Petitioner's Brief on the Merits - Supreme Court of Texas

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• To Treadway: all household goods subject to her control; her Individual Retirement Account; all U.S. Savings Bonds; a 1980 Buick; all life insurance insuring her life; all her personal effects. • To Shanks: all household goods subject to his control; all shares of American Airlines stock; all cash in certain bank accounts in his name; all ham radio equipment; three cemetery lots; all life insurance policies insuring his life; a 1981 Datsun; a 1976 Mercury; and all his personal effects. CR 11. The original trial court also found that certain property in Alabama was Shanks’ separate property. CR 12-13. B. The Retirement Plans and Their Changing Values. Shanks worked for American seventeen more years after the divorce. By the late 1980s, he was a captain, a position accompanied by commensurate salary increases. ARR 13. Shanks’ performance during the post-divorce seventeen years of service had a substantial effect on the amount of his retirement because his benefits under American’s defined benefit plan are calculated pursuant to a formula based on his final average pay (an amount which is determined by averaging his compensation over the final five years of his service), multiplied by his total years of service, and his benefits under the defined contribution plan were increased by seventeen years of contributions and growth. ARR 13; Pet. Ex. 2. When Shanks retired on May 16, 1998, the benefits in the two plans were worth more than $2 million. ARR 6, 13. C. The QDRO Proceedings. In 1998, as his retirement approached, Shanks filed a motion for approval of a qualified domestic relations order (“QDRO”) in the court of continuing jurisdiction, the 303 rd District Court. CR 15. See TEX. FAM. CODE § 9.101-.105. Shanks’ draft QDROs, 2
one for the defined benefit plan and one for the defined contribution plan, both calculated the 25% of the “pension plan” based on the value at divorce. SCR 3, 12, 19. In response, Treadway submitted a draft QDRO that awarded her 25% of all sums actually paid to Shanks — 25% of more than $2 million. CR 32, 37. Judge Gibbs, now a visiting judge, was coincidentally assigned to hear the QDRO proceedings. After hearing and introduction of evidence on the structure and value of the plans at the time of divorce, Judge Gibbs drafted a letter ruling, finding that the divorce decree awarded Treadway 25% of benefits “arising out of past employment” as of the divorce. CR 6 (emphasis in original); ARR 6-13, Pet. Ex. 1-6. The judge regularly sitting in the 303 rd District Court later signed two QDROs — Shanks’ QDRO that divided the defined benefit plan valued at the date of divorce, CR 51, and Treadway’s QDRO which divided both plans as of the date sums were actually paid to Shanks. CR 58. Shanks moved to reconsider the obviously conflicting orders. 4 CR 64. Treadway responded, and Judge Gibbs presided over a second hearing during which Treadway introduced handwritten notes 5 allegedly demonstrating that Judge Gibbs had intended to award her 25% of the total sum of retirement, if, as, and when paid. JRR, Ex. 1- 4. Judge Gibbs sustained Shanks’ motion to reconsider and entered the QDRO dividing Shanks’ defined contribution benefit valued at the date of divorce. CR 7, 131. 4 Treadway appealed the QDRO dividing the defined benefit plan. Given the trial court’s ruling on the motion for consideration, the appeal was dismissed. Shanks v. Shanks, No. 06-98-0078-CV (Tex. App. – Texarkana, Sept. 24, 1998, no pet.) (transferred by order of the Supreme Court of Texas). 5 At the hearing, Shanks strenuously objected to the use of the notes. JRR 8, 9, 12-13, 14-16 (voir dire), 16, 24. Shanks also objected to the evidentiary nature of the hearing as it was merely a hearing prompted by Judge Johnson’s signing conflicting orders. JRR 5, 8. 3
Page 1 and 2: No. 00-1325 IN THE SUPREME COURT OF
Page 3 and 4: AMENDED IDENTITY OF PARTIES AND COU
Page 5 and 6: III. 2. The court of appeals relied
Page 7 and 8: County of Maverick v. Texas Ass’n
Page 9 and 10: Reiss v. Reiss, No. 01-0251, 40 S.W
Page 11 and 12: VICTOR B. MEYEN & MARK W. DUNDEE, Q
Page 13 and 14: STATEMENT OF JURISDICTION This Cour
Page 15: STATEMENT OF FACTS A. The Divorce.
Page 19 and 20: ARGUMENT I. Given the proliferation
Page 21 and 22: earnings less applicable plan expen
Page 23 and 24: Thus, unlike defined contributions
Page 25 and 26: C. To accurately segregate communit
Page 27 and 28: Sequence Marital Property Defined C
Page 29 and 30: e paid to the alternate payee “if
Page 31 and 32: Moreover, such cursory divestiture
Page 33 and 34: of section 9.007 as the basis for i
Page 35 and 36: §§ 9.001-.002. Courts were also g
Page 37 and 38: intended to apply this restriction
Page 39 and 40: Whether the decree is unambiguous i
Page 41 and 42: entirely from non-divorce judgments
Page 43 and 44: [Treadway]. It is further ORDERED t
Page 45 and 46: (court recognizing that accrued ben
Page 47 and 48: Decrees that appear unambiguous whe
Page 49 and 50: This formula preserves marital prop
Page 51 and 52: D. When divorce precedes retirement
Page 53 and 54: In the Marriage, Employment, Divorc
Page 55 and 56: plan participant approaches retirem
Page 57 and 58: PRAYER This Court should grant Shan
Page 59: No. 00-1325 IN THE SUPREME COURT OF

Petitioner's Brief on the Merits - Supreme Court of Texas

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