Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the 429th Judicial District Court, Collin County, Texas. Trial Court Cause No. 429-52873-98.
For appellants: Lora A. Pickar, Pickar Law Firm, P.C., Plano, TX.
For appellees: Jessica Janicek, KoonsFuller, Southlake, TX; Charla Bradshaw Conner, Denton, TX.
Before Justices FitzGerald, Lang, and Fillmore. Opinion by Justice Fillmore.
ROBERT M. FILLMORE, JUSTICE.
Donald Beshears (Donald) filed a motion to vacate or, alternatively, modify a qualified domestic relations order (QDRO) signed by the trial court following his divorce from Judith Karen Beshears (Judith) on the ground the QDRO did not comport with the divorce decree. During trial, Judith orally requested the trial court remove a provision from the QDRO that required her benefit to be calculated as of November 8, 2001, the date the divorce proceedings were heard by the trial court. In three issues, Judith contends the trial court erred by denying her motion and by granting relief sought in Donald's motion and that the evidence is factually insufficient to support several of the trial court's findings of fact and conclusions of law. We affirm the trial court's order.
Judith and Donald were married on July 20, 1977. On June 12, 1978, Donald began working for Merck & Co., Inc. (Merck) and participated in a retirement plan offered by Merck. In October 1998, Judith filed for divorce. On November 8, 2001, the trial court heard evidence pertaining to the divorce. On February 5, 2002, the trial court signed a Final Decree of Divorce finding " the parties have reached an agreement as to a proposed division of the marital estate," the agreement was a just and right division of the marital estate,
and the marital estate was divided pursuant to the agreement.
As to Donald's retirement benefits, the divorce decree provided:
IT IS ORDERED AND DECREED that JUDITH BESHEARS is AWARDED, as her sole and separate property, a portion of DONALD BESHEARS' retirement benefits in the Retirement Plan for the Salaried Employees of Merck & Co., Inc., arising out of DONALD BESHEARS' employment with Merck & Co., Inc., that portion being 57.5% of 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 the Retirement Plan for the Salaried Employees of Merck & Co., Inc., and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.
IT IS ORDERED AND DECREED and DONALD BESHEARS is AWARDED, as his sole and separate property, the remainder of DONALD BESHEARS' retirement benefits in the Retirement Plan for the Salaried Employees of Merck & Co., Inc., arising out of his employment with Merck & Co., Inc.
On February 5, 2002, the trial court also signed a QDRO pertaining to the Retirement Plan for the Salaried Employees of Merck & Co., Inc. (the 2002 QDRO). The 2002 QDRO identified Donald as the participant in the retirement plan and Judith as the alternate payee of the plan. The 2002 QDRO provided, in relevant part:
[Judith] is allocated and assigned 57.5% of [Donald's] benefit accrued under the Plan as of November 8, 2001.
[Judith's] benefits shall be payable over [Judith's] lifetime.
[Judith] shall be treated as the surviving spouse of [Donald], notwithstanding [Donald's] subsequent marriage, if any.
Neither Judith nor Donald appealed the divorce decree or the 2002 QDRO.
Donald continued to work for Merck following the divorce. When Donald approached retirement, he learned from Merck that, because Judith was named as his surviving spouse in the 2002 QDRO, he was required to choose an annuity option that provided for Judith to receive a benefit after his death. The cost of the survivor benefit reduced the monthly benefit Donald would otherwise receive. Donald also could not name his current spouse as his surviving spouse for purposes of receiving a benefit after his death.
On January 18, 2012, Donald filed a motion to vacate and void the 2002 QDRO or, in the alternative, modify the 2002 QDRO, on the ground it did not comport with the terms of the decree. Donald specifically complained that, pursuant to section 205 of the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § § 1001-1461 (West 2008, 2009, & Supp. 2013) (ERISA), there are two types of survivor annuities, a Qualified Preretirement Survivor Annuity (QPSA) and a Qualified Joint and Survivor Annuity (QJSA). Donald asserted the award of a QJSA to Judith in the 2002 QDRO did not comport with the property division in the decree.
Judith filed a plea to the jurisdiction, asserting the 2002 QDRO was a final order, the trial court's plenary power over the 2002 QDRO had expired, and the ...