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

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property divisions, 35 but courts cannot order them. Unlike Baxter, the decree in question here was contested rather than agreed to by the parties. 36 In the case at bar, the court of appeals improperly utilized Baxter’s res judicata analysis to avoid applying the facts regarding the retirement benefits’ apportionment and valuation to the vague, ambiguous divorce decree at issue. Instead, the lower court zealously argued that Shanks’ requested QDROs were barred by res judicata because they made improper substantive changes in the decree. 37 In so holding, the court trapped Shanks in a res judicata catch-22, that is, Shanks is required to appeal a divorce decree that does not on its face divest him of separate property, but prevents him from challenging the subsequent interpretation of the decree in a QDRO that directly implicates his separate property. 38 The lower court’s analysis is flawed for another reason. Unlike the statutes governing clarification and enforcement proceedings, the statutes governing QDRO proceedings do not contain any restriction against altering or modifying the substantive property division. See TEX. FAM. CODE §§ 9.101-.105. Indeed the lower court’s analysis 35 This statement is over-broad, as parties could only agree to convert separate property to community property beginning in 1999. See fn. 32, infra. 36 The court of appeals below rejected Shanks’ argument distinguishing Baxter as an agreed property settlement. Slip op. at 7, n.5. 37 See slip op. at 9; but see Dechon v. Dechon, 909 S.W.3d 950, 958 (Tex. App. – El Paso 1995, no writ) (finding proper a clarification that defined “benefits” to mean “gross benefits”); Harvey v. Harvey, 905 S.W.2d 760, 762-64 (Tex. App. – Austin 1995, no writ) (allowing a trial court to award employee benefits that the decree did not explicitly mention in order to effectuate the intent of the decree). 38 See slip op. at 8-9; cf. Lawrence v. Lawrence, 911 S.W.2d 450, 452 n.1 (Tex. App. – Texarkana 1995, writ denied) (refusing to allow collateral attack on a decree that explicitly awarded a spouse a life estate in the other spouse’s separate property upon a finding of fault in the divorce). 18
of section 9.007 as the basis for its res judicata ruling is wholly inapplicable to a QDRO proceeding. The court of appeals also held that the trial court acted improperly by implicitly accepting this Court’s ruling in Berry v. Berry as that case was issued after the divorce decree. Slip op. at 8 (“But this case was decided in 1981, and Berry cannot be applied retroactively to modify a final decree. See Baxter, 794 S.W.2d at 763.”). However, the holding in Berry which the trial court here respected — that separate property, particularly future separate property cannot be divided — was nothing new to Texas jurisprudence, having been in Texas state constitutions since 1845. 39 See TEX. CONST. of 1845, art. VII, § 19; see also TEX. CONST. art. XVI, § 15, Historical Notes. In fact, Berry itself recognized that its holding was merely a restatement of this Court’s 1965 holding in Herring v. Blakeley. 647 S.W.2d. at 946 (“In truth, this Court has already resolved the issue presented in this case.”). Moreover, Baxter did not slam the door on Berry’s holding. Baxter’s discussion of the issue was in full: Contrary to Ruddle’s argument, Berry . . . does not affect the application of res judicata to the divorce decree in this case. Berry does not apply retroactively to modify a final decree. . . . When the parties agree to a method of apportionment, that agreement will be enforced, and the subsequent judgment has a binding effect on the parties. 39 Ironically, Treadway and the court of appeals rely at length on a 1990 case, Baxter for its res judicata argument. Resp. Pet. at 6-8, slip op. at 8 (both citing Baxter). Apparently, they believes that Baxter can be applied retroactively, but the decision based on constitutional property rights, Berry, cannot. 19
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 and 16: STATEMENT OF FACTS A. The Divorce.
Page 17 and 18: one for the defined benefit plan an
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: Moreover, such cursory divestiture
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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