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Allen v. Allen

Court of Appeals of Texas, Third District, Austin

April 12, 2019

Lawrence Allen, Appellant
v.
Claire L. Allen, Appellee

          FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT NO. 2014-0804-F425, HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Smith

          MEMORANDUM OPINION

          Melissa Goodwin, Justice

         This appeal concerns the interpretation of a divorce decree providing Claire L. Allen with one-third of "an amount equal to [Lawrence Allen's] U.S. Army Retirement Pay" as spousal maintenance.[1] At issue is whether Claire is entitled to spousal maintenance based on Lawrence's retirement pay amount when Lawrence has waived the retirement pay to receive disability benefits. After a bench trial, the trial court rendered final judgment in Claire's favor. We agree and affirm.

         BACKGROUND

         The relevant facts are undisputed and taken from the evidence admitted at trial.[2] In 1982, Lawrence retired from the United States Army and started receiving military retirement benefits. In 1984, Lawrence and Claire were divorced by Decree of Dissolution of Marriage (Divorce Decree) in the superior court of Whatcom County, Washington (Washington Court). At issue in this appeal is the following Divorce Decree provision:

By way of child support and spousal maintenance Lawrence H. Allen shall pay through the registry of the Superior Court for Whatcom County for the benefit of Claire L. Allen on the first day of each calendar month an amount equal to his U.S. Army retirement pay (presently $1, 240 per month, subject to periodic cost of living increases). Of such amount one-third of the total payment shall be deemed spousal maintenance and such payment shall continue so long as both parties survive; two-thirds of such monthly payment shall be deemed child support for the parties['] three minor children.

         Before September 2013, Lawrence paid Claire spousal maintenance by way of garnishment through the Defense Finance and Accounting Service (DFAS), which administers military retirement pay. However, in 2013, Lawrence waived his retirement payment to receive Combat-Related Special Compensation (CRSC) and Veterans Affairs disability (collectively, Disability Benefits), see 10 U.S.C. § 1413a(b); 38 U.S.C. §§ 5304(a)(1), 5305, and then stopped paying spousal maintenance. Nevertheless, Lawrence continued receiving monthly Retiree Account Statements and CRSC pay statements from the DFAS that showed the amount of retirement pay Lawrence was waiving.[3]

         Claire filed a petition to enforce the Divorce Decree under the Uniform Enforcement of Foreign Judgments Act. See Tex. Civ. Prac. & Rem. Code §§ 35.001-.008. Following proceedings on competing summary judgment motions and an appeal to this Court, [4] the trial court conducted a bench trial on December 12, 2017, at which both parties testified. After the trial, the court rendered final judgment in Claire's favor, awarded Claire attorney's fees, and entered findings of fact and conclusions of law. As relevant here, the court found and concluded that:

• "The clear and unambiguous terms of the Divorce Decree require Lawrence to make a monthly payment of spousal maintenance to Claire in an amount equal to one-third of his Army Retirement Pay plus cost-of-living adjustments";
• Lawrence's monthly payment to Claire under the Divorce Decree is spousal maintenance and "Claire was not awarded any portion of Lawrence's military retirement as property";
• federal law distinguishes between property and spousal maintenance;
• although federal law prohibits states from treating retired pay as community property, it does not prohibit taking account of amounts waived for disability in calculating spousal support;
• Lawrence's monthly pay statements "show the amount of retired pay awarded to Lawrence each month and the amount waived for V.A. Disability each month";
• Claire received partial spousal maintenance payments from September 2013 through March 2014 totaling $226.22 and no spousal payments since March 2014;
• "Lawrence owes Claire a total spousal support arrearage as of December 12, 2017 of $41, 575.18, which should be awarded as a judgment against Lawrence ...

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