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Pelloat v. McKay

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 1, 2017

JAMES ALLEN PELLOAT, Appellant,
v.
KATHERINE PELLOAT McKAY, Appellee.

         On appeal from the 279th District Court of Jefferson County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         By what we construe as a total of five issues on appeal, pro se appellant James Allen Pelloat (James) appeals the trial court's signing of a qualified domestic relations order (QDRO) related to his former marriage to Katherine Bolenbaucher, formerly known as Katherine Pelloat McKay (Katherine). James asserts that (1) the trial court committed harmful error in ruling on various discovery matters; (2) the trial court committed harmful error in ruling on various pretrial matters; (3) the trial court committed harmful error in incorporating a formula in the QDRO; (4) the trial court committed harmful error in ordering a disproportionate share of community property in the underlying divorce proceeding; and (5) Katherine's attorney defrauded him of additional money not discussed at the divorce trial. We affirm.

         I. Background[1]

         James and Katherine married in 1987, and a final decree of divorce was signed in April of 2011. Three subsequent nunc pro tunc judgments were signed by the trial court in July and August of 2011 to "correct clerical errors in the transcription of the original divorce decree." See Pelloat v. McKay, No. 09-11-00643-CV, 2012 WL 5954114, at **1- 2 (Tex. App.-Beaumont Nov. 29, 2012, pet. denied) (mem. op.). In the final divorce decree, the trial court ordered 37 percent of James's Teacher's Retirement Annuity as James's separate property and ordered the remaining 63 percent as part of the community estate. Furthermore, the divorce decree awarded Katherine "75% of the Community Property portion of the Teacher's Retirement Annuity from [James's] employment . . . ." and awarded James "25% of the Community Property Portion of the Teacher's Retirement Annuity from [James's] employment."

         On November 29, 2012, the Ninth Court of Appeals in Beaumont affirmed the trial court's judgment, after limiting its review to purely procedural grounds rather than the merits. See id. at *2 n.1. On May 31, 2013, the Texas Supreme Court denied review, and the Ninth Court of Appeals issued its mandate affirming the divorce decree on July 11, 2013.

         On February 26, 2015, Katherine filed a motion to enter a QDRO, and on July 20, 2015, Katherine filed an amended motion to enter a QDRO in order to "reflect [the] current Teacher Retirement System requirements." See generally Tex. Fam. Code Ann. §§ 9.101- .106 (West, Westlaw through 2015 R.S.) (outlining the jurisdiction and procedures of entering post-divorce QDROs in Texas); Tex. Gov't Code Ann. §§ 804.001-.005 (West, Westlaw through 2015 R.S.) (defining and stating applicability of QDROs with regard to benefits payable by a public retirement system such as the Teacher Retirement System of Texas); see also 34 Tex. Admin. Code §§ 47.1-.16 (Teacher Retirement Sys. of Tex., Qualified Domestic Relations Orders) (discussing the payment of Teacher Retirement System of Texas benefits under a QDRO).

         On August 14, 2015, the trial court held a telephonic hearing on Katherine's amended motion to enter a QDRO, with Katherine appearing in person and through counsel, and James appearing telephonically and pro se from the C.T. Terrell Unit of the Texas Department of Criminal Justice's Institutional Division.[2] Prior to the hearing, the trial court denied various motions filed by James including: (1) a motion for jury trial; (2) a motion to dismiss Katherine's motion to enter a QDRO; and (3) a motion for a bench warrant.

         At the hearing, the trial court took up two preliminary complaints from James. First, James asserted that he was not provided an opportunity to conduct discovery, which should make the case "null and void." The trial court noted that the record contained a document entitled "Disclosure Request to [Katherine's counsel] Melody M. Petit for [Katherine] dated June 1, 2015." In that document, James requested under rule of civil procedure 194.1 "information concerning items that are listed in the enclosed Exhibit-5" dealing with certain inventory; and he requested disclosure under rule of civil procedure 192.3(b). The trial court then asked whether James had proof that he had served these documents upon Katherine, and James did not. Second, James asserted that he had a pending counter-claim in this case regarding his alleged "community interest in" Katherine's "retirement and a 401(k) plan." The trial court denied James's counter-claim, citing the final divorce decree, which specifically awarded Katherine her retirement accounts as "her sole and separate property, " which divested James of all rights, title, interest, and claims to such property.

         At the conclusion of the hearing, the trial court signed the QDRO that directed distribution of James's retirement benefits under the Teacher Retirement System of Texas as follows:

Multiply the distribution by a percentage derived from the following formula:
CP awarded X standard annuity based on salary and service during marriage
standard annuity based on salary and service at the time of distribution.

         The order further stated that "CP" in this case is "75.00%" which represents Katherine's interest in the community property portion of James's ...


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