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Smith v. Burt

Court of Appeals of Texas, Eighth District, El Paso

April 28, 2017

LINDA SMITH, APPELLANT,
v.
JOHN BURT, APPELLEE.

         Appeal from the 388th District Court of El Paso County, Texas (TC# 89-11455)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, Justice.

         Appellant, Linda Smith, is appealing from an order denying her petition to enforce and for clarification of the divorce decree. We reverse.

         FACTUAL SUMMARY

         Linda Smith, formerly known as Linda Burt, and Appellee, John Burt, divorced on October 31, 1990. The divorce decree provides that the "[t]he parties have consented to the terms of this decree and stipulated it is a contract." At the time of the divorce, Burt was a retired member of the U.S. Army, and he was receiving retirement pay in the amount of $783.00 per month. The decree provides that the community interest in the monthly retirement benefit is 80 percent, and cost-of-living-related increases are made to the retirement periodically and will likely occur in the future. The decree awarded Smith $391.00 of Burt's retirement benefit.[1]

The decree also addressed division of cost-of-living-allowances[2] (COLA), as follows:
IT IS ORDERED AND DECREED THAT LINDA BURT shall have judgment against and recover from JOHN BURT, $391.00 of the gross present and future military retirement benefits received by JOHN BURT each month beginning October 31, 1990, together with 50% of any and all cost-of-living-related increases to which JOHN BURT shall become entitled for the period beginning October 31, 1990 and ending on the death of JOHN BURT.

         In 2000, Smith filed a petition seeking clarification of the divorce decree and enforcement of her portion of the COLA. An associate judge heard the motion and determined that Smith was entitled to clarification of the divorce decree, and further determined that she was entitled to the total amount of $774.02 as her portion of COLA benefits which had not been paid by Burt. Linda appealed to the referring court. On October 31, 2002, the referring court entered a letter ruling which adopted the associate judge's finding that Smith was entitled to clarification of the divorce decree. The court also determined that Smith was entitled to 1/2 of 100 percent of the COLA benefits, but the court reversed the associate judge's recommendation regarding the amount Smith should be awarded. The court signed an order on November 25, 2002 which clarified the divorce decree as follows:

IT IS ORDERED THAT Linda Smith shall be entitled to $391.00 per month of the monthly disposable retired pay, plus 1/2 of 100% or 50% of any and all cost of living adjustments (COLA's) when received.

         The order also awarded to Smith judgment in the amount of $7, 628.00 for the past due COLA payments.[3] Neither party appealed.

         On May 13, 2008, Smith filed another petition seeking clarification of the November 26, 2002 order and enforcement of her right to a share of the COLA benefits. She also moved to have Burt found in contempt of court because he had failed to pay the judgment for $7, 628.00 awarded to her in the November 25, 2002 order and he had not paid her 50 percent of the COLA benefits beginning in January 2003 through April 2008. On September 11, 2008, an associate judge heard the petition and entered an order in Smith's favor. Burt did not appear at the hearing. More than two years later, Burt filed a bill of review which the trial court granted.

         At the hearing on Smith's petition for clarification and enforcement, the parties presented their opposing interpretations of the divorce decree and the November 25, 2002 clarification order. Smith argued that she was entitled to 50 percent of the accumulated COLA because the purpose of a cost of living allowance is to adjust income upward from 1990 dollars to 2014 dollars. Burt countered that because Smith was awarded a specific dollar amount ($391.00) rather than a percentage of the military retirement, she was not entitled to any COLA, or alternatively, her portion of the COLA must be calculated on a per annum basis. Even though the trial court denied Smith's petition for enforcement and clarification of the prior order, the court granted affirmative relief in favor of Burt and accepted his interpretation of the divorce decree that Smith was not entitled to the accumulated COLA. The court entered the following order:

The Court finds that the parties stipulated that John Burt had actually paid to Linda Burt n/k/a Linda Smith $76, 774.72 from November 1, 2002 through the date of trial.

The Court further finds that:

1) Some of the claims are barred by the ...

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