                              NUMBER 13-07-00372-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


WILLIAM A. THOMAS,                                                             Appellant,

                                             v.

ALISON PIORKOWSKI,                                                             Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                                     OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                      Opinion by Justice Rodriguez

       This case involves clarification of a final decree of divorce. By three issues,

appellant William A. Thomas challenges the trial court's clarification order alleging that the

trial court erred (1) by clarifying the decree and awarding his disability benefits as

disposable retirement pay, (2) in not considering retroactive application of his permanent
disability status to set aside the clarification order, and (3) in entering a clarifying order that

made a substantive change in the decree. We reverse and remand.

                                             I. Background

       Thomas and appellee Alison Piorkowski1 were divorced on December 3, 2004. The

final decree of divorce provided for a division of the marital estate. The decree awarded

the following to Piorkowski:

       W-5. All right, title, and interest in and to the sum equal to fifty percent (50%)
       of the disposable retired pay of WILLIAM A. THOMAS which accumulated,
       accrued or to which WILLIAM A. THOMAS is otherwise entitled between May
       25, 1996 and the day this decree is signed which is a result of WILLIAM A.
       THOMAS's service in the United States Armed Forces, and that share
       attributable to the interest awarded to ALISON THOMAS of disposable
       retired pay, if, as and when received by WILLIAM A. THOMAS.

       On May 5, 2006, Thomas was placed on the Temporary Disability Retirement List

(TDRL) by the United States Armed Forces (Navy) with a thirty percent disability rating.

See 10 U.S.C.A. § 1202 (1998)              On June 1, 2006, Thomas began receiving benefits

computed under section 1401. See id. § 1401 (Supp. 2009).

       On September 27, 2006, Piorkowski filed a motion to clarify the decree of divorce

and to enforce the division of property. By her motion, Piorkowski sought to recover, as

disposable retired pay, her share of Thomas's TDRL benefits. Piorkowski alleged that

Thomas was receiving retirement pay and that he refused to deliver to Piorkowski her

proportionate share. Piorkowski asked that the trial court enter a clarifying order restating

the terms of the decree in a manner specific enough to allow enforcement by contempt.

In response, Thomas objected, alleging that the decree of divorce was specific,



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           Alison Thom as's nam e was changed to Alison Thom as Piorkowski by the final divorce decree.

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unambiguous, and enforceable. He also contended that the TDRL benefits were based

on his disability and thus, were a form of disability pay and not retirement pay subject to

division by the trial court.

       In March 2007, the trial court held an evidentiary hearing on Piorkowski's motion.

Over Thomas's objections, the trial court granted the motion and entered a clarification

order which set out, in relevant part, the following:

       Clarification

            The [c]ourt finds that certain terms of the prior order are not specific
       enough to be enforced by contempt and should be clarified as ordered below
       ....

       *****

               IT IS ORDERED that the prior order is clarified as follows:

               1.      That portion of the Final Decree of Divorce awarding property
                       to wife and as contained in paragraph W-5 on page 40 is
                       amended as follows:

               Division of Military Benefits of William A. Thomas

            The [c]ourt finds, in accordance with the Uniformed Services Former
       Spouses' Protection Act [USFSPA], 10 U.S.C. section 1408, as follows:

              1.     Alison T. Piorkowski is awarded as her sole and separate
       property, the sum of $510.86 per month of the disposable retired pay of
       William A. Thomas as long as William A. Thomas is placed on the
       Temporary Disability Retirement List and receiving monthly retirement pay.

               2.      William A. Thomas is Ordered to deliver to Alison T. Piorkowski
       the sum of $510.86 per month until such time as William A. Thomas receives
       a final disability rating from the U.S. Navy.

       *****

              The award of disposable retired pay made to Alison T. Piorkowski in
       this decree is made in compliance with the [USFSPA].


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             IT IS THEREFORE ORDERED AND DECREED that Alison T.
       Piorkowski have judgment against and recover from William A. Thomas the
       sum of $510.86 per month of the disposable retired pay of William A.
       Thomas.

       *****

       Findings

       *****

              5.      Since the date of divorce, William A. Thomas has been placed
       upon the Temporary Disability Retirement List by the U.S. Navy and is
       currently receiving retirement pay in the amount of $1,246.00 per month
       [s]ince July 1, 2006.

       *****

       Relief Granted

             IT IS ADJUDGED that Respondent, William A. Thomas, is in
       contempt for each separate violation enumerated above.

            The [c]ourt finds that Respondent has failed to pay to Petitioner
       money that was awarded in the prior decree and that the amount of unpaid
       payments to which Petitioner is now entitled is $4,597.74.

       Thomas filed a motion for new trial requesting that the clarifying order be set aside

because it (1) awarded Piorkowski property she was not entitled to receive, (2) created an

obligation that was not part of the relief requested and effectively reallocated property not

consistent with the final decree of divorce, and (3) did not account for his level of disability

or current disability rating. At the evidentiary hearing on his motion, having recently been

declared eighty percent disabled by the Veterans Administration (VA), Thomas also asked

that the order awarding retirement benefits be set aside by retroactive application of his

disability status to the inception of his TDRL. Over objections, the trial court denied

Thomas's motion for a new trial. This appeal ensued.


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                                  II. Standard of Review

       We review the trial court's ruling on a post-divorce motion for clarification of a

divorce decree or for enforcement under an abuse of discretion standard. Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Baker v. Donovan, 199 S.W.3d

577, 579 (Tex. App.–Houston [1st Dist.] 2006, pet. denied) (op. on reh'g); In re Marriage

of McDonald, 118 S.W.3d 829, 832 (Tex. App.–Texarkana 2003, pet. denied). The test

for abuse of discretion is a question of whether the court acted without reference to any

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242

(Tex. 1985).

                                      III. Discussion

       By his first issue, Thomas contends that the trial court abused its discretion by

entering a clarifying order awarding Piorkowski $510.86 as disposable retired pay. Thomas

asserts that the money awarded to Piorkowski was not disposable retired pay but was

disability pay and was awarded in direct violation of section 1408(a)(4)(C) of the USFSPA.

See 10 U.S.C.A. § 1408(a)(4)(C) (1998) (providing for payment of retired pay in

compliance with court orders). We agree.

       The decree of divorce awarded Piorkowski "fifty percent (50%) of the disposable

retired pay . . . if, as and when received by [Thomas]." In clarifying the decree, the trial

court found that Thomas had been placed on the TDRL and had been receiving retirement

pay in the amount of $1,246.00 per month since July 1, 2006. The court awarded

Piorkowski $510.86 per month of Thomas's disposable retired pay as long as Thomas was

on the TDRL and was receiving monthly retirement pay.



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       Under the USFSPA, military retirement benefits are generally apportionable by a

divorce. See id. § 1408(c)(1) (1998); Mansell v. Mansell, 490 U.S. 581, 589 (1989);

Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 (Tex. App.–Waco 2002, no pet.); Wallace v.

Fuller, 832 S.W.2d 714, 719 (Tex. App.–Austin 1992, no writ); Gallegos v. Gallegos, 788

S.W.2d 158, 169 (Tex. App.–San Antonio 1990, no writ). However, apportionable benefits

are limited to "disposable retired pay," which is defined to exclude, among other things,

disability pay including retirement benefits that may be waived in order to collect VA

disability benefits and those computed using the percentage of disability on the date a

person in the military is placed on TDRL. Limbaugh, 71 S.W.3d at 16-17, 17 n.13 (citing

10 U.S.C.A. § 1408(a)(4)(A-D) (1998)); see Mansell, 490 US at 589 (determining that state

courts have the authority to treat disposable retired pay, not total retired pay, as community

property). Specifically, "disposable retired pay" does not include,

       amounts which . . . in the case of a member entitled to retired pay under
       chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount
       of retired pay of the member under that chapter computed using the
       percentage of the member's disability on the date when the member was
       retired (or the date on which the member's name was placed on the
       temporary disability retired list); . . . .

10 U.S.C.A. § 1408(a)(4)(C) (emphasis added). Thomas was entitled to retired pay only

after being placed on the TDRL. His gross pay, in the amount of $1246.00, was computed

using the percentage of disability (thirty percent) on the date he was placed on the TDRL.

See id. § 1401. The statute expressly excludes from "disposable retired pay" temporary

disability retirement benefits—the $1246.00 in this case. See id. § 1408(a)(4)(C). We

conclude, therefore, that Thomas's gross pay, the money at issue in this case, was not

disposable retired pay and therefore, was not divisible as marital property.


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       Moreover, placement on TDRL is governed by section 1202, which provides as

follows:

       Upon a determination by the Secretary concerned that a member described
       in section 1201(c) of this title would be qualified for retirement under section
       1201 [permanent disability] of this title but for the fact that his disability is not
       determined to be of a permanent nature and stable, the Secretary shall . . .
       place the member's name on the temporary disability retired list, with retired
       pay computed under section 1401 of this title.

Id. § 1202. The statute requires a member to undergo a physical examination at least

once every eighteen months in order to determine "whether there has been a change in

the disability for which he was temporarily retired." Id. § 1210(a) (1998). A member may

remain on the TDRL for up to five years. Id. § 1210(b) (1998). After five years on the

TDRL, the member must be either returned to active duty, if fit for service; permanently

retired for longevity, if at least twenty years of service has been attained; or permanently

retired for disability, if he is at least thirty percent disabled and the disability is permanent

and stable. Id. § 1210(b)-(f) (1998).

       At the time Thomas was placed on TDRL, he had served in the military for ten

years, five months, and eight days. He did not have twenty years service. He was not

eligible for a regular retirement based on longevity. See id. § 3914 (1998) (requiring an

enlisted member of the armed services to have at least twenty years of service to be

retired); see also id. § 6323 (1998 & Supp. 2009) (providing that a naval officer was entitled

to voluntarily retire, with the consent of the United States President, after 20 years of

service). Thomas was not eligible for any retired pay other than that based on his

disability. Because this pay was necessarily based on Thomas's disability, it was not

divisible as marital property. See id. § 1408(a)(4)(C); In re Marriage of Williamson, 205


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P.3d 538, 541-43 (Colo. Ct. App. 2009) (concluding that benefits of a husband who was

completely ineligible for any military retirement benefits but for his disability, were based

on his disability and therefore not divisible as marital property); see In re Marriage of

Wherrell, 58 P.3d 734, 741 (Kan. 2002) (recognizing that members eligible for retirement

would potentially receive both disability and retirement benefits with only the disability

portion of the benefit to be excluded form "disposable retired pay"; however, if a member

is not entitled to retired pay, it would not be appropriate to allow only a portion of his

severance to be excluded from division under USFSPA); Bullis v. Bullis, 467 S.E.2d 830,

836 (Va. Ct. App. 1996) (en banc) (concluding that the USFSPA "exempts only that portion

of Chapter 61 benefits which corresponds to the retiree's disability percentage rating at the

time of retirement. If, for example, a service member retires with 60% disability under

Chapter 61, then 60% of the member's retirement benefits are excluded from the definition

of 'disposable retired pay'. The remaining 40% of the member's benefits may be judicially

apportioned under state community property laws.").

       Piorkowski asserts that the plain reading of the statute, specifically certain phrases

found in sections 1202, 1210, and 1211, indicates that the status of a member on the

TDRL is akin to inactive duty or retirement. See 10 U.S.C.A. § 1202 (including "would be

qualified for retirement" and "with retired pay" in section language); id. § 1210 (including

"temporarily retired" in language); id. § 1211 (a-b) (1998) (referring to "active duty");

Transco Prods. Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994)

("When statutory interpretation is at issue, the plain and unambiguous meaning of a statute

prevails in the absence of clearly expressed legislative intent to the contrary."). However,



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sections 1202, 1210, and 1211 should be read in conjunction and harmony with other

sections of the statute which provide for the computation of pay when a member is placed

on the TDRL and with supporting case law. See Hooks v. Tex. Dep't of Water Res., 611

S.W.2d 417, 419 (Tex. 1981). Doing so, we cannot conclude that because Thomas's

status may be akin to retirement because such words are used in certain sections of the

statute, his pay must be retirement pay and not disability pay. We are not persuaded by

that reasoning, especially in light of our discussion above.

       Piorkowski relies on Dambrava v. Office of Personnel Mgmt., 466 F.3d 1061, 1063-

64 (Fed. Cir. 2006) (determining that TDRL placement is akin to retirement) and Bradley

v. United States, 161 F.3d 777, 782 (4th Cir. 1998) (deciding that TDRL "status is

comparable to permanent retirement status"), for the proposition that payments received

by a military member while on the TDRL should be considered retirement pay. In

Dambrava, the court determined that Gintaras Dambrava, a civil servant, was not qualified

for immediate retirement because his time on the TDRL was not active service and could

not be included as service credit in the calculation. 466 F.3d at 1065. The Bradley court,

in a summary judgment proceeding, concluded that Sharon Bradley's status was

comparable to permanent retirement when her medical treatment at issue in the case

occurred while she was on the TDRL. 161 F.3d at 782. Thus, the action was not barred

by the immunity doctrine. Id. (citing McGowan v. Scoggins, 89 F.2d 128, 137-39 (9th Cir.

1989) (holding that the Feres doctrine did not bar a retired Army officer from suing for

injuries suffered in an attack by military personnel while he was on the base to obtain a

parking sticker)).



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       The issue in Dambrava was whether Dambrava's time on the TDRL was active

service. Dambrava, 466 F.3d at 1062. The Dambrava court determined that it was not.

Id. at 1065. The issue in Bradley was whether Bradley's status was comparable to

permanent retirement when she received the complained-of medical treatment. Bradley,

161 F.3d at 782. In this case, we are addressing a very different issue—an issue that is

not dependent on the status of Thomas, but on how his pay is calculated and how its

calculation is dependent upon his disability. We cannot read Dambrava and Bradley in

isolation as Piorkowski urges.

       Piorkowski also relies on Baker v. Donovan and In the Marriage of Reinauer, to

support her contention that the trial court awarded disposable retirement pay, not disability

benefits, and, thus, did not abuse its discretion. Baker, 199 S.W.3d at 578; Reinauer, 946

S.W.2d 853, 855-56 (Tex. App.–Amarillo 1997, no pet.). These cases, however, are

distinguishable from the present case.

       In Baker, the divorce decree awarded Karen Donovan "50% of Michael Allen

Baker's present accrued benefit as of the date of the decree, in the U.S. Military Retirement

System." 199 S.W.3d at 578. In 2002, Baker began receiving retirement benefits of

approximately $5,000 per month including $1,069 designated as VA disability pay. Id.

When Baker failed to pay Donovan's portion of his retirement, Donovan filed a petition to

enforce and clarify the decree. Id. The trial court awarded Donovan a portion of Baker's

military retirement benefits without excluding his VA disability pay. Id. at 578-79. The

Baker court concluded that the trial court did not err in doing so because the proceeding

was an enforcement and clarification proceeding, not a motion to modify proceeding. Id.



                                             10
at 580. And a motion to modify "would have been required for the trial court to alter or

change the substantive division of property and, thus, [Baker's] request [was] beyond the

power of the trial court." Id. (citing TEX . FAM . CODE ANN . § 9.007(b)). The court concluded

that Baker was attempting to collaterally attack the decree in error because there had been

no appeal from the divorce court's division of the property. Id.

       In the present case, the divorce decree awarded interest in "fifty percent (50%) of

the disposable retired pay." In his first issue, Thomas is not challenging the substance of

the division. He is not arguing that Piorkowski is not entitled to a portion of his disposable

retired pay. Rather, Thomas is complaining of the trial court's actions in determining that

his pay is disposable retired pay.

       Likewise, Reinauer is distinguishable. The Reinauer court, under the law in effect

at that time, concluded that Reinauer's compensation under section 1201 (permanent

disability) "had been held to be an earned property right accrued by reason of years of

service rather than gift or gratuity." Id. at 858.

       The court continued with the following reasoning:

       That it may be labeled "disability retirement pay," or the like, mattered not
       given its substantive nature. Nor was the fact that it arose due to his forced
       retirement of consequence. Thus, having satisfied the requisite indicia, the
       monies paid Reinauer by the Navy were, and are, "retirement pay" within the
       scope of the 1979 decree.

Id.

       The Reinauer divorce decree became final in 1979, years before the present

USFSPA went into effect, and thus, the USFSPA was not controlling. In the Marriage of

Reinauer, 946 S.W.2d 853, 857 (Tex. App.–Amarillo 1997, no pet.); see Department of



                                              11
Defense Authorization Act, 1983, Pub. L. No. 97-252 § 1001, 96 Stat. 730-35 (1982). In

1979, Texas courts considered military retirement benefits and chapter 61 military benefits

as a community asset subject to division upon divorce. Reinauer, 946 S.W.2d 853, 857

(citing Busby v. Busby, 457 S.W.2d 551, 551-52, 554 (Tex. 1970), Kirkham v. Kirkham, 335

S.W.2d 393, 394 (Tex. Civ. App. 1960, no writ)). Under the USFSPA today, we would not

reach the same result.

       Therefore, we conclude that the trial court erred in determining that Thomas's pay

was disposable retired pay, in awarding a portion thereof to Piorkowski in the amount of

$510.86 per month, in adjudging Thomas in contempt, and in finding that Piorkowski was

entitled to $4,597.74, the amount of unpaid payments. See Downer, 701 S.W.2d at 242.

The trial court abused its discretion when it entered a clarifying order reflecting this relief.

See Worford, 801 S.W.2d at 109. Accordingly, we sustain Thomas's first issue.

       Having sustained this first issue, we need not reach the remaining issues as they

are not dispositive of this appeal. See TEX . R. APP. P. 47.1.

                                       IV. Conclusion

       We reverse and remand for entry of a clarification order consistent with this opinion.




                                                      NELDA V. RODRIGUEZ
                                                      Justice

Opinion delivered and filed
this 11th day of June, 2009.




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