                              NUMBER 13-09-00351-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

RICARDO ALFREDO MACIAS,                                                          Appellant,

                                              v.

MARTHA ANN MACIAS,                                                                Appellee.


                     On appeal from the 25th District Court
                          of Gonzales County, Texas.


                           MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Yañez and Garza
                 Memorandum Opinion by Justice Garza
        Before us is an appeal from the denial of a motion to clarify a divorce decree.

Appellant, Ricardo Alfredo Macias, filed his motion to clarify when, after his retirement, forty

percent of his monthly military pension pay was sent to appellee, Martha Ann Macias,

Ricardo’s former wife. Ricardo claims that the trial court erred by denying his motion to

clarify because the divorce decree constitutes an “impermissible invasion of [his] separate

property.” Because we find the decree to be unambiguous, we affirm the decision of the

trial court.

                                       I. BACKGROUND

        Ricardo and Martha were married on February 14, 1989, and they were divorced on
January 14, 2000. Ricardo served in the United States Army throughout the marriage. He

began his Army service five years prior to the marriage and continued his service for an

additional eight years and three months after the divorce. The final divorce decree

provided for the “just and right” division of the parties’ marital estate. See TEX . FAM . CODE

ANN . § 7.001 (Vernon 2006).1 The decree, in part, awarded the following to Martha as her

separate property:

         All right, title, and interest in and to 40 percent of the United States Army
         disposable retired pay to be paid as a result of RICHARDO [sic] ALFREDO
         MACIAS’ service in the United States Army, and 40 percent of all increases
         in the United States Army disposable retired pay due to cost of living or other
         reasons, if, as, and when received.[2]

         Ricardo retired on April 30, 2008. Soon thereafter, the Defense Finance and

Accounting Service began sending Martha forty percent of Ricardo’s monthly retired pay,

or pension benefits. Ricardo subsequently filed his “Motion for Clarification of Division of

Military Retired Pay, or in the Alternative, Motion to Modify, Correct, or Reform Judgment.”

In the motion, Ricardo contended that Martha was entitled only to forty percent of the

retirement benefits that he earned during the course of the eleven-year marriage, rather

than forty percent of the entire amount that Ricardo earned during his twenty-four years

of Army service. The trial court denied the motion on May 20, 2009.3 This appeal


         1
             Neither party appealed the final decree of divorce.
         2
             W e note that the decree erroneously awards the following property to both parties:

         All sum s, whether m atured or unm atured, accrued or unaccrued, vested or otherwise,
         together with all increases thereof, the proceeds therefrom , and any other rights related to
         any profit-sharing plan, retirem ent plan, Keogh plan, pension plan, em ployee stock option
         plan, 401(k) plan, em ployee savings plan, accrued unpaid bonuses, disability plan, or other
         benefits existing by reason of the husband’s past, present or future em ploym ent.

On appeal, however, Ricardo does not argue that these contradictory provisions cause the decree’s provisions
regarding m ilitary retired pay to be am biguous. See Haworth v. Haworth, 795 S.W .2d 296, 299 (Tex.
App.–Houston [14th Dist.] 1990, no writ) (finding that sim ilar language in a divorce decree was trum ped by
“a clear and specific disposition” to the form er wife of the parties’ Texaco stock); see also Schulz v. Schulz,
No. 04-95-00448-CV, 1996 Tex. App. LEXIS 4222, at *6 (Tex. App.–San Antonio Sept. 25, 1996, no writ)
(“Specific provisions in an instrum ent will prevail over general provisions.”).
         3
           In his brief, Ricardo states: “W hile Appellant’s prior attorney filed what she called as [sic] a ‘Motion
for Clarification of Division of Military Retired Pay, or in the Alternative, Motion to Modify, Correct or Reform
Judgm ent,’ it is in effect a Plea to the Jurisdiction of the District Court over the post-divorce m ilitary retired pay
that Appellant earned prior to the parties’ m arriage and subsequent to the entry of the parties’ Final Decree
of Divorce.” However, the record reflects that the trial court did not treat Ricardo’s m otion as a plea to the

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followed.4

                                           II. STANDARD OF REVIEW

        This case involves the interpretation of a divorce decree and is subject to de novo

review on appeal. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). In interpreting

a divorce decree, we apply general rules regarding the construction of judgments. Id.

Judgments, like other written instruments, are to be construed as a whole, toward the end

of harmonizing and giving effect to all the court has written. Constance v. Constance, 544

S.W.2d 659, 660 (Tex. 1976). “If the decree, when read as a whole, is unambiguous as

to the property’s disposition, the court must effectuate the order in light of the literal

language used.” Shanks, 110 S.W.3d at 447 (quoting Wilde v. Murchie, 949 S.W.2d 331,

332 (Tex. 1997)).

        In addition, an enforcement order is limited only to clarifying or aiding the application

of a divorce decree. Pierce v. Pierce, 850 S.W.2d 675, 679 (Tex. App.–El Paso 1993, writ

denied).       Under the Texas Family Code, the court may clarify an order to enforce

compliance with a specific decree. See TEX . FAM . CODE ANN . § 9.008(b) (Vernon 2006).

But a court may not “amend, modify, alter, or change the division of property made or

approved in the decree of divorce” with a clarification order. Id. § 9.008(a). Clarification

orders cannot be utilized to modify a final divorce decree. Pierce, 850 S.W.2d at 680.

                                                 III. DISCUSSION

        In his only issue, Ricardo argues that state courts may divide military retired pay

only as authorized by the Uniformed Services Former Spouses’ Protection Act (“USFSPA”).

See 10 U.S.C. § 1408(c)(1). According to Ricardo, because only “disposable retired pay”

can be apportioned by a divorce court under the USFSPA, the trial court had jurisdiction

only over the retired pay earned by Ricardo while the parties were married. Ricardo then



jurisdiction. Therefore, we will review the judgm ent as a ruling on a m otion to enforce under the Texas Fam ily
Code, as set out in our standard of review. See T EX . F AM . C OD E A N N . § 9.008(b) (Vernon 2006).
        4
            Martha has not filed an appellee’s brief to assist us in the resolution of this m atter.

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sets forth an elaborate formula for determining the amount of the retired pay which was

actually “before the court.”

        The provision in the divorce decree at issue uses the term “disposable retired pay,”

which is generally defined in the USFSPA as the “total monthly retired pay to which a

member is entitled . . . .” Id. § 1408(a)(4).5 The statute does not limit the property that can

be divided by the court to the community property of the marital estate, as Ricardo argues.

Further, the statute defines the term “court order” as “a final decree of divorce, . . . which

. . . in the case of a division of property, specifically provides for the payment of an amount,

expressed in dollars or as a percentage of disposable retired pay, from the disposable

retired pay of a member to the spouse or former spouse of that member.”                                      Id. §

1408(a)(2)(C). Thus, there is no support for the argument made by Ricardo that the trial

court only had jurisdiction over retirement benefits actually earned during the marriage.

        Ricardo further argues that the decree is ambiguous and that the parties intended

only to divide the retirement pay earned during the marriage. According to Ricardo, this

intent can be discerned by examining the language of the section in the decree entitled

“Payment of United States Army Disposable Retired Pay.” That section states, in part:

        Petitioner, MARTHA ANN MACIAS, and Respondent, RICARDO ALFREDO


        5
          To be precise, the statute defines “disposable retired pay” as the total m onthly retired pay to which
a m em ber is entitled less amounts which:

        (A)      are owed by that m em ber to the United States for previous overpaym ents of retired
                 pay and for recoupm ents required by law resulting from entitlem ent to retired pay;

        (B)      are deducted from the retired pay of such m em ber as a result of forfeitures of retired
                 pay ordered by a court-m artial or as a result of a waiver of retired pay required by law
                 in order to receive com pensation under title 5 or title 38;

        (C)      in the case of a m em ber entitled to retired pay under chapter 61 of this title, are
                 equal to the am ount of retired pay of the m em ber under that chapter com puted using
                 the percentage of the m em ber’s disability on the date when the m em ber was retired
                 (or the date on which the m em ber’s nam e was placed on the tem porary disability
                 retired list); or

        (D)      are deducted because of an election under chapter 73 of this title to provide an
                 annuity to a spouse or form er spouse to whom paym ent of a portion of such
                 m em ber’s retired pay is being m ade pursuant to a court order under this section.

10 U.S.C. § 1408(a)(4). None of the four listed exclusions are applicable here. Therefore, Ricardo’s
“disposable retired pay” is equal to the total am ount of retired pay to which he is entitled.

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       MACIAS, were originally married on February 14, 1989, and that marriage
       lasted for 10 years and 11 months or more, during which time RICARDO
       ALFREDO MACIAS served 14 years or more of creditable service towards
       retirement.

Ricardo further argues that it was the intent of the parties and the trial court to award

Martha forty percent of the retirement pay calculated as of the date of divorce, and that by

giving her forty percent of his retirement pay earned throughout his term of service, the

court is invading his separate property.

       Even though judgments should be construed as a whole to harmonize and give

effect to the entire decree, see Constance, 544 S.W.2d at 660, we disagree that the

referenced paragraph does anything to modify or add to the unambiguous provision

awarding forty percent of Ricardo’s entire disposable retired pay to Martha. It is apparent

that the intent of the aforementioned paragraph is merely to establish that the marriage

lasted long enough to satisfy the statutory requirements, not to substantively modify the

property division described earlier in the decree. See 10 U.S.C. § 1408(6)(d)(2) (“If the

spouse or former spouse to whom payments are to be made under this section was not

married to the member for a period of 10 years or more during which the member

performed at least 10 years of service creditable in determining the member’s eligibility for

retired pay, payments may not be made under this section . . . .”).

       In a similar case, the Fourth Court of Appeals reviewed the decision of a trial court

to award a forty-nine percent interest in the total retirement pay of the appellant as

opposed to a forty-nine percent interest in the community property portion of the retirement

pay. Carroll v. Carroll, No. 04-08-00063-CV, 2009 Tex. App. LEXIS 167, at *4-5 (Tex.

App.–San Antonio Jan. 14, 2009, no pet.) (mem. op.). In that case, the former husband

had accrued a total of twenty-eight years and one month of service with the United States

Army, with twenty-two years and ten months having been accrued during the marriage.

Id. at *2. The decree specifically stated that “[t]he community interest of [former husband’s]

monthly gross retired pay subject to being divided by this Court is 100% of the monthly

gross retired pay of an [O-5 grade officer] with 22 years and 10 months of creditable


                                              5
service towards retirement.” Id. at *3. In other words, the decree defined the “community

interest” in the pension as solely that amount which was earned during the marriage, and

did not include any amounts earned prior to or after the marriage. See id. Crucially, unlike

the decree at issue here, the decree in Carroll then awarded the former wife forty-nine

percent of only the community interest in the monthly retirement benefits. Id. at *2-3. In

a memorandum opinion, the court of appeals found the trial court’s clarification order

       improperly made substantive changes to the decree by basing [the former
       wife’s] 49% award on [the former husband’s] total military retirement pay
       rather than by following the formula set forth in the decree and basing [the
       former wife’s] 49% award on the military retirement pay of “an [O-5 grade
       officer] with 22 years and 10 months of creditable service towards
       retirement.”

Id. at *9. The court noted that, “[i]n the absence of an ambiguity, the trial court was without

authority to modify the judgment via a clarification order; therefore, we must enforce the

decree in accordance with its unambiguous language and the intent of the parties.” Id.

(citing Pearcy v. Pearcy, 884 S.W.2d 512, 514 (Tex. App.–San Antonio 1994, no writ)).

In Carroll, the decree specifically provided that the former wife’s award would be based

only on that portion of the former husband’s retired pay that was actually earned during the

marriage. Id. at *3. There is no such language in the decree at issue here.

       In another similar case, Baxter v. Ruddle, the divorce decree provided that the

former wife, Baxter, would receive thirty-seven and one-half percent of the “gross U.S.

Army retirement” benefits earned by Ruddle, the former husband, “if, as and when

received” by Ruddle. 794 S.W.2d 761, 762 (Tex. 1990). After the divorce, Ruddle

received a promotion and an increase in gross pay; Baxter then filed a motion seeking

thirty-seven and one-half percent of the increase in benefits received by Ruddle as a result

of his pay raise. Id. Ruddle argued that Baxter was not entitled to any post-divorce

increases, and the trial court agreed. Id. The Texas Supreme Court reversed, concluding

that the language unambiguously provided that Baxter was to receive thirty-seven and one-

half percent of the “total retirement benefits received by Ruddle each month, including any

post-divorce increases.” Id. at 763. “The parties were entitled to make the agreement they


                                              6
did, even if the trial court had been unable to order the same property division without their

agreement, and the judgment agreed to by the parties is binding on them.” Id.

       The same reasoning is applicable here. The decree dissolving the Maciases’

marriage was entered into by agreement of the parties, who were free to determine its

terms. Those terms unambiguously award to Martha “40 percent of the United States

Army disposable retired pay to be paid as a result of [Ricardo’s] service in the United

States Army.” Because the terms of the divorce decree are plain and unambiguous, the

trial court was without authority to modify the judgment via a clarification order, and it did

not err in denying Ricardo’s motion. See TEX . FAM . CODE ANN . § 9.008(a); Pierce, 850

S.W.2d at 680. Ricardo’s sole issue is overruled.

                                      IV. CONCLUSION

       We affirm the judgment of the trial court


                                                   ________________________
                                                   DORI CONTRERAS GARZA
                                                   Justice

Delivered and filed the
8th day of July, 2010.




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