Brister Dissent in Hagen v. Hagen (Tex. 2009)
Majority opinion in Hagen v. Hagen (Tex. May 1, 2009)(Johnson)
(family law, divorce decree, clarification order, retirement disability benefits division, res judicata,
relitigation)
Justice Brister filed a dissenting opinion, in which Justice O’Neill and Justice Medina joined.
The Court says this divorce decree did not divide VA disability pay, and even if it
did it is binding because it was voidable rather than void. I disagree on both counts.
I would also try a little harder to find an alternative to today’s judgment, which allows
an ex-husband to cut off a community asset awarded to his ex-wife. We should remand
for Doris Hagen to pursue further proceedings; because the Court instead renders
judgment against her, I respectfully dissent.
* * *
Can Waived Retirement Pay Be Recovered?
In most states, a divorce court can order alimony or child support paid from VA
disability benefits.[30] But in community-property states like Texas (as already noted), a
divorce court cannot divide VA disability pay because it is not assignable property.[31]
This problem can be mitigated when disability occurs before divorce by considering VA
disability pay in dividing all the other property between the spouses in a manner that is
just and right.[32] But when disability occurs after divorce, a just-and-right division of
retirement benefits may be rendered neither just nor right by allowing one party to cut off
the other’s share of those benefits.[33]
“In most states, if a former service member unilaterally waives retired pay to receive
VA disability pay, the courts will not stand idly by.”[34] Surely that should be the rule in
Texas too. The decree here did not just award Doris part of Raoul’s retirement pay; it
also appointed him trustee of those funds for her use and benefit. As a result, it is hard to
see how his decision to waive those funds did not breach his fiduciary duty as her trustee.
[35] Nor is it clear why converting retirement pay to VA disability pay did not constitute
conversion; while “money can be converted only if it is specifically identified and held in
trust,”[36] this money was.
Of course, any judgment against Raoul could not be collected from his disability
payments because they are exempt.[37] And they remain exempt after receipt so long as
they are held in a form “readily available as needed for support and maintenance . . . and
have not been converted into permanent investments.”[38] But if Raoul has other assets
or funds from which such a judgment could be collected, there is no reason to prevent
Doris from trying.[39]
While Doris pleaded conversion and breach of fiduciary duty in the trial court, she
briefed neither when she appealed the trial court’s dismissal of her case. But she was
relying on the continued validity of Berry v. Berry, under which she should prevail unless
we overrule it. “When, as here, a party presents her case in reliance on precedent that
has been recently overruled, remand is appropriate.”[40] Accordingly, rather than
rendering judgment against Doris, I would overrule Berry and remand in the interest of
justice for her to pursue alternate means.[41]
RAOUL HAGEN v. DORIS J. HAGEN; from Bexar County; 4th district (04-06-00705-CV, ___ SW3d
___, 08-01-07)
The Court reverses the court of appeals' judgment and affirms the trial court's judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice
Hecht, Justice Wainwright, Justice Green, and Justice Willett joined. [pdf]
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.
[pdf version of Brister's dissent]
Link to Electronic Briefs for this case
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