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

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the decree in 1981 and the QDROs in 1998. In contrast, the court of appeals interpreted the decree to divest Shanks’ separate property in violation of the Texas Constitution, when it could have reasonably interpreted the decree to avoid that constitutional violation. 53 Thus, the divorce decree, read as a whole, divides up the couple’s community property, then notes the ownership of certain separate property. CR 10-13. Nowhere does it purport to award Shanks’ separate property to Treadway, much less divide Shanks’ future separate property. 4. The court of appeals erred in construing “if, as, and when paid” as a term of art meaning valuation at payment rather than a term recognizing the contingent nature of retirement benefits. Treadway and the court of appeals insist that the phrase “if, as and when paid” in a divorce decree is a “term of art” requiring valuation of the retirement plan at divorce. 54 In doing so, the court erred by endowing the term with an absolute meaning, rather than understanding its meaning in context. 55 “If, as and when” is a phrase widely used in divorce decrees over the last few decades. See e.g., Cearley, 544 S.W.2d at 666 (praising decree ordering payment of benefits “if, as and when paid” as the benefits are contingent interest); In re Marriage of Rister, 512 S.W.2d 72, 74 (Tex. Civ. App. – Amarillo 1975, no writ) 53 See Reiss, 40 S.W.3d at 607 (presuming the judge acted as the law required at the time), 609 (declining to find that the trial judge unconstitutionally awarded separate property). 54 Resp. Pet. at 9; slip op. at 7 (citing Hurley v. Hurley, 960 S.W.2d 287, 289 (Tex. App. – Houston [1st Dist.] 1997, no pet.)). 55 See Reiss, 40 S.W.3d at 609-11 (finding that “if, as, and when” merely recognizes the contingent nature of the right and distinguishing Hurley as being concerned with the dollar value of an interest, where the formula in question concerned the community property interest); Disbrow v. Thibodeaux, 596 S.W.2d 174, 175 (Tex. App. – Houston [14th Dist.] 1980, writ ref’d n.r.e.) (finding that an award of 50% of retirement benefits “if, as and when” payable after divorce does not accurately award alternate payee’s interest in the benefits and employing the Taggert formula to do so). 30
(court recognizing that accrued benefits may become vested due to services performed after the marriage with decree awarding retirement benefits “if, as, and when paid”). Use of the term “if, as, and when paid” was and is necessary due to the contingent nature of retirement benefits, particularly defined benefit plans which must often by necessity be paid “if, as and when paid” to the plan beneficiary. 56 Not until the last few years have any courts declared the phrase a “term of art” requiring valuation at the time of receipt of the benefits. See e.g., Hurley v. Hurley, 960 S.W.3d 287, 289 (Tex. App. – Houston [1st Dist.] 1997, no pet.). The court of appeals below took this theory a step further and required valuation at retirement and apportionment by a flat percentage rather than by an apportionment formula. Slip op. at 7 & 7 n.5. Cf. Reiss, 40 S.W.3d at 610 (discussing Hurley and recognizing that it concerned valuation of the plan at retirement, not apportionment of the community property interest). If this Court does not grant this case and reverse this trend of redefining “if, as and when paid,” decadesold divorce decrees will have entirely new, unanticipated, and costly meanings upon the entry of QDROs upon retirement. 5. The courts of appeals, caught in the tension between finalizing divorces and accurately dividing retirement plans, commit several errors. (a) The courts of appeals read decree language too literally. The courts read language in divorce decrees too literally as though they were contracts executed by sophisticated businessmen, negotiating at arms’ length. The court of 56 For example, benefits under a defined benefit plan are often payable only in the form of an annuity, and not in a lump sum. Thus, the benefit in such a plan awarded to an alternate payee is often expressed as a percentage of each payment, payable “if, as, and when” the payments are made to the plan participant. 31
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 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: [Treadway]. It is further ORDERED t
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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