                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS


  KAREN L. BURNETT,                              §
                                                                No. 08-15-00339-CV
                       Appellant,                §
                                                                   Appeal from the
  v.                                             §
                                                                 383rd District Court
  THOMAS R. BURNETT,                             §
                                                              of El Paso County, Texas
                       Appellee.                 §
                                                                   (TC# 95-13356)
                                                 §

                                          OPINION

       This is an appeal from a judgment on counterpetitions to enforce the property division in

the parties’ divorce decree. Karen L. Burnett (“Wife”) filed a petition alleging that Thomas R.

Burnett (“Husband”) failed to pay her the full amount of the military retirement to which she was

entitled under the divorce decree. Husband counterclaimed that he had overpaid Wife and, in

addition, she owed him 40 percent of the monthly premiums for the Armed Services Survivor

Benefit Plan (“SBP”). The trial court agreed with Husband and ordered that Wife pay Husband

$2,617.57 “for overpayments received by Petitioner and for her failure to fully reimburse

Respondent the obligatory 40% of Survivor Benefit Premiums.” We reverse and render, in part,

and remand, in part.

                                         BACKGROUND
        The Burnetts married in 1976. They divorced in 1998, by which time Husband had retired

from the military. A jury recommended that Husband be awarded 40 percent of his military

retirement and that Wife be awarded the remaining 60 percent. The divorce decree incorporates

this recommendation by the following award to Wife:

        All right, title and interest in and to SEVEN HUNDRED FIFTY FOUR AND
        80/100 DOLLARS ($754.80) per month, of the United States Army disposable
        retired pay to be paid as a result of THOMAS REFINE BURNETT’s service in the
        United States Army, and sixty percent (60%) of all increases in the United States
        Army disposable retired pay due to cost of living or other reasons, if, as, and when
        received.

This provision will be referred to as the “Retirement Award.”

        In related provisions, the decree orders Husband to designate Wife as a beneficiary under

the SBP, orders Wife to pay to Husband 40 percent of the cost of that SBP, and directs that this

cost will offset the amount of the Retirement Award paid to Wife. For approximately fourteen

years, Husband determined the amount he owed Wife under the Retirement Award by taking his

gross pay, deducting a sum for VA waiver, calculating 60 percent of the resulting figure, deducting

from that figure $754.80 paid directly to Wife by the Army, and then deducting the 40 percent

SBP premium Wife was ordered to pay. By this method, Husband paid Wife 60 percent of all cost

of living increases (“COLAs”) he received on a cumulative basis. But after receiving a letter from

Wife in February 2012 stating that he had underpaid her, Husband sought the advice of new

counsel, who informed him that he was calculating his payments wrong. After that point, Husband

paid Wife 60 percent of COLAs only in the year they were first received rather than cumulatively,

as he had previously.1


1
  The difference between the two methods of calculation is illustrated by the following hypothetical:
Husband receives a $10 monthly COLA in year one. He pays Wife $6 of that COLA. Husband receives
another $10 COLA in year two. Under the cumulative method, in year two, Wife is entitled to $6
attributable to the year one COLA (because Husband continues to receive the additional $10) as well as $6
of the year two COLA. This is the method Wife advocates. Under Husband’s method, Wife is entitled to
                                                   2
        In June 2012, Wife filed a petition seeking to enforce the Retirement Award and alleging

that Husband had underpaid her under that award. Husband filed a counterpetition asserting that

he had actually overpaid Wife under the Retirement Award and that she had failed to pay him for

the SBP premiums.

        The issues were tried to the bench. Wife testified that Husband owes her $7,335.40 in

“back pay.” She also testified that she had paid Husband $138.43 per month for SBP premiums

according to a prior court ruling. Adding those payments to the back pay arrears, Wife concluded

that Husband owes her $9,133.77. Husband did not offer any evidence of the amount of SBP

premiums he alleges Wife owes, or the amount of any overpayments he alleges he made to her.

        The court entered findings of fact and conclusions of law construing the Retirement Award,

as a matter of law, as encompassing two separate and distinct components: (1) a flat sum of

$754.80, being Wife’s share of Husband’s disposable retired pay; and (2) 60 percent of any COLA

received by Husband, but only in the year in which it was first received. The logic appears to be

that, after the year in which it is first received, a COLA is incorporated into Husband’s disposable

retired pay, and Wife’s entitlement to any portion of that pay is limited to $754.80.

        Based on its findings of fact and conclusions of law, the court entered judgment awarding

Husband $2,617.57 as compensation for both his overpayment under the Retirement Award and

Wife’s underpayment of SBP premiums. The court’s findings do not reveal how it arrived at the

sum of $2,617.57, or what portion of that figure is attributable to Retirement Award overpayments

and what portion is attributable to SBP premium underpayments.

                                               ISSUES




$6 of the year one COLA only in year one, and $6 of the year two COLA only in year two, despite the fact
that Husband continues to receive each $10 COLA in all subsequent years.
                                                   3
          The primary issue in this appeal is whether the trial court improperly modified the property

division contained in the divorce decree by erroneously interpreting the Retirement Award. Wife

contends that the correct interpretation requires Husband to pay 60 percent of increases in his

disposable retired pay cumulatively. Husband contends that the trial court correctly construed the

Retirement Award to require payment of 60 percent of increases only in the year in which the

increase is first paid.

          Wife also asserts as a secondary issue that the evidence is legally and factually insufficient

to support the trial court’s finding that she has not fulfilled her obligation to pay SBP premiums.

Husband does not directly address the sufficiency of the evidence, but indicates that the issue of

Wife’s payment of SBP premiums should be remanded because the SBP premiums “likely changed

annually” and it is “likely” that Wife has not fulfilled her obligation to pay.

                                     STANDARD OF REVIEW

          An order on a motion to enforce or clarify a final decree of divorce is reviewed for abuse

of discretion. Smith v. Burt, 528 S.W.3d 144, 148 (Tex.App.—El Paso 2017, no pet.). “A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to

any guiding rules or principles.” Id., (citing Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004)).

          A trial court’s conclusions of law are reviewed de novo. Id. Failure to analyze or apply

the law correctly constitutes an abuse of discretion. Id., (citing In re Cerberus Capital Mgmt. L.P.,

164 S.W.3d 379, 382 (Tex. 2005)(orig. proceeding)).

          A court’s findings of fact are generally reviewable for legal and factual sufficiency under

the same standards as apply to jury answers. Armstrong v. Armstrong, 570 S.W.3d 783, 788

(Tex.App.—El Paso 2018, pet. denied). But when sufficiency review overlaps the abuse of



                                                    4
discretion standard, the reviewing court applies a two-pronged inquiry: “(1) Did the trial court

have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in

its application of discretion?” Giron v. Gonzalez, 247 S.W.3d 302, 306 (Tex.App.—El Paso 2007,

no pet.). The first question implicates traditional legal sufficiency review. Id. Under that standard,

“[a] legal sufficiency challenge may only be sustained when: (1) the record discloses a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the

opposite of a vital fact.” Giron, 247 S.W.3d at 306, (citing Uniroyal Goodrich Tire Co. v.

Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999)).

       The second question requires a determination of “whether, based on the elicited evidence,

the trial court made a reasonable decision.” Id. at 306. In other words, the court must determine

whether the trial court’s decision was arbitrary or unreasonable. Id.

                                           DISCUSSION

               Wife’s entitlement to increases in Husband’s disposable retired pay

       A divorce decree, like any other judgment, is interpreted as a whole to harmonize and give

effect to the entire decree. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). An unambiguous

decree is construed according to its language, while an ambiguous decree is construed in light of

both the language of the decree and the record. Id. Whether a decree is ambiguous is a question

of law for the court. Id. at 901–02.

       Whether Wife is entitled to 60 percent of the increase in Husband’s disposable retired pay

cumulatively, or only in the year in which such an increase is first received, is governed by our




                                                  5
prior opinion in Smith v. Burt. The divorce decree in that case contained the following award to

the wife, Smith:

        $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.

Smith, 528 S.W.3d at 146.

        Smith argued that she was entitled to her proportionate share of the accumulated COLAs.

Burt argued that her portion of any COLA must be calculated on an annual basis. Id. at 146-47,

148.   Burt further argued that awarding Smith accumulated COLAs would impermissibly

transform the award contained in the divorce decree from a fixed dollar amount to a percentage.

Id. at 148. This Court resolved the issue in Smith’s favor:

        We disagree with Burt’s argument that Smith’s interpretation of the divorce decree
        would convert the award from a fixed dollar amount to a percentage award because
        Smith’s award is a combination of a fixed dollar amount plus a percentage of the
        cost-of-living-allowances. The question is how that percentage is determined. The
        divorce decree awarded Smith a fixed dollar amount plus a 50 percent interest of
        any and all cost-of-living-adjustments to which Burt becomes entitled beginning
        October 31, 1990 and ending on Burt’s death. The divorce decree is not a model
        of clarity, but the plain language of the divorce decree states that Smith is entitled
        to 50 percent of any and all cost-of-living-related increases to which Burt becomes
        entitled. It is undisputed that Burt is entitled to his base retirement pay plus the
        accumulated amount of COLA adjustments he has received over the years since the
        divorce. Thus, Smith’s share of the COLA is necessarily based on the amount of
        accumulated COLA to which Burt is entitled. Burt’s argument that Smith is limited
        to receiving only the fixed amount of $391.00 plus the specific COLA awarded in
        any given year is a tortured reading of the divorce decree. [Emphasis in original].

Id. at 148.

        Husband’s interpretation of the award to Wife in this case, like Burt’s interpretation in

Smith, “is a tortured reading of the divorce decree.” Id. The decree unambiguously awards to

Wife both a fixed dollar amount and a 60 percent interest in “all increases in the United States

Army disposable retired pay due to cost of living or other reasons, if, as, and when received.” We


                                                  6
recognize that the decree in this case uses the language, “if, as, and when received,” whereas the

decree in Smith used the language, “to which Burt is entitled.” That difference in language does

not, however, dictate a different result.

        First, the Supreme Court has determined that the phrase, “if, as, and when received” simply

“reflects the contingent nature of the community’s interest in the retirement benefits.” Shanks v.

Treadway, 110 S.W.3d 444, 449 n.7 (Tex. 2003). Its significance here is that Wife is entitled to a

percentage of only those increases that Husband actually receives. Stated another way, once

Husband receives an increase, Wife is entitled to her share. There is no dispute in this case that

Husband has received the COLAs at issue cumulatively, not only in the year in which they were

first granted.

        Our analysis in Smith also supports reaching the same result in this case. We decided that

Smith’s share of COLA was “necessarily based on the amount of accumulated COLA” because

Burt was “entitled to his base retirement pay plus the accumulated amount of COLA adjustments.”

Smith, 528 S.W.3d at 148. Likewise, Wife’s share in this case is necessarily based on the amount

of accumulated COLA because Husband receives his base retirement pay plus the accumulated

amount of COLA adjustments. We conclude that the trial court abused its discretion by failing to

properly apply the law to the Retirement Award.

        A trial court has no authority, when considering a motion to enforce or clarify a divorce

decree, “to enter an order that amends, modifies, alters, or changes the actual, substantive division

of property made or approved in a final decree of divorce.” Smith, 528 S.W.3d at 147-48 (citing

TEX.FAM.CODE ANN. § 9.007(b)). The order in this case impermissibly “amends, modifies, alters,

or changes the actual, substantive division of property” in the parties’ divorce decree by depriving

Wife of a portion of the increases to Husband’s disposable retired pay to which she is entitled.



                                                 7
       The court’s error in interpretation also resulted in an erroneous money judgment against

Wife. The court found that Husband had overpaid Wife based on its conclusion that Wife was

entitled to a share of COLAs only in the first year in which they were received. It is undisputed

that, since September 2012, Husband has not paid Wife 60 percent of COLAs cumulatively, as the

Retirement Award requires. The record thus establishes not only that Husband has not overpaid

Wife, but that he has underpaid her. The trial court abused its discretion by granting Husband

relief on his claim for reimbursement of Retirement Award payments and by denying Wife’s claim

to recover amounts owed but not paid under that award.

       Wife’s first issue is sustained. We render judgment clarifying the divorce decree as

follows:

       IT IS ORDERED that KAREN L. BURNETT is awarded all right, title and interest
       in and to SEVEN HUNDRED FIFTY FOUR AND 80/100 DOLLARS ($754.80)
       per month, of the United States Army disposable retired pay to be paid as a result
       of THOMAS REFINE BURNETT’s service in the United States Army, and sixty
       percent (60%) of all increases in the United States Army disposable retired pay due
       to cost of living or other reasons, if, as, and when received. KAREN L. BURNETT
       is entitled to receive 60 percent of all accumulated increases in the United States
       Army disposable retired pay due to cost of living or other reasons received by
       THOMAS REFINE BURNETT.

       The judgment of the trial court granting Husband relief on his claim for Retirement Award

overpayments is reversed and judgment is rendered that he take nothing on that claim. While the

record contains evidence concerning the amount Wife alleges Husband has underpaid her pursuant

to a correct interpretation of the Retirement Award, we cannot conclude that that evidence is

conclusive. We therefore remand Wife’s claim for Retirement Award underpayments to the trial

court for further proceedings to determine the amount of those underpayments by employing the

clarification stated above.

                                Underpayment of SBP premiums



                                               8
         In her second issue, Wife challenges the sufficiency of the evidence to support the trial

court’s finding that she failed to pay all SBP premiums owed to Husband. Resolving this issue

requires determining whether the trial court had “sufficient information upon which to exercise its

discretion” on the issue of SBP underpayments. See Giron, 247 S.W.3d at 306. We conclude it

did not.

         To prevail on his claim for enforcement of Wife’s 40 percent premium obligation, and to

receive a monetary award for failure to comply with that obligation, Husband was required to

produce evidence (1) showing that Wife did not, in fact, comply with that obligation, and (2)

establishing the amount of underpayment. But the only evidence on the subject is that Wife has,

“all along from day one,” deducted her 40 percent premium obligation from the amount Husband

owed her, and has additionally paid Husband $138.43 every month since 2013.

         The record does not contain any evidence identifying any missed SBP premium payment

or the amount of any such payment. There is a complete absence of evidence of facts necessary

to establish Husband’s right to relief. Because the evidence is legally insufficient to support a

finding that Wife failed to make any required SBP premium payment, the trial court abused its

discretion by finding that Wife failed to fully reimburse Husband for SBP premiums and by

awarding Husband any sum as reimbursement for those premiums.

         Wife’s second issue is sustained. The judgment granting Husband relief on his claim for

SBP premium payments is reversed and judgment is rendered that Husband take nothing on that

claim.

                                         CONCLUSION

         The trial court abused its discretion by (1) misconstruing the Retirement Award contained

in the parties’ divorce decree, (2) awarding Husband recovery for overpayments to Wife, based on



                                                 9
that misconstruction, and (3) awarding Husband recovery for unpaid SBP premiums in the absence

of any evidence of the existence or amount of any such unpaid premiums. The judgment of the

trial court is reversed in its entirety. The divorce decree is clarified as stated above; judgment is

rendered that Husband take nothing on his claims; and Wife’s claim for underpayments of the

amounts due under the Retirement Award is remanded to the trial court for further proceedings.



June 5, 2019
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating




                                                 10
