Hagen v. Hagen, No. 07-1065 (Tex. May 1, 2009)(Johnson)(pdf version of majority opinion)
(family law, divorce decree, post-divorce clarification order, retirement disability benefits division,
res judicata, relitigation, collateral attack on final divorce decree not permitted, judgment not void)
Doris and Raoul Hagen’s 1976 divorce decree awarded a percentage of Raoul’s military
retirement pay to Doris to be paid if, as, and when he received it. After Raoul’s subsequent
retirement from the Army, he was determined by the Veterans’ Administration (VA) to have
a service-connected disability. He then elected to be paid VA disability benefit payments,
which are not subject to federal income taxes, in place of part of his military retirement
payments, which are subject to income taxes. Raoul’s election reduced the amount of
military retirement pay he received. When Doris began receiving her percentage of the
reduced Army retirement pay Raoul received, she sought enforcement and clarification of
the divorce decree. The trial court determined that the decree divided only the military
retirement pay being received by Raoul, it did not divide his VA disability benefits, and
Doris was entitled to only a percentage of the military retirement pay. The court of appeals
reversed. The appeals court held that the trial court modified the 1976 decree instead of
clarifying it, and the modification was barred by res judicata principles. ___ S.W.3d ___,
___. We hold that the trial court correctly clarified the unambiguous original decree, and its
action was not a modification barred by res judicata principles. We reverse the court of appeals’
judgment and affirm the judgment of the trial court.
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.
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.
Link to Electronic Briefs for this case
COMMENT: Military retirement pay does not include disability pay (Jimmy Verner) (North Texas Family Law Blog)
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Hagen vs. Hagen, 282 S.W.3d 899 (Tex. 2009)
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Argued January 14, 2009
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice Wainwright, Justice Green, and Justice Willett joined.
Justice Brister filed a dissenting opinion, in which Justice O’Neill and Justice Medina joined.
Doris and Raoul Hagen’s 1976 divorce decree awarded a percentage of Raoul’s military
retirement pay to Doris to be paid if, as, and when he received it. After Raoul’s subsequent
retirement from the Army, he was determined by the Veterans’ Administration (VA) to have a
service-connected disability. He then elected to be paid VA disability benefit payments, which are
not subject to federal income taxes, in place of part of his military retirement payments, which are
subject to income taxes. Raoul’s election reduced the amount of military retirement pay he
received. When Doris began receiving her percentage of the reduced Army retirement pay Raoul
received, she sought enforcement and clarification of the divorce decree. The trial court
determined that the decree divided only the military retirement pay being received by Raoul, it did
not divide his VA disability benefits, and Doris was entitled to only a percentage of the military
retirement pay. The court of appeals reversed. The appeals court held that the trial court modified
the 1976 decree instead of clarifying it, and the modification was barred by res judicata principles.
___ S.W.3d ___, ___. We hold that the trial court correctly clarified the unambiguous original
decree, and its action was not a modification barred by res judicata principles. We reverse the
court of appeals’ judgment and affirm the judgment of the trial court.
I. Background
Doris and Raoul Hagen divorced in 1976. At the time of the divorce, Raoul was a member of the
United States Army. The decree awarded Doris right, title, and interest to
One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN
RECEIVED, and the Petitioner RAOUL HAGEN shall be a Trustee of the One-half of 18/20ths of all
Army Retirement Pay or Military Retirement Pay, for the use and benefit of DORIS J. HAGEN, and
shall pay the same immediately upon each receipt of the same, to DORIS J. HAGEN.
When Raoul retired from the Army in 1992 his retirement compensation consisted solely of
military retirement pay, which was subject to federal income taxes. In 2003, the VA determined
Raoul had a service-connected disability rating of forty-percent. As allowed by federal statute,
Raoul elected to waive part of his retirement pay and be paid VA disability in its place. See 38 U.S.
C. § 5305. The VA disability pay is not subject to federal income taxes. See id. § 5301(a)(1). After
Raoul made his election, payments to Doris were reduced to an amount calculated by applying the
decree’s formula to only the military retirement pay Raoul received.
Doris filed a combined motion for contempt, clarification of the decree, and petition for damages.
She claimed that Raoul failed to comply with the 1976 decree because he failed to pay her the
proper amount of his gross retirement pay, and in the alternative, she sought clarification of the
decree. She also sought damages from Raoul alleging that by electing to be paid VA disability pay
and waive part of his retirement pay, he breached a fiduciary duty to her and converted payments
she should have received. Following a non-jury hearing, the trial court (1) ordered that “the military
retirement pay now being received by Raoul Hagen shall be divided according to the formula
stated in the Original Decree of Divorce,” (2) found the amount subject to division under the
decree did not include Raoul’s disability pay, (3) awarded attorney’s fees in the event of appeal,
and (4) denied all other relief.
Doris appealed, and the court of appeals reversed. ___ S.W.3d ___. Relying in large part on
Berry v. Berry, 786 S.W.2d 672 (Tex. 1990) (per curiam), the court of appeals held that res
judicata barred Raoul’s position as a collateral attack on the divorce decree, and the Uniformed
Services Former Spouses’ Protection Act (USFSPA)[1] could not be applied retroactively to
collaterally attack the decree. ___ S.W.3d at ___. We hold that the trial court’s action was a
permissible clarification, not an impermissible modification, of the decree.
II. Interpreting Divorce Decrees
We interpret divorce decree language as we do other judgments of courts. Shanks v. Treadway,
110 S.W.3d 444, 447 (Tex. 2003). We construe the decree as a whole to harmonize and give
effect to the entire decree. Id. If the decree is unambiguous, the Court must adhere to the literal
language used. Id. If the decree is ambiguous, however, the decree is interpreted by reviewing
both the decree as a whole and the record. See Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.
1997) (per curiam). Whether a divorce decree is ambiguous is a question of law. Shanks, 110 S.W.
3d at 447.
As with other final, unappealed judgments which are regular on their face, divorce decrees and
judgments are not vulnerable to collateral attack. Berry, 786 S.W.2d at 673. The decree must be
void, not voidable, for a collateral attack to be permitted. Id. Errors other than lack of jurisdiction
over the parties or the subject matter render the judgment voidable and may be corrected only
through a direct appeal. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).
The Family Code provides that trial courts may enter orders of enforcement and clarification to
enforce or specify more precisely a decree’s property division. Tex. Fam. Code § 9.006(a) (“[T]he
court may render further orders to enforce the division of property made in the decree of divorce
or annulment to assist in the implementation of or to clarify the prior order.”). But courts may not
“amend, modify, alter, or change the division of property” originally set out in the decree. Id. §
9.007(a). Attempting to obtain an order that alters or modifies a divorce decree’s property division
is an impermissible collateral attack. See Reiss, 118 S.W.3d at 442 (holding that a trial court’s
correct construction of a divorce decree’s award “does not impermissibly ‘amend, modify, alter, or
change the division of property made or approved in the decree of divorce’” (quoting Tex. Fam.
Code § 9.007(a))).
III. The Decree in Question
A. The Decree’s Language
The Hagens stipulated that their decree[2] awarded Doris “One-half of 18/20ths of all Army
Retirement Pay or Military Retirement Pay, IF, AS AND WHEN RECEIVED,” and directed Raoul to
“pay the same immediately upon each receipt of the same, to DORIS J. HAGEN.” Neither party
claims the decree defined “Army Retirement Pay” or “Military Retirement Pay” to include any type
of compensation or pay outside of the plain import of the words used. The decree language does
not specifically reference VA disability compensation Raoul might receive, and the parties do not
contend that VA benefits were referenced anywhere in the decree. We conclude the decree is
unambiguous in dividing military retirement pay “if, as and when” Raoul received it. The question,
then, is whether, at the time the decree was entered, military retirement pay included VA disability
compensation. See Shanks, 110 S.W.3d at 447 (stating that we “must effectuate the order in light
of the literal language used”).
B. Retirement Pay and VA Disability Compensation
When the trial court entered the Hagens’ decree on May 7, 1976, federal law provided two means
by which a former service member could receive disability-related compensation: retirement pay for
physical disability under Title 10 of the United States Code and VA disability compensation under
Title 38. Armed Forces (Title 10), ch. 1041, 70A Stat. 91 (1956) (current version at 10 U.S.C. §
1201); Veterans’ Benefits (Title 38), § 310, 72 Stat. 1119 (1958) (current version at 38 U.S.C. §
1110). Under Title 10, if a member was found to be disabled, the secretary of the applicable
branch of the armed forces could “retire the member, with retired pay” computed under the statute.
Armed Forces (Title 10), ch. 1041, 70A Stat. 91 (1956) (current version at 10 U.S.C. § 1201). Title
38, on the other hand, mentioned nothing about retirement. Veterans’ Benefits (Title 38), § 310, 72
Stat. 1119 (1958) (current version at 38 U.S.C. § 1110). Instead, it compensated for “disability
resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of duty.” Id.; see also Veterans’ Benefits
(Title 38), § 331, 72 Stat. 1122 (1958) (current version at 38 U.S.C. § 1131) (providing VA
disability compensation for peacetime injuries).
At the time the trial court entered the Hagens’ decree, Texas courts recognized that only military
disability pay that was an earned property right could be divided upon divorce, and VA disability
compensation was not an earned property right. Busby v. Busby, 457 S.W.2d 551, 552-53 (Tex.
1970); Dominey v. Dominey, 481 S.W.2d 473, 475 (Tex. Civ. App.—El Paso 1972, no writ);
Ramsey v. Ramsey, 474 S.W.2d 939, 941 (Tex. Civ. App.—Eastland 1971, writ dism’d). In Busby,
we did not address the question of VA disability benefits; we addressed only the two types of
military retirement pay—voluntary retirement benefits and disability retirement benefits. 457 S.W.
2d at 554. We held that military retirement pay—whether based upon a member’s voluntary
election to retire after having served the required time or whether based on retirement for
disability—is not a gift or gratuity but an earned property right divisible upon divorce. Id. at 552. In
Ramsey, the court of appeals applied Busby to VA disability benefits, holding that VA disability
benefits are not an earned property right because they compensate “for personal injury or disease
. . . for service-connected disability,” and there is “no obligation or promise by the Veterans’
Administration to remunerate” for service-connected disabilities. 474 S.W.2d at 941. VA disability
benefits were, thus, characterized differently than military retirement pay. VA disability benefits
were characterized as a gratuity based upon a service-connected disability rather than an earned
property right based upon years of service. Id.; see also Milliken v. Gleason, 332 F.2d 122, 123
(1st Cir. 1964), cert. denied, 379 U.S. 1002 (1965) (holding that because the payment of VA
disability compensation is at the discretion of the United States Congress, such compensation is
not considered property).
C. The Parties’ Contentions
Citing Dominey, 481 S.W.2d 473, Doris nevertheless argues that at the time the decree was
entered, Texas courts had established disability pay was an earned property right. Dominey,
however, pertained to Navy disability retirement pay, not VA disability benefits. Id. at 474. In
Dominey, the court expressly distinguished Ramsey and the VA benefits at issue there from military
retirement benefits. Id. at 475. In doing so, the court held that although the retirement benefits
being received by Dominey were military disability retirement benefits, they were nonetheless
retirement benefits and thus property, unlike the VA disability retirement benefits at issue in
Ramsey. Id. at 475-76.
Relying on Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990); Berry, 786 S.W.2d at 673;
and Jones v. Jones, 900 S.W.2d 786, 789 (Tex. App.—San Antonio 1995, writ denied), Doris also
argues Texas courts have held that ex-spouses who make a post-divorce election to waive military
retirement pay for VA disability benefits are in effect collaterally attacking the decree, and such an
attack is barred by res judicata principles. We do not disagree that asserting the USFSPA as
justification for violating provisions of a final divorce decree could constitute a collateral attack
under some circumstances. But Raoul is not making such an assertion in this matter; rather, he
relies on the specific language of the decree. And the cases Doris references do not support her
position that Raoul’s waiver was a collateral attack on the Hagens’ decree.
In Baxter, the parties agreed to a property settlement and the agreed decree was not appealed.
794 S.W.2d at 762. The decree provided that the wife received
All right, title and interest to thirty-seven and one-half percent (37 1/2%) of JAMES RUDDLE’s
gross U.S. Army retirement and/or disability benefits and/or V.A. disability benefits (including thirty-
seven and one-half percent (37 1/2%) of all increases therein due to the cost of living) if, as and
when received.
Id. Ruddle remained in the service after the divorce, so his retirement pay increased over the
amount he would have received had he retired at the time of divorce. Id. He did not comply with the
decree by paying his former wife, Judith Ann Baxter, the specified percentage of his actual gross
retirement pay. Id. In considering Baxter’s Motion for Contempt and Arrearage Judgment, the trial
court determined Baxter was entitled to a percentage of benefits valued as of the time of the
divorce. Id. This Court held that the unappealed, agreed divorce decree unambiguously provided
for Baxter to receive thirty-seven and one-half percent of the gross retirement benefits received by
Ruddle, including post-divorce increases; the parties agreed to the method of apportionment and
their agreement should be enforced even if the court could not have ordered the division except
for the parties’ agreement; the decree was binding on the parties; and the trial court’s
determination in contravention to the decree was barred by res judicata. Id. at 762-63. Unlike the
Hagens’ decree, the agreed, unappealed decree in Baxter specifically referenced and divided
gross retirement benefits, VA disability benefits, and all cost of living increases. Id. at 762. And,
unlike Raoul’s situation, in which he seeks to enforce the language of the decree, Ruddle
attempted to effect a substantive change to a prior final decree’s express provisions.
In Berry, relied on in large part by the court of appeals in this case, the parties entered into an
agreement and consent decree. 786 S.W.2d at 673. The decree specified the wife would receive
“twenty-five percent of . . . gross Air Force disability retirement pay.” Berry v. Berry, 780 S.W.2d
846, 847 (Tex. App.—Dallas 1989), rev’d per curiam, 786 S.W.2d 672 (Tex. 1990) (emphasis
added). The husband later elected to accept VA disability benefits, and his retirement pay was
reduced accordingly. Berry, 786 S.W.2d at 673. The wife began receiving a percentage of the
reduced retirement pay and sought to enforce the decree’s literal language that awarded her a
portion of the husband’s gross retirement pay. Id. At the enforcement hearing, the wife introduced
a statement from the Air Force showing the husband’s gross Air Force disability retirement pay had
not changed, but the VA disability benefits were credited against the retirement pay as a deduction
and reduced the gross pay to a net amount:
As the statement clearly indicates, Husband received gross pay in the amount of $2,422 with a VA
waiver of $1,355 and an A.L.M.T. reduction of $9. After subtracting this waiver and reduction,
Husband was left with a net pay of $1,058.
Berry, 780 S.W.2d at 849. The trial court held the wife was entitled to twenty-five percent of the
husband’s net Air Force disability pay of $1,058. Id. at 847-48. The court of appeals affirmed. Id. at
851. This Court noted that the original decree provided for the wife to receive twenty-five percent
of the husband’s gross pay, not net pay; the decree was final; the decree was not void; and the
decree could not be substantively altered by using the USFSPA to collaterally attack it:
This court has held that, as with other final, unappealed judgments which are regular upon their
face, divorce judgments are not vulnerable to collateral attack. Although a final judgment may be
erroneous or voidable, it is not void and thus subject to collateral attack if the court had jurisdiction
of the parties and the subject matter. Because the final judgment is voidable as opposed to void,
the rule of res judicata would apply. Under these cases, the subsequent adoption of the USFSPA
cannot be used to collaterally attack the Berrys’ final divorce decree.
786 S.W.2d at 673 (citations omitted). As a result, the Court enforced the divorce decree
according to its literal language that awarded the wife a percentage of what she proved was the
husband’s gross retirement pay. See id. at 674.
And in Jones, 900 S.W.2d 786, the consent decree entered pursuant to an agreement between
the parties provided as follows:
[Wife is awarded] if, as, and when retirement is received by DONALD J. JONES, a monthly amount
equal to twenty-five percent (25%) of that monthly amount that a retired Major with 20 years
service will receive on the date DONALD J. JONES begins to receive his retirement, with the same
percentage of any and all costs of living related increases to which DONALD J. JONES shall
become entitled for the period beginning on the date of retirement and ending on the death of
DONALD J. JONES.
Id. at 787. Donald Jones later retired, accepted a disability retirement amount in lieu of part of his
regular retirement pay, and sought to preclude payment of any of the disability retirement pay to
his former wife based on the USFSPA. Id. The trial court enforced the decree as written. Id. In
affirming, the court of appeals held that Jones’s attempt to apply the USFSPA to alter the
substantive provisions of the decree was an attempt to avoid the effect of the unappealed decree
and was thus a prohibited collateral attack. Id. at 787-88. Similar to the outcome in Berry, the end
result was that the decree was enforced according to its original language. See id.
In Baxter, Berry, and Jones, there were attempts to, in effect, modify or change a prior final
decree’s provisions. Here, Raoul does not attempt to attack, change, or alter the decree; he seeks
enforcement according to its literal language. If a trial court order does not modify or amend the
substantive division of property set out in a final decree, then the court merely construes the
decree, and its order is properly classified as a clarification or enforcement order. See Tex. Fam.
Code §§ 9.006-.007. Only an attempt to judicially alter or change the substantive provisions of a
final decree constitutes a prohibited collateral attack. See Reiss, 118 S.W.3d at 442. The trial court’
s clarification order in this case did not change the decree’s substantive division of property and
thus did not permit a collateral attack on the decree.
Doris also contends the decree awarded her a portion of Raoul’s “gross” or “total” military pay
because courts have held that language similar to language used in the Hagens’ decree
encompasses all types of military pay, including VA disability benefits. Her argument fails. First,
“military pay” is different from and does not include VA disability pay as we have discussed above.
Next, the literal language employed in this decree is unambiguous, does not specify division of
gross military pay, and does not specify a division of VA disability benefits. See Shanks, 110 S.W.
3d at 447. And, none of the cases Doris references—Jones, 900 S.W.2d 786; Gallegos v.
Gallegos, 788 S.W.2d 158 (Tex. App.—San Antonio 1990, no writ); or Ex parte Hovermale, 636 S.
W.2d 828 (Tex. App.—San Antonio 1982, no writ)—support her position. In Jones, the court of
appeals did not consider whether “military retirement pay” means “gross” military pay. See 900 S.
W.2d 786. It enforced a decree that provided the wife was to receive an amount set by formula. Id.
at 787-88 (wife was awarded “a monthly amount equal to twenty-five percent (25%) of that monthly
amount that a retired Major with 20 years service will receive on the date DONALD J. JONES
begins to receive his retirement,” together with cost of living increases). In Hovermale and
Gallegos, the decrees divided “gross military retirement pay,” and because the decrees included
the term “gross,” the courts did not address whether a decree not including that term has the same
meaning. See Hovermale, 636 S.W.2d at 829 (noting the final decree “requir[ed] relator to pay to
his former wife a portion of his gross monthly military retirement pay, based on a formula set out in
the decree of divorce”); Gallegos, 788 S.W.2d at 160 (the decree provided “IT IS ORDERED AND
DECREED that [appellee] shall have judgment against and recover from [appellant] twenty-one
and one-half percent (21.5%) of the gross present and future military retirement pay received each
month by [appellant]”).
IV. Response to the Dissent
The dissent says our holding today conflicts with Berry because the Hagens’ decree is similar to
the Berry decree in that neither specifically references VA disability compensation, yet we held the
Berry decree divided VA disability while we hold the Hagen decree does not. With due respect, the
dissent is mistaken. Neither the Berry decree nor the Hagens’ decree divided VA disability
compensation, nor did we hold in Berry that the decree there did so.
In Berry, the original decree specified the husband was to instruct a bank to “disburse to Wife
monthly, as received, at a bank or other address of her choice, twenty-five percent (25%) of said
Retirement Pay computed on the gross amount thereof before any deductions.” Berry, 780 S.W.2d
at 847 (emphasis added). The decree did not limit or specify the type or amount of deductions that
could be taken from the retirement pay. Under the language of the decree, the type or amount of
deductions did not matter because the wife was to be paid an amount computed on the husband’s
gross retirement pay before deductions. Id. The decree’s language made it clear the parties and
the court contemplated the possibility that in the future some types of deductions or reductions
might be applied to the gross retirement pay. They took that possibility into account and provided
for it. Id. at 847-49. The husband later attempted to collaterally attack the final, unappealed
decree. 786 S.W.2d at 673.
Contrary to the dissent’s position, this Court did not hold that the decree divided VA disability
benefits. The Court held that the husband was barred from using the USFSPA to collaterally attack
the original decree, noting (1) the unappealed, final decree contained a formula calculating the
wife’s entitlement based on the “gross amount [of retirement pay] before deductions” language,
and (2) a copy of one of the husband’s Air Force Retiree Account Statements showed the term
“gross” pay was used to indicate monthly pay before any deductions. Id. at 673 & n.1.
In the case before us, the Hagens’ original decree did not award Doris amounts “calculated on”
Raoul’s gross, or even total, retirement pay before deductions, as the decree in Berry did. The
Hagens’ decree plainly entitled Doris only to part of the Army or military retirement pay Raoul
received, if, as, and when he received it. As discussed previously, such military retirement pay did
not include VA disability benefits. Thus, the trial court in this case did not modify the Hagens’
decree; it only clarified that the decree did not divide VA disability pay that was or might become
payable to Raoul because of disability resulting from service-connected personal injury or disease.
The trial court in this case did not allow an impermissible collateral attack on the decree, just as
this Court did not allow an impermissible collateral attack on the decree in Berry. See id. at 673;
see also Tex. Fam. Code § 9.007(a) (“A court may not amend, modify, alter, or change the division
of property made or approved in the decree of divorce or annulment.”); Black’s Law Dictionary 278
(8th ed. 2004) (defining “collateral attack” as “[a]n attack on a judgment in a proceeding other than
a direct appeal”).
Although the dissent urges that the Hagens’ decree is void, neither of the parties have taken that
position. To the contrary, Doris has asserted the decree is not void. Of course, whether a
judgment or decree is void does not depend on what the parties say; it depends on legal
principles. See Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex. 1972) (quoting Murchison v. White,
54 Tex. 78 (1880)) (“A void act is one entirely null within itself, not binding on either party, and
which is not susceptible of ratification or confirmation. Its nullity cannot be waived.”). But in this
case, the trial court in 1976 had jurisdiction over the parties and the subject matter, and it did not
act outside its capacity as a court. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). The trial
court did not issue an advisory opinion about VA disability benefits Raoul might later receive due to
a disability emanating from his military service; it did not address them at all.
The dissent recognizes that divorce decrees divide future retirement benefits that are contingent
on continued future employment but contrasts VA disability benefits from that type of compensation
because “payments are not ‘earned’ during marriage and ‘are not property.’” We do not disagree
with the dissent’s statement, but it is not relevant here because the Hagens’ decree simply did not
divide Raoul’s VA disability pay. It divided his Army or military retirement pay if, as, and when he
received it.
Finally, the dissent says that because this Court held in Berry that a decree dividing military
retirement pay also divided VA disability pay that arose later, we should overrule Berry and remand
the case for Doris to reassert her claims for conversion and breach of fiduciary duty because she
relied on Berry. We decline to do so for at least three reasons. First, as we have explained above,
we do not agree that our decision in this case conflicts with Berry and we decline to overrule Berry.
Second, Doris did not—as the dissent claims—rely on Berry in the trial court and court of appeals
for the proposition that a decree dividing military retirement pay also divides VA disability pay
arising later. In the trial court, the court of appeals, and this Court, Doris cited Berry only for the
proposition that the Hagens’ decree was final and could not be modified by the trial court. She did
not include Berry in her brief of authorities to the trial court, nor did her counsel mention it at the
hearing on her motion for contempt except one time in connection with res judicata:
[This] case is protected by res judicata. No one ever appealed this case. And there are many,
many cases on that. Two cases that I haven’t included in my brief, one is Berry versus Berry, which
is a Supreme Court of Texas case.
In her briefs at the court of appeals and this Court, Doris again cited Berry only once, and the
reference was in regard to the res judicata issue:
A trial court may not amend, modify, alter or change the division of property made or approved in a
decree of divorce or annulment. It is limited to an order to assist in the implementation of or to
clarify the prior order . . . . Berry v. Berry, 786 S.W.2d 672 (Tex. 1990).
Third, Doris asserted claims against Raoul for breach of fiduciary duty and conversion in the trial
court. The claims were denied, and Doris has not presented the issues on appeal. The issue Doris
pursued in the court of appeals was whether the trial court’s order modified or clarified the Hagens’
original decree.
V. Conclusion
The Hagens’ 1976 divorce decree is unambiguous. It provides Doris is to receive a percentage of
the Army Retirement Pay or Military Retirement Pay Raoul receives. It does not provide she is to
receive payments calculated on any other basis, or that she is to receive part of his VA disability
compensation. The trial court’s order was a proper clarification of, and not an impermissible
modification of, the decree.
On the surface, it appears that Raoul’s election to receive VA benefits has worked an inequity on
Doris. But the language used in divorce decrees is important, and we must presume the divorce
court chose it carefully, especially given the frequency of attempts to enforce decrees—as was the
case here—through contempt orders. The meager record before us shows that Doris did not
appeal from the 1976 decree when it was entered over thirty years ago. There is no indication she
did not then have full opportunity to present her legal and equitable positions, present her proof,
and request the decree she wanted the trial court to enter.
We conclude Doris has had full opportunity to seek relief. The record does not justify a remand
for further litigation of the issues. We reverse the judgment of the court of appeals and affirm the
judgment of the trial court.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: May 1, 2009
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[1] The USFSPA provides state courts the authority to treat “disposable retired pay” as community
property. See 10 U.S.C. § 1408(c)(1). The United States Supreme Court has held, however, that
the USFSPA bars state courts from treating military retirement pay that has been waived to receive
VA disability benefits as property divisible upon divorce. Mansell v. Mansell, 490 U.S. 581, 594-95
(1989).
[2] A copy of the decree was attached to Doris’s brief in the court of appeals.