conditions of possession of the child that apply regardless ofthe distance between the residence of a parent and the child are as follows: 1. The parties shall by mutual agreement in writing designate a location for the exchanges of possession at the end of each period of possession which is approximately one-half the distance between the residences of the parties. The designated location shall be redetermined each time one of the parties gives notice of a change of residential address. 2. Surrender of Child by TRAClE MARIE PARSON- TRACIE MARJE PARSON is ORDERED to surrender the child to PAUL 1:v1ICHAEL PARSON at the beginning of each period of PAUL MICHAEL PARSON's possession at residence ofTRACIE MARIE PARSON. 3. Return of Child by PAUL MICHAEL PARSON~ PAUL MICHAEL PARSON is ORDERED to return the cljild to the place designated by mutual agreement of the parties at the end of each period of possession. 4. Surrender of Child by PAUL .MICHAEL PARSON - PAUL MICHAEL PARSON is ORDERED to surrender the child to TR.t\.ClE MARIE PARSON, ifthe child is in PAUL MICHAEL PARSON's possession or subject to PAUL :MICHAEL PARSON's control, at the beginning of each period of TRACIE MARIE PARSONs exclusive periods of possession, at the place designated in this Standard Possession Order. 5. Return of Child by TRACIE MARIE PARSON- TRACIE MARIE PARSON is ORDERED to rehun the child to PAUL MICHAELPARSON, ifPAUL J:v1ICHAEL PARSON is entitled to possession of the child, at the end of each of TRAClE MARJE PARSON's exclusive periods ofpossession, at the place designated in this Standard Possession Order. 6.. Personal. Effect<:;- Each conservator is ORDERED to return -with the child the personal effects that the child brought at the beginning of the period of possession.

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~ . ._ . - .... -··· ..· . .... . .. .- . ~ .. ·····• :~ 7. n~~'·''lJe§ignatidii ·i:if'COmpefetif .Adult. ~· Eacti·~eonservator may designate any competen(adult to pick up and return the child, as applicable. IT IS ORDERED %t,,ft.co~ervator or·'} ~esip~ed coml(ytent adult be present when the child is picked up or returned. LJ Sf- f:l~D-Fat · 8. Inability to Exercise Possession- Each conservator is ORDERED to give notice to the person in possession of the clrild on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period. 9. Written Notice- Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.

This concludes the Standard Possession Order. 2. Duration The periods of possession ordered above apply to each child the subject of this suit while that child is under the age of eighteen years and not otherwise emancipated. 3. Noninterftrence with Possession IT IS 0 RD ERED that neither conservator shall take possession ofthe children during the other conservator's period of possession unless there is a prior written agreement signed by both conservators or in case of an emergency. 4. Termination ofOrders The provisions of this decree relating to conservatorship, possession, or access terminate on the remarriage of1RAC1E MARIE PARSON toPAUL MICHAEL PARSON unless a nonparent or agency has been appointed conservator of the children under Chapter 153 ofthe Texas Family Code. Child Support IT IS ORDERED that PAUL :MICHAEL PARSON is obligated to pay and shall pay to TRACIE MARIE PARSON child support of $1, 150.00 per month, with the first payment being due and payable on rV1arch l, 201 1 and a like payment being due and payable on the 1st day of each

Cause No. l 0-l0-0579-CVW CORRECTED FlNAL DECREE OF DiVORCE Page 12 of29 month thereafter until the first month following the date of the earliest occurrence of one of_ the events specified below: · · 1. any child reaches the age ofeighteen years or graduates from high school, whichever occurs later, subject to the provisions for support beyond the age of eighteen years set out below; 2. any child marries; 3. any child dies; 4. the child enlists in the armed forces of the United States and begins a.ctive service as defined by Section 101 of Title 10 of the United States Code; or 5. any child's disabilities are otherwise removed for general-purposes. Therea:fter,PAULMICHAELPARSONisORDEREDtopaytoTRACIEMARIEP~ON child support of$920.00 per mon~ due and payable on the 1st day of the first month in:unediately following the date of the earliest occurrence of one of the events specified above for the other child and a like sum of $920.00 due and payable on the 1st day of each month thereafter until the next occurrence of one of the events specified above for the other child. Ifibe child is eighteen years ofage and has not graduated :from high school, IT IS ORDERED that PAUL MICHAEL PARSON's obligation to pay child support to TRACIE MARIE PARSON shall not terminate but shaU continue for as long as the child is enrolled- 1. under Chapter 25 ofthe Texas Education Code in an accredited secondary schooi in a program leading toward a high school diploma or under Section 130.008 of the Education Code ·in courses for joint high school and junior college credit and is complying with the minimum attendance requirements of Subchapter C of Chapter 25 of the Education Code or 2. on a full-time basis in a private secondary school in a program leading toward a high school diploma and is complying with the minimum attendance requirements imposed by that schooL Statement on Guidelines In accordance with Texas Family Code Section I 54.130, the Court makes the following findings and conclusions regarding ihe child support order made in open court in this case on Febroary 3, 2011: 1. The amount of child support ordered by the Court is in accordance with the percentage guidelines. 2. The net resources ofPAUL tvllCH.AEL PARSON per month ~e $4,606.97. 3. The net resources of TRACIE MARIE PARSON per month are $2,500.00. 4. The percentage applied to the frrst $7,500 of PAUL MICHAEL PARSON's net resources for child support is 25 percent. Withholding from Earnings

Cause No. 10-1 0..0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page l3 of29

!· .- · ...... .:-.... ..:·.,:··· :··· ·-~ ~- .. ....... ~_ ·.·· ..... ·-·.- ~ IT IS ORDERED that any employer of PAUL .:MICHAEL PARSON shall be ordered to withhold from earnings for child support from fue disposable earnings of PAUL MICHAEL PARSON for the support ofFALIN GALE PARSON and ROGAN DOW PARSON. IT IS FURTHER ORDERED that all amounts Withheld from fue disposable earnings of PAUL 1v.1ICHAEL PARSON by the employer and paid in accordance with the order to that employer shall constitute a credit against the child support obligation. Payment of the full amount of child support ordered paid by this decree through the means ofwithholding from earnings shalldischa:rge the child support obligation. If the amount withheld from earnings and credited against the child support obligation is less than 100 percent of the amount ordered to be paid by this decree, the balance due remains an obligation of PAUL IVIICHAEL PARSON, and it is hereby ORDERED that PAUL IVIICHAEL PARSON pay the balance due directly to the state disbursement unit specified below. On this date the Court signed an Order/Notice to Withhold Income for Child Support. Payment IT IS ORDERED that all payments shall be made through the state disbursement unit at TEXASCHILDSUPPORTDISBURSEMENTUNIT,P.O.BOX65979l,SANANTONIO,TEXAS 78265-9791, and thereafter promptly remitted to TRACIE MARIE PARSON for the support of the children. ITIS ORDERED that each party shall pay, when due, all fees charged tothatpartybythe state disbursement unit and any other agency statutorily authorized to charge a fee. Change ofEmployment IT IS FURTHER ORDERED that PAUL JvliCHAEL PARSON shall notify this Court and TRACIE MARIE PARSON by U.S. certified mail, return receiptrequested, of any change ofaddress and of any termination of employment. 'Ibis notice shall be given no later than seven days after the change of address or the terrriination of employment This notice or a subsequent notice shall also provide the current address of PAUL MICHAEL PARSON and the name and address ofhis current employer, whenever that information becomes available. Clerk's Duties IT IS ORDERED that, on the request of a prosecuting attorney, the Title IV ~D agency, the friend of the Court, a domestic relations office, TRACIE MARIE PARSON, PAUL MICHAEL PARSON, or an attorney representing TRACIE MARIE PARSON or PAUL MICHAEL PARSON, the clerk ofthis Court shall cause a certified copy ofthe Order/Notice to Withhold Income for Child Support to be delivered to any employer. Health Care 1. IT IS ORDERED that TRACIE MARIE PARSON and PAUL MICHAEL PARSON shall each provide medical support for each child as set out in this order as additional child support

Cause No. lQ..l0-0579-CVW CORRECTED FINAL DECREE OF DfVORCE Page 14 of29

. . . .· .. .··.. ' . - •• ·o:.: for aS long as the Court may order TRACIE :MARIE PARSON and PAUL MICHAEL PARSON to provide support for the child under Sections 154.001 and 154.002 of the Texas Family Code. Beginning on the day TRACIE MARIE PARSON and PAUL MICHAEL PARSON's actual or potential obligation to support a cQ.ild under Sections 154.001 and 154.002 of tbe Family Code terminates, IT IS ORDERED that TRACIE MARlE PARSON and PAUL MICHAEL PARSON are discharged from the obligations set forth in tbis medical support order with respect to that cbild, except for any failure by a parent to fully comply with those obligations before that date. 2. Definitions - "Health Insurance" means insurance coverage that provides basic healt:J:I...care services, including usual physician services, office visits, hospitalization, and laboratory, X-ray, and emergency services, that may be provided through a health maintenance organization or other private or public organization, other than medical assistance under Chapter 32 of the Texas Human Resources Code. "Reasonable cost" means the total cost ofhealth insurance coverage for all children for which PAUL .MICHAEL PARS ON is responsible under a medical support order that does not exceed 9 percent ofP AUL MICHAEL PARSON's annual resources, as descnbed by Section 154.062(b) of the Texas Family Code. "Reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of a child" include, without limitation, any copayments for office visits or prescription drugs, the yearly deductible, if any, and medical, surgical, prescription drug, mental health-care services, dental, eye care, ophthalmological, and orthodontic charges. These reasonable and necessary health- care expenses do not include expenses for travel to and from the health-care provider or tor nonprescription medication. "Furnish" means: a. to hand deliver the document by a person eighteen years of age or older either to the recipient or to a person who is eighteen years of age or older and pennanently resides with the recipient; b. to deliver the document to the recipient by certified mail, retum receipt requested, to the recipient's last lmown mailing or residence address; or c. to deliver the document to the recipient at the recipient1s last known mailing or residence address using any person or entity whose principal business is that of a courier or deliverer of papers or documents either witl;ljn or outside the United States. 3. Findings on Health Insurance Availability- Having considered the cost, accessibility, and quality of health insurance coverage available to the parties, the Court finds: Health insurance is available or is in effect for the children through PAUL MICHAEL

Cause No. lO-l0-0579-CVW CORRECTED FfNAL DECREE OF DNORCE Page 15 of29 PARSON's employment or membership in a union, trade association, or other organization at a reasonable cost. IT IS FURTHER FOUND that the following orders regarding health-care coverage are in the best interest of the children. 4. Provision of Health-Care Coverage - . As additional child support, PAUL MICHAEL PARSON is ORDERED to continue to maintain health insurance for each child who is the subject of this suit that covers basic health-care services, including usual p~ysician services, office visits, hospitalization, laboratory, X-ray, and emergency services. PAUL MICHAEL PARSON is ORDERED to maintain such health insurance in full force and effect on each child who is the subject of this suit as long as child support is payable for that child. PAUL MICHAEL PARSON is ORDERED to convert any group insurance to individual coverage or obtain other health insurance for each child within fifteen days of termination of his employment or other disqualification from the group insurance. PAUL :tvliCHAEL PARSON is ORDERED to exercise any conversion options or acquisition of new health insurance in such a manner that the resulting insurance equals or exceeds that in effect immediately before the change. PAUL MICHAEL PARSON is ORDERED-to furnish TRACIE MARIE PARSON and the Office ofthe Attorney General Child Support Division a true and correct copy of the health. insurance policy or certification and a schedule of benefits within 14 days of the signing of this order. PAUL MICHAEL PARSON is ORDERED to furnish TRACIE MARIE PARSON the insurance cards and any other forms necessary for use of the insurance within 14 days of the signing of this ord~. PAUL MICHAEL PARSON is ORDERED to provide, within three days of receipt by him, to TRACIE MARIE PARSON any insurance checks, other payments, or explanations of benefits relating to any medical expenses for the children that TRACIE MARIE PARSON paid or incurred. Pursuant to Section 1504.051 of the Texas Insurance Code, IT IS ORDERED that if PAUL MICHAEL PARSON is eligible for dependent health coverage but fails to apply to obtain coverage for the children, the insurer shal I enroll the children on application of1RACJE MARIE PARSON or others as authorized by Iaw. Pursuant to Section 154.183(c) of the Texas Family Code, the reasonable and necessary health-care expenses of the children that are not reimbursed by health insurance are allocated as follows: TRACIE MARIE PARSON is ORDERED to pay 50 perqen.t and PAUL MICHAEL PARSON is ORDERED to pay 50 percent ofthe unreimbursed health-care expenses if, at the time the expenses are incurred, PAUL MICHAEL PARSON is providing health insurance as ordered. The party who incurs a health-care expense on behalf of a child is ORDERED to submit to the other party all forms, receipts, bills, statements, and explanations of benefits reflecting the uninsured

·. .'-. Q.L - fn ~' -\1J 'S'W.: ~79-PvRf:~ ,;H:J[.-\Q_ . ij. \YV CORRECTED FINAL DECREE OF DfVORCE Page 16 of29

. ·- . .:.. <.• .-.: portion ofthe health-care. expenses within thirty days after he or. she receives them. The nonincurring party is ORDERED to pay his or her percentage of the uninsured portion ofthe health-care expenses either by paying the health-care provider directly or by reimbursing the incurring party for any advance payment exceeding the incurring party's percentage of the uninsured portion of the health-care expenses within thirty days after the nonincurring party receives the forms, receipts, bills, statements, and explanations of benefits. These provisions apply to all unreimbursed health-care expenses ofany child who is the subject of this suit that are incurred while child support is payable for that child. 5. Secondary Coverage - IT IS ORDERED that if a party provides secondary health insurance coverage for the cJ,illdren, both parties shall cooperate :fully with regard to the handling and filing of claims with the insurance carrier providing the coverage in order maximize the benefits to available to the children and to ensure that the party who pays for health-care expenses for the children is reimbursed for the payment :from both carriers to the fullest extent possible. 6. Compliance with Insurance Company Requirements - Each party is ORDERED to conform to all requirements imposed by the terms and conc#tions of the policy of health insurance covering the children in order to assure ma.--timurn reimbursement or direct payment by 1he insurance company of the incurred health-care expense, including but not limited to requirements for advance notice to any carrier, second opinions, and the like. Each party is ORDERED to attempt to use J,trJf.§.f~~1)'ffi-!Q.r"(f€Af;'i~

Cause No. I 0-I 0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 17 of29

.· .··. ·::-. . :,:•:• f.:_:•' '::• ';1•' I"'! .;•:. I ' ' . • ', • ··-·: __ : ... :':. 1 •• • • ~~.· -~-·.::·: .~ ··.: ·\" .-··.:: • • •

.... submit all forms required by the insurance company for payment or reimbursement of health-care . expenses incllll"ed by either party on behalfofa child to the insurance carrier within fifteen days of that party's receiving any form, receipt, bill, or statement reflecting the expenses. 8. Constructive Trust for Payments Received- IT IS ORDERED that any insurance payments received by a party from the health insurance carrier as reimbursement for health-care expenses incurred by or on behalf of a child shall belong to the party who paid those expenses. IT IS FURTIIER ORDERED that the party receiving the insurance payments is designated a constructive trustee to receive any insurance checks or payments for health-care expenses paid by the other party, and the party carrying the policy shall endorse and forward the checks or payments, along with any explanation of benefits received, to the other party within three days of receiving them. 9. WARNING-APARENTORDEREDTOPROVIDEHEALTHINSURANCEORTO PAY THE OTHER PARENT ADDITIONAL CHITD SUPPORT FOR THE COST OF HEALTH lNSURANCEWHOFAILSTODOSOISLIABLEFORNECESSARYMEDICALEXPENSESOF THE CIDLDREN, WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVEBEEN PAID IF HEALTII INSURANCE HAD BEEN PROVIDED, AND FOR THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, JF ANY, PAID ON BEHALF OF THE CHILDREN. 10. .Miscellaneous Health Care Provisions- Each parent will deliver the medications of the children to the other parent at the beginning of the other parenfs parenting time, unless the medications have been divided by the pharmacist into two containers that provide appropriate dosages and administrations to cover the time with each parent or unless two prescriptions can be obtained. Miscellaneous Child Support Provisions Military H~alth Care and Commissary Privileges The Court finds that PAUL .rviiCHAEL PARSON is a member of the United States Armed Forces and that the children of this marriage are ellgible to receive health care and other benefits as dependents of a United States Armed Forces member. Therefore, PAUL MICHAEL PARSON is ORDERED to keep and maintain in curre:nt status and deliver to TRACIE MARIE PARSON the identification cards and any other forms necessary for the children of this marriage to be provided health care through all facilities available to the childr~n as dependents of a United States Armed Forces member. PAUL MICHAEL PARSON is FURTHER ORDERED to provide to TRACIE MARIE PARSON aU additional verified applications for renewal of dependent identification cards at least thirty days before the expiration date of the identification cards, until the children are no longer eligible for these benefits. No Credit for Informal Payments

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 18 of29

. .; ··......;...· : ~ '·:-~:~ ~- .···.. ; .. .• . .. . .. -· . ... ., ......·.········ -.: :_ .•.:. IT IS ORDERED that the child support as presented in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by PAUL :MICHAELPARSON to TRACIE MARIE PARSON or any expenditures incurred by PAUL MICHAEL PARSON during PAUL :MICHAEL PARSON's periods of possession of or access to the children, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree. · Support as Obligation of Estate IT IS ORDERED that the provisions for child support in this decree shall be an obligation of the estate of PAUL .MICHAEL PARSON and shall not.terminate on the death of PAUL MICHAEL PARSON. Payments received for the benefit of the children, including payments from the Social Security Administration, Department of Veterans Affairs or other governmental agency or life insurance proceeds, annuity payments, trust distributions, or retirement survivor benefits, shall be a credit against this obligation. Any r:emaining balance of the child support is an obligation of PAUL :MICHAEL PARSON's estate. Termination of Orders on Remarriage of Parties but Not on Death of Obligee The provisions of this decree relating to current child support terminate on the remarriage of TRACIE MARJE PARSON to PAUL .MICHAEL PARSON t.mless a nonparent or agency has been appointed conservator ofthe children under Chapter 153 ofthe Texas Family Code. An obligation to pay child support under this decree does not terminate on the death ofTRACIE MARIE PARSON but continues as an obligation to FALIN GALE PARSON and ROGAN DOW PARSON, · Medical Notification Each party is ORDERED to inform the other party within 12 hours of any medical condition of the children requiring surgical intervention, hospitalization, or both. Within 14 days· after the Court:' signs this decree, each party is ORDERED to execute - 1. all necessary releases pursuant to the Health Insurance Portability and Accountability Act (HIPAA) and 45 C.F.R. Section 164.508 to permit the other conservator to obtain health-care information regarding the children; and 2. for all health-care providers ofthe children, an authorization for disclosure ofprotected health information to the other conservator pursuant to the HlPAA and 45 C.F.R Section 164.508. Each party is further ORDERED to designate the other conservator as a person to whom . protected health infom1ation regarding the children may be disclosed whenever the party executes an autb.orizatio?- for disclosure of protected health information pursuant to the HIP AA and 45 C.F.R. Section 164.508. Information Regarding Parties The information required for each party by section 105.006(a) of the Texas FamiLy Code is as

Cause No.lO-I0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 19 of29 follows: Name: TRACIE MARIE PARSON Social Security number: . 467"89-4842 Driver's license number: 03877903 Issuing state: Texas Current residence address: 1914 Standish, Floresville, Texas 78114 Mailing address: P.O. Box 1365, Poth, Texas 78147 Home telephone number: 210-391-2121 Name of employer: Southside ISD Address of employment: 1300 Delago Parkway, San Antonio, Texas 78221 Work telephone number: 210-882-1609 Name: PAUL MICHAEL PARSON Social Security number: XXX-XX-XXXX Driver's license number 33978960 Issuing state: Texas Current residence address: 1950 Universal City Boulevard, Apt # 1102, Universal City, Texas 78148 Mailing address: 1950 Universal City Boulevard, Apt. # 1102, Universal City, Texas 78148 Home telephone number: 361-548-6135 Name of employer: Uirited States Navy Address of employment: 2263 Stanley Road, San Antonio, Texas 78234 Work telephone number: 210-221-9257 EACH PERSON WHO IS A PARTY TO TillS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGEINTiffi PAR.TYS CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S LICENSE NUMBER,ANDWORK TELEPHONENUMBER.. THEPARTYIS ORDEREDTOGIVENOTICE OF ANINTENDEDCHANGEINANYOFTHEREQUIREDINFORMATIONTOEACHOTIIER PARTY, TIIECOURT,ANDTHESTATECASEREGISTRYONORBEFORETilli601HDAY BEFORE TI-lE JNTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVEK.NOWNOFTiffiCHANGEINSUFFICIENTTIMETOPROVIDE60-DAYNOTICE,THE PARTYIS ORDERED TO GIVENOTICEOFTHE CHANGE ON OR BEFORETHEFIFTHDAY AFTER TilE DATE THAT THE PARTY KNOWS OF THE CHANGE. THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ~ONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF TillS ORDER, IS UNDER AN OBLIGATION TO PAY CHJLD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD. FAILUREBYAPARTYTOOBEYTI:IEORDEROFTH1SCOURTTOPROVIDEEACH OTHERPARTY, Tiffi COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT W FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FJNDfNG OF CONTEMPT MAY BE PlJNISHED BY CONFINEMENT IN JAJL FOR UP TO SIX MONTHS, A FINE OF UP TO $500

Cause No. lO-l0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page20 of29

·.··· .·, t· •.• , FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS. Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk of this Court or by :t;egistered or certified mail addressed to the clerk at P.O. Box 812, Floresville, Texas 78114. Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registty, Contract Services Section,. MC046S, P.O. Box 12017, Austin, Texas 78711-2017. NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECJFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON TilE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THEAPPLICABLEIMMUNITY AGAINST ANY CLAIM, CIVIL OR 011-IERWISE, REGAl:ffiiNG THE OFFICER'S GOOD FAITII ACTS PERFORMED IN THE SCOPE OF Tiffi OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT REI-ATE TO CIDLD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID ORNO LONGERINEFFECT CO:MMITSANOFFENSETHATMAYBEPUNISHABLEBYCONFINEJ\1ENTINJAILFORAS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000. WARN1NGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CIDLD MAY RESULT IN FURTHER LITIGATION TO ENFORCE 11-IE ORDER, INCLUDJNG CONTEMPT OF COURT. A FINDING OF CONT.EM:PTMAYBE PUNISHED BY CONFINEMENT IN JAlLFOR UP TO SIX MONTHS, A FJNE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS. FAlLURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT. FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENY1NG THATPARTYCOURT-ORDEREDPOSSESSIONOFORACCESSTOACHJLD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAliURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY. Division ofMarital Estate The Court finds that the following is a just and right division of the parties' marital estate, having due regard for the rights of each party and the children of the marriage. PropertY to Husband

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page21 of29 ITISORDEREDANDDECREEDtbattbehusband,PAULMICHAELPARSON,isawarded the following as his sole and separate property, and the wife is divested of all right, title, interest, and claim in and to that property: H- 1. One-half interest of the net proceeds from the sale of the following real property, including but not limited to any escrow funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage door opener, warranties and service contracts, and title and closing documents: 18 Acres ofland in Wilson County, Texas out of John H. Mills Survey No. 36, Abstract 221, be~g portion of that certain 60.4 acre tract described in conveyance in Volume 867, Page 108, Official Records of Wilson County, Texas, also known as 2496 CR 104, Floresville, Texas. H-2. The following furniture, furnishings, :fixtures, goods, ari objects, collectibles, appliances, and eq_uipment: a. Queen sleigh bed b. Ottoman c. Laptop with External Hard Drive d. 52"HDTV e. Coin Collection £ Ping pong table . g. Color printer l h. i. ~v'tPtfl- ·End table j. J>_egarator k. 2 wine racks ]. Com hole game m. Light oak bedroom suit n. Sofa with hide-a-bed 0. Glass and wood coffee table p. Ceramic tile table q. Antique parlor chairs r. Washer/dryer s. Microwave t. Book shelves (3) ~ ll. -£m~~l*'f-DP 1w v. A one-half of the Wine Collecti n w. Red overstuffed chair H-3. The funds on deposit, together with accrued but unpaid interest, in the following banks, savings institutions, or other fwancial institutions: a. Navy Federal Credit Union, Account number XXXXX5700 H-4. AU 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 PAUL MICHAEL PARSON's service in the United States Navy, inc1uding any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as

Cause No. 10-1()..{}579-CVW CORRECTED FINAL DECREE OF DlVOR,CE Page22 of29

.- ; ... ... ., ~ .. --:·-~-· .. ;;;; ·z:· a result of PAUL MICHAEL PARSON's past, present, or future employment, except that portion of PAUL :MICHAEL PARSONs U.S. military retirement that has been awarded in this decree to TRACIE MARIE PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incOrporated verbatim in it by reference. H-5. All policies of life insurance (including cash values) insuring the husband's life. H~6. The 2003 Chevrolet ·suburban motor vehlcle. vehicle -identification number 3GNFK16ZX3G345091, together with all prepaid insurance, keys, and title documents. Propertyto Wife IT IS ORDERED AND D~CREED that the wife, TRACIE MARIE PARSON, is awarded the follm.v:ing as her sole and separate property, and the husband is divested ofall right, title, interest, and claim in and to that property: W-L One-half interest of the net proceeds from the sale of the following real property, including but not limited to any escrow funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage door opener, warranties and service contracts, and title and closing do~um.ents: 18 Acres ofland in Wilson County, Texas out ofJohn H. Mills Survey No. 36, Abstract 221, being portion of that certain 60.4 acre tract described in conveyance in Volume 867, Page 108, Official Records of.Wilson County, Texas, also known as 2496 CR 104, Floresville, Texas. W-2. The following real property, including but not limited to any escrow :funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage door opener, ·warranties and service contracts, and title and closing documents: 0.37 acres cifland within the city limits ofPoth and out ofthe Luis Manchaca Grant, Abstract 18, Wilson County, Texas and being the ]and described in a conveyance to Geraldine L. Gorzell and Peggy S. Fiske of record in Volume 827, Page 480, Official Public Records ofWlison County, Texas and further being parts or portions ofLots 2, 3, 4 and 5, Block 11 as shown on the plat of record in Volume 136, Page 276 of the Deed Records ofWilson County, Texas also known as 405 N Carroll St., Poth, Texas. W-3. The following furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in her possession, including, but not limited to: a. 3 Piece Sofa Set b. King Sleigh Bed and Bedroom Suite c. DVD Player/Recorder d. DVD player e. 19" TV f_ Brother printer g. Desktop computer h. E wave freezer . i. Fridgidaire mini refrigerator J. Fiestaware dish set k. Black console table

Cause No. 10-10-0579-CVW . CORRECTED FINAL DECREE OF DIVORCE Page23 of29

.· ...... ; _. ·- ... -.' ............ ~. ,: .· .. .. . ... ·'· ....... ·... ... _ ............. : .....:-; 1. Stainless steel pots and pans set m. Washer/dryer n. Card table and folding chairs 0. Fridgidaire refrigerftor p. h~~tlL. q. 6' Howse Shredder r. Troy built mower s. Remington 870 Shotgun t. One-half of the Wine Collection W-4. The funds on deposit, together with accrued but unpaid interest, in the following banks, savings institutions, or other financial institutions: a. First National Bank Account number XXXXX-754 b. Navy Federal Credit Union Account number XX:XX:XX-6058 c. Navy Federal Credit Union J\ccountnumber}CK}C[-000 d. Navy Federal Credit Union Account number 300916487 W-5. The sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereot: the proceeds therefrom, and any other rights related to any profit- sharing plan, refuement plan, Keogh plan, pension plan, employee stock option plan, 401 (k) plan, employee savings plan, accrued unpaid bonuses, clisability plan, or other benefits existing by reason of the wife's past, present, or :future emptoynient with the Teacher Retirement System of Texas. W-6. 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 PAUL MfCHAEL PARSON's service in the United States Navy, including any accrued unpaid bonuses, ~sability plan or benefits, Thrift Savings Pian, or other benefits existing by reason ofor as a result of PAUL J\.1ICHAEL PARSON's past, present, or future employment, except that portion of PAUL MICHAEL PARSON's U.S. military retirement that has been awarded in this decree to PAUL MICHAEL PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated verbatim in it by reference. W-7. All policies of life insurance (including cash values) insuring the wife's life. W-8. The 2006 Nissan Altima motor vehicle, vehicle identification nmnber JN4AL11D86N450449, together with all prepaid insurance, keys, and title documents. W-9. The 2009 Mahindra Tractor motor vehicle, vehicle identification number SBCN176, together with all prepaid insurance, keys, and title documents. W-10. $1,000.00 payable by PAUL MICHAEL PARSON to TRACIE MARIE PARSON on or before April30, 2011, by cash, cashier's check, or money order. Division of Debt Debts to Husband

Cause No. I0-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page24 of29

. . ....... ·-· ... :.-·- ~··-- IT IS ORDERED AND DECREED that the husband, PAUL MICHAEL PARSON, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the wife and her property harmless from any failure to so discharge, these items: H-1. The .balance. due, including principal, interest, tax, and insurance escrow, on the promissory note executed by 1RACIE MARIE PARSON and PAUL MICHAEL PARSON, in the original principal sum of$76,000, dated on or about May 12, 2009, payable to Vet~ans Land Board, and secured by deed oftrust on the real property awarded in this decree to the husband and wife, which is recorded at Volume 1508, Page 48, Deed ofTrustRecords ofWilson County, Texas. H-2. The balance due, including principal, interest, and all other charges, on the promissory note payable to Navy Federal Credit Union and given as part of the purchase price of and secured by a lien on the 2003 Chevrolet Suburban motor vehicle awarded to husband. H-3. The following debts, charges, liabilities, and obligations: all credit card accounts in Husband's name as the primary borrower (NFCU). H-4. All debts, charges, liabilities, and other obligations incurred solely by the husband from and after October 2, 2010 unless express provision is made in this decree to the contrary. H-5. $1,000.00 payabletoTRACIEMARIEPARSON onorbeforeApri130,2011, by cash, cashier's check, or money order. Debts to Wife IT IS ORDERED AND DECREED that the wife, TRACIE MARIE PARSON, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the husband and his property hannless from any failure to so discharge, these items: W -1. The balance due, including principal, interest, and all other charges, on the proririssOiy- note payable to Agricredit Acceptance LLP and given as part of the purchase price of and secured by a lien on the 2009 Mahindra Tractor motor vehicle awarded to wife. W-2. The balance due, including principal, interest,. tax, and insurance escrow, on the promissory note executed . by TRACIE MARIE PARSON and PAUL MICHAEL PARSON, . in the original principal sum of $98,445.00, dated December 28, 2010, payable to State Bank of Paw Paw, and secured by deed of trust on the real property awarded in this decree to the husband and wife, which is recorded at volume 1586, page 607, Deed ofTrust Records of Wilson County, Texas. W-3. The following debts, charges, liabilities, and obligations: aU credit card accounts in Wife's uame as the primary borrower (CitiBank, Bank ofAmerica, Discover), and all of the debt owed to Gail and Asa G. Fuller, ill. W -4. All debts, charges, liabilities, and other obligations incurred solely by the wife from and after October 2, 2010 unless express provision is made in this decree to the contrary. Notice IT IS ORDERED AND DECREED that each party shall send to the other party, within three days of its receipt, a copy of any correspondence from a creditor or taxing authority concerning any

Cause No. 10-1 0..0579-CVW CORRECTED FJNAL DECREE OF DIVORCE Page25 of29

~.- . .-... . '· ~ . .... ..... ~ . ·... . . .. ~ potential liability of the other party. Provisions Dealing with Sale of Property ITIS FURTHER ORDERED AND DECREED that the property and all improvements located thereon. being 18 Acres of land in Wilson County, Texas out of John H. Mills Survey No. 36, Abstract 221, being portion oftbat certain 60.4 acre tract described in conveyance in Vohnne 867, Page 108, Official Records of Wilson ~ounty, Texas, according to the map, plat,. or deed records of Wilson County, Texas, and more commonly known as 2496 CR. 104, Floresville, Wilson County, Texas, shall be sold under the following terms and conditions: 1. The property shall be sold for a price that is mutually agreeable to Petitioner and Respondent.. 2. Respon_dent shaJl continue to make all payments of principal, interest, taxes, and insurance on the property during the pendency of the sale, and Respondent shall have the exclusive right to enjoy the use and possession of the prern.ises until closing. All maintenance and repairs necessary to keep the property in its present condition shall be paid by Respondent. 3. The net sales proceeds (defined as the gross sales price less cost of sale and :full payment of any mortgage indebtedness or liens on the property) shall be distributed as follows: a. 50% to Petitioner b. 50% to Respondent. ( Attorney's Fees To effect an equitable division of the estate of the parties and as a part of the division, and for services rendered in connection with conservatorship and support of the children, each party shall be responsible for his or her own attorney's fees, expenses, and costs incurred as a result of legal representation in this case. Court Costs IT IS ORDERED AND DECREED that costs of court are to be borne by the parly who incurred theiiL Resolution o[Temporary Orders IT IS ORDERED AND DECREED that Petitioner and Respondent are discharged from all further liabilities and obligations imposed by the temporary order of this Court rendered on November 8, 2010. Discharge from Discovery Retention Requirement IT IS ORDERED AND DECREED that the parties and their respective attorneys are discharged :from the requirement of keeping and storing the documents produced in this case in accordance with Rule 191.4(d) of the Texas Rules of Civil Procedure. Decree Aclawwledgment

Cause No. !0-JQ-.{)579-CVW CORRECTED FINAL DECREE OF DIVORCE Page26 of29

. ~ ;· ! / ...'.;~! r·!.r ;::·r._;!~·~t:;~r; t:: ~:~·;~;~;;:;?~:.--~:~;.~~~f~:~--::~J;'_:~_;;r.~~,:.!~~::;ir:~-:):~ti~~~. · · -;,.~~. :·. -j . : _.-~ =... . ' .. ~ . . ·.~ ... . .. ; . ... : -~ :·. . .. . . ~ .. ·........ . ~-···- -~-· Petitioner, TRACIE MARIE PARSON, and Respondent, PAUL WCHAEL PARSON, each acknowledge that before signing this Final Decree of Divorce they have read this Final Decree of Divorce fully and completely, have had the opportunity to ask any questions regarding the same, and fully understand that the contents of this Final Decree of Divorce constitute a fuU and complete resolution ofthis case. Petitioner and· Respondent acknowledge that they have voluntarily affixed their signatures to this Final Decree of Divorce, believing this agreement to be a just and right division of the marital debt and assets, and state that they have not signed by virtue of any coercion, any duress, or any agreement other than those specifically set forth in ibis Final Decree of Divorce. Indemnifrcation Each party represents and warrants that he or she has not incurred any outstanding debt, · obligation, or other liability on which the other party is or may be liable, other than those described in this decree. Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not asswning a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages resulting from the claim or demand. Damages, as used in this provision, includes any reasonable loss, cost, expense, penalty, and other damage, including without limitation attorney's fees and other costs and expenses reasonably and necessarily incurred in enforcing this indemnity. I:r IS ORDERED that the indemnifYing party will reimburse the indemnified party, on demand, for any payment made by the indemnified party at any time after the entry of the divorce decree to satisfY any judgment of any court of competent jurisdiction or in accordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates. . The parties agree and IT IS ORDERED that each party will give the otherpartyprompt written notice of any litigation threatened or instituted against either party that might constitute the basis of a claim for indemnity under this decree. Clarifying Orders Without affecting the finality of this Final Decree ofDivorce, this Court expressly reserves the right to make orders necessary to clar:i:f:Y and enforce this decree. ReliefNot Granted IT IS ORDERED AND DECREED that all relief requested in this case and not expressly

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 27 of29

·:-:!·:oc~-~~ •·i i -:~-!.~- :.:.~·~·: .~;·~··:·?-~ ::~· ~:·~ ..:. ~-:·~:·/-;r.:_:~ ~~-:.. '.'·::. ·. ·: :- .. : ·- ...-.... .,. granted is denied. This is a final judgment, for which let execution and all writs· and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.

Date ofJudgment The (::ORRECIED DECREE is SIGNED on May 24, 2011, but is effective as of March 1,

2011, the date of the original decree entered in this case.

Cause No. 10-10-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 28 of29

•._ .. ·.•.•'-.· .·· ._· .. _, __ .· ,· ... •,.·. '·. ''

APPROVED AS TO FORM ONLY:

The Law Offices of DONAHO & DOCKERY P.C. P.O.Box459 Floresville, TX 78114 Tel: (830) 393-2700 Fax: (830) 393- 29

LAUBACH LAW OFFICE 1005 S. Alamo 20770 Highway 281 Suite 108/Box 248 San Antonio, Texas 78258 Tel: (210) 222-1225

:~(8ft~l~~ b~ State Bar No. 24031271 Attorney for Respondent

APPROVED AND rnNSEN1ED TO AS TO BOTH FORM AND SUBSTANCE: n ~~~ { i . . " Tracie Marie Parson, Petitioner . Aa._ rd Q.(_-rtf A. 1::1-bJ

on, Respondent

10201-#13

Cause No. lO-l0-0579-CVW CORRECTED FINAL DECREE OF DIVORCE Page 29 of29 (

NO.l0-10-0579-CVW INTBEMATTEROF § IN THE DISTRICT COURT THE MARRIAGE OF § § TRACIE MARJE PARSON § AND § 81ST JUDICIAL DISTRICT PAUL MICHAEL PARSON § § AND IN TEE INTEREST OF § FALIN GALE PARSON AND ROGAN § DOW PARSON, CHILDREN § WILSON COUNTY, TEXAS

DOMESTIC RELATIONS ORDER [Military Retirement] The Court, having entered a decree of divorce coincident with the signing of this domestic relations order, finding that the entry of a domestic relations order (DRO) is necessary to effectuate the terms ofthat decree of divorce, and further finding that the entry of aDRO is appropriate, makes the following findings and conclusions oflaw and enters them as an order in this proceeding. Findings The Court finds, in accordance with the UnifonJ?.ed Services Former Spouses' Protection Act, 10 U.S.C. Section 1408, as follows: 1. Tills Court has jurisdiction over PAUL lviiCHAEL PARSON. The residence of Servicemeinber is in Universal City, Bexar County, Texas, other than because of military assignment. 2. Servicemember, and TRACIE MARIE PARSON, (''Fonner Spouse"), were originally married on June 5, 2004, and that marriage lasted for 6 years and 8 months or more, during which time Servicemember served 6 years and 8 months· or more of creditable service toward retirement. 3. Servicemembers Social Security number is XXX-XX-XXXX, his address is 1950 Universal City Boulevard, Apt #1102, Universal City, Texas 78148~ and his birth date is July 30, 1972. 4. Former Spouse's Social Security number is XXX-XX-XXXX, her address is P.O. Box 1365, Poth, Texas, 78147, and her birth date is October 3, 1974. 5. The· rights of Servicemember under the Servicemembers Civil Relief Act were fully complied with in this case. 6. Servicemember is not retired from the United States Navy at the time of this order. 7. The award of disposable retired pay made to Former Spouse in this order is made in compliance v-.rith the Uniformed Services Former Spouses' Protection Act. 8. It is intended by this Court and the parties that the Defense Finance and Accounting ~ervice (DFAS) designee make the payments due to Former Spouse ofher interest in the disposable retired pay awarded in this order directly to Former Spouse.

DOMESTIC RELATIONS ORDER-MILITARY RETIREMENT Page 1 Terms and Definitions With respect to the provisions of this DRO, the Court has used and applied the following terms and definitions: 1. 11Retired pay" means monetary pay to which Servicemember is, or may hereafter be, entitled to receive on completion ofthe requisite number of years of creditable service to be entitled to nondisability retired pay as a result of service in the United States Armed Forces (active duty, reserve component, or national guard), whether called retired pay, retainer pay, or retirement pay. 2. ''Disposable retired pay" has the meaning provided in the Uniformed Services Former Spouses' Protection Act (1 0 U.S.C. § 1408 et seq.). 3. "USFSPA" means the Uniformed Services Fernier Spouses' Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date ofthe parties' divorce. 4. "Defense Finance and Accounting Service" (DFAS) means, refers to, and includes the Secretary ofthe Department ofDefense, the Director ofthe DFAS, the designated agent of either of these, and other appropriate subdivisions of the United State Government. 5. "COLA" means the cost-of-living adjustment increases that are made annually to a military retiree's retired pay pursuant to 10 U.S.C. § 1401a. Award to Former Spouse ITIS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember's retirement :from the United States Navy, the amount of disposable retired pay calculated as follows 50.0 percent multiplied by 16.66 percent multiplied .by 35.0 percent multiplied by the high-36 month base pay of the Servicemember,. which is $3,322.16, with Servi6emember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months, determined on the date ofServicemember's retirement divided by Ser\ricemember1s monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the calculated percentage of Servicemember's disposable retired pay at retirement, together with all COLAs applicable thereto, payable, IF, AS, and WHEN received by Servicemember. · IT IS FURTiffiR ORDERED that the rest, residue, and remainder ofthe military retired pay of Servicemember is the sole and separate property of Servicemember. Amounts in Excess of50 Percent IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take effect) exceeds 50 percent ofthe disposable retired pay, DFAS shall pay to Former Spouse the maximum amount allowable under the USFSPA and Servicemember shall be responsible for paying the balance of the award each month to Former Spouse, and it is accordingly ORDERED. IfDFAS is not allowed to pay Former Spouse the full amount ofFormer Spouse's entitlement

DOMESTIC RELATIONS ORDER- MJLITARY RETIREMENT Page2 pursuant to this order form any reason, Servicemember is hereby ORDERED, within seven days of being notified by Former Spouse that Former Spouse is not receiving the full amount ofFormer Spouse's interest in the retired pay, to execute and deliver to DFAS all forms or documents that may then be necessary to effect an allotment payable to Fonner Spouse in the amount of the difference between the amount being paid directly to Former Spouse by DFAS and the full amount ofFormer Spouse's interest in the retired pay. Servicememberis FURTHER ORDERED to keep and maintain in full force and effect any allotment required by this provision, payable to Former Spouse at P.O. Box 1365, Poth, Texas, 78147, or such other address as Fonner Spouse may hereafter specil)r in writing, until such time as Former Spouse begins receiving Former Spouse's full separate-property share of Servicemember's disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled by Servicemember if and when Former Spouse begins receiving, and for as Iorig as Former Spouse is receiving, Former Spouses' full separate-property share of Servicemember's disposable retired pay directly from DFAS, but only in that event or to avoid double payment of sums. Since Former Spouse has been awarded the right to receive that share attributable to the interest awarded to Former Spouse herein of any and all COLAs or other increases in the monthly disposable retired pay hereinafter paid and ifFormer Spouse is not receiving from DFAS b:is full share of the retired pay herein awarded to Former Spouse, if and when COLAs are made to the retired pay received by Servicemember, Servicemember is hereby ORDERED to execute and deliver to DFAS all forms or documents that may then be necessary to effect an increase in the allotment to Former Spouse in the amonnt equal to the dollars-ru;l.d-cents equivalent of that COLA attributable to Former Spouse's share of that disposable retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working ·days of the date Servicemember is notified by DFAS of the effective date of each COLA to the monthly retired pay payment. Constructive Trust ITIS FURTHER ORDERED that Servicemember be and is hereby designated a constructive trustee for the benefit ofFormer Spouse for the purpose ofreceiving the retired pay awarded herein to Former Spouse as Former Spouse's sole and separate property, and Servicemember be and is hereby ORDERED, on receipt thereof, to deliver by :first-class mail to Former Spouse at her last known address by negotiable instrument that portion ofeach monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allotment) by DFAS within three days ofthe receipt of any such payments by Servicemember. All payments made directly to Former Spouse by DFAS shall be a credit against this obligation. For purposes of this order, Servicemember is specifically directed, on penalty of contempt, to pay Former Spouse's interest in the disposable retired pay as ordered in this order, AND IT IS SO 0 RDERED. Servicemember is specifically directed that he is not relieved of1.hat obligation except

DOMESTIC RELATIONS ORDER- MJLITARY RETIREMENT Page3 to the extent that he is specifically notified that 100 percent of Former Spouse's interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED. IT IS FURTHER ORDERED that any election of benefits that may hereafter he made by Servicemember shall not reduce the amount equal to the percentage of the retired pay or the amount ofthe retired pay the Court has herein awarded to Former Spouse, except as provided by federal law and prohibited. from being changed by a state court order. In this regard> IT IS FURTIIER ORDERED that Servicemember shall not merge his military retired pay with any other pension and shall not pursue any course of action that would d~feat, reduce, or limit Former Spouse's right to receive Former Spouse's full separate-property share ofServicemember's retired pay as awarded in this order, unless otherwise ordered herein. Death IT IS ORDERED that the payment ofthe retired pay awarded in this order to Former Spouse shall continue until the death of Servicemember or Fonner Spouse. Retiree Account Statements and Privacy Waiver ITIS FURTHER ORDERED that Servicemember shall deliver by first class mail to Former Spouse at P .0. Box 1365, Poth, Texas, 78147, or such other address as FormerSpouse may hereafter specify in writing, a true and correct legible copy of each Retiree Account Statement received by Servicemember from DFAS within five day of its receipt. IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may be required for Former Spouse to obtain information relating to Servicemember's date of retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or other information that may be required to enforce this award or to revise this order to make it enforceable. Retirement IT IS ORDERED that Servicemember shall notify Former Spouse of his application for a retired pay, and provide Former Spouse with true copy ofhis Application for Retired Pay Benefits, on the date he applies for those benefits. This notification shall be mailed by Servicemember to Former Spouse at her last known address. Servicemember is FURTHER ORDERED to provide to Former Spouse a true and correct copy ofthe first Retiree Account Statement received by him within five ~ys of its receipt. Application for Direct Pay ofRetired Pay Former Spouse is hereby directed to apply for Former Spouse's entitlement to a portion of Servicemember's retired pay by contacting the DFAS Legal Departmen~ completing the Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it along with a certified copy of this DRO (certified within ninety days of its delivery to DFAS) and a photocopy of the parties' marriage certificate to: DFAS-HGA-CL, Assistant General Connsel for Garnishment Operations, P .0. Box 998002, Cleveland, Ohio 44199-8002 by certified mail, return receipt requested. DOMESTIC RELATIONS ORDER- MILITARY RETIREMENT Page4 Taxes IT IS FURTilER ORDERED that Fonner Spouse shall include in her gross income for her taxable years ofreceipt all retired pay received by Former Spouse pursuant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Servicemember shall not include such benefits in Servicemember's gross income for such taxable years. Survivor Benefit Plan The Court further finds that Former Spouse and the parties' children should be designated as former spouse and child beneficiaries of Servicemember's .Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate Former Spouse and the parties' children as former spouse and child beneficiaries of the Survivor Benefit Plan and that the designation of Former Spouse and the children as former spouse and child beneficiaries should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicernember during the children's eligibility or Former Spouse's lifetime, and IT IS SO ORDERED. IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former Spouse as a former spouse beneficiary of Servicemember's Survivor Benefit Plan. IT IS FURTHER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed designated, to the · extent permitted by law, a former spouse beneficiary of Servicemember's Survivor Benefit Plan to receive the percentage equal to the percentage ofServicemember's disposable retired pay awarded Fonner Spouse in this order. To the extent that Servicemember fails or 'otherwise refuses to cooperate in filing the documents -required to elect to designate Former Spouse as a former spouse beneficiary of Servicemember's Survivor Benefit Plan, Former Spouse is directed to apply for Former Spouse's entitlement to be deemed a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court's deemed election pursuant to 10 U.S .C. Section I 447 et seq., completing aDD Form 2656-10 to effect the deemed election, and sending it, along with a certified copy of this order, to U.S. Military Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, retumreceiptrequested. Former Spouse's failure to register her deemed election within one year of the date this DRO is signed may, if not will, forever bar such an election for Former Spouse. IT IS ORDERED that Servicemember shall not during Former Spouse's lifetime modify, amend, withdraw~ or in any other manner alter the election to name Former Spouse as a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan. Continued Jurisdiction and Clarification Without affecting the finality of the Final Decree of Divorce or this Domestic Relations Order, this Court expressly reserves the right pursuant to Section 9.101 et seq. of the Texas Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO ORDERED.

DOMESTIC RELATIONS ORDER~ MILITAR.Y RETIREMENT Page5 _,

SIGNED on May 24,2011.

APPROVED AS TO FORM ONLY: The Law Offices of DONAHO & DOCKERY P.C. P.O.Box459 Floresville, TX 78114 Tel: (830) 393-2700 Fax: (83~) 393-30 9

·zy(/r; By:__ ~~~~~~~~~~~--------­ Kirk'Dockery State Bar No. 05929220 Attorney for Petitioner

LAUBACH LAW OFFICE 1005 S. Alamo 20770 Highway 281 Suite I 08/Box 248 San Antonio, Texas 78258 Tel:. (210) 222-1225

::::~ ~ State BarNo. 24031271 Attorney for Respondent

<:.__:r-mcie Marie Parson, P-etitioner

10201-#IO

DOMESTIC BELATIONS ORDER~ M1LITARY RETIREMENT Page6 NO.lQ-10-0579-CVW IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § § TRACIE MARIE PARSON § AND § 81ST JUDICIAL DISTRICT PAUL MICHAEL PARSON § § AND IN THE INTEREST OF § FALIN GALE PARSON AND ROGAN § DOW PARSON, CHILDREN § WILSON COUNTY, TEXAS

DOMESTIC RELATIONS ORDER [Military Retirement] The Court, having entered a decree of divorce coincident with the signing of this domestic relations order, finding that the entry of a domestic relations order (DRO) is necessary to effectuate the terms ofthat decree of divorce, and further finding that the entry of a DRO is appropriate, makes the following findings and conclusions of law and enters them as an order in this proceeding. Findings The Court finds, in accordance with the Uniformed Services Fonner Spouses' Protection Act, 10 U.S.C. Section 1408, as follows: 1. This Court has jurisdiction over PAUL MICHAEL PARSON. The residence of Servicemember is in Universal City, Bexar County, Texas, other than because of military assignment. 2. Servicemember, and TRACIE MARIE PARSON, ("Fonner Spouse"), were originally married on June 5, 2004, and that marriage lasted for 6 years and 8 months or more, during which time Servicemember served 6 years and 8 months or more of creditable service toward retirement. 3. Servicemember's Social Security number is XXX-XX-XXXX, his address is 1950 Universal City Boulevard, Apt. #1102, Universal City, Texas 78148, and his birth date is July 30, 1972. 4. Fonner Spouse's Social Security number is XXX-XX-XXXX, her address is P.O. Box 1365, Poth, Texas, 78147, and her birth date is October 3, 1974. 5. The'rights of Servicemember under the Servicemembers Civil Relief Act were fully complied with in this case. 6. Servicemember is not retired from the United States Navy at the time of this order. 7. The award of disposable retired pay made to Fonner Spouse in this order is made in compliance with the Uniformed Services Fonner Spouses' Protection Act. 8. It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) designee make the payments due to Former Spouse ofher interest in the disposable retired pay awarded in this order directly to Former Spouse.

ILJ-8/5Jl~§§1IONSORDER-M!L!TARYRETJREMENT Terms and Definitions With respect to the provisions of this DRO, the Court has used and applied the following terms and definitions: 1. "Retired pay" means monetary pay to which Servicemember is, or may hereafter be, entitled to receive on completion ofthe requisite number of years of creditable service to be entitled to nondisability retired pay as a result of service in the United States Armed Forces (active duty, reserve component, or national guard), whether called retired pay, retainer pay, or retirement pay. 2. "Disposable retired pay" has the meaning provided in the Uniformed Services Fonner Spouses' Protection Act (10 U.S.C. § 1408 et seq.). 3. ''USFSPA" means the Uniformed Services Former Spouses' Protection Act (1 0 U.S.C. § 1408 et seq.) in effect on the date of the parties' divorce. 4. "Defense Finance and Accounting Service" (DFAS) means, refers to, and includes the Secretary ofthe Department of Defense, the Director ofthe DFAS, the designated agent of either of these, and other appropriate subdivisions of the United State Government. 5. "COLA" means the cost-of-living adjustment increases that are made annually to a military retiree's retired pay pursuant to 10 U.S.C.§ 1401a. Award to Former Spouse IT IS THEREFORE ORDERED thatFormerSpousehave judgment against and recover from Servicemember, on Servicemember's retirement from the United States Navy, the amount of disposable retired pay calculated as follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent multiplied by the high-36 month base pay of the Servicemember, which is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months, determined on the date ofServicemember's retirement divided by Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement. IT IS FURTilER ORDERED that DFAS, to the extent allowed by law, pay Fonner Spouse each month the calculated percentage of Servicemember's disposable retired pay at retirement, together with all COLAs applicable thereto, payable, IF, AS, and WHEN received by Servicemember. IT IS FURTilER ORDERED that the rest, residue, and remainder ofthe military retired pay of Servicemember is the sole and separate property of Servicemember. Amounts in Excess of50 Percent IT IS ORDERED that ifthe dollar amount or award (or a larger sum as increases take effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Fonner Spouse the maximum amount allowable under the USFSPA and Servicemember shall be responsible for paying the balance of the award each month to Former Spouse, and it is accordingly ORDERED. IfDFAS is not allowed to pay Fonner Spouse the full amount ofFormer Spouse's entitlement

p~b DOMESTIC RELATIONS ORDER- MlLITARY RETIREMENT pursuant to this order form any reason, Servicemember is hereby ORDERED, within seven days of being notified by Former Spouse that Former Spouse is not receiving the full amount of Former Spouse's interest in the retired pay, to execute and deliver to DFAS all forms or documents that may then be necessary to effect an allotment payable to Former Spouse in the amount of the difference between the amount being paid directly to Former Spouse by DFAS and the full amount of Former Spouse's interest in the retired pay. Servicemember is FURTHER ORDERED to keep and maintain in full force and effect any allotment required by this provision, payable to Former Spouse at P.O. Box 1365, Poth, Texas, 78147, or such other address as Former Spouse may hereafter specifY in writing, until such time as Former Spouse begins receiving Former Spouse's full separate-property share of Servicemember's disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled by Servicemember if and when Former Spouse begins receiving, and for as long as Former Spouse is receiving, Former Spouses' full separate-property share of Servicemember's disposable retired pay directly from DFAS, but only in that event or to avoid double payment of sums. Since Former Spouse has been awarded the right to receive that share attributable to the interest awarded to Former Spouse herein of any and all COLAs or other increases in the monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from DFAS his full share of the retired pay herein awarded to Former Spouse, if and when COLAs are made to the retired pay received by Servicemember, Servicemember is hereby ORDERED to execute and deliver to DFAS all forms or documents that may then be necessary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-and-cents equivalent ofthat COLA attributable to Former Spouse's share of that disposable retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working days of the date Servicemember is notified by DFAS of the effective date of each COLA to the monthly retired pay payment Constructive Trust IT IS FURTHER ORDERED that Servicemember be and is hereby designated a constructive trustee for the benefit of Former Spouse for the purpose ofreceiving the retired pay awarded herein to Former Spouse as Former Spouse's sole and separate property, and Servicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to Former Spouse at her last known address by negotiable instrument that portion of each monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allotment) by DFAS within three days ofthe receipt of any such payments by Servicemember. All payments made directly to Former Spouse by DFAS shall be a credit against this obligation. For purposes of this order, Servicemember is specifically directed, on penalty of contempt, to pay Former Spouse's interest in the disposable retired pay as ordered in this order, AND IT IS SO ORDERED. Servicemember is specifically directed that he is not relieved ofthat obligation except DOMESTIC RELATIONS ORDER- MILITARY RETIREMENT to the extent that he is specifically notified that 100 percent of Former Spouse's interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED. IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by Servicemember shall not reduce the amount equal to the percentage ofthe retired pay or the amount ofthe retired pay the Court has herein awarded to Former Spouse, except as provided by federal law and prohibited from being changed by a state court order. In this regard, IT IS FUR'IHER ORDERED that Servicemember shall not merge his military retired pay with any other pension and shall not pursue any course of action that would defeat, reduce, or limit Former Spouse's right to receive Former Spouse's full separate-property share ofServicemember's retired pay as awarded in this order, unless otherwise ordered herein. Death IT IS ORDERED that the payment ofthe retired pay awarded in this order to Former Spouse shall continue until the death of Servicemember or Former Spouse. Retiree Account Statements and Privacy Waiver IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to Former Spouse at P .0. Box 1365, Poth, Texas, 78147, or such other address as Former Spouse may hereafter specify in writing, a true and correct legible copy of each Retiree Account Statement received by Servicemember from DFAS within five day of its receipt. IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may be required for Former Spouse to obtain information relating to Servicemember's date of retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or other information that may be required to enforce this award or to revise this order to make it enforceable. Retirement IT IS ORDERED that Servicemember shall notify Former Spouse of his application for retired pay, and provide Former Spouse with a true copy ofhis Application for Retired Pay Benefits, on the date he applies for those benefits. This notification shall be mailed by Servicemember to Former Spouse at her last known address. Servicemember is FURTHER ORDERED to provide to Former Spouse a true and correct copy ofthe first Retiree Account Statement received by him within five days of its receipt. Application for Direct Pay ofRetired Pay Fonner Spouse is hereby directed to apply for Former Spouse's entitlement to a portion of Servicemember's retired pay by contacting the DFAS Legal Department, completing the Application for Fonner Spouse Payments from Retired Pay (DD Form 2293), and delivering it along with a certified copy of this DRO (certified. within ninety days of its delivery to DFAS) and a photocopy of the parties' marriage certificate to: DFAS-HGA-CL, Assistant General Counsel for Garnishment Operations, P.O. Box998002, Oeveland, Ohio 44199-8002 by certified mail, return receipt requested.

p~2 DOMESTIC RELATIONS ORDER- MILITARY RETIREMENT Taxes IT IS FURTHER ORDERED that Former Spouse shall include in her gross income for her taxable years of receipt all retired pay received by Former Spouse pursuant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Servicemember shall not include such benefits in Servicemember's gross income for such taxable years. Survivor Benefit Plan The Court further finds that Former Spouse and the parties' children should be designated as former spouse and child beneficiaries of Servicemember's Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate Former Spouse and the parties' children as former spouse and child beneficiaries of the Survivor Benefit Plan and that the designation of Former Spouse and the children as former spouse and child beneficiaries should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicememberduringthe children's eligibility or Former Spouse's lifetime, and IT IS SO ORDERED. IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former Spouse as a former spouse beneficiary of Servicemember's Survivor Benefit Plan. IT IS FURTHER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of Servicemember's Survivor Benefit Plan to receive the percentage equal to the percentage of Servicemember's disposable retired pay awarded Former Spouse in this order. To the extent that Servicemember fails or otherwise refuses to cooperate in filing the documents required to elect to designate Former Spouse as a former spouse beneficiary of Servicemember's Survivor Benefit Plan, Former Spouse is directed to apply for Former Spouse's entitlement to be deemed a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court's deemed election pursuant to 10 U.S.C. Section 1447 et seq., completing aDD Form 2656-10 to effect the deemed election, and sending it, along with a certified copy of this order, to U.S. Military Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, return receipt requested. Former Spouse'sfailure to register her deemed election within one year of the date this DRO is signed may, if not will, forever bar such an election for Former Spouse. IT IS ORDERED that Servicemember shall not during Former Spouse's lifetime modifY, amend, withdraw, or in any other manner alter the election to name Former Spouse as a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan. Continued Jurisdiction and Clarification Without affecting the finality of the Final Decree of Divorce or this Domestic Relations Order, this Court expressly reserves the right pursuant to Section 9.101 et seq. of the Texas Family Code to make orders necessazyto clarify, amend, and enforce this order, and IT IS SO ORDERED.

p~3 DOMESTIC RELATIONS ORDER- MJLITARY RETIREMENT SIGNED on May 24,2011.

APPROVED AS TO FORM ONLY:

The Law Offices of DONAHO & DOCKERY P.C. P.O. Box459 Floresville, TX 78114 Tel: (830) 393-2700 Fax: (830) 393-3029

By: foe Kirk Dockery State Bar No. 05929220 Attorney for Petitioner

LAUBACH LAW OFFICE 1005 S. Alamo 20770 Highway 281 Suite I 08/Box 248 San Antonio, Texas 78258 Tel: (210) 222-1225

::=:~ ~ State Bar No. 24031271 Attorney for Respondent

----~SENTED TO AS TO BOTH FORM AND SUBSTANCE:

10201-#10

DOMESTIC RELATIONS ORDER- MILITARY RETIREMENT pt14 APPENDI 4 ;,

NO. 10-10-0579-CVW

IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § § TRACIE MARIE PARSON § AND § SIST JUDICIAL DISTRICT PAUL J\'liCHAEL PARSON § § AND IN THE INTEREST OF § F.G.P. AND R.D.P., CHILDREN § \VILSON COUNTY, TEXAS

PETITION TO CORRECT OR AMEND DOMESTIC RELATIONS ORDER FOR MILITARY RETIREMENT

This Petition to Correct or Amend Domestic Relations Order for Military Retirement is

brought by TRACIE MARIE SHEFFLER, fonnerly Tracie Marie Parson, Petitioner, who tiles

this petition pursuant to §9.101 et seq., Texas Family Code, and who shows in support:

I. Petitioner, TRACIE MARIE SHEFFLER, formerly Tracie Marie Parson, was the

Petitioner in the original suit tor divorce.

2. . Respondent, PAUL MICHAEL PARSON, was the Respondent in the original suit

for divorce.

3. No personal service is necessary at this time. This petition is tiled in the torm of a

counter-petition at a time when the Court has plenary power over the parties due to a petition to

modify in suit affecting parent-child relationship tiled by PAUL MICHAEL PARSON and a

counter-petition to modify in suit affecting parent-child relationship filed by TRACIE MARIE

SHEFFLER. Respondent, PAUL MICHAEL PARSON, will be served with this motion in

accordance with Rule 2la, T.R.C.P., on his attorney of record.

4. On May 24, 2011, this Court entered a "CoiTectcd Final Decree of Divorce"

PETITION TO CORRECT OR AMEND n y, exas DO:VlESTIC RELATIONS ORDER FOR MILITARY RETIREMENT ''1~85---- 5. Also on May 24, 2011, this Court entered a ''Domestic Relations Order- Military

Retirement" awarding Petitioner a portion of Respondent's military retirement.

6. Both the Corrected Final Decree of Divorce and the Domestic Relations Order -

Military Retirement are based on a Rule l 1 Agreement si~;,rncd by both parties and their attorney

of record, dated February 3, 20 ll, a copy of which is attached hereto, and which provides in

relevant part:

"5. Wife awarded:

h. Y2 community interest in military retirement.

6. Husband awarded:

c. Y2 community interest in military retirement + all H's SP interest." A true and correct copy of the Rule 11 Agreement is attached hereto, the original of which is in

the possession of the Clerk of this Court.

7. At the time of the divorce, Respondent was stili active duty in the U.S. Navy and

therefore certain aspects of his retirement could not be known at that time, specitlcally, the total

number of years and months that he would serve piior to retirement, the amount of his gross

monthly retired pay, and the amount of his disposable monthly retired pay.

8. The tonnula used in the Domestic Relations Order, which was provided by

Respondent's attomey of record, is as tbllows:

"IT IS THEREFORE ORDERED that Forn1cr Spouse have judgment against and recover from Serviccmember, on Servicemember's retirement from the United States Navy, the amount of disposable retired pay calculated as follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent multiplied by the high-36 month base pay of the

PETITIO!\! TO CORRECTOR AMEND DOMESTIC RELATIONS ORDER FOR

86 Servicemember, which is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months, determined on the date of Servicemembcr's retirement divided by Servicemembds monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement."

This formula results in an award of less than $100.00 per month from Respondent's that is far

less than the one-half of the community interest agreed upon by the parties.

9. The proper tormula suggested by the Defense Finance and Accounting Service

for compliance with the Uniformed Services Former Spouses' Protection Act is:

"The tanner spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is ___ months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service." 10. State courts have authority to divide military retired pay only as set torth by the

Uniformed Services Former Spouses' Protection Act. Thus, state court orders that are not in

accordance with the USFSPA are unenforceable. The ORO tor military retirement entered by the

Court on May 24, 2011, fails to divide the military retired pay of Respondent in accordance with

one of the prescribed fonnulas of the USFSPA and therefore it is unentorceable, and requires

amendment or correction.

11. Petitioner believes that in drafting the ORO, that Respondent's counsel was

attempting to use the following suggested language ti·om the Texas Family Law Practice

Manual:

"IT IS THEREFORE ORDERED that Fonner Spouse have judgment against and recover from Servicemember, on Scrviccmember's retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded termer spouse] percent multiplied by [percentage of

I' HIT! ON TO CORRECT OR AM El\'D DOMESTIC RELATIONS ORDER FOR i\HUTARY RETIREMENT Page 3

87 community interest in servicemember's military retired pay entitlement on date of divorce, that is, number of months of serviccmember's service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember's t,rross retired pay entitlement if servicemember v-:ere allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of serviccmember's creditable service toward retirement on divorce divided by !2] percent multiplied by [serviccmember's high-36 month base pay on date of divorce] divided by Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement."

Petitioner now comprehends that two of the values stated in the Domestic Relations Order were

miscalculated.

Each of the tollowing facts was known at the time of divorce:

a. The parties were married on June 5, 2004.

b. The parties were divorced on February 3, 20 11.

c. During the marriage Respondent served 6 years and 8 months (80 total months) of

creditable service towards military retirement.

d. As of the date of divorce Respondent had served 18 years and 2 months (218 total

months) of creditable service towards military retirement.

e. Respondent's high-36 month base pay on date of divorce was $3,322.16 .

Since Respondent's retirement on October 31, 2014, the following tacts are known:

a. Respondent's monthly t,rross retired pay at retirement is $2,341.00.

b. Respondent's monthly disposable retired pay at retirement is $2,243.14.

12. That the Domestic Relations Order entered by the Court on May 24, 2011,

involves the miscalculation of Petitioner's share can be demonstrated as follows:

PETITION TO CORRECT OR AM END DOMESTIC RELATIONS ORDER FOR iv!ILITARY RET!REi\·!ENT Pagc4

88 Application of formula as written in Domestic Relations Order:

0.5 Percentage of Community Estate's share of military retirement awarded to wife INCORRECT x 0.1666 Number of months of servicemember's service during VALUE marriage divided by number of months servicemember has been on actl've duty on date of divorce (80 ..;- 218) INCORRECT x 0.35 0.025 multiplied by number of full months of VALUE servicemember's creditable service toward retirement on divorce divided by 12 (0.025 x 218 + 12) X $3,322.16 5ervicemember's high-36 month base pay on date of divorce $2,341.00 Servicemember's monthly gross retired pay at retirement

X $2,243.14 Servicemember's monthly disposable retired pay at retirement ::: $92.81 Incorrect Value for Wife's Share of Military Retirement

Application of formula as correctly applied to facts of this case:

0.5 Percentage of Community Estate's share of military retirement awarded to wife X 0.36697 Number of months of servicemember's service during marriage divided by number of months servicemember has been on active duty on date of divorce (80 + 218) X 0.45416 0.025 multiplied by number of full months of servicemember's creditable service toward retirement on divorce divided by 12 (0.025 x 218 + 12} X $3,322.16 Servicemember's high-36 month base pay on date of divorce $2,341.00 Servicemember's monthly gross retired pay at retirement

X $2,243 . 14 Servicemember's monthly disposable retired pay at retirement = $265.27 Correct Value for Wife's Share of Military Retirement

ERROR 1: The percentage that is stated in the ORO of 16.66 for the calculated value

resulting fi·om the number of months of servicemember's service during marriage divided by

number of months serviccmember has been on active duty on date of divorce, has been

miscalculated, and the actual calculated value is 36.697 percent. [80..,... 2l8 = 36.697%]

PETITION TO CORRECT OR AMEND DOMESTIC RELATIONS ORDER FOR t\·11LITARY RETIRE1v1ENT Pug<.: 5

89 ERROR 2: The percentage that is stated in the ORO of35.0 for the calculated value of

0.025 multiplied by number of full months of servicemember's creditable service toward

retirement on divorce divided by 12, has been miscalculated, and actual calculated value is

45.416 percent. [0.025 x 2 [ 8 + 12 = 45.416%]

The values used to determine or calculate these numbers were known at the time of

divorce but were miscalculated by the attorney's in preparation of the ORO, which was an

inadvertent and unintentional mistake.

13. Pursuant to Sec. 9.1045, Texas Family Code, this court retains continuing,

exclusive jurisdiction to amend any previously entered domestic relations order to correct the

order or clarify the terms of the order to etfectuate the division of property ordered by the court.

The DRO signed by the Court on May 24, 2011, fails to effectuate the division of property

ordered by the Court pursuant to the Rule 11 Agreement signed by the parties and their attorneys

of record, and therefore, this amendment or correction is made necessary. Attached is a proposed

Corrected Domestic Relations Order for Military Retirement which will con-cctly effectuate the

division of military retirement pursuant to the Rule 11 Agreement of the parties which was

adopted by the Court and rendered as its order on February 3, 20 ll.

PRAYER

Petitioner, TRAC!E MARIE SHEFFLER, prays that the CoUJt !:,rrant this petition to

amend or correct the Domestic Relations Order for Military Retirement, so that the share of

Respondent's military retirement awarded to Petitioner is correctly calculated and stated in a

manner that can be enforced

Respectfully submitted,

The Law Offices of DONAHO & DOCKERY, P.C. P.O. Box 459

PETITION TO CORRECT OR AM END DOIVIEST!C RELATIONS ORDER FOR MILITARY RETIREMENT Pagc6

90 Floresville, Texas 78114 Tel: 830-393-2700 Fax: 830-393-3029

Ki Dockery, Attomey in State Bar No. 05929220 Email: kirkdockery@gmail.com Scott R. Donaho State Bar No. 05967755 Email: srdonaho@tloresville.nct Attorneys for Tracie Marie Shetller

Notice of Hearing

The above motion is set tor hearing on January 14, 2015, at 9:00 a.m. in the District Courtroom of the Wilson County Justice Center, 800 LO'h Street, Floresville, Texas.

hQ;)& ~ Kirk Dockery

Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Te

Kif.kDOCkcry ~

PETITION TO CORRECT OR AMEND DOMESTIC RELATIONS ORDER FOR ivl!LlTARY RETlREi'vlENT Pugc 7

91 APPENDI 5 NO. 10-10-0579-CVW IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § TRACIE MARIE PARSON § AND § 81 ST JUDICIAL DISTRICT PAUL M.ICHAEL PARSON § § AND IN THE INTEREST OF § FALIN GALE PARSON AND § ROGAN DOW PARSON, § CHILDREN § WILSON COUNTY, TEXAS

ORDER

PAUL MICHAEL PARSON'S First Plea the Jurisdiction, and Motion to Dismiss and Special Exceptions, filed January 13, 2015, in opposition to TRACIE MARTE (PARSON) SCHEFFLER'S Petition to Correct or Amend Domestic Relations Order for Militwy Retirement, filed January 8, 2015, is sustained. The Petition to Correct or Amend Domestic Relations Order.for Military Retirement, is dismissed for lack of jurisdiction.

Signed February 13,2015

~t)~ Russell Wilson, District Judge 218 1h District Court

148 PPE D 0. 2

b THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 Domestic Relations Order !Military Retirement! Form 25-31

Form 25-31

Caveat: Although the military retirement division language may be included in the body of the decree of divorce, the better practice is to treat military retirement just as any other retirement asset that requires a qualified domestic relations order (QORO) would be treated. Because a division order of military retirement does not fall under the Employee Retirement Income Security Act, it is not a "qual- ified" order but simply a domestic relations order (ORO). The Defense Finance and Accounting Ser- vice (OFAS) does not require that the order regarding division of the retirement benefits be contained wholly in the decree, and the better practice is to have a separate order that specifically treats the divi- sion of the military retired pay and related military benefits. OFAS may require, however, that the per- son submitting the retirement division order for approval for direct payment (usually the nonmember spouse, since an application signed by that spouse must accompany the order) to the nonmember spouse submit the divorce decree, as well as the DRO that divides the military retirement if it is in a separate order. However, if the ORO specifically states the date that the parties were divorced, OFAS can readily ascertain that the parties are or have previously been divorced, and submitting the decree may be unnecessary.

(Caption. See § 3 of the Introduction in volume 1 of this manual.}

Domestic Relations Order [Military Retirement]

The Court, having entered a decree of divorce [coincident with the signing of this

domestic relations order/in this case on [date]], finding that the entry of a domestic relations

order (ORO) is necessary to effectuate the tenns of that decree of divorce, and further finding

that the entry of a ORO is appropriate, makes the following specific findings and conclusions

of law and enters them as an order in this proceeding.

Findings

The Court finds, in accordance with the Uniformed Services Former Spouses' Protec-

tion Act, 10 U.S.C. § 1408, as follows:

1. This Court has jurisdiction over [full name of servicemember] ("Servicemember").

[Include one or both of the following: The residence of Servicemember is in [city, county],

iC STATE BAR OF TEXAS 25-31-l Form 25-31 Domestic Relations Order (Military Retirement!

Texas, other than because of military assignment./Servicemember has consented to the juris-

diction ofthe Court.]

2. Servicemember and [full name offormer spouse] ("Former Spouse") were origi-

nally married on [date], and that marriage lasted for [number] years and [number] months or

more, during which time Servicemember served [number] years and [number] months or

more of creditable service toward retirement.

The time in months and years that the parties were married during which the servicemember was earning retirement credit should not be stated to be "ten years or more" or "twenty years or more" but should be the actual years and months of overlap- ping marital service. The ten-year and twenty-year periods are relevant in determining the availability of direct payment from DFAS to the former spouse and the former spouse's entitle- ment to certain medical and other benefits, respectively. See the practice notes at sections 25.75 and 25.80.

3. Servicemember's Social Security number is ***-**-[last four numbers], [his/her]

address is [address], and [his/her] birth date is [date].

4. Former Spouse's Social Security number is ***-**-[last four numbers], [her/his]

address is [address], and [her/his] birth date is [date].

5. The rights ofServicemember under the Servicemembers Civil Relief Act were

fully complied with in this case.

6. Servicemember [is/is not] retired from the United States [branch of service] at the

time of this order.

7. The award of disposable retired pay made to Former Spouse in this order is made

in compliance with the Uniformed Services Former Spouses' Protection Act.

25-31-2

Direct payment is available from DFAS only if the parties were married for at least ten years during which the servicemember was also on active duty for at least ten years or in active reserve status and earned at least ten "good years" for reserve retirement credit. If this is not the case, the order must be writ- ten to provide for a constructive trust between the service- member and the former spouse, and taxes must be dealt with because the servicemember will be taxed.

8. It is intended by this Court and the parties that the Defense Finance and Account-

ing Service (DFAS) make the payments due to Former Spouse of [her/his] interest in the dis-

posable retired pay awarded in this order directly to Former Spouse.

Terms and Definitions

With respect to the provisions of this DRO, the Court has used and applied the follow-

ing terms and definitions:

1. "Retired pay" means monetary pay to which Servicemember is, or may hereafter

be, entitled to receive on completion of the requisite number of years of creditable service to

be entitled to non disability retired pay as a result of service in the United States Armed Forces

(active duty, reserve component, or national guard), whether called retired pay, retainer pay,

or retirement pay.

2. "Disposable retired pay" has the meaning provided in the Uniformed Services

Former Spouses' Protection Act (10 U.S.C. § 1408 et seq.).

3. "USFSPA" means the Uniformed Services Former Spouses' Protection Act (10

U.S.C. § 1408 et seq.) in effect on the date of the parties' divorce.

4. "Defense Finance and Accounting Service" (OF AS) means, refers to, and includes

the Secretary of the Department of Defense, the Director of the DF AS, the designated agent of

either of these, and other appropriate subdivisions of the United States Government.

\'STATE BAR OF TEXAS 25-31-3 Form 25-31 Domestic Relations Order [Military Retirement)

5. "COLA" means the cost-of-living adjustment increases that are made annually to a

military retiree's retired pay pursuant to I 0 U .S.C. § 1401 a.

Award to Former Spouse

Select one of the following.

Use the following when the former spouse is to receive only a fixed-dollar award. The former spouse will not receive any COLAs thereafter authorized by Congress if a fixed dollar amount is awarded.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the sum of[number] dollars ($[amount]) ofServicemember's monthly disposable

retired pay.

When representing the servicemember, use the following for an active duty servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber's service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent multiplied by [percentage of servicemember's gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember's creditable service toward retirement on

divorce divided by 12] percent multiplied by [servicemember's base pay on date of divorce]

divided by the amount of the monthly gross retired pay that Servicemember is entitled to

receive at retirement multiplied by the amount ofServicemember's monthly disposable retired

pay at retirement.

25-31-4 c STATE BAR OF TEXAS Domestic Relations Order [Military Retirement) Form 25-31

When representing a servicemember who has not been in the military for twenty years, calculate the percentage of the ser- vicemember's entitlement to retired pay taking into account the provisions of the Temporary Early Retirement Authority (TERA), 10 U.S.C. § 1293, which will necessarily have the effect of reducing the former spouse's share of the anticipated retired pay on divorce. See James N. Higdon, Military Retire- ment and Divorce, chapter 63.2, page 13, State Bar of Texas 35th Advanced Family Law Course, August 2009, for a discus- sion of the application of TERA to the calculation of military retired pay in such circumstances.

When representing the former spouse, use the following for an active duty servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber's service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent multiplied by [percentage of servicemember's gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember's creditable service toward retirement on

divorce divided by 12] percent multiplied by the base pay of a servicemember with Service-

member's pay grade and longevity on the date of divorce determined on the date of Service-

member's retirement divided by Servicemember's monthly gross retired pay at retirement

multiplied by Servicemember's monthly disposable retired pay at retirement.

<'STATE BAR OF TEXAS 25-31-5 Form 25-31 Domestic Relations Order (Military Retirement)

When representing the former spouse, determine the former spouse's share of the retired pay on divorce as of the date of retirement rather than the date of divorce, limited, however, to the pay grade and longevity of the servicemember on the date of divorce. Otherwise the former spouse will not derive the benefit of the annual active duty COLAs (in accordance with Berry v. Berry, 647 S.W.2d 945 (Tex. 1983)) that are autho- rized by Congress. See James N. Higdon, Military Retirement and Divorce, chapter 63.2, State Bar of Texas 35th Advanced Family Law Course, August 2009, for a discussion of this issue in the calculation of military retired pay.

When representing the servicemember, use the following for an active duty servicemember who entered the service on or after September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber's service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent multiplied by [percentage of servicemember's gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember's creditable service toward retirement on

divorce divided by 12] percent multiplied by [servicemember's high-36 month base pay on

date of divorce] divided by Servicemember's monthly gross retired pay at retirement multi-

plied by Servicemember's monthly disposable retired pay at retirement.

25-31-6 ,. STATE BAR OF TEXAS Domestic Relations Order [Military Retirement) Form 25-31

When representing the former spouse, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. Because the servicemember's high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be nec- essary to "clarify" the ORO at or after the date the servicemem- ber retires because DFAS may not accept for processing an order that contains the "high-36 month base pay at the time of retirement" hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time.

IT IS THEREFORE ORDERED that Fonner Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber's service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent multiplied by [percentage of servicemember's gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember's creditable service toward retirement on

divorce divided by 12] percent multiplied by the high-36 month base pay of a servicemember

with Servicemember's pay grade and longevity on the date of divorce determined on the date

ofServicemember's retirement divided by Servicemember's monthly gross retired pay at

retirement multiplied by Servicemember's monthly disposable retired pay at retirement.

Use the following for an active duty servicemember who is retired at the time of divorce whether representing the service- member or the former spouse.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [percentage of community interest in servicemember's military retired pay

<:STATE BAR OF TEXAS 25-31-7 Form 25-31 Domestic Relations Ot·der [Military Retirement[

entitlement, that is, number of months of servicemember's service during marriage divided by

total number of months of servicemember's service at retirement] percent multiplied by Ser-

vicemember's monthly disposable retired pay.

When representing the servicemember, use the following for an active reservist servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember's gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member's total retirement points on divorce divided by 360] percent multiplied by [service-

member's base pay on date of divorce] divided by Servicemember's monthly gross retired pay

at retirement multiplied by Servicemember's monthly disposable retired pay at retirement.

When representing the former spouse, use the following for an active reservist servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of retirement points earned

25-31-8 (STATE BAR OF TEXAS Domestic Relations Order [Milita1·y Retirement) Form 25-31

during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember's gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member's total retirement points on divorce divided by 360] percent multiplied by the base pay

of a servicemember with Servicemember' s pay grade and longevity on the date of divorce

determined on the date ofServicemember's retirement divided by Servicemember's monthly

gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay

at retirement.

When representing the servicemember, use the following for an active reservist servicemember who entered the service on or after September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember's gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member's total retirement points on divorce divided by 360] percent multiplied by [service-

member's high-36 month base pay on the date of divorce] divided by Servicemember's

monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable

retired pay at retirement.

c STATE BAR OF TEXAS 25-31-9 Form 25-31 Domestic Relations Order [Military Retirement!

When representing the former spouse, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. Because the servicemember's high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be nec- essary to "clarify" the DRO at or after the date the servicemem- ber retires, because DFAS may not accept for processing an order that contains the "high-36 month base pay at the time of retirement" hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember's retirement from the United States [branch

of service], the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse] percent multiplied by [percentage of community interest in servicemember's

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember at

divorce] percent multiplied by [percentage of servicemember's gross retired pay entitlement if

servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member's total retirement points on divorce divided by 360] percent multiplied by the high-36

month base pay of a servicemember with Servicemember's pay grade and longevity on the

date of divorce determined on the date of Servicemember' s retirement divided by Service-

member's monthly gross retired pay at retirement multiplied by Servicemember's monthly

disposable retired pay at retirement.

Use the following for a reservist servicemember who is retired and receiving retired pay at the time of divorce whether repre- senting the servicemember or the former spouse.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [number of servicemember's retirement points earned during marriage

25-3 I- 10 <" STATE BAR OF TEXAS Domestic Relations Order [Military Retirement) Form 25-31

divided by total number of servicemember's retirement points at retirement] percent multiplied

by Servicemember's monthly disposable retired pay.

Important: The attorney representing a servicemember who is retired but not accruing points or receiving retired pay will want to have the "retired pay" determined on the date of divorce rather than using a percentage of retired pay at retirement. In the latter formulation, the former spouse would receive the benefit of the cost-of-living increases that accrue from the date of the "retirement" or divorce to the date when the service- member begins receiving retired pay, usually at age sixty. (In 2009, Congress passed a law to allow reservists and guards- men who were recalled to and performed active duty on and after January 30, 2008, to be entitled to receive retired pay earlier than age sixty, at their election.)

Use the following for a reservist servicemember who is retired and not accruing retirement points but not receiving retired pay at the time of divorce, that is, one who is no longer a drilling reservist but has not yet become entitled to receive retired pay.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [percentage of community interest in servicemember's military retired pay

entitlement on date of divorce, that is, number of servicemember's retirement points earned

during marriage divided by total number of servicemember's retirement points at divorce] per-

cent multiplied by [0.025 multiplied byservicemember's total retirement points earned on date

of divorce divided by 360] percent multiplied by [servicemember's high-36 month base pay at

divorce] divided by Servicemember's gross retired pay at retirement multiplied by Service-

member's disposable retired pay at retirement.

Use the following when representing the former spouse of a reservist servicemember who is retired and not accruing retire- ment points but not receiving retired pay at the time of divorce.

(' STATE BAR OF TEXAS 25-31-ll Form 25-31 Domestic Relations Order (Military Retirement)

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [percentage of community interest in servicemember's military retired pay

entitlement on date of divorce, that is, number of servicemember's retirement points earned

during marriage divided by total number of servicemember's retirement points at divorce] per-

cent multiplied by Servicemember's disposable retired pay at retirement.

Select one of the following COLA provisions.

Use the following if the former spouse is to receive COLAs.

IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former

Spouse each month the calculated percentage of Servicemember's disposable retired pay at

retirement, together with all COLAs applicable thereto, payable IF, AS and WHEN received

by Servicemember.

Use the following if the former spouse is not to be awarded and receive COLAs.

IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former

Spouse each month the fixed dollar award out of Servicemember's disposable retired pay at

retirement, payable IF, AS and WHEN received by Servicemember, but Former Spouse shall

not be entitled to receive any COLAs related thereto.

Continue with the following when representing the former spouse if the court will include this language, since it protects the interest being awarded to the former spouse from the effects of VA waiver and/or the servicemember's application for combat-related special compensation (CRSC) (1 0 U.S.C. § 1413a).

IT IS FURTHER ORDERED AND DECREED that the award herein shall in no event

be less than [number] dollars ($[amount]) per month, together with all COLAs hereafter appli-

cable thereto, of Servicemember's retired pay. The Court recognizes, in making this award,

that DFAS, pursuant to the USFSPA, is authorized to pay Former Spouse only the herein-

25-31-12 c STATE BAR OF TEXAS Domestic Relations Order [Military Retirement) Form 25-31

awarded percentage ofServicemember's "disposable retired pay," and this Order, as to DFAS,

should be so construed.

Include the following if applicable. If the former spouse is to be awarded the right to receive the servicemember's Survivor Benefit Plan (SBP) annuity benefits, a decision must be made about who is to pay for it. If the former spouse is to pay the full cost of the SBP premiums, the simplest way to accomplish this result is to adjust the former spouse's percentage share of the disposable retired pay. The attorney who is not adequately informed on this issue should consult with someone who fully understands this aspect of retired pay calculation before reaching an agreement on this adjustment. If the former spouse's share is to be adjusted to provide for the former spouse's paying all of the cost of the monthly SBP premium, something like the following should be inserted at this point in the order unless the servicemember is already retired.

IT IS FURTHER ORDERED that the foregoing calculated percentage awarded Former

Spouse shall further be reduced, as necessary, to provide for Former Spouse's payment of all

of the monthly Survivor Benefit Plan premium cost.

I Continue with the following.

IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired

pay of Servicemember is the sole and separate property of Servicemember.

Amounts in Excess of 50 Percent

IT IS ORDERED that ifthe dollar amount or award (or a larger sum as increases take

effect) exceeds 50 percent of the disposable retired pay, DF AS shall pay to Former Spouse the

maximum amount allowable under the USFSPA and Servicemember shall be responsible for

paying the balance of the award each month to Former Spouse, and it is accordingly

ORDERED.

IfDFAS is not allowed to pay Former Spouse the full amount of Former Spouse's enti-

tlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within

seven days of being notified by Former Spouse that Former Spouse is not receiving the full

' STATE BAR OF TEXAS 25-31-13 Form 25-31 Domestic Relations Order [Military Retirement)

amount of Former Spouse's interest in the retired pay, to execute and deliver to DFAS all

forms or documents that may then be necessary to effect an allotment payable to Fonner

Spouse in the amount of the difference between the amount being paid directly to Former

Spouse by DFAS and the full amount of Former Spouse's interest in the retired pay. Service-

member is FURTHER ORDERED to keep and maintain in full force and effect any allotment

required by this provision, payable to Former Spouse at [address, city, state, zip code], or such

other address as Former Spouse may hereafter specify in writing, until such time as Former

Spouse begins receiving Fonner Spouse's full separate-property share of Servicemember's

disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled

by Servicemember if and when Fonner Spouse begins receiving, and for as long as Former

Spouse is receiving, Former Spouse's full separate-property share ofServicemember's dispos-

able retired pay directly from DFAS, but only in that event or to avoid double payment of

sums.

Include the following paragraph if applicable.

Since Former Spouse has been awarded the right to receive that share attributable to the

interest awarded to Former Spouse herein of any and all COLAs or other increases in the

monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from

DFAS [her/his] full share ofthe retired pay herein awarded to Former Spouse, if and when

COLAs are made to the retired pay received by Servicemember, Servicemember is hereby

ORDERED to execute and deliver to DFAS all forms or documents that may then be neces-

sary to effect an increase in the allotment to Fonner Spouse in the amount equal to the dollars-

and-cents equivalent ofthat COLA attributable to Former Spouse's share of that disposable

retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if

applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working

days of the date Servicemember is notified by DF AS of the effective date of each COLA to

the monthly retired pay payment.

25-31-14 c STATE BAR OF TEXAS Domestic Relations Order [Military Retirement) Form 25-31

Constructive Trust

IT IS FURTHER ORDERED that Servicemember be and is hereby designated a con-

structive trustee for the benefit of Former Spouse for the purpose of receiving the retired pay

awarded herein to Former Spouse as Former Spouse's sole and separate property, and Ser-

vicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to

Former Spouse at [her/his] last known address by negotiable instrument that portion of each

monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allot-

ment) by DF AS within three days of the receipt of any such payments by Servicemember. All

payments made directly to Former Spouse by DFAS shall be a credit against this obligation.

For purposes of this order, Servicemember is specifically directed, on penalty of con-

tempt, to pay Former Spouse's interest in the disposable retired pay as ordered in this order,

and IT IS SO ORDERED. Servicemember is specifically directed that [he/she] is not relieved

of that obligation except to the extent that [he/she] is specifically notified that l 00 percent of

Former Spouse's interest in the retirement benefit has been directly paid by DF AS, and IT IS

SO ORDERED.

IT IS FURTHER ORDERED that any election of benefits that may hereafter be made

by Servicemember shall not reduce the amount equal to the percentage of the retired pay or

the amount of the retired pay the Court has herein awarded to Former Spouse, except as pro-

vided by federal law and prohibited from being changed by a state court order. In this regard,

IT IS FURTHER ORDERED that Servicemember shall not merge [his/her] military retired

pay with any other pension and shall not pursue any course of action that would defeat,

reduce, or limit Former Spouse's right to receive Former Spouse's full separate-property share

ofServicemember's retired pay as awarded in this order, unless otherwise ordered herein.

,, STATE BAR OF TEXAS 25-31-15 Form 25-31 Domestic Relations Order [Military Retirement)

Death

IT IS ORDERED that the payment of the retired pay awarded in this order to Former

Spouse shall continue until the death ofServicemember or Fonner Spouse.

Retiree Account Statements and Privacy Waiver

IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to

Former Spouse at [former spouse's mailing address], or such other address as Former Spouse

may hereafter specify in writing, a true and correct legible copy of each Retiree Account

Statement received by Servicemember from DF AS within five days of its receipt.

IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may

be required for Former Spouse to obtain information relating to Servicemember's date of

retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or

other information that may be required to enforce this award or to revise this order to make it

enforceable.

Include the following if applicable.

Retirement

IT IS ORDERED that Servicemember shall notify Former Spouse of [his/her] applica-

tion for retired pay, and provide Former Spouse with a true copy of [his/her] Application for

Retired Pay Benefits, on the date [he/she] applies for those benefits. This notification shall be

mailed by Servicemember to Former Spouse at [her/his] last known address. Servicemember

is FURTHER ORDERED to provide to Former Spouse a true and correct copy ofthe first

Retiree Account Statement received by [him/her] within five days of its receipt.

Continue with the following.

25-31-16 o STATE BAR OF TEXAS Domestic Relations Order !Military Retirement] Form 25-31

Application for Direct Payment of Retired Pay

Former Spouse is hereby directed to apply for Fonner Spouse's entitlement to a portion

of Servicemember's retired pay by contacting the OF AS Legal Department, completing the

Application for Former Spouse Payments from Retired Pay (DO Form 2293), and delivering it

along with a certified copy of this ORO (certified within ninety days of its delivery to OF AS)

and a photocopy ofthe parties' marriage certificate to: DFAS-HGA-CL, Assistant General

Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by

certified mail, return receipt requested.

DD Form 2293 can be accessed and downloaded at www

Taxes

IT IS FURTHER ORDERED that Former Spouse shall include in [her/his] gross

income for [her/his] taxable years of receipt all retired pay received by Former Spouse pursu-

ant to this order, and, to the extent benefits are payable to Former Spouse by OF AS, Service-

member shall not include such benefits in Servicemember's gross income for such taxable

years.

CSTATE13AROFTEXAS 25-31-17 Form 25-31 Domestic Relations Order (Military Retirement(

Survivor Benefit Plan

Important: If being awarded, it is mandatory that the order state clearly that Survivor Benefit Plan (SBP) benefit coverage is being awarded to the former spouse, to the parties' children, or to both, as applicable. Payment of the SBP monthly premiums is deducted from the gross retired pay by DFAS before DFAS applies the former spouse percentage, that is, divides the retired pay between the former spouse and the servicemember. If the attorney does not want the spouses to share in the cost and wants the former spouse to pay all of the cost of the SBP annuity, the premium should be deducted from the former spouse's share by reduc- ing the percentage, or the former spouse can pay the service- member each month (or other frequency period) for the coverage. Ensure that the former spouse pays only his or her share of the premium. For instance, if the former spouse is not receiving 50 percent of total retired pay, the former spouse will not be paying 50 percent of the premium, but will be paying only the percentage of the disposable pay that has been awarded to the former spouse. If the former spouse remarries before age fifty-five, his or her entitlement to be a SBP benefi- ciary is suspended for the duration of that marriage, but the former spouse can, on the termination of that marriage, peti- tion DFAS for reinstatement of the suspended benefit. During the period of the suspended benefit, DFAS should, if timely notified, also suspend the payment of the monthly premiums. A servicemember may designate only one class of beneficiary for the survivor benefits. Thus, if a former spouse beneficiary has been designated, a new spouse cannot be designated as a "spouse beneficiary" unless the former spouse is no longer an eligible beneficiary. Also, the servicemember is not permit- ted to award a fractional interest to the former spouse and leave a portion for a future spouse. DFAS will pay the survivor benefit to only the designated beneficiary(ies), i.e., spouse, spouse and children, former spouse or former spouse and chil- dren, on the death of the servicemember. Generally, the desig- nation, once made, is irrevocable.

j Select one of the following.

Use the following paragraph if the servicemember is retired, the spouse is currently designated as a spouse beneficiary of servicemember's SBP, and the spouse is to be redesignated as a former spouse beneficiary.

The Court further finds that Former Spouse is presently named a spouse beneficiary of

Servicemember's Armed Forces Survivor Benefit Plan (which is deemed to include the

Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember' s election

to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by

25-31-18 i' STATE BAR OF TEXAS Domestic Relations Order (Military Retirement) Form 25-31

Former Spouse's being designated as a former spouse beneficiary and that Former Spouse's

designation as a former spouse beneficiary should not hereafter be modified, amended, with-

drawn, reduced, or altered by Servicemember during Former Spouse's lifetime, and IT IS SO

ORDERED.

Use the following paragraph if the servicemember is not retired and the spouse is to be designated as a former spouse benefi- ciary of the SBP.

The Court further finds that Former Spouse should be designated as a former spouse

beneficiary ofServicemember's Armed Forces Survivor Benefit Plan (which is deemed to

include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember

is ordered to designate Former Spouse as a former spouse beneficiary of the Survivor Benefit

Plan and that Former Spouse's designation as a former spouse beneficiary should not hereaf-

ter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former

Spouse's lifetime, and IT IS SO ORDERED.

If an election is made to have the parties' children covered as beneficiaries of the SBP, recognize that the coverage will con- tinue only as long as one or more of the children are under the age of eighteen; the coverage can be continued until age twenty-one if the child(ren) are enrolled in college or another qualifying educational institution. If electing such a coverage, use the following as applicable.

The Court further finds that [the parties' child[ren]/Former Spouse and the parties'

child[ren]] should be designated as [a child beneficiary/child beneficiaries/former spouse and

child beneficiaries] of Servicemember's Armed Forces Survivor Benefit Plan (which is

deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Ser-

vicemember is ordered to designate [the parties' child[ren]/Former Spouse and the parties'

child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of

c STATEBAROFTEXAS 25-31-19 Form 25-31 Domestic Relations Order [Military Retirement!

the Survivor Benefit Plan and that the designation of [the child[ren ]/Former Spouse and the

child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries]

should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember

during the child[ren]'s eligibility [include if applicable: or Former Spouse's lifetime], and IT

IS SO ORDERED.

Although it is not necessary to specifically provide that there will be no SBP former spouse coverage for the former spouse since the failure to award the SBP benefit at the time of divorce is res judicata on the issue (In re A.E.R., 2006 WL 349695 (Tex. App.-Fort Worth 2006) (mem. op.)), it is nevertheless recommended that the following paragraph be included to spe- cifically address the benefit.

The Court further finds that Former Spouse should not be designated as a fom1er

spouse beneficiary ofServicemember's Armed Forces Survivor Benefit Plan, and IT IS SO

ORDERED.

Continue with the following if the survivor benefit is awarded.

IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former

Spouse as a former spouse beneficiary ofServicemember's Survivor Benefit Plan. IT IS FUR-

THER ORDERED that, pursuant to this order, Fonner Spouse be and is hereby deemed desig-

nated, to the extent permitted by law, a former spouse beneficiary of Servicemember' s

Survivor Benefit Plan to receive

Include one of the following.

the highest Survivor Benefit Plan entitlement allowed by law.

[number] dollars ($[amount]) per month.

25-31-20 c STATE BAR OF TEXAS Domestic Relations Order !Military Retirement! Form 25-31

the percentage equal to the percentage ofServicemember's disposable retired pay awarded

Former Spouse in this order.

[set out other formula for determination of share].

I Continue with the following.

To the extent that Servicemember fails or otherwise refuses to cooperate in filing the

documents required to elect to designate Former Spouse as a former spouse beneficiary of

Servicemember's Survivor Benefit Plan, Fonner Spouse is directed to apply for Fom1er

Spouse's entitlement to be deemed a former spouse beneficiary ofServicemember's Armed

Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court's deemed

election pursuant to 10 U.S.C. § 1447 et seq., completing a DO Form 2656-10 to effect the

deemed election, and sending it, along with a certified copy of this order, to U.S. Military

Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, return receipt

requested. Former Spouse 's.failure to register [her/his] deemed election within one year of

the date this DRO is signed may, if not will, .forever bar such an election for Former Spouse.

IT IS ORDERED that Servicemember shall not during Fonner Spouse's lifetime mod-

ify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a

former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan.

C' STATE BAR OF TEXAS 25-31-21 Form 25-31 Domestic Relations Order !Military Retirement!

DD Form 2656-1, the form for a servicemember to make a vol- untary election for former spouse and/or child coverage, can be accessed and downloaded at www.dtic.mil/whs/

One of these forms must be sent to DFAS at the London KY address, along with a certified copy of the decree of divorce and/or DRO, to register the former spouse as a former spouse beneficiary within one year of the date of the signing of the decree of divorce. Failure to do so within the one-year period will probably bar the former spouse from former spouse cover- age.

Medical and Commissmy Benefits

The following provision for medical and commissary benefits is applicable only under certain circumstances. See the practice notes at section 25.80.

The Court further finds that Former Spouse is entitled to receive medical and dental

care under the terms of 10 U .S.C. section 1071 et seq. and to commissary and post exchange

privileges to the same extent and on the same basis as a surviving spouse of a retired member

of the United States Armed Forces following the date the Final Decree of Divorce is signed.

Continued Jurisdiction and Clarification

The following provision may be added if the parties were mar- ried for ten or more years during which the servicemember performed ten or more years of active/qualifying reserve duty. Otherwise, it should not be included in the order since DFAS will not, under current law, pay the former spouse's share of retired pay directly to her/him in those circumstances.

Although the Court and the parties intend that DFAS make direct payments to Fonner

Spouse ofFormer Spouse's interest in the disposable retired pay awarded herein, IT IS FUR-

THER ORDERED that, if this order does not qualify for direct payment, Servicemember shall

cooperate and do all things necessary to aid Former Spouse in obtaining a clarification of this

order that will quality for direct payment of Former Spouse's interest in the disposable retired

25-31-22 " STATE BAR OF TEXAS Domestic Relations Order !Military Retirement! Form 25-31

pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to

enter such a clarifYing order.

Continue with the following.

Without affecting the finality of the Final Decree of Divorce or this Domestic Relations

Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas

Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO

ORDERED.

SIGNED on _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING

<'STATE BAR OF TEXAS 25-31-23 [Reserved]

25-31-24 ,,, STATE BAR OF TEXAS PPE D 0. 3

THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 Disclaimer- this publication is intended to provide guidance only, and is not legally binding. Legal authority may be found at Title 10, United States Code, Section 1408, and the DoD Financial Management Regulation, Volume 7B, Chapter 29, available at

GUIDANCE ON DIVIDING MILITARY RETIRED PAY

GARNISHMENT OPERATIONS DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS) CLEVELAND, OHIO DFAS-HGA/CL P.O. BOX 998002 CLEVELAND, OH 44199-8002 1-888-332-7411 FAX 1-877-622-5930 OR Website http://www.dfas.mil/gamishment/retiredmilitary.htm1 TABLE OF CONTENTS Page I. HISTORY 2 II. DOCUMENTS NEEDED TO DIVIDE MILITARY RETIRED PAY 2 III. REQUIREMENTS FOR ENFORCEABILITY UNDER USFSPA 3

A. Servicemembers Civil Relief Act 3 B. Requirements that apply to retired pay as property awards only 3 IV. LANGUAGE DIVIDING MILITARY RETIRED PAY 4 A. Fixed dollar amount or percentage awards 4 B. Introduction to formula any hypothetical retired pay awards 6 C. Formula awards 6 D. Hypothetical retired pay awards 7 E. Examples ofunacceptable former spouse award language 12 F. Correcting deficient awards 13 V. ACKNOWLEDGEMENT 13 APPENDIX A- MILITARY RETIRED PAY DIVISION ORDER 16 APPENDIX B- NOTARIZED STATEMENT CLARIFYING COURT ORDER 19 2 UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT (DIVIDING MILITARY RETIRED PAY) I. HISTORY. The Uniformed Services Former Spouses' Protection Act (USFSPA) was passed by Congress in 1982. The USFSP A gives a State court the authority to treat military retired pay as marital property and divide it between the spouses. Congress' passage ofthe USFSPA was prompted by the United States Supreme Court's decision in McCarty v. McCarty in 198I.I I McCarty v. McCarty. 453 U.S. 210 (1981) 2 ld. at 232. JSee Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. 4 10 U.S.C. §1408(b)(l)(D). 5 10 U.S.C. § 1408(c)(4). 6 10 U.S.C. § 1408 (e)(!). 7 10 u.s.c. § 1408 (d)(2). 8 10 U.S. C.§ 1408 (a)(2)(C). 9 See 10 U.S.C. § 1408(a)(2)(B); 10 U.S.C. § 1408(d)( 1).

The McCarty decision effectively precluded state courts from dividing military retired pay as an asset of the matriage. Justice Blackmun, writing for the majority, stated that allowing a state to divide retired pay would threaten "grave harm to 'clear and substantial' federal interests."z Accordingly, the Supremacy Clause of Article VI preempted the State's attempt to divide military retired pay. Congress, by enacting the USFSPA, clarified it's intent that State comis have the power to divide what can be the largest asset of a marriage. With the passage of the USFSPA, Congress took the opportunity to set forth various requirements to govern the division of military retired pay. Congress sought to make a fair system for military members, considering that their unavailability and deployment status often exposes them to difficulties with civil litigation. Therefore, if a member is divorced while on active duty, the requirements of the Servicemembers Civil Relief Act (SCRA)3 must be met before an award dividing military retired pay can be enforced under the USFSP AA Additionally, the USFSP A contains its own jurisdictional requirement for the division of retired pay as prope1iy.s It limits the amount of the member's retired pay which can be paid to a former spouse to 50% of the member's disposable retired pay (gross retired pay less authorized deductions).6 It requires that the parties must have been married I 0 years or more while the member perfom1ed at least I 0 years of service creditable towards retirement eligibility before a division of retired pay is enforceable under the USFSP A. 7 It specifies how an award of militaty retired pay must be expressed.s It also provides a former spouse with a means of enforcing an alimony and/or child support award.9 H. DOCUMENTS NEEDED TO APPLY FOR DIVISION OF MILITARY RETIRED PAY. The USFSP A defines a "court order" dividing military retired pay enforceable under the Act as a "final decree of divorce, dissolution, annulment, or legal separation issued by a court, or 3 a court ordered, ratified, or approved property settlement incident to such a decree."to This also includes an order modifying a previously issued "court order." 10 10 U.S.C. § 1408(a){2). II Department of Defense Financial Management Regulation (DoDFMR), volume 7B, subp~1ragmph 29040l.A. Available ovt."f the Intemt:t at https:/ /comptrollcr.dcfense. gov/fmr/current/07b/Volume_ 07b.pdf. 12 50 U.S.C. App. § 521(b). 13 50 U.S.C. App. § 52l(g)(2). Since military retired pay is a Federal entitlement, and not a qualified pension plan, there is no requirement that a Qualified Domestic Relations Order (QDRO) be used. As long as the award is set forth in the divorce decree or other pertinent court order in an acceptable manner, that is sufficient. It is also not necessary to judicially join the "member's plan" as a part of the divorce proceeding. There is no Federal statutory authority for this. The award may also be set forth in a court ratified or approved separation agreement, or other court order issued incident to the divorce. In order to submit an application for payments under the USFSP A, a former spouse needs to submit a copy of the applicable court order certified by the clerk of court, along with a completed application form (DD Form 2293).11 Instmctions, including designated agent names and addresses, are on the back of the DD Form 2293. The Defense Finance and Accounting Service (DFAS) is the designated agent for all uniformed military services. The Form and instmctions can be downloaded from our DFAS website at www.dfas.mil/gamishment/ retiredmilitary.html. III .. USFSPA REQUIREMENTS WHEN THE FORMER SPOUSE HAS APPLIED FOR DIRECT PAYMENTS THROUGH DFAS A. Servicemembers Civil Relief Act. The provision ofthe SCRA that has primary application to the USFSPA and the division of military retired pay is the section conceming default judgments against active duty service members. This section requires that if an active duty defendant fails to make an appearance in a legal proceeding, the plaintiff must file an affidavit with the court informing the court of the member's military status. The court shall appoint an attomey to represent the interests of the absent defendant.12 A member has 90 days after separation from active duty service to apply to a court rendering a judgment to re-open a case on SCRA grounds.J3 Thus, this provision of the SCRA does not apply to a member with an active duty divorce where the member has been retired for more than 90 days. B. Requirements that Apply to Retired Pay as Property Awards Only (not child support or alimony) (1) The 10/10 requirement. 4 This is a "killer" requirement. For a division of retired pay as property award to be enforceable by direct payments under the USFSP A, the former spouse must have been married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable towards retirement eligibility.I4 This requirement does not apply to the Court's authmity to divide military retired pay, but only to the ability of the former spouse to enforce the award by direct payments from DFAS. This is a statutory requirement for direct payments, and not a personal right of the member that can be waived. Although this requirement was probably included in the USFSP A to protect members, we have had more complaints about it from members than from former spouses. Assuming that a member intends to meet his or her legal obligations, the member would rather have DFAS pay the former spouse directly as it would lessen contact with the former spouse. Also, if DFAS pays the former spouse directly, the former spouse's USFSPA payments would be reported on her or his own Fonn 1099-R, instead of all taxable retired pay being reported on the member's Form 1099-R. 14 10 U.S.C. § 1408(d)(2). 15 See Baka v. United States. 74 Fed. Cl. 692,698 (2006). See also DoDFMR, vol. 78, subparagraph 290604.A.3. If we cannot determine from the court order whether the 10/10 requirement has been met, we wi 11 ask the former spouse to provide a copy of the parties' marriage certificate. A recitation in the court order such as, "The parties were married for 10 years or more while the member performed 10 years or more of military service creditable for retirement purposes" will satisfy the 10/10 requirement, unless the marriage certificate shows otherwise. (2) USFSPA Jurisdiction. The USFSPA'sjurisdictional requirement is found in 10 U.S.C. § 1408(c)(4). This is another "killer" requirement. If it is not met, the fonner spouse's application for direct payment of retired pay as property under the USFSPA will be rejected. For a court to have the authority to divide military retired pay, the USFSPA requires that the court have "(c)(4 )"jurisdiction over the military member in one of three ways. One way is for the member to consent to the jurisdiction of the court. The member indicates his or her consent to the court's jurisdiction by taking some affirmative action with regard to the legal proceeding, such as filing any pleading in the case.1s Simply receiving notice of filing of the divorce complaint or petition is not sufficient. Consent is the most common way for a court to have (c)(4) jurisdiction over a member. The other ways for the court to have (c)(4) jurisdiction is for the member to be a resident of the State at the time of divorce other than because of his or her military assignment, or for the court to find that the member was domiciled in the particular State at the time of the divorce. Now, the key with regard to domicile is that the court makes this detennination, and it should be noted in the divorce decree. IV. LANGUAGE DIVIDING MILITARY RETIRED PAY. 5 A. Fixed dollar amount or percentage awards. The amount of a former spouse's award is entirely a matter of state law. However, in order for the award to be enforceable under the USFSP A, it must be expressed in a manner consistent with the USFSPA, and we must be able to determine the amount ofthe award. The USFSPA states that for a retired pay as property award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay.16 Additionally, pursuant to the Department of Defense Financial Management Regulation (DoDFMR), Volume 7B, Chapter 29, paragraphs 290607 and 290608, , if the parties are divorced prior to the member's receiving retired pay, the court order may (but is not required to) state a retired pay as property award as an acceptable formula or as a percentage of a hypothetical retired pay amount. We consider formula and hypothetical awards to be types of percentage awards. 16 10 U.S.C. §1408(a)(2)(C). 17 DoDFMR, Vol. 78, Subparagraph 290601.C. provides for automatic COLAs only for awards expressed as a percentage of disposable retired pay. 18 10 U.S. C.§ 1408(a)(4)(amended 1986, 1990). 19 DoDFMR, VoL 78, Paragrdph 290701 provides a list of the authorized deductions by divorce date. 20 Mansell v. Mansell, 490 U.S. 581. 21 DoDFMR, VoL 7B, Paragraph 2906016. D. For a fixed dollar amount award, a monthly amount needs to be provided in the court order. If a fixed dollar amount award is used, the former spouse would not be entitled to any of the member's retired pay cost of living adjustments (COLAs). I? Because of the significant effect of COLAs over time, it is infrequent that an award is stated as a fixed dollar amount. The more common method of expressing the former spouse's award is as a percentage of the member's disposable retired pay. This has the benefit to the former spouse of increasing the amount of the former spouse's award over time due to periodic retired pay COLAs. All percentage awards are figured using a member's disposable retired pay, which is a member's gross retired pay less authorized deductions.Is The authorized deductions vary based on the date of the parties' divorce.I9 The principal deductions now include retired pay waived to receive VA disability compensation, disability retired pay, and Survivor Benefit Plan (SBP) premiums where the former spouse is elected as the former spouse beneficiary. Since the United States Supreme Court has ruled that Congress authorized the division of only disposable retired pay, not gross retired pay,2o the regulation provides that all percentage awards are to be construed as a percentage of disposable retired pay.21 If the amount of the former spouse's award is expressed as a dollar amount or percentage of disposable retired pay less the amount of some other obligation (e.g., the amount ofthe Survivor Benefit Plan premium or the former spouse's child support obligation), the entire award is unenforceable. This type of award language does not meet the statutory requirement of a fixed dollar amount or percentage. Also, tying a former spouse's award to some other figure that is subject to change, such as the SBP premium, renders the former spouse's award indeterminate. Indeterminate awards cannot be established in the retired pay system. 6 Similarly, set-offs against the former spouse's award are not permitted.22 Although the award language may be acceptable, if another provision of the court order requires that another amount be set-off from the former spouse's share, such as an SBP premium or other financial obligation that the former spouse owes the member, the set-off is unenforceable. This is because there is no provision in the USFSP A that authorizes enforcement of a set-off against the former spouse's retired pay as property award. State courts have authority to divide military retired pay only as set forth by the USFSP A.23 Thus, state court provisions not in accordance with the USFSPA are unenforceable. 22 DoDFMR, Vol. 7B, Paragraphs 290610,290903. 23 Mansell, 490 U.S. at 581, illustrates the general principal that state courts may deal with military retired pay only in accordance with the provisions of the USFSP A. 24 Fom1er Spouse Payments From Retired Pay, 60 Fed. Reg. 17507 ( 1995) (to be codified at 32 C.F.R. pt. 63)(proposed Apr 5, 1995). 25 DoDFMR, Volume 7B, Paragraphs 290607 (formula awards) and 29060g (hypothetical retired pay awards). 26 DoDFMR, Volume 7B, Appendix A (Figure I), There is no magic language required to express a percentage or fixed dollar award. All the court order needs to say is the following: Example 1: "The former spouse is awarded percent [or dollars per month] of the member's disposable military retired pay." (Note: blanks in the examples represent numbers that must be provided to us in the court order.) B. Introduction to formula and hypothetical retired pay awards. Most of our problems with award language have arisen in cases where the parties were divorced while the member was still performing military service. In these cases, the former spouse's award was indeterminate at time of divorce since the member has not yet retired. Since the parties did not know how much longer the member would remain in military service after the divorce, a straight percentage award may not have been suitable, Also, many States take the approach that the fonner spouse should not benefit :fi"om any of the member's post-divorce promotions or pay increases based on length of service after the divorce. These awards were often drafted in such a way that we could not determine the amount of the award. This caused the parties to have to go back to court and obtain a clarifying order. A proposed regulation was issued in 1995 that allowed for (but did not require) the use offormula and hypothetical retired pay awards to divide military retired pay when the parties were divorced prior to the member's becoming eligible to receive retired pay.24 Although this proposed regulation was never finalized, it provided the basis for our review of these types of awards and the basic procedures for computing them. We have refined the procedures since then, and they are now incorporated into Chapter 29 of the DoDFMR, Volume 7B.25 We discuss these procedures below. In addition, we provide examples of acceptable award language below. These examples are also set forth in our sample Military Retired Pay Division Order, which is included as Appendix A to this Instruction, and also included as Appendix A to Chapter 29 of the DoDFMR.26 7 C. Formula awards. A formula award is usually expressed in terms of a marital fraction, where the numerator covers the period of the parties' marriage while the member was performing creditable military service, and the denominator covers the member's total period of creditable military service. The former spouse's award is usually calculated by multiplying the marital fraction by Y2 or 50%. However, the parties can provide a different percentage. Since a formula award works out to a percentage of disposable retired pay, we consider it to be a type of percentage award, and as such it would automatically include a proportionate share of the member's COLAs.n 27 DoDFMR. Volume 78, Subparagraph 29060l.C. 28 DoDFMR, Volume 78, Subparagraph 290607.8. If the court order provides a variable that is incorrect, the parties need to get the variable corrected by the court. We cannot change a number specifically stated in the order. If a comt order provides a formula award and also provides all the variables necessary to compute the formula, we will complete the calculation as is using those variables provided in the order. If the order provides a percentage award, and also states the formula the court used to determine the percentage, we will set up the percentage as provided in the order regardless of how the court determined it. The following comments pertain to cases where the court order uses a formula award that requires us to provide a variable before completing the computation. 1. For members qualifying for an active duty retirement, the numerator of a marital fraction is usually the total period of time from marriage to divorce or separation while the member was performing creditable military service. If the court order requires us to compute a fonnula award dividing an active duty retirement, then the court order must provide us with the numerator of the fraction, expressed in terms of whole months.zs If the numerator is expressed in terms of years or days, we will convert it to months by rounding down to the nearest whole month, and dropping any odd days or partial months. Failing to provide the number to be used in the numerator will cause the court order to be rejected. We will supply the denominator in terms of whole months of creditable service for multiplier purposes, and then work out the fommla to determine the former spouse's award as a percentage of disposable retired pay. We will carry out all computations to six decimal places. Example 2. The following language is an example of an acceptable way to express an active duty formula award: "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying _ _% times a fraction, the numerator of which is _ __ months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service." 8 For example, assume that the parties' marriage lasted exactly 12 years (or 144 months) during the member's military service. If the parties have agreed to use 50% as the percentage element ofthe formula, assume that the active duty formula award is "50% times a fraction, the numerator of which is 144 months divided by the member's total number of months of creditable military service." If the member serves for a total of25 years (or 300 months) and then retires, then the former spouse would receive Yz x (144/300) = 24.0000% of the members disposable retired pay. 2. If the comi order provides a formula award to divide a reserve retirement, then the court order must provide us with the numerator of the marital fraction, expressed in terms of reserve retirement points earned during the marriage.29 For such orders, failing to provide the numerator expressed as reserve points earned during the marriage will cause the court order to be rejected. We will supply the member's total reserve retirement points for the denominator, and carry out the computation to six decimal places. 29 ld. 30 DoDFMR, Volume 7B, Subparagraph 290601.C. 31 DoDFMR, Vol. 7B, Paragraph 030102. 32 ld. at Subparagraph 030102.0. Example 3. The following language is an example of an acceptable way to express a reserve retirement formula award. "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying _ _ % times a fraction, the numerator of which is _ __ reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned." D. Hypothetical retired pay awards. (1) Introduction. A hypothetical retired pay award (or hypothetical award) is an award expressed as a percentage of a hypothetical retired pay amount that is different from the member's actual retired pay. If the court order uses a hypothetical award, it is usually figured as if the member had retired on the date of separation or divorce. Some jurisdictions use hypothetical awards to divide military retired pay. A hypothetical award does not give the former spouse the benefit of any of the member's pay increases due to promotions or increased service time after the divorce. Since a hypothetical award also works out to a percentage of disposable retired pay, hypothetical awards are a type of percentage award, and as such would automatically include a proportionate share of the member's COLAs.3o The basic method for computing military retired pay is to multiply the member's retired pay base times the retired pay multiplier.3l The standard retired pay multiplier is the product of two and one- half percent (i.e., .025) times the member's years of creditable service.32 For example, the retired pay multiplier for an active duty member who serves 20 years will be 50% (.025 x 20 =50%); the retired pay multiplier for an active duty member who serves 25 years will 9 be 62.5% (.025 x 25 = 62.5%) The years of creditable service for a reservist are computed by dividing the reserve retirement points on which the award is to be based by 360.33 33 ld. at Subparagraph 01030LF. 341d. 351d. at Subpamgraphs 030102.A through C. 36 !d. at Subparagraph 030 I OS.C. 37 ld. at Subparagraph 030109.A. Additionally, for members who entered military service on or after August 1, 1986, who are under the age of 62, and who elect to participate in the CSB/REDUX retirement system, their retired pay multiplier is reduced one percentage point for each full year of service less than 30, and 1!12th of one percent for each full month.34 Their retired pay is recomputed using the standard multiplier when the member attains age 62. For members entering military service before September 8, 1980, the retired pay base is the member's final basic pay. This figure would be determined by the pay table in effect at the time of retirement, and would be based on the member's rank and years of service for pay purposes.35 For members entering military service after September 7, 1980, the retired pay base is the average of the member's highest 36 months of basic pay.36 This is known as the high-3 amount. This will usually be the last 36 months prior to retirement. The retired pay computation is rounded down to the next lower multiple of$1.37 For example, $1,501.75 would be rounded down to $1,501. A hypothetical retired pay amount is computed the same way as a member's actual military retired pay, but based on variables that apply to the member's hypothetical retirement. The necessary variables are shown as blanks in the following examples of acceptable award language. The principal problem we find with hypothetical awards is that one or more of the necessary variables for the hypothetical retired pay computation are often left out of the court order. Therefore, to be able to compute a hypothetical award, these variables must be provided to us in the applicable court order. Failure to do so will cause the court order to be rejected because we cannot compute the award. For members entering military service before September 8, 1980, the hypothetical retired pay base is generally the member's basic pay at the hypothetical retirement date. Parties can obtain the basic pay amounts by looking at the military basic pay tables. Basic pay tables are available at the DFAS Web site at www.dfas.mil/militarypay/militarypaytables.html. Attorneys should be able to obtain the basic pay figure either from the member or from the applicable pay table. For members entering military service after September 7, 1980, the hypothetical retired pay base would normally be the average of the member's highest 36 months ofbasic pay prior to the hypothetical retirement date. This information is specific to each member. The pay information can be obtained from either the member during discovery or from his pay center by subpoena. The Garnishment Operations Directorate does not have access to this pay information. It must be included in the court order dividing military retired pay. 10 For members who elect to retire under the CSB/REDUX retirement system, we will compute the member's hypothetical retired pay amount using the standard retired pay multiplier, and not the reduced CSB/REDUX multiplier, unless the court order directs us to do otherwise. Thus, the former spouse's award will n01mally not be reduced as a result of the member's electing to receive a Career Status Bonus (CSB) and a reduced retired pay amount. The hypothetical retired pay amount is a fictional computation, in that the member often does not have the required 20 years of creditable service necessary to be eligible to receive retired pay on the date his or her retired pay is divided. Hence, we are computing a retired pay amount as if the member would have been eligible to retire on that date .. Also, a member who retires with less than 20 years of creditable service may have a reduction factor applied to his or her retired pay computation.3s (This reduction factor is completely different than CSB/REDUX factor listed above.) But the only time we would apply a reduction factor to the hypothetical retired pay calculation is if a reduction factor was actually used to compute the member's militmy retired pay. In that case, we would apply the same reduction factor to both computations. 38ld. at Subparagraph 030110.A. 39 Sec DoD Report to Congress Concerning Federal Fonner Spouse Protection Laws. page 72, dated September 5, 2001, available at http://prhome.defense.gov/spouscrev.html. 40 Sec DoDFMR, Vol. 78, Chapter 8, Subchapter 0804. (2) Example of a hypothetical retired pay calculation. We will convert all awards of a percentage of a hypothetical retired pay amount into a percentage of the member's actual disposable retired pay according to the following method. (a) First, we will calculate the hypothetical retired pay amount. Assume that the court order awarded the former spouse 25% of the retired pay of an E-6 with a retired pay base of $2,040 and with 18 years of service retiring on June 1, 1999. The member actually retires on June 1, 2002. The member's hypothetical retired pay multiplier would be computed as: .025 x 18 years of service= .45 (or 45%). His hypothetical retired pay would be .45 x $2,040 (retired pay base) = $918.00. (b) Next, unless the court order directs otherwise, we will apply retired pay cost-of-living-allowances (COLAs) to the hypothetical retired pay amount up to the member's actual retirement date to find a "present value" ofthe hypothetical retired pay as of the member's actual retirement date. The addition of the COLAs does not result in the former spouse benefiting from the member's additional service time or promotions after the hypothetical retirement date. It simply provides the former spouse with the COLA amount he or she would have received had the member actually become eligible to receive retired pay on the hypothetical retirement date.39 In our example, the member would have been eligible for the following COLAs had he retired on June I, 199940: December 1, 1999 1.7% $918.00 x 1.017 = $933.00 11 December 1, 2000 3.5% $933.00 x 1.035 = $965.00 December 1, 2001 2.6%$965.00 x 1.026 = $990.00. Thus, if the member had retired on the hypothetical retirement date (June 1, 1999), his hypothetical retired pay would have been worth $990.00 per month at the time he actually retired on June 1, 2002. (c) We will then convert the former spouse's award to a percentage of the member's actual disposable retired pay by multiplying the percentage awarded the former spouse times a fraction. The member's hypothetical retired pay is the numerator of the fraction, and the member's actual retired pay is the denominator. In our example, assume that the member later retired on June 1, 2002, as an E-7 with a retired pay base of $3,200.40 and 23 years of creditable service. The member's actual retired pay multiplier would be .025 x 23 years= .575. His gross retired pay would be .575 x $3,200.40 = $1,840.00. The court order awarded the former spouse 25% of the retired pay of an E-6 with a retired pay base of $2,040 and with 18 years of service retiring on June I, 1999. However. the former spouse's actual award percentage would be: 25% times $990/$1,840 = 13.4510%. We would set up 13.4510% in the retired pay system. While the percentage has been reduced from 25% to 13.451 0%, the amount the former spouse would receive is the amount intended by the court. This is because the lower percentage would be multiplied times the higher dollar amount of the member's actual disposable retired pay. For example, in this case assume that the member's disposable retired pay is equal to his gross retired pay. Twenty-five percent of$990 is $247, which equals 13.4510% of$1,840. The retired pay system would apply 13.4510% to the member's actual disposable retired pay each month to determine the amount the former spouse receives. The former spouse would automatically receive a proportionate share ofthe member's cost of living adjustments (COLAs).4I 41 See DoDFMR, Vol. 7B, Paragraph 29060LC. 42 DoDFMR, Vol. 7B, Subparagraph 03011 LB. For CSB/REDUX members, we would compute the former spouse's initial percentage using the member's reduced retired pay amount as the denominator of the fraction. We would implement this percentage in the retired pay system effective through the month the member attains age 62. We would also calculate the former spouse's percentage using the retired pay amount the member would have received had the member not elected CSB/REDUX. We would also set this lower percentage up in the retired pay system effective on the first day of the month after the member attains age 62, which is also the effective date of the re-computation of the member's retired pay to the amount the member would have received had the member not elected CSB/REDUX.42 This adjustment prevents the former spouse from receiving more than the amount intended in the court order. (3) Examples of active duty hypothetical awards. The following are examples of acceptable active duty hypothetical awards. 12 Example 4. The following language is acceptable for all active duty members, regardless of service entry date. "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired with a retired pay base* of$ (dollar amount) and with years of creditable service on " *The retired pay base is a base pay figure. As noted on page 9 above, the retired pay base is the final basic pay at retirement for members entering military service before September 8, 1980, and the "high-3" amount for member's entering military service on or after September 8, 1980. Example 5. If a member entered military service before September 8, I 980, the following language is also acceptable because we can determine the member's retired pay base by simply looking at the pertinent military pay table. "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired with the rank of and with - - - years of creditable service on " The court order may direct us to calculate a hypothetical retired pay amount using the pay tables in effect at the time the member becomes eligible to receive military retired pay instead of the pay table in effect at the time the court divides military retired pay. If this is the case, then the court order dividing an active duty member's military retired pay must provide us with: 1) the percentage awarded the former spouse, 2) the member's rank to be used in the calculation, and 3) the years of creditable service to be used in the calculation. We will make the hypothetical retired pay calculation using the basic pay figure from the pay table in effect at the member's retirement for the rank and years of service given in the court order, regardless of whether the member entered military service before September 8, 1980, or on or after September 8, I 980. Example 6. The following language is an example of an acceptable active duty hypothetical award based on the pay tables in effect at the member's retirement. "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of ____ and with years of creditable service." (4) Examples of reserve hypothetical awards. The following are examples of acceptable reserve hypothetical awards. Example 7. The following language is acceptable for all reserve members, regardless of service entry date. 13 "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of$(dollar amount) and with reserve retirement points on _ _ _ " Example 8. The following language is also acceptable for reservists who entered military service before September 8, 1980. "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on - - - - - - with the rank of , with reserve retirement points, and with _ _ _ years of service for basic pay purposes." If the court order directs us to calculate a hypothetical retired pay amount using pay tables in effect at the time the member becomes eligible to receive retired pay, the court order must provide us with: 1) the percentage awarded the former spouse, 2) the member's rank to be used, 3) the reserve retirement points to be used, and 4) years of service for basic pay purposes. We will make the hypothetical retired pay calculation using the basic pay figure from the pay tables in effect at the member's retirement for the rank and years of service given in the court order, regardless of whether the member entered military service before September 8, 1980, or on or after September 8, 1980. Example 9. The following language is an example of an acceptable reserve hypothetical award based on the pay tables in effect at the member's becoming eligible to receive military retired pay. "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date he [or she] attained age 60, with the rank of , with reserve retirement points, and with years of service for basic pay purposes." E. Examples of unacceptable former spouse award language. Problems with award language usually occur when the parties are divorced prior to the member's becoming eligible to receive military retired pay. The examples given below represent common mistakes we see in court orders attempting to divide military retired pay. (1) "The former spouse is awarded one-half of the community interest in the member's military retired pay." Here, we are not told how to calculate the community interest. Nor are we provided with any of the variables necessary to make such a calculation using either a formula or hypothetical retired pay award. 14 (2) "The former spouse is awarded one-half of the member's military retirement that vested during the time ofthe marriage." Military retired pay is a federal entitlement, which a member either qualifies for or does not. It does not vest in any way prior to the member's retirement. As with the above example, we are not provided with any information as to how to calculate the amount of the f01mer spouse's award. (3) "The former spouse is awarded one-half of the accrued value of the member's military retirement benefits as ofthe date ofthe divorce." This example is similar to example (2) above. As with example (2), since military retired pay is a statutory entitlement, it has no accrued value prior to the member retiring. Again, we are not provided with any information as to how to calculate the amount of the former spouse's award. (4) "The former spouse shall be entitled to 42% of the member's military retirement based on the amount he would have received had he retired as of the date of the divorce." This appears to be intended as a hypothetical award, but it does not provide us with any of the variables needed to calculate a hypothetical retired pay amount. Since we do not have access to the member's military service information, there is no practical way for us to obtain the needed information ourselves. (5) "The former spouse is awarded a portion of the member's military retired pay calculated according to the Bangs formula." Here, the court order presumes that we are familiar with that State's laws and know what the Bangs formula is. We are not able to research individual cases to resolve ambiguities in court orders. Also, the court order does not provide us with any of the necessary variables. (6) "The former spouse is awarded an amount equal to 50% of the member's disposable retired pay less the amount of the Survivor Benefit Plan Premium." The amount of the former spouse's award must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay, or as an acceptable formula or hypothetical award. This award does not meet that requirement. However, if the court order awarded the former spouse 50% of the member's disposable retired pay, but then later in the order it stated that the amount of the Survivor Benefit Plan (SBP) premium would be deducted from the former spouse's share, we could honor the case at 50%. The provision concerning the SBP premium would be unenforceable since Federal law provides that the SBP premium must be deducted from the member's retired pay.43 43 10 U.S.C. § 1452(a)(l); DoDFMR, Vol. 7B, Paragraph 450601. F. Correcting deficient awards. 15 If we are not able to determine the amount of the former spouse's award from the information provided in the court order, the former spouse has two alternatives. One alternative is for the former spouse to obtain a new court order clarifying the former spouse's retired pay as property award by expressing it in an acceptable manner. The other alternative is for the former spouse to provide us with any missing inforn1ation by submitting a notarized agreement with the required information signed by both the fonner spouse and member.44 If the parties wish, they may provide us with the fixed dollar amount or percentage of disposable retired pay the former spouse is to receive. We are including our standard notarized agreement form as Appendix B of this Instruction for that purpose. The parties may want to consult their attorneys before executing any such agreement in lieu of a clarifying order. 44 DoDFMR, Vol. 7B, Subparagraphs 290607.8. and 29060S.E. IV. AC.KJ.'lOWLEDGEMENT.

This handout is prepared by the Garnishment Operations Directorate, Defense Finance and Accounting Service, Cleveland Center. It may be freely circulated, but not altered without pem1ission. Revised January 29, 2012. 16 APPENDIX A STATE OF _ _ _ _ _ _ COURT OF _ _ _ _ _ __ COUNTY OF CASE No. - - - - -

PETITIONER MILITARY RETIRED PAY DIVISION ORDER

RESPONDENT THIS CAUSE CAME BEFORE THE UNDERSIGNED JUDGE UPON THE PETITIONER/RESPONDENT'S CLAIM FOR A DISTRIBUTION OF THE RESPONDENT/PETITIONER'S MILITARY RETIRED PAY BENEFITS. THE COURT MAKES THE FOLLOWING: FINDINGS OF FACT: 1. The Petitioner's Social Security Number is - - - - - - and current address is

2. The Respondent's Social Security Number is _ _ _ _ _ _ and current address is

3. The Parties were married on . Their marital status was terminated on - - - - - pursuant to a(n) entered in County, State of ----- . This current order is entered incident to the aforementioned order.

4. The parties were married for a period often or more years during which time the Petitioner/Respondent performed at least ten years of creditable military service.

5. If the military member was on active duty at the time of this order, Respondent/Petitioner's rights under the Servicemembers' Civil Relief Act, 50 U.S.C App. 501-548 and 560-591, have been observed and honored.

6. This court has jurisdiction over the Respondent/Petitioner by reason of [choose those that apply] (A) his or her residence, other than because of military assignment, in the territorial jurisdiction of the court, during the [divorce, dissolution, annulment, or legal separation] 17 proceeding, (B) his or her domicile in the territorial jurisdiction of the court during the [divorce, dissolution, annulment, or legal separation] proceeding, or (C) his or her consent to the jurisdiction of the court.

CONCLUSIONS OF LAW: 1. This court has jurisdiction over the subject matter of this action and the parties hereto.

2. Petitioner/Respondent is entitled to a portion of Respondent/Petitioner's United States military retired pay as set forth herein.

IT IS THEREFORE ORDERED THAT: [Choose and complete one of the following. Blanks in the examples represent numbers that must be provided to us in the comt order. Please note that all awards expressed as a percentage of disposable retired pay, including fommla hypothetical awards, will automatically include a proportionate share ofthe member's cost-of-living adjustments (COLAs) unless this order states otherwise. Also, hypothetical retired pay amounts will be adjusted for all retired pay COLAS from the hypothetical retirement date to the member's actual retirement date, unless this order states otherwise.] [Retired member] "The former spouse is awarded_ percent [or dollar amount per month] of the member's disposable military retired pay." [Active duty formula] "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service." [Reservist formula] "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned." [Active duty hypothetical calculated as of time of division, for all members regardless of service entry date] "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired with a retired pay base of$ and with years of creditable service on " [Active duty hypothetical calculated as of time of division; may only be used for members entering service before 911/80] "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired with the rank of and with years of creditable service on ." 18 [Active duty hypothetical calculated as of member's actual retirement date "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of and with - - - years of creditable service." [Reservist hypothetical calculated as of time of division, for all members regardless of service entry date] "The former spouse is awarded _ _% of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of$ and with reserve retirement points on " [Reservist hypothetical calculated as of time of division; may only be used for members entering service before 911/80] "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on _ _ _ _ _ _, with the rank of , with reserve retirement points, and with _ _ _ years of service for basic pay purposes." [Reservist hypothetical calculated as of the date the member becomes eligible to receive retired pay] "The former spouse is awarded _ _ % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date he [or she] attained age 60, with the rank of , with reserve retirement points, and with years of service for basic pay purposes." This day of , 200 _

JUDGE 19 APPENDIXB NOTARIZED STATEMENT OF THE PARTIES CLARIFYING THE COURT ORDER DIVIDING MILITARY RETIRED PAY WE, THE UNDERSIGNED, MUTUALLY AGREE TO DIVIDE THE MILITARY RETIRED PAY, AS PROPERTY, IN THE FOLLOWING MANNER. THIS AGREEMENT CLARIFIES THE FINAL COURT ORDER ENTERED ON

DATE OF COURT ORDER AND NMIE/LOCATION OF COURT

THE FORMER S P O U S E , - - - - - - - - - - - - - - - - - - - - - IS ENTITLED TO RECEIVE: NAME OF NON-MILITARY SPOUSE

----------- /o OF MEMBER'S DISPOSABLE MILITARY RETIRED PAY. 0

PERCENTAGE OR $ ----------------- PAID MONTHLY FROM THE MEMBER'S DISPOSABLE RETIRED PAY. SPECIFIC AMOUNT

THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS IRREVOCABLE EXCEPT BY SUBSEQUENT COURT ORDER. THEY ALSO AGREE THAT THE DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS) WILL MAKE PAYMENTS DIRECTLY TO THE FORMER SPOUSE FROM THE MEMBER'S DISPOSABLE RETIRED PAY. THE PARTIES ALSO UNDERSTAND THAT COST OF LIVING INCREASES (COLAS) CAN ONLY BE MADE ON AWARDS EXPRESSED AS A PERCENTAGE. COLAS CANNOT BE MADE ON AWARDS EXPRESSED AS A SPECIFIC AMOUNT.

MEMBER FORMER SPOUSE MEMBER'S SOCIAL SECURITY NUMBER: _ _ _ _ _ _ _ _ _ _ 20 BEFORE ME APPEARED, AND SHOWING PROOF OF IDENTIFICATION (BY DRIVER'S LICENSE/GOVERNMENT/MILITARY ID) AND SIGNED HIS/HER NAME AT THE PLACE INDICATED ABOVE. SWORN BEFORE ME THIS DAY OF ---------------------

NOTARY PUBLIC

BEFORE ME APPEARED, AND SHOWING PROOF OF IDENTIFICATION (BY DRIVER'S LICENSE/GOVERNMENT/MILITARY ID) AND SIGNED HIS/HER NAME AT THE PLACE INDICATED ABOVE. SWORN BEFORE ME THIS DAY OF

NOTARY PUBLIC PPE D 0.

\•~ l~ ~ b ~·~~ t..Y AT

THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 TEXAS RULES OF CIVIL PROCEDURE GENERAL RULES TRCP 10- 11

that the party approves the substitution; and that filled'; and the representation 'will result in an unrea- is not sought for delay only. If another at- sonable financial burden on the lawyer or has been ren- is not to be substituted as attorney for the party, dered unreasonably difficult by the client."' motion shall state: that a copy of the motion has Sims v. Fitzpatrick, 288 S.W.3d 93, 100 (Tex. delivered to the party; that the party has been no- App.-Houston [1st Dist.] 2009, no pet.). "A court in writing of his right to object to the motion; abuses its discretion when it grants a motion to with- ,the party consents to the motion; the party's draw that does not comply with the mandatory require- known address and all pending settings and dead- ments of rule 10. However, 'such error may be harmless If the motion is granted, the withdrawing attorney if the court allows the party time to secure new counsel immediately notify the party in writing of any ad- and time for the new counsel to investigate the case settings or deadlines of which the attorney has and prepare for trial."' See also Gillie v. Boulas, 65 at the time of the withdrawal and has not at- S.W.3d 219,221 (Tex.App.-Dallas 2001, pet. denied). notified the party. The Court may impose further TRCP 11. AGREEMENTS TO s upon granting leave to withdraw. Notice or BE IN WRITING to a party shall be either made to the party in Unless otherwise provided in these rules, no agree- or mailed to the party's last known address by ment between attorneys or parties touching any suit certified and regular first class mall. If the attorney pending will be enforced unless it be in writing, signed withdraws and another attorney remains or and filed with the papers as part of the record, or unless substituted, another attorney in charge must it be made in open court and entered of record . ..... ,, 5 uaL~-u of record with notice to all other parties in History ofTRCP 1!: Amended eff.Jan. 1, 1988, by order of July !5, 1987 with Rule 2la. (733-34 S.W.2d [Tex. Cases] xxxvii): Amendment clarified that TRCP II is sub- ject to modification by any other rule of Civil Procedure. Adopted eff. Sept. I, History ofTRCP I0: Amended eff. Sept. 1, 1990, by order of Apr. 24, 1990 1941, by order of Oct. 29, 1940 (3 Tex.B.J. 526 [1940]). Source: Tex. Rules for S.W.2d [Tex.Cases] xxxv): Rewrote rule; repealed present rule; and Dist. & Cty. Cts. 47. reouirert1entsforwithdrawal. Amended eff. Jan.], 1988, by order of July S.W.2d [Tex. Cases] xx.xvii): Rep~aled present rule; set forth re- See TRCP 191.1 (agreements in discovery matters); Commentaries, nt< f,nrwiithnr·awal of counsel and wilhdrawal with substitution of coun- "Agreements Between Attorneys- Rule II," ch. 1-H, §9, p. 72; "Settlement of ed forward requirements of amended TRCP 8 regarding designa- the Suit," ch. 7-1, p. 717; O'Connor's Texas Forms, FORM 1H:13. in charge. Adopted eff. Sept. 1, 1941, by order of Oct. 29, 1940 (3 ANNOTATIONS [ 1940]). Source: Tex. Rules for Dist. & Cty. Cts. 46. In re Vaishangi, Inc.; 442 S.W.3d 256, 25~ (Tex. 2014). "We have generally.treated Rule 11 agreements ANNOTATIONS as separate and distinct from agreed judgm~s en- v. Clinton, 794 S.W.2d 9, 10 n.l (Tex.1990). tered thereon. But nothing in the [TRCPs] prohibits a a client may discharge his attorney at any Rule 11 agreement from being, itself, an agreedjudg- even without cause, an attorney may withdraw ment, so long as the agreement meets the require- representation of a client only if he satisfies the ments for a final judgment. At 260: Althol,lgh fact issues ~um~mer1ts of [TRCP]lO." about the scope and terms of the Rule 11 agreement Hn~'t'i.142 S.W.3d 302,305 (Tex. v"'IJ""""'u without material adverse effect on the in- 2004). "A Rule 11 Agreement between the parties, in of the client'; the client 'fails substantially to ful- and of itself, is not a plea, pleading, or motion. At 306: an obligation to the lawyer regarding the lawyer's [W) hile filing a Rule 11 Agreement with the trial court , including an obligation to pay the lawyer's fee is a requirement for enforcement, it is not in and of it- ""''Hl"'"n and has been given reasonable warning that self a request for enforcement or any other affirmative lawyer will withdraw unless the obligation is ful- action by the trial court."

O'CONNOR'S TEXAS RULES 907 TEXAS RULES OF CIVIL PROCEDURE GENERAL RULES TRCP 11 - 13

Compania Financiara Libano, S.A. v. Simmons, *------------------ defended without authority, cause the attorney 53 S.W.3d 365,368 (Tex.2001). Asettlement agreement cited to appear before the court and show his is enforceable as a contract even if its terms are not in- to act. The notice of the motion shall be served corporated into the judgment. challenged attorney at least ten days before the Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. on the motion. At the hearing on the motion, the 1995). "The ... filing requirement [in TRCP 11] is sat- den of proof shall be upon the challenged isfied so long as the agreement is filed before it is show sufficient authority to prosecute or sought to be enforced." suit on behalf of the other party. Upon his Coale v. Scott, 331 S.W.3d 829, 831-32 (Tex.App.- show such authority, the court shall refuse to Amarillo 2011, no pet.)." [T]he trial court's authority to the attorney to appear in the cause, and shall approve a Rul~ 11 agreement does not depend upon pleadings if no person who is authorized to whether it has [plenary] jurisdiction. It may enforce a or defend appears. The motion may be heard and Rule J:l agreement touching upon the suit executed af- mined at any time before the parties have ter the cause was tried and finally resolved via judg- ready for trial, but the trial shall not be ututcn:ssa ment. [~] settlement agreement ... executed while the continued or delayed for the hearing. History ofTRCP 12: Amended eff.Jan. I, 1981, by order of June partieS"were attempting to sway the trial court to en- (599-600 S.W2d [Tex. Cases) xxxiv): Changed rule to permit · force it~ judgment logically 'ralls within the scope of tiffs attorney, so that all attorneys are subject to a challenge that court without authority. Adopted eff. Sept. I, 1941, by order of Oct. 'any suit pending' for purposes of Rule II. [1!] [Party Tex.B.J. 526 [1940]). Source: TRCS art. 320 (repealed), minor argued] that the Rule 11 agreement was unenforceable and added requirement that notice be served at least ten days before the motion. because they allegedly withdrew their consent to it be- See Commentaries, "The Attorney," ch. 1-H, p. 62; O'Connor's fore the trial court ordered its enforcement. We dis- Forms, FORMS IH:S-10. agree. [1!] Rule 11 requires that the agreement be filed ANNOTATIONS

of record before the court may enforce it. If the accord In re Users Sys. Servs., 22 S.W.3d 331, 335 is in writing, signed by the parties or their attorneys, 1999). "[T]he procedure prescribed by Rule 12 and filed of record, it does not matter whether a party quiring an attorney to show his authority to act no longer agrees to it when the trial court is finally party presupposes the possibility that an attorney asked to enforce it. This is so because the agreement be counsel of record for a party he is not becomes a contract when executed, not when the trial represent. The [TRCPs] contemplate that court attempts to enforce it." See also Staley v. Herb- tion may not have existed or may cease before the lin, 188 S.W.3'd 334, 336 (Tex.App.-Dallas 2006, pet. ney has withdrawn from the case." denied) (Rule 11 agreement can be enforced as con- In re Guardianship ofBenavides, 403 S.W.3d tract if one party withdraws consent before judgment is 374 (Tex.App.-San Antonio 2013, pet. denied). rendered, but party seeking enforcement must pursue general rule, an order on a rule 12 motion is an separate breach-of-contract claim subject to normal locutory order that is not appealable until it is rules of pleading and proof). into a final judgment. Nevertheless, probate and ExxonMobil Corp. v. Valence Oper. Co., 174 ianship proceedings are often exceptions to the S.W.3d 303, 309 (Tex.App.-Houston [1st Dist.] 2005, nal judgment' rule." pet. denied). "A trial court has a ministerial duty to en- Air Park-Dallas Zoning Cmte. v. force a valid Rule II agreement. [,[] However, it is not ley Airpark, Ltd., 109 S.W.3d 900, 906 sufficient that a party's consent to a Rule II agreement Dallas 2003, no pet.)." [A] Rule 12 motion may be may have been given at one time; consent must exist at erly brought when a new and different attorney the time that judgment is rendered." See also Baylor tempts to appear as attorney of record purporting to Coli. of Med. v. Camberg, 247 S.W.3d 342, 346 (Tex. vance a motion for new trial after the trial has App.-Houston [14th Dist.]2008, pet. denied). eluded." TRCP 12. ATTORNEY TO SHOW TRCP 13. EFFECT OF SIGNING AUTHORITY PLEADINGS, MOTIONS & OTH Aparty in a suit or proceeding pending in a court of PAPERS; SANCTIONS this state may, by sworn written motion stating that he The signatures of attorneys or parties ~'~'"''"'"w believes the suit or proceeding is being prosecuted or certificate by them that they have read the

PPE D 0. 5

~ akob THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 FAMILY CODE-TITLE 1 CHAPTER 9. POST•DECREE PROCEEDINGS §§9.006 - 9.007

Ex parte Gorena, 595 S.W.2d 841, 844 (Tex.l979). *------------------- judgment is vague and unenforceable, nor is there any "Despite the fact that a judgment has its genesis in an authority which suggests that an enforcement action is agreement between the parties, the judgment itself has a prerequisite to raising a complaint on appeal." an independent status. Once the agreement of the par- Sharman v. Schuble, 846 S.W.2d 574, 575 (Tex. ties has been approved by the court and made a part of App.-Houston [14th Dist.] 1993, orig. proceeding). its judgment, the agreement is no longer merely a con- "The divorce decree stated that the net proceeds from tract between private individuals but is the judgment of the sale would be distributed equally to the parties 'at the court. [, 1 'The fact that a judgment is rendered by the time of closing.' [The] trial [court lacks] the au- consent gives it neither less nor greater force or effect thority to change the property division contained in a than it would have had it been rendered after pro- final divorce decree. By retaining possession of these tracted litigation .... ' Thus, in suits to enforce agreed funds, the trial court has clearly departed from the judgments, parties may not raise contractual defenses terms of the divorce decree. At 576: By retaining the because such defenses constitute impermissible collat- proceeds in the registry, the trial court has effectively eral attackS' on the prior judgments." attached the relator's property. Awrit of attachment is Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex. generally unavailable in claims for unliquidated debts. App.-Cof}lns·Christi 2000, no pet.). "[T1he ... Family . .. The trial court abused its discretion by refusing to Code provides at least two c.ircum!5tances in which the distribute these funds in accordance with the terms -of trial court may issue orders clarifYing [a divorce l de- the divorce decree." cree. [, ] Under [Fam. Code] §9.006 ... , the court may Bowden v. Knowlton, 734 S.W.2d 206, 208 (Tex. render 'further orders to enforce the division of prop- App.-Houston [1stDist.jl987, no writ). "[A] divorce erty made in the decree of divorce ... to assist in the court may impose an equitable lien against the property implementation of or to clarify the prior order.' The of a spouse to secure that•spouse's obligation to pay a court may specify more precisely the manner of effect- monetary award that represents the consideration for ing the property division previously made if the sub- the other spouse's relinquishment of his or her interest stantive division of property is not altered or changed. in the marital estate. Indeed, it has been held that a The trial court may also clarify the decree [under Fam. vendor's lien arises by implication when one spouse Code §9.0081 on a finding by the court that the original agrees to pay a sum of money as consideration for the form of the division of property is not specific enough other spouse's interest in a particular piece of property. to be enforceable by contempt. [, 1 [W1 alleges that the We hold that the trial ,court had the authority, in aid of trial court erred by-finding that the divorce decree's di- the enforcement of its monetary award, to impose a vision of property was not specific enough to be en- lien on [H's] residence." forceable by contempt. We disagree with [W] that the FAM §9.007. LIMITATION ON POWER trial court made such an implied finding, and we do not OF COURT TO ENFORCE agree that such a finding is required under §9.006 .... " (a) Acourt may not amend, modify, alter, or change Kimsey v. Kimsey, 965 S.W.2d 690, 694-95 (Tex. the division of property made or approved in the decree App.-El Paso 1998, pet. denied). "When a divorce de- of divorce or annulment. An order to enforce the divi- cree is not a consent decree or agreed judgment, the sion is limited to an order to assist in the implementa- normal rules applicable to the construction of judg- tion of or to clarify the prior order and may not alter or ments apply to its interpretation. Thus, where a decree change the substantive division of property. is unambiguous, the trial court has no authority to (b) An order under this section that amends, modi- issue an order altering or modifying the original dispo- fies, alters, or changes the actual, substantive division sition of property. If the property division in the original of property made or approved in a final decree of di- divorce decree is ambiguous, however, or not specific vorce or annulment is beyond the power of the divorce enough to be enforceable by contempt, the court may court and is unenforceable. enter a clarifying order to enforce compliance with the (c) The power of the court to render further order..s original division of property. While the Family Code au- to assist in the implementation of or to clarify the prop• thorizes the trial court to clarify its judgment, it does erty division is abated while an appellate proceeding is not prohibit our review of [W's] complaints that the pending. FAMILY CODE-TITLE 1 CHAPTER 9. POST-DECREE PROCEEDINGS §9.007

.;.,:..---------·----------- §9.007: Acts 1997, 75th Leg., ch. 7, §I, eff. Apr. 17, est only in the plan benefits that had accrued on the Code §3.71. date of divorce. At 449: [W]e must enforce the decree A:NNOTATIONS as written ... even though it conflicts with Taggart [v. Fillingim, 332 S.W.3d 361, 363 (Tex. Taggart, 552 S.W.2d 422 (Tex.l977)]. At 449 n. 7.· [W1 e that renders a divorce decree re- disagree ... that the phrase 'if, as, and when received' to clarify and enforce the property di- is a term of art evidencing an intent to value a pension decree. If a decree is ambiguous, that plan at the time of receipt rather than at the time of di- a clarification order. [But an unam- vorce .... The term ... reflects the contingent nature of finalizing a divorce and dividing the community's interest in the retirement benefits bars relitigation of the property divi- and not necessarily the value of that interest." (Internal decree incorrectly characterizes or di- quotes omitted.) See also Reiss v. Reiss, 118 S.W.3d " See also In re M.M. III, 357 S.W.3d 439, 442 (Tex.2003). ..11u•'·-·"'' Paso 2012, no pet.) (court could Everett v. Everett, 421 S.W.3d 918, 921 (Tex. unambiguous decree even though it App.-EI Paso 2014, no pet.). "[H] contends the trial separate property to W); Cox v. Carter, court exceeded the permissible scope of a clarifying or- . 1, 366-67 (Tex.App.-Dallas 2004, no der by converting a responsibility for" a community debt enforced decree even though it conflicted into an obligation to pay spousal maintenance. [ ~ ] The federal guidelines). trial court believed that the intent of the decree was for Hagen, 282 S.W.3d 899, 907 (Tex.2009). [W] to receive the additional financial assistance for before us, the [couple's 1 original decree 36-months whether in the form of property tax pay- [W1 amounts 'calculated on' [H's 1 gross, ments or additional spousal maintenance and that its ,.,h,.,m;ant pay before deductions .... The order clarified this intent. However, converting a debt decree plainly entitled [W] only to part of into spousal maintenance is not merely a clarification, military retirement pay [H] received, if, as, it is a change in the substantive division of properly he received it. [S] uch military retirement and cannot be enforced under [§9.007]." include VA disability benefits [that H In re W.L. W., 370 S.W.3d 799, 804-05 (Tex.App.- receive post-divorce in lieu of retirement Fort Worth 2012, orig .• proceeding). "[T]he divorce de- the trial court ... did not modify the [cou- cree's 'residuary clause' purports to devise a·remedy for it only clarified that the decree did not di- properly 'that was not' disclosed or under-vapted in the "'nn.'-'"'-·pay that was or might become payable spreadsheet attached to each party's Inventory and Ap- 908: On the surface, it appears that [H's post- praisement.' [A] ccording to [W's] construction, the el~ction to receive VA benefits has worked an 'residuary clause' operates on an unwritte.n contin- on '[W]. But the language used in divorce de- gency-idling along and irrelevant when [an] asset i!llportant, and we must presume the divorce was disclosed and properly valued In [H's] inventory it carefully .... " and appraisement, but springing into action and 'con- v. Treadway, llO S.W.3d 444,447-48 (Tex. currently' awarding that same asset to [W] if she ·'~1'he [divorce] decree in question identifies proves in a post-judgment action that [H1 failed to dis- plan as arising out of past employment, close the asset or undervalued it in his inventory and states that [W] is entitled to a pro rata interest appraisement. [ ~] [But this clause 1 irreconcilably all sums received or paid to [H] from such conflicts with [the agreement's final asset awards]. plan. The decree also defines pro rata interest At 806-07.· Examining the entire divorce decree, the of the total sum or sums paid or to be paid to only reasonable construction that can be given to the from such pension or retirement plan. [ ~] [T1 he 'residuary clause' as written is that it permits the post- is unambiguous, and [W] should receive 25% of judgment division of previously decree-divided property total retirement benefits.... The fact that the based upon the trial court's findings regarding the thor- value may have increased since the divorce does oughness of one side's inventory and appraisement. affect the decree's plain language, which simply Unquestionably, this violates the family code's express reasonably be construed to award [W] an inter- prohibition on amending, modifying, altering, or O'CONNOR'S TEXAS FAMILY CODE 117 FAMILY CODE-TITLE 1 CHAPTER 9. POST-DECREE PROCEEDINGS §9.007

----------- * ----------- changing a divorce decree's division of property. [W's] over-and-receivership order allowed the receiver to suit is an impermissible collateral attack on the divorce take and to dispose of the property awarded to [W] and decree .... " still in [H's} possession, the order violated §9.007(c)." Garcia v. Alvarez, 367 S.W.3d 784, 787-88 (Tex. See (l[so In re Phillips, 296 S.W.3d 682, 687 (Tex. App.-Houston [14th Dist.]2012, no pet.). "[A]greed App.-El Paso 2009, orig. proceeding) (order to dis• divisions of marital property contained in or incorpo- burse proceeds from sale of marital home during rated into final divorce decrees are treated as contracts dency of appeal was proper ministerial act of '-'11''"'.,._, and their legal force and meaning are governed by the ment); English v. English, 44 S.W.3d 102, 106 law of contracts. The fact that a decree incorporated an App.-Houston [14th Dist.] 2001, no pet.) (trial is restrained from rendering further orders to agreement between the parties, however, does not implementing or clarifYing property division mean that the procedures and enforcement mecha- appeal). nisms provided in [Pam. Code] ch. 9 ... no longer apply or that the trial judge has no ability to fashion an appro- Gainous v. Gainous, 219 S.W.3d 97, 108 App.-Houston [lst Dist.] 2006, pet denied). " priate remedy within its authority. To the contrary, that hold that §9.007 is jurisdictional and that orders chapter makes no such distinction. [1!] In its order of ing its restrictions are void. At Ill: We hold that enforcement, the trial court stated that [ex-H] had vorce decree unambiguously included the DROP 'overpaid .:: in the amount of $3,000' and [ex-W] had ferred retirement option plan] funds in its retained those funds. . . . Ordering the return of the [W]. Because the QDRO precluded [W] from $3,000 that was rightfully [ex-H's] under the agreed any portion of [H's] DROP funds at any time, the property division did not amend, modifY, alter, or impermissibly altered the decree's property change the division of property. The court simply was and was void to the extent that it did so. enforcing the division of property made in the decree QDRO's provision excluding the DROP funds as authorized by the Family Code." [W's] award was void, [W] could properly Sheikh v. Sheikh, 248 S.W.3d 381, 384 (Tex.App.- by collateral attack, and res judicata and Houston [1st Dist.] 2007, no pet.). "We determine not bar her challenge." See also Quijano v. whether the trial court had subject-matter jurisdiction 347 S.W.3d 345, 353-54 to enter ... a turnover-and-receivership order that had Dist.] 2011, no pet.) (QDROs, like other the effect of enforcing the decree's property division enforcement or clarification orders, cannot while [H's] app~al of the underlying divorce decree modifY, alter, or chartge decree's property was pending. At 388: [Section 9.007] deprives the trial Zicker v. Stewart, No. court ofsubject-matter jurisdiction to enter the speci- App.-Austin 2006, no pet.) (memo op.; fied orders during the pendency of an appeal. [ ~ J Sec- ily Code §9.007 "must be read in tion 9.007 (c) 'is directed at the power of the court, not [TRCP] 306a and 329b. [ ~ J Thus, although the obligations and responsibilities of the parties.' .. . clearly prevents the modification of a decree Because it is directed solely at the court's power, .. . become final, it does not prohibit a district §9.007 (c) 'does not stay, supersede or otherwise inhibit exercising its plenary power to modify the the finality of the [divorce J decree, absent a super- within 30 days of signing the judgment. sedeas bond.' [ 111 Prohibited orders 'assist[ing] in the modified judgment in this case was issued implementation of the decree's property division en- week of the original decree, during which compass orders to enforce the property division that go court maintained its plenary powers, the beyond the ministerial act of execution. Aturnover or- did not violate §9.007. [11] The waiver of der is a species of post-judgment enforcement order. It [W] signed in relation to the filing of [H's] is the type of enforcement order that goes beyond the titian was not effective to remove her ministerial act of execution. At 391-92: Because [trial notified of the pending modification." See court] had jurisdiction to enforce the unsuperseded tenot v. Fontenot, No. 09-02-00019-CV monetary judgment against [H], the trial court had Beaumont 2002, no pet.) (memo op.; subject-matter jurisdiction to enter the turnover-and- does not apply to correction of clerical receivership order. However, to the extent that the turn- ment nunc pro tunc).

pp D 0. 6

b THE HISTORIC MILAM BUII.DING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 FAMILY CODE-TITLE 1 CHAPTER 9. POST-DECREE PROCEEDINGS §§9.1 02 - 9.201

of Fam. Code §9.102: Acts 1997, 75th Leg., ch. 7, §I, eff. Apr. 17, tained an order that failed to meet the requirements of Former Fam. Code §3.71l(d). a qualified domestic relations order or similar order. §9.1 03. PRIOR FAILURE TO History of Fam. Code §9.105: Acts 1997, 75th Leg., ch. 7, §I, eff. Apr. 17, ENDER QUALIFIED DOMESTIC 1997. Source: Former Fam. Code §3.7ll(e). RELATIONS ORDER ANNOTATIONS

may petition a court to render a qualified do- .relations order or similar order if the court that Arena v. Arena, 822 S.W.2d 645, 649 (Tex.App.- a final decree of divorce or annulment or an- Fort Worth 1991, no writ). "The domestic relations or- final order dividing property under this chapter der issued by the trial court in this case recognized provide a qualified domestic relations order or [W's] right to receive the vested policy benefits. The order permitting payment of benefits to an al- Decree of Divorce specifically identifies the name of payee or other lawful payee. the participant, [H], and the beneficiary, [W]; in addi- of Fam. Code §9.103: Acts 1997, 75th Leg., ch. 7, §I, eff. Apr. 17, tion, it provides the name and address of [W's] attor- Former Pam. Code §3.711(a). ney. The decree specifically identifies five separate benefit plans under which [W] will be the beneficiary. M §9.104. DEFECTIVE PRIOR ESTIC RELATIONS ORDER The domestic relations order also states the amount of each plan and that [W] will be entitled to the entire administrator or other person acting in an vested portion of each. Because the Dectee of Divorce capacity determines that a domestic rela- includes all of the information required by [ERISA] and does not satisfy the requirements of a quali- does not involve any of the prohibitions, the decree is relations order or similar order, the court deemed a QDRO." continuing, exclusive jurisdiction over the par- their property to the extent necessary to render FAM §9.106. ATTORNEY'S FEES domestic relations order. In a proceeding under this subchapter, the court of Fam. Code §9.104: Acts 19970 75th Leg., ch. 7, §I, eff. Apr. 17, may award reasonable attorney's fees incurred by a Former Fam. Code §3.711(c). party to a divorce or annulment against the other party AM §9.1045. AMENDMENT OF to the divorce or annulment. The court may order the QUALIFIED DOMESTIC attorney's fees to be pai,d directly to the attorney, who RELATIONS ORDER may enforce the order for fees in the attorney's own Acourt that renders a qualified domestic rela- name by any means available for the enforcement of a retains continuing, exclusive jurisdiction to order to correct the order or clarify the terms judgment for debt. ·- . " History ofFam. Code §9.106: Acts 2009, 81st Leg., ch. 768, §9, eff. Sept. 1, order to effectuate the division of property or- 2009. the court. Sections 9.107-9.200 reserved for expansion An. amended domestic relations order under SUBCHAPTER C. POST•DECREE must be submitted to the plan administra- DIVISION OF PROPERTY person acting in an equivalent capacity to whether the amended order satisfies the re- FAM §9.201. PROCEDURE FOR of a qualified domestic relations order. Sec- DIVISION OF CERTAIN PROPERTY NOT DIVIDED applies to a domestic relations order ON DIVORCE OR ANNULMENT under this section. (a) Either former spouse may file a suit as pro- ofFam. Code §9.1045: Acts 2005, 79th Leg., ch. 481, §I, eff. June vided by this subchapter to divide property not divided or awarded to a spouse in a final decree of divorce or FAM §9.1 OS. LIBERAL. annulment. CONSTRUCTION (b) Except as otherwise provided by this subchap- court shall liberally construe this subchapter to ter, the suit is governed by the Texas Rules of Civil Pro- of retirement benefits that were divided n:~um.,·nt cedure applicable to the filing of an original lawsuit. decree that failed to contain a qualified History of Pam. Code §9.201: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, relations order or similar order or that con- 1997. Source: Former Fam. Code §3.90(a), (b).

O'CONNOR'S TEXAS FAMILY CODE 123 PPE 0. 7

b THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 FAMILY CODE-TITLE 1 CHAPTER 9. POST-DECREE PROCEEDINGS §§9.102- 9.201

Farn. Code §9.102: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr.17, Fonner Farn. Code §3.7ll(d). *------- tained an order that failed to meet the requirements of a qualified domestic relations order or similar order. M §9.103. PRIOR FAILURE TO History of Fam. Code §9.105: Acts 1997, 75th Leg., ch. 7, §I, eff. Apr. 17, . DER QUALIFIED DOMESTIC 1997. Source: Fonner Pam. Code §3.7ll(e). RELATIONS ORDER Ar'!No-T~:r,ol'is •··· may petition a court to render a qualified do- Arena v. Arena, 822 S.W.2d 645, 649 (Tex.App.- ''"·'·"''auv'"' order or similar order if the court that Fort Worth 1991, no writ). "The domestic relations or- a final decree of divorce or annulment or an- der issued by the trial court in this case recognized order dividing property under this chapter [W's 1 right to receive the vested policy benefits. The provide a qualified domestic relations order or Decree of Divorce specifically identifies the name of permitting payment of benefits to an al- the participant, [H], and the beneficiary, [W1; in addi- or other lawful payee. Farn. Code §9.103: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, tion, it provides the name and address of [W's 1 attor- Fonner Pam. Code §3.711(a). ney. The decree specifically. identifies five separate benefit plans under which [W1 will be the beneficiary. §9.1 04. DEFECTIVE PRIOR The domestic relations order also state~ the amount of ESTIC RELATIONS ORDER each plan and that [W1 will be entitled to the entire administrator or other ~erson acting in an vested portion of each. Because the Dectee of Divorce capacity determines that a domestic rela- includes all of the information required by [ERISA] and does not satisfy the requirements of a quali- does not involve any of the prohibitions, the decree is relations order or similar order, the court deemed a QDRO." ~eu11•uuuu·, ~' exclusive jurisdiction over the par- property to the extent necessary to render FAM §9.106. ATTORNEY'S FEES domestic relations order. In a proceeding under this subchapter, the court Pam. Code §9.104: Acts 1997,,75th Leg., ch. 7, §1, eff. Apr.l7, may award reasonable attorneY's fees incurred by a Fonner Pam. Code §3.71!(c). party to a divorce or annulment against the other party §9.1045. AMENDMENT OF to the divorce or annulment. The court may order the QUALIFIED DOMESTIC attorney's fees to be pai,d directly to the attorney, who RELATIONS ORDER may enforce the order for fees in the attorney's own Acourt that renders a qualified domestic rela- name by any means available for the enforcem,.ent of a retains continuing, exclusive jurisdiction to judgment for debt. . ~-':·· brder to correct the order or clarify the terms History ofFam. Code §9.106: Acts 2009, 8lst Leg., ch. 768, §9, eff. Sept. I, to effectuate the division of property or- 2009. ...~

the court. Sections 9.107-9.200 reserved for expansion An. amended domestic relations order under must be submitted to the plan administra- SUBCHAPTER POST-DECREE c. DIVISION OF PROPERTY person acting in an equivalent capacity to whether the amended order satisfies the re- FAM §9.201. PROCEDURE FOR DIVISION OF CERTAIN of a qualified domestic relations order. Sec- PROPERTY NOT DIVIDED applies to a domestic relations order ON DIVORCE OR ANNULMENT under this section. (a) Either former spouse may file a suit as pro- Pam. Code §9.1045: Acts 2005, 79th Leg., ch. 481, §I, eff. June vided by this subchapter to divide property not divided or awarded to a spouse in a final decree of divorce• or FAM §9.105. LIBERAL annulment. CONSTRUCTION (b) Except as otherwise provided by this subchap- shall liberally construe this subchapter to ter, the suit is governed by the Texas Rules of Civil Pro- of retirement benefits that were divided l,n:nrrn, ..... cedure applicable to the filing of an original lawsuit. decree that failed to contain a qualified History of Fam. Code §9.201: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, relations order or similar order or that con- !997. Source: Fonner Pam. Code §3.90(a), (h).

O'CONNOR'S TEXAS FAMILY COPE 123 D

THE HISTORIC MILAM BUILDING 115 East Travis Street, Suite 333 San Antonio, Texas 78205 PHONE: 210-226-4500 FAX: 210-226-4502 Page 827 TITLE 10-ARMED FORCES §1408

Subsec. (f). Pub. L. 106-398, §1 [[div. A], title VI. tion shall be made using the rate of basic pay § 651(2)], added subsec. ([). for such period provided by law, rather than 1996-Subsec. (c)(1). Pub. L. 104-106, § 1501(c)(15)(A), such rate as so reduced. substituted "section 12731" for "section 1331". (b) COVERED GENERAL AND FLAG OFFICERS.-In Subsec. (d)(1). Pub. L. 104-106 substituted in heading "CHAPTER 1223" for "CHAPTER 67" and in text "section this section, the term "covered general or flag 12731" for "section 1331"'. officer" means a member or former member who 1994-Subsec. (c)(2)(B). Pub. L. 103-337, § 1662(j)(5)(A), after September 30, 2006, is retired in a general which directed substitution of "chapter 1223'" for officer grade or flag officer grade. "chapter 67". could not be executed because the words "chapter 67" did not appear subsequent to amendment (Added Pub. L. 109--364, div. A, title VI, §641(a), by Pub. L. 101-189, §651(a)(2), (4). See 1989 Amendment Oct. 17, 2006, 120 Stat. 2258.) note below. Subsec. ([)(2). Pub. L. 103-337, § 1662(j)(5)(B), which di- § 1408. Payment of retired or retainer pay in rected amendment of subsec. (f)(2) by substituting compliance with court orders "Chapter 1223" for "Chapter 67" in heading and "sec- tion 12731" for "section 1331" in text, could not be exe- (a) DEFINITIONS.-In this section: cuted because of previous repeal of subsec. (f) by Pub. (1) The term "court" means- L. 101-189, §651(a)(2). See 1989 Amendment note below. (A) any court of competent jurisdiction of 1989-Subsec. (b). Pub. L. 101-189, §651(a)(1), (b)(2), any State, the District of Columbia, the substituted "person" for "member", "person's" for Commonwealth of Puerto Rico. Guam, "member's", and "subsection (c) or (d)" for "subsection American Samoa, the Virgin Islands, the (c)". Northern Mariana Islands, and the Trust Subsec. (c). Pub. L. 101-189. §651(a)(2), (4), added sub- Territory of the Pacific Islands; sec. (c) and struck out former subsec. (c) which related (B) any court of the United States (as de- to computation of high-three average. Subsec. (d). Pub. L. 101-189, §651(a)(4), added subsec. fined in section 451 of title 28) having com- (d). Former subsec. (d) redesignated (e). petent jurisdiction; Subsec. (e). Pub. L. 101-189, § 651(a)(2), (3), redesig- (C) any court of competent jurisdiction of nated subsec. (d) as (e) and struck out former subsec. a foreign country with which the United (e) which related to special rules for short-term disabil- States has an agreement requiring the ity retirees. United States to honor any court order of Subsecs. (f), (g). Pub. L. 101-189, §651(a)(2), struck out such country; and subsec. (f) which related to special rule for members re- (D) any administrative or judicial tribunal tiring with non-regular service, and subsec. (g) which defined the term "years of creditable service". of a State competent to enter orders for sup- port or maintenance (including a State EFFECTIVE DATE OF 2004 AMENDMENT agency administering a program under a Pub. L. 108-375, div. A, title VI, § 641(b), Oct. 28, 2004, State plan approved under part D of title IV 118 Stat. 1957, provided that: "Paragraph (3) of section of the Social Security Act), and, for pur- 1407(c) of title 10, United States Code, as added by sub- poses of this subparagraph, the term "State" section (a), shall take effect- includes the District of Columbia, the Com- "(1) for purposes of determining an annuity under monwealth of Puerto Rico, the Virgin Is- subchapter II or III of chapter 73 of that title, with lands, Guam, and American Samoa. respect to deaths on active duty on or after Septem- ber 10, 2001; and (2) The term "court order" means a final de- "(2) for purposes of determining the amount of re- cree of divorce, dissolution, annulment, or tired pay of a member of a reserve component enti- legal separation issued by a court, or a court tled to retired pay under section 1201 or 1202 of such ordered, ratified, or approved property settle- title, with respect to such entitlement that becomes effective on or after the date of the enactment of this ment incident to such a decree (including a Act [Oct. 28, 2004]." final decree modifying the terms of a pre- viously issued decree of divorce, dissolution, EFFECTIVE DATE OF 1996 AMENDMENT annulment, or legal separation, or a court or- Section 1501(c) of Pub. L. 104-106 provided that the dered, ratified, or approved property settle- amendment made by that section is effective as of Dec. ment incident to such previously issued de- 1, 1994, and as if included as an amendment made by the cree), or a support order, as defined in section Reserve Officer Personnel Management Act, title XVI 453(p) of the Social Security Act (42 U.S.C. of Pub. L. 103-337. as originally enacted. 653(p)), which- EFFECTIVE DATE 01' 1994 AMENDMENT (A) is issued in accordance with the laws of the jurisdiction of that court; Amendment by Pub. L. 103-337 effective Dec. 1. 1994, except as otherwise provided, see section 1691 of Pub. L. (B) provides for- 103-337, set out as an Effective Date note under section (i) payment of child support (as defined 10001 of this title. in section 459(i)(2) of the Social Security Act (42 U.S. C. 659(i)(2))); § 1407a. Retired pay base: officers retired in gen· (ii) payment of alimony (as defined in eral or flag officer grades section 459(i)(3) of the Social Security Act (42 U.S.C. 659(i)(3))); or (a) RATES OF BASIC PAY TO BE USED IN DETER- (iii) division of property (including a di- MINATION.-In a case in which the determination vision of community property); and under section 1406 or 1407 of this title of the re- tired pay base applicable to the computation of (C) in the case of a division of property, the retired pay of a covered general or flag offi- specifically provides for the payment of an cer involves a rate of basic pay payable to that amount, expressed in dollars or as a percent- officer for any period that was subject to a re- age of disposable retired pay, from the dis- duction under section 203(a)(2) of title 37 for posable retired pay of a member to the such period, such retired-pay-base determina- spouse or former spouse of that member. § 1408 TITLE 10-ARMED FORCES Page 828

(3) The term "final decree" means a decree (B) is legal in form; and from which no appeal may be taken or from (C) includes nothing on its face that pro- which no appeal has been taken within the vides reasonable notice that it is issued time allowed for taking such appeals under without authority of law. the laws applicable to such appeals, or a de- (c) AUTHORITY FOR COURT To TREAT RE'riRED cree from which timely appeal has been taken PAY AS PROPERTY OF THE MEMBER AND SPOUSE.- and such appeal has been finally decided under (1) Subject to the limitations of this section, a the laws applicable to such appeals. court may treat disposable retired pay payable (4) The term "disposable retired pay" means to a member for pay periods beginning after the total monthly retired pay to which a June 25, 1981, either as property solely of the member is entitled less amounts which- member or as property of the member and his (A) are owed by that member to the United spouse in accordance with the law of the juris- States for previous overpayments of retired diction of such court. A court may not treat re- pay and for recoupments required by law re- tired pay as property in any proceeding to divide sulting from entitlement to retired pay; or partition any amount of retired pay of a (B) are deducted from the retired pay of member as the property of the member and the such member as a result of forfeitures of re- tired pay ordered by a court-martial or as a member's spouse or former spouse if a final de- result of a waiver of retired pay required by cree of divorce, dissolution, annulment, or legal law in order to receive compensation under separation (including a court ordered, ratified, title 5 or title 38; or approved property settlement incident to (C) in the case of a member entitled to re- such decree) affecting the member and the mem- tired pay under chapter 61 of this title, are ber's spouse or former spouse (A) was issued be- equal to the amount of retired pay of the fore June 25, 1981, and (B) did not treat (or re- member under that chapter computed using serve jurisdiction to treat) any amount of re- the percentage of the member's disability on tired pay of the member as property of the mem- the date when the member was retired (or ber and the member's spouse or former spouse. the date on which the member's name was (2) Notwithstanding any other provision of placed on the temporary disability retired law, this section does not create any right, title, list); or or interest which can be sold, assigned, trans- (D) are deducted because of an election ferred. or otherwise disposed of (including by in- under chapter 73 of this title to provide an heritance) by a spouse or former spouse. Pay- annuity to a spouse or former spouse to ments by the Secretary concerned under sub- whom payment of a portion of such mem- section (d) to a spouse or former spouse with re- ber's retired pay is being made pursuant to spect to a division of retired pay as the property a court order under this section. of a member and the member's spouse under this subsection may not be treated as amounts re- (5) The term "member" includes a former ceived as retired pay for service in the uni- member entitled to retired pay under section formed services. 12731 of this title. (3) This section does not authorize any court (6) The term "spouse or former spouse" to order a member to apply for retirement or re- means the husband or wife, or former husband tire at a particular time in order to effectuate or wife, respectively, of a member who, on or any payment under this section. before the date of a court order, was married (4) A court may not treat the disposable re- to that member. tired pay of a member in the manner described (7) The term "retired pay" includes retainer in paragraph (1) unless the court has jurisdiction pay. over the member by reason of (A) his residence, (b) EFFECTIVE SERVICE OF PROCESS.-For the other than because of military assignment, in purposes of this section- the territorial jurisdiction of the court, (B) his (1) service of a court order is effective if- domicile in the territorial jurisdiction of the (A) an appropriate agent of the Secretary court, or (C) his consent to the jurisdiction of concerned designated for receipt of service of the court. court orders under regulations prescribed (d) PAYMENTS BY SECRETARY CONCERNED TO (OR pursuant to subsection (i) or, if no agent has FOR BENEFIT OF) SPOUSE OR FORMER SPOUSE.-(1) been so designated, the Secretary concerned, After effective service on the Secretary con- is personally served or is served by facsimile cerned of a court order providing for the pay- or electronic transmission or by mail; ment of child support or alimony or, with re- (B) the court order is regular on its face; spect to a division of property, specifically pro- (C) the court order or other documents viding for the payment of an amount of the dis- served with the court order identify the posable retired pay from a member to the spouse member concerned and include, if possible, or a former spouse of the member, the Secretary the social security number of such member; shall make payments (subject to the limitations and of this section) from the disposable retired pay (D) the court order or other documents of the member to the spouse or former spouse served with the court order certify that the (or for the benefit of such spouse or former rights of the member under the Service- spouse to a State disbursement unit established members Civil Relief Act (50 u.s.a. App. 501 pursuant to section 454B of the Social Security et seq.) were observed; and Act or other public payee designated by a State, (2) a court order is regular on its face if the in accordance with part D of title IV of the So- order- cial Security Act, as directed by court order, or (A) is issued by a court of competent juris- as otherwise directed in accordance with such diction; part D) in an amount sufficient to satisfy the Page 829 TITLE 10-ARMED FORCES §1408

amount of child support and alimony set forth paragraph (1) to make payments from the dis- in the court order and, with respect to a division posable retired pay of a member to satisfy the of property, in the amount of disposable retired amount of child support set forth in a court pay specifically provided for in the court order. order shall apply to payment of any amount of In the case of a spouse or former spouse who, child support arrearages set forth in that order pursuant to section 408(a)(3) of the Social Secu- as well as to amounts of child support that cur- rity Act (42 U.S.C. 608(a)(4)),1 assigns to a State rently become due. the rights of the spouse or former spouse to re- (7)(A) The Secretary concerned may not ac- ceive support, the Secretary concerned may cept service of a court order that is an out-of- make the child support payments referred to in State modification, or comply with the provi- the preceding sentence to that State in amounts sions of such a court order, unless the court is- consistent with that assignment of rights. In the suing that order has jurisdiction in the manner case of a member entitled to receive retired pay specified in subsection (c)(4) over both the mem- on the date of the effective service of the court ber and the spouse or former spouse involved. order, such payments shall begin not later than (B) A court order shall be considered to be an 90 days after the date of effective service. In the out-of-State modification for pm·poses of this case of a member not entitled to receive retired paragraph if the order- pay on the date of the effective service of the (i) modifies a previous court order under this court order, such payments shall begin not later section upon which payments under this sub- than 90 days after the date on which the member section are based; and first becomes entitled to receive retired pay. (ii) is issued by a court of a State other than (2) If the spouse or former spouse to whom the State of the court that issued the previous payments are to be made m1der this section was court order. not married to the member for a period of 10 (e) LIMITATIONS.-(1) The total amount of the years or more during which the member per- disposable retired pay of a member payable formed at least 10 years of service creditable in under all court orders pursuant to subsection (c) determining the member's eligibility for retired may not exceed 50 percent of such disposable re- pay, payments may not be made under this sec- tired pay. tion to the extent that they include an amount (2) In the event of effective service of more resulting from the treatment by the court under than one com·t order which provide for payment subsection (c) of disposable retired pay of the to a spouse and one or more former spouses or to member as property of the member or property more than one former spouse, the disposable re- of the member and his spouse. tired pay of the member shall be used to satisfy (3) Payments under this section shall not be (subject to the limitations of paragraph (1)) such made more frequently than once each month, court orders on a first-come, first-served basis. and the Secretary concerned shall not be re- Such court orders shall be satisfied (subject to quired to vary normal pay and disbursement cy- the limitations of paragraph (1)) out of that cles for retired pay in order to comply with a amount of disposable retired pay which remains court order. after the satisfaction of all court orders which (4) Payments from the disposable retired pay have been previously served. of a member pursuant to this section shall ter- (3)(A) In the event of effective service of con- minate in accordance with the terms of the ap- flicting court orders under this section which plicable court order, but not later than the date assert to direct that different amounts be paid of the death of the member or the date of the during a month to the same spouse or former death of the spouse or former spouse to whom spouse of the same member, the Secretary con- payments are being made, whichever occurs cerned shall- first. (i) pay to that spouse from the member's dis- (5) If a court order described in paragraph (1) posable retired pay the least amount directed provides for a division of property (including a to be paid during that month by any such con- division of community property) in addition to flicting· court order, but not more than the an amount of child support or alimony or the amount of disposable retired pay which re- payment of an amount of disposable retired pay mains available for payment of such court or- as the result of the court's treatment of such ders based on when such court orders were ef- pay under subsection (c) as property of the fectively served and the limitations of para- member and his spouse, the Secretary concerned graph (1) and subparagraph (B) of paragraph shall pay (subject to the limitations of this sec- (4); tion) from the disposable retired pay of the (ii) retain an amount of disposable retired member to the spouse or former spouse of the pay that is equal to the lesser of- member, any part of the amount payable to the (I) the difference between the largest spouse or former spouse under the division of amount required by any conflicting court property upon effective service of a final court order to be paid to the spouse or former order of garnishment of such amount from such spouse and the amount payable to the spouse retired pay. or former spouse under clause (i); and (6) In the case of a court order for which effec- (II) the amount of disposable retired pay tive service is made on the Secretary concerned which remains available for payment of any on or after August 22, 1996, and which provides conflicting court order based on when such for payments from the disposable retired pay of court order was effectively served and the a member to satisfy the amount of child support limitations of paragraph (1) and subpara- set forth in the order, the authority provided in graph (B) of paragraph (4); and (iii) pay to that member the amount which 1 See References in Text note below. is equal to the amount of that member's dis- §1408 TITLE 10-ARMED FORCES Page 830

posable retired pay (less any amount paid dur- ments made out of disposable retired pay under ing such month pursuant to legal process this section have been made in the maximum served under section 459 of the Social Security amount permitted under paragraph (1) or sub- Act (42 U.S.C. 659) and any amount paid during paragraph (B) of paragraph (4). Any such unsat- such month pursuant to court orders effec- isfied obligation of a member may be enforced tively served under this section, other than by any means available under law other than such conflicting court orders) minus- the means provided under this section in any (!) the amount of disposable retired pay case in which the maximum amount permitted paid under clause (i); and under paragraph (1) has been paid and under sec- (II) the amount of disposable retired pay tion 459 of the Social Security Act (42 U.S.C. 659) retained under clause (ii). in any case in which the maximum amount per- (B) The Secretary concerned shall hold the mitted under subparagraph (B) of paragraph (4) amount retained under clause (ii) of subpara- has been paid. graph (A) until such time as that Secretary is (f) IMMUNITY OF OFFICERS Al'W EMPLOYEES OF provided with a court order which has been cer- UNITED STATES.-(1) The United States and any tified by the member and the spouse or former officer or employee of the United States shall spouse to be valid and applicable to the retained not be liable with respect to any payment made amount. Upon being provided with such an from retired pay to any member, spouse, or order, the Secretary shall pay the retained former spouse pursuant to a court order that is amount in accordance with the order. regular on its face if such payment is made in (4)(A) In the event of effective service of a accordance with this section and the regulations court order under this section and the service of prescribed pursuant to subsection (i). legal process pursuant to section 459 of the So- (2) An officer or employee of the United States cial Security Act (42 U.S.C. 659), both of which who, under regulations prescribed pursuant to provide for payments during a month from the subsection (i), has the duty to respond to inter- same member, satisfaction of such court orders rogatories shall not be subject under any law to and legal process from the retired pay of the any disciplinary action or civil or criminal li- member shall be on a first-come, first-served ability or penalty for, or because of, any disclo- basis. Such court orders and legal process shall sure of information made by him in carrying out be satisfied out of moneys which are subject to any of his duties which directly or indirectly such orders and legal process and which remain pertain to answering such interrogatories. available in accordance with the limitations of (g) NOTICE '.PO MEMBER OF SERVICE OF COURT paragraph (1) and subparagraph (B) of this para- ORDER ON SECRETARY CONCERNED.-A person re- graph during such month after the satisfaction ceiving effective service of a court order under of all court orders or legal process which have this section shall, as soon as possible, but not been previously served. later than 30 days after the date on which effec- (B) Notwithstanding any other provision of tive service is made, send a written notice of law, the total amount of the disposable retired such court order (together with a copy of such pay of a member payable by the Secretary con- order) to the member affected by the court order cerned under all court orders pursuant to this at his last known address. section and all legal processes pursuant to sec- (h) BENEFITS FOR DEPENDENTS WHO ARE VIC- tion 459 of the Social Security Act (42 U.S.C. 659) TIMS OF ABUSE BY MEMBERS LOSING RIGHT TO RE- with respect to a member may not exceed 65 per- TffiED PAY.-(l)(A) If, in the case of a member or cent of the amount of the retired pay payable to former member of the armed forces referred to such member that is considered under section in paragraph (2)(A), a court order provides (in 462 of the Social Security Act (42 U.S.C. 662) to the manner applicable to a division of property) be remuneration for employment that is payable for the payment of an amount from the dispos- by the United States. able retired pay of that member or former mem- (5) A court order which itself or because of ber (as certified under paragraph (4)) to an eligi- previously served court orders provides for the ble spouse or former spouse of that member or payment of an amount which exceeds the former member, the Secretary concerned, begin- amount of disposable retired pay available for ning upon effective service of such court order, payment because of the limit set forth in para- shall pay that amount in accordance with this graph (1), or which, because of previously served subsection to such spouse or former spouse. court orders or legal process previously served (B) If, in the case of a member or former mem- under section 459 of the Social Security Act (42 ber of the armed forces referred to in paragraph U.S.C. 659), provides for payment of an amount (2)(A), a court order provides for the payment as that exceeds the maximum amount permitted child support of an amount from the disposable under paragraph (1) or subparagraph (B) of para- retired pay of that member or former member graph (4), shall not be considered to be irregular (as certified under paragraph (4)) to an eligible on its face solely for that reason. However, such dependent child of the member or former mem- order shall be considered to be fully satisfied for ber, the Secretary concerned, beginning upon ef- purposes of this section by the payment to the fective service of such court order, shall pay spouse or former spouse of the maximum that amount in accordance with this subsection amount of disposable retired pay permitted to such dependent child. under paragraph (1) and subparagraph (B) of (2) A spouse or former spouse, or a dependent paragraph (4). child, of a member or former member of the (6) Nothing in this section shall be construed armed forces is eligible to receive payment to relieve a member of liability for the payment under this subsection if- of alimony, child support, or other payments re- (A) the member or former member, while a quired by a court order on the grounds that pay- member of the armed forces and after becom- Page 831 TITLE 10-ARMED FORCES §1408

ing eligible to be retired from the armed forces or former member referred to in paragraph on the basis of years of service, has eligibility (2)(A) marries again after such payments begin, to receive retired pay terminated as a result of the eligibility of the former spouse to receive misconduct while a member involving abuse of further payments under this subsection shall a spouse or dependent child (as defined in reg- terminate on the date of such marriage. ulations prescribed by the Secretary of De- (B) A person's eligibility to receive payments fense or, for the Coast Guard when it is not op- under this subsection that is terminated under erating as a service in the Navy, by the Sec- subparagraph (A) by reason of remarriage shall retary of Homeland Security); be resumed in the event of the termination of (B) in the case of eligibility of a spouse or that marriage by the death of that person's former spouse under paragraph (1)(A), the spouse or by annulment or divorce. The resump- spouse or former spouse- tion of payments shall begin as of the first day (i) was the victim of the abuse and was of the month in which that marriage is so termi- married to the member or former member at nated. The monthly amount of the payments the time of that abuse; or shall be the amount that would have been paid (ii) is a natural or adopted parent of a de- if the continuity of the payments had not been pendent child of the member or former mem- interrupted by the marriage. ber who was the victim of the abuse; and (8) Payments in accordance with this sub- (C) in the case of eligibility of a dependent section shall be made out of funds in the Depart- child under paragraph (l)(B), the other parent ment of Defense Military Retirement Fund es- of the child died as a result of the misconduct tablished by section 1461 of this title or, in the that resulted in the termination of retired case of the Coast Guard, out of funds appro- pay. priated to the Department of Homeland Secu- (3) The amount certified by the Secretary con- rity for payment of retired pay for the Coast cerned under paragraph (4) with respect to a Guard. member or former member of the armed forces (9)(A) A spouse or former spouse of a member referred to in paragraph (2)(A) shall be deemed or former member of the armed forces referred to be the disposable retired pay of that member to in paragraph (2)(A), while receiving payments or former member for the purposes of this sub- in accordance with this subsection, shall be en- section. titled to receive medical and dental care, to use (4) Upon the request of a court or an eligible commissary and exchange stores, and to receive spouse or former spouse, or an eligible clepend- any other benefit that a spouse or a former ent child, of a member or former member of the spouse of a retired member of the armed forces armed forces referred to in paragraph (2)(A) in is entitled to receive on the basis of being a connection with a civil action for the issuance spouse or former spouse, as the case may be, of of a court order in the case of that member or a retired member of the armed forces in the former member, the Secretary concerned shall same manner as if the member or former mem- determine and certify the amount of the month- ber referred to in paragraph (2)(A) was entitled ly retired pay that the member or former mem- to retired pay. ber would have been entitled to receive as of the (B) A dependent child of a member or former elate of the certification- member referred to in paragraph (2)(A) who was CAl if the member or former member's eligi- a member of the household of the member or bility for retired pay had not been terminated former member at the time of the misconduct as described in paragraph (2)(A); and described in paragraph (2)(A) shall be entitled to (B) if, in the case of a member or former receive medical and dental care, to use com- member not in receipt of retired pay imme- missary and exchange stores, and to have other diately before that termination of eligibility benefits provided to dependents of retired mem- for retired pay, the member or former member bers of the armed forces in the same manner as had retired on the effective date of that termi- if the member or former member referred to in nation of eligibility. paragraph (2)(A) was entitled to retired pay. (5) A court order under this subsection may (C) If a spouse or former spouse or a dependent provide that whenever retired pay is increased child eligible or entitled to receive a particular under section 1401a of this title (or any other benefit under this paragraph is eligible or enti- provision of law), the amount payable under the tled to receive that benefit under another provi- court order to the spouse or former spouse, or sion of law, the eligibility or entitlement of that the dependent child, of a member or former spouse or former spouse or dependent child to member described in paragraph (2)(A) shall be such benefit shall be determined under such increased at the same time by the percent by other provision of law instead of this paragraph. which the retired pay of the member or former (lO)(A) For purposes of this subsection, in the member would have been increased if the mem- case of a member of the armed forces who has ber or former member were receiving retired been sentenced by a court-martial to receive a pay. punishment that will terminate the eligibility (6) Notwithstanding any other provision of of that member to receive retired pay if exe- law, a member or former member of the armed cuted, the eligibility of that member to receive forces referred to in paragraph (2)(A) shall have retired pay may, as determined by the Secretary no ownership interest in, or claim against, any concerned, be considered terminated effective amount payable under this section to a spouse upon the approval of that sentence by the person or former spouse, or to a dependent child, of the acting under section 860(c) of this title (article member or former member. 60(c) of the Uniform Code of Military Justice). (7)(A) If a former spouse receiving payments (B) If each form of the punishment that would under this subsection with respect to a member result in the termination of eligibility to re- §1408 TITLE 10-ARMED FORCES Page 832

ceive retired pay is later remitted, set aside, or title VI, §636, Sept. 23, 1996, 110 Stat. 2579; Pub. mitigated to a punishment that does not result L. 105-85, cliv. A, title X, § 1073(a)(24), (25), Nov. in the termination of that eligibility, a payment 18, 1997, 111 Stat. 1901; Pub. L. 107-107, div. A, of benefits to the eligible recipient under this title X, § 1048(c)(9), Dec. 28, 2001, 115 Stat. 1226; subsection that is based on the punishment so Pub. L. 107-296, title XVII, § 1704(b)(1), Nov. 25, vacated, set aside, or mitigated shall cease. The 2002, 116 Stat. 2314; Pub. L. 108-189, § 2(c), Dec. 19, cessation of payments shall be effective as of the 2003, 117 Stat. 2866; Pub. L. 109-163, div. A, title first day of the first month following the month VI, §665(a), Jan. 6, 2006, 119 Stat. 3317; Pub. L. in which the Secretary concerned notifies the 111-84, div. A, title X, § 1073(a)(15), Oct. 28, 2009, recipient of such benefits in writing that pay- 123 Stat. 2473.) ment of the benefits will cease. The recipient REFERENCES IN TEXT may not be required to repay the benefits re- ceived before that effective date (except to the The Social Security Act, referred to in subsecs. (a)(1)(DJ and (d)(l), is act Aug. 14, 1935, ch. 531, 49 Stat. extent necessary to recoup any amount that was 620. Part D of title IV of the Act is classified generally erroneous when paid). to part D (§ 651 et seq.) of subchapter IV of chapter 7 of (11) In this subsection, the term "dependent Title 42, The Public Health and Welfare. Section 154B of child", with respect to a member or former the Act is classified to section 654b of Title 42. Section member of the armed forces referred to in para- 408(a)(3) of the Act is classified to section 608(a)(3) of graph (2)(A), means an unmarried legitimate Title 42. For complete classification of this Act to the child, including an adopted child or a stepchild Code, see section 1305 of Title 42 and Tables. of the member or former member. who- The Servicemembers Civil Relief Act, referred to in (A) is under 18 years of ag·e; subsea. (b)(l)(D), is act Oct. 17, 1940, ch. 888, 54 Stat. (B) is incapable of self-support because of a 1178, as amended, which is classified to section 501 et seq. of Title 50, Appendix, War and National Defense. mental or physical incapacity that existed be- For complete classification of this Act to the Code, see fore becoming 18 years of age and is dependent section 501 of Title 50, Appendix and Tables. on the member or former member for over one-half of the child's support; or AMENDMENTS

(C) if enrolled in a full-time course of study 2009-Subsec. (h)(2)(A). Pub. L. 111-84 struck out in an institution of higher education recog- "and" at end. nized by the Secretary of Defense for the pur- 2006-Subsec. (h)(1). Pub. L. 109-163, §665(a)(l), des- poses of this subparagraph, is under 23 years of ignated existing provisions as subpar. (A) and added age and is dependent on the member or former subpar. (B). Subsec. (h)(2). Pub. L. 109-163, § 665(a)(2)(A), inserted member for over one-half of the child's sup- ", or a dependent child," after "former spouse" in in- port. troductory provisions. (i) CERTIFICATION DATE.-lt is not necessary Subsec. (h)(2)(B). Pub. L. 109-163, § 665(a)(2)(B)(i). in- that the date of a certification of the authentic- serted "in the case of eligibility of a spouse or former spouse under paragraph (1)(A)," after "(B)". ity or completeness of a copy of a court order Subsec. (h)(2)(C). Pub. L. 109-163, §665(a)(2)(B)(ii), (C), for child support received by the Secretary con- added subpar. (C). cerned for the purposes of this section be recent Subsec. (h)(1). Pub. L. 109-163, §665(a)(3), inserted in relation to the date of receipt by the Sec- ", or an eligible dependent child," after "former retary. spouse" in introductory provisions. (j) REGULATIONS.-The Secretaries concerned Subsec. (h)(5). Pub. L. 109-163, § 665(a)( 4), inserted shall prescribe uniform regulations for the ad- ", or the dependent child," after "former spouse". ministration of this section. Subsec. (h)(6). Pub. L. 109-163, §665(a)(5), inserted (k) RELATIONSHIP TO OTHER LAWS.-ln any case '', or to a dependent child,'' after "former spouse". 2003-Subsec. (b)(1)(D). Pub. L. 108-189 substituted involving an order providing for payment of •·servicemembers Civil Relief Act" for "Soldiers' and child support (as defined in section 459(i)(2) of Sailors' Civil Relief Act of 1910". the Social Security Act) by a member who has 2002-Subsec. (h)(2)(A), (8). Pub. L. 107-296 substituted never been married to the other parent of the "of Homeland Security" for "of Transportation". child, the provisions of this section shall not 2001-Subsec. (d)(6). Pub. L. 107-107 substituted "Au- apply, and the case shall be subject to the provi- gust 22, 1996,'' for "the date of the enactment of this sions of section 459 of such Act. paragraph". 1997-Subsec. (d). Pub. L. 105-85, §1073(a)(24)(A), sub- (Added Pub. L. 97-252, title X, § 1002(a), Sept. 8, stituted "to" for ·'To" in heading. 1982, 96 Stat. 730; amended Pub. L. 98-525, title Subsec. (d)(6). Pub. L. 105-85, § 1073(a)(24)(B), redesig- VI, §643(a)-(d), Oct. 19, 1984, 98 Stat. 2547; Pub. L. nated par. (6), relating to court order which is out-of- 99-661, div. A, title VI, §644(a), Nov. 14, 1986, 100 State modification, as (7). Stat. 3887; Pub. L. 100-26, §§ 3(3), 7(h)(1), Apr. 21, Subsec. (d)(7). Pub. L. 105-85, § 1073(a)(21)(B), redesig- nated par. (6), relating to court order which is out-of- 1987, 101 Stat. 273, 282; Pub. L. 101-189, div. A, State modification, as (7). title VI, §653(a)(5), title XVI, §1622(e)(6), Nov. 29, Subsec. (d)(7)(A). Pub. L. 105-85, § 1073(a)(24)(C), sub- 1989, 103 Stat. 1462, 1605; Pub. L. 101-510, div. A, stituted ''out-of-State" for •'out-of State". title V, §555(a)-(d), (f), (g), Nov. 5, 1990, 104 Stat. Subsec. (g). Pub. L. 105-85, §1073(a)(25), in heading, 1569, 1570; Pub. L. 102-190, div. A, title X, substituted "to'' for "To'' and "on" for "On". § 1061(a)(7), Dec. 5, 1991, 105 Stat. 1472; Pub. L. 1996-Subsec. (a)(1)(D). Pub. L. 104-193, §362(c)(l), 102-484, div. A, title VI, §653(a), Oct. 23, 1992, 106 added subpar. (D). Stat. 2426; Pub. L. 103-160, div. A, title V, §555(a), Subsec. (a)(2). Pub. L. 104-193, §362(c)(2)(A), inserted "or a support order, as defined in section 453(p) of the (b), title XI, § 1182(a)(2), Nov. 30, 1993, 107 Stat. Social Security Act (42 U.S.C. 653(p))," before 1666, 1771; Pub. L. 104-106, div. A, title XV, "which-". § 1501(c)(16), Feb. 10, 1996, 110 Stat. 499; Pub. L. Subsec. (a)(2)(B)(i). Pub. L. 104-193, §362(c)(2)(B), sub- 104-193, title III, §§362(c), 363(c)(1)-(3), Aug. 22, stituted "(as defined in section 459(i)(2) of the Social 1996, 110 Stat. 2246, 2249; Pub. L. 104-201, div. A, Security Act (42 U.S.C. 659(i)(2)))" for ''(as defined in Page 833 TITLE 10-ARMED FORCES §1408

section 462(b) of the Social Security Act (42 U.S.C. as follows: ·'are required by law to be and are deducted 662(b)))". from the retired or retainer pay of such member, in- Subsec. (a)(2)(B)(ii). Pub. L. 104-193, §362(c)(2)(C), sub- cluding fines and forfeitures ordered by courts-martial, stituted "(as defined in section 159(i)(3) of the Social Federal employment taxes, and amounts waived in Security Act (42 U.S.C. 659(i)(3)))" for ''(as defined in order to receive compensation under title 5 or title section 462(c) of the Social Security Act (42 U.S.C. 38;". 662(c)))". Subsec. (a)(4)(C) to (F). Pub. L. 101-510, §555(b)(3). (4), Subsec. (a)(5). Pub. L. 104-106 substituted "section redesignated subpars. (E) and (F) as (C) and (D), respec- 12731" for "section 1331". tively, and struck out former subpars. (C) and (D) Subsec. (b)(1)(A). Pub. L. 104-201, §636(a), substituted which read as follows: "facsimile or electronic transmission or by mail'' for '·(C) are properly withheld for Federal, State, or local "certified or registered mail, return receipt requested". income tax purposes, if the withholding of such Subsec. (d). Pub. L. 104-193, §362(c)(3)(A), inserted "(or amounts is authorized or required by law and to the ex- for benefit of)" before "Spouse or'' in heading. tent such amounts withheld are not greater than would Subsec. (d)(1). Pub. L. 104-193, §363(c)(2), inserted be authorized if such member claimed all dependents to after first sentence "In the case of a spouse or former which he was entitled; spouse who, pursuant to section 408(a){3) of the Social "(D) are withheld under section 3402(i) of the Internal Security Act (42 U.S.C. 608{a)(4)), assigns to a State the Revenue Code of 1986 if such member presents evidence rights of the spouse or former spouse to receive sup- of a tax obligation which supports such withholding;". port, the Secretary concerned may make the child sup- Subsec. (a)(7). Pub. L. 101-510, §555([)(1), added par. port payments referred to in the preceding sentence to (7). that State in amounts consistent with that assignment Subsec. (b). Pub. L. 101-510, § 555(g)(2), inserted head- of rights.·· ing. Pub. L. 104-193, § 362(c)(3)(B), in first sentence, in- Subsec. (c). Pub. L. 101--510, § 555(g)(3), inserted head- serted "(or for the benefit of such spouse or former ing. spouse to a State disbursement unit established pursu- Subsec. (c)(1). Pub. L. 101-510, §555(f)(2), substituted ant to section 154B of the Social Security Act or other "retired pay•· for "retired or retainer pay". public payee designated by a State, in accordance with Pub. L. 101-510, §555(a), inserted at end "A court may part D of title IV of the Social Security Act, as di- not treat retired pay as property in any proceeding to rected by court order, or as otherwise directed in ac- divide or partition any amount of retired pay of a mem- cm·dance with such part D)" before "in an amount suf- ber as the property of the member and the member's ficient". spouse or former spouse if a final decree of divorce, dis- Subsec. (d)(6). Pub. L. 104-201, §636(b), added par. (6) solution, annulment, or legal separation (including a relating to court order which is out-of-State modifica- court ordered, ratified, or approved property settle- tion. ment incident to such decree) affecting the member Pub. L. 104-193. §363(c)(3), added par. (6) relating to and the member's spouse or former spouse (A) was is- use of disposable retired pay of member to satisfy sued before June 25, 1981, and (B) did not treat (or re- amount of child support set forth in court order. serve jurisdiction to treat) any amount of retired pay Subsec. (i). Pub. L. 104-193, §363(c)(1), added subsec. of the member as property of the member and the mem- (i). Former subsec. (i) redesignated (j). ber's spouse or former spouse.'' Subsec. (j). Pub. L. 104-193, § 363(c)(1), redesignated Subsec. (c)(2). Pub. L. 101-510, §555(c). inserted at end subsec. (j) as (k). "Payments by the Secretary concerned under sub- Pub. L. 104--193, § 362(c)(4), added subsec. (j). Subsec. (k). Pub. L. 104-193, §363(c)(1), redesignated section (d) to a spouse or former spouse with respect to subsec. (j) as (k). a division of retired pay as the property of a member 1993-Subsecs. (b)(1)(A), (f)(l), (2). Pub. L. 103-160, and the member's spouse under this subsection may not § 1182(a)(2)(A), substituted "subsection (i)" for "sub- be treated as amounts received as retired pay for serv- section (h)". ice in the uniformed services." Subsec. (h)(2)(A). Pub. L. 103-160, §555(b)(1), inserted Subsec. (c)(4). Pub. L. 101-510, §555([)(2), substituted "or, for the Coast Guard when it is not operating as a ''retired pay" for "retired or retainer pay". service in the Navy, by the Secretary of Transpor- Subsec. (d). Pub. L. 101-510, §555(g)(4), inserted head- tation" after "Secretary of Defense". ing. Subsec. (h)(4)(B). Pub. L. 103-160. §1182(a)(2)(B), in- Pub. L. 101-510, § 555([)(2), substituted "retired pay•· serted "of" after "of that termination". for "retired or retainer pay" wherever appearing. Subsec. (h)(8). Pub. L. 103-160, § 555(b)(2), inserted be- Subsec. (e). Pub. L. 101-510, § 555(g)(5). inserted head- fore period at end "or, in the case of the Coast Guard, ing. out of funds appropriated to the Department of Trans- Pub. L. 101-510, §555(f)(2), substituted "retired pay" portation for payment of retired pay for the Coast for "retired or retainer pay" wherever appearing. Guard". Subsec. (e)(1). Pub. L. 101-510, §555(d)(1), substituted Subsec. (h)(10), (11). Pub. L. 103-160, §555(a), added "payable under all court orders pursuant to subsection par. (10) and redesignated former par. (10) as (11). (c)" for "payable under subsection (d)". 1992-Subsecs. (h), (i). Pub. L. 102-484 added subsec. Subsec. (e)(1)(B). Pub. L. 101-510, §555(d)(2), sub- (h) and redesignated former subsec. (h) as (i). stituted "the amount of the retired pay payable to such 1991-Pub. L. 102-190 inserted ''or retainer·• after "re- member that is considered under section 462 of the So- tired" in section catchline. cial Security Act (42 U.S.C. 662) to be remuneration for 1990-Pub. L. 101-510, §555(f)(2), substituted "retired employment that is payable by the United States" for pay" for "retired or retainer pay" in section catchline. "the disposable retired or retainer pay payable to such Subsec. (a). Pub. L. 101-510, §555(g)(1), inserted head- member". ing. Subsec. (f). Pub. L. 101-510, §555(g)(6), inserted head- Subsec. (a)(2){C). Pub. L. 101-510, §555([)(2), sub- ing. stituted "retired pay" for "retired or retainer pay" Subsec. (f)(1). Pub. L. 101-510, §555(f)(2), substituted wherever appearing. "retired pay" for "retired or retainer pay''. Subsec. (a)(4). Pub. L. 101-510, §555(f)(2), substituted Subsec. (g). Pub. L. 101-510, §555(g)(7), inserted head- "retired pay" for "retired or retainer pay" wherever ing. appearing in introductory provisions and in subpar. (D). Subsec. (h). Pub. L. 101-510, §555(g)(8), inserted head- Subsec. (a)(4)(A). Pub. L. 101-510, §555(b)(1), inserted ing. before semicolon at end "for previous overpayments of 1989-Subsec. (a)(1), (2). Pub. L. 101-189, § 1622(e)(6), retired pay and for recoupments required by law result- substituted "The term ·court" for "'Court" in intro- ing from entitlement to retired pay". ductory provisions. Subsec. (a)(4)(B). Pub. L. 101-510, § 555(b)(2), added sub- Subsec. (a)(3). Pub. L. 101-189, § 1622(e)(6), substituted par. (B) and struck out former subpar. (B) which read "The term 'final'' for" 'Final". §1408 TITLE 10-ARMED FORCES Page 834

Subsec. (a)(•l). Pub. L. 101-189, § 1622(e)(6), substituted Subsec. (e)(4)(A). Pub. L. 98-525, §613(d)(3), struck out ''The term 'disposable" for "'Disposable" in introduc- "the retired or retainer pay of'' before "the same meln- tory provisions. ber" and substituted ·•satisfaction of such court orders Subsec. (a)(4)(D). Pub. L. 101-189, §653(a)(5J(A), struck and legal process from the retired or retainer pay of the out "(26 U.S.C. 3402(i))" after •·code ofl986". members shall be" for "such court orders and legal Subsec. (a)(5). Pub. L. 101-189, §§653(a)(5)(B), 1622(e)(6), process shall be satisfied'·. substituted "The term 'member" for "'Member" and Subsec. (e)(5). Pub. L. 98-525, §643(d)(4), struck out "of inserted "entitled to retired pay under section 1331 of disposable retired or retainer pay" after "payment of this title" after ''a former member". an amount" in two places and substituted "disposable Subsec. (a)(6). Pub. L. 101-189, §1622(e)(6), substituted retired or retainer pay" for "such pay" before "avail- "The term 'spouse" for ·• 'Spouse•·. able for payment". 1987-Subsec. (a)(•1). Pub. L. 100-26, § 3(3), made tech- EFFECTIVE DATE 01' 2006 AMENDMENT nical amendment to directory language of Pub. L. 99-661, §644(a). See 1986 Amendment note below. Pub. L. 109-163, div. A, title VI, §665(b), ,Jan. 6, 2006, Subsec. (a)(4)(D). Pub. L. 100-26, §7(h)(l), substituted 119 Stat. 3318, provided that: "A court order authorized "Internal Revenue Code of 1986" for "Internal Revenue by the amendments made by this section [amending Code of 1954". this section] may not provide for a payment attrib- 1986-Subsec. (a)(•l). Pub. L. 99-661, §644(a), as amend- utable to any period before the date of the enactment ed by Pub. L. 100-26, §3(3), struck out "(other than the of this Act [Jan. 6, 2006], or the date of the court order. retired pay of a member retired for disability under whichever is later." chapter 61 of this title)" before "less amounts" in in- EFFECTIVE DATE OF 2002 AMENDMEN'l' troductory text, added subpar. (E), and struck out former subpar. (E) which read as follows: "are deducted Amendment by Pub. L. 107-296 effective on the date of as Government life insurance premiums (not including transfer of the Coast Guard to the Department of amounts deducted for supplemental coverage); or''. Homeland Security, see section 1704(g) of Pub. L. 1984-Subsec. (a)(2)(C). Pub. L. 98-525, §643(a). inserted 107-296, set out as a note under section 101 of this title. ''in the case of a division of property,''. EFFEC'riVE DATE OJ' 1996 AMENDMENTS Subsec. (b)(l)(C). Pub. L. 98-525, §643(b), inserted ", if possible,". Amendment by section 362(c) of Pub. L. 104-193 effec- Subsec. (d)(1). Pub. L. 98-525. § 643(c)(1), substituted tive six months after Aug. 22, 1996, see section 362(d) of ·'After effective service on the Secretary concerned of Pub. L. 104-193, set out as a note under section 659 of a court order providing for the payment of child sup- Title 42, The Public Health and Welfare. port or alimony or, with respect to a division of prop- For effective date of amendment by section erty, specifically providing for the payment of an 363(c)(1H3) of Pub. L. 104-193, see section 395(a)-(c) of amount of the disposable retired or retainer pay from Pub. L. 104-193, set out as a note under section 654 of a member to the spouse or a former spouse of the mem- Title 42. ber, the Secretary shall make payments (subject to the Section 1501(c) of Pub. L. 104-106 provided that the limitations of this section) from the disposable retired amendment made by that section is effective as of Dec. or retainer pay of the member to the spouse or former 1, 1994, and as if included as an amendment made by the Reserve Officer Personnel Management Act, title XVI spouse in an amount sufficient to satisfy the amount of of Pub. L. 103-337, as originally enacted. child support and alimony set forth in the court order and, with respect to a division of property, in the EFFEC'l'IVE DATE Ole 1993 AMENDMENT amount of disposable retired or retainer pay specifi- Section 555(c) of Pub. L. 103-160 provided that: "The cally provided for in the court order'' for "After effec- amendments made by this section [amending this sec- tive service on the Secretary concerned of a court order tion] shall take effect as of October 23, 1992, and shall with respect to the payment of a portion of the retired apply as if the provisions of the paragraph (10) of sec- or retainer pay of a member to the spouse or a former tion 1408(h) of title 10, United States Code, added by spouse of the member, the Secretary shall, subject to such subsection were included in the amendment made the limitations of this section, make payments to the by section 653(a)(2) of Public Law 102-481 (106 Stat. 2426) spouse or former spouse in the amount of the dispos- [amending this section]." able retired or retainer pay of the member specifically provided for in the court order". EFFECTIVE DATE OF 1990 AMENDMENT Subsec. (d)(5). Pub. L. 98-525, §643(c)(2), substituted Section 555(e) of Pub. L. 101-510, as amended by Pub. "child support or alimony or the payment of an L. 102-190, div. A, title X, §1062(a)(1), Dec. 5, 1991, 105 amount of disposable retired or retainer pay as the re- Stat. 1475, provided that: sult of the court's treatment of such pay under sub- ''(1) The amendment made by subsection (a) [amend- section (c) as property of the member and his spouse, ing this section] shall apply with respect to judgments the Secretary concerned shall pay (subject to the limi- issued before, on. or after the date of the enactment of tations of this section) from the disposable retired or this Act [Nov. 5, 1990]. In the case of a judgment issued retainer pay of the member to the spouse or former before the date of the enactment of this Act, such spouse of the member, any part" for "disposable retired amendment shall not relieve any obligation, otherwise or retainer pay, the Secretary concerned shall, subject valid, to make a payment that is due to be made before to the limitations of this section, pay to the spouse or the end of the two-year period beginning on the date of former spouse of the member, from the disposable re- the enactment of this Act. tired or retainer pay of the member, any part". ''(2) The amendments made by subsections (b), (c), Subsec. (e)(2). Pub. L. 98-525, §643(d)(l), substituted and (d) [amending this section] apply with only respect ", the disposable retired or retainer pay of the mem- to divorces, dissolutions of marriage, annulments, and ber" for "from the disposable retired or retainer pay of legal separations that become effective after the end of a member, such pay'' before "shall be used to satisfy". the 90-day period beginning on the date of the enact- Subsec. (e)(3)(A). Pub. L. 98-525, §643(d)(2)(A), struck ment of this Act.'' out "from the disposable retired or retainer pay" be- fore "of the same member". EFFECTIVE DATE OF 1987 AMENDMENT Subsec. (e)(3)(A)(i). Pub. L. 98-525, §643(d)(2)(B), sub- Amendment by section 3(3) of Pub. L. 100-26 applica- stituted "from the member's disposable retired or re- ble as if included in Pub. L. 99-661 when enacted on tainer pay the least amount" for "the least amount of Nov. 14, 1986, see section 12(a) of Pub. L. 100-26, set out disposable retired or retainer pay'' before "directed to as a note under section 776 of this title. be paid". Subsec. (e)(2)(A)(ii)(l). Pub. L. 98-525, § 643(d)(2)(C), EFFECTIVE DATE OF 1986 AMENDMENT struck out "of retired or retainer pay" before ·•required Section 644(b) of Pub. L. 99-661 provided that: "The by any conflicting". amendments made by subsection (a) [amending this Page 835 TITLE 10-ARMED FORCES §1409

section] shall apply with respect to court orders issued spouses of such persons and to submit to committees of after the date of the enactment of this Act [Nov. 14, Congress a report on the results of such review not 1986]." later than Sept. 30, 1999. EFFECTIVE DATE OF 1984 AMENDMENT PAYROLL DEDUCTIONS FOR ENFORCEMENT OF CHILD Section 643(e) of Pub. L. 98-525 provided that: "The SUPPORT OBLIGATIONS amendments made by this section [amending this sec- Section 363(c)(4) of Pub. L. 104-193 provided that: tion] shall apply with respect to court orders for which "The Secretary of Defense shall begin payroll deduc- effective service (as described in section 1108(b)(1) of tions within 30 days after receiving notice of withhold- title 10, United States Code, as amended by subsection ing, or for the first pay period that begins after such 30- (b) of this section) is made on or after the date of the day period." enactment of this Act [Oct. 19. 1984]." ACCRUAL OF PAYMEN'l'S; PROSPECTIVE APPLICABILITY EFFECTIVE DATE; TRANSITION PROVISIONS Section 653(c) of Pub. L. 102-484 provided that: '·No Section 1006 of title X of Pub. L. 97-252, as amended payments under subsection (h) of section 1408 of title by Pub. L. 98-94, title IX, §941(c)(4), Sept. 24, 1983, 97 10, United States Code (as added by subsection (a)), Stat. 654; Pub. L. 98-525. title VI, § 645(b), Oct. 19, 1984, shall accrue for periods before the date of the enact- 98 Stat. 2549. provided that: ment of this Act [Oct. 23, 1992]. ,. "(a) The amendments made by this title [amending this section and sections 1072, 1076, 1086, 1447, 1448, and STUDY CONCERNING BENEFITS FOR DEPENDENTS WHO 1450 of this title and enacting provisions set out as ARE VICTIMS OF ABUSE notes under this section and section 1401 of this title] Pub L. 102-481, div. A, title VI, §653(e), Oct. 23, 1992, shall take effect on the first day of the first month 106 Stat. 2429, directed the Secretary of Defense to con- [February 1983] which begins more than one hundred duct a study in order to estimate the number of persons and twenty clays after the date of the enactment of this who would become eligible to receive payments under title [Sept. 8, 1982]. subsec. (h) of this section during each of fiscal years ''(b) Subsection (d) of section 1408 of title 10, United 1993 through 2000 and the number of members of the States Code, as added by section 1002(a), shall apply Armed Forces who would be approved in each of fiscal only with respect to payments of retired or retainer years 1993 through 2000 for separation from the Armed pay for periods beginning on or after the effective date Forces as a result of having abused a spouse or depend- of this title [Feb. 1. 1983, provided in subsec. (a)], but ent child, and to submit to Congress a report on the re- without regard to the date of any court order. However, sults of such study not later than one year after Oct. in the case of a court order that became final before 23, 1992. June 26, 1981, payments under such subsection may only be made in accordance with such order as in effect COMMISSARY AND EXCHANGE PRIVILEGES on such date and without regard to any subsequent Section 1005 of Pub. L. 97-252, which directed Sec- modifications. "(c) The amendments made by section 1003 of this retary of Defense to prescribe regulations to provide title [amending sections 1447, 1448, and 1450 of this title] that an unremarried former spouse described in 10 shall apply to persons who become eligible to partici- U.S.C. 1072(2)(F)(i) is entitled to commissary and post pate in the Survivor Benefit Plan provided for in sub- exchange privileges to the same extent ancl on the same chapter II of chapter 73 of title 10, United States Code basis as the surviving spouse of a retired member of the [section 1447 et seq. of this title], before, on, or after uniformed services, was repealed and restated in sec- the effective date of such amendments. tion1062 of this title by Pub. L. 100-370. §1(c)(1), (5). "(cl) The amendments made by section 1004 of this § 1409. Retired pay multiplier title [amending sections 1072, 1076, and 1086 of this title] and the provisions of section 1005 of this title [formerly (a) RETIRED PAY MULTIPLIER FOR REGULAR- set out as a note under this section] shall apply in the SERVICE NONDISABILITY RETIREMENT.-ln com- case of any former spouse of a member or former mem- ber of the uniformed services whether the final decree puting- of divorce, dissolution, or annulment of the marriage of (1) the retired pay of a member of a uni- the former spouse and such member or former member formed service who is entitled to that pay is dated before, on, or after February 1, 1983. under any provision of law other than- "(e) For the purposes of this section- ( A) chapter 61 of this title (relating to re- "(1) the term 'court order' has the same meaning as tirement or separation for physical disabil- provided in section 1408(a)(2) of title 10, United States ity); or Code (as added by section 1002 of this title); (B) chapter 1223 of this title (relating to "(2) the term 'former spouse' has the same meaning as provided in section 1408(a)(6) of such title (as added retirement for non-regular service); or by section 1002 of this title); and (2) the retainer pay of a member who is "(3) the term 'uniformed services' has the same transferred to the Fleet Reserve or the Fleet meaning as provided in section 1072 of title 10, United Marine Corps Reserve under section 6330 of States Code." this title, TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS the retired pay multiplier (or retainer pay mul- tiplier) is the percentage determined under sub- For termination of Trust Territory of the Pacific Is- section (b). lands, see note set out preceding section 1681 of Title (b) PERCENTAGE.- 48, Territories and Insular Possessions. (1) GENERAL RULE.-Subject to paragraphs (2) REVIEW OF FEDERAL FORMER SPOUSE PROTEC'l'ION and (3), the percentage to be used under sub- LAWS section (a) is the product (stated as a percent- Pub. L. 105-85, div. A, title VI, §643, Nov. 18, 1997, 111 age) of- Stat. 1799, directed the Secretary of Defense to carry (A) 21/2, and out a comprehensive review of the protections, bene- (B) the member's years of creditable serv- fits, and treatment afforded under Federal law to mem- ice (as defined in subsection (c)). bers and former members of the uniformed services and former spouses of such persons and to employees and (2) REDUCTION APPLICABLE TO CERTAIN NEW- former employees of the Government and former RETIREMENT MEMBERS WITH LESS TH.AN 30 YEARS