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

More documents

Recommendations

Info

division of retirement benefits by requiring payment from a form of benefit that did not technically exist at divorce is a permissible change as it still furthers the divorce court’s intention. 48 Here, the Shanks sought a QDRO that specified the valuation of the retirement benefits where the decree only offered a division of the community interest and failed to specify any formula for apportionment and valuation. A QDRO does not change the substantive division of property just because it changes the amount the parties anticipated receiving. To hold a plan beneficiary like Shanks accountable for failing to appeal Treadway’s twenty-year hence interpretation of the decree requires family law litigants to be clairvoyant. Courts that read decrees narrowly and slam the door on post-divorce clarifications under the guise of res judicata defeat the intent of the Legislature to allow liberal post-divorce application of decrees. See TEX. FAM. CODE § 9.105 (provisions for QDRO proceedings should be liberally construed to effect divorce decree division of retirement benefits). E. The decree in this case awarded Treadway 25% of the community property in the retirement plans, or 25% of the plans valued at divorce. 1. Divorce decree judgments must be interpreted with an eye toward constitutional marital property rights. When a divorce decree’s interpretation is a legal question, it is reviewed de novo. Reiss v. Reiss, 40 S.W.3d 605, 607 (Tex. App. – Houston [1st Dist.] 2001, pet. filed). valuation where it was specified in the divorce decree); Haworth v. Haworth, 795 S.W.2d 296 (Tex. App. – Houston [14th Dist.] 1990, no writ) (reversing enforcement order where the decree specified a formula). 48 Echols, 900 S.W.2d 160 (order requiring payment of share of lump sum from early retirement, which the decree did not contemplate, did not impermissibly modify the decree but furthered the parties’ intention); Bina v. Bina, 908 S.W.2d 595 (Tex. App. – Fort Worth 1995, no writ) (allowing clarification where decree incorrectly named the stock to be divided). 24
Whether the decree is unambiguous is a question of law. Stephens v. Marlowe, 20 S.W.3d 250, 253 (Tex. App. – Texarkana 2000, no pet.). Where a decree addresses the division of certain property, general rules of construction of judgments apply. Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997) (per curiam). If the decree, read as a whole, is unambiguous as to the property’s disposition, the court should effectuate the decree in light of the literal language used. Id. But, if the decree is ambiguous read as a whole, the court must interpret it by reviewing the decree as a whole and the record. Id. at 332-33. In reading the decree, the court should construe it as a whole toward the end of harmonizing and giving effect to all that is written. Id. at 333. Courts should not give conclusive effect to the judgment’s use or omission of commonly employed decretal words, but should interpret the decree from a fair reading of all the judgment’s provisions. Id. In contrast, agreed property settlements are interpreted as though they were a contract. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (interpreting an agreed property settlement as though it were a contract). In addition, the court should assume that the divorce court acted as applicable law required. Reiss, 40 S.W.3d at 607; Harrell v. Harrell, 700 S.W.2d 645, 647 (Tex. App. – Corpus Christi 1985, no writ) (presuming the trial court followed the law during the “McCarty gap” period). This includes respecting separate property rights. Id. at 609 (citing Eggemeyer v. Eggemeyer, 554 S.W.2d. 137, 139-40 (Tex. 1977); TEX. CONST. art. XVI, § 15; TEX. FAM. CODE § 7.001). As explained more fully below, Wilde’s language that unambiguous decrees should be interpreted literally is read too narrowly by some courts and based on inapplicable authority. 25
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 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: intended to apply this restriction
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

Create successful ePaper yourself

Delete template?

Save as template?