Tracie Marie Scheffler F/K/A Tracie Marie Parson v. Paul Michael Parson

ACCEPTED 13-15-00150-CV FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI - EDINBURG 7/2/2015 10:52:24 AM CECILE FOY GSANGER CLERK 07/02/15 NO. 13-15-00150-CV CECILE FOY GSANGER, CLERK BY cholloway IN THE COURT OF APPEALS RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH DISTRICT OF TEXAS 7/2/2015 10:52:24 AM CECILE FOY GSANGER Clerk CORPUS CHRISTI - EDINBURG

TRACIE MARIE SCHEFFLER F/K/A TRACIE MARIE PARSON, APPELLANT,

v.

PAUL MICHAEL PARSON, APPELLEE.

On Appeal From the 81st Judicial District Court of Wilson County, Texas, Trial Court Cause No. 10-10-0579-CVW

APPELLANT’S BRIEF __________________________________________________________________

Kirk Dockery, Attorney in Charge State Bar No. 05929220 Email: kirkdockery@gmail.com Scott R. Donaho State Bar No. 05967755 Email: srdonaho@floresville.net The Law Offices of DONAHO & DOCKERY, P.C. P.O. Box 459 Floresville, Texas 78114 Tel: 830-393-2700 Fax: 830-393-3029

ATTORNEYS FOR TRACIE MARIE SCHEFLLER

IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case and were parties to the trial court's order in this matter. These representations are made so the Judges of this Court may evaluate possible disqualification or recusal.

APPELLANT: Tracie Marie Scheffler, referred to as “Scheffler” or “wife” Counsel for Appellant are:

The Law Offices of DONAHO & DOCKERY, P.C. Kirk Dockery Email: kirkdockery@gmail.com State Bar No. 05929220 Scott R. Donaho Email: srdonaho@floresville.net State Bar No. 05967755 P.O. Box 459 Floresville, Texas 78114 Telephone: 830-393-2700 Fax: 830-393-3029

APPELLEE: Paul Michael Parson Counsel for Appellee are:

DIAZ JAKOB, LLC Jason J. Jakob State Bar No. 29042933 Email: jjakob@diazjakob.com The Historic Milam Building 115 E. Travis Street, Suite 333 San Antonio, Texas 78205 Tel.: (210)226-4500 Fax: (210)226-4502

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TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii APPELLANT'S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT AND AUTHORITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Jurisdiction: Clarification or Modification?. . . . . . . . . . . . . . . . . . . . . . . . . . 6 The DRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Calculation of Retirement Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

INDEX OF AUTHORITIES

Cases Allen v. Allen, 717 S.W.2d 311 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Baxter V. Ruddle, 794 S.W.2d 76 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Berry v. Berry, 647 S.W.2d 945 (Tex.1983). . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 10 Beshears v. Beshears, 423 S.W.3d 493 (Tex.App. Dallas, 2014). . . . . . . . . . . . . 17 Coker v. Coker, 650 S.W.2d 391 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App. El Paso, 2014).. . . . . . . . . . 7 Gainous v. Gainous, 219 S.W.3d 97 (Tex.App. Houston [1 Dist.], 2006).. . . . . . 17

Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex.App.-San Antonio 2002, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re R.F.G., 282 S.W.3d 722 (Tex.App.-Dallas 2009, no pet.).. . . . . . . . . . . . 8, 16 Joyner v. Joyner, 352 S.W.3d 746 (Tex.App. San Antonio, 2011). . . . . . . . . . . . . 7

National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517 (Tex.,1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Quijano v. Quijano, 347 S.W.3d 345 (Tex.App.-Houston [14th Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . 17 Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex.2002) .................................................................. 7

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) . . . . . . . . . . . . . . . . . . . . . . 7

iv State Statutes Tex.Fam.Code Ann. 9.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Tex.Fam.Code Ann. 9.006(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Tex.Fam.Code Ann. 9.008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Federal Statutes 29 U.S.C. § 1056(d)(3)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

v

STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that the errors in this case are evident from the documents contained in the clerks record, and the appendix of this brief, and the issues presented by this brief, and that oral argument would do little to aid the court in determination of those issues.

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ISSUES PRESENTED

First Point of Error

The trial court erred in granting appellee’s motion to dismiss for lack of jurisdiction.

Second Point of Error

The trial court abused its discretion in granting appellee’s motion to dismiss for lack of jurisdiction.

Third Point of Error

The trial court abused its discretion in failing to grant the relief requested by Appellant to clarify the valuation of the military retirement in the decree of divorce and the domestic relations order.

vii

NO. 13-15-00150-CV

IN THE COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TRACIE MARIE SCHEFFLER F/K/A TRACIE MARIE PARSON, APPELLANT,

v.

PAUL MICHAEL PARSON, APPELLEE.

On Appeal From the 81st Judicial District Court of Wilson County, Texas, Trial Court Cause No. 10-10-0579-CVW

APPELLANT'S BRIEF

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Tracie Marie Scheffler, herein after sometimes referred to as Scheffler, Appellant, “wife,” or “former wife,” presents this brief in support of her request that this Court reverse the order of the trial court dismissing the petition to clarify the division of military retirement in the DRO for lack of jurisdiction.

STATEMENT OF THE CASE

This appeal lies from the trial court’s entering an order dismissing the former *2 wife’s petition to clarify the military retirement DRO for lack of jurisdiction.

Appellant raises three points of error. First, the trial court erred in granting appellee's motion to dismiss for lack of jurisdiction.

Second, that the trial court abused its discretion in granting appellee's motion to dismiss for lack of jurisdiction.

Third, that the trial court abused its discretion in failing to grant the relief requested by Appellant to correct the valuation of the military retirement in the decree of divorce and the domestic relations order.

STATEMENT OF FACTS

Appellant, Tracie Marie Scheffler, then known as Tracie Marie Parson, filed suit for divorce in the 81st Judicial District Court of Wilson County, Texas, in October 2010.

Appellee, Paul Michael Parson, herein after sometimes referred to as Appellee, “husband,” or “former husband,” was a member of the United States Armed Services prior to the marriage and continued to be a servicemember after the divorce, and therefore a portion of his military retirement was his separate property.

On February 3, 2011, the parties and their respective counsel or record met for a settlement conference at the conclusion of which both parties and counsel signed a rule 11 agreement which provided, in relevant part:

"5. Wife awarded: ..... “h. ½ community interest in military retirement. .... “6. Husband awarded: .... “c. ½ community interest in military retirement + all H's SP interest." (CR 92,93) (APP 1)

On May 24, 2011, the trial court entered a "Corrected Final Decree of Divorce" which provided that wife was to receive a portion of husband’s military retirement. Mr. Parson was at that time an active duty member of the armed services. Regarding military retirement, the decree awarded husband the following:

“H-4. 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 of PAUL MICHAEL PARSON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of PAUL MICHAEL PARSON's past, present, or future employment, except that portion of PAUL MICHAEL PARSON's U.S. military retirement that has been awarded in this decree to TRACIE MARIE PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated verbatim in it by reference.” [emphasis added] (CR 71) (APP 2)

The decree also awarded wife the following:

“W -6. 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 of PAUL MICHAEL PARSON's service in the United States Navy, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of PAUL MICHAEL PARSON's past, present, or future employment, except that portion of PAUL MICHAEL PARSON's U.S. military retirement that has been awarded in this decree to PAUL MICHAEL PARSON as more particularly specified in the domestic relations order signed in conjunction with this decree and incorporated verbatim in it by reference.”

[emphasis added] (CR 73) (APP 2)

This section is perhaps inartfully drafted in that it awards wife “all” of husband’s military retirement except that portion awarded to husband as specified in the DRO. However, the DRO does not award the husband any portion of the military retirement, as it only awards the former spouse a portion thereof. A strict reading of these sections would result in the former husband receiving none of his own retirement. This demonstrates some need for clarification.

Also on May 24, 2011, the trial court entered a "Domestic Relations Order -Military Retirement" awarding wife a portion of husband’s military retirement which provides as follows:

"IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember's retirement from the United States Navy, the amount of disposable retired pay calculated as follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent multiplied by the high-36 month base pay of the Servicemember, which is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months, determined on the date of Servicemember's retirement divided by Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement." [emphasis added] (CR 80) (APP 3)

From the formula as stated in the DRO it is impossible for anyone to determine what numbers were used for the numerator and the denominator of the fraction in order to arrive at the “16.66 percent.” The same is also true for the formula used to calculate the “35.0 percent.” Only by using the correct numbers, which are known from the facts of the case, and which are correctly stated in the DRO, can we *5 determine that the wrong values have been used to for the valuation of the military retirement in this DRO.

Former husband retired from the military on October 31, 2014. Based on former husband’s retirement statement, former wife determined that her share of the military retirement under the standard formula provided in Berry v. Berry, 647 S.W.2d 945 (Tex.1983), should be approximately $282.00 per month. However, when the formula stated in the DRO was applied, the resulting figure is merely $92.00 per month. Only then did the former wife discover that the DRO gives former husband a windfall of approximately $190.00 per month for the remainder of his life. (CR 86) (APP 4)

On January 6, 2015, former wife filed her “Motion to Correct or Amend Domestic Relations Order for Military Retirement” requesting clarification of the formula used in the DRO. (CR 85) (APP 4)

At a hearing on that motion on February 9, 2015, the former wife presented her motion for clarification to the trial court. At that time the former husband presented his motion to dismiss the former wife’s motion because it would be an impermissible modification of the divorce decree, and therefore the trial court lacked jurisdiction to consider the motion. The trial court took both motions under advisement. On February 13, 2015, the trial court entered its order dismissing the former wife’s motion for lack of jurisdiction.

ISSUES PRESENTED

First Point of Error

The trial court erred in granting appellee’s motion to dismiss for lack of jurisdiction.

Second Point of Error

The trial court abused its discretion in granting appellee’s motion to dismiss for lack of jurisdiction.

Third Point of Error

The trial court abused its discretion in failing to grant the relief requested by Appellant to clarify the valuation of the military retirement in the decree of divorce and the domestic relations order.

ARGUMENT AND AUTHORITY

Jurisdiction: Clarification or Modification?

By granting the motion to dismiss for lack of jurisdiction the Appellant’s motion to clarify the military retirement, the trial court failed to recognize the subtle difference between a modification and a clarification of military retirement. (CR148) (APP 5) Appellee, the former husband, asserts that the former wife is seeking to modify the apportionment of the community estate’s share of the military retirement. *7 However, the former wife is instead seeking to clarify the valuation of the community estate’s share of the military retirement. (CR 103) (APP 6) Both parties should be entitled to reasonable certainty that the community portion of the military retirement has been valued correctly.

A trial court's ruling on a post-divorce motion for clarification of a divorce decree is reviewed for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App. El Paso, 2014). A trial court abuses its discretion when it acts arbitrarily or unreasonable or without reference to any guiding rules or principles. Id.

The trial court’s dismissal for lack of jurisdiction is a question of law that the court of appeal should review de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 551 (Tex.App.-San Antonio 2002, pet. denied); 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 Appellant sought to “clarify” or to “modify” the DRO. Appellant asserts that the DRO is ambiguous because, although there was an attempt to use the formula set forth in Berry, the DRO failed to use the correct values for the valuation, and the DRO reduced the Berry formula calculations to percentages without showing the actual numbers used to performs those calculations. In other words, the DRO failed to show the full math used for the valuation. Without showing those numbers, *8 and thus without making the valuation capable being verified, the parties can only guess at what numbers were actually used in the formula.

Furthermore, any attempt to replicate the valuation set forth in the DRO using all of the values, which are now known, results in a valuation of the community portion that is far greater than that provided in the DRO. Consequently, the share awarded to the former wife by the DRO is about one-third of the correct amount.

The DRO in this case is a part of the agreement between husband and wife upon divorce. (CR 85) (APP 1) An agreed property division, although incorporated into a final divorce decree, is treated as a contract and is controlled by the rules of construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); In re R.F.G., 282 S.W.3d 722, 725 (Tex.App.-Dallas 2009, no pet.). A latent ambiguity can arise when a contract appears unambiguous on its face, but when applied to the subject matter with which it deals an ambiguity appears. National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex.,1995). Such is the manner in which this ambiguity was discovered. It was not until the final variable was known, that being former husband’s disposable retired pay, that former wife could perform the final calculation and determine that an error had been made.

The primary problem in this case is the failure to correctly utilize the formula prescribed in Berry v. Berry. All variants of that formula indicated that all original *9 values, that is, the numerators and denominators, etc., of the necessary calculations be shown. Then let the DFAS perform its function and calculate the former spouses share of the disposable retired pay. The DRO in this case takes the unusual step of purporting to perform the calculations of the second and third variables down to percentages, which had the effect of masking the fact that the incorrect numbers had been used. The results of those calculations in the DRO cannot be replicated by using the known number, which are elsewhere stated correctly in the same DRO. We will never know where the error was made, but the fact that an error has been made is easily demonstrated.

In any valuation of the community share of military retirement the relevant numbers are easily determined from existing facts. In this case, either the wrong numbers were used in the formula, or there has been mathematical error. Either way, the result is a miscalculation of the community share of the military retirement.

It is easily understood that military retirement benefits earned during marriage are community property. But for many years the courts struggled with valuing the community property interest when the servicemember was still on active duty at the time of divorce, or when the servicemember joined the military prior to marriage. The formula in Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977), was created to address the issue of apportionment of the community share. The Taggart formula provides a fraction, the numerator of which is the number of months the *10 servicemember served during marriage and the denominator of which is the total number of months the servicemember has served in the military at the time of divorce. Case law stated the formula as follows:

months of service servicemember's 50% X during marriage X retirement benefit ------------------------ total months of service

The first variable, fifty percent, indicates that the trial court intends to divide the community portion equally between the parties. The division may be disproportionate based on the circumstances presented.

The Taggart formula was problematic in that it did not recognize that post-divorce military service belonged to the servicemember spouse's separate estate.

That changed six years later with Berry v. Berry, and since then Texas law has clearly mandated that the community estate’s interest in military retirement be valued as of the date of divorce, and that it include a method for determining what portion of post-marital service belongs to the member's separate estate. The method used is to provide that the percentage awarded to the former spouse shall be multiplied by the benefit earned at the grade and time in service that exists as of the date of divorce, plus an equal percentage of cost of living increases, if, as, and when received. The formula therefore changed to:

months of service servicemember's 50% X during marriage X retirement benefit ------------------------ as earned by rank total months at time of divorce of service

With this formula the valuation becomes a matter of plugging in the known values as of the date of divorce.

The 2010 version of the Texas Family Law Practice Manual states the formula in the form for a military retirement DRO as follows:

"IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember's retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows:

[___________] percent [percentage awarded former spouse]

X multiplied by

[___________] [number of months of servicemember's service during marriage] ÷ divided by [___________] [number of months servicemember has been on active duty on date of divorce] percent

X multiplied by

[___________] percent [0.025 multiplied by number of full months of servicemember's creditable service toward retirement on divorce divided by 12 1 ] percent

X multiplied by

[___________] [servicemember's high-36 month base pay on

1 The Defense Finance and Accounting Service has provided this formula post Berry to more easily allow for this calculation in that servicemembers accrue retirement benefits at the rate of 2.50% per month multiplied by their highest 36-month base pay.

date of divorce] (APP 7)

divided by Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement."

The final variables in the formula, that is, the amount of “Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement” cannot be known until after the servicemember has actually retired. Therefore, if the servicemember spouse is still active duty the actual value of the former spouse’s portion of the military retirement cannot be accurately calculated until the actual retirement occurs.

Upon retirement of the servicemember it should then be a simple procedure to calculate the amount of the former spouse’s share of the military retirement using the same formula, all of the previously known values, together with the final variable, which is the disposable retired pay.

In this case, as of the date of divorce, each of the following facts was known, and these facts are actually stated in the DRO:

a. The parties were married on June 5, 2004. (CR 41) (APP 3)

b. The parties were divorced on February 3, 2011. (CR 41) (APP 3)

c. During the marriage Respondent served 6 years and 8 months (80 total

months) of creditable service towards military retirement. (CR 41) (APP

3)

d. As of the date of divorce Respondent had served 18 years and 2 months

(218 total months) of creditable service towards military retirement.

(CR 41) (APP 3)

e. Respondent's high-36 month base pay on date of divorce was $3,322.16.

(CR 41) (APP 3)

Since Respondent's retirement on October 31, 2014, the following facts are known:

a. Respondent's monthly gross retired pay at retirement is $2,341.00. (CR 90) (APP 4) [A

b. Respondent's monthly disposable retired pay at retirement is $2,243.14. (CR 90) (APP 4) The DRO The DRO entered in this case stated:

“Award to Former Spouse “IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember's retirement from the United States Navy, the amount of disposable retired pay calculated as follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent multiplied by the high-36 month base pay of the Servicemember, which is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months, determined on the date of Servicemember's retirement divided by Servicemember's monthly gross retired pay at retirement multiplied by Servicemember's monthly disposable retired pay at retirement.” (CR 80) (APP 3)

The DRO in this case fails to state the numbers used to obtain the second percentage, that is, it fails to state the numerator and the denominator used to calculate the “16.66 *14 percent.” The DRO also fails to state the variable used to calculate the third value, that is, it fails to state the multiplier used to calculate the “35.0 percent.” How those numbers were calculated we may never know, but Appellant can demonstrate that the calculation is simply not correct. Thus, the valuation of the community share of the military retirement benefit was not performed correctly. Calculation of Retirement Pay

Using the known values from this case, the former wife’s share of military retirement should be calculated as follows:

50.0% [percentage awarded former spouse] X multiplied by 80 [number of months of servicemember's service during marriage] X multiplied by 218 [number of months servicemember has been on active duty on date of divorce] percent X multiplied by (0.025 x 218 / 12)% [percentage of servicemember's gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember's creditable service toward retirement on divorce divided by 12] percent X multiplied by $3,322.16 [servicemember's high-36 month base pay on date of divorce] ÷ divided by $2341.00 Servicemember's monthly gross retired pay at retirement X multiplied by $2,243.14 Servicemember's monthly disposable retired pay at retirement."

All calculations are performed as follows:

0.5 x 0.36697 x 0.45416 x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92 Stated another way: 50% x 36.697% x 45.416% x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92 The underlined numbers in each verison shows where the incorrect numbers have been corrected. This demonstrates how the standard formula provided in Berry should have been used in this case. The DRO actually contains all of the correct information, that is, the beginning values, that are to be used in the stated formula. But for some unknown reason, the DRO fails to use those correct values in the valuation of the military retirement. And for that reason the DRO is ambiguous.

The DRO provides, “50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent multiplied by the high-36 month base pay of the Servicemember, which is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the date of divorce, which is 18 years 3 months . . .” Importantly, we can determine the intent of the parties and the court from the first number stated, that being the percentage of the community estate’s portion of the military retirement awarded to the wife. The DRO clearly states “50.0 percent." This amount coincides with the rule 11 agreement signed by the parties prior to the entry of the final decree.

From the formula we also know that the second value, stated as “16.66 percent,” should be the product of a fraction, the numerator of which is the “number of months of servicemember's service during marriage,” which the DRO states is 80, *16 and the denominator of which is the “number of months servicemember has been on active duty on date of divorce,” which the DRO states is 218. However, 80 divided by 218 equals 36.697 percent. It does NOT equal 16.66 percent, the product of that calculation stated in the DRO. Consequently, that portion of the DRO is ambiguous.

From the formula we also know that the third value, stated as “35.0 percent,” should be the product of a calculation, the first multiplier of which is 0.025, the second multiplier of which is the "number of months servicemember has been on active duty on date of divorce," which the DRO states is 218, which is then divided by 12. However, 0.025 multiplied by 218 and then divided by 12 equals 45.416 percent. It does NOT equal 35.0 percent, the production of that calculation stated in the DRO. Consequently, that portion of the DRO is also ambiguous.

Because the DRO gives all the correct information necessary to calculate the valuation of the military retirement properly, and then it utterly fails to calculate the valuation of the military retirement in the proper manner, the DRO is ambiguous. And thus clarification of the DRO is necessary so that the military retirement is correctly valued.

Furthermore, because the valuation of the military retirement by the DRO is ambiguous, then the trial court should have reviewed DRO in order to aid it in finding the intent of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); In re R.F.G., 282 S.W.3d at 725. Whether this DRO is ambiguous is a question of law this *17 court should review de novo. Coker, at 394; see also Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). The purpose of the DRO is to create or recognize the former wife’s rights, and to assign to the former wife the right to receive, her awarded portion of the military retirement. Quijano v. Quijano, 347 S.W.3d 345, 353–54 (Tex.App.-Houston [14th Dist.] 2011, no pet.); see also 29 U.S.C. § 1056(d)(3)(B)(i). Res judicata applies to final divorce decrees and, under the same logic, to DRO’s. Baxter V. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). But Appellant’s motion to clarify the QDRO should not be barred by res judicata if she can demonstrate, as she has, that a mistake has been made. Gainous v. Gainous, 219 S.W.3d 97, 105 (Tex.App. Houston [1 Dist.],2006). A trial court that renders a divorce decree and a DRO generally retains the power to clarify the property division made or approved in those documents. Tex.Fam.Code 9.002, 9.006(a), 9.008. The trial court had jurisdiction to enter an order clarifying the ambiguities in the DRO in order to give effect to the division of the property attempted therein, and had a duty to do so. Id. § 9.008(b). see also § 9.1045(a) (West 2006); Beshears v. Beshears, 423 S.W.3d 493, 500-01 (Tex.App. Dallas, 2014).

Appellant therefore requests that the order of the trial court dismissing the motion of Appellant to clarify the DRO for lack of jurisdiction be reversed. Appellant requests that the court find that the trial court abused its discretion in failing to grant the relief requested, and issue clarification of the DRO in which the figures stated *18 therein of 16.66 percent for the calculated value resulting from the number of months of servicemember's service during marriage divided by number of months servicemember has been on active duty on date of divorce, be changed to the actual calculated value of 36.697 percent. [80 ÷ 218 = 36.697%]. Appellant further requests that the court find that the trial court abused its discretion in failing to grant the relief requested, and issue clarification of the DRO in which the figure stated therein of 35.0 for the calculated value resulting from 0.025 multiplied by number of full months of servicemember's creditable service toward retirement on divorce divided by 12, be changed to the actual calculated value is of 45.416 percent. [0.025 x 218 ÷ 12 = 45.416%].

PRAYER

Appellant prays that this Honorable Court reverse and remand the trial court’s dismissal of the motion to clarify; that the requested clarification of the DRO be rendered by the court; and for such other and further relief as this Honorable Court deems fit to grant.

Respectfully submitted,

The Law Offices of DONAHO & DOCKERY, P.C. P.O. Box 459 Floresville, Texas 78114 Tel: 830-393-2700 Fax: 830-393-3029

/s/ Kirk Dockery

________________________________ Kirk Dockery, Attorney in Charge State Bar No. 05929220 Email: kirkdockery@gmail.com Scott R. Donaho State Bar No. 05967755 Email: srdonaho@floresville.net

CERTIFICATE OF SERVICE

I certify that on July 1, 2015, a true and correct copy of the above and foregoing document was delivered to all counsel of record by the Electronic Filing Service Provider, as follows:

/s/ Kirk Dockery Kirk Dockery

DIAZ JAKOB, LLC BY ELECTRONIC SERVICE Jason J. Jakob State Bar No. 29042933 Email: jjakob@diazjakob.com The Historic Milam Building 115 E. Travis Street, Suite 333 San Antonio, Texas 78205 Tel.: (210)226-4500 Fax: (210)226-4502

CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(2)(B) because this brief consists of 4,089 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1). /s/ Kirk Dockery ________________________________ Kirk Dockery

10201B

APPENDIX 1

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APPENDIX 6

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APPENDIX 7

Domestic Relations Order [Military Retirement] Form 25-31

Word WP Form 25-31

Caveat: Although the military retirement division language may be included in the body of the decree of divorce, the better practice is to treat military retirement just as any other retirement asset that requires a qualified domestic relations order (QDRO) would be treated. Because a division order of military retirement does not fall under the Employee Retirement Income Security Act, it is not a “qual- ified” order but simply a domestic relations order (DRO). The Defense Finance and Accounting Ser- vice (DFAS) does not require that the order regarding division of the retirement benefits be contained wholly in the decree, and the better practice is to have a separate order that specifically treats the divi- sion of the military retired pay and related military benefits. DFAS may require, however, that the per- son submitting the retirement division order for approval for direct payment (usually the nonmember spouse, since an application signed by that spouse must accompany the order) to the nonmember spouse submit the divorce decree, as well as the DRO that divides the military retirement if it is in a separate order. However, if the DRO specifically states the date that the parties were divorced, DFAS can readily ascertain that the parties are or have previously been divorced, and submitting the decree may be unnecessary.

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Domestic Relations Order [Military Retirement]

The Court, having entered a decree of divorce [coincident with the signing of this domestic relations order/in this case on [date]], finding that the entry of a domestic relations order (DRO) is necessary to effectuate the terms of that decree of divorce, and further finding that the entry of a DRO is appropriate, makes the following specific findings and conclusions of law and enters them as an order in this proceeding. Findings

The Court finds, in accordance with the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, as follows:

1. This Court has jurisdiction over [full name of servicemember] (“Servicemember”). [Include one or both of the following: The residence of Servicemember is in [city, county],

© STATE BAR OF TEXAS 25-31-1 Form 25-31 Domestic Relations Order [Military Retirement] Texas, other than because of military assignment./Servicemember has consented to the jurisdiction of the Court.]

2. Servicemember and [full name of former spouse] (“Former Spouse”) were originally married on [date], and that marriage lasted for [number] years and [number] months or more, during which time Servicemember served [number] years and [number] months or more of creditable service toward retirement.

The time in months and years that the parties were married during which the servicemember was earning retirement credit should not be stated to be “ten years or more” or “twenty years or more” but should be the actual years and months of overlap- ping marital service. The ten-year and twenty-year periods are relevant in determining the availability of direct payment from DFAS to the former spouse and the former spouse’s entitle- ment to certain medical and other benefits, respectively. See the practice notes at sections 25.75 and 25.80.

3. Servicemember’s Social Security number is ***-**-[last four numbers], [his/her] address is [address], and [his/her] birth date is [date].

4. Former Spouse’s Social Security number is ***-**-[last four numbers], [her/his] address is [address], and [her/his] birth date is [date].

5. The rights of Servicemember under the Servicemembers Civil Relief Act were fully complied with in this case.

6. Servicemember [is/is not] retired from the United States [branch of service] 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 Former Spouses’ Protection Act. 25-31-2 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31

Direct payment is available from DFAS only if the parties were married for at least ten years during which the servicemember was also on active duty for at least ten years or in active reserve status and earned at least ten “good years” for reserve retirement credit. If this is not the case, the order must be writ- ten to provide for a constructive trust between the service- member and the former spouse, and taxes must be dealt with because the servicemember will be taxed.

8. It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) make the payments due to Former Spouse of [her/his] interest in the disposable retired pay awarded in this order directly to Former Spouse. Terms and Definitions

With respect to the provisions of this DRO, the Court has used and applied the following terms and definitions:

1. “Retired pay” means monetary pay to which Servicemember is, or may hereafter be, entitled to receive on completion of the requisite number of years of creditable service to be entitled to nondisability retired pay as a result of service in the United States Armed Forces (active duty, reserve component, or national guard), whether called retired pay, retainer pay, or retirement pay.

2. “Disposable retired pay” has the meaning provided in the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408 et seq.).

3. “USFSPA” means the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date of the parties’ divorce.

4. “Defense Finance and Accounting Service” (DFAS) means, refers to, and includes the Secretary of the Department of Defense, the Director of the DFAS, the designated agent of either of these, and other appropriate subdivisions of the United States Government. © STATE BAR OF TEXAS 25-31-3 Form 25-31 Domestic Relations Order [Military Retirement]

5. “COLA” means the cost-of-living adjustment increases that are made annually to a military retiree’s retired pay pursuant to 10 U.S.C. § 1401a. Award to Former Spouse

Select one of the following.

Use the following when the former spouse is to receive only a fixed-dollar award. The former spouse will not receive any COLAs thereafter authorized by Congress if a fixed dollar amount is awarded.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the sum of [number] dollars ($[amount]) of Servicemember’s monthly disposable retired pay.

When representing the servicemember, use the following for an active duty servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by [servicemember’s base pay on date of divorce] divided by the amount of the monthly gross retired pay that Servicemember is entitled to receive at retirement multiplied by the amount of Servicemember’s monthly disposable retired pay at retirement. 25-31-4 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31

When representing a servicemember who has not been in the military for twenty years, calculate the percentage of the ser- vicemember’s entitlement to retired pay taking into account the provisions of the Temporary Early Retirement Authority (TERA), 10 U.S.C. § 1293, which will necessarily have the effect of reducing the former spouse’s share of the anticipated retired pay on divorce. See James N. Higdon, Military Retire- ment and Divorce, chapter 63.2, page 13, State Bar of Texas 35th Advanced Family Law Course, August 2009, for a discus- sion of the application of TERA to the calculation of military retired pay in such circumstances.

Or

When representing the former spouse, use the following for an active duty servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by the base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement. © STATE BAR OF TEXAS 25-31-5 Form 25-31 Domestic Relations Order [Military Retirement]

When representing the former spouse, determine the former spouse’s share of the retired pay on divorce as of the date of retirement rather than the date of divorce, limited, however, to the pay grade and longevity of the servicemember on the date of divorce. Otherwise the former spouse will not derive the benefit of the annual active duty COLAs (in accordance with Berry v. Berry, 647 S.W.2d 945 (Tex. 1983)) that are autho- rized by Congress. See James N. Higdon, Military Retirement and Divorce, chapter 63.2, State Bar of Texas 35th Advanced Family Law Course, August 2009, for a discussion of this issue in the calculation of military retired pay.

Or

When representing the servicemember, use the following for an active duty servicemember who entered the service on or after September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by [servicemember’s high-36 month base pay on date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.

Or 25-31-6 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31

When representing the former spouse, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. Because the servicemember’s high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be nec- essary to “clarify” the DRO at or after the date the servicemem- ber retires because DFAS may not accept for processing an order that contains the “high-36 month base pay at the time of retirement” hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by the high-36 month base pay of a servicemember

with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at

retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.

Or

Use the following for an active duty servicemember who is retired at the time of divorce whether representing the service- member or the former spouse.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per- cent multiplied by [percentage of community interest in servicemember’s military retired pay

© STATE BAR OF TEXAS 25-31-7 Form 25-31 Domestic Relations Order [Military Retirement] entitlement, that is, number of months of servicemember’s service during marriage divided by total number of months of servicemember’s service at retirement] percent multiplied by Servicemember’s monthly disposable retired pay.

Or

When representing the servicemember, use the following for an active reservist servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by [servicemember’s base pay on date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.

Or

When representing the former spouse, use the following for an active reservist servicemember who entered the service before September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned 25-31-8 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by the base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.

Or

When representing the servicemember, use the following for an active reservist servicemember who entered the service on or after September 8, 1980.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by [servicemember’s high-36 month base pay on the date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.

Or © STATE BAR OF TEXAS 25-31-9 Form 25-31 Domestic Relations Order [Military Retirement]

When representing the former spouse, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. Because the servicemember’s high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be nec- essary to “clarify” the DRO at or after the date the servicemem- ber retires, because DFAS may not accept for processing an order that contains the “high-36 month base pay at the time of retirement” hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember at divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by the high-36 month base pay of a servicemember with Servicemember’s pay grade and longevity on the

date of divorce determined on the date of Servicemember’s retirement divided by Service- member’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly

disposable retired pay at retirement.

Or

Use the following for a reservist servicemember who is retired and receiving retired pay at the time of divorce whether repre- senting the servicemember or the former spouse.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per- cent multiplied by [number of servicemember’s retirement points earned during marriage

25-31-10 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 divided by total number of servicemember’s retirement points at retirement] percent multiplied by Servicemember’s monthly disposable retired pay.

Or

Important: The attorney representing a servicemember who is retired but not accruing points or receiving retired pay will want to have the “retired pay” determined on the date of divorce rather than using a percentage of retired pay at retirement. In the latter formulation, the former spouse would receive the benefit of the cost-of-living increases that accrue from the date of the “retirement” or divorce to the date when the service- member begins receiving retired pay, usually at age sixty. (In 2009, Congress passed a law to allow reservists and guards- men who were recalled to and performed active duty on and after January 30, 2008, to be entitled to receive retired pay earlier than age sixty, at their election.)

Use the following for a reservist servicemember who is retired and not accruing retirement points but not receiving retired pay at the time of divorce, that is, one who is no longer a drilling reservist but has not yet become entitled to receive retired pay.

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of servicemember’s retirement points earned during marriage divided by total number of servicemember’s retirement points at divorce] percent multiplied by [0.025 multiplied by servicemember’s total retirement points earned on date of divorce divided by 360] percent multiplied by [servicemember’s high-36 month base pay at divorce] divided by Servicemember’s gross retired pay at retirement multiplied by Servicemember’s disposable retired pay at retirement.

Or

Use the following when representing the former spouse of a reservist servicemember who is retired and not accruing retire- ment points but not receiving retired pay at the time of divorce.

© STATE BAR OF TEXAS 25-31-11 Form 25-31 Domestic Relations Order [Military Retirement]

IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of servicemember’s retirement points earned during marriage divided by total number of servicemember’s retirement points at divorce] percent multiplied by Servicemember’s disposable retired pay at retirement.

Select one of the following COLA provisions.

Use the following if the former spouse is to receive COLAs.

IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the calculated percentage of Servicemember’s disposable retired pay at retirement, together with all COLAs applicable thereto, payable IF, AS and WHEN received by Servicemember.

Use the following if the former spouse is not to be awarded and receive COLAs.

IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the fixed dollar award out of Servicemember’s disposable retired pay at retirement, payable IF, AS and WHEN received by Servicemember, but Former Spouse shall not be entitled to receive any COLAs related thereto.

Continue with the following when representing the former spouse if the court will include this language, since it protects the interest being awarded to the former spouse from the effects of VA waiver and/or the servicemember’s application for combat-related special compensation (CRSC) (10 U.S.C. § 1413a).

IT IS FURTHER ORDERED AND DECREED that the award herein shall in no event be less than [number] dollars ($[amount]) per month, together with all COLAs hereafter applicable thereto, of Servicemember’s retired pay. The Court recognizes, in making this award, that DFAS, pursuant to the USFSPA, is authorized to pay Former Spouse only the herein-25-31-12 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 awarded percentage of Servicemember’s “disposable retired pay,” and this Order, as to DFAS, should be so construed.

Include the following if applicable. If the former spouse is to be awarded the right to receive the servicemember’s Survivor Benefit Plan (SBP) annuity benefits, a decision must be made about who is to pay for it. If the former spouse is to pay the full cost of the SBP premiums, the simplest way to accomplish this result is to adjust the former spouse’s percentage share of the disposable retired pay. The attorney who is not adequately informed on this issue should consult with someone who fully understands this aspect of retired pay calculation before reaching an agreement on this adjustment. If the former spouse’s share is to be adjusted to provide for the former spouse’s paying all of the cost of the monthly SBP premium, something like the following should be inserted at this point in the order unless the servicemember is already retired.

IT IS FURTHER ORDERED that the foregoing calculated percentage awarded Former Spouse shall further be reduced, as necessary, to provide for Former Spouse’s payment of all of the monthly Survivor Benefit Plan premium cost.

Continue with the following.

IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay of Servicemember is the sole and separate property of Servicemember. Amounts in Excess of 50 Percent

IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Former Spouse the maximum amount allowable under the USFSPA and Servicemember shall be responsible for paying the balance of the award each month to Former Spouse, and it is accordingly

ORDERED.

If DFAS is not allowed to pay Former Spouse the full amount of Former Spouse’s entitlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within seven days of being notified by Former Spouse that Former Spouse is not receiving the full © STATE BAR OF TEXAS 25-31-13 Form 25-31 Domestic Relations Order [Military Retirement] amount of Former Spouse’s interest in the retired pay, to execute and deliver to DFAS all forms or documents that may then be necessary to effect an allotment payable to Former Spouse in the amount of the difference between the amount being paid directly to Former Spouse by DFAS and the full amount of Former Spouse’s interest in the retired pay. Servicemember is FURTHER ORDERED to keep and maintain in full force and effect any allotment required by this provision, payable to Former Spouse at [address, city, state, zip code], or such other address as Former Spouse may hereafter specify in writing, until such time as Former Spouse begins receiving Former Spouse’s full separate-property share of Servicemember’s disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled by Servicemember if and when Former Spouse begins receiving, and for as long as Former Spouse is receiving, Former Spouse’s full separate-property share of Servicemember’s disposable retired pay directly from DFAS, but only in that event or to avoid double payment of sums.

Include the following paragraph if applicable.

Since Former Spouse has been awarded the right to receive that share attributable to the interest awarded to Former Spouse herein of any and all COLAs or other increases in the monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from DFAS [her/his] full share of the retired pay herein awarded to Former Spouse, if and when COLAs are made to the retired pay received by Servicemember, Servicemember is hereby ORDERED to execute and deliver to DFAS all forms or documents that may then be necessary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-and-cents equivalent of that COLA attributable to Former Spouse’s share of that disposable retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working days of the date Servicemember is notified by DFAS of the effective date of each COLA to the monthly retired pay payment. 25-31-14 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 Constructive Trust

IT IS FURTHER ORDERED that Servicemember 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 Servicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to Former Spouse at [her/his] last known address by negotiable instrument that portion of each monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allotment) by DFAS within three days of the receipt of any such payments by Servicemember. All payments made directly to Former Spouse by DFAS shall be a credit against this obligation.

For purposes of this order, Servicemember is specifically directed, on penalty of contempt, to pay Former Spouse’s interest in the disposable retired pay as ordered in this order, and IT IS SO ORDERED. Servicemember is specifically directed that [he/she] is not relieved of that obligation except to the extent that [he/she] is specifically notified that 100 percent of Former Spouse’s interest in the retirement benefit has 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 Servicemember shall not reduce the amount equal to the percentage of the retired pay or the amount of the retired pay the Court has herein awarded to Former Spouse, except as provided by federal law and prohibited from being changed by a state court order. In this regard, IT IS FURTHER ORDERED that Servicemember shall not merge [his/her] military retired pay with any other pension and shall not pursue any course of action that would defeat, reduce, or limit Former Spouse’s right to receive Former Spouse’s full separate-property share of Servicemember’s retired pay as awarded in this order, unless otherwise ordered herein. © STATE BAR OF TEXAS 25-31-15 Form 25-31 Domestic Relations Order [Military Retirement] Death

IT IS ORDERED that the payment of the retired pay awarded in this order to Former Spouse shall continue until the death of Servicemember or Former Spouse. Retiree Account Statements and Privacy Waiver

IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to Former Spouse at [former spouse’s mailing address], or such other address as Former Spouse may hereafter specify in writing, a true and correct legible copy of each Retiree Account Statement received by Servicemember from DFAS within five days of its receipt.

IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may be required for Former Spouse to obtain information relating to Servicemember’s date of retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or other information that may be required to enforce this award or to revise this order to make it enforceable.

Include the following if applicable. Retirement

IT IS ORDERED that Servicemember shall notify Former Spouse of [his/her] application for retired pay, and provide Former Spouse with a true copy of [his/her] Application for Retired Pay Benefits, on the date [he/she] applies for those benefits. This notification shall be mailed by Servicemember to Former Spouse at [her/his] last known address. Servicemember is FURTHER ORDERED to provide to Former Spouse a true and correct copy of the first Retiree Account Statement received by [him/her] within five days of its receipt.

Continue with the following. 25-31-16 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 Application for Direct Payment of Retired Pay

Former Spouse is hereby directed to apply for Former Spouse’s entitlement to a portion of Servicemember’s retired pay by contacting the DFAS Legal Department, completing the Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it along with a certified copy of this DRO (certified within ninety days of its delivery to DFAS) and a photocopy of the parties’ marriage certificate to: DFAS-HGA-CL, Assistant General Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by certified mail, return receipt requested.

DD Form 2293 can be accessed and downloaded at www .dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf.

Taxes

IT IS FURTHER ORDERED that Former Spouse shall include in [her/his] gross income for [her/his] taxable years of receipt all retired pay received by Former Spouse pursuant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Servicemember shall not include such benefits in Servicemember’s gross income for such taxable years. © STATE BAR OF TEXAS 25-31-17 Form 25-31 Domestic Relations Order [Military Retirement] Survivor Benefit Plan

Important: If being awarded, it is mandatory that the order state clearly that Survivor Benefit Plan (SBP) benefit coverage is being awarded to the former spouse, to the parties’ children, or to both, as applicable. Payment of the SBP monthly premiums is deducted from the gross retired pay by DFAS before DFAS applies the former spouse percentage, that is, divides the retired pay between the former spouse and the servicemember. If the attorney does not want the spouses to share in the cost and wants the former spouse to pay all of the cost of the SBP annuity, the premium should be deducted from the former spouse’s share by reduc- ing the percentage, or the former spouse can pay the service- member each month (or other frequency period) for the coverage. Ensure that the former spouse pays only his or her share of the premium. For instance, if the former spouse is not receiving 50 percent of total retired pay, the former spouse will not be paying 50 percent of the premium, but will be paying only the percentage of the disposable pay that has been awarded to the former spouse. If the former spouse remarries before age fifty-five, his or her entitlement to be a SBP benefi- ciary is suspended for the duration of that marriage, but the former spouse can, on the termination of that marriage, peti- tion DFAS for reinstatement of the suspended benefit. During the period of the suspended benefit, DFAS should, if timely notified, also suspend the payment of the monthly premiums. A servicemember may designate only one class of beneficiary for the survivor benefits. Thus, if a former spouse beneficiary has been designated, a new spouse cannot be designated as a “spouse beneficiary” unless the former spouse is no longer an eligible beneficiary. Also, the servicemember is not permit- ted to award a fractional interest to the former spouse and leave a portion for a future spouse. DFAS will pay the survivor benefit to only the designated beneficiary(ies), i.e., spouse, spouse and children, former spouse or former spouse and chil- dren, on the death of the servicemember. Generally, the desig- nation, once made, is irrevocable.

Select one of the following.

Use the following paragraph if the servicemember is retired, the spouse is currently designated as a spouse beneficiary of servicemember’s SBP, and the spouse is to be redesignated as a former spouse beneficiary.

The Court further finds that Former Spouse is presently named a spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember’s election to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by 25-31-18 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 Former Spouse’s being designated as a former spouse beneficiary and that Former Spouse’s designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO

ORDERED.

Or

Use the following paragraph if the servicemember is not retired and the spouse is to be designated as a former spouse benefi- ciary of the SBP.

The Court further finds that Former Spouse should be designated as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate Former Spouse as a former spouse beneficiary of the Survivor Benefit Plan and that Former Spouse’s designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO ORDERED.

Or

If an election is made to have the parties’ children covered as beneficiaries of the SBP, recognize that the coverage will con- tinue only as long as one or more of the children are under the age of eighteen; the coverage can be continued until age twenty-one if the child(ren) are enrolled in college or another qualifying educational institution. If electing such a coverage, use the following as applicable.

The Court further finds that [the parties’ child[ren]/Former Spouse and the parties’ child[ren]] should be designated as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate [the parties’ child[ren]/Former Spouse and the parties’ child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of © STATE BAR OF TEXAS 25-31-19 Form 25-31 Domestic Relations Order [Military Retirement] the Survivor Benefit Plan and that the designation of [the child[ren]/Former Spouse and the child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during the child[ren]’s eligibility [include if applicable: or Former Spouse’s lifetime], and IT

IS SO ORDERED.

Or

Although it is not necessary to specifically provide that there will be no SBP former spouse coverage for the former spouse since the failure to award the SBP benefit at the time of divorce is res judicata on the issue (In re A.E.R., 2006 WL 349695 (Tex. App.—Fort Worth 2006) (mem. op.)), it is nevertheless recommended that the following paragraph be included to spe- cifically address the benefit.

The Court further finds that Former Spouse should not be designated as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan, and IT IS SO

ORDERED.

Continue with the following if the survivor benefit is awarded.

IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former Spouse as a former spouse beneficiary of Servicemember’s Survivor Benefit Plan. IT IS FURTHER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of Servicemember’s Survivor Benefit Plan to receive

Include one of the following. the highest Survivor Benefit Plan entitlement allowed by law.

Or [number] dollars ($[amount]) per month.

Or 25-31-20 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 the percentage equal to the percentage of Servicemember’s disposable retired pay awarded Former Spouse in this order.

Or [set out other formula for determination of share].

Continue with the following.

To the extent that Servicemember fails or otherwise refuses to cooperate in filing the documents required to elect to designate Former Spouse as a former spouse beneficiary of Servicemember’s Survivor Benefit Plan, Former Spouse is directed to apply for Former Spouse’s entitlement to be deemed a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court’s deemed election pursuant to 10 U.S.C. § 1447 et seq., completing a DD Form 2656-10 to effect the deemed election, and sending it, along with a certified copy of this order, to U.S. Military Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, return receipt requested. Former Spouse’s failure to register [her/his] deemed election within one year of the date this DRO is signed may, if not will, forever bar such an election for Former Spouse.

IT IS ORDERED that Servicemember shall not during Former Spouse’s lifetime mod-

ify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan.

© STATE BAR OF TEXAS 25-31-21 Form 25-31 Domestic Relations Order [Military Retirement]

DD Form 2656-1, the form for a servicemember to make a vol- untary election for former spouse and/or child coverage, can be accessed and downloaded at www.dtic.mil/whs/ directives/infomgt/forms/eforms/dd2656-1.pdf. DD Form 2656-10, the form for a former spouse to effect a deemed election for former spouse and/or child coverage, can be accessed and downloaded at www.dtic.mil/whs/ directives/infomgt/forms/eforms/dd2656-10.pdf. One of these forms must be sent to DFAS at the London KY address, along with a certified copy of the decree of divorce and/or DRO, to register the former spouse as a former spouse beneficiary within one year of the date of the signing of the decree of divorce. Failure to do so within the one-year period will probably bar the former spouse from former spouse cover- age.

Medical and Commissary Benefits

The following provision for medical and commissary benefits is applicable only under certain circumstances. See the practice notes at section 25.80.

The Court further finds that Former Spouse is entitled to receive medical and dental care under the terms of 10 U.S.C. section 1071 et seq. and to commissary and post exchange privileges to the same extent and on the same basis as a surviving spouse of a retired member of the United States Armed Forces following the date the Final Decree of Divorce is signed. Continued Jurisdiction and Clarification

The following provision may be added if the parties were mar- ried for ten or more years during which the servicemember performed ten or more years of active/qualifying reserve duty. Otherwise, it should not be included in the order since DFAS will not, under current law, pay the former spouse’s share of retired pay directly to her/him in those circumstances.

Although the Court and the parties intend that DFAS make direct payments to Former Spouse of Former Spouse’s interest in the disposable retired pay awarded herein, IT IS FURTHER ORDERED that, if this order does not qualify for direct payment, Servicemember shall

cooperate and do all things necessary 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

25-31-22 © STATE BAR OF TEXAS Domestic Relations Order [Military Retirement] Form 25-31 pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to enter such a clarifying order.

Continue with the following.

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 ________________________________.

_ ______ _____ ______ ______ _____ ______ ______ _____ ______ _____ _ _____ _____ ______ ______ _____ ______ _____ ______ ______ _____ ___ ___ _____ ______ _____ ______ ______ _____ ______ ___ JUDGE PRESIDING

© STATE BAR OF TEXAS 25-31-23