                                                                                                  ACCEPTED
                                                                                              13-15-00150-CV
          FILED                                                               THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                         CORPUS CHRISTI, TEXAS
  CORPUS CHRISTI - EDINBURG                                                              7/2/2015 10:52:24 AM
                                                                                       CECILE FOY GSANGER
                                                                                                       CLERK
       07/02/15
                                        NO. 13-15-00150-CV
CECILE FOY GSANGER, CLERK
BY cholloway
                                   IN THE COURT OF APPEALS          RECEIVED IN
                                                              13th COURT OF APPEALS
                                                           CORPUS CHRISTI/EDINBURG, TEXAS
                               THIRTEENTH DISTRICT        OF TEXAS
                                                               7/2/2015 10:52:24 AM
                                                                CECILE FOY GSANGER
                                                                       Clerk
                                 CORPUS CHRISTI - EDINBURG


            TRACIE MARIE SCHEFFLER F/K/A
            TRACIE MARIE PARSON,                                          APPELLANT,

                                                 v.

            PAUL MICHAEL PARSON,                                           APPELLEE.


                                  On Appeal From the 81st Judicial
                               District Court of Wilson County, Texas,
                               Trial Court Cause No. 10-10-0579-CVW


                                   APPELLANT’S BRIEF
            __________________________________________________________________

                                               Kirk Dockery, Attorney in Charge
                                               State Bar No. 05929220
                                               Email: kirkdockery@gmail.com
                                               Scott R. Donaho
                                               State Bar No. 05967755
                                               Email: srdonaho@floresville.net
                                               The Law Offices of
                                               DONAHO & DOCKERY, P.C.
                                               P.O. Box 459
                                               Floresville, Texas 78114
                                               Tel: 830-393-2700
                                               Fax: 830-393-3029

                                              ATTORNEYS FOR
                                              TRACIE MARIE SCHEFLLER
                   IDENTITY OF PARTIES AND COUNSEL

       The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case and were parties to the trial court's order
in this matter. These representations are made so the Judges of this Court may
evaluate possible disqualification or recusal.

APPELLANT: Tracie Marie Scheffler, referred to as “Scheffler” or “wife”

Counsel for Appellant are:

      The Law Offices of
      DONAHO & DOCKERY, P.C.
      Kirk Dockery
      Email: kirkdockery@gmail.com
      State Bar No. 05929220
      Scott R. Donaho
      Email: srdonaho@floresville.net
      State Bar No. 05967755
      P.O. Box 459
      Floresville, Texas 78114
      Telephone: 830-393-2700
      Fax: 830-393-3029

APPELLEE: Paul Michael Parson

Counsel for Appellee are:

      DIAZ JAKOB, LLC
      Jason J. Jakob
      State Bar No. 29042933
      Email: jjakob@diazjakob.com
      The Historic Milam Building
      115 E. Travis Street, Suite 333
      San Antonio, Texas 78205
      Tel.: (210)226-4500
      Fax: (210)226-4502




                                           ii
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . vi

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

APPELLANT'S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT AND AUTHORITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Jurisdiction: Clarification or Modification?. . . . . . . . . . . . . . . . . . . . . . . . . . 6
    The DRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    Calculation of Retirement Pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




                                                           iii
                                         INDEX OF AUTHORITIES

Cases

Allen v. Allen, 717 S.W.2d 311 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Baxter V. Ruddle, 794 S.W.2d 76 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Berry v. Berry, 647 S.W.2d 945 (Tex.1983). . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 10

Beshears v. Beshears, 423 S.W.3d 493 (Tex.App. Dallas, 2014). . . . . . . . . . . . . 17

Coker v. Coker, 650 S.W.2d 391 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App. El Paso, 2014).. . . . . . . . . . 7

Gainous v. Gainous, 219 S.W.3d 97 (Tex.App. Houston [1 Dist.], 2006).. . . . . . 17

Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550 (Tex.App.-San Antonio 2002,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re R.F.G., 282 S.W.3d 722 (Tex.App.-Dallas 2009, no pet.).. . . . . . . . . . . . 8, 16

Joyner v. Joyner, 352 S.W.3d 746 (Tex.App. San Antonio, 2011). . . . . . . . . . . . . 7

National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d
517 (Tex.,1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Quijano v. Quijano, 347 S.W.3d 345 (Tex.App.-Houston [14th Dist.] 2011, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . 17

Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex.2002)
.................................................................. 7

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) . . . . . . . . . . . . . . . . . . . . . . 7


                                                               iv
State Statutes

Tex.Fam.Code Ann. 9.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex.Fam.Code Ann. 9.006(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex.Fam.Code Ann. 9.008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


Federal Statutes

29 U.S.C. § 1056(d)(3)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                       v
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant believes that the errors in this case are evident from the documents

contained in the clerks record, and the appendix of this brief, and the issues presented

by this brief, and that oral argument would do little to aid the court in determination

of those issues.




                                           vi
                             ISSUES PRESENTED

                               First Point of Error

      The trial court erred in granting appellee’s motion to dismiss for lack of

jurisdiction.

                             Second Point of Error

      The trial court abused its discretion in granting appellee’s motion to

dismiss for lack of jurisdiction.

                              Third Point of Error

      The trial court abused its discretion in failing to grant the relief

requested by Appellant to clarify the valuation of the military retirement in

the decree of divorce and the domestic relations order.




                                        vii
                               NO. 13-15-00150-CV

                         IN THE COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


TRACIE MARIE SCHEFFLER F/K/A
TRACIE MARIE PARSON,                                                   APPELLANT,

                                          v.

PAUL MICHAEL PARSON,                                                    APPELLEE.


                       On Appeal From the 81st Judicial
                    District Court of Wilson County, Texas,
                    Trial Court Cause No. 10-10-0579-CVW


                              APPELLANT'S BRIEF

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      Tracie Marie Scheffler, herein after sometimes referred to as Scheffler,

Appellant, “wife,” or “former wife,” presents this brief in support of her request that

this Court reverse the order of the trial court dismissing the petition to clarify the

division of military retirement in the DRO for lack of jurisdiction.

                          STATEMENT OF THE CASE

      This appeal lies from the trial court’s entering an order dismissing the former


                                          1
wife’s petition to clarify the military retirement DRO for lack of jurisdiction.

        Appellant raises three points of error. First, the trial court erred in granting

appellee's motion to dismiss for lack of jurisdiction.

        Second, that the trial court abused its discretion in granting appellee's motion

to dismiss for lack of jurisdiction.

        Third, that the trial court abused its discretion in failing to grant the relief

requested by Appellant to correct the valuation of the military retirement in the decree

of divorce and the domestic relations order.



                             STATEMENT OF FACTS

        Appellant, Tracie Marie Scheffler, then known as Tracie Marie Parson, filed

suit for divorce in the 81st Judicial District Court of Wilson County, Texas, in October

2010.

        Appellee, Paul Michael Parson, herein after sometimes referred to as Appellee,

“husband,” or “former husband,” was a member of the United States Armed Services

prior to the marriage and continued to be a servicemember after the divorce, and

therefore a portion of his military retirement was his separate property.

        On February 3, 2011, the parties and their respective counsel or record met for

a settlement conference at the conclusion of which both parties and counsel signed

a rule 11 agreement which provided, in relevant part:


                                            2
              "5.   Wife awarded:
                    .....
                    “h. ½ community interest in military retirement.
                    ....
              “6.   Husband awarded:
                    ....
                    “c. ½ community interest in military retirement + all H's SP
                          interest." (CR 92,93) (APP 1)

      On May 24, 2011, the trial court entered a "Corrected Final Decree of Divorce"

which provided that wife was to receive a portion of husband’s military retirement.

Mr. Parson was at that time an active duty member of the armed services. Regarding

military retirement, the decree awarded husband the following:

      “H-4.         All sums, whether matured or unmatured, accrued or unaccrued,
      vested or otherwise, together with all increases thereof, the proceeds
      therefrom, and any other rights related to or as a result of PAUL MICHAEL
      PARSON's service in the United States Navy, including any accrued unpaid
      bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits
      existing by reason of or as a result of PAUL MICHAEL PARSON's past,
      present, or future employment, except that portion of PAUL MICHAEL
      PARSON's U.S. military retirement that has been awarded in this decree to
      TRACIE MARIE PARSON as more particularly specified in the domestic
      relations order signed in conjunction with this decree and incorporated
      verbatim in it by reference.” [emphasis added] (CR 71) (APP 2)

The decree also awarded wife the following:

      “W -6. All sums, whether matured or unmatured, accrued or unaccrued, vested
      or otherwise, together with all increases thereof, the proceeds therefrom, and
      any other rights related to or as a result of PAUL MICHAEL PARSON's
      service in the United States Navy, including any accrued unpaid bonuses,
      disability plan or benefits, Thrift Savings Plan, or other benefits existing by
      reason of or as a result of PAUL MICHAEL PARSON's past, present, or future
      employment, except that portion of PAUL MICHAEL PARSON's U.S. military
      retirement that has been awarded in this decree to PAUL MICHAEL PARSON
      as more particularly specified in the domestic relations order signed in
      conjunction with this decree and incorporated verbatim in it by reference.”


                                         3
      [emphasis added] (CR 73) (APP 2)

      This section is perhaps inartfully drafted in that it awards wife “all” of

husband’s military retirement except that portion awarded to husband as specified in

the DRO. However, the DRO does not award the husband any portion of the military

retirement, as it only awards the former spouse a portion thereof. A strict reading of

these sections would result in the former husband receiving none of his own

retirement. This demonstrates some need for clarification.

      Also on May 24, 2011, the trial court entered a "Domestic Relations Order -

Military Retirement" awarding wife a portion of husband’s military retirement which

provides as follows:

      "IT IS THEREFORE ORDERED that Former Spouse have judgment against
      and recover from Servicemember, on Servicemember's retirement from the
      United States Navy, the amount of disposable retired pay calculated as
      follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
      multiplied by the high-36 month base pay of the Servicemember, which is
      $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
      the date of divorce, which is 18 years 3 months, determined on the date of
      Servicemember's retirement divided by Servicemember's monthly gross
      retired pay at retirement multiplied by Servicemember's monthly disposable
      retired pay at retirement." [emphasis added] (CR 80) (APP 3)

      From the formula as stated in the DRO it is impossible for anyone to determine

what numbers were used for the numerator and the denominator of the fraction in

order to arrive at the “16.66 percent.” The same is also true for the formula used to

calculate the “35.0 percent.” Only by using the correct numbers, which are known

from the facts of the case, and which are correctly stated in the DRO, can we

                                          4
determine that the wrong values have been used to for the valuation of the military

retirement in this DRO.

      Former husband retired from the military on October 31, 2014. Based on

former husband’s retirement statement, former wife determined that her share of the

military retirement under the standard formula provided in Berry v. Berry, 647

S.W.2d 945 (Tex.1983), should be approximately $282.00 per month. However, when

the formula stated in the DRO was applied, the resulting figure is merely $92.00 per

month. Only then did the former wife discover that the DRO gives former husband

a windfall of approximately $190.00 per month for the remainder of his life. (CR 86)

(APP 4)

      On January 6, 2015, former wife filed her “Motion to Correct or Amend

Domestic Relations Order for Military Retirement” requesting clarification of the

formula used in the DRO. (CR 85) (APP 4)

      At a hearing on that motion on February 9, 2015, the former wife presented her

motion for clarification to the trial court. At that time the former husband presented

his motion to dismiss the former wife’s motion because it would be an impermissible

modification of the divorce decree, and therefore the trial court lacked jurisdiction to

consider the motion. The trial court took both motions under advisement. On

February 13, 2015, the trial court entered its order dismissing the former wife’s

motion for lack of jurisdiction.


                                           5
                               ISSUES PRESENTED

                                 First Point of Error

      The trial court erred in granting appellee’s motion to dismiss for lack of

jurisdiction.

                               Second Point of Error

      The trial court abused its discretion in granting appellee’s motion to

dismiss for lack of jurisdiction.

                                Third Point of Error

      The trial court abused its discretion in failing to grant the relief requested

by Appellant to clarify the valuation of the military retirement in the decree of

divorce and the domestic relations order.




                        ARGUMENT AND AUTHORITY

Jurisdiction: Clarification or Modification?

      By granting the motion to dismiss for lack of jurisdiction the Appellant’s

motion to clarify the military retirement, the trial court failed to recognize the subtle

difference between a modification and a clarification of military retirement. (CR148)

(APP 5) Appellee, the former husband, asserts that the former wife is seeking to

modify the apportionment of the community estate’s share of the military retirement.

                                           6
However, the former wife is instead seeking to clarify the valuation of the community

estate’s share of the military retirement. (CR 103) (APP 6) Both parties should be

entitled to reasonable certainty that the community portion of the military retirement

has been valued correctly.

      A trial court's ruling on a post-divorce motion for clarification of a divorce

decree is reviewed for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108,

109 (Tex. 1990) (per curiam); Douglas v. Douglas, 454 S.W.3d 591, 595 (Tex.App.

El Paso, 2014). A trial court abuses its discretion when it acts arbitrarily or

unreasonable or without reference to any guiding rules or principles. Id.

      The trial court’s dismissal for lack of jurisdiction is a question of law that the

court of appeal should review de novo. Tex. Natural Res. Conservation Comm'n v.

IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Guevara v. H.E. Butt Grocery Co., 82

S.W.3d 550, 551 (Tex.App.-San Antonio 2002, pet. denied); Joyner v. Joyner, 352

S.W.3d 746, 749 (Tex.App. San Antonio, 2011). The issue of jurisdiction in this case

turns on whether the Appellant sought to “clarify” or to “modify” the DRO. Appellant

asserts that the DRO is ambiguous because, although there was an attempt to use the

formula set forth in Berry, the DRO failed to use the correct values for the valuation,

and the DRO reduced the Berry formula calculations to percentages without showing

the actual numbers used to performs those calculations. In other words, the DRO

failed to show the full math used for the valuation. Without showing those numbers,


                                           7
and thus without making the valuation capable being verified, the parties can only

guess at what numbers were actually used in the formula.

      Furthermore, any attempt to replicate the valuation set forth in the DRO using

all of the values, which are now known, results in a valuation of the community

portion that is far greater than that provided in the DRO. Consequently, the share

awarded to the former wife by the DRO is about one-third of the correct amount.

      The DRO in this case is a part of the agreement between husband and wife

upon divorce. (CR 85) (APP 1) An agreed property division, although incorporated

into a final divorce decree, is treated as a contract and is controlled by the rules of

construction applicable to ordinary contracts. Allen v. Allen, 717 S.W.2d 311, 313

(Tex. 1986); In re R.F.G., 282 S.W.3d 722, 725 (Tex.App.-Dallas 2009, no pet.). A

latent ambiguity can arise when a contract appears unambiguous on its face, but when

applied to the subject matter with which it deals an ambiguity appears. National

Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520

(Tex.,1995). Such is the manner in which this ambiguity was discovered. It was not

until the final variable was known, that being former husband’s disposable retired

pay, that former wife could perform the final calculation and determine that an error

had been made.

      The primary problem in this case is the failure to correctly utilize the formula

prescribed in Berry v. Berry. All variants of that formula indicated that all original


                                          8
values, that is, the numerators and denominators, etc., of the necessary calculations

be shown. Then let the DFAS perform its function and calculate the former spouses

share of the disposable retired pay. The DRO in this case takes the unusual step of

purporting to perform the calculations of the second and third variables down to

percentages, which had the effect of masking the fact that the incorrect numbers had

been used. The results of those calculations in the DRO cannot be replicated by using

the known number, which are elsewhere stated correctly in the same DRO. We will

never know where the error was made, but the fact that an error has been made is

easily demonstrated.

      In any valuation of the community share of military retirement the relevant

numbers are easily determined from existing facts. In this case, either the wrong

numbers were used in the formula, or there has been mathematical error. Either way,

the result is a miscalculation of the community share of the military retirement.

      It is easily understood that military retirement benefits earned during marriage

are community property. But for many years the courts struggled with valuing the

community property interest when the servicemember was still on active duty at the

time of divorce, or when the servicemember joined the military prior to marriage. The

formula in Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977), was created to

address the issue of apportionment of the community share. The Taggart formula

provides a fraction, the numerator of which is the number of months the


                                          9
servicemember served during marriage and the denominator of which is the total

number of months the servicemember has served in the military at the time of divorce.

Case law stated the formula as follows:

                             months of service              servicemember's
      50%           X        during marriage         X      retirement benefit
                          ------------------------
                               total months
                                 of service

The first variable, fifty percent, indicates that the trial court intends to divide the

community portion equally between the parties. The division may be disproportionate

based on the circumstances presented.

      The Taggart formula was problematic in that it did not recognize that

post-divorce military service belonged to the servicemember spouse's separate estate.

      That changed six years later with Berry v. Berry, and since then Texas law has

clearly mandated that the community estate’s interest in military retirement be valued

as of the date of divorce, and that it include a method for determining what portion

of post-marital service belongs to the member's separate estate. The method used is

to provide that the percentage awarded to the former spouse shall be multiplied by the

benefit earned at the grade and time in service that exists as of the date of divorce,

plus an equal percentage of cost of living increases, if, as, and when received. The

formula therefore changed to:




                                            10
                                months of service                 servicemember's
       50%            X         during marriage            X      retirement benefit
                             ------------------------             as earned by rank
                                  total months                    at time of divorce
                                    of service

With this formula the valuation becomes a matter of plugging in the known values as

of the date of divorce.

       The 2010 version of the Texas Family Law Practice Manual states the formula

in the form for a military retirement DRO as follows:

       "IT IS THEREFORE ORDERED that Former Spouse have judgment against
       and recover from Servicemember, on Servicemember's retirement from the
       United States [branch of service], the amount of disposable retired pay
       calculated as follows:

       [___________] percent [percentage awarded former spouse]

              X              multiplied by

       [___________]                 [number of months of servicemember's service
                                     during marriage]
             ÷                       divided by
       [___________]                 [number of months servicemember has been on
                                     active duty on date of divorce] percent

              X              multiplied by

       [___________] percent [0.025 multiplied by number of full months of
                             servicemember's creditable service toward
                             retirement on divorce divided by 12 1 ] percent

              X              multiplied by

       [___________]                 [servicemember's high-36 month base pay on


       1
           The Defense Finance and Accounting Service has provided this formula post Berry to
more easily allow for this calculation in that servicemembers accrue retirement benefits at the
rate of 2.50% per month multiplied by their highest 36-month base pay.

                                               11
                                 date of divorce] (APP 7)

      divided by Servicemember's monthly gross retired pay at retirement multiplied
      by Servicemember's monthly disposable retired pay at retirement."

      The final variables in the formula, that is, the amount of “Servicemember's

monthly gross retired pay at retirement multiplied by Servicemember's monthly

disposable retired pay at retirement” cannot be known until after the servicemember

has actually retired. Therefore, if the servicemember spouse is still active duty the

actual value of the former spouse’s portion of the military retirement cannot be

accurately calculated until the actual retirement occurs.

      Upon retirement of the servicemember it should then be a simple procedure to

calculate the amount of the former spouse’s share of the military retirement using the

same formula, all of the previously known values, together with the final variable,

which is the disposable retired pay.

      In this case, as of the date of divorce, each of the following facts was known,

and these facts are actually stated in the DRO:

      a.     The parties were married on June 5, 2004. (CR 41) (APP 3)

      b.     The parties were divorced on February 3, 2011. (CR 41) (APP 3)

      c.     During the marriage Respondent served 6 years and 8 months (80 total

             months) of creditable service towards military retirement. (CR 41) (APP

             3)

      d.     As of the date of divorce Respondent had served 18 years and 2 months

                                         12
             (218 total months) of creditable service towards military retirement.

             (CR 41) (APP 3)

      e.     Respondent's high-36 month base pay on date of divorce was $3,322.16.

             (CR 41) (APP 3)

      Since Respondent's retirement on October 31, 2014, the following facts are

known:

      a.     Respondent's monthly gross retired pay at retirement is $2,341.00. (CR

90) (APP 4) [A

      b.     Respondent's monthly disposable retired pay at retirement is $2,243.14.

(CR 90) (APP 4)

The DRO

The DRO entered in this case stated:

      “Award to Former Spouse
      “IT IS THEREFORE ORDERED that Former Spouse have judgment against
      and recover from Servicemember, on Servicemember's retirement from the
      United States Navy, the amount of disposable retired pay calculated as
      follows 50.0 percent multiplied by 16.66 percent multiplied by 35.0 percent
      multiplied by the high-36 month base pay of the Servicemember, which is
      $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on
      the date of divorce, which is 18 years 3 months, determined on the date of
      Servicemember's retirement divided by Servicemember's monthly gross
      retired pay at retirement multiplied by Servicemember's monthly disposable
      retired pay at retirement.” (CR 80) (APP 3)

The DRO in this case fails to state the numbers used to obtain the second percentage,

that is, it fails to state the numerator and the denominator used to calculate the “16.66



                                           13
percent.” The DRO also fails to state the variable used to calculate the third value,

that is, it fails to state the multiplier used to calculate the “35.0 percent.” How those

numbers were calculated we may never know, but Appellant can demonstrate that the

calculation is simply not correct. Thus, the valuation of the community share of the

military retirement benefit was not performed correctly.

Calculation of Retirement Pay

      Using the known values from this case, the former wife’s share of military

retirement should be calculated as follows:

             50.0%              [percentage awarded former spouse]
             X           multiplied by
             80                 [number of months of servicemember's service
                                during marriage]
            X            multiplied by
            218                 [number of months servicemember has been on
                                active duty on date of divorce] percent
            X            multiplied by
      (0.025 x 218 / 12)%       [percentage of servicemember's gross retired pay
                                entitlement if servicemember were allowed to retire
                                on date of divorce, that is, 0.025 multiplied by
                                number of full months of servicemember's
                                creditable service toward retirement on divorce
                                divided by 12] percent
            X            multiplied by
      $3,322.16                 [servicemember's high-36 month base pay on date
                                of divorce]
            ÷            divided by
      $2341.00                  Servicemember's monthly gross retired pay at
                                retirement
            X            multiplied by
      $2,243.14                 Servicemember's monthly disposable retired pay at
                                retirement."

      All calculations are performed as follows:


                                           14
    0.5 x 0.36697 x 0.45416 x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92

Stated another way:

   50% x 36.697% x 45.416% x $3,322.16 ÷ $2,341.00 x $2,243.14 = $288.92

The underlined numbers in each verison shows where the incorrect numbers have

been corrected. This demonstrates how the standard formula provided in Berry should

have been used in this case. The DRO actually contains all of the correct information,

that is, the beginning values, that are to be used in the stated formula. But for some

unknown reason, the DRO fails to use those correct values in the valuation of the

military retirement. And for that reason the DRO is ambiguous.

      The DRO provides, “50.0 percent multiplied by 16.66 percent multiplied by

35.0 percent multiplied by the high-36 month base pay of the Servicemember, which

is $3,322.16, with Servicemember's pay grade, which is E-6, and longevity on the

date of divorce, which is 18 years 3 months . . .” Importantly, we can determine the

intent of the parties and the court from the first number stated, that being the

percentage of the community estate’s portion of the military retirement awarded to

the wife. The DRO clearly states “50.0 percent." This amount coincides with the rule

11 agreement signed by the parties prior to the entry of the final decree.

      From the formula we also know that the second value, stated as “16.66

percent,” should be the product of a fraction, the numerator of which is the “number

of months of servicemember's service during marriage,” which the DRO states is 80,


                                         15
and the denominator of which is the “number of months servicemember has been on

active duty on date of divorce,” which the DRO states is 218. However, 80 divided

by 218 equals 36.697 percent. It does NOT equal 16.66 percent, the product of that

calculation stated in the DRO. Consequently, that portion of the DRO is ambiguous.

      From the formula we also know that the third value, stated as “35.0 percent,”

should be the product of a calculation, the first multiplier of which is 0.025, the

second multiplier of which is the "number of months servicemember has been on

active duty on date of divorce," which the DRO states is 218, which is then divided

by 12. However, 0.025 multiplied by 218 and then divided by 12 equals 45.416

percent. It does NOT equal 35.0 percent, the production of that calculation stated in

the DRO. Consequently, that portion of the DRO is also ambiguous.

      Because the DRO gives all the correct information necessary to calculate the

valuation of the military retirement properly, and then it utterly fails to calculate the

valuation of the military retirement in the proper manner, the DRO is ambiguous. And

thus clarification of the DRO is necessary so that the military retirement is correctly

valued.

      Furthermore, because the valuation of the military retirement by the DRO is

ambiguous, then the trial court should have reviewed DRO in order to aid it in finding

the intent of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); In re

R.F.G., 282 S.W.3d at 725. Whether this DRO is ambiguous is a question of law this


                                           16
court should review de novo. Coker, at 394; see also Shanks v. Treadway, 110 S.W.3d

444, 447 (Tex. 2003). The purpose of the DRO is to create or recognize the former

wife’s rights, and to assign to the former wife the right to receive, her awarded

portion of the military retirement. Quijano v. Quijano, 347 S.W.3d 345, 353â€“54

(Tex.App.-Houston [14th Dist.] 2011, no pet.); see also 29 U.S.C. § 1056(d)(3)(B)(i).

Res judicata applies to final divorce decrees and, under the same logic, to DRO’s.

Baxter V. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). But Appellant’s motion to

clarify the QDRO should not be barred by res judicata if she can demonstrate, as she

has, that a mistake has been made. Gainous v. Gainous, 219 S.W.3d 97, 105

(Tex.App. Houston [1 Dist.],2006). A trial court that renders a divorce decree and a

DRO generally retains the power to clarify the property division made or approved

in those documents. Tex.Fam.Code 9.002, 9.006(a), 9.008. The trial court had

jurisdiction to enter an order clarifying the ambiguities in the DRO in order to give

effect to the division of the property attempted therein, and had a duty to do so. Id.

§ 9.008(b). see also § 9.1045(a) (West 2006); Beshears v. Beshears, 423 S.W.3d 493,

500-01 (Tex.App. Dallas, 2014).

       Appellant therefore requests that the order of the trial court dismissing the

motion of Appellant to clarify the DRO for lack of jurisdiction be reversed. Appellant

requests that the court find that the trial court abused its discretion in failing to grant

the relief requested, and issue clarification of the DRO in which the figures stated


                                            17
therein of 16.66 percent for the calculated value resulting from the number of months

of servicemember's service during marriage divided by number of months

servicemember has been on active duty on date of divorce, be changed to the actual

calculated value of 36.697 percent. [80 ÷ 218 = 36.697%]. Appellant further requests

that the court find that the trial court abused its discretion in failing to grant the relief

requested, and issue clarification of the DRO in which the figure stated therein of

35.0 for the calculated value resulting from 0.025 multiplied by number of full

months of servicemember's creditable service toward retirement on divorce divided

by 12, be changed to the actual calculated value is of 45.416 percent. [0.025 x 218

÷ 12 = 45.416%].

                                        PRAYER

       Appellant prays that this Honorable Court reverse and remand the trial court’s

dismissal of the motion to clarify; that the requested clarification of the DRO be

rendered by the court; and for such other and further relief as this Honorable Court

deems fit to grant.

                                          Respectfully submitted,

                                          The Law Offices of
                                          DONAHO & DOCKERY, P.C.
                                          P.O. Box 459
                                          Floresville, Texas 78114
                                          Tel: 830-393-2700
                                          Fax: 830-393-3029

                                          /s/ Kirk Dockery
                                             18
                                       ________________________________
                                       Kirk Dockery, Attorney in Charge
                                       State Bar No. 05929220
                                       Email: kirkdockery@gmail.com
                                       Scott R. Donaho
                                       State Bar No. 05967755
                                       Email: srdonaho@floresville.net




                         CERTIFICATE OF SERVICE

      I certify that on July 1, 2015, a true and correct copy of the above and
foregoing document was delivered to all counsel of record by the Electronic Filing
Service Provider, as follows:

                                  /s/ Kirk Dockery
                                  Kirk Dockery

DIAZ JAKOB, LLC                               BY ELECTRONIC SERVICE
Jason J. Jakob
State Bar No. 29042933
Email: jjakob@diazjakob.com
The Historic Milam Building
115 E. Travis Street, Suite 333
San Antonio, Texas 78205
Tel.: (210)226-4500
Fax: (210)226-4502




                                         19
                      CERTIFICATE OF COMPLIANCE

      This brief complies with the length limitations of Tex. R. App. P. 9.4(i)(2)(B)
because this brief consists of 4,089 words, excluding the parts of the brief exempted
by Tex. R. App. P. 9.4(i)(1).
                                       /s/ Kirk Dockery
                                       ________________________________
                                       Kirk Dockery




10201B




                                         20
APPENDIX 1
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APPENDIX 2
71
72
73
APPENDIX 3
79
80
81
82
83
84
APPENDIX 4
85
86
87
88
89
90
91
APPENDIX 5
148
APPENDIX 6
103
104
105
106
107
108
109
110
111
APPENDIX 7
Domestic Relations Order [Military Retirement]                                                  Form 25-31

                                    Word                             WP
                                                 Form 25-31

Caveat: Although the military retirement division language may be included in the body of the decree
of divorce, the better practice is to treat military retirement just as any other retirement asset that
requires a qualified domestic relations order (QDRO) would be treated. Because a division order of
military retirement does not fall under the Employee Retirement Income Security Act, it is not a “qual-
ified” order but simply a domestic relations order (DRO). The Defense Finance and Accounting Ser-
vice (DFAS) does not require that the order regarding division of the retirement benefits be contained
wholly in the decree, and the better practice is to have a separate order that specifically treats the divi-
sion of the military retired pay and related military benefits. DFAS may require, however, that the per-
son submitting the retirement division order for approval for direct payment (usually the nonmember
spouse, since an application signed by that spouse must accompany the order) to the nonmember
spouse submit the divorce decree, as well as the DRO that divides the military retirement if it is in a
separate order. However, if the DRO specifically states the date that the parties were divorced, DFAS
can readily ascertain that the parties are or have previously been divorced, and submitting the decree
may be unnecessary.



                       [Caption. See § 3 of the Introduction in volume 1 of this manual.]



                                       Domestic Relations Order
                                            [Military Retirement]

         The Court, having entered a decree of divorce [coincident with the signing of this

domestic relations order/in this case on [date]], finding that the entry of a domestic relations

order (DRO) is necessary to effectuate the terms of that decree of divorce, and further finding

that the entry of a DRO is appropriate, makes the following specific findings and conclusions

of law and enters them as an order in this proceeding.


Findings


         The Court finds, in accordance with the Uniformed Services Former Spouses’ Protec-

tion Act, 10 U.S.C. § 1408, as follows:


         1.     This Court has jurisdiction over [full name of servicemember] (“Servicemember”).
[Include one or both of the following: The residence of Servicemember is in [city, county],




© STATE BAR OF TEXAS                                                                                25-31-1
Form 25-31                                               Domestic Relations Order [Military Retirement]



Texas, other than because of military assignment./Servicemember has consented to the juris-

diction of the Court.]


      2.     Servicemember and [full name of former spouse] (“Former Spouse”) were origi-

nally married on [date], and that marriage lasted for [number] years and [number] months or

more, during which time Servicemember served [number] years and [number] months or

more of creditable service toward retirement.


                      The time in months and years that the parties were married
                      during which the servicemember was earning retirement credit
                      should not be stated to be “ten years or more” or “twenty years
                      or more” but should be the actual years and months of overlap-
                      ping marital service. The ten-year and twenty-year periods are
                      relevant in determining the availability of direct payment from
                      DFAS to the former spouse and the former spouse’s entitle-
                      ment to certain medical and other benefits, respectively. See
                      the practice notes at sections 25.75 and 25.80.

      3.     Servicemember’s Social Security number is ***-**-[last four numbers], [his/her]

address is [address], and [his/her] birth date is [date].


      4.     Former Spouse’s Social Security number is ***-**-[last four numbers], [her/his]

address is [address], and [her/his] birth date is [date].


      5.     The rights of Servicemember under the Servicemembers Civil Relief Act were

fully complied with in this case.


      6.     Servicemember [is/is not] retired from the United States [branch of service] at the
time of this order.


      7.     The award of disposable retired pay made to Former Spouse in this order is made

in compliance with the Uniformed Services Former Spouses’ Protection Act.




25-31-2                                                                                 © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                               Form 25-31




                       Direct payment is available from DFAS only if the parties were
                       married for at least ten years during which the servicemember
                       was also on active duty for at least ten years or in active
                       reserve status and earned at least ten “good years” for reserve
                       retirement credit. If this is not the case, the order must be writ-
                       ten to provide for a constructive trust between the service-
                       member and the former spouse, and taxes must be dealt with
                       because the servicemember will be taxed.

         8.     It is intended by this Court and the parties that the Defense Finance and Account-

ing Service (DFAS) make the payments due to Former Spouse of [her/his] interest in the dis-

posable retired pay awarded in this order directly to Former Spouse.


Terms and Definitions


         With respect to the provisions of this DRO, the Court has used and applied the follow-

ing terms and definitions:


         1.     “Retired pay” means monetary pay to which Servicemember is, or may hereafter

be, entitled to receive on completion of the requisite number of years of creditable service to

be entitled to nondisability retired pay as a result of service in the United States Armed Forces

(active duty, reserve component, or national guard), whether called retired pay, retainer pay,

or retirement pay.


         2.     “Disposable retired pay” has the meaning provided in the Uniformed Services

Former Spouses’ Protection Act (10 U.S.C. § 1408 et seq.).


         3.     “USFSPA” means the Uniformed Services Former Spouses’ Protection Act (10

U.S.C. § 1408 et seq.) in effect on the date of the parties’ divorce.

         4.     “Defense Finance and Accounting Service” (DFAS) means, refers to, and includes

the Secretary of the Department of Defense, the Director of the DFAS, the designated agent of

either of these, and other appropriate subdivisions of the United States Government.




© STATE BAR OF TEXAS                                                                            25-31-3
Form 25-31                                              Domestic Relations Order [Military Retirement]



      5.       “COLA” means the cost-of-living adjustment increases that are made annually to a

military retiree’s retired pay pursuant to 10 U.S.C. § 1401a.


Award to Former Spouse


                                      Select one of the following.


                     Use the following when the former spouse is to receive only a
                     fixed-dollar award. The former spouse will not receive any
                     COLAs thereafter authorized by Congress if a fixed dollar
                     amount is awarded.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the sum of [number] dollars ($[amount]) of Servicemember’s monthly disposable

retired pay.


                     When representing the servicemember, use the following for
                     an active duty servicemember who entered the service before
                     September 8, 1980.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)]   percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber’s service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent    multiplied by [percentage of servicemember’s gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember’s creditable service toward retirement on

divorce divided by 12]   percent multiplied by [servicemember’s base pay on date of divorce]

divided by the amount of the monthly gross retired pay that Servicemember is entitled to

receive at retirement multiplied by the amount of Servicemember’s monthly disposable retired

pay at retirement.


25-31-4                                                                                © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                            Form 25-31




                        When representing a servicemember who has not been in the
                        military for twenty years, calculate the percentage of the ser-
                        vicemember’s entitlement to retired pay taking into account the
                        provisions of the Temporary Early Retirement Authority
                        (TERA), 10 U.S.C. § 1293, which will necessarily have the
                        effect of reducing the former spouse’s share of the anticipated
                        retired pay on divorce. See James N. Higdon, Military Retire-
                        ment and Divorce, chapter 63.2, page 13, State Bar of Texas
                        35th Advanced Family Law Course, August 2009, for a discus-
                        sion of the application of TERA to the calculation of military
                        retired pay in such circumstances.


                                                      Or


                        When representing the former spouse, use the following for an
                        active duty servicemember who entered the service before
                        September 8, 1980.

         IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service],    the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)]      percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber’s service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent       multiplied by [percentage of servicemember’s gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember’s creditable service toward retirement on

divorce divided by 12]      percent multiplied by the base pay of a servicemember with Service-

member’s pay grade and longevity on the date of divorce determined on the date of Service-

member’s retirement divided by Servicemember’s monthly gross retired pay at retirement

multiplied by Servicemember’s monthly disposable retired pay at retirement.




© STATE BAR OF TEXAS                                                                         25-31-5
Form 25-31                                             Domestic Relations Order [Military Retirement]




                   When representing the former spouse, determine the former
                   spouse’s share of the retired pay on divorce as of the date of
                   retirement rather than the date of divorce, limited, however, to
                   the pay grade and longevity of the servicemember on the date
                   of divorce. Otherwise the former spouse will not derive the
                   benefit of the annual active duty COLAs (in accordance with
                   Berry v. Berry, 647 S.W.2d 945 (Tex. 1983)) that are autho-
                   rized by Congress. See James N. Higdon, Military Retirement
                   and Divorce, chapter 63.2, State Bar of Texas 35th Advanced
                   Family Law Course, August 2009, for a discussion of this issue
                   in the calculation of military retired pay.


                                                 Or


                   When representing the servicemember, use the following for
                   an active duty servicemember who entered the service on or
                   after September 8, 1980.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the amount of disposable retired   pay calculated as follows: [percentage awarded

former spouse]   percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber’s service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent   multiplied by [percentage of servicemember’s gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember’s creditable service toward retirement on

divorce divided by 12]   percent multiplied by [servicemember’s high-36 month base pay on

date of divorce] divided   by Servicemember’s monthly gross retired pay at retirement multi-

plied by Servicemember’s monthly disposable retired pay at retirement.


                                                 Or




25-31-6                                                                               © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                                   Form 25-31




                         When representing the former spouse, use the following for an
                         active reservist servicemember who entered the service on or
                         after September 8, 1980.
                         Because the servicemember’s high-36 month base pay at the
                         time of retirement for his or her pay grade and longevity on the
                         date of divorce cannot be determined on the date of divorce
                         but must wait for his or her retirement, it will probably be nec-
                         essary to “clarify” the DRO at or after the date the servicemem-
                         ber retires because DFAS may not accept for processing an
                         order that contains the “high-36 month base pay at the time of
                         retirement” hypothetical. Therefore, both parties should be
                         notified that a clarification suit will probably have to be filed and
                         a clarifying order entered at that time.

         IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service],    the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse]         percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of months of servicemem-

ber’s service during marriage divided by number of months servicemember has been on active

duty on date of divorce] percent          multiplied by [percentage of servicemember’s gross retired

pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multi-

plied by number of full months of servicemember’s creditable service toward retirement on

divorce divided by 12]        percent multiplied by the high-36 month base pay of a servicemember

with Servicemember’s pay grade and longevity on the date of divorce determined on the date
of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at

retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.


                                                          Or


                         Use the following for an active duty servicemember who is
                         retired at the time of divorce whether representing the service-
                         member or the former spouse.

         IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [percentage of community interest in servicemember’s military retired pay



© STATE BAR OF TEXAS                                                                                25-31-7
Form 25-31                                             Domestic Relations Order [Military Retirement]



entitlement, that is, number of months of servicemember’s service during marriage divided by

total number of months of servicemember’s service at retirement]       percent multiplied by Ser-

vicemember’s monthly disposable retired pay.


                                                  Or


                     When representing the servicemember, use the following for
                     an active reservist servicemember who entered the service
                     before September 8, 1980.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)]   percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member’s total retirement points on divorce divided by 360]      percent multiplied by [service-

member’s base pay on date of divorce] divided by Servicemember’s monthly gross retired pay

at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.


                                                  Or


                     When representing the former spouse, use the following for an
                     active reservist servicemember who entered the service before
                     September 8, 1980.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the amount of retired pay then equal to [percentage awarded former spouse (usu-

ally 50 percent)]   percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of retirement points earned




25-31-8                                                                               © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                             Form 25-31



during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member’s total retirement points on divorce divided by 360] percent multiplied by the base pay

of a servicemember with Servicemember’s pay grade and longevity on the date of divorce

determined on the date of Servicemember’s retirement divided by Servicemember’s monthly

gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay

at retirement.


                                                     Or


                         When representing the servicemember, use the following for
                         an active reservist servicemember who entered the service on
                         or after September 8, 1980.

         IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service],    the amount of disposable retired pay calculated as follows: [percentage awarded

former spouse]         percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember on date

of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement

if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member’s total retirement points on divorce divided by 360]         percent multiplied by [service-

member’s high-36 month base pay on the date of divorce]           divided by Servicemember’s

monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable

retired pay at retirement.


                                                     Or




© STATE BAR OF TEXAS                                                                           25-31-9
Form 25-31                                                Domestic Relations Order [Military Retirement]




                   When representing the former spouse, use the following for an
                   active reservist servicemember who entered the service on or
                   after September 8, 1980.
                   Because the servicemember’s high-36 month base pay at the
                   time of retirement for his or her pay grade and longevity on the
                   date of divorce cannot be determined on the date of divorce
                   but must wait for his or her retirement, it will probably be nec-
                   essary to “clarify” the DRO at or after the date the servicemem-
                   ber retires, because DFAS may not accept for processing an
                   order that contains the “high-36 month base pay at the time of
                   retirement” hypothetical. Therefore, both parties should be
                   notified that a clarification suit will probably have to be filed and
                   a clarifying order entered at that time.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember, on Servicemember’s retirement from the United States [branch

of service], the amount of disposable retired     pay calculated as follows: [percentage awarded

former spouse]   percent multiplied by [percentage of community interest in servicemember’s

military retired pay entitlement on date of divorce, that is, number of retirement points earned

during marriage divided by total number of retirement points earned by servicemember at

divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if

servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by service-

member’s total retirement points on divorce divided by 360]          percent multiplied by the high-36

month base pay of a servicemember with Servicemember’s pay grade and longevity on the

date of divorce determined on the date of Servicemember’s retirement divided by Service-
member’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly

disposable retired pay at retirement.


                                                    Or


                   Use the following for a reservist servicemember who is retired
                   and receiving retired pay at the time of divorce whether repre-
                   senting the servicemember or the former spouse.

      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-
cent multiplied by [number of servicemember’s retirement points earned during marriage



25-31-10                                                                                   © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                              Form 25-31



divided by total number of servicemember’s retirement points at retirement] percent multiplied

by Servicemember’s monthly disposable retired pay.


                                                      Or


                       Important: The attorney representing a servicemember who is
                       retired but not accruing points or receiving retired pay will want
                       to have the “retired pay” determined on the date of divorce
                       rather than using a percentage of retired pay at retirement. In
                       the latter formulation, the former spouse would receive the
                       benefit of the cost-of-living increases that accrue from the date
                       of the “retirement” or divorce to the date when the service-
                       member begins receiving retired pay, usually at age sixty. (In
                       2009, Congress passed a law to allow reservists and guards-
                       men who were recalled to and performed active duty on and
                       after January 30, 2008, to be entitled to receive retired pay
                       earlier than age sixty, at their election.)


                       Use the following for a reservist servicemember who is retired
                       and not accruing retirement points but not receiving retired pay
                       at the time of divorce, that is, one who is no longer a drilling
                       reservist but has not yet become entitled to receive retired pay.

         IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [percentage of community interest in servicemember’s military retired pay

entitlement on date of divorce, that is, number of servicemember’s retirement points earned

during marriage divided by total number of servicemember’s retirement points at divorce] per-

cent multiplied by [0.025 multiplied by servicemember’s total retirement points earned on date

of divorce divided by 360]      percent multiplied by [servicemember’s high-36 month base pay at

divorce]    divided by Servicemember’s gross retired pay at retirement multiplied by Service-

member’s disposable retired pay at retirement.


                                                      Or


                       Use the following when representing the former spouse of a
                       reservist servicemember who is retired and not accruing retire-
                       ment points but not receiving retired pay at the time of divorce.




© STATE BAR OF TEXAS                                                                          25-31-11
Form 25-31                                            Domestic Relations Order [Military Retirement]



      IT IS THEREFORE ORDERED that Former Spouse have judgment against and

recover from Servicemember [percentage awarded former spouse (usually 50 percent)] per-

cent multiplied by [percentage of community interest in servicemember’s military retired pay

entitlement on date of divorce, that is, number of servicemember’s retirement points earned

during marriage divided by total number of servicemember’s retirement points at divorce] per-

cent multiplied by Servicemember’s disposable retired pay at retirement.


                           Select one of the following COLA provisions.


                    Use the following if the former spouse is to receive COLAs.

      IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former

Spouse each month the calculated percentage of Servicemember’s disposable retired pay at

retirement, together with all COLAs applicable thereto, payable IF, AS and WHEN received

by Servicemember.


                  Use the following if the former spouse is not to be awarded
                  and receive COLAs.

      IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former

Spouse each month the fixed dollar award out of Servicemember’s disposable retired pay at

retirement, payable IF, AS and WHEN received by Servicemember, but Former Spouse shall

not be entitled to receive any COLAs related thereto.


                  Continue with the following when representing the former
                  spouse if the court will include this language, since it protects
                  the interest being awarded to the former spouse from the
                  effects of VA waiver and/or the servicemember’s application
                  for combat-related special compensation (CRSC) (10 U.S.C.
                  § 1413a).

      IT IS FURTHER ORDERED AND DECREED that the award herein shall in no event

be less than [number] dollars ($[amount]) per month, together with all COLAs hereafter appli-

cable thereto, of Servicemember’s retired pay. The Court recognizes, in making this award,

that DFAS, pursuant to the USFSPA, is authorized to pay Former Spouse only the herein-



25-31-12                                                                              © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                           Form 25-31



awarded percentage of Servicemember’s “disposable retired pay,” and this Order, as to DFAS,

should be so construed.


                       Include the following if applicable.
                       If the former spouse is to be awarded the right to receive the
                       servicemember’s Survivor Benefit Plan (SBP) annuity benefits,
                       a decision must be made about who is to pay for it. If the
                       former spouse is to pay the full cost of the SBP premiums, the
                       simplest way to accomplish this result is to adjust the former
                       spouse’s percentage share of the disposable retired pay. The
                       attorney who is not adequately informed on this issue should
                       consult with someone who fully understands this aspect of
                       retired pay calculation before reaching an agreement on this
                       adjustment. If the former spouse’s share is to be adjusted to
                       provide for the former spouse’s paying all of the cost of the
                       monthly SBP premium, something like the following should be
                       inserted at this point in the order unless the servicemember is
                       already retired.

         IT IS FURTHER ORDERED that the foregoing calculated percentage awarded Former

Spouse shall further be reduced, as necessary, to provide for Former Spouse’s payment of all

of the monthly Survivor Benefit Plan premium cost.


                                         Continue with the following.

         IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired

pay of Servicemember is the sole and separate property of Servicemember.

Amounts in Excess of 50 Percent


         IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take

effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Former Spouse the

maximum amount allowable under the USFSPA and Servicemember shall be responsible for

paying the balance of the award each month to Former Spouse, and it is accordingly

ORDERED.

        If DFAS is not allowed to pay Former Spouse the full amount of Former Spouse’s enti-

tlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within

seven days of being notified by Former Spouse that Former Spouse is not receiving the full


© STATE BAR OF TEXAS                                                                       25-31-13
Form 25-31                                             Domestic Relations Order [Military Retirement]



amount of Former Spouse’s interest in the retired pay, to execute and deliver to DFAS all

forms or documents that may then be necessary to effect an allotment payable to Former

Spouse in the amount of the difference between the amount being paid directly to Former

Spouse by DFAS and the full amount of Former Spouse’s interest in the retired pay. Service-

member is FURTHER ORDERED to keep and maintain in full force and effect any allotment

required by this provision, payable to Former Spouse at [address, city, state, zip code], or such

other address as Former Spouse may hereafter specify in writing, until such time as Former

Spouse begins receiving Former Spouse’s full separate-property share of Servicemember’s

disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled

by Servicemember if and when Former Spouse begins receiving, and for as long as Former

Spouse is receiving, Former Spouse’s full separate-property share of Servicemember’s dispos-

able retired pay directly from DFAS, but only in that event or to avoid double payment of

sums.

                            Include the following paragraph if applicable.

        Since Former Spouse has been awarded the right to receive that share attributable to the

interest awarded to Former Spouse herein of any and all COLAs or other increases in the

monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from

DFAS [her/his] full share of the retired pay herein awarded to Former Spouse, if and when

COLAs are made to the retired pay received by Servicemember, Servicemember is hereby

ORDERED to execute and deliver to DFAS all forms or documents that may then be neces-

sary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-

and-cents equivalent of that COLA attributable to Former Spouse’s share of that disposable

retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if

applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working

days of the date Servicemember is notified by DFAS of the effective date of each COLA to

the monthly retired pay payment.


25-31-14                                                                              © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                          Form 25-31



Constructive Trust


         IT IS FURTHER ORDERED that Servicemember be and is hereby designated a con-

structive trustee for the benefit of Former Spouse for the purpose of receiving the retired pay

awarded herein to Former Spouse as Former Spouse’s sole and separate property, and Ser-

vicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to

Former Spouse at [her/his] last known address by negotiable instrument that portion of each

monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allot-

ment) by DFAS within three days of the receipt of any such payments by Servicemember. All

payments made directly to Former Spouse by DFAS shall be a credit against this obligation.


         For purposes of this order, Servicemember is specifically directed, on penalty of con-

tempt, to pay Former Spouse’s interest in the disposable retired pay as ordered in this order,

and IT IS SO ORDERED. Servicemember is specifically directed that [he/she] is not relieved

of that obligation except to the extent that [he/she] is specifically notified that 100 percent of

Former Spouse’s interest in the retirement benefit has been directly paid by DFAS, and IT IS

SO ORDERED.


         IT IS FURTHER ORDERED that any election of benefits that may hereafter be made

by Servicemember shall not reduce the amount equal to the percentage of the retired pay or

the amount of the retired pay the Court has herein awarded to Former Spouse, except as pro-

vided by federal law and prohibited from being changed by a state court order. In this regard,

IT IS FURTHER ORDERED that Servicemember shall not merge [his/her] military retired

pay with any other pension and shall not pursue any course of action that would defeat,

reduce, or limit Former Spouse’s right to receive Former Spouse’s full separate-property share

of Servicemember’s retired pay as awarded in this order, unless otherwise ordered herein.




© STATE BAR OF TEXAS                                                                      25-31-15
Form 25-31                                            Domestic Relations Order [Military Retirement]



Death


        IT IS ORDERED that the payment of the retired pay awarded in this order to Former

Spouse shall continue until the death of Servicemember or Former Spouse.


Retiree Account Statements and Privacy Waiver


        IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to

Former Spouse at [former spouse’s mailing address], or such other address as Former Spouse

may hereafter specify in writing, a true and correct legible copy of each Retiree Account

Statement received by Servicemember from DFAS within five days of its receipt.


        IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may

be required for Former Spouse to obtain information relating to Servicemember’s date of

retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or

other information that may be required to enforce this award or to revise this order to make it

enforceable.


                                Include the following if applicable.

Retirement


        IT IS ORDERED that Servicemember shall notify Former Spouse of [his/her] applica-

tion for retired pay, and provide Former Spouse with a true copy of [his/her] Application for

Retired Pay Benefits, on the date [he/she] applies for those benefits. This notification shall be

mailed by Servicemember to Former Spouse at [her/his] last known address. Servicemember

is FURTHER ORDERED to provide to Former Spouse a true and correct copy of the first

Retiree Account Statement received by [him/her] within five days of its receipt.


                                   Continue with the following.




25-31-16                                                                             © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                       Form 25-31



Application for Direct Payment of Retired Pay


         Former Spouse is hereby directed to apply for Former Spouse’s entitlement to a portion

of Servicemember’s retired pay by contacting the DFAS Legal Department, completing the

Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it

along with a certified copy of this DRO (certified within ninety days of its delivery to DFAS)

and a photocopy of the parties’ marriage certificate to: DFAS-HGA-CL, Assistant General

Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by

certified mail, return receipt requested.


                       DD Form 2293 can be accessed and downloaded at www
                       .dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf.

Taxes


         IT IS FURTHER ORDERED that Former Spouse shall include in [her/his] gross

income for [her/his] taxable years of receipt all retired pay received by Former Spouse pursu-

ant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Service-

member shall not include such benefits in Servicemember’s gross income for such taxable

years.




© STATE BAR OF TEXAS                                                                   25-31-17
Form 25-31                                           Domestic Relations Order [Military Retirement]



Survivor Benefit Plan


                 Important: If being awarded, it is mandatory that the order
                 state clearly that Survivor Benefit Plan (SBP) benefit coverage
                 is being awarded to the former spouse, to the parties’ children,
                 or to both, as applicable.
                 Payment of the SBP monthly premiums is deducted from the
                 gross retired pay by DFAS before DFAS applies the former
                 spouse percentage, that is, divides the retired pay between the
                 former spouse and the servicemember. If the attorney does
                 not want the spouses to share in the cost and wants the former
                 spouse to pay all of the cost of the SBP annuity, the premium
                 should be deducted from the former spouse’s share by reduc-
                 ing the percentage, or the former spouse can pay the service-
                 member each month (or other frequency period) for the
                 coverage. Ensure that the former spouse pays only his or her
                 share of the premium. For instance, if the former spouse is not
                 receiving 50 percent of total retired pay, the former spouse will
                 not be paying 50 percent of the premium, but will be paying
                 only the percentage of the disposable pay that has been
                 awarded to the former spouse. If the former spouse remarries
                 before age fifty-five, his or her entitlement to be a SBP benefi-
                 ciary is suspended for the duration of that marriage, but the
                 former spouse can, on the termination of that marriage, peti-
                 tion DFAS for reinstatement of the suspended benefit. During
                 the period of the suspended benefit, DFAS should, if timely
                 notified, also suspend the payment of the monthly premiums.
                 A servicemember may designate only one class of beneficiary
                 for the survivor benefits. Thus, if a former spouse beneficiary
                 has been designated, a new spouse cannot be designated as
                 a “spouse beneficiary” unless the former spouse is no longer
                 an eligible beneficiary. Also, the servicemember is not permit-
                 ted to award a fractional interest to the former spouse and
                 leave a portion for a future spouse. DFAS will pay the survivor
                 benefit to only the designated beneficiary(ies), i.e., spouse,
                 spouse and children, former spouse or former spouse and chil-
                 dren, on the death of the servicemember. Generally, the desig-
                 nation, once made, is irrevocable.


                                   Select one of the following.


                 Use the following paragraph if the servicemember is retired,
                 the spouse is currently designated as a spouse beneficiary of
                 servicemember’s SBP, and the spouse is to be redesignated
                 as a former spouse beneficiary.

      The Court further finds that Former Spouse is presently named a spouse beneficiary of

Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the

Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember’s election

to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by


25-31-18                                                                             © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                            Form 25-31



Former Spouse’s being designated as a former spouse beneficiary and that Former Spouse’s

designation as a former spouse beneficiary should not hereafter be modified, amended, with-

drawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO

ORDERED.


                                                     Or


                       Use the following paragraph if the servicemember is not retired
                       and the spouse is to be designated as a former spouse benefi-
                       ciary of the SBP.

         The Court further finds that Former Spouse should be designated as a former spouse

beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to

include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember

is ordered to designate Former Spouse as a former spouse beneficiary of the Survivor Benefit

Plan and that Former Spouse’s designation as a former spouse beneficiary should not hereaf-

ter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former

Spouse’s lifetime, and IT IS SO ORDERED.


                                                     Or


                       If an election is made to have the parties’ children covered as
                       beneficiaries of the SBP, recognize that the coverage will con-
                       tinue only as long as one or more of the children are under the
                       age of eighteen; the coverage can be continued until age
                       twenty-one if the child(ren) are enrolled in college or another
                       qualifying educational institution. If electing such a coverage,
                       use the following as applicable.

         The Court further finds that [the parties’ child[ren]/Former Spouse and the parties’

child[ren]] should be designated as [a child beneficiary/child beneficiaries/former spouse and

child beneficiaries] of Servicemember’s Armed Forces Survivor Benefit Plan (which is

deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Ser-

vicemember is ordered to designate [the parties’ child[ren]/Former Spouse and the parties’

child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of



© STATE BAR OF TEXAS                                                                        25-31-19
Form 25-31                                            Domestic Relations Order [Military Retirement]



the Survivor Benefit Plan and that the designation of [the child[ren]/Former Spouse and the

child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries]

should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember

during the child[ren]’s eligibility [include if applicable: or Former Spouse’s lifetime], and IT

IS SO ORDERED.


                                                 Or


                  Although it is not necessary to specifically provide that there
                  will be no SBP former spouse coverage for the former spouse
                  since the failure to award the SBP benefit at the time of divorce
                  is res judicata on the issue (In re A.E.R., 2006 WL 349695
                  (Tex. App.—Fort Worth 2006) (mem. op.)), it is nevertheless
                  recommended that the following paragraph be included to spe-
                  cifically address the benefit.

      The Court further finds that Former Spouse should not be designated as a former

spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan, and IT IS SO

ORDERED.


                   Continue with the following if the survivor benefit is awarded.

      IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former

Spouse as a former spouse beneficiary of Servicemember’s Survivor Benefit Plan. IT IS FUR-

THER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed desig-

nated, to the extent permitted by law, a former spouse beneficiary of Servicemember’s

Survivor Benefit Plan to receive


                                   Include one of the following.

the highest Survivor Benefit Plan entitlement allowed by law.


                                                 Or

[number] dollars ($[amount]) per month.


                                                 Or



25-31-20                                                                              © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                         Form 25-31



the percentage equal to the percentage of Servicemember’s disposable retired pay awarded

Former Spouse in this order.


                                                 Or

[set out other formula for determination of share].


                                     Continue with the following.

         To the extent that Servicemember fails or otherwise refuses to cooperate in filing the

documents required to elect to designate Former Spouse as a former spouse beneficiary of

Servicemember’s Survivor Benefit Plan, Former Spouse is directed to apply for Former

Spouse’s entitlement to be deemed a former spouse beneficiary of Servicemember’s Armed

Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court’s deemed

election pursuant to 10 U.S.C. § 1447 et seq., completing a DD Form 2656-10 to effect the

deemed election, and sending it, along with a certified copy of this order, to U.S. Military

Annuitant Pay, P.O. Box 7131, London, KY 40742-7131 by certified mail, return receipt

requested. Former Spouse’s failure to register [her/his] deemed election within one year of

the date this DRO is signed may, if not will, forever bar such an election for Former Spouse.


         IT IS ORDERED that Servicemember shall not during Former Spouse’s lifetime mod-

ify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a
former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan.




© STATE BAR OF TEXAS                                                                     25-31-21
Form 25-31                                           Domestic Relations Order [Military Retirement]




                  DD Form 2656-1, the form for a servicemember to make a vol-
                  untary election for former spouse and/or child coverage, can
                  be accessed and downloaded at www.dtic.mil/whs/
                  directives/infomgt/forms/eforms/dd2656-1.pdf.
                  DD Form 2656-10, the form for a former spouse to effect a
                  deemed election for former spouse and/or child coverage, can
                  be accessed and downloaded at www.dtic.mil/whs/
                  directives/infomgt/forms/eforms/dd2656-10.pdf.
                  One of these forms must be sent to DFAS at the London KY
                  address, along with a certified copy of the decree of divorce
                  and/or DRO, to register the former spouse as a former spouse
                  beneficiary within one year of the date of the signing of the
                  decree of divorce. Failure to do so within the one-year period
                  will probably bar the former spouse from former spouse cover-
                  age.

Medical and Commissary Benefits


                  The following provision for medical and commissary benefits is
                  applicable only under certain circumstances. See the practice
                  notes at section 25.80.

      The Court further finds that Former Spouse is entitled to receive medical and dental

care under the terms of 10 U.S.C. section 1071 et seq. and to commissary and post exchange

privileges to the same extent and on the same basis as a surviving spouse of a retired member

of the United States Armed Forces following the date the Final Decree of Divorce is signed.


Continued Jurisdiction and Clarification


                  The following provision may be added if the parties were mar-
                  ried for ten or more years during which the servicemember
                  performed ten or more years of active/qualifying reserve duty.
                  Otherwise, it should not be included in the order since DFAS
                  will not, under current law, pay the former spouse’s share of
                  retired pay directly to her/him in those circumstances.

      Although the Court and the parties intend that DFAS make direct payments to Former

Spouse of Former Spouse’s interest in the disposable retired pay awarded herein, IT IS FUR-

THER ORDERED that, if this order does not qualify for direct payment, Servicemember shall

cooperate and do all things necessary to aid Former Spouse in obtaining a clarification of this
order that will qualify for direct payment of Former Spouse’s interest in the disposable retired




25-31-22                                                                            © STATE BAR OF TEXAS
Domestic Relations Order [Military Retirement]                                                                                                                                                          Form 25-31



pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to

enter such a clarifying order.


                                     Continue with the following.

         Without affecting the finality of the Final Decree of Divorce or this Domestic Relations

Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas

Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO

ORDERED.



SIGNED on ________________________________.


                                                      _ ______ _____ ______ ______ _____ ______ ______ _____ ______ _____ _ _____ _____ ______ ______ _____ ______ _____ ______ ______ _____ ___ ___ _____ ______ _____ ______ ______ _____ ______ ___
                                                      JUDGE PRESIDING




© STATE BAR OF TEXAS                                                                                                                                                                                               25-31-23
