Nelson v. Little

OPINION ASHWORTH, Justice. Keith Nelson appeals from a judgment refusing to void that portion of his divorce judgment rendered in 1977 which awarded his wife, Carolyn R. Nelson, part of his military retirement benefits when and if the same mature. We affirm. Nelson, a career serviceman, was divorced from his wife, Carolyn, on November 9, 1977. The divorce judgment awarded Carolyn 50% of 264/288 months of Nelson’s military retirement benefits when and if received. In 1981 the United States Supreme Court rendered its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which held that non-disability military retirement is not subject to division under state community property laws. On August 18, 1981, Nelson filed the instant suit for declaratory judgment seek [915] ing to void the award of part of the retirement benefits to his wife. Nelson’s sole point of error is that the holding in McCarty v. McCarty, supra, should be applied retroactively. We disagree. Appellant relies upon Ex parte Buckhanan, 626 S.W.2d 65 (Tex.App.—San Antonio, 1981, no writ) one of the first cases decided in Texas subsequent to McCarty, and which held that McCarty should be applied retroactively. The holding in Buckhanan was short-lived, and in effect has been disapproved at least twice by the same court which originally issued the decision. See Ex parte Rodriguez, 636 S.W.2d 844 (Tex.App.—San Antonio, 1981) writ denied 25 Tex.Sup.Ct.J. 170 (Feb. 10, 1982), and Ex parte Hovermale, 636 S.W.2d 828 (Tex.App.—San Antonio 1982, no writ). Other cases to the same effect are Ex parte Gaudion, 628 S.W.2d 500 (Tex.App.—Austin, 1982) writ denied 25 Tex.Sup.Ct.J. 110 (Dec. 31, 1981); Ex parte Welch, 633 S.W.2d 691 (Tex.App.—Eastland 1982, no writ); and Ex parte Forderhase, 635 S.W.2d 198 (Tex.App.—Tyler 1982, no writ). The Texas cases cited are in accord with federal law as set forth in Erspan v. Badgett, 659 F.2d 26, cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). We also note that since the McCarty decision, the Department of Defense Authorization Act, 96 Stat. 718 (1982), has been enacted, which entitles former spouses to their share of military retirement benefits. The judgment of the trial court is affirmed.