Timothy Parrish v. Trisha Dunahoo

ACCEPTED 07150029CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/17/2015 5:30:49 PM Vivian Long, Clerk

CAUSE NO. 07-15-00029-CV

FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS In the Court of Appeals 2/17/2015 5:30:49 PM ,, I For the Seventh Court of Appeals District VIVIAN LONG I CLERK Amarillo, Texas 1 I ] I J TIMOTHY PARRISH APPELLANT vs. TRISHA DUNAHOO APPELLEE

ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL COUNTY, APPELLANT TIMOTHY PARRISH'S BRIEF

CORBIN & ASSOCIATES, P.C., Attorneys ASHLEY CLAPPER SBN: 24076317 DANIEL A. CORBIN SBN: 04814300 603 North 81h Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 legal@corbinlegalteam.com

Counsel for Timothy Parrish

TABLE OF CONTENTS

IDENTITY OF THE PARTIES ..................................... 2 INDEX OF AUTHORITIES ...................................... 3 STANDARD OF REVIEW....................................... 4 STATEMENT OF THE CASE ..................................... 5 STATEMENT OF THE ISSUES PRESENTED ........................ 6 STATEMENT OF THE FACTS ................................... 7-10 SUMMARY OF THE ARGUMENT ............................... 11 ARGUMENT. ............................................... 12-22 PRAYER FOR RELIEF .......................................... 23 CERTIFICATE OF WORD COUNT ................................ 24 CERTIFICATE OF SERVICE..................................... 25 APPENDIX .................................................... 26

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IDENTITY OF THE PARTIES AND ATTORNEYS

ATTORNEYS ASHLEY CLAPPER DANIEL CORBIN Corbin & Associates, P.C. 603 N. 8th Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711 Attorneys for Timothy Parrish

BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Dunahoo

PARTIES Timothy Parrish, Appellant Trisha Dunahoo, Formerly Trisha Parrish, Appellee (hereinafter Trisha Parrish)

INDEX OF AUTHORITIES

TEXAS CASES:

Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987) ..................... 19 Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13, 17,18 Joynerv. Joyner, 352 S.W. 3d 746 (Tex. App.-SanAntonio 2011) ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 16 Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) .............. 12, 13, 15 Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir. Tex. Dec. 19, 2014) ........................................ 12

STATUTES:

Tex. Fam. Code§ 9.006 (2014) .................................. 12 Tex. Fam. Code§ 9.007 (2014) ................................ 12, 13 Tex. Fam. Code§ 9.008 (2014) .................................. 12

STANDARD OF REVIEW

The standard of review for determining whether the district court had subject matter jurisdiction is de novo. Joyner v. Joyner, 352 S.W. 3d 746, 749 (Tex. App.-San Antonio 2011). "The issue of jurisdiction in this case turns on whether the trial court modified or clarified the DRO." Id. at 749.

STATEMENT OF THE CASE

Timothy Parrish filed a MotiQn for Clarification of Military Retirement in the 146th Judicial District Court seeking to clarify the award of military retirement awarded to Trisha Parrish at the conclusion of his military service. C.R. 153. Trisha Parrish filed a Motion for Enforcement of Military Retirement. Subsequently, Trisha Parrish filed a Supplemental Motion to Enforce Military Retirement. C.R. 185. The district court heard the Motion for Clarification of Military Retirement on May 6, 2014. C.R. 198. The district court took the matter under advisement and issued a Memorandum Ruling on May 22, 2014. C.R. 198. The Court ordered that the End ofAward provision contained in the 2008 Domestic Relations Order should be removed and a new Domestic Relations Order should be entered. (Exhibit C)'. The Court signed a new Domestic Relations Order on November 12, 2014. (Exhibit D?

'Memorandum Ruling 2 2014 Domestic Relations Order

STATEMENT OF THE ISSUES PRESENTED

1. Did the District Court have subject matter jurisdiction to remove the End

ofAward provision thereby modifYing the award of property as

originally set out in the Final Decree of Divorce and the 2008 Domestic

Relations Order? 2. Was the removal of the End ofAward provision from the 2008 Domestic

Relations Order barred by res judicata and therefore an error for the

District Court remove the provision?

STATEMENT OF FACTS

Timothy Parrish and Trisha Parrish were married on October 3, 1994. C.R. 5. Subsequently the couple divorced on April30, 2008 at which time the Judge signed a Final Decree of Divorce and a Domestic Relations Order. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The divorce decree and DRO were signed at the same time. (Trial Tr. Vol. 1, p. 9, May 6, 2014). The Final Decree of Divorce states in relevant part "The Court finds that the parties have entered into a written agreement as contained in this decree by virtue of having approved this decree as to both form and substance." (Exhibit Al To the extent permitted by law, the parties stipulate that the agreement is enforceable as a contract." (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Domestic Relations Order is incorporated into the final decree of divorce specifically on pages 15 and 16. (Exhibit At The parties signed the Final Decree of Divorce approving it as to both form and substance. (Exhibit A) 5 The Domestic Relations Order contained a provision that ended the award of military retirement to Trisha Parrish after she received the retirement for

3 Fina1 Decree of Divorce, page 1 4 Final Decree of Divorce, page 15-16 5 Final Decree of Divorce, page 20

thirteen years and four months (herein after known as the End ofAward

provision). (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). Trisha Parrish signed the

Domestic Relations Order, approving it as to both form and substance, and had it

notarized prior to the entry of the Domestic Relations Order. (Trial Tr. Vol. 1, p.

6, May 6, 2014 and Exhibit B 6). Timothy Parrish continued his military service

and retired in December 2011. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The

Domestic Relations Order was submitted to Department Finance Accounting

Services (herein after "DFAS"). (Trial Tr. Vol. 1, p. 5, May 6, 2014). Timothy

Parrish subsequently filed a Motion for Clarification of Military Retirement

Division on January 4, 2012 to clarify the amount of the award of the military ~j ~:1 J retirement Trisha Parrish was going to receive. (Trial Tr. Vol. 1, p. 6, May 6, :'I :j .I

'I ., ~ --~ 2014). Trisha Parrish filed a Petition for Enforcement of Retirement on November "'I 25, 2013 requesting the court to enforce the military retirement. C.R. 167.

Subsequently, Trisha Parrish filed a Supplemental Petition for Enforcement of

Retirement asking the court to remove the provision ending the award of military

retirement that she would receive from the Domestic Relations Order. (Trial Tr.

Vol. 1, p. 6, May 6, 2014 ). The court held a hearing on May 6, 2014 regarding the

clarification. C.R. 198. Timothy Parrish argued that the challenge to the End of

6 2008 Domestic Relations Order, page 5.

Award provision was barred by res judicata. (Trial Tr. Vol. 1, p. 6, May 6, 2014). Trisha Parrish argued that the court was not barred by res judicata because the provision was riot contained in the divorce decree but contained in the DRO. (Trial Tr. Vol. 1, p 16, May 6, 20 14). She reasoned that "the divorce decree is the substantive contract of the parties," and that the DRO is not substantive. (Trial Tr. Vol. 1, p. 9, May 6, 2014). "The contract was the Final Decree of Divorce, and all a Domestic Relations Order does is effectuates what the court has ordered." (Trial Tr. Vol. 1, p. 11, May 6, 2014). She goes on to say that Domestic Relations Orders are never incorporated by reference, and in this case are not incorporated by reference." (Trial Tr. Vol. 1, p. 16, May 6, 2014 ). Trisha Parrish further argues that the court has unlimited jurisdiction to amend a DRO. (Trial Tr. Vol. 1, p. 9, May 6, 2014). She argues that the End ofAward provision divests her of her separate property rights because she is entitled to the retirement until the death of herself or the death of Parrish. (Trial Tr. Vol. 1, p. 10, May 6, 2014). Parrish's rebuttal argument was that the 2008 DRO was incorporated into the Final Decree of Divorce and was a contract between the parties. (Trial Tr. Vol. 1, p.13, May 6, 2014). He argued that Trisha Parrish was trying to undo a substantive property division that was a final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). He points out that she had 30 days to file an appeal and she made no attempt to appeal *10 the final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Court took the matter of clarification under advisement and subsequently issued a memorandum ruling. (Trial Tr. Vol. 1, p. 21, May 6, 2014; Exhibit C7). The memorandum ruling clarified the calculation for Trisha Parrish's portion of the military retirement. (Exhibit C8). Additionally, the memorandum ruling removed the provision ending the award of military retirement from the Domestic Relations Order. (Exhibit C9). On April 30, 2008 the District Court signed the amended Domestic Relations Order. (Exhibit D 10). Timothy Parrish filed a notice of appeal on December 10, 2014 to challenge the district court's ruling and entry of the 2014 Domestic Relations Order. C.R. 220.

7 Memorandum of Ruling.

'Memorandum of Ruling 9 Memorandum of Ruling 10 2014 Domestic Relations Order

SUMMARY OF THE ARGUMENT

The district court did not have subject matter jurisdiction to remove the End ofAward provision in the 2008 Domestic Relations Order. The district court has the power to clarify any ambiguous terms of the Domestic Relations Order but does not have jurisdiction to modify or amend the terms of the Domestic Relations Order if the terms are not ambiguous. The End ofAward provision was not ambiguous and therefore was a modification of a substantive property division that was beyond the jurisdiction of the district court.

Additionally, the terms of the 2008 Domestic Relations Order constitute a final judgment. The removal of the End ofAward provision is a collateral attack on a final judgment and is barred by res judicata.

ARGUMENT

I. THE DISTRICT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO REMOVE THE PROVISION ENDING THE AWARD OF MILITARY RETIREMENT BECAUSE IT MODIFIED AN UNAMBIGUOUS SUBSTANTIVE PROPERTY DIVISION FROM THE DIVORCE DECREE AND THE 2008 DOMESTIC RELATIONS ORDER.

The Texas Family Code gives the trial court that rendered a divorce decree jurisdiction to enforce and clarify the property division contained in that decree. Tex. Fam. Code §9.006-9.008. "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio 2011). Subject matter jurisdiction cannot be waived and may be raised for the first time on appeal. Statin v. Deutsche Bank Nat 'l Trust Co., 2014 U.S. App. LEXIS 24064 (5th Cir, Tex. Dec. 19, 2014). "Judgments should be construed as a whole to harmonize and give effect to the entire decree." Shanks v. Treadway, 110 S.W. 3d 444, 447. "If the decree, when read as a whole, is unambiguous as to the property's disposition, the court must effectuate the order in light of the literal language used." !d. "When the signing of the DRO occurs *13 contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." Hicks v. Hicks 348 S.W. 3d 281, 284 (Tex. App-Houston [14th dist.] 2011). The trial court is without power to modify an unambiguous property division contained in a divorce decree. Tex. Fam. Code 9.007(b), Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio 20 II). "An order. .. that amends, modifies, alters, or changes the actual, substantive division of property made or approved in the final decree of divorce .. .is beyond the power of the divorce court and is unenforceable." Id.

The Court in Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) signed a divorce decree in 1981 that awarded the wife a 25% interest in the husband's retirement benefits. There was no Domestic Relations Order entered at that time. Id at 445. In 1998, seventeen years later, the husband filed a Motion to Sign Qualified Domestic Relations Order. /d. His contention was that the wife's retirement benefits should be calculated as 25% as of the date of divorce. Id. The Wife asserted that the QDRO calculation was barred by res judicata and should be interpreted as a collateral attack on the property division set out in the divorce decree. Id. The trial court valued the wife's retirement benefits as of the date of divorce. Id at 446. The Court of Appeals reversed the trial court stating the "trial court's QDRO impermissibly altered the substantive division of property made in *14 the original divorce decree." !d. The Supreme Court of Texas affirmed the court of appeals. !d. The Supreme Court of Texas reasoned that the decree as written was unambiguous and was therefore not subject to clarification. Id at 447. They further assert that "the fact that the district court erroneously applied the law when it entered the divorce decree does not alter the decree's plain language." !d.

In Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011) the husband asserts that the trial court lacked jurisdiction to enter a Domestic Relations Order that impermissibly modified the substantive provisions of his military retirement. !d. The parties divorced in 2001 at which time the court entered a divorce decree that awarded the wife a portion of the husbands military retirement "and stated that her portion would be 'more particularly defmed in a Domestic Relations Order."' Id at 74 7-7 48. The Court entered a Domestic Relations Order at the same time that awarded the wife 50% of the community share of the husband's retirement in a hypothetical calculation. !d. in 2005, after the husband retired, DF AS began paying the wife 50% of all accrued amounts of the husband's retirement. !d. The husband filed to clarify the award of military retirement. !d. The court entered an amended Domestic Relations Order that changed the wife's retirement to 37 percent. !d. The husband appealed the judgment stating that it was an impermissible change of the substantive property *15 division. Jd at 749. The court found that the award to the wife was "not ambiguous because it is expressed witb mathematical certainty," and was therefore not within tbe subject matter jurisdiction oftbe court to change. Jd at 750.

Timothy Parrish presents an argument similar to Shanks, and contends tbat the district court did not have subject matter jurisdiction to remove the End of Award provision from the 2008 Domestic Relations Order because the provision was not ambiguous. This issue is raised for tbe first time on appeal. In this case, the trial court approved and signed a Final Decree of Divorce and Domestic Relations Order in 2008 tbat contained the End OfAward provision. Much like the specified percentage in Shanks was unambiguous this provision is not ambiguous. Trisha Parrish never asserts tbat the End ofAward provision is ambiguous and therefore subject to clarification. Instead, Trisha Parrish asserts that the original provision was not permissible under the law at the time the decree and the DRO were signed. However, the Supreme Court of Texas has struck down this argument in Shanks. The district court only has subject matter jurisdiction to clarifY an ambiguous term which is not the case here. The plain language of tbe 2008 Domestic Relations Order clearly stated that the award would end after she received the retirement for 13 years and 4 months after it began or until the death of one of the parties. The district court in this case wrongfully changed the award *16 that was set out in the original judgment in plain language which is beyond the scope of the court's subject matter jurisdiction.

Additionally, the court in Joyner found that the court was without power to amend the DRO when the percentage was fixed with a mathematical certainty. Unlike the award in Joyner this case does not have a mathematical certainty. However, the language in the End ofAward provision specifies a total number of years and months that Trisha Parrish is to receive the award of military retirement. The specific end date is unambiguous and is not open to interpretation and is therefore, outside of the subject matter jurisdiction of the court to remove.

Furthermore, Trisha Parrish argues that the Domestic Relations Order is simply an effectuating document and that the actual judgment is the Final Decree of Divorce that is subject to clarification. This contention is flawed in two different respects. First, the plain language ofthe Final Decree of Divorce states that the terms are "more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference." (Exhibit A) 11 • The justification she gives to the court is basically that even though the Final Decree of Divorce contains that language it does not really mean what

11 Final Decree of Divorce, page 15-16

the plain language states. This argument is simply without merit. The terms of the

Final Decree of Divorce are "enforceable as a contract," including the provision

that incorporates the 2008 Domestic Relations Order into the Final Decree of

Divorce. Furthermore, by signing the Final Decree of Divorce Trisha Parrish

agreed to the terms of the 2008 Domestic Relations Order that was incorporated

into the decree, specifically the End ofAward provision.

In addition to the plain language of the Final Decree of Divorce that

incorporates the terms of the 2008 DRO, the courts have addressed this issue in

Hicks v. Hicks, 348 S.W.3d 281 (Tex. App. -Houston [141h dist.] 2011).

The parties in Hicks entered into an agreed Final Decree of Divorce which

was signed by the court at the same time the Domestic Relations Order was

signed. ld at 282. The divorce decree expressly deleted any reference to the DRO

contained in the decree. ld at 284. The DRO contained a provision "designating

Wife as the former spouse beneficiary of the [husband's] Survivor Benefits Plan

when no such designation was made in the final decree of divorce." Id at 283.

The husband appealed the judgment stating that the court erred in signing the

DRO with the additional provision as it was not contained in the divorce decree.

ld. The Court found that the general rule is "when the signing of the DRO occurs

17 ,j '

' *18 contemporaneously with the signing of the divorce decree, courts have construed the DRO as part of the divorce decree." !d. at 284. The court reasoned that in this spec'ific case, because the "references to the DRO are expressly deleted from the agreed decree", that the court was to view the DRO as a separate order and not to be read as part of the agreed divorce decree. Id.

Trisha Parrish urges the court to view the Final Decree of Divorce as the final judgment and the 2008 DRO as an effectuating document, whose terms are not to be read as part of the substantive final judgment much like the Appellant in Hicks. However, unlike Hicks, the Final Decree of Divorce in this case specifically points to the 2008 Domestic Relations Order as an extension of the final decree to be "incorporated verbatim in [the final decree] by reference." (Exhibit A). In applying Hicks to this case the court must view the 2008 Domestic Relations Order to be read in conjunction with the divorce decree and the terms contained in the 2008 DRO should be treated as those contained in the divorce decree.

When the Court reads the Final Decree of Divorce and the 2008 Domestic Relations Order as incorporated into the decree by virtue of the documents plain language, and under the court's decision in Hicks v. Hicks, 348 S.W. 3d 281 (Tex. *19 App.-Houston[14th dist.] 2011), as a whole, the court will find that the End of Award provision is unambiguous and therefore beyond the subject matter jurisdiction of the court to clarifY, As such, the Seventh Court of Appeals should reverse the ruling of the 146th Judicial District Court.

II. THE DISTRICT COURT ERRED IN REMOVING THE END OF A WARD PROVISION FROM THE DOMESTIC RELATIONS ORDER BECAUSE A COLLATERAL ATTACK WAS BARRED BY RES JUDICATA.

"The doctrine of Res Judicata bars relitigation of issues decided in a final judgment." Cookv. Cameron, 733 S.W. 2d 137, 140 (Tex. 1987). Errors other than lack of jurisdiction render the judgment merely voidable and must be attacked within the prescribed time limits. Id. "A judgment is void only when it is apparent that the court rendering the judgment 'had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court."' !d. "Errors other than lack of jurisdiction render a judgment merely voidable and must be attacked within prescribed time limits." !d.

In Cookv. Cameron733 S.W. 2d 137 (Tex. 1987), the court signed a final decree in March 1979 that awarded thewife 35% of the husbands gross retired pay. Id at 138. The court also added a contingent award that would make the *20 award to the wife an amount equal to 45% ifthere were further litigation in the case, other than a direct appeal. Id at 139. There was a direct appeal taken (Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) and the court affirmed the award of 35% of the gross retirement to the wife but clarified dates that were not to be included in the calculation. !d. After the husband retired he refused to pay the wife 35% of the gross retirement because DFAS was paying 35% of the net retirement. !d. The wife subsequently filed an enforcement. !d. The trial court refused to enforce the decree as did the court of appeals stating that the amount of the award affirmed in the Texas Supreme Court opinion in Cameron v. Cameron, 608 S.W. 2d 748 (Tex. Civ. App.--Corpus Christie 1980) was ambiguous and subject to clarification. !d. The Supreme Court of Texas found that the refusal of the trial court and the appellate court to enforce the ruling in Cameron was a collateral attack on a final judgment. Id at 140. The Supreme Court of Texas reasoned that the doctrine of res judicata applied to the final judgment and the collateral attack was without merit. !d. The husband further argued that the judgment was void because the contingent award divested him of his separate property rights and was therefore subject to collateral attack. !d. The Court found that there had not been a direct appeal of the contingent award during the prescribed time limits and therefore that provision *21 was not subject to collateral attack. I d. The Court reasoned that "even though the contingent award was improper, the divorce decree, including the contingent penalty, is not subject to Cameron's collateral attack. Res judicata also applies here to prevent relitigation of issues which should have been litigated in an earlier appeal." Id.

This case is almost identical to Cook. Timothy Parrish argued that Trisha Parrish is attempting to change substantive property division by removing the End ofAward provision contained in the 2008 Domestic Relations Order. He reasons that this provision in the final judgment cannot be collaterally attacked because it is barred by Res Judicata. The Court signed the Final Decree of Divorce and Domestic Relations Order on April 30, 2008 at which time the judgment became final. Trisha Parrish had 30 days to file an appeal of that judgment if she disagreed with the judgment, which she failed to do. Additionally, Trisha Parrish makes the exact same argument contained in Cook, that the trial court improperly divested her of her separate property rights. However, the Texas Supreme Court struck down that exact argument because it is one that should have been appealed directly after the judgment. The law does not allow Trisha Parrish to return to court six years later to attempt to change a property division that she is no longer happy with, that she agreed to in the original documents.

The Final Decree of Divorce and the Domestic Relations Order became a final judgment of the court 30 days after they were signed in 2008. Trisha Parrish did not appeal the substantive property division within the prescribed time limits. Therefore, the Seventh Court of Appeals should reverse the 146th District Court's ruling because the attack on the substantive property division was barred by res judicata.

PRAYER FOR RELIEF

.I "-1 ,-·1 WHEREFORE, PREMISES CONSIDERED, Appellant, TIMOTHY ·' PARRJSH, respectfully prays this Court reverse the Trial Court's ruling.

Appellant respectfully prays for any such other and further reliefto which

Appellant may be entitled to at Jaw or in equity.

Respectfully submitted,

CORBIN & ASSOCIATES, PC ATTORNEYS 603 North gm Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254) 526-6711

By:UUJCv) ASHLEY CLAPPER State Bar No. 24076317 DANIEL A. CORBIN State BarNo. 048I4300 Attorneys for Appellant : ..1'

t: !-_;

CERTIFICATE OF SERVICE

Pursuant to TEX. R. APP. P. 9.4(i), I certify that a copy ofthis brief has a word count of 4,193 words as counted by Wordperfect word count feature.

CERTIFICATE OF SERVICE Pursuant to TEX. R. APP. P. 9.5, I certify that a copy of this brief has been mailed via U.S. Mail, postage prepared to the following on d-/7- 6 .

BRETT H. PRITCHARD The Law Office of Brett H. Pritchard, 1201 South W.S. Young Drive Killeen, Texas 76543 Tel: (254) 501-4040 Fax: (254) 953-1360 Attorney for Trisha Ann Parrish

APPENDIX

EXHIBITS

A. Final Decree of Divorce

B. 2008 Domestic Relations Order

C. Memorandum Ruling

D. 2014 Domestic Relations Order

E. 2014 Domestic Relations Order Nunc Pro Tunc

CASE LAW

,, ',,

1. Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.--corpus Christi 1980)

2. Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987)

3. Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011)

~- ; 4. Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011)

5. Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003)

6. Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th

Cir. Tex. Dec. 19, 2014).

Puge 1

LexisNexis(i) Pnu1t\rchihnld C::uucrnn, Appellant,''· Sue Akers Cameron, Appellee

No. 1578

Court of Civil AJ)pcals of Tcx11.s 1 Thirrc-clllh District, Corpu_s Chrisli

608.1: Wld 748; HSII Tex. App. tEXTS 40211

Oclulu:r 23, 1980

SUBSEQUENT HISTORY: ['*I] Rehearing Denied l*7SO] A review of the pertinent fncts of this case November 20 1 19SO. arc as follows. App~llanL entered the United Stales Air Force on .hmc 22, 1954, in New York. l**2] In 1955, PRIOR HISTORY: On Appeal from the 28th Dislrict appelhmt \\·as :;tationcd at Lubbock Air Force Base in Court ofNucccs County, Tcxns Texas. The parties married in Midland, Tcws on September 29, 1957, and departed that day for California. The panics lived in Califomia_. n community property COLI!"\SEL: For Appellant: Charlc' R. Cunninghmll · state, for thrc_c months. Thereafter, the· parties lived in Corpw:: ChristL TX. vnrious common law st.1tes. Appd1anl retired from the military m1 September I. 1977, at Grissom Air Force For Appdkc: ScouT. Cook- Corpus Christi, TX. Ba'iC, TJlCiiana, The partics_thcn moved tnCorpus Christi, Texas.. ,JLJDGI~S: Horace S. Voung, l\ssodatc Justice. The pariics were di\"Orccd on March 29~ 1979. AI OPIN!Ol"\ liY: YOUNG the time of' trinl, appellant was receiving Sl 1 507Jl pL'r month under hi_s military rctiremclll bencCit'i and caming OPINIO:'\ nn annual salary of SJJ,()OO.OO as an accounting mstructor i.ll Corpus Christi State University. Appellee, [*749] In this appeal from a part of the trial court's at the time of lrlal, wa~ earning an annual salary of judg-mclll in a divorce suit, Paul Archibald Cameron is $18,000.00 ns the DircCior or Placement at Del Mnr uppcllaut and Sue Akers Cij.mcron is. appcllcl!. The College in Corpus ChristL judgment granted the divorce, appointed appellee as 1 n:maging conscrvatQr o'f the one minor child, ordered Appellnnl, ln points of crrms, one, two and- seven. appellant 10 pay child support, u_nd divided the proper!); contends the trial__c:ourt erred in divesting him of title to of the parlic!'. AltJ10ugb there urc sOme fifteen points of his separnte propeny _military retir-ement bencflls. Jt is cnor raised by appellalll, the central issue in this uppcal well sclllt!d lhat an- interest in a mililmy rclircmc.nt plan is: mvnlvts the trial court'$ divestiture of' appellant's title to an eat·ncd property rlght. This property right accrues by his sep-arah': pen:ollill property. We hold that ~uch fCtlSOJ1 or tile years of Service spct1l in the militmy [**3J divestiture is not permissible by a trial com1 under the by thnt spouse. B1ryby 11• Busby, 4S7 S. JV.2d 551 (Te:r.Sup. recent Supreme Cmnt case of Campbd/1'. Campbell. 13 1970); Cearley "· Cearley, 544 S.W.2d 661 (Tex.Sup. Tcx.Supp.CU :191 (June 4, 1980). We accordingly /976). Milil:_uy retirement, being an earned property rc~1 crsc and rcnumd in part. rig.hl 1 is sul~cct to division upon dissolution- of the

Page 2 608 S.W.2d 748, •750; 1980 Tex. App. LEXIS 4020, ••3

marriage. The inception of title rule is applied to receipt. dctcnninc the existence of a community property interest in retirement benefits. Busby ~~. Busby, supra: Mitchim v. In construing lhe meaning of a judgment, the entire Mitdrim, 509 S. W.ld 710 (Tcx.Civ.App. -- Austin 1974), contents of the inslrUmenl [ .. 5] must be considered. re••'d on olhcr grounds, 518 S.W:ld J~] (fex.Sup. 1975). The judgmcm should be read as a whole and each pari lienee, the military rt:tircmcnt benefits which accrue should be interpreted with rcrcrcncc to its entirety. Lou~ during the marriage while residing in common law states S1ar Cement Cal'paralion v. Fair, 467 S. W.2d 401 and lhc benefits which accrue while single are 1hc (Tex.Sup. 1971); State v. Star·/ey, 413 S.lfl.]d 451 separate property of the spouse in lhe military. (Tcx.Civ.App. --Corpus Chrisli 1967, no wril). We hold Conversely. the retircmcna benefits which accrue while lhe judgmcnl clearly di\•cslcd appellant or lille to residing in community property states arc community thirty-five pcrccnl of his retirement benefits. property. Busby ''· Busby, s11pra; Mite/tim \'. Mile/Jim, [•751) Prior lo lhe rcccnl Supreme Court case of sup,·a. Campbell 1'. Cumphe/1, supra, several or the Courts of

Appellee counters appellant's divestiture theory in Civil Appeals had held !hal while a lrial court tnay nol her supplemental brief, filed after lhc Campbell decision, divest one spouse of title to his or her separate real by stating that lhe trial court did not aclually divest property and transfer Iitie 10 the otl1er spouse [Eggemeyer appcllanl of tide lo his scparale personal property. We 1•. Eggemeyer, 554 S. lV.ld JJ7 (fex.Sup. /977)/lhc lrial

disagree. court could divide the separate personal property of the parties. The Supreme Court. however, in Campbr!ll The judgrnem reads, in part, as follows: clearly slaled lhal lhcy consider lhcir holding in Eggemeyer as stare decisis and hence controlling upon "Paul A. (**4] Cameron, Jr. is awarded the issue of whether a trial conn may divest a spouse of as his sole and separate property all his or her separnlc personal property. The following interest. separate and community, in the language from Em:emeyer was quoled in Campbell: United States Milital}' Retirement Plan described above, subjccl only 10 lhe life "Trial Courts have a broad latitude in the interest of Sue A. Cameron and the di\·ision of the [.,..6) marital community Sun•ivor Benefit Package as hereinabove propeny, but that discretion docs not specified." extend to a taking of the fcc to the separate property of the one and its donation to the This language is found in the judgment under the heading other.•• ''Division of Military RctircmcnL'' The conn also ordered lhe following division of property: "A. Property lo Petitio11er. Petitioner is The Court accordingly held thai a lrial coun may not awarded the following as Pelitioner's sole divest one spouse of his or her title to separate personal and separale property, and Respondenl is property and trunsrcr Iitie 10 the olher spouse. Hence, lhe hereby divesled or all righls, lille and divesliture of appcllanl's lide 10 lhirly-five pcrcenl of his in1eres1 in and lo such property: ... (8) separate propcny military retirement benefits was 1ha1 percentage of lhe United States enoneous. Appellant's points of error one, two and seven Milit.ary Retirement of Paul A. Cameron, are sustained. Jr. in accordance with the terms hereinafter SCI rortb." Appellan1, in his third point of error~ contends that lhc lrial court erred in awarding one-half of lhe Unilcd The judgment funhcr rcciled lhal 1hc Uni1ed Sones States Savings Bonds to appellee. These bonds were Government would not directly rorward 10 appellee- her acquired from runds withheld from appellant•s military separate share of lhe retirement benefits. The court, pay. The record rcOccts that the appellant was in the lhcrcforc, made appellant constructive trustee of mililary for a lola I or 278 monlhs. or lhese 278 monlhs, thiny-five percent of thc retirement benefits and ordered appellant was single for 39 months. During the him to pay such sum to appellee within fh•e days of remaining 239 months the parties resided in common law states for 233 months and in a community propcny slate

Page 3 608 S.W.2d 748, •751; 1980 Tex. App.LEXJS 4020, ••6

for three months. We hold, therefore. that 275/278 of the making a claim against the panics for the 52,800.00 paid United Stales Savings Bonds were the separate property in error. of appellant. As we ha\'C mentioned, a trial court n1ay not divest one spouse ln7) of the title to his or her All propeny possessed by eitl1cr spouse at the separate property and transfer the same lO the other dissolution of the mnrriage [US] is presumed to be spouse. Campbell "· Campbell. supra. Appellant's third community property. Tex.Fam.Codc Ann. § 5.02. poinl of error is sustained. Appellant had the burden of rebutting the presumption lhat the sa\'ings account was part of the community Appellant, in his fifth point of error, contends that estate. Tan·er 1'. Tan'er, 394 S.lf'.ld 780 (fa.Sup. the trial coun erred in ordering him to pay a $2,800.00 1965); Cel,•ames ''· Cen•a111es, 59/ S.lf~2cl 332 debt This debt arose as a resuh of a savings account in (Tex.Civ.App. --Corpus Christi 1979, no writ). We find Wochovia Bank and Trust Company, Kingston, North that appellant has failed to overcome this burden. Carolina. There was testimony in the lower court with Appellant's fifih poinl of error is overruled. regard to the savings account Appellant testified that il was his separate property account Appellee testified that After a careful review of appellant's remaining points she was authorized to draw on the account and it was, of error and appellee's eross-poinl, we deem it therefore. a jointly owned sa\'ings account of the panics. unnecessary 10 consider these poinrs in light of our holding. Prior to lhe separation of the panics, appellee withdrew 52,800.00 from the savings account. This sum Under Rule 434, T.R.C.P., that the ponion of the was approximately one-half of the balance. Appellant judgment dividing the property of the partie.~ is reversed, thcrcaficr withdrew the remaining balance of the account !levered and remanded to the trial eoun for a new trial on plus an additional $2,800.00. Tile additional $2,800.00 that issue. The remainder of the judgment is affirmed. was withdrawn by appellant due to an error of the bank. The costs of this appeal are taXed one-half to each of the The bank, at the time of trial, was in the process of panics.

.. ,

Page 1

LexisNexis® Sue Akers Cr1ok 1 formerly Sue Akers C:uneroni Jlclitinncr~ \'.Paul Archibald Cameron, Hcspondcnt

No. C-4658

SUPREME COURT OF TEXAS

733S.W:2d !37; 1987Te>e IEYIS 369; JO Tex. Sup• .I. 550

.July 8, 1987, Decided

PRIOR HISTORY: ['*I] FROM NIJECES 690. We reverse the. judgmcnl of the court of 1\f)pc.als nnd COUNTY TIIJRTEENHI DISTRICT. render judgmc.nt fm Conk.

Sue Cnok, fonnerly Sue Cameron, und P;ml COLJJ\SEL: Dudley, Mr. Willi:un A.._ Harri:i, Cook. Camero!! divorced in l\·l<trch 1979. As ~l pu11 Qf the Hrowni11g, Jordan & llyden, Co~1k, Mr. Scolt T., Harris, dh·on.;e dc:crcc in the prior suit; the trial court owardcd Cook. Browning~ Jordan & Hyden, for petitioner- Cook lhirty-fh~ percent [0!'-"'2j <'f Cameron's gross mil"ilury retirement pi!y. The co·nn of ilppcals rcvcrsl!d the Viles. Mr. Bn1cc D .. Wood & Burney. for rc.spondcm. tl'ial courCs uward. Cameron v. Canwrwl, 608 S.W.2d 748 (Tex.Civ.App.- CmJ>US Christi 1980). In TC\'ming JUDGES~ franklin S. Sj1ear:t, Jwaice. Concurring and that cou11 o f':uprcals' judgment, rhi.'l court stated: dissenthig opinlon by Wallace. The .divorce d~crc:c, d;:ttcJ March 29, OPINION lJY: SPEARS I ?79. nwards Sue Cameron hthirty-fivc perCclll (35 6,·0) of the gross prc...tcnl and OPJNJO~ futt.tt~ Military Retirement presently being received. n Sue Olmeron is entit-led to ["13Sj ON MOTION FOil REIIEAilJN(; recover that thirty-fi\'c J1etcent hut nol \Vc gmnt the motion for n.:hcaring. withdraw the !'rom the perind from ?\·farch .25, 1979 to June 25, 198 I. 11u~refore, we affirm thnt judgment and opiniou of March l~j J9~..:7, anU :iUbstitutc pari of' the trial court judgment awarding I his opinion. Sue Came-ron thirty-five percent of [~ J 39] This. is a post-judgment snit scekittg to enforce: our Lhc military retircmcnLpay .... (emphasis judgmcm in Cameron v. Cameron, 64 I S. H~2t! 210 (Te.\·, addeo) 1982). The trial court refused to nrdcr Paul Cameron to pny Sue Cook the difference between nur judgment 641 S.W2d 210,213. Our opinion further addr~.:sscd the afllrn1ing the divorce dr.cree_awnrding thirt.y-Hvc percent nwurd of .U.S. Saviugs Bonds. Ln tli~ conclu:~ion, this gross military rctit-cmc1u benefits und the govcrnn1ent's cnun hciU_rcgarding the military rcJitcJUellt bl:nefil.';: direct pnyment of lhirty-fivc percent net disposable \\:'e reverse that part of the: judgmcm of rerirt.!I11C11L The cmm of appeals nflinned. j()J S. Wld the cuun of uppcul~ that reversed the trial

Pagc2 733 S.W.2d 137, '139; 1987 Tex. LEXIS 369, "2; 30 Tex. Sup. J. 550

court's judgmcntlhat Sue Cameron rccciv~ Cameron her share of Military Retirement. . . ." 641 thirty-fi\•e percent of military retirement S. W..!d al 22.3. Even though the opinion earlier affinned pay, and we render judgment awarding the trial court's award of a gross percentage, the court of Sue Cameron her share of the military appeals st.Dted it was unclear whether ''her share of retirement pay but only from June 25, military retircmcnl" referred 10 gross or net disposable 1981. /d. ot22J. benefits. The court of appeals held the trial court had no jurisdiction (.. 5] to resolve the ambiguity or enforce the [•• 3] The divorce decree also granted Cook forty-jil'e judgment since the Supreme Coun had rendered our percent of Cameron's gross military retirement in the "ov.11 judgment." The court also affinned the uial court's cvcnl further litigation other 1han a direct appeal was refusal to award attorney's fees to Cook. required to enforce the award of tllil'ly-flve percenl gross. That provision was not appealed to this coun in On appeal here, Cook argues that the trial court and Cameron. the court of appeals erred in failing to enforce our Cmrwron judgment affinning the decree awarding This prcsenl action arose when Cameron disputed an thirty~tive percent of gross military retirement pay. Cook amount withdrawn by Cook fron1 a supcrccdcas bond on contends the trial coon had a duty to enforce the decree deposit whh the trial court. Cook returned to the trial as affinned. We agree. court that rendered the divorce decree and filed a n10tion for contempl against Cameron, a motion to enforce When an appellate coun affinns a trial court's judgment, and a motion in aid and clarification of judgment or renders a judgment which the trial court judgment. The trial court's order of July 25, 1983, held should have rendered, that judgment becomes the thai Cameron was required under this coun's judgmenl to judgment of both courts. Stale \'. Walker, 679 S.lf'.2d pay lhirty·five percent of his gross retiren1cn1 pay. The 484. 485 (Tex. 1984). "It is the duty of the trial court to trial court awarded Cook an equitable lien for the cnrorcc the judgment as [rendered)." C/Q• of Tyle•· v. St. arrcaragcs, but determined Cameron's non-compliance Louis S. W R.l'. Co., 405 S. W.2d JJO, 332 (Tex. 1966); see was in good faith. The court held him in contempt for not also TEX. FAM. CODE § 3.70) (Vernon Supp. furnishing an accounting statement Ia Cook, but refused 19R7)(enforccment of divorce decree). Cameron affinns to activate the contingent benefit provision awarding the trial court's decree of thirty~ti\'e percent gross military forty· five percent gross retirement. retirement pay. 641 S.W.ld ol 2/J. The trial court's judgment. therefore, became the judgment of this court, In June 1983, the United States Government began and the trial court erred in not enforcing the [.. 6] paying Mrs. Cook directly, but only in an amount equal judgment as rendered. 10 thirty-five t••4] percent of net dispo.r;able military retirement. Cameron refused lo pay the difference [•.140) Tile refusal or lhc courts below to enforce between our judgmenl and the government's direct the award of gross pay derives from their interpretation payment. Cook again rerumcd 10 lhe trial court in that the USFSPA only approves payment of net November, 1983 and filed a second amended motion for disposable retirement pay. While we recognize the trial contempt and a motion to enforce judgment, both of court's and the court of arpeals' concern that Cameron which lhe court denied. The trial court reasoned the may conflict with the USFSPA, Cameron affinncd the Unifonn Services Fonner Spouse's Protection Act /0 award of gross pay, and that judgment became final. The U.S.C. § 1408 (1983) (USFSPA) only applies to net doctrine of res judicata bars rclitigation of issues decided disposable retirement, and a court may not. by valid in a final judgment. Garcia ''· R.C. Cola •• 7-Up Bo11/ing judgment, compel a payment of gross. Co., 667 S.W2d 517. 519 (Tex. 1984). Paul Cameron correctly asserts thai a void judgment may be collaterally Cook then appealed to the court of appeals which attacked; however, if the trial court's award of gross pay affirmed the trial court's order. The court or appeals were void, we would have so held in Cameron. Thus, lhe determined the trial coun had no jurisdiction to hear lower courts' refusal to enforce Camel"on as wriucn Cook's motion for enforcement bccau.llie our Camcrmr because they disagreed with the award of gross bcnefitc; judgment was ambiguous. In the concluding sentences of was an improrcr rclitigation of issues delcrn1ined in lhe Cameron. we "render{ed] judgment awarding Sue prior final judgment. Although a holding may be

Page 3 733 S.W.2d 137, "140; 1987 Tex. LEXIS 369, ""6; 30 Tex. Sup. J. 550

subsequently overruled or disapproved, the O\lem.Jicd though the contingent award was improper, the di\'orce judgment remains final to the panics involved. Segrest v. decree. including lhe contingent penalty, is not subject lo Segrest, 649S.W.2d6/0, 612,<·ert. denied, 464 U.S. 894, Cameron's collaleral [....,9] attack. Res judicata also 78 L. Ed. 2d 232, /04 S. Ct. 242 (/983). applies here to prevent relitigation of issues which should have been liligated in an earlier appeal. Segrest, 749 We [ ... 7] next addres.'i the contingent increase S.W.2d nl 613. Determining lhat the contingent escalalion award of fony-nvc percent gross military retirement In is not void does not, however~ completely resolve Cook's the 1979 divorce decree, the trial conn ordered thirty-five contention that the trial court erred in refusing 10 aclivale percent gross retirement pay was just and right only if ~1c penalty. Cook rccei\•ed that amount 11 Wilhout further litigalion other than a direct appeal." In the event Cameron failed to The Family Code authorizes a trial court to issue comply with the award, the decree slated fony-five orders in aid or clarification of a fanner divorce decree. percent of the gross retirement pay was just and right. TEX. FAM. CODE ANN. § 3.70-.72 (Vernon Supp. Cook argues that the molions 10 force Cameron lo 1987). On Cook's first motion for contempl and motion in comply \\ith the conn's judgment constitute ''further aid and clarification, 1he trial court found Cameron in litigation," and therefore, she is entitled to the contingent contempt for failing lo forward an accounting statement increase. to Cook [•141) within five days of his rcccip~ bUithat 11 finding of contempt docs not amount to further Cameron contends the contingent increase is void liligalion." On Cook's amended second motion. the trial and unenforceable as a matter of law. He asserts (I) the court again refused Cook's request to activate lhe contingent provision renders the decree indefinite and contingent escalation. uncenain because "funhcr litigation" is undefined and unclear; (2) the trial court is authorized to make only one We hold the trial court's denial of Cook's request "just and right" division of property, and the contingent does not mandate reversal. Cameron's testimony at the increase constitutes a second propeny division; and (3) contempt hearing eslablished 10 the trial court that he did <i ::: the increase operates to divcs.t him of his separate not willfully refuse to pay Mrs. Cook 35% of gross, but property after divorce. Cnmeron olso claims the instead considered the counsel of a lawyer with the Air :--i contingent prm•ision is unconstitutional because it Force Accounting and [ .. 10] Finance Center, the I violates the open courts provision, the due process [..8] ranking legal officer at the Corpus Chrisli Naval Air clause, separation of powers, and the equal rights Slation, and his own attorneys. Cameron's conclusion that amendment to the Texas Constitution. a gross amount wa.'i not required by our Camcro11 judgment appears to be in good faith and docs not A judgment is void only when it is apparent thai the warrant our imposition of the improper contingent coun rendering judgment "hod no jurisdiction of the penalty. We agree that the aclion here resolving the panics, no jurisdiction of the subjecl maner, no dispule concerning our Camerorr judgment does not jurisdiction to enter the judgment, or no capacity to acl as constitute "further litigation" as intended by the decree. a court." 8rolt'ni11g ''·Placke, 698 S.W.ld 362. 363 (Tex. 1985). Errors other lhon lack of jurisdiction render d1e Finally, Cook also argues she is entillcd to attorney judgment merely \'oidable and must be attacked wi1hin fees incurred in the proceeding to enforce the decree. A prescribed lime limits. /d. The trial court issuing the court may, in its discretion, award attorney fees in a divorce decree had jurisdiction of the parties, subject proceeding to enforce a divorce decree. TEX. FAM. matter, and capacity 10 act as a court. Any error regarding CODE ANN. § 3.77 (Vernon Supp. 1987). Cook has the contingent increase then, rendered the judgmcnl mude no showing, however, that the court abused its voidable, not void ob initio. discretion in failing to nwnrd nttomcy fees.

Cameron appealed the conlingenl increase provision Accordingly, the judgments of the lower couns are to the court of appeals in his appeal from the divorce reversed. We render judgment ordering the trial court to decree, but did not appeal the contingent award to this enforce the judgment in Camero" v. Camei'OJJ awarding court. Cameron did appeal the conlingent provision in his Cook thirty-five percent of gross retircmcnl benefits Cameron motion for rehearing, bul by nol submitting a beginning June 25, 1981. This cause is remanded lo the crosspoint in Camero,, he waived 1he error. Thus, even trial court solely 10 detenninc the amounts owing to

Page 4 733 S.W.2d 137, •141; 1987 Tex. LEXIS 369, ••10; 30 Tex. Sup. J. 550

Cook. event that [Cook] receives the allotted share without further litigation other than a direct appeal. . . ." COSCUR B\': WALLACE Litigation is defined as a contest in the courts 10 enforce a right or seek a remedy. Black's Law Dir:tionar)' 841 (5th DISSE~T B\': WALLACE ed. 1979). The purpose of litigation is to preserve and enforce rights and secure compliance with the laws of the DISSE~T state. Mi.t.mwi, Kansas & Texas Ry. Cn. 1'. Hickman, 183 U.S. 53, 60, 21 S. Ct. /8, 46 L. Ed. 78 (1901). CONCURRING AND DISSENTING Because Cameron failed 10 honor lhe divorce decree, Cook was forced to file this lawsuit. By definition, she [.. II) OPINION ON MOTION FOR was forced [.. 12] to pursue further litigation whether REHEARING Cameron ac1cd in good faith or not. ConscqucnlJy, she is ( concur in the majority holding that Sue Cook is cnlitled to 45% of Cameron's gross military relirement entitled to enforcement of the judgment rendered in pay. Camei"On "· Cameron, 641 S. W.2d 210 (Tex. 1984) Cameron failed to properly challenge the contingent awarding her 35% of Paul Cameron's gross military provision in his direcl appeal of the divorce. Because he rerirement benefits. However, I dissent from the could have secured review of the provision in the divorce majority's refusal to enforce the contingenl increase appeal, res judicata bars him from litigating that issue in award. this lawsuit. Garcia 1'. RC Cola-- 7-Up Botlling Co., ~~7 The majority concludes this lawsuit docs not amount S.W.ldJ17,J/9(Tex. /984). to "funhcr liligation'' because Cameron acted in goad For the foregoing reasons, I would hold Cook is faith in refusing to honor the divorce decree. I disagree. entitled lo enforcement of the entire divorce decree The decree states that 35% of gross military retirement including the contingent provision. benefits "is dctcnnined to be just and right only in the

.I .. '.. ·,···1

":.

Page I

LexisNexisQD K)1JZ EIJWAJW IHCKS, Appoll:mt ,., LA'KESHA ~!ARIE !JAYNES ITICKS, Appellee

NO. 14-10-00577-CV

COUilT OF A I'I'EALS Of' TEXAS, FOI'IHEE:>ITII DISTRICT, IIOUSTO:-.i

348,\: 11'.3<1 281; 2111 I Te.<. 1lPJ1· LEXIS 4909

,June .JO, 21111, Opinion Filed

PRIOI! IIISTOI!Y: [.. I] In November 2009, Wife filed :m nrig[nnl petit' ion for On Appeal f'rom the 245th District Court, llm-ris divon:c. In Deccmhcr 200iJ, Husbnnd filed an original

.· . County. Texas: Trial Court Came No. 2009-73495. Judge Annette Kuntz . nnswer and an original coumcr-pc:tition for divorce. In January 20 I 0. the partie$ entered inlo an infomml

!. ~, .; ) COUt\SEL: Jarnd N. Higdon or San /\JlHH\io, TX, t(1r appclh1nts. sdtlement ngrccml!nl purs\\"!lt to .\·ecJion 6.604 of the Tc~ms Famf(F Cruie. In March 2010, the trial court signed lhc fi.nal f""*2] decree of divorce, which was approved and consented lo as to lHHh form <Uld subsHince by llusbunJ and Wil(.;. >~.fler l-lushnnd fil!!d a motion for the Willinm Leslie Shireman nr Houston. TX, for appclkcs. trial court 10 dll so. On the sumt: day, lhc trial cour1 signed the domt:stic rclalions order ("D.R0 11 ) at issue! JUDGES: Panel consists of Chief Jus1iee Hedges and :.1pprovcd by o11ly Wife und her altumcy. References to Justices Seymore and Boyce. the DRO nrc cros;'>Cd out in the final decree of divorce., One title ted rcfen,!IIGC. in the final decree wuh:r ''Property OI'INIO:-.i BY: Addc Hedges to Husband" is inlti:aled by 11 CI3" and !'LH," prcSUUH.IIJiy Wi fc a11d her attorney; .anoth(!r delc!cd reference under OPINION "Property to Wifi:::'' i$ initialed by "CB" only. l*-282] In this .di\'orcc ca$.C, Kyle Edward Bicks In .'\p_ril10 I0-' l-lusbi!nd filed a_ motion to correct or {''Hu$h<md"} complain~ of elT-Or!' in a dolhc.-stlC rClatlonS rc:form the jtldgmclll, complnining_ abont error-s ill both order •md in Lhc final decwe of divorce. He also contcllds the lim1l decree of [*1S3) divorce and the DRO. that the trial coun abused its discretion by awarding Husbnnd ulso n.•qucsted smlctions qgainst Wife, her appelle<, La'Kesha Mm·ie Haynes llicks ("Wife"), anmn:ey, ;md/or thdr expert ror_aiJcgcdly mbrc_prescnting atlomcy 1s fees ~tnd c>:pcnscs in the order denying the .npplicable federal law to tbe court. and Husbnud Husband's motion to concct or reform rhc judgmem, We n;qu~stcd trial and appdla!c !lttmncy's fees;· c.\.pcnscs. ::lftirtll tile finn! decree of divotCI.! and the awmd of and co~ts. \VICe ·ntcd a rcspousc to the motion lo <.:orrcct attorney's fees and expenses. We reverse and remand 1he ur- refNm tiH; judgment, :>l:.t.ting that the motion wa~ domestic relations ordC"r for H.Irlhcr procl'ttlings g:rnundkss llild brought solely for the pUfllOSC of consistent with this opinion. hurassmcllt. In uddition, she requested lrial and appellate ntlorm.:y's fees, c:xpcmes, m1d costs. \\'ifc [UJ] riled a

Page 2 348 S.W.3d 281, "2R3; 2011 Tex. App. LEXIS 4909, ••J

separate motion for sanctions pursuant to Rule I J_ of tl1e Husband and Wife aucsted by their signarurcs that Texas Rules of Ch•il Procedure. claiming that Husband's they appro\'cd and consented lo rhc di\'orcc decree as to motion to correct or refonn the judgment was groundless both form and substance. In lhc body of the decree. the and brough1 for the purpose of harassment. She requested trial court found thai the parties had (,.,.⁵] entered into a as sanctions ( t) that lhe trial coun deny lhe motion to written agreement, the wriUen agreemcnl being the Final correct or refonn the judgment and (2l that she be Decree of Divorce. The panics stipulared that the awarded anomey's fees and expenses incurred in agrecmcnl was enforceable as a con1rac1 to the exlent obtaining an order for sanctions. permiued by law. Because the parties entered inlo an agreed divorce decree, it is lreated as a contract between The trial coun held a hearing on Husband's motion to the parties with lhe law of contracts governing the correct or rcfonn the judgment and on \Vifc's request for interpretation of the dc:cn.-c's legal force and meaning. See attorney's fees in her response. I The trial court denied Pare v. Pate, 874 S.W.2d 186, 188 (Tex. App.--Hous/o/1 Husband's motion and ordered Husband to pay Wife's {14rll Disr.] 1994, writ denied). auomcy's fees and expenses in the amounl of S 1,950.00. After the hearing, with the trial court's permission, [•284) The DRO in this case was signed on lhc Husband's trial counsel introduced expert testimony same day as the agreed final decree of divorce. When the regarding the calculation of and the community interest in signing of the DRO occU11i contemporaneously with the his n>ilitary retirement pay. 2 This appeal followed. signing of the divorce decree, courts have construed the DRO as pnrt of the divorce decree. See, e.g.• Gilli11 v. At the hearing, Wife's trial counsel staled that Gillin, 307 S. W.3cl 395, 396 (Te.t. App.--San Antonio she would dismiss her motion for sanctions if the 2009, no (Jet.) (characterizing complaints aboul two trial court awarded the auomey's fees rcqucsled in provisions of an incorporated DRO as being an appeal her response, which the trial court did. from a divorce decree); Beyer ''· Beyer. No. 2 According to Husband's brier, lhis was done 03-06-00803-CV, 2009 Tex. App. LEXIS 5913, 2009 WL outside the presence of the trial judge. 1341857, at • I (Tex. App.--Auslill July 28, 2009, pel. de11iedJ (mem. op.) (appeal from domcs1ic relations order II, ASALYSIS ponion of decree). While the ORO in this case wa...~ A. [""4) DOMESTIC REI.ATIO~S 0ROER signed on the same day as lhe final decree of divorce, references [U6] 10 lh_c DRO arc expressly dclclcd from In his first issue, Husband contends thai the trial the agreed decree. The trial court approved lhc agreement coun erred in signing rhe DRO because the DRO of the parties "as conlaincd in this final Decree of contains a fonnula incorrectly calcularing (I) the Divorce.'' As "uch, we will review the DRO as a separate community interest in his mililary retirement pay and (2) order and not as pan of the agreed divorce dccrce.l the retirement pay itself. In addilion, Husband claims that the ORO designates Wife as the fom>cr spouse 3 Post·divorce DROs. for example. are beneficiary of his Survivor Benefit Plan when no such appealable orders. See Shanks "· Treadlt'ay. 110 S.ll'.3d 444, 446 (Tex. 2003). designation was made in lhe final decree of divorce.

The parties entered into an agreed final decree of Initially, we reject Wife's contention that Husband divorce. For a consent judgment to be valid, each party failed to preserve error on his issue. To presen•e a musl explicilly and unmistakably gi\•e his or her consent complaint of error in a judgment, a party must inform the In re Browsard, Ill S. lfc3d 82 7, 831-33 (Tex. trial court of its objection by a timely riled motion to App.--/JoustoPJ {14111 Disr.] 2003, orig. proceeding). amend or correcl the judgment, a motion for new trial, or Appro\•al as to fonn and substance, slanding alone, docs some olhcr similar method, and 1hc trial court must rule not transform a judgment into a consent judgment. /J. on the motion either expressly or implicilly. See Tex. R. App. P. 33.1(a). Husband properly preserved error \\ith The body of the judgment musl sugges~ for example, ·that the judgment was rendered by consent. Clrang ''· Link his timely filed motion to correct or refonn the judgment Nguren, 81 S.W.3d 314, 316 PJ.l (Tex. App.--/Jou.<lon complaining of the incorrect calculations in the DRO and [14111 Dis/] 2001, 110 pel.). Wife's beneficiary scatus. The motion was denied by written order.

Page 3 348 S.W.3d 281. "284; 2011 Tex. App. LEXIS 4909, .. 6

Because the trial coun did not make findings.of fact of Member's Disposable Retired Pay or conclusions oflaw, we assume that it made all findings (DRP), if, as and when received, in support of its judgment. PIUlro "·Chambers Cmy., 922 multiplied by the following fonnula: S. W2d 945. 948 (Tex. /996). Funhennore, [••7] when findings of fact and conclusions of law are not filed, we Number of months Member and must affirm the trial court's judgment on any legal theory Former Spouse were manicd during which that findS suppon in the evidence. In r~ WE.R., 669 Member was in service (183 mos.) divided ,] S.W.ld 7/6, 717 (Tex. /984} (per curiam). A conclusion by Number 1••9] of mon1hs Member was ['! of law can be challenged on the ground that the trial coun in service as of retirement (not greater ::' than 480 months) did not properly apply the law to the facts. Tl-eadwat• v. Shanks, 110 S. W.3d /, 5 (Tex. App.--Dallas 2000), ah'd, 110 S. W.3d 444 (Tex. 2003). We review questions of lnw X . i, de novo. In r·e Humphreys, RHO S.W.2d 402. 404 (Te.t . Acti\•e duty base pay for an 0-6 with /994). 26+ years of creditable service as of Calculation ofCommumly hrlere.rt irr Rctiremelll Pay 0110112010 (SI0,047.00 per month) di\'idcd by Active duty base pay of The final decree of divorce awards lo Wife as her Member as of his date of retirement sole and separate propeny "[a) 50% ponion of the community sums, whether matwcd or unmatured, Husband contends, and we agree, thai the ORO does not accrued or unaccrued, vested or otherv.•ise, together with calculate the con\munity sums owed to Wife in all increases thereof, the proceeds therefrom, and any accordance with Texas law. The ORO purports louse the other rights related to or as a result of Kyle Edward fraction fonnula established in Taggart ''· Taggart, 552 Hicks' service in the United States Air Force, including S. W.2d 422 (Tu. 1977), by di.,idins the number of any accrued unpaid bonuses. disability plan or benefits, months married during Husband's sen•ice by the total or other benefits existing by reason of or as a result of number of months Husband will be in service as of Kyle Edward Hicks' past or present employment." relirement. However, the Taggart fraction no longer Therefore, the decree awards Wife a SO percent portion of applies to situations such as this one. the community sums existing by reason of [..,.8) or ac; a result of Husband's pasl or present employment, 4 "Disposable retired pay" is defined as the total including any ae~rued unpaid bonuses, disability plan or monthly retired pay to which a member is entitled benefits, or other benefits. This award is consistcnl wilh less ccnain amounts as applicable. !d. § the panics' informal settlement agreement which Slalcs: /408(a}(4). "Wife shall be awarded 50% of the ["285] community In Taggart, the Supreme Coun of Texas developed a int~resl in husband's defined military retiren1ent pay." formula for dctemtining the ex1en1 of the community1s Under lhe Uniformed Services Former Spouses' interest in a military retirement plan. 552 S. JJ~ld at Protection Act ("USFSPA 11 ), a divorce court may treat 423-24 (holding that divorced spouse "owned as her part di.<posable retired pay payable to a member for pay of the community estate a share in the conlingcnl right to periods beginning after June 25. 1981 as marital propcny military benefits even though that right had not matured subject lO di\'ision in accordance with the law of the at the [""IO]timc of the divorce"). The Coun used the jurisdiction. See 10 U.S. CA. § 1408(c) (West 2010). The fo11owing fraction when calculating the non-employee purpose of the DRO in this cu.llie is lO direct a military spouse's one-half interest in the: employee-spouse's scr\'ice, rather than a civil pension plan administrator, to retirement pay: the number of months the parties were make paymems out of Husband's disposable retired pay married during the employee spouse's employment to Wife. See id. § 1408(dJ(/). 4 This panicular ORO -sets divided by the total number of months of service that out the follo\\'ing fonnula as a calculation of the sums entitled the employee spouse to the relircment benefits. 5 owed to Wife: /d. at424.

5 In Taggart the Coun used the number of Fonner Spouse shall receive [50 percent] months of service that entitled Mr. Taggart to the

Page 4 348 S.W.3d 281. '285: 2011 Tex. App. LEXIS 4909, .. 10

retirement benefilS (360 monlhs) rather tban lhc DRO to he consistent with Texas law. actual number of months of scr\'ice at retirement. The Supreme Court of Texas has subsequently Ca/culario11 of Retirement Pay construed this fraction as follows: 'the number of months married under the plan divided by the Husband also contends lhat the fonnula does not lotal number of monlhS en1ployed under the plan accurately calculate the retired pay itself. The DRO uses at tlte time of retirement." S!Ja11ks, I 10 S. W.Jd at the following fraction to calculate Husband's rclired pay: 446 (citing Tagga1·1. 551 S. W.ld a/ 424). Active duty base pay for an 0-6 with 26+ years of I crcdirnble service as of 01/01/2010 (SI0,047.00 per I ' In BeriJ• v. BeriJ', the Court altered t~ Taggart month) divided by llusband's acti\•e duty base pay as oF formula. 647 S.W.1d 945, 946-47 (Tc:r. 198J). The Court his dale of retirement. Husband argues that both the did so by changing the fraction denominator to the nun1erator and denominator of this fraction arc incorrect. number of months employed under the plan at tl1c lime of divorce. /d. (emphasis added); see also Sl1a11ks, 110 The computation of retired pay involve...; factors such S. W.3d at 447 n.3 (Tex. 200J) (recognizing that the as: (I) the percentage of pay base that a service member formula was altered). Bony also altered the [''II) accrues toward retirement for every creditable complete valuation ponion of the fonnula. requiring the value of year and month of service; (2) the service ["13) the benefits to be calculated at the date of di\'orce. member's pay g<adc; and (3) the scn•ice member's pay Sl1a11k.<. I /0 S.II~Jd a/ 447 11.J. Thus. the Bem• formula base at the service member's pay grade and longevity at prevents a ['286) divorce court from awarding to the the time of the divorce or at the time of retirement, non-employee spouse any portion of a posr-divorce whichever is applicable. See Caracdolo v. Cara,·cio/o, increase in retirement benefits that would invade the 151 S.llc3d 568, 571 (Tex. App.--San Antonio 2007, no employee spouse's separate property, such as pet.). Computation of retired pay for members of the post~divorcc raises. promotions, services rendered, or armed forces is found in chapter 71 of title 10 of the contributions. See Ben)', 647 S. W1d al 947 (holding Uniled Sllltcs Code. See 10 U.S.C.A. §§ 1401 post~divorce increases attributable to pay raises and (computation of re1ircd pay), 1405 (years or service). union-contract negotiations for an improved benefit plan 1406 (rclired pay base for members who first became arc not part of the parties' estate subject lo division on members before September 8, 1980: final basie pay), divorce); Stavinoha l'. Sta\'l"noha, /26 S. H~3d 604, 610 140i (retired pay base for members who first became (Tex. App.--Hous/on f 14111 Dis/.] 1004, no pel.) (citing members after September 7, 1980: high-36 month Ben-y). However, a divorce court may award the avemgc), 1409 (retired pay multiplier); see also id. § non-employee spouse her shan: of any post-divorce 8991 (computation of retired pay for member of the Air eost-of-li\'ing increase in the rctiremcnl benefit. Force). Limbaug/1 v. Limbaugll. 71 S.II'Jd /, /6 11.12 (Tex. App.--Waco 2002, no pet.). Husband claims lhal his retired pay base should be calculated using section 1407 rather 1han se,·tion 1406 of Here, Husband was not retired as of lhe dale of the United Slates Code because he first became a member divorce. The DRO slates that: "Member was on active of a unifomtcd service after September 7, 1980. The duty with the U.S. Air Force at ~1e lime this Order was DRO appears ro calculate Husband's retired pay base entered." The fraction used 10 calculate Wire's under .vection 1406 (retired pay base for members who community interesl in Husband's [••12] retired pay first became members bcrore September 8, 1980) because should follow the Berry• formula. Therefore, the the fraction's numeralor [••t4) uses Uusband's monthly applicable fraction is the number of monlhs Husband and basic pay at Husband's pay grade. S-. id. § 1406. Under Wife were married during HusOOnd's employmc;nt under sectimJ 1407, the high-36 monlh average is used 10 the retirement plan divided by the number of months calculate the ['287] retired pay base for those who first Husband was employed under the rc1iremen1 plan at the became members of a unifonned service aner September time of divorce. We sustain the portion ofHmi>and's first 7, 1980. 0 ld. § 1407. "High-36 montl1 average" means ~ssue d~alin~ with the calculation of the communi1y "the total amount of monthly basic pay to which the m1cres1 1n rcurcd JXIY found in the ORO. We reverse and member was entitled for lhe 36 months (wbelhcr or nol remand for the lrial Coun to adjust the formula in the consecutive) out of all the months of active- service of the member for which the monthly basic pay to which tbc

PageS 348 S.W.Jd 281, "287; 2011 Tex. App. LEXIS 4909, ••14

member was entitled was the highest, divided by 36. 11 !d. Therefore, we sustain the portion of Husband's first § 1407(c). Therefore. evidence of when Husband began issue dealing with the calculation of the retired pay itself unifonncd service is essential to Husband's argument that found in the DRO. We reverse and remand for the trial lhe "high 36" formula should be used 10 calculate his court to adjus1 the fonnula in the DRO to be consistent relired pay base. The existing formula in the DRO with federal and state law. references ''26+ years of creditable service as of 01/01/2010." This reference indicates thai Husband had Wife's Beneficiar)! Status 26 years and some months of creditable service in the military as of 0 1101/20 I 0. 7 Based on the reference in the Finally. Husband argues that the DRO is inconsislent DRO lo "26+ years of creditable service as of with the agreed di\'Orce decree in that the ORO pro\'ides that ''(f]onner Spouse shall be deemed to be lhe 01/01/2010:' Husband must have begun military service after September 7, 1980, and, therefore, the high·36 beneficiary of the Survivor Benefit Plan ("SBP") annuity month average will be used to calculate his relircd pay through Member's military relirement and Member shall cxcculc any documeniS as are required to make the [""IS] bo.<e. See id. § 1407. designa1ion of Former Spouse as said beneficiary." The 6 There is an exception for enlisted members agreed divorce decree docs not specifically divide the reduced in grade and officers who do not serve SBP annuity or mention Wife's status [••t7] as a fonner satisfactorily in the highest grade held by the spouse beneficial)' lo the SBP annuity.R officer. /d. § /407(0. In that ca.•e. section /406 applies. /d. § 1407({)(1). There is nothing in the 8 The divorce decree does make one reference to record lo suggest that Husband falls into Ibis sun•ivor benefits. Under the heading "Support as exceplion, thereby triggering section 1406. Obligation of Estate," the trial court ordered that 7 To detennine a member's years of service1 the provisions of child supporl in the decree "coch full month of service that is in addition to remained the obligation of Husband's estate and the number of full years of service creditable to did not tcrminale on his death. The decree states the member shall be credited as 1/12 of a year; that "[p)aymeniS receh•ed for the benefit of the and any remaining frnctionol part of a month shall children including payments from the Social be disregardcd."/d. § /405. Security Administration, Department of Veterans I Affairs or other governmental agency or life Husband further argues that for purposes of di\•ision insurance proceeds, annuity payments, trust I ' of his military retirement benclits upon divorce, lhc high-36 n1onth average should be calculated as of the distributions, or retireme1U SJII1'ivm· benefits. shall be a credil against this obligation." (Emphasis date of dh•orce. rather than the date of retirement We added). agree. See Grier''· Gr·ier, 7JI S.W2d 9JI. 932 (Tex. 1987) (holding that "in apportioning military retirement The divorce decree orders Husband to benefits upon the dissolution of a marriage, lhe valuation purchase life insurance and name Wife as primary of the communiry's interest in such benefits is to be based hencfic:iary for the benefit of the children as on the retirement pay which corresponds to the rank additional child support, but there is no indication actually held by the service spouse on the date of the that the life insurance is a reference to the SBP divorce"); Caracciolo, 251 S.W.Jd at 572 (.. 16] annuity. The decree states that Husband must (husband lcstificd that "high 36" plan was only retiremenl maintain the life insurance policy in full force and option und calculated "high 36" based on average base effect as long as child support is payable under pay during 36 months preceding. divorce). the tem15 of the decree.

Husband also contends that the denominator of this (*288) Under federal law, a member of the anned fraction (bottom fraction above) should be Husband's forces (I) who is entitled to retired pay or (2) who would "gross re1ircd pay on the date of his rctircmcnl11 ralher be eligible [""18] for reserve-component retired pay than "active duty base pay of Member as of his date of except for the fact that he is under 60 years old is eligible retirement." We agree that Wife is entitled to a to participate in the SOP. 10 U.S.C.A. § percentage of Husband's dispo~ble n:tiredpay. 1448(a)(l)IA)-!B). The SBP applies to eligible <crvice I ' members who arc married or have a dependent child

Page 6 348 S.W.3d 281, "288; 2011 Tex. App. LEXIS 4909, ""18

when they become entitled to retired pay or eligible for testimony at the hearing on lhe motion 10 correct or reserve-component retired pay. ld. § /448(a)(2J(A)-(8). reform the judgment. Sec Tex. R. App. P. 47.1. The eligible service member may elect lo pro\'ide an annuity to a fom1cr spouse payable upon the member's B. FINAL DECREE OF DIVORCE death. ld. .H /448(b)(l)-{3), 1450. Assuming that the ln his second issue, Husband contends that the lrial slatute applies to Husband, 9 he n1Ust. at the time of court erred by allowing reference [•289) to the ORO to making the election, provide "the Secretary concerned be stricken from the di\•orce decree. with a wriuen stalemcnt" selling fonh whether the election is being made pursuant to court order or pursuant A party cannot appeal from a judgment to which he to a voluntary wriucn agreement as part of, or incident to, has consenlcd or agreed unless there is an allegation and n divorce proceeding nnd, if so, whether the voluntary proof of fraud, collusion, or misrcprcscnlation, Boufaissal wriuen agreement has been incorporated in, or mtificd or ''· Boufaissa/, 251 S.W. .ld /60, 161-62 (Tex. App.--Dallas approved by, a court order. /d. § /448(b)(5). A court 2008, no ptt.). Husband attested by his sib'IIOIUre that he order means ''a court's linal decree of divorce, approved and consented to the divorce decree as to both dissolution, or annulment or o court ordered, ratified, or form and substance. In the body of the decree, the trial approved property settlement incident to such a decree .. coun found that the panics hod entered into a written . ."/d.§ /447(13). agreement as contained in the decree and, to the extent pcnniucd by law, the parties stipulated thai the agreement 9 n A person who has a former spouse upon was enforceable as a contract. Despite this fact, Husband becoming eligible [.. 19] lo participale in the argues that he did not agree to the deletion of the Plan may elect 10 provide an annuity lo that language "as awarded in a Domeslic Relations Order" in former spouse." Jd. § 1448(h)(2)(A). In addition, section W-6 [ ..211 of 1hc decree because his attorney ''(a] person who is a panicipant in the Plan and is did not initial this deletion. This argument is without pro\•iding coverage for a spouse or a spouse and merit. Allhough it is true that only Wife's attorney's child (even lhough there is no beneficiary initials arc listed next to the deletion in seclion \V-6, the currently eligible for such coverage), and who has same deleted reference appears in the corresponding H-6: a fanner spouse who was not that person's former Husband does not complain about the same deletion here spouse when lhat person became eligible to even though only Wife's initials and her attorneYs initials panicipate in 1he Plan, may [subject to limitation] appear next to it. It elect to provide on annuily to that fonner spouse." /d.§ /448(b)(J)(A)(i)(l)-(lJ). II W-6 awards Wife a 50 percent portion of the community sums as a result of Husbnnd's past or Here, the agreed divorce decree docs not require Husband to name Wife as a former spouse beneficiary to present employment H-6 awards Husband all an SBP annuity.IO Because the DRO is not part of the sums us a result of Husband's past. present, or panics' agreement and it imposes an additional obligation future employment. except that portion awarded to Wife in the decree. not included in the agreed divorce decree, the trial court erred by including this obligation in the ORO. We sustain Because Husband consented to the decree and has 1his ponion of Husband's lirst issue. \Ve reverse and not made an allegation or fraud, collusion, or remand for the trial court to remove the reference to misrepresentation, we overrule Husband's second issue. Wife's st.ntus as fanner spouse beneficiary of Husband's SBP in the DRO. C. A ITORI\"EV'S FEES ! LO The informal sculcmcnt agreement docs not In his third issue, Husband argues that the trial court specifically address the SBP either. abused its discretion by a\\'arding sanclions against him for filing a motion to correct or rcfonn lhe judgme01. To summarize, we rc\'crsc lhe ORO for lhc reasons staled and remand to [.. 20) rhe lrial court for funhcr In her response to the motion to correct or refom1 the proceedings. Because of our disposilion of this issue, we judgment, \Vifc contends that the motion is groundless need nol address Husband's contention that lhc lrial court and brought for the purpose of harassment. Wife requests abused its discretion by excluding Husband's expert

Page7 348 S.\V.3d 181, *189: 2011 Tex. App. LEXIS 4909, **21

reasonable attorney's fees, expenses, and costs J,...22] HUSBAND'S COUNSEL: No, Your chrough trial and appeal or, in the ahcmadvc, reasonable Honor. I got notice of 1500. attorney's fees, expenses, and costs through trial and appeal taxed as costs. Wife filed a separate motion for THE COURT; That's in her sanctions, sanctions pursuant to Texas Rule ofCh·il Procedure /3 in Counsel. which she conlends that the motion to correct or reform HUSBAND'S COUNSEL: That's in judgment is groundless and brought for lhe purpose of harassment. Wife requests reasonable expenses, including her sanctions motion. reasonable attorney's fees, incurred in obtaining an order THE COURT: And that's not before for sanctions. At lhe hearing on the motion to correct or the Court, she's not going on that. She's reform judgment, Wife agreed to pass on her motion for going on her response to your molion to sanctions and proceed with the allomcy's fees requested correct or refonn. in her response to Husband's motion. The trial court awarded Wife her auomcy's fees in the amount of$1,500 HUSBAND'S COUNSEL: Okay. So and expenses in the amount of S4SO for a total amowtl of these--these are not going 10 be sanctions, $1,950. they're going 10 be attorney's fees for what purpose? Husband's only contention on appeal is that the trial conn erred in awarding attorney's fees as sanctions. WIFE'S COUNSEL: I'll dismiss my However, the trial court's order does not state that it is motion for sanctions if you award the fees awarding the attorney's fees as sanctions. Likewise, the today. Obviously, it's not necessary to do exchange between the trial coun and the attorneys at the lhal. It's not set until sometime in July hearing on the motion 10 correct or refonn the judgment any\\'ay. indicates that the attorney's fees were not awarded as sanctions. Husband's only argument on appeal is that the trial court erred in awarding Wife's attorney's fees and expenses as sanctions. Because the record does not rcOcct THE (*'23] COURT: We're dealing his interpretation of 1hc proceedings, his argument is with a motion and your response. without merit. WIFE'S COUNSEL: That would be Therefore. [..,.24] we m·crrule Husband's third issue. my-- Ill. COSCLUSIOS THE COURT: Let me sec yours. She's asking for attorney fees, expenses We affirm the final decree of divorce and 1hc award and costs. You want lo respond to that. her of attorney's fees and expenses in the order denying the response, since we're nol going fmward motion to correct or refonn judgment. We reverse and [•290) on her sanclions, she's going on remand the domeslic relations order for funher the response. proceedings consistent with this opinion.

HUSBAND'S COUNSEL: Well, Is/ Adele Hedges Your Honor, the only -- Chief Justice THE COURT: Do you want to cross-examine her on anything?

Page I

b• LexisNexis{>) Do11gl:l~ Wayne JOY!\KR, Appcll:wl "·Jundt(' .\lnrit: JOVNEU, :\ppcllec

No. 04-10-IJIJ56J-CV

COURT OF APPI-:ALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

352 S. H"3d 746; 20} I Tc<. .4pp. LEXJS 6731

August 24, 20ll~ Dcliverctl Augusl 24,201 J, File-d

~UHSEQUENT HlSTORY:: R~!lc;:~scd f01· Publicntiot, fliT' rehearing is granted, We withdraw our npinion and

December 9, 2011. jlldgmcnl of April 6, 20 I I. nnd substitute this opinion mtJ ,.. i judgment A PRIOR HISTORY: 1"1] From the 40!::!h Jutlicial DJ~tricl Coun, Be:~~ CotUity, Doug uppcals the Lrinl court's or~kr denying h!$ Texas. Trial Couft No. 200H~CI-2133 I. 1-ltmotab/c David petition !br hill or review to s-et a;;; ide an agreed amc.nde.d A Bcrchclnumn, Jr., Judge Presiding. domestic rcl<llions order ·in a suit to darify his and )oyneJ' 1'. )nyllill', 1011 T('X. App. LEXJS 2516 (Tex. App. Appellc!! Jilndlc. !v1aric Joyner's. dn'arcc decree and Son A11to11io, Apr. 61 2()1 1J nttcmlant domc~tic rclntions order) In his pelition; Doug Hss~ncd th:11 th~- trial caun !;:~eked jllri.sdiction ·to elHer the

lliSI'OSJTJON: REVERSED & RENDERED. ord~.:r because il impcm1issibly modified the Sub.'it:Jntivc division of his military rc::lircmcnl bcncfit:'i. The trial coml denied Dn11g's ('lctition fOr bill (lf review. \Vc reverse the COL'i'\SEL: For APPELLANT: William Dougla.-; trial coml's order denying lhc l.-*2] bill of rCYicw and Bincham. Law Offices Or William Dougln.s Binchnm. \·ac.atc the Am.:ndcd Domestic I~ elations Order. Swt Antonio. TX. Doug di..:-d prior lo !his appc::al. The Notice ot' For APPELLEE: Michael D. Bowles. Al\orncy At I-'ll\', Appc:a\ ln :.hj~ case was IHcd in Douf(S name by San Antonio, TX. Stephanie Joyner, Doug1s survivin·g spousc. Jaitcllc argues thal there is no showing \hut .IUDG.ES: Orinion by: Rebecca Simmons, Juslit::c. Stephanie. has authority to prosecute this ~.Jlpcal, Silling; Sandcc Bryan tvbrion, Juslicc, Rebecca 1 ' 1[ u party to a civil case t.Hcs allct- the Lrial court

Simmons. Ju!ttice, Steven C. 1-l!lbig. Justice. rl!nd~rs judgment but bcfotc the c;~se has Peen nn~tlly di:;poscd of on appe~tl, the appeal may be OPJNIO,"\ B\': Rt:becc<1 Simmons pcr1'cl~tcd~ ;;md [w~] will proceed to ltdjudicatc the nppeal n.:> if all parties were alivc.' 1 THX. R. A flP. !'. OPINION 7.J{a){/).

[•7471 HEVERSED & RENDERED BAChGIW\.1~0

Appellant Doug!Cis (Doug) \Vayne Joyner's motion Doug and Jandlc were di.,•orced in October .100 1.

Pagc2 352 S.W.3d 746, '747; 2011 Tex. App. LEX IS 6731, u2

The: divorce decree awarded Janelle a portion of Doug's trial court signed an order on June 22, 2007, denying the militnry retirement bcncfito;;. and stated that her Ponion motion for new trial. would be ''more particularly defined in a [*748) Domestic Relations Order. •• The court subsequently Doug retained new counsel and filed a pctilion for entered a [)omestic Relations Order (lhe DRO) awarding bill of review in December 2008 attacking. the jurisdiction Janelle 50% of the community share of Doug's of the trial coun to modify the property division in lhe I hypothetical retired pay, adjusted for cost of living ORO and divorce decree. After a preliminary hearing, the adjustments.2 Afler Doug retired from active service in trial court denied Doug's petition because Doug did not j December 2005, the Department of Finance and establish the clements of a bill of review: that another :I Accounting Services (OF AS) mistakenly began paying party, through fraud or acciden~ prevented him from Janelle 50°/o of Doug's actual disposable retired pay, nn asserting a meritorious defense. See EastiiJ v. Dial, 288 umount that was much (' '3] higher than what she wus S.W.3d 491, 497 (Tex. App.--San Alllonio 2009, pet. awarded in the divorce. denied). The trial court also found that Doug was at fuult or negligent by failing to pursue other legal ('*5] 2 The divorce decree described Doug's remedies. Doug's appeal followed. hypothetical retired pay as '(t]he disposable n10nthly retired pay of an E-7 with 16 years, 3 BILL OF REVIEW months of accrued crediaablc military service at date of di\'orcc.'' The trial court denied Doug's petition for bill of rC\'iew because he failed to satisfy the fonnal Doug, who was living in Arizona at that lime, requirements for a bill of review. Doug argues that if the retained local counsel to correct the mistake. Doug's record reveals that the trial court lacked jurisdiction to attorney filed a motion to clarify the ORO. In July 2006, enter the Amended DRO. he need not mecl lbe fom1al DF AS sent a lc11er to Doug and Janelle acknowledging requirements for a bill of review. \Ve agree. If a direct that it had overpaid Janelle for six months. DFAS also attack seeks 10 set aside a judgment because lhe lrinl stated lhat it had established a debt against Janelle's court lacked subject mauer jurisdiclion, the petitioner future payments and credilcd the amount of her debt to need not satisfy rhe formal bill of review requirements for Doug. In August 2006, the ponies entered into a Rule II the court to consider d1e jurisdictional challenge. agreement (the Agreemcnt)l in which the parties agreed Sweetwate1· Austill Props. LL.C. ''· [•749] SOS to the entry of an amended domestic relations order that Allia11ce, llu·.. 199 S.U,3d 879, 889 (Tex. App.--Au.rti11 was similar to the original DRO but provided that 2009. pet. Jellied): see also Middleton 1'. Mw:ff. 689 Janelle's interest was 37"/o of Doug's disposable retired S. W.ld 212. 213 (Tex. 198S) (per curiam) {op. on motion pay. In February 2007, the court signed an Amended ror reh'g). We. therefore. tum to the question of whether Domestic Relations Order (the Amended ORO) the coun lacked jurisdiction lo enter the Amended DRO. incorporating the lenns of the Agreement Jt!RIShiCTIOS 3 The Agreement was signed by the judge., Janelle, Janelle's auomcy, and Doug's anomey, Doug ar-'llcs that the Amended DRO is void because but not Doug. il modifies the substantive division of property fron1 the divorce decree and ORO, which provided un In March 2007. Doug's attorney moved for a new unambiguous award to Janelle of Doug's military trial because the Amended ["4] ORO did not address retirement benefits. Doug's DFAS credit and impennissibly changed the terms of the divorce decree. TI1e trial court granted the A. Stondard of Review & Applicable Law motion on the condition lhat Doug pay Sl,200 for Whether a trial court [u6] has jurisdiction is a Janelle's attomey's fees by June 7, 2007. The order slated question of law that we review de novo. Tex. Natw·al that 11 if the auomcts fcc payment condition herein is nol Res. Couservatioll Comm'n "· JT-Da1ry, 74 S.lf'.3d 849, timely mel, the Motion for New Trial is denied." Doug's 855 (fe.t. 2002); Guei'DI"tl v. H.E. Butt Grocery Co .. 81 counsel thercaflcr withdrew, and Doug alleged thai he S.W3d 550, 551 (Tex. App.-Sa11 A11to11io 2002. pet. was never aware of the conditional motion for new trial. dc11ied). The issue of jurisdiction in this case turns on When Janelle's attorney's fees were nol timely paid, lhc

Page) 352 S.W.Jd 746, •749; 2011 Tex. App. LEX IS 6731, ••6

whclhcr the trial coun modified or clarified d\C DRO effect to the entire decree." Shanks " Tregdwav /JQ when il enlered lhe Amended ORO. s w ld 441 147an 200!1. "'[J]r lhc decree, when read as a u•hole. is unambiguous as to the propeny's Any pany affected by n divorce decree may seck to disposition. the court must effectuate the order in light of enforce the decree by filing an enforcement action. TEX. the literal language used."' Jd, (quoting Wilde''· M1trcllie, FAM. CODE ANN.§ 9.00l{ii) (Wcsl 2006). The !rial court 949 S.IY.Zd 331, 332 (Tex. /997) (per curiam)). However, that rendered the divorce decree generally retains the if the decree is subject 10 more than one reasonable power to enforce or clarify the property di\'ision interpretation and is therefore ambiguous, coons should approved or or conU!incd in lhc decree. ld. §§ 9.002, apply lhe conSlruction lhal correclly applies lhc law. /d.. 9.006(a}, 9.008. Jr a court finds lhal u•• original ronn or ''[W)hcthcr a divorce decree is ambiguous is a question of the division of property is ambiguous or not specific law," /.d.. enough to be enforceable by contempt, the court may cnlcr a clarifYing order to enforce compliance wilh the B. Discussion original division orlhe propcny.ld. § 9.008(b). Howc\'er, "[a]n order ... that amends. modifies, alters. or changes Doug and Janelle's divorce decree prO\•idcs that the actual, substantive di\·ision of property made or Janelle is enlitlcd lo "[a) portion or [Doug)'s bencfilS in approved in a final decree of divorce ... is beyond the the military pension plan arising out of [Doug's] power of the divorce court and is unenforceable.'' /d. employment with the military, that portion being 50% of ["'7] § 9.007{b); .<ee also Pearcy 1'. Pearcy. /184 S.W.ld the community interest and more panicularJy defined in a 5/2, 514 (Tex. App.~-San Antonio 1994, no ll'rit). Domestic Relations Order." The ORO formulated Janelle's entitlement as follows4: When interpreting a divorce decree, courts should construe the decree "as a whole to harmonize and give

195 monlhs The disposable monlhly Tolal Credilable relired pay of an E· 7 wilh 112 X Months or MiliU!ry X 16 yea.., 3 monlhs or Service Forffoward accrued creditable Retirement, at Time of military ser\'ice at date of Retirement divorce.

251 S.W.3d 568. 572-73 (Tet. App.··Sall Antonio 2007. [*750) II [*"8] also provided lhat she was cnlillcd 110 pel.) (upholding subsU!nlially similar language to a share, attributable to the communhy interest. of any describing a legally correct formula); see also Berr;1' 1•. cost of li\'ing adjustments. The panics do not dispute that Berry•, 647 S. W.2d 945. 947 (Tex. 1983) (appro,·ing an Doug re[ired from active military service in December almost-identicnl formula for determining the 2005. after 275 creditable monlhs or miliU!I)' service, and non-employee spouse's community-propeny award). staned receiving retirement pay the following month. Therefore, the 1rial coun was wi1hout jurisdiclion to Under the ORO, Janelle therefore was entitled to modiiJ the ronnula. Sec TEX. F.m. CODE ANN. § 35.4545% of SI ,215, Doug's adjuSied hypolhelical rclired 9.1107(b); Pean:v. 884 S. W.2d al 514. pay. The Amended ORO, however, cnlillcs Janelle lo 37% or lhc $2,206 in disposable relired pny lhal Doug 4 From [**9] lcfl lo right, the first operand was entitled 10 as of the date of his retirementS Janelle's represents Janelle's half interest in the communily award of Doug's military retirement benefits under the property; the second represents the community ORO is nol ambiguous because il is expressed wilh share of Doug's retirement benefits; and the third mathematicnl certainty. See Cal'acciolo ''· Caracciolo, rcprcscnlS Doug's hypolhclical relired pay. ::: ,·., ·••I

Page4 352 S.W.3d 746, *750; 2011 Tex. App. LEXIS 6731, ''9

Pagt: I

Page 2 110 S.W.3d 444, "445; 2003 Tex. LEXIS 87, ""3; 46 Tex. Sup. J. 840

Page 3 110 S.W.3d 444, '446; 2003 Tex. LEXIS 87, "6; 46 Tex. Sup. J. 840

division of retirement [U7] benefits. However. w.hcn the ("8) Ill. Interpreting the Dlvor<e Decree decree in question was entered in 1981, Cearley and Taggart 1'. Taggart, 552 S. W. 2d 422, 20 Tex. Sup. Ct. J. Notwithstanding the state of the law at tbc time the 334 (Tex. 1977). provided trial courts the fonnula to use divorce decree was entered, this case docs not involve a in determining the communil)• interest in reliremenl direct appeal, and we must interpret the decree to benefils and the non-employee spouse's share of that delemline nol what the triol court should have done but, interest. The Court used a fraction to apportion the if possible, what dte court actually did. When interpreting communiry inlerest: the number of months married under a divorce decree, courts apply the general rules regarding the plan divided by the total number or months employed construction of judgments. Wilde ''· Murchie, 949 S. Jll. 2d under the plan at the time of retirement. Tuggal"l, 552 3JJ, 332, 40 Tex. Sup. Ct. J. 910 (Tex. 1997) (per curiam) S. W.2d at 424. That fraction was multiplied by the (citing Constance v. Co11stance, 544 S.l"2d 659, 660, 20 non-employee spouse's ·~ust and right'' share in the Tex. Sup. Ct. J. 106 (Tex. 1976)). Judgments should be contmunity inlercst as dclcnnincd by the trial court (oficn conslrued as a whole to harmonize and give effect to the fiffy percent) and then multiplied by lhe value of the entire decree. CorrslaiJce, 544 S.IJI.2d al 660. "If the bencfil<i rccei\'ed by the employee spouse at retirement. decree, when read as a whole, is unambiguous as Ia the Jd. 3 When the trial [*447] court entered George and propcny's disposition. the court must effectuate the order Kcnda's divorce decree, it should have employed the in light of the literal language used." Wilde, 949 S.IY.2d Taggart fonnula to divide the retirement benefits, though t1t 3J2; ,,ee also BtL<I<I' v. Ruddle, 794 S.IV.2d 761, 763, of course lhc court would not have been able to insert 33 Tex. Sup. Ct. J. 687 (Tex. /990). 1r the decree is numbers for the denominator of the community interest ambiguous, the court should review the record along with fraction or the value of the benefits, which could not be I he decree to aid in interpreting the judgment. Wilde, 949 dc1cm1ined until retirement. S. W.JJ at 332. In addition, if a judgment is ambiguous (**9) - that is, subject to more lhan one reasonable 3 The Bel'l)' decision ahercd this rormula. 647 interpretation - couns should adopt the construction that S.11'.2d at 947. Although the Coun in Beny correctly applies the law. Ma,·G•·egol'\'. Ric/1, 941 S.IY.2d expressly declined to overrule Taggm·r with 74. 75, 40 Tex. Sup. Ct. J. 298 (Tex. 1997) (per curiam). regard to dte apportionment fraction, it As with other written instrumcnls, whether a divorce nevertheless effected a change in the fraclion's decree is ambiguous is a question of law. Coker ''· Coker, denominator 10 the number of months employed 650 S. W.2d 391, 394, 26 Tex. Sup. Ct. J. 368 (Tex. /983). unc.Jer the plan at the time of divorce. Jd.; see also G1·ier v. G•·ier, 731 S. W.2d 93/, 932, 30 Te.<. Sup. The decree in question identifies George's pension Ct. J. 416 (Tex. /987). BmJ• altered the valuation plan as "arising out of past employment, 11 but then states portion of the formula as well, requiring the value that Kenda is entitled to 11 3 'pro rata interest' ... of any of the benefits to be calculated at the date of and all sums received or paid to [George] from such divorce lo avoid invading the employee spouse's pension plan . . . ." The decree also defines "pro rata separate propcny. 647 S.W.2d at 947. It should be in1eres1" as "25% of lhc total sum or sums paid or to be noted that serious concerns hD\'C been raised paid to [George) from such pension or retirement plan." regarding the Berry formula's failure to accounl TI1e decree does not set out a specific Taggan..Jike for postadivorcc increases in the value of fonnula to be used in calculating Kenda's inlerest. retirement benefits attributable· to community propcny contributions to 1he plan. Brown, 3 7 The court of appeals concluded, and we agree, that the decree is unambiguous, and Kenda should receive BAYLOR L. REV. at 152-62. In addition, the twenty-five percent of George's total retirement bencfilS. problems associated w1th valuing benefits differ depending on the type or plan heing divided. /d. at The phrase "arising out of past employment as an 112-17, 152-62 (discussing the differences employee of American Airlines" (emphasis added} does between defined benefit plans and defined not render the decree ambiguous, as George argues; contribution plans). J-Jo\\'C\'er. the facts of the case rather, [*"'10] it merely serves 10 identify more currently before the Coun do not provide us lhc specifically the property that is being divided (i.e .• .I opportunity to address those concerns in this George's retirement plan). 4 ('448] As noted by the opinion. courl of appeals, the lrial court awarded Kenda an interest

Page 4 110 S.W.3d 444, *448; 2003 Tex. LEXIS 87, **10; 46 Tex. Sup. J. 840

of all sums received 'under such piau, not an intc:rcsl of 1hcreforc urges us to interpret the decree to award Kenda presently accrued bcnctils under such plan. //0 S. W.3J at an interest in only the community portion [UJ2j of the 6, 2000 T<x. App. LEXIS 7945. And the plan that was in plan to avoid attributing to the trial court an intent to existence at the time of the divorce and referred to in the divide separate property, which it lacked aulhority to do. decree is the same plan in effect now that George has That argument is nawcd in two respcciS. First. h retired. The fact that lhe plan's \'aluc may have increased O\'erlooks the fact that applying Taggarl, which was the since the divorce does not affect the dccree•s plain controlling law at the time the decree was cn1ered and language, which simply cannot reasonably be construed required benefits to be \'alued at the time of lheir to award Kcnda an interest only in the plan benefilS that disbursement, would probably dives! George of a portion had accrued on the dale of divorce. Whether intentional of his separate property anyway. In fact, the reason the or not, the court that entered the decree failed to limit the Court allered the requisite fonnula in Berry was to avoid community inlerest pursuant to the Taggart im•ading a spouse's separate propeny. See supra note 3; apportionment fraction and inslcad clearly gave Kenda a Ben,•, 647 S. W.2d at 947. S This lension dcmonslratcs the lwcnty·five percent inlcrcst in tbe total amount (whatever difficulty inherenl in di\'iding pension plans that involve thai might be) lo be paid to George under the plan. both separate and community property and indiea1es that interpreting such a division is not as simple as presuming 4 Although George's relitcrncnl benefits include a lack of intent to divide separate property. 6 both a defined benefit plan and a defined contribulion plan, lhe decree referred to them as a 5 We reiterate that e\'en after Berl";&' was decided, single plan. Because this is not a direct appeal, it concerns about in\•ading separate property is unnecessary to address at lcnglh the myrind remained. Brown, 37 BAYLOR L. REV. at differences between the two types of plans. 152-62. Nevenheless, trial couns should take into serious 6 We recognize lhe imponance of safeguarding consideration the kind of plan al issue when individuol propcny rights, bul significonlly, il was dividing and valuing retirement benefits. See not until 1977 in Eggemeyer that this Court supra note 3; Brown, 37 BAYLOR L. REV. al expressly and unequivocally held thai a court 134-36, 156-62. cannot divest a spouse of his or her sepamtc propeny upon di\'orce. Eggemeyer, 554 S. W2d at [**I I] Viewing the division of the rlan benefits in /4]. light of the decree as a whole, the fact that the court awarded Kenda only a twenty-five percent interest in the [..,.13] Such an analysis is also problematic because plan also supports our interpretation. Trial judges musl the fnct that the district court erroneously (*449] applied carefully review all community assets in making a "just the law when il entered the divorce decree does not aher and right" division of those assets. and the retircmenl lhe decree's plain language. ln Bcu:ter. which was decided benefits \\'ere one of the assets considered in this case. after Ben·y. 1he divorce decree in queslion awarded the See Busby 1'. Bushy, 457 S.lrld 551, 555, 13 Tex. Sup. non·employee spouse 11 37 1/2% of [the employee C/. J. 485 (Tox. 1970). Given the complexities involved spouse's] gross benefits, if, as and when he received in dividing this type of asset. perhaps the trial court them. TI1e decree also provided dtat [lhe non~employee inlended to achieve an overall just ond right division by spouse] was to receive 37 1/2% of the total benefits that awarding Kenda a lesser interest in the total value of the (the employee spouse) received each month.'' 794 S. IV.2d plan at retirement rather than a grcalcr interest in a <1/ 763 (emphasis removed). We held that "this language smaller portion of the benefits. We simply cannot know unambiguously pro\'ided that [the non-employee spouse] with certainly becaus~ 1he decree was never appealed. In wns to receive 37 1/2% of lhc total retirement benefits any event. our responsibility is to conslruc the decree as received by [the employee spouse] each month, including written. any pOSI· divorce incrcoscs. 11 /d. 7 We therefore enforced thl! decree as written even though it conflicted wilh It is true, as George points oul. that Texas law Berry. ld. Similarly, we mm;.l enforce the decree as prohibits coons from divesting spouses of their separale written in this case even though it conflicts with Taggan. property. Eggellwyer ''· Eggenu.•ye1·, 554 S. JY.2d JJ7, 139-40, 20 T<x. Sup. CJ. J. 308 (Tex. 1977). Rut George 7 \Ve note, however, that we disagree with the

PageS 110 S.W.3d 444, •449; 2003 Tex. LEXIS 87, .. 13; 46 Tex. Sup. J. R40

court of appeals' conclusion in lhis case that the S.ll'.ld 675, 679 !Tex. App.-E/ Pam 1993, 11ril denied): phrase "if, as, and when received'' is "a lcnn of art see also McGe!Jee v. Epley, 661 S.ll~2d 914, 925-26, 17 evidencing an inlentto value a pension plan at the Tex. Sup. C/. J. 45 (Tex. 1983) (slaling lhat clarificalion time of receipt rather than at the time of divorce." orders cannot be used to effect a substantive change in a 110 S.W.3d nl 6, 2000 Tex. App. LEXIS 7945. In divorce decree after the trial coun's judgment becomes Cearley, when we recognized contingent pension final), George's remedy for a substantive enor of law by benefits as community property rights subject Ia the trial court was by direct appeal, and he cannot now division upon divorce, we acknowledged that "it collaterally auack the judgment. Alapco, l11c. v. FmTest,

'i ,-I 'I may be necessary in n1any instances for the judgment to make the apponionmenl lo the nonrctiring spouse effective if, as, and when the 795 S.Jl~1d 700, 703, 33 Tex. Sup. C/. J. 303 (Tex. 1990); Baxter, 794 S. W.2d ol 762; SliltsOII ''· Slitrson, 668 S.W2d 840, 841 [••IS] (Tex. App.-San Antonio /984, ' benefits arc received by the [employee] spouse." wril refJ 11.r.e.). The district coun was therefore without 544 S. W.2d a/ 666, The lcnn lhus rcOcciS the au~tority to enter a QDRO altering lhc tenns of lhc contingent nature of the community's interest in decree by limiting Kenda to a twcnly-five percent interest the retirement benefits and not necessarily the in the bcncfiiS that had accrued under the plan at the time value of that interest of the divorce.

(UJ4] Kcnda argues that the district court cannot IV. Conclusion change the substantive division of property made in the original decree. We agree. While the court may enter a The divorce decree is unambiguous and awarded ..clarifying order'' to enforce compliance with an Kenda Treadway 1wemy-five percent of George Shanks's insullicienlly specific decree, TEX. FAM. CODE § tot.al relircrncnl bencfiiS. The coun of appeals was eonecl 9.008(h), a court "may not amend, modify, alter, or in reversing the district coun's judgment, and we change tl1e division of property made or approved in the thcrcrore affinn lhc judgment of 1hc coun of appeals. decree of divorce." /d. § 9.007(a). The original decree in llarriel O'Neill this case is unambiguous, and the trial court had no authority to enter an order altering or modifying 1hc Juslicc original disposition ofproperty./J.; Pierce,,_ Pie1·ce, 850

Page I

LexisNexis® KAIUW H. STATJN, l'lalntirr- Appellant'"- DEVTSC\1£ HANK NATIONAL TJtUST COMPANV 1 as Ttustcc 1 ftll"lltcdy ~mowu 1ts llnnkcrs Trust Company, us Trustee fur Ccl'ttficnlc Buldcrs or Saco I; JP J\IOHGAN CHASE FlANK~ NATIONAL ASSOCIATION, as Mnt·t~•gcc; EMC ~IOIITGAGE COHPOIIATION, as Foruu:r :\lurt~a~cc. DcfcL1tlants- Appellees

7\n. I.J·21111l0 Summary Calendar

UNITED STATES COUI!T OF ,\I'I'EALS FOR THE FIFTI1 ClllCUI"l"

11114 (i..l'. App,J.EXIS 2406-f

Occembu 19~ 20J 4. Filed

:'\OTIC£: PLEASlo REFER TO FEDERAL IW/.ES OF APPELLAII': PROCEDURE RULe 32.1 GOVERNING TifF. CTTATION TO UNI'UBLISIII',D * n"' l'msuanl to jJH CJH. 1?. 47.5, the courL hns OPINIONS. dclcm1i nc.d thnt this tlp_inion should not be published nnd is not prcccdcnl .cxc(!p_t under .the PRIOH HISTORY: [*I] Appeal trom the UniteJ limited circumslanccs SCl ronh in 5T!I CJR. R. SUHCS Difitricl Coun ror the SoHthc:m DislrtCl or Texas. 17.5..1. USDCNo. 4:13·CV·3632. rn thi~ appc-<~l of a Ruh:: 12(b)(h) dit.:mis~nl of various claims chulkng_ing a forecJosurc, lhc Phlintirr comcnds COUt\SEL: KAREY BEIL\!ARD STATIN, Plaiuti[[- that the amoum at stake in Lhis lawsuit j,., insufllcicnt lo Appellant, Pro sc, 1-luustou, TX. wan-ant removal to fcdcml conn on divcr:.::ity grounds.

For DEUTSCIIE BANK NATIONAL TRUST L COMPA1\-'"Y. as Tntstet!. fOrmerly known us Banker;-; In lat~ November 2013\ Karcy Smtin lih:d suit in Trust Company, as Tntstec for Ccrliticalc Holders ()[ Texas state .court llgninst Dcmsche Bimk, JP Morgan Saco I, JP MORGAN CHASE BANK NATIONAL Chas~. a11t.l EMC Mortgage Corpomti"on. Statln, ASSOCI AT!ON, n> Mortgagee. EMC MORTGAGE <lppcaring pro se, alleged l*21 numerous violations of COHPORATION, as Former tdortgagcc, Defendant.$ - Texafi la\1.' arising from the Defcnd;mt~ treatment of his 1

Appellee-s: 1VIarcit: Ly1m Sehoul, Esq .• Kndic Pn:ston mortgage and attempt to fQrcclnl'c nn his hnme. Stt1tin B!..'nnion, \Villinm Lance Lewis, Esq. Quilling, Sc:ltllldcr, sought e-quitable relief voiding the lorcclosmc of his Lownds. Winslett & rv1oser, P.C.. Dallas, TX. horne cmd gmntlng tlme to sccun: nn additional loan to pay oiT S2S.OOO due on the mortgagc, a~ well as a .ll'llGES: Before DAVIS. CLF.MENT, and COSTA. declaration that the mor1g<Jge would be satisfied by a Circuit Judges. S2S,OOO payrucur. Statin sought no m~1nctary damages. OPit\ION The Dcf'cndants filed a LimelyNottcc ofRI!moval on

Pagc2 2014 U.S. App. LEX!S 24064, •2

the basis of diversity. The Notice of Removal contained a not cantest that the amount in controversy exceeds the single sentence addressing the amount in controversy: federal minimum jurisdiclional limits." Again, the Defendants (0 4] nuached no proof of the house's fair The real property at issue has a current markel value or the value of the other equitable relief. fair marker value of S87,SOG. They did not. for example, auach a coun(}' appraisal district1s assessment of the property, which is a common The value of the propcny is the rele\'ant consideration for way the amount·in·controvcrsy requirement is provc::n in determining amounc in controversy for these common the numerous foreclosure cases that have been removed foreclosure cases seeking injunclivc relief. Farkas ,., to federal coun in recent years. See, e.g., Valade= 1'. Ba11k GMAC Mortg.. L.L.C., 737 F3d JJ8, 341 (5th Cir·. of Am .. 1013 U.S. Dist. LEX/S 97092, 2013 WL 3559145, 201 3), but Defendants cited nothing ro suppon their "3-4 (W.D. Tex. lui)' I I, 2013) (noting that couns "rcl[y] S87,SOO valuation.' on county lax a.~sessors' appraisals to determine lhc value of properly in [amount in controversy] cases"); G01•ea v. The Supreme Coun recently decided that JPMorga11 Chase Ba11k, N.A .. 2010 U.S. Dist. LEXIS defendants do not need to attach evidence 130940, 2010 WL 5140064, •4 (S.D. Tex. Dec. 10, 2010) supporting the alleged amount in controversy 10 (explaining why "the appraisal value from the Harris the nolicc of removal. See Dart Cherokee Basin County Appraisal District" can '1detennin[e] the amount Operati11g Co., LLC v. Owe11.t, S. Cl. . 20/4 in controvcrsyn). Instead, the Defendants pointed to their U.S. 1.EXJS 8435, 1014 JVL 7010692, at 0 6 (Dec. allegation in the Notice of Removal that the house had a 15, 2014). Thai has long been our approach. See value of $87 ,SOG. The dislricl court denied the Motion ro Gebbia v. JVai-Mart Store.<, lire.. 233 F.Jd 880, Remand, holding only that "[a]ccording to Defendants. 882-83 (5tlr Cir. 20110). Dart Cherokee also the current fair market value of the Property is assessed at explained, however. that once the notice or $87,500, which exceeds 1he federal jurisdictional amount removal's asserted amounr is ''challenged," the of S75,0GG." The district court proceeded 10 the merits of parties "musl submit proof and the court [•3] Statin's claims, which it ultimately dismissed. decides, by a preponderance of the evidence, whether lhc amounl·in-conlroversy requirement II. has been satisOed." J0/4 U.S. LEXIS 8435, J0/4 JVL 7010692 at •5 (citing 28 U.S.C. § Starin filed this appeal. In addition 10 contesting lhe 1446(c)(2)(B)). Al~10ugh this discussion was district court's ruling on the merits. he also challenges for likely not made with lhc procedural posture of this lhc Orst lime on appeal the federal court's subject ["S] case in mind, it also docs nothing to cas1 doubt on matter jurisdiclion on the grounds thai the the prior case law cited below that provides a amount-in-conlrovcrsy requirement was not satisfied at procedure for 1his situation when the amount is the time of removal. first challenged on appeal. Defendants contend thai they satisfied the Stalin lhcn filed a Molion to Change Venue. Citing nmounl·in-controvcrsy requirement because. in their lhe Texas Ci\•il Practice &. Remedies Code, Stalin argued Notice of Removal, they assened a fact supporting the that venue was proper in stale court. The motion funher amount in controversy and it went unchallenged by the argued that "Texas has a legal right 10 litigale issues Plainti IT in the district coun. 2 Because subject matter arising out of its Courts, and its lands" and concluded that jurisdiction can nC\'cr be waived, however, a plainlifT ''defendant is improper, and premature in bringing his may challenge the amount·in-controversy requirement for claim and his 3J1SWer to this Honornble Court.'' Statin the firsl time on appeal. See Larremore \'. Lykes Bros. made no mention of diversity of citizenship, the amount Inc .. 454 F. App'x 305, 306-07 (5th Cir. 2011) (citing in controversy requiremenl, or uny other federal law. Williams''· Best BIIJ' Co., Inc., 269 F.Jd 1316. 1319-21 (I Jth c;,., 200/) (citing U11ilcd Food & Commercial Both the Defendants and the district court treated Worker.f Unio11, Local 9/9, AFL-C/0 \1, CclllerMark Stalin's filing as a motion to remand the case to state Props. Meriden Squal'c, l11c., 30 F.3d 298, 303-06 (2d court. The Defendants addressed the amount in Cir. /994) (e:"plaining the concerns that underlie the rule eonlfuversy requirement by arguing thai "Plainliff docs and "declin[ing]lo hold lhal the [plainrifl] ha.< waived irs

Page 3 2014 U.S. App. LEX1S 24064, •s

right to challenge for the first time [on app"!l1] the After it receives any relevant evidence from both defendants1 assertion of the amount in controversy set sides. the district court can assess whether the Defendants forth in the notice of removal 11 ))). The problem when the ha\'e met lheir burden of demonstrating by a issue is first raised on appeal with an insufficient preponderance of the e\•idence that the amount in evidentiruy record is that the removing party never had controversy was satisfied al rhe time of removal. See 18 notice of a need to produce evidence in the district court USC ,ii /446(c)(2)(B). Our determinalion !hat remand is and cannot now provide such evidence to lhe appellate warranred for development of a factual record on lhis court Courts, including ours, confronted with this issue is also supported by !he fact, of which we can take situation have thus remanded the case to the district court judicial notice because it comes from a public rccord,l so the defendant can submit evidence to suppon iLS !hat the county appraisal for !he property at the time of claimed valuation (*6) of the case. See Larremore, 454 removal was only $62,392. See Real Property [•7] F. App'x. at 307 ("[TI1e p1ainti!Ts] sought [only] Account lnfonnation, Harris County Appraisal District, declar.:uory and injunctive relief . . . Due to the ai'Qi/able at hup://www.hcad.org/ (appraisal as of Jnn. 1, incomplete nature of the faclual record, we cannot 2014). determine if lhc amount in controversy exceeds the jurisdictional requirement. ... [W)e think lhat a remand 3 "An appellate court may take judicial nolicc of for development of the record and dctennination of facl~. even if such facts were not noticed by lhc

jurisdiction is appropriate."). trial court. '1 Harris 1'. Bd. of Supe~isors of /..a. State Uni1•. & Agric. & Mech. Col/., 409 F. App'x 2 Defendants furtl•cr contend that lhe amount in 725, 727n.2 (5th Cir. 2010). controversy is satisfied because the amounl due on the loan exceeds $75,000, but the amount due The case therefore is REMANDED for 1hc limited on the loan does not maner as Statin is not purpose of dctcm1ining whether the amount in seeking to recover any of the loan. It would ntatter controversy exceeds S7S.OOO. if Defendants had sued Stalin for amounls due under the loan.

21312015 Texas Family Code- Section 9.006. Enforcement Of Dlvisloo Of Property- Texas Attorney Resoorces- Texas laws ------------------l Sem&h

onecle 1--; ,. C'uurl Opinions Texas Family Code- Section 9.006. Enforcement Of US Supreme Coun Division Of Property LIS To:-.: Court I aa' Bcmm=b Hnmc > ~ >famjlrfc.1c > Te~:o"IS 1-'mnlly Codr • 5f.'djnn 9.0116. F.nfotnml:'nt Of hhi~ion 0€ ProJil'rt)· Hoard of F'alcnt Appeuls

St:1lc Laws .J i Alabama I Ariwna I California l-1orida § 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except Georgia as provided by this subchapter and by the Texas Rules of Civil lllinoi:; Procedute, the court aay render further orders to enforce the Indiana divi~ion of property made in the de~ree of divor~e or annulment to !\J;tss;Jchusclls assi~t in th@ implementation of or to clarify th@ prior order. ~lil·hig.an (b) The court may specify more precisely the manner of ~\~\·ada effecting the property division previously ~ade if the substantive !'\ew,Je~e~· division of property is not altered or changed. i'\cw \'ork (c) An order of enforcement does not alte~ or affect the Korth Carolina finality of the dec~ee of divorce or annulm9nt beinB enforced. Ort.,;on Added by Acts 1997 1 75th Leg., ch. 7, § 1, eff. April 17, 1997. Jlenns~·knnia Texas Vi1-ginin Washington Section: ~ Jl.3ll4 l!.3.ll5 .!l.l!l!.l !l.lll!:l !lJ!ll3 !l.l!lM 9&05 9.006 !LllllZ !IJ!l!l! !1J!!19 !l.lllll !1.!!.11 !IJll2. 9.Jll3 Nl:xt C:S Cudc Last modified: August u, 2007 1 USC • General Prm;sions 2 USC - The Congress ··-· Start 2015 by Saving Big ·-1·'~ 3 USC - The Prl'Sident --.. -1liSC- Flng and Se.d 5 USC - Gm·'t Organi1..1tion New Auto Insurance Itates from$15/Month · Get Free Quotes! 6 USC- Domrstic Securily 7 USC- Agriculture 8 USC- Aliens and Nationnlit\' 9 t.:'SC ·Arbitration · 1o VSC • Armed Fmtts 11 USC- Bnnkrupte)' 12 USC- Banks and Banking 13 t.:SC - C<'mms 1-1 USC- Coasl Guard 15 USC- Commerce and Trade 16 USC- Con!'ern&tion 17 USC- Copyrights 1S USC- Crimes 19l1SC- Cw:toms Duties 20 L"SC- Educntion 21 USC- Food and Drugs 2:! t:SC • Fort.•ign Relations 23 USC· Highways 24 L'SC · Hospital$ 25 L"SC · lndiuns 26 l"SC- lnlt>mal Rcnmue Code 27l:sc · Intoxicating liquors 28 USC- .ludician· 29 esc - t...bor · 30 USC- ~1int>rnl Lands 31 tSC- Money and Finant-e 32 USC -l'\ationnl Guard 33 t;SC- X11'igation 34 USC· J\"'7-" (repealed) 35 t.:SC - Patents 36liSC · l1altiotic Sodelies 3i USC- Uniformed Senices 36 liSC- Vctt.>rans' Benefits 39 USC - Po!"lal Scnice 40 USC • Public Property 41 USC- PublieContrncts 42 USC- Publie Health

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713!~015 Texas Family Code~ Scction-9.007. Umltation On Povver Of Cour1 To Enforce- Texas Attorney Resources- Texas Laws Search onecle Texas Family Code- Section g.007. Limitation On Power Of l_!S Suprt'me- C{)ml Court To Enforce US Ta;-.; Courl I Prnl It~«<""m'l! BfiD1e > ~ :>- }lamjl\' !',..,1" :- Tc~ll~ Family Code· ~lion r}.!Hl7. timihl.lit,u On Power OJtcurt 'l'o Borml of Pa~\:'nt Appeals Enf¢1\'C

Slate La\\'s

Al::!hama &ch!'lor'' l).,y Arizullll CaliforniH '"""""'' li"""'"'"""•'=' Bu!ir-.e" Ad;r.ll!~ Florida Hen!l!! Se~n~:B lrllomlo.ttoo S~l G<·or~in § 9.01:17. LIMITATION ON PO'.'IER Of CO\JRT TO ENfOHCE. (,1) (I Illinoi!i court may not amend, modify, alL~r 1 or ch~nr,e th~ division of Maner·J Del!!~ \;;dian;~ property made or approved in th~ decree of divorc~ or annulm~nt. An [;f)!-, ...... ~i'C,.,.,=~·ko<ll ~la:.;:-achusl'tls order to enfot·ce the division is limited to an order to assist in 6vs:!rw»,l.d-"i7fl ).Jichi~an the implementution of or to darlfy the prior order <Jnd m<~y nol l'I{OII)lUII.;m SY'"A :'\t~l'adil 01lter or chilnge the substantive division of p1-op~rty, H~llllSc.r.!le..""'l Et!U(:.;'Ill!\r1 (~) An order under thi~ section th~t amends, modifies, 1'\t'w.kr;;ey alters, or chunges the actual, substilntive division of property i\ew York made or approved in a finul decree of divorw or• <Jflnl.JJwent is beyond PhD De.gt«s ~p~~--~ l .. r;urth Carolinrt the power of _lh~ divorce court ilnd is utmnforicaiJlc. 12 Got>a:n.'>"~

Oregon (c) The 'PO'Nl'l' of the court to render further order·s to ll~tAd:;"nr 1-!c,lf\!:1~~~ l'enn!;)']\·ania assist in the implem~ntation of or to clarify ·the -prof!erty division EetJ:ato.1 TCXi~S is <1batcd whUC <H1 ilflPc<llat~ pt'NO~t.Hnu 1::. pen:ding. \'irg.inia \\';!$hi!l);;LOH Added by Acts 1997, 75th Leg., ch. 7, § 1, l!ff, April 17, 1997.

Section: Pn~\·jnw: &.:illS SW1ill. Cl.oo;• 9.:.f!!23 9..&Qi 9.J.l!!5. .ll..lli1..6. 9.007 n noR 9.JlQ9_ Q-010 9.ill1 1 U·lC- CE'nNnl Prm-iliions 9.i.!..L! _g__,__c]_J_J 9....U.1d N(>X! :! USC- Tht: Con~rE's.s :{ L;~c- Tbl.' Prcsid('Jll Lruf modified: Atrgust 11,2007 ·I USC- Flag and S!.'.a\ 5 USC- GO\''l 0J'gani7-ntiou C1 l;SC • DomPstk SecLlril\' 7 USC- A~riculture · Start 2015 by Saving Big S USC- Ailcns ancl Nutionality New Au1o Tnsurance Rares from S15/lvl"onth ·Get FreE_Quotes! 'J CSC- Arbitral ion w USC- r\!11wrl Forrl~S 11 USC- I3ankrupt'c~· 12 L;sc- Banks aJ1ll Banldn~ 13 L;sc- Cl'HSUS 1.1 UK- Coast Gunrd tf) USC- Commerce Ctnd Tr;:tde H'> LSC- 0)11.5-L'n·atimt 17 esc- Cop_,Tight.~ JR CSC- Crimes 19 CSC- Cnslom::: Duties :w USC- Eduea!ion :..!J USC'- Food und Drugs 2.2 USC · Foreign Reh1tions 2;~ L:SC- Hig1m·-ays :.1.4 CSC- Hospital.-, 25USC- lndinn!; :26 USC ·lnlemal Rcn~m1e Code 27 L'SC ~Intoxicating Liquors :::>H USC- .ludidary 24 lfSC • L.abor :w t:sc · ,\Jine-rctl i.<JJHls ~11 L'SC ·· t-.-Ioney andFinanl'e- 3::! LSC- !\':nirmal Guard :·l:~ USC • o'\nvlgntion ]·I l'SC- :\;w:-· {rcpeuk><-1) :35 CSC • Pat<mts :1fi USC- Patriotic: Societies 3","' USC- l!niformcd SCJYiccS :3:S USC- Vct.t•r;ms' Benefitl'l ~~9 USC- Po:>tal Sen· icc iJO CSC- Public Proper!~· 41 L'SC- PublicContwcts ·\2. L:SC • Public Jlcalth

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2t.ll2015 Texas Family Cede- Section9.008. Clarification Order. Texas Attorney Resources· Texas l.Jiws ·--·· ·------- ··~--

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Court Opinions Texas Family Code -Section g.oo8. Clarification Order liS Supreme Court I&Till Rfi"rnrrh linmr > ~ > Fnm!h·lndr > TCMS 1-'amily Cock- &x-tinn 9.0118. C'lnrlficatlon Ordet US Tax Court Boal'd of Paknl Appeals New 2015 Deals Available Stale Laws Auto Insurance kales from S15/Month Offe1 ends In 15 days! Save Now

Alnhnma Arizona California § 9.888. ClARIFICATlOH ORDER. (a) On the request of a Floridil party or on the court's own motion~ the court ~y render a Georgia clarifying order before a motion for contempt is made or heard, in Illinois conjunction with a motion for contempt or on denial of a motion for Indiana contempt. (b) On a finding by the court that the original form of the Massachusl•lls division of property is not specific enough to be enforceable by ~Hrhigan contempt~ the court may t@nder a clarifying order setting forth ~e\"ada specific terms to enforce compliance with the original division of Xew,Jcr.=~ey property. New York (c) The court may not give retroactive effect to a Xorth Carolina clarifying order. Oregon (d) The court shall provide a reasonable time for c~~pliance Pennsyl\'nnin before enforcing a Cl3rifylng order by contempt or in another Tl',.a5 manner. \'iq:inia Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Wushington

l'S Code Section: ~ 9.JWJ. 9.Jl1J._g 9.JW3 9JU!4 .9...QQS Ull!f! 9...0Jl2 g.oo8 9.JKl!l 9.&10. 9Jll1 9J11Z. 1 USC· General Pro\isions !Llll3 9.1114 !UW. lW;1 2 USC • The Congn-ss Last modified: August 11, 2007 3 USC - The President 4 l!SC • Fl•g und Se;d 5 USC - Go\''t Organi1..1tion > 6l:SC • Domestic Securitv 7 USC- Agriculture · 8 USC- Alil'n~ and Nottionalih· 9 USC· Arbitration · tO USC· Armed Forces n USC- nnnknaptcy 12 VSC- Banks and Bunking 13 l:SC - Census 1-1 USC- Coast Guard 15 L'SC- Commerce and Trade 16 l"SC- Consen:ntion 17 usc. COp)Tights 18 USC -Crimes 19 USC- Customs Duties 20 USC- Etluc..1.lion 21 USC- Food nnd Dn1gs 2:.! USC- Fon•ign Rdalions 23 USC- Highways 24 USC- Hospitals 25 USC- Indians 26 L'SC - lntt•rnal Re\·enue Code 27 USC ·Intoxicating Liquors 28 USC- ,Judiciary 29 \.:SC • Labor 30 USC - ~Hnl'ral Lands Jt USC -1\-Ione\' and Finance 32 USC· Natio'nal Guard 33 USC- N'a\igation 34 USC- N'a''Y (repe~1led) 35 USC • Patents 36 USC- Patriotic Societies 3i USC- Uniformed Senices 38 USC- Vet~mms' Uenf."fits 39 CSC- Po~tul Scni('c 40 l~SC- Public Property 4 t USC· Public Contr<~cls .p. l'SC- ruhlic Health

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0 '·I' NO. 226,429-ll ('0 IN THE MA TrER OF § IN THE DISTRICT COURT ~)- THE MARRIAGE OF § § TliVIOTHY PARRISH AND § § !46TH .JUDICIAL DISTRICT 0' ,.. ,_ 0 TRISHA ANN PARRISH § ,--., ,.....-•\ <A ~~->< a: § ,., :·.· t;S~ c•I :.;...!

AND IN THE INTEREST OF § ~-~.:: ~ ~

08L:: JOSHUA ROBERT PARRISH AND ~-~· •. """' :::~ :2; I i 0 ZACHARY ALLEN PARRISH, § BELL COUNTY, TEXAS~~ ::~g~ I CHILDREN ·= t-1!.1 ('"'}

""' ---' I

'""' ~~i ,_i "- I ~

FINAL D~:CREE OF DIVORCE = = ' = ...... CJ

On --~A"'P--'RL..:3).__u0__,2,0,08,___ _ the Court heard this case. ,Jppearances Petitioner, Tl1viOTHY PARRJSH, app~ared in person and through attorney of record, DANIEL A. CORBfN, and announced ready for trial. Respondent, TRISHA ANN PARRJSH, wai vcd issuance and service of citation by waiver duly filed and did not otherwise appear. . Record

The making ofn record of testimony was waived by the panies with the consent of the Coun. 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, I finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed I since the date the suit was flied. The Court finds that, at the time this suit was filed, Petitioner had I been a domiciliary ofTexas for the preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly cited.

Jury

A jury was waived, and questions of fact and of law were submitted to the Court .

..lgreement of Parries

.i The Court finds that the parties haw entered into-a wriuen agreement as contained in this ! decree by vinue of having approved this decree as to both fonn and substance. To the extent permitted by law, the panics stipulate the agreement is enforceable as a contract. The Court approves the agreement of the parties as contair.ed in I his Final Decree at" Divorce.

i"~:-.a!. :Je-:::-!!e or ::OO'Icer;:,e ':':~Cil/'1' PARR:SH "'· 7?.:SPJi.. ;vltl PAAIH$1t Page I

·' Divorce

IT IS ORDERED AND DECREED lhal TIMOTHY PARRISH, Pelilioner, and TRJSHA ANN PARRISH, Respondenl, are divorced-and thai 1he marriage between them is dissolved on the ground ofinsupportability. Children of the Marriage The Coun finds that Petitioner and Respondent arc the parents of the following children: Name: JOSHUA ROBERT PARRISH Sex: Male Birth date: March 26, 1996 Home state: Texas Social Security number: Name: ZACHARY ALLEN PARRISH Sex: Male Birth date: September 4, 2000 Home state: Texas Social Security number: The Court finds no other children of the marriage are expected. Conservatorship The Court, havin~considered the circumstances ofthe parents and of the children, finds that the following orders are m the best interest of the children. · IT IS ORDERED that TIMOTHY PARRISH and TRJSHA ANN PARRISH are appointed Joint Managing Conservators of the following children: JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH. IT IS ORDERED that, at all times, TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights: I. the right to receive infonnation 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 anend school activities;

r1='1a:i. O.,cree ~f ::~vorce: -:-:!o'IQ';'HJ PARRISH •;, ":'R:SHA MN PAP.RISH Page 2

' 7. the right!.; be designated on the children's records as a person to be notified in case of an emergency; 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 parent's family. IT IS ORDERED that, at all times, TRJSHA ANN PARRJSH, as a parent joint managing conservator, shall have the following rights: I. the right to receive information from any otherconservatorofthe 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; S. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to attend school activilies; 7. the right to be designated on the children's records as a person to be notified in case of an emergency; 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 parent's family. IT IS ORDERED that, at all times, TIMOTHY PARRISH and TRJSHA ANN PARRISH, as parent joint managing conservators, shall each have the following duties: I. 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 conservatorofthe children ifthe conservator resides with for at least thirty days, marries, or intends to marry a person 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 ORDERED that the notice must include a description of the offense that is the basis of the person's

r.:.~•_J :ecrveo! :)1v=r;e i~~y PAAR!SH v, :a:sHA ~~ PARR:SH Page 3

.•

requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVA"J:OR FAILS TO PROVIDE THIS NOTICE. IT IS ORDERED that, during his respective periods of possession, TIMOTHY PARRISH, as parent joint managing conservator, shall have the following rights and duties: I I. the duty of care, control, protection, and reasonable discipline of the children; I

2. the duty to support the children, including providing the children with clothing, food, ·I' shelter, and medical and dental care nol involving an invasive procedure; :.. 3. the right to consent for the children to medical and dental care not involving an invasive procedure; 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that, during her respective periods of possession, TRISHA ANN PARRISH, as parent joint managing conservator, shall have the following rights and duties: I. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; 3. the right to consent for the children to medical and dental care not involving an invasive procedure; and 4. the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child; and 5. the right to direct the moral and religious training of the children. IT IS ORDERED that TIMOTHY PARRISH, as a parent joint managing conservator, shall have the following rights and duty: I. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 3. the independent right to consent to psychiatric and psychological treatment of the children; 4. the independent ri~ht to represent the children in h.:gal action and to make other decisions of substantial legal sigmficance concerning the children; 5. the independent right to consent to marriage and to enlistment in the anned forces of the United States; ·

F~nnl Do~ree ot Dlvor~~ T:l'.O:H"/ P.UR:51-1 .,, ';'itliHA ;.."'N PARR.i:.SH Page-l

' 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian ofthe children's estates or a guardian or auorney ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. IT IS ORDERED that TRISHA ANN PARRISH, as a parent joint managing conservator, shall have the following rights and duty: l. the independent right to consent to medical, dental, and surgical treatment involving invasive procedures; 2. the independent right to consent to psychiatric and psychological treatment of the children; 3. the exclusive right to receive and give receipt for periodic payments for the suppon of the children and to hold or disburse these funds for the benefit of the children; 4. the independent right to represent the children in legal action and to make other decisions of substantial legal significance concerning the children; 5. the independent right to consent to marriage and to enlistment in the armed forces of the United States; 6. the independent right to make decisions concerning the children's education; 7. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 8. except when a guardian of the children's estates or a guardian or allomey ad litem has been appointed for the children, the independent right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 9. the independent duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parents. Geographical Restriction IT IS ORDERED and THE PARTIES AGREE that a geographical restriction is in effect limiting the residence of the panies to a 100 mile radius of Bell County, Texas for five years from the entry ofthis order.

n::.a~ :ec:'<le :f :t~·10:ea :':1'!0-:!o!T i'AIIIt:SH v. r;nsHA A...., 1ARJt:5H Page 5 •·j ,, __

' Possession and Access -· IT IS ORDERED AND THE PARTIES AGREED that the joint managing conservators shall have possession of the children at times mutually agreed to in advance by the parties, and in the absence of mutual agreement, as follows: I. TIMOTHY PARRISH and TRISHA ANN PARISH will alternate weekly possession of the children beginning Sunday at 4:00p.m. and ending the following Sunday at 4:00p.m. 2. Other Provisions

In addition to all other provisions for possession provided in this decree, the following periods of possession are ORDERED: I. Right of First Refusal - If a parent will be absent for more than one hour while the children are in that parent's care, then that parent shall notifY the other parent, and the other parent shall have the right to care for the children during that absence. 2. Extracurricular Activities- Extracurricular expenses shall be split as follows: 50% by TIMOTHY PARRISH and SO% by TRJSHA ANN PARRISH. 3. 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. 4. Termination of Orders

The provisions of this decree relating to conservatorship, possession, or access terminate on the remarriage of TIMOTHY PARRJSH to TRISHA ANN PARRlSH unless a nonparent or agency has been appointed conservator of the children under chapter I 53 of the Texas Family Code. Child Support

IT IS ORDERED that TIMOTHY PARRISH is obligated to pay and shall pay to TRISHA ANN PARRISH child support of$1359.38 per month, with the first payment being due and payable on April I, 2008 and a like payment being due and payable on the first day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below: I. any child reaches the age of eighteen 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, any child's disabilities are otherwise removed for general purposes; or 5. the date on which any child beginsactivcserviceasdefined by 10 U.S.C. Section 101 after enlisting in the armed forces of the United States. Thereafter, TIMOTHY PARRISH is ORDERED to pay to TRISHA ANN PARRISH child support of$1087.51 per month, due and payable on the first day of the first month immediately following the date of the earliest occurrence of one of the events specified above for the other child and a like sum of S I 087.5 I due and payable on the fll'st day of each month thereafter until the next occurrence of one of the events specified above for the other child.

Final DcJcJ"ee al Divorce T:I"'&lfY PARJUSN v, TRISHA A14N PARRISH Page 6

lflhe child is eighteen years ofage and has not graduated from high school, IT IS ORDERED that TIMOTHY PARRISH's obligation to pay child support to TRJSHA .bu'-I"N PARRISH shall not tenninate but shall continue for as long as the child is enrolled· I. under chapter 25 of the Texas Education Code in a secondary school 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. Withholding from Eamjngs IT IS ORDERED that any employer of TIMOTHY PARRISH shall be ordered to withhold from earnings for child support from the disposable earnings of TIMOTHY PARRISH for the support of JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH. IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of TIMOTHY PARRISH 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 shall discharge 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 TIMOTHY PARRISH, and it is hereby ORDERED that TIMOTHY· PARRJSH 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. Pavment IT IS ORDERED that all payments shall be made through the state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791, and thereafter promptly remitted to TRISHA ANN PARRISH for the support of the children. IT IS ORDERED that each party shall pay, when due, all fees charged to that party by the state disbursement unit and any other agency statutorily authorized to charge a fee. Change of Employment IT IS FURTHER ORDERED that TIMOTHY PARRISH shall notiJY this Court and TRJSHA ANN PARRISH by U.S. certified mail,return receipt requested,ofanychangeofaddress and of any tennination of employment. This notice shall be given no later than seven days after the change of address or the termination of employment. This notice or a subsequent notice shall also provide the current address of TIMOTHY PARRISH and the name and address of his current employer, whenever that infonnation becomes available. Clerk's Dutjes IT IS ORDERED that, on the requesi of a prosecuting attorney, the title IV-D agency, the .I friend of the Court, a domestic relations office, TRISHA ANN PARRISH, TIMOTHY PARRISH, or an attorney representing TRJSHA ANN PARRISH or TIMOTHY PARRISH, the clerk of this Court shall cause a cenified copy of the Order/Notice to Withhold Income for Child Suppon to be delivered to any employer. nrw~l Qocreo o.! :tivorce T:MOTWI' PAJIR:SM v. Till SMA A."QQ PARRISH Page 7

Health Care I. The Court finds that the following provisions of this medical support order are intended to and do comply with the priority requirements ofTexas Family Code section 154.182 as follows: The Court finds that health insurance is available through TIMOTHY PARRISH's employment at a reasonable cost and therefore ORDERS TIMOTHY PARRISH to provide heallh insurance as specified below." 2. IT IS ORDERED that TIMOTHY PARRISH and TR!SHA ANN PARRISH shall each provide medical support and health care coverage for each child as set out in this order as additional child support for as long as the Court may order TIMOTHY PARRISH and TRISHA ANN PARRISH to provide support for the child under sections 154.001 and 154.002 of the Texas Family Code. Beginning on the day TIMOTHY PARRISH and TRISHA ANN PARRISH's actual or potential obligation to support a child under sections 154.001 and 154.002 of the Family Code terminates, IT IS ORDERED that TIMOTHY PARRISH and TR.ISHA ANN PARRISH are discharged from the obligations set forth in this medical support order with respect to that child, except for any failure by a parent to fully comply with those obligations before that date. 3. Definitions· "Health t11SU11111ce" means insurance coverage that provides basic health-care services, including usual ~hysician services, office visiu, hospitalization, and laboratory, X-ray, and emergency services, that may be provided through a health maintenance organ•ution or other private or public organiulion, oU.er than medical assistance under chapter 32 of the Texas Human Resources Code. "Reasonable cost" means the cost of health insurance coverage for a child that does not exceed nine percent of the responsible parent's annual resources as described by the Texas Family Code section IS4.062(b). "Reasonable and necessa~y health-care expenses not pold by insurance and incurred by or on behalfofachild" include, without limitation. any copayments ror office visits or prcscrir.tion drugs, chc yearly deducliblc, if any, and medical, surgical, prescription drug, menml health-care services, dcnta . eye care, ophthalmological, and onhodontic charges. These reasonable and necessary health-care expenses do not include expenses for travel to and from the health· care provider or for nonprescription medication. "Furnish"' means: a. to hand deliver the docuonent by o person eighteen years or older either to the recipient or to a person who 1$ eighteen yean or older and permanently resides with the recipient; b. to deliver the document to the recipient by certified mail, return receipt requested, to the recipien(s last known mailing or residence address; or c. to deliver the document to the recipient at the recipient's last knO\\n mailing or residence address using any person or entity whose principal business is that of a courier or deliverer of papers or ~ocumenu either within or ouuide the United States. 4. Obligations ofTIMOTHY PARRISH· TIMOTHY PARRISH is ORDERED to include and maintain each child In TIMOTHY PARRISH's health insurance available through his employment no laterthan the date the Court signs this order. s. Obligations of TIMOTHY PARRISH· TIMOTHY PARRISH is ORDERED· a. to furnish to each conservator of the children and the child SUpPOrt registry the following information no later than the thirtieth day after the date the notice of the rendition of this order is received: i. the Social Security number oflhe parent providing insurance; II. the name ond address oflhe employer of the parent providing insurance; iii. whether the employer is self-insured or has health insurance available; iv. prooflhat health inSurance has been provided for each child; and v. the nome of the health insurance canrier, the number of the policy, a copy of the policy and schedule ofbenefou, a health insur:mce membership card, claim forms, and any other information necessary to submit a claim or, if the employer is self. insured, a copy of the schedule of benefiu, a membership card, clatm forms, and nny other inronnation necessory 10 submir a claim: Final DQ~rce o£ Diva~ce ~:~iHY PAARtSH v, ~~tSHA ANN PARRISH Page 8

b. to furnish to eaoh oonservalor of the children a copy of any renewals or ohangcs to the health insurance polioy covering a ohild, or any additional information regarding health insurance coverage or the child, including any change in the acluol cost of the health insurance for the ·.i child, no later than tho. fifteenth day after the pany providing the health insurance receives ' or is provided wilh the renewal, change. or additional infonnatlon; c. to furnish each conservator of the children and the ohild suppon regiSll}' ";th all dooumenlation acoessiblc 10 TIMOTHY PARRISH or any terminauon or lapse of the health insurance coverage of a child no later than the fifteenth day after the date of the tennination or lapse; d. after termination or lapse ofhcallh insurance coverage, to fumish each conservalor of the children and lhe child suppon registry wilh all dooumentation accessible 10 TIMOTHY PARRISH oflheovailabilil)' of additional health insuranoe forthe children no later than the nfteenth day after the dale the insurance becomes available; e. after a termination or lapse of health insuranoe coverage, to furnish each oonservator of the children and the ohild suppon registry with all documentation acoessible to TIMOTHY PARRISH of the availability of enrollment of the children in a government medical assistanoe program, goverrunenl health plan, medioal assiSlance program under chapter 32 of the Texas Human Resouroes Code or a stale child health plan under chapter 62 of the Texas Health and Safely Code, no later than the fifteenlh day after the date the enrollment in the program becomes available; r. to enroll the children at the next available enrollment period in a health insurance plan that is available at reasonable coS! after the previous health insuranoe has been terminated or has lapsed; and g. to enroll the ohildren in a governmem medical assistance program, goverrunenl health plan, medical assistanoe program under ohapler 32 of the Texas Human Resources Code or a stale child health plan under chapter 62 of the Texas Health and Safety Code if the ohildren are eligible for enrollment in the program and no health insurance plan Is available at reasonable cost. 6. Secondary Coverage • IT IS ORDERED that nothing in this order shall prevent either pany li'om providing secondary heallh Insurance coverage for the children at that pony's sole cost and expense. IT IS FURTHER ORDERED that if a party provides secondary health insurance coverage for the children, both parties shall cooperate fUlly wilh regard to ihe handling and fil1ng or claims with the insurance carrier providing the coverage in order to ma.•imizc the bencfiiS available to the children and to ensure that the pany who pays for health-care ••penses for lhe children is reimbursed for the paymentli'om both carriers to the fullest extent possible. 7. Compliance with Insurance Company RequiremeniS • Eaeh pony is ORDERED 10 conform to all requirements imposed by !he terms and conditions of the policy of health insurance oovcring the children in order to assure maximum reimbursement or direct payment by the lnsuranoe company of the Incurred health-care expense, including bul nol limited Co requirements for advance notice to caniert second opinions, and the like. Each pany is ORDERED to anemptto use "preferred P.roviders," or services within lhe heallh maintenance organization, ifapplicable; however, this proviston shall not apply tfemergeney care is required. Disallowance of the bill by a health insurer shall notexcwcthe obligation ofeither pany to make payment; however, if a bill is disallowed or the benefit reduced beoause of the failure of a pany to follow procedures or requirements of the oarrier, IT IS ORDERED that the pany failing to follow the oarrier's prooedures or requirements shall be wholly responsible for the increased ponion of that bill. IT IS FURTHER ORDERED thai no surgical procedure, other lhan in an emergency or one oovcrcd by insuranoe, shall be performed on the ehild unless the parent consenting lo surgery has first OOIISUlled with at least two medical doolors, both of whom stale an opinion that the surgery is medioally necessary. IT IS FURTHER ORDERED that a parent who fails 10 obtain the required medical opinions before consenllo surgery on the child shall be wholly responsible for all medical and hospital expenses incurred in connection therewith. 8. Claims. Except as provided in this paragraph, the pany who is notoarrying the health insurance poliey covering the children Is ORDERED to furnish to the parry carrvlng the policy, within fifteen days of receiving them, any and all forms, reoeif.IS• bills, and statements reneoling the heallh·oare expenses the pany not oanying lhc polioy incurs on behalfofthe ohl dren. In aocordance with section 1204.25! of the Texas lnsuranoeCode,lT IS ORDERED lhallhe pany who is not carrying the health insurance policy covering the children may, 01 thai pany's option, Ole direolly with the insuranoe oarrier with whom coverage is provided for the benefit of the ohildren any olaims for health-care e•penses, inoluding but notlimhed to medical, hospitalization, and dental cosiS, and receive paymenl5 direotly li'om the insuranoe company. The pany who is oarrylng the health insurance policy covering the children is ORDERED 10 submit all forms required by the insurance company for paymen1 or reimbursemem of heahh·care expenses incurred by eilher pany on behalf of a child to the insuranoe carrier within fifteen days of that party's receiving any form, rcoeipl, bill, orstalement reflecting the expenses.

T!.:W.l ::GC:ee ;;J~ 01VCU'CQ' ':'.O:~Y i'.U.R:SH 11. ~!SK.\ ANN PARRISH Page 9

9. Consm~cllve TruSl Cor PaymeniS Received -IT IS ORDERED !hal any Insurance pa)tneniS received bv a pany !Tom lhe heallh insurance carrier as reimbursement ror heallh-care expenses incurred by or on behalf ora child shall belong to the pony who Incurred and paid those expenses. IT IS FURllfER ORDERED lhatlhe pony receiving the insurance payments is designaced a consttuclivelruslee 10 receive any insurance checks or payments for hea(lh ..care expenses incurred and paid by the other pany, and the pony cmrying lhe policy shall endorse and forward the checks or paymeniS, along with any explanation of benefits received, to the other pany within threo days of receiving them. 10. Heallh-Care Expenses Not Paid by Insurance or Cash Medical Suppon- Subject to lhe provisions in panJII'IIph 7. immedla1ely above, IT IS ORDERED 1ha1, if health-care expenses are incurred Cor a child, TIMOTHY PARRISH and TRISHA ANN PARRISH shall pay all reasonable and necessary health-care expenses no1 paid by insurance or covered by the amount or cash medical suppon ordered o.nd incuned by or on behillfofthe child in 1he following ponions: a. If the health-care expenses are incurred by using a HMO or PPO plan, in an emergency, or with the wrinen agreement of the other pony, TIMOTHY PARRISH is ORDERED 10 pay SO perccnland TRISHA ANN PARRISH is ORDERED to pay SO percent. b. Except in an emergency or if the other parent agreed in writing, if a pony incurs health-care expenses for the child by using the services of health-care providers not employed by the HMO or approved by the PPO, the pany incurring the services is ORDERED to pay 100 percent and the other pony is ORDERED to pay 0 percenL c. If TIMOTHY PARRISH provides health insurance for the child throush an HMO or a PPO thai does not provide c:ovcragc ror the child where the child resides or have nelwork providers In the area where the child resides, TIMOTHY PARRISH is ORDERED to pay 50 percent and TRISHA ANN PARRISH is ORDERED to pay SO percent. d. If the child is enrolled In a health-care plan that is not an HMO or a PPO, TIMOTHY PARRISH is ORDERED to pay SO percent and TRISHA ANN PARRISH is ORDERED to pay 50 percent. c. If 1he child was enrolled in a government medical assistance program, govcrnmen1 health plan, medicalwistance program under chapter 32 of the Texas Human Resources Code or a state child health plan under chapter 62 of the Texas Health and Safety Code and is no longer eligible for coverage in that plan or program, TIMOTHY PARRISH is ORDERED to pay SO percent and TRISHA ANN PARRISH is ORDERED to pay 50 percent until health insurance Is provided for the child or the child Is again eligible for enrollment in a government medical assisUJnce program, government health plan, mcdicalassislllnce program under chapter 32 of the Texas Human Resources Code or a slate child health plan under chapter 62 of the Texas Health and Safety Code. r. If health care coverage is provided for the child in the fonn of cash medical suppon, TIMOTHY PARRISH is ORDERED to pay 50 percent and TRISHA ANN PARRISH is ORDERED to pay 50 percent. IT IS ORDERED that the pany who pays for a health-care expense on behalfofa child shall furnish to the other party, within 1hiny days of receiving them, all fonns, receipiS, bills, and explanations ofbeneniS paid renecting the uninsured ponion of the health-care expenses the paying pany incurs on behalf of the child. IT IS FURTHER ORDERED that if the paying pony furnishes all of these forms, receipiS, bills, and explanations of beneOts to the nonpaying pany within thiny days of receiving them, the nonpaying pony shall pay his or her share of the uninsured ponion of the health-care expenses either by paying !he health-care provider directly or by reimbursing the paying pony at 1he paying pony's last known mailing or residence address for any advance payment .xceeding the paying pony's share of the expenses no later than thiny days after the nonpaying party receives the following documentation relating to the health-care expense: a. a receipt ror a presc:ription, b. a receipt for a copayment for health-care services, c. a receir,t for health-care expenses of a type not covered by the health insurance plan, or d. an exp analion ofbenefiiS stating the beneniS paid for all other health-care expenses. If the paying pony does n01 furnish to the nonpaying pony all of the forms, receipiS, bills, and explanations of benefiiS paid renecting the uninsured ponion of a health-care expense the paying pony incurred on behalf of the child within thiny days of receiving these documeniS,IT IS ORDERED that the nonpaying pony shall pay his or her share of the uninsured ponion of the health-care expense either by paying the health-care provider directly or by reimbursing lhe paying pony at the payingpany'slast known mailing or residence address for any advance payment exceeding the paying pony's share of the expense no la1er than 120 days after the nonpaying pony receives the documenll!lion listed above in this section relating to the health-care expense. IT IS ORDERED that reasonableness of the charges for health-care expenses shall be presumed \\'hen a pony is furnished wi1h the applicable documents for the charges and that disallowance of the bill by a health insurer shall no1 excuse that part)''s obligation lo make payment or reimbursement as otherwise provided herein.

F1nal :Jvcree of tH vorce T:~y PARJUSH v. ":'Jt:.SHA AHN PMR:SH Page 10

II. Miscellaneous Health Care Provisions- Each parent will deliver the medications of1h.: children to the other paren1 atlhe beginning orthe other parent's parenling time, unless the medicalions have been divided by tho phannacist into two containers that provide appropriale dosages and administrations ro cover the time wilh each parent or unless IWO prescriplions can be obtained.

12. WARNING- A PARENT ORDERED TO PROVIDE HEALTH INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN, WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON BEHALF OF THE CHILDREN. Miscellaneous Child Supporl Provisions

Militarv Health Care and Commissarv Privileges The Court finds that TIMOTHY PARRISH is a member of the United States Anned Forces and that the children of tbis marriage are eligible to receive health care and other benefits as dependents of a United States Armed Forces member. Therefore, TIMOTHY PARRISH is ORDERED 10 keep and maintain in current status and deliver to TRISHA ANN PARRISH the identification cards and any other forms necessary for lhe children of this marriage to be provided health care through all facilities available 10 the children as dependents of a United States Armed Forces member. TIMOTHY PARRISH is FURTHER ORDERED to provide to TRISHA ANN PARRISH all additional verified applications for renewal of dependent tdentilication cards at least .. thiny days before the expiration date of the identificalion cards, until the children are no longer eligible for these benefits. No Credit for Infonnal Pavmenls IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and thai any direct payments made by TIMOTHY PARRISH to TRISHA ANN PARRISH or any expenditures incurred by TIMOTHY PARRISH during TIMOTHY PARRISH's periods of possession of or access to lhe children, as prescribed in this decree, for food, clothing, gifts, lravel, shelter, or enlertainmenl are deemed in addition 10 and not in lieu of the support ordered in this decree. Sypoort as Obligation of Esta!e IT IS ORDERED that the provisions for child support in this decree shall be an obligation of the estate of TIMOTHY PARRISH, shall no! terminate on the death ofTIMOTHY PARRISH, and the remaining unpaid balance of the child support obligation becomes payable on the date TIMOTHY PARRISH dies. Teunination of Orders on Remarriage of Parties The provisions of this decree relating to current child support lerrninate on the remarriage of TIMOTHY PARRISH to TRJSHA ANN PARRISH unless a nonparent or agency has been appoinled conservator of the children under chapter I 53 of the Texas Family Code. An obligation to pay child support under this decree does nol terminate on the death ofTRISHA ANN PARRISH but continues as an obligation to JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH.

r~cal Po~ree of e,vcr:e TZ~O':'H't PAilR!SH V. ~!5HA o\,'ln ?Ailii::SH Page II

.'

Medical Notification Each pany is ORDERED to info!lll the other party within one (I) hours of any medical condition of the children requiring surgical intervention, hospitalization, or both. Within thirty (30) days after the Court signs this decree, each party is ORDERED to elCecute- I. 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 infonnation regarding the children; and 2. for all health-care providers of the children, an authorization for disclosure of protected health information to the other conservator pursuant to the HIPAA 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 information regarding the children may be disclosed whenever the party executes an authorization for disclosure of protected health information pursuant [o the HIPAA and 45 C.F.R. section 164.508. Information Regarding Ponies The information required for each party by section I 05.006(a) of the Texas Family Code is as follows: Name: TIMOTHY PARRISH Social Security number: XXX-XX-XXXX l,'.- Driver's license number: 01252634 Issuing state: Texas Current residence address: 472 Cactus Cr., Killeen, Texas 76542 Mailing address: 472 Cactus Cr., Killeen, Texas 76542 Home telephone number: 254-526-9963 Name of employer: United States Army Address of employment: Fort Hood, Texas Work telephone number: 254-238-0592 Name: TRJSHA ANN PARRISH Social Security number: XXX-XX-XXXX Driver's license number 21845377 Issuing state: Texas Current residence address: 472 Cactus Circle, Killeen, Texas 76542 Mailing address: 472 Cactus Circle, Killeen, Texas 76542 Home telephone number: 254-526-9963 Name of employer: Florence School District Address of employment: Florence, Texas Work telephone number: 254-258-1762 EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAJviE OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, Ai'ID WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF A.N INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COl.iRT, AND THE STATE CASE REGISTRY ON OR

r1aal Docraa af Divo~cu ~!~Y PARR!SH v. TRISKA A.~ PARRISH Page 12

BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DA Y NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OFTHE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE 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 CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD. FAILUREBYAPARTYTOOBEYTHEORDEROFTHISCOURTTOPROVIDEEACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 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 registered or certified mail addressed to the clerk at 120 I Huey Road, Belton, Texas 76513. Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry, 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 SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000. WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS. FAILURE 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 DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

Ftn4l DQe=oe at DiVOrce TIHO':HY PARRISH v, ~ISHA A."fN PARRISN Page 13

Division of!vlarila/ Estate The Coun finds that the following is a just and right division of the panies' marital estate, having due regard for the rights of each party and the children of the marriage. Propenv to Husband IT IS ORDERED AND DECREED that the husband, TIMOTHY PARRISH, is awarded the following as his sole and separate propeny, and the wife is divested of all right, title, interest, and claim in and to that propeny: H-1. 50% of the proceeds remaining from the sale ofthe home after the net proceeds have been used to pay the debts owed to USAA and USAA Visa, 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 Tract Sixteen (16), Triple Seven River Estates, Section Four, a subdivision in Bell County, Texas, according to the map or plat of record in Cabinet A, Slide 297-B, Plat Records of Bell County, Texas. 472 Cactus Circle, Killeen, Texas H-2. A 50"/o undivided interest in the following real propeny, including but not limited to any escrow funds, prepaid insW1Uice, utility deposits, keys, house plans, home security •ccess and code, garage door opener, warranties and service contracts, and title and closing documents: 'I LOT SIXTEEN (16), IN BLOCK TWO (2), OF WATERCREST ADDITION, PHASE FOUR, IN THE CITY OF KILLEEN, BELL COUNTY, TEXAS, ACCORDING TO THE PLAT OF RECORD IN CABINET C, SLIDE 24-B, PLAT RECORDS OF BELL COUNTY, TEXAS. 3507 Coral Bay Lane, Killeen, Texas H-3. All household furniture, furnishings, fixtures, goods, an objects, collectibles, appliances, and equipment in the possession of the husband or subject to his sole control including but not limited to the following: Shed, Pool, Leather Couches, Kitchen Table and Hutch, 2 Big Dressers, 52" Television, Console Television, Joshua's Furniture and Computer, White Dishes, Master Bedroom Dresser, Glasses, I Set of Silverware, End Tables, Zachary's Book Case, Office Book Case, Game Cube, Tools, Lawn Equipment. H-4. All clothing, jewelry, and other personal effects in the possession of the husband or subject to his sole control. H-5. All sums of cash in the possession of the husband or subject to his sole control, including funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other financial institutions, which accounts stand in the husband's sole name or from which the husband has the sole right to withdraw funds or which are subject to the husband's sole control. H-6. The sums, whether matured or immatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit- sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 40 I (k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of the husband's past, present, or future employment.

Fl~al cecr~~ of 01vor~• :-:I":O'i"HY PAP.R!SH v. ':'R!SIL\ .\.'IN PAIUUSN Page 14

H-7. The individual retirement accounts, simplified employee pensions, annuities, and variable aMuity life insurance benefits in the husband's name. H-8. 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 ofTIMOTHY PARRISH's service in the United States Anny, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of TIMOTHY PARRJSH's past, present, or future employment, except that portion of TIMOTHY PARRISH's U.S. military retirement that has been awarded in this decree to TRISHA ANN PARRISH as more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference. H-9. The 2005 Honda Civic motor vehicle, vehicle identification number -----------'together with all prepaid insurance, keys, and title documents. Property to Wjfe IT IS ORDERED AND DECREED that the wife, TRISHA ANN PARRISH, is awarded the following as her sole and separate property, and the husband is divested of all right, title, interest, and claim in and to that property: W-1. SO% of the proceeds remaining from the sale ofthe home after the net proceeds have been used to pay the debts owed to USAA and USAA Visa, 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: Tract Sixteen {16), Triple Seven River Estates, Section Four, a subdivision. in Bell County, Texas, according to the map or plat of record in Cabinet A, Slide 297-B, Plat Records of Bell County, Texas. 472 Cactus Circle, Killeen, Texas W-2. A SO% undivided interest in 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: LOT SIXTEEN {16), IN BLOCK TWO {2), OF WATERCREST ADDITION, PHASE FOUR, IN THE CITY OF KILLEEN, BELL COUNTY, TEXAS, ACCORDING TO THE PLAT OF RECORD IN CABINET C, SLIDE 24-B, PLAT RECORDS OF BELL COUNTY, TEXAS. 3S07 Coral Bay Lane, Killeen, Texas \V-3. All household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of the wife or subject to her sole control including but not limited to the following: Green Couches, Office Television, Computer Table, File Cabinets, Master Bedroom Furniture, 2 Twin Beds, Green Ivy Dishes, Green Ivy Bakeware, Showman Dishes, White China, Zachary's Dresser, Spare Room Dresser, Baking Stuff, I SetofSilverware, Patio Table and Chairs, Computer Chair, Gray Lawn Mo"•er, Electric Weed Eater, Book Cases, XBOX. W-4. All clothing, jewelry, and other personal effects in the possession of the wife or subject to her sole control.

F!rA; Oecree ot Dtvoreo ;:~~r ~AaRZSH v. ~A:SHA A.~ PARR!SM Page 15

.•

W-5. All sums of cash in the possession of the wife or subject to her sole control, including funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other financial institutions, which accounts stand in the wife's sole name or from which the wife has the sole right to withdraw funds or which are subject to the wife's sole control. W-6. The 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 any profit- sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 40 I (k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of the wife's past, present, or future employment. W-7. The individual retirement accounts, simplified employee pensions, annuities, and variable annuity life insurance benefits in the wife's name. W-8. 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 ofTIMOTHY PARRISH's service in the United States Army, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of TIMOTHY PARRISH's past, present, or future employment, except that portion of TIMOTHY PARRISH's U.S. military retirement that has been awarded in this decree to TIMOTHY PARRISH as more particularly specified in the domestic relations order signed coincident with this decree and incorporated verbatim in it by reference. W-9. The 2003 Cluysler Sebring motor vehicle, vehicle identification number - - - - - - - - - - ' together with all prepaid insurance, keys, and title documents. Division of Debt Debts to Husband IT IS ORDERED AND DECREED that the husband, TIMOTHY PARRISH, 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 TIMOTHY J. PARRISH and TRISHA A. PARRISH, in the original principal sum of$130,000.00, dated April29, 2003, payable to MERS, and secured by deed of trust on the real property awarded in this decree to the husband and wife, which is recorded at volume __ ,page_, Deed of Trust Records of Bell County, Texas.

H-2. The balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by TIMOTHY JAY PARRISH and TRISHA PARRISH, in the original principal sum of$71,400.00, dated January26, 2004, payable to Amerigroup Mortgage Corporation, and secured by deed of trust on the real property awarded in this decree to the husband and wife, which is recorded at volume __ , page __, Deed of Trust Records of Bell County, Texas. H-3. The balance due, including principal, interes~ and all other charges, on the promissory note payable to Honda Finance, and given as part of the purchase price of and secured by a lien on the 2005 Honda Civic motor vehicle awarded to husband. H-4. The following debts, charges, liabilities, and obligations: Debt owed to USAA, Account number 3876 Balance: $63,918.50

Final Deer~ of Dlvorce T:HO':"'I't itAAR.:5H Y. n:stiA Ami ,Ait8ISH Page 16

Debt owed to USAA Visa, Account number xxxx Balance: $5,113.67. H-5. Any and all debts, charges, liabilities, and other obligations incurred solely by the husband from and after October 22, 2007 unless express provision is made in this decree to the contrary. Debts to Wife IT IS ORDERED AND DECREED that the wife, TRJSHA ANN PARRISH, 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-I. The following debts, charges, liabilities, and obligations: Debt owed to Store Cards, Account number xxxx Balance: $600.00 W-2. Any and all debts, charges, liabilities, and other obligations incurred solely by the wife from and after October 22,2007 unless express provision is made in this decree to the contrary. Notjce 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 authonty concerning any potential liability of the other party. Provisions Dealing with Sale of Residence Located at 472 Cactus Drive, Killeen, Texas IT IS FURTHER ORDERED AND DECREED that the property and all improvements located thereon at tract sixteen, Triple Seven River Estates subdivision, section Four, according to the map, plat, or deed records of Bell County, Texas, and more commonly known as 472 Cactus Circle, Killeen, Bell County, Texas, shall be sold under the following tenns and conditions: I. The property shall be sold for a price that is mutually agreeable to TIMOTHY PAR.RJSH and TRJSHA ANN PARRISH. 2. TIMOTHY PAR.RJSH shall continue to make all payments of principal, interest, ta.xes, and insurance on the property during the pendency of the sale, and TIMOTHY PAR.RJSH shall have the exclusive ri~ht to enjoy the use and possession of the premises until closing. All maintenance and repatrs necessary to keep the property in its present condition shall be paid by TIMOTHY PARRISH. 3. The net sales proceeds (defined as the gross sales price less cost of sale and full payment of anr mortgage indebtedness or liens on the property} shall be distributed as follows: described herem above. 4. TRISHA ANN PARRISH shall pay to TIMOTHY PAR.RJSH $359.38 per month, with the first payment being due and payable on April I, 2008 and a like payment bemg due and payable on the first day of each month thereafter ending the first month following the sale of the home located at 472 Cactus Drive, Killeen, Texas.

t1nal oee~ce o£ D1va~=e :":1'10THY ;tAM.lSH v, ':'RISH.A NIH PARill5H Page 17

' Provisions Dealing with the Residence Located at3507 Coral Bay Lane, Killeen, Texas IT IS FURTHER ORDERED AND-DECREED that TIMOTHY PARRISH shall be entitled to receive any and all income derived from the property located al 3507 Coral Bay Lane, Killeen, Texas. 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 coMeclion with conservatorship and support ofthe 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. Treatment/Al!ocatjon ofCommunitv Income for Year of Divorce II IS ORDERED AND DECREED that, for the calendar year 2008, each party shall file an individual income lax return in accordance with the Internal Revenue Code. IT IS ORDERED A."'D DECREED that for calendar year 2008, each party shall indemnify and hold the other party and his or her property harmless from any lax liability associated with the reponing party's individual lax return for tliat year unless the parties have agreed to allocate their lax liability in a manner different from that reflected on their returns. II IS ORDERED AND DECREED that each party shall furnish such information to the other party as is requested to prepare federal income tax returns for 2008 within thirty days of receipt of a written request for the information, and in no event shall the available information be exchanged later than March I, 2009. As requested information becomes available after that date, it shall be provided within len days of receipt. IT IS ORDERED AND DECREED that all payments made to the other party in accordance v.ith the allocation provisions for payment of federal income taxes contained in this Final Decree of Divorce are not deemed income 10 the party receiving those payments but are pan of the property division and necessary for a just and right division of the parties' estate. Deoendencv Tax Exemption TIMOTHY PARRISH will have the right to claim the dependency exemption for JOSHUA ROBERT PARRISH, for the purpose of federal income taxes. TRJSHA ANN PARRISH will have the right 10 claim the dependency exemption for ZACHARY ALLEN PARRISH for purpose of federal income taxes. Confirma!ion of Separa!e Propertv II IS ORDERED AND DECREED that the following described property is confirmed as the separate property ofTRISHA ANN PARRISH: Snow Globes and Disney !!ems. Court Costs II IS ORDERED AND DECREED ihat costs of court are to be borne by the party who incurred them.

F1~al ;eere~ ~' )tvarc~ ':':~":":ofY PA.RJt:JH ? _ TR:SHA .Um PARR:S".t Page 18

' Discharge from Discovery Relent/on Requiremenl 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 Acknowledgment Petitioner, TIMOTHY PARRISH, and Respondent, TRISHA ANN PARRISH, 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 full and complete resolution of this 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 this Final Decree of Divorce. Indemnification 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 assuming 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 >I and necessarily incurred in enforcing this indemnity. I IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on I demand, for any payment made by the indemnified party at any time after the entl)' of the divorce decree to satisfy a 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 other party prompt wrinen 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 'I I Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the right to make orders necessary to clarify and enforce this decree.

Final c~crcc ol Dlvorcv itMOTHY PARR.:SH v, RUHA ANN PMRISH Page 19

__.:...,,~ ....---·-····-·-·-·--· ..···-----·--··- ,•

ReliefNot Granted

IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which Jet 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 SIGNED on _ ___,_A,_PR...,__..3u.Ou2,008,.,.__ __

OrtgiiHIISiped b)' Judge Fane~ H. Jezat JUDGE PRESIDING APPROVED AS TO FORM ONLY:

Corbin & Associates, P.C., Allomeys 603 Nonh Eighth Street Killeen, Texas 76541 Tel: (254) 526-4523 Fax: (254} 526-6711

By: ~D~A~N~IE~L~A-.~CO~RB~~~------------ Attomey for Petitioner State BarNo. 04814300

TIMOTHiP SH ' Petitioner

,I ' ,, r-:

T1~l Decree of Divorce o;MOTHY PM-.:SH ·1. TJU:.SHA A.'fff PAJUU'SH Page 20

NO. 226,429-ll

IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § / ·§ TIMOTHY PARRISH § AND § 146TH JUIHCJAL DISTRICT O'l TIUSHA ANN PARRISH § CJ

§ ~ ~ AND JN THE INn:REST QF .JOSHUA ROBERT PARIUSH AND.' § § w rr.JJ ZACHARY ALLEN PARRISH, § CHILDREN § BELL COUNTY, TEXAS """"' M., = = DOI\H:STIC RELATfONS ORDER = ~

The Court, having entered a judgment of dissolution of marriage in this case on (t?'r\.),.5) ~, 2008,, and llnding that the entry of a domestic relations order i~ appropriate, makes the following fmdings and conclusions of Jaw and enters them as an order in this proceeding. Findings The Court tinds, in accordance with the Uniformed Scryices Pormer.Spouses' Protection I 'I I Act, 10 U.S.C, section 1408, as follows: :i I 1. This Court has jurisdiction over TIMOTHY PAIUUSH. The residence of"'TMOTHY I !' PARRISH is in Killeen, Bell County, Texas, other' than because ofmi1itary assignment. 2. Petitioner, TIMOTHY PARlUSH, and i\cspondcnt, TRISHA ANN PARRISH, were originally married in October 3, 1994, and were divorced on _________ , 2008. That marriag~ lusted for 13 years and 4 months during which time 'llMOTHY PARRISH served 13 years and 4 months or more of creditable service toward retirement. 3. TIMOT1-lY PARlUSH's Social Securi1y number is 2J2C94·1 168, his address is 472 Cactus Circle, Kilcen, 'I.'X 76542, and his birth date fs December 30, 1964. 4. TRISHAANN PARRISH's Social Secudty mtmbcr is XXX-XX-XXXX and her address is 6~9 Deer Run Road, Killeen, Texas 76549, and her birth date is April25. 1972. 5. The rights ofT!lvl<.JTHY PARRISH under the Servicemcmbcrs Civil Relief Act were fully complied with in this case.

~mentic t::cJ<~.t:.lt!IJU Ord!lr · MOl::l.t~;~;-y IU,'t.:.rerm.mt 1 i!~oLt)y 1-'arr!..o~ ..,._ 'fr1Bh.._ Ann p,.n ~~:h

;:·.. :

6. TIMOTHY PARRISH is not retired from the United Stales United States Army at the time of this order. 7. The award of disposable retired_ pay made to TRlSHA AN:--1 PARRIS11 in tlus order is made in compliance with the. Uniformed Services Former 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 du~RJSHA ANN PARRISH of her interest in the disposable retired pay awarded in t~er directly lo TRISHA ANN PARRJSH. Award /o Nonmember Spouse IT IS THEREFORE ORDERED that TRISHA ANN PARRISH havejl!dgment against and recover from TIMOTHY PARRISH from the military retirement benefits of which resulted from his·service in the United Stales Armed Forces, according to the fraction calculated by the fonnula below. On the date of divorce, TIMOTHY PARRISH had achieved the grade ofCW3 and had served 13 years and 4 months. The high average pay over the last 36 months_ of the marriage was $5382.1 0. The number of months of marriage is one hundred sixty ( 160). :'I The formula is: Fifty per cent(50%) multiplied by the number of months married divided r~. .; by the total number of months served by TIMOTHY PARRJSH. This fraction is further '! multiplied by the disposable military retired pay to which is TIMOTHY PARRJSH entitled at

1 retirement, the result being the share thai TRISHA ANN l'ARRJSH, the Non-Member spouse, is

II entitled to received, IF, AS and WHEN TIMOTHY PARRJSH receives retired pay or:

' I ·I 50% X Number of months married X Disposable military retired pay~Non-Member's share Total number of months served

!TIS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRJSH each -~

month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH 's disposable military retired pay, together will all cost-of-living ~djustments applicable thereto, payable only IF, AS and WHEN received by TIMOTHY PARRJSH. ·• IT IS ORDERED that, if DFAS declines or refu.•es to pay TRISHA ANN PARRISH

~J each month, TIMOTIJY PARRJSH is ORDERED to calculate and pay TRISHA ANN

I ~.x-..u.~:it: flelllt.ioru: Order - ':;"11r.oth\' flarrlflh v. 1'ri&he. Arln ~.l.lJ.tar~ J•&r~.i.&h Rtttlnne:.:..

[ :~ !'-, ;,.;

rj i· l:.~ i,j PARRISH's share each month to TRISI-JA ANN PARRISH at her last known address by check, f:(! ,.,. i·-· ,."' money order, wire transfer, cash or any other method reasonably calculated to meet the ~ r:;

;·j ,., fl ! 1 conditions of this Order_ IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each il iJ 1 month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH's j 1 disposable retired pay at retirement, together with all cost-of-living adjustments applicable ~i K:t 'I ' thereto, payable, IF, AS, and WHEN received by TIMOTHY PARRISH. lj i"·

!i Con.flrllclive Trust IT IS FURTHER ORDERED that TIMOTHY PARRISH be and is hereby designated a constructive trustee for the benefit ofTRISHA ANN PARRISH for the purpose of receiving the retired pay awarded herein to TRISHA ANN PARRISH as TRISHA ANN PARRISH's sole and separate property until the end of the award, and TIMOTHY PARRISH be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to TRISHA:ANN PARRISH at her last known address by negotiable instrument that portion of each monthly retired pay payments ' ··_; ' ;,,~ awarded to TR!SHA ANN PARRISH herein not paid directly (or by allotment) by DFAS within

i :,:~.: :;,-; •·.~: three days of the receipt of any such payments by TIMOTHY PARRISH. All payments made ~: :1 ) ·t directly to TRISHA ANN PARRISH by DFAS shall be a credit against this obligation. '·l :·._~ >' ·t For purposes of this order, TIMOTHY PARRISH is specifically directed, on penalty of I :1 contempt, to payinterest in the disposable retired pay as ordered in this order, AND IT IS SO ::r -I TRISHA ANN PARRISH's ORDERED. TIMOTHY PARRISH is specifically directed that he is ;·: I, '(" 'i not relieved of that obligation except to the extent that he is specifically notified that I 00 percent ofTRISHA Al\'N PARRISH's interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED.

:I IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by ~

" 1 TIMOTHY PARRISH shall not reduce the amount equal to the percentage of the disposable I retired pay or of the disposable retired pay the Court has herein awarded to TRJSHA AlliN

I 'I PARR!SH , except as provided by Jaw. In this regard, IT IS FURTHER ORDERED that TIMOTHY PARRJSH shall not merge his military retired pay with any other pension and shall not pw-sue any course of action that would defeat, reduce, or limit TRISHA ANN PARRISH 's

~~st~c ~elUtlons Ord~r - Hili tory R~tir~~cn: 'I.HIOt!.y Pc.r:il!lt Y. :irJNI,iJ lt::JI I'A!'l'.iSh j

-·· right to receive TRISHA ANN PARRISH's full share of TIMOTHY PARRISH's retired pay as awarded in this order, unless otherwise <rrdered herein. End ofAward IT IS ORDERED lhatlhe payment of the disposable retirement pay awarded in this order to TRJSHA ANN PARRISH shall continue ' for 13 .vears and 4 months after it begins or until the death of TIMOTHY PARRISH or TRISHA ANN PARRISH, whichever event occurs first. Retiree Account Statements and Pr·ivacy Waiver IT IS ORDERED !hat, since TRISHA ANN PARRISH is entitled to a percentage interest in any cost-of-living or olher increase in lhe United States Armed Forces disposable retired pay, TIMOTHY I'ARRISH shall send to TRISHA ANN PARRISH at her last known address a copy of each retired pay \•oucher (Retiree Account Statement) !hat he receives in the future wilhin five days of his receipt of it. Retirement IT IS ORDERED that TIMOTHY PARRISH shall notifY TRISHA ANN PARRISH of his application for retired pay, and provide TRISHA ANN PARRISH wilh a true copy of his Application tbr Retired Pay Benefits, on the date he applies for those benefits. This notification shall be mailed by TIMOTHY PARRISH to at her last known address. TIMOTHY PARRISH is .I FURTHER ORDERED to provide to TRISHA ANN PARRISH a true and correct copy of the first Retired Annuitant Statement received by him within five days of his receipt of same. Survivor Benefit Plan The. Court further finds that TRISHA ANN PARRISH should be designated as a former spouse beneficiary ofTIMOUIY PARRISH's Armed Forces Survivor Benefit Plan and that TRISHA ANN PARRISH's designation as a former spouse beneficiary should not be modified, amended, withdrawn, reduced, or altered to TRISHA ANN PARRISH 's detrimen~ by TIMOTHY PARRISH during TRISHA ANN PARRISH 's lifetime, and IT IS SO ORDERED. IT IS THEREFORE ORDERED !hat TIMOTHY PARRISH shall immediately designate TRISHA ANN PARRISH his former spouse beneficiary under the Armed Forces Survivor Benefit Plan as his former spouse. IT IS TI1EREFORE ORDERED !hat TRISHA ANN PARRISH be and is hereby ,i !lcn=t!.c Rl!:at!c~$. Crde:- ~ P!!.lho.T)' kl!ti:-clllc:":r T!.lt.o:.f:)' P.r.rri.sh "· Tr!&h.fl Arm Pa:r!st:

'·' • )

designated as a fom1er spouse beneficiary under TIMOTHY PARRISH's Armed Forces Survivor Benefit Plan . . IT IS ORDERED that TIMOTHY.PARRISH shall immediately obtain, fully complete, .! '1 sign, and retum to the entity required to effect the Armed Forces Survivor Benefit Plan election all documents, papers, and forms necessary to provide the Armed Forces Survivor Benefit Plan benefits to TRISHA ANN PARRISH as TIMOTHY PARRISH's former spouse and shall immediately provide TRISHA ANN PARRISH copies of those documents, papers, and fo1111s. IT IS ORDERED that TIMOTHY PARRISH shall not during TRlSHA ANN PARRISH's lifetime modify, amend, withdraw, or in any other manner alter the election to name TRISHA ANN PARRISH as a former spouse beneficiary ofTIMOTHY PARRISH's Am1ed 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.

SIGNED on _ _ _A_P_R_3_0_2D_OB_ _ __

JUDGE PRESIDING

AGREED TQ IN FORM AND SUBSTANCE .') ' ' -z:ft_ 12 :A ..; ~~~s~?j~.- ,· ·' ~~JL4 T~HA A =fA . u ~sc.. ARRISH

,2008.

·:

'·

CAUSE NU~!TIER 226.429.B IN THEM ATTER OF IN THE DTSTR!CT COURT

THE MARRIAGE OF 14Gn1 JUDICIAL DISTIUC!' TIMOTHY PARRISH ANJJ T!USHA ANN PARRISH BELL COUNTY. TEXAS AND IN THE INTEREST OF .JOSHl!A ROBERT PARRISH AND ZACHARY ALLEN PARRISII, CHlLDREN

l'villMORANDUM OFRTJLlNG

On May 06,2014, Petitioner appc:Jrcd with nllorncy. Ashley Clapper. Respondent appeared wii.h nttorncy. Brett Pritchard, l-\ hc:aring wa.'l held on P.._-:tlliuner's }\·'lotion for CJarifictl!ion and Rcspom.lcnt"s Petition ror EnfurCI?IilenL

The court finds thnl the terms or lht: Fin a! Decree (~r Divorce and Lhc Dom~:ilic He lations Order in Lhi.s ca~e. both cnterl~d un Apri! 30. ~UUH. arc ,·ague ;md ambiguous ;mel arc therefore subject to clmificatin11, Tlw unkr.s .o.;hould bl· r¢vlsc.U lO rcnccl th;u Tirnotlly P<mish. Petirioncr, served two hundred ninety one (29 I) momhs in the miliwry. !he patrlcs were man·ied one hundred sixty ( !60) or tho:-;..: IJ'!Olllh!-i, lhe applicabic disposable mill wry pny i.< .';5,382.10, and that paytnents ro Trisllil P:ltTJSIJ. Re.spontient. shall continue until the death of either of the pari ie'.

Trisba Parrish's Peril ion !'or Etlforcement is GRANTED. Timothy Parrish is onicred 10 pay Trish:1 Parrish nny amotmls she lw~ no! rccel\'ed 10 date based upon the e<.Jlcularion of benefits described in the prec:ediug paragraph Hllcl to-l:tke. sudt act ion as 111<1)' be necessary to implement the pll"~\'is.ions (lj' this ruling.

TrishJ Parris-h' ..., rcguc.'\1 thnl TimuilJy Parrh:.ll be lu::IU in {.:lllllempll1f' coon is DENIED.

Each party shall pay its own attorney's fees and costs of court incurred by them.

Mr. Pritchard shall prepare otders which may be appropriate to inplement the ;j provisions of this ruling. J .I

SIGNED TIDS "J. z-v,J DAYOF AA~ • 2014.

NO. 226.429-B ORiGINAL IN THE MATTER OF § IN THE DISTRICT COURT Q I THE MARRIAGE OF § :j §

--· '' TIMOTHY PARRISH § !46TH JUDICIAL DISTRIC'fl'; AND § TRISHA ANN PARRISH 1\.L ~ § BELL COUNTY, TEXAS

aN= DOMESTIC RELATIONS ORDER

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 of that depree of divorce, and further finding that the entry of a DRO is appropriate, makes the following findipgs and conclusions of law and enters them as an order in this proceeding. Findings The Court !jnds, in accordance with the Uniformed Servid.es Fonner Spouses' Protection Act, \0 U.S.C. section 1408, as follows: I. This Court has jurisdiction over TIMOTHY PARRlSH. The residence of Service Member is in Killeen, Bell County, Texas, other than because of military assignment. 2. Service Member, and TRISHA ANN PARRJSH, ("Former Spouse"), were originally married on October 3, 1994, and that marriage lasted for 13 years and 4 months, during which time Service Member s~rved 13 years and 4 month or more of creditable service toward retirement. 3. Service M~mber's Social Security number is XXX-XX-XXXX, his address is 585 CR 4745, Kempner, Texas, and his birth date is December 30, 1964. 4. Former. Spouse's Social Security number is XXX-XX-XXXX, her address is

' . 113'55 MooM' t.liotJ ao. rf!ooot rx ?it5S;t, and her birth date is Apri125, 1972 . .

5. The rights of Service Member under the Servicemembers Civil Relief Act were fully complied with in this case. 6. Service Member is not retired from the United States United States Army 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 Fonner Spouses' Protection Act. 8. It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) desi~nee make the payments due to Fonner Spouse of her interest in the disposable retired pay awarded m this order directly to Fonner Spouse.

Domulk Re\aliOIU Orlkf • Mililacy R.etirmcnl 1 PARRISH, TlMOnlY 11-1187·fM AC

Award to Fonner Spouse . IT IS THE~F!JRE ORDERED that the Former Spouse is awarded27..5'7 percent of the disposable military retired pay the member would have received had the member retired at the pay~de ofCW4 with a retired pay base of$5,3 82.10 and with 24 years ancJ,. months of creditable semce IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each month, to the extent allowed by law, the calculated percentage ofTIMOTHY PARRISH's disposable retired pay at retirement, together with all cost-of-living adjustments applicable thereto, payable, IF, AS, and WHEN received by TIMOTHY PARRISH. IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay ofServicemember is the sole and separate property ofServicemember. Amounts In E:xcess.o/50 Percent ITIS ORD~ that if the dollar amount or award (or a larger sum as increases take effect) exceeds SO percent of the disposable retired pay, DFAS shall pay to Former Spouse the maximum amount allowable :w\der the Uniformed Services Former Spouses' Protection Act and Service Member shall be resp~nsible for paying the balance ofthe award each month to Former Spouse, and it is accordingly ORDERED. ' I Constructive Trust : i IT IS FURTHER ORDERED that Service Member be and is hereby designated a constructive 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 Service Member be and is hereby ORDERED, on recei{'t thereof, to deliver by first-class mail to Former Spouse at her last known address by negotiable mstrument 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 Service Member. All payments made directly to Former Spouse by DFAS shall be a credit agalhst this obligation. I

Forpurposesbfthis order, Service Member is specifically directed, on penalty of contempt, to pay Former Spodscl's interest in the disposable retired pay as ordered in this order, AND IT IS SO ORDERED. Service Member is specifically directed that he is not relieved ofthat obligation except to the extent that heo is specifically notified that I00 percent of Former Spouse's interest in the retirement benefit hail 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 Service Member sl}all not reduce the amount equal to the percentage of the disposable retired pay or of the disposable r.erln:d pay the Co~ has herein awarded to Former Spouse, ex~ept as provided by federal law and J)rohibited from being changed by a state court order. In th1s regard, IT IS FURTHER ORDERED that Service Member shall not merge his military retired pay with any other pension and shall no~pursue any course of action that would defeat, reduce, or limit Former Spouse's right to receive Fohher Spouse's full separate-property share of Service Member's retired pay as awarded in this order, . ; unless otherwise ordered herein .

Doma\it \\da\ioftS Onltr • Mil\IUJ 1\etin:nmd PARR.ISH, TIN01HY 11-llll:fMAC 2

! ! . '

Retiree Account Statements and Privacy Waiver IT IS FURTHER ORDERED that Service Member shall deliver by first class mail to Fonner SpoiiSeat IZS~lArfiA. Mmzp5 rx a,sfcz .orsuchotheraddressasFonnerSpoiiSemay hereafter specliJIWriting, a true an correct egible copy of each Retiree Account Statement received by Service ~ember from DFAS within five day of its receipt. Retirement IT IS ORDERED that Service Member shall notify Fonner Spouse of his application for retired pay, and provide Fonner 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 Service Member to Fonner SpoiiSe at her last known address. Service Member is FURTHER ORDERED to provide to Fonner SpoiiSe !I true and correct copy of the first Retiree Account Statement received by him within five days of; its receipt. Application for Direct Pay ofRetired Pay ! Fonner Spciuse is hereby directed to apply for Fonner Spouse's entitlement to a portion of Service Member's retired pay by contacting the DFAS Legal Department, completing the Application for Former Spouse Payments from Retired Pay (DO Fonn 2293), and dehvering it along with a certified copy of this DRO (certified within ninety days of its dehvery to DFAS) and a photocopy of the parties' marriage certificate to: DFAS-CL, Garuisbment Operations (Code LL), P.O. Box 998001, Cleveland, Ohio 44199-8001 by certified mail, return receipt requested. Taxes l IT IS FURtHER ORDERED that Former Spt~use shall include in her gross income fDr her taxable years of receipt all retired pay received by Fonner Spt~use pursuant to this order, and, to the extent benefits are. payable to Fonner Spouse by DFAS, Service Member shall not include such benefits in Service .Member's gross income for such taxable years. Continued Jurisdiction .I and Clarification Although ttje'Court and the parties intend that DFAS make direct payments to Former Spt~use Df Fonner Spouse's interest in the disposable retired pay awarded herein, IT IS FURTiffiR ORDERED that, if this order does not qualify for direct payment, Service Member shall cooperate and do all things neeessary to aid Former Spouse in obtaining a clarification of this order that will qualify for direct payment of Former Spouse's interest in the disposable retired pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to enter such a clarifying order. · !

I.

' -Rdotlons0o4or-Militayllclo.- 3 PAMISH, TIMOTHY II·IIIT.,.. AC

•

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 f'(uv~ /'2., 2ol'f

. )

I 'I

CERTifiED COPY DOCUMENT A1TACHED IS A TRUE & CORRECT COPY OF THE ORIGINAL ON FILE Domestic llel>lioaso.lor. M;lilooyltciUancnl 4

·e PAIUUSH, TIMOTHY 11·1117·FM AC NOV 12 20ft SHj:~IA F. NORMAl~> ~~,:.,~~

Footnotes

[5] It is undisputed that Doug's disposablc_retircd conferred by consenl or waiver}; see aim Met=ger ,._ pay in 2006 was $2,206. According to the formula Mcr:ger, No. 01-04-00893-CJI. 2007 Tex ..4pp. L/Dr.1S in the original DRO. Janelle was entitled to only 4487. 1007 WL 1633445, at *6-7 (/'ex. App.--llousto11 19.5272% of the disposable retired pay that Doug {J.u Di.•t.J June 7, 2007, pet. denied) (mcm. op.) (holding was entitled to as of the date of his retiremenl that the parties' agreement did not give the court il :., Janelle argues that this case is distinguishable from the authority Doug relies upon because Doug entered into jurisdiction in a clarificalion suit to modify an unambiguous divorce decree lo reflect the parties' agreement). an enforceable Rule I I agrccmcnl to increase Janelle's award in exchange for other consideration. Moreover, it 6 Our opinion should not be construed as is undispUicd that il was Doug, not Janelle, who soughl affecting any contractual riglus that either Janelle clarification of the ORO. In eiTec~ Doug is now or Doug might have under the Rule II agreement. aprcaling the modification that he initially sought and See Metzger, 2007 Tex ..4pp. LEXJS 4487, 2007 then agreed to nearly four years ago. Although we li'L /63345, at *7. acknowledge that these facts appear unfair and create a waste of judicial resources, the legislature has detem1ined COSCLUSIOS thai the trial court is without power to modify an The trial court lacked jurisdiction to modify the DRO unambiguous property di\'ision conlained in a divorce ond enter the Amended ORO. Therefore, Doug did not decree,6 See TEX. FA.II. CODE ANN.§ 9.007(b) (providing need to comply with the bill of review requirements to that modification of [UIO) propeny division in divorce challenge subject matter jurisdiction, and the trial court decree is outside the power of the divorce court); Tex. A.•.•'n nf Bu•. v. Tex. Air Cnntml Bd.. 852 S.ll'.2d 440, erred in denying the bill of review. More importantly, we ["751] grant the rcliefthe trial cnurt should have [""II] 444-45 (/'ex. 1993/ (holding that subject matter granted and vacate the Amended DRO. jurisdiction cannol be wai\'cd); /11 1·e A.D.D.. 974 S. W2d ]99, 303 (/'ex. App.--So11 Antonio /998. 110 pet.) Rebecca Simmons, Juslicc I ~-) (explaining that subjecl maucr jurisdiction cannot be ,,,I LexisNexisOC' GEORGE PAYTON SHANKS, l'l':TITIONEH v. !>:ENllA CAROLYN (SHANKS) TREADWAY. RESPONDENT NO. 110-1325 SUI'llEME COURT 01' n:XAS

[110] S. 11-:Jd 4.f.J; )U(J3 Tex.. LEX IS 87; 46 7£•~-.:. Sup. J. 8.ffl AJlril 24, 2002, Argued .June 26, 2003 1 Delivered PRIOI! IIISTOllV: [>+IJ ON PETITION FOR 1. H;tdtground REVIFW FllOM THE COURT OF APPEALS I'OR TilE FII'TI! DISTRICT OF TEXAS. Kcmla Carolyn Treadway i.i..nd GcoJ·gc P:.iyton Tremhmy \\ Shank.1·, 1 }() S. WJd }, 2000 Tex. "I PI'· Sh,mks 11\urdcd in 196~. George started WlHking for LEXJS 7945 (Tex. Apv Dallas. ,\'m·. 17. 2000) Amcric:m Airlines in \966 and began particip<~ting in Amcrit::<ln':..; retirement program 1hc following yc;1r. The DISPOSITION: Anirmcd. prograu1 indudcd both a defined [*'"'21 benefit plan and a defined cormibution plan. I George continw::d to Wllrk ror Amt:ric:m until hi!> retirement in 1998. JlJD(-;J,:s: JUSTICE O~EILL delivered the (lpininn of the Court. Generally. ;:~n employee parlldpntiug in a ddiued benefit plan will rccci\'C a future benefit QflJ~IO:"i BV; Harriet O'Neill hasc:d on a specified formula thai often takes into nccl1Unl earnings, length of service,. or both. OI'TNTON Uruwu, Comtlllml. An lmerdiscipliwu:~~ Anu~\'sis Dfllw DNision o[Pe11sio11 Bc11ej'il.s in DiliOJ'Ce and l *-44-1] The is.'luc in this C;).S.C is lhc proper Po.H·.Judgmenl PiirlifirJI/ Acfions.' Cure:.1· Jot Jlw lJJtcrptc\Ullun of a 198:1 di\'orcc dccrc:c tim~ div[dcd, ll!cquiLies in Hf!ny 1', Ben}', 37 BAYLOR L anHmg other asscls, relircmelll benefits stemming !lorn REV. 107, 115-16 (1985). A defined contribution one spouse's employment bol!t dunng and after lhc plan, on the other hand, il' funded by conlributions marriage. The trial court held thtH the ["'445J divorce of a S)1cci lied amount thai are invested or placed dccrcl.! fl\\·ardcd the nun-employee spouse u specific 111 a trust fund. and the employee is cnlillcd upon percentage of the rctin.:mcnt b.;n~flts valued ar d1c d;.Hc of rctircrnclll to those contributions plus the t:arnings Jivorcc. The court of appcalf. reversed, cnndutling t.hut thercun. !d. en II J. the 1.kcrcc Ulmmbiguously nwardcd the nnn-cmployee SjJOliSC 11 JlCfCCIHngc of the the bell d)!_$ Oil luU\J Ul11dU11l oi' Gt·urgc nnd Kcnda divorced m 1981. Jn the div()rcc the date or retirement. 110 .\~ W3d 1. 2000 Tex. App. deCJcc. the districl court awitrdcd Ketlda a lwcnty-fi.vc LEXIS 79.fS. We hold that the court of ~1ppcals correctly pcrcc:.·m jntcrcsl in Gcorgc1S n.::litc.trtcnl benefits:, m1d inteq)rctcd lhc decree. Accordingly. we affirm the coun neither party appealed the ju~g.tilC~IL The relevant of appeals' judgmem. portious of[HJ] the decree provide: The Coun finds that [George] has earned ~crtain LEXIS 7945. The coun held that lhe divorce decree employee benefits under a pension plan arising out of unambiguously awarded Kcnda "a twenty-five percent past employment as an employee of American Airlines. interest of the 'total sum or sums paid or to be paid' from [George's] [ 00 5] pension plans and [did] not limit her [Kenda] is awarded a "pro-rala intcrcstu (as award to a percentage of the benefits accrued in the plans hereinafter defined) of any and all sums received or paid prior to the divorce." ld at 6, 2000 Tex App. LEXIS 7945 lo (George] from such pension plan and such sum or al • 11. The· court therefore remanded the case to the sums shall be payable to [Kenda] if, us and when paid by district court to enter a revised QDRO awarding Kenda a American Airlines or the trustee of such plan to [George] twenty-five percent interest in the entire amounl to be as pension or retirement employee benefits existing paid to George as retirement benefits. We agree with the because of[George's] employment appellate court's intcrpretntion of the decree and therefore alfmn the court of appeals' jud!,'ltlent. IT IS DECREED !hat [Kenda's] "pro-rata interest" shall be defined as that sum o(money equal to 25% of the II. Dh·ldlng Rellremenl BeneliiS total sum or sums paid or to be paid to [George] from such pension or retirement plan. We begin with an overview of the law that was in cffccl in this area at the time the decree was entered to dernonslrate the complexities involved in dividing retirement benefils upon divorce. Our decisions focused IT IS FURTHER DECREED that all remaining first on the recognition of pension interests as community right, tille and interest in and to such American Airlines propeny rights and lhen on the separate issues of pension and/or retiremem plan shall be and is hereby set apponionmcnt and valuation of benefits. In Cea,·leJJ "· aside to [George]. Cem·Jer, we considered whether future pension benefits On March 9, 1998, approximately two mon1hs before constitute community property rights subject to equitable his scheduled retirement dace. George filed a Motion to di\'ision upon divorce. 544 S.ll'.2d 661, 663-64, 20 Tex. Sign Qualified Domestic Relations Order ("QDR0 11 ). See Sup. Ct. J. 102 (Tex. 1976). We approved of the I I TEX FAM. CODE § 9.10]. In his motion, George proposition thai even "nonvcstcd 2 pension rights arc ... I proposed that !he court calculate [••4] lhe value of bolh a contingcnl in1crcst in propcny~" and nlo the cxlent thai the defined benefit and defined contribUiion plans as of [,...6] such rights derive from employment during the date of dh•orce in awarding Kcnda her t\venty-five covenure. they comprise n community asset subject to percent interest. In response, Kenda asserted thai res division in a dissolutiQn proceeding." /d. (quoting Brow11 1'. Brown, IS Cal. 3d 838, 126 Cal. Rptr. 633, 544 f'.2d judicata barred the attempted collateral attack. She requested that the district coun sign her proposed QDRO, 561, 561 (Cal. 1976)). We also discussed the difficulty of awarding her twenty-five percent of the tolal amount of computing lhc present value of such a contingent interest the benefits to be paid to George. and approved the method of making the award of the non-employee spouse's community interest 11 effective if, The district court signed two QDROs - George's as, and when the bencnts are received by the (employee] QDRO di\•iding lhe defined benefit plan valued at the spouse." 544 S. W.1d a/666. date of divorce and Kenda's QDRO dividing both plans valued as of the date 1hat George actually rcceh•cd 2 Pension plan bene fils become vested when the ["446] payment In light of lhc inconsistent order.;, employee has an unconditional ownership interest George moved for reconsidcr.uion. The coun granted in them; thai is, the employee has the right 10 George's motion, ''acated Kenda's QDRO, and entered receive the accrued benefits upon retirement another QDRO valuing the defined contribution plan al whether or not he is working for the same the date of divorce. Kenda appealed. employer. Brown, 37 BAYLOR L. REV. at 119. In comrast, pension benefits arc "matured" when The coun of appeals reversed the judgment, lhc employee is entitled to "immediate collection concluding that the trial court's QDROs impermissibly and enjoyment.'' ld. nltcrcd the substantive division of propcny made in the original divorce dccree.IIO S.II'.3J at 3, 1000 Tex. App. The 1983 case Bei'IJ' "· Bei'IJ'. 647 S. W.ld 945, 16 Tex. Sup. Ct. J. 166 (Te_,, 1983), currently go\'ems the