Opinion issued May 5, 2020




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-19-00790-CV
                            ———————————
                       MARRITA MURPHY, Appellant
                                        V.

                     DANIEL JUDE LEVEILLE, Appellee


                    On Appeal from the 324th District Court
                           Tarrant County, Texas1
                     Trial Court Case No. 324-664298-19


                          MEMORANDUM OPINION

      Appellant, Marrita Murphy, proceeding pro se, appeals from the trial court’s

order denying her motion to amend, clarify, or enforce a divorce decree and domestic


1
      The Texas Supreme Court transferred this appeal to this Court from the Court of
      Appeals for the Second District of Texas. See TEX. GOV’T CODE § 73.001
      (authorizing transfer of cases between courts of appeals).
relations order. She asserts that her former spouse, appellee Daniel Jude Leveille,

failed to name her as the survivor beneficiary of his military retirement plan. In three

issues, Murphy contends that the trial court erred in denying her motion and erred in

concluding that she failed to invoke a deemed election for survivor benefit coverage.

      We affirm.

                                     Background

      Leveille and Murphy were married in 1987. In 2000, Leveille completed 20

years of creditable military service. On April 22, 2001, Leveille, a colonel in the

United States Air Force (Reserve) (“USAF”), submitted a Reserve Component

Survivor Benefit Plan (“SBP”) election to the Defense Finance and Accounting

Service (“DFAS”).2 Leveille’s SBP election named Murphy as spouse beneficiary.

In 2005, Leveille filed a petition for divorce. On August 30, 2007, the parties entered

into a Mediated Settlement Agreement (“MSA”). On August 31, 2007, the trial court

took judicial notice of the MSA and rendered a divorce, to be reduced to a writing

at a later date. On November 10, 2007, Leveille married Rhonda Leveille.

      On January 18, 2008, the trial court signed a Final Decree of Divorce and a

Domestic Relations Order, effectuating a property division between Leveille and



2
      The Survivor Benefit Plan is a Department of Defense sponsored program that
      allows an eligible servicemember to elect to provide an annuity, payable upon the
      servicemember’s death, to a spouse, former spouse, or child. See 10 U.S.C.
      §§ 1447–1455.
                                           2
Murphy. Murphy moved to modify the decree, asserting that it did not comport with

the terms of the MSA.3 The MSA provided that Murphy was to receive “1/2 of

Respondent’s [Murphy’s] [sic] interest in [Leveille’s Federal Employees Retirement

System (“FERS”)4 benefits] and [h]er 1/2 of the community portion of his USAF

retirement with right of survivorship.”5        Murphy argued that the survivorship

provision applied to both Leveille’s FERS benefits and to his USAF retirement, and

thus the trial court erred in its decree and order in granting her a right of survivorship

only in Leveille’s USAF retirement.6 An arbitrator ruled that Murphy was entitled

to “survivor benefits” with respect to both the FERS and USAF plans and that if

Murphy “were able to obtain a survivor’s benefit plan payable to her[], it would be

necessary for her to do so at her own expense.”7

      On March 24, 2008, the trial court rendered an Amended Final Decree of

Divorce (“Amended Final Decree”). In the Amended Final Decree, the trial court

awarded Leveille, as his sole and separate property, as pertinent here:




3
      Murphy v. Leveille, No. 2-08-130-CV, 2009 WL 2619857, at *1 (Tex. App.—Fort
      Worth Aug. 26, 2009, no pet.) (mem. op.).
4
      FERS is a civil service retirement plan that provides benefits from three different
      sources: Basic Benefit Plan, Social Security, and Thrift Savings Plan.
      https://www.opm.gov/retirement-services/fers-information/.
5
      Id. at *2.
6
      Id.
7
      Id.

                                            3
      5.     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 [Leveille’s]
      service in the [USAF] . . . , including any accrued unpaid bonuses,
      disability plan or benefits, Thrift Savings Plan or other benefits existing
      by reason of or as a result of [Leveille’s] past employment prior to April
      9, 1987, present, or future employment after August 31, 2007, except
      that portion of [Leveille’s] U.S. military retirement and Thrift Savings
      Plan that have been awarded in this decree to [Murphy] as more
      particularly specified in the domestic relations order signed coincident
      with this decree and incorporated verbatim in it by reference. Petitioner
      will not make any election under the [FERS] or the [USAF] Retirement
      Plan that would reduce the amounts awarded to [Murphy].

In addition, the trial court awarded Murphy, as her sole and separate property, as

applicable here:

      5.     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 [Leveille’s]
      service in the [USAF] from date of marriage, that being April 9, 1987
      up to date of divorce, that being August 31, 2007, and specifically
      excluding that portion of [Leveille’s] U.S. military retirement that has
      been awarded in this decree to [Leveille] as more particularly specified
      in the domestic relations order signed coincident with this decree and
      incorporated verbatim in it by reference.

The trial court further ordered that “each party shall [timely] complete any forms

necessary to effectuate the terms” of the Amended Final Decree.




                                          4
      On July 1, 2008, the trial court signed an Amended Domestic Relations Order

(“Amended DRO”),8 ordering that, although Leveille had not yet retired from the

USAF, the following would apply to his future retirement benefits:

      Award to Nonmember Spouse
            IT IS ORDERED that [Murphy] is awarded fifty percent of
      [Leveille’s] disposable military retired pay[9] the member would have
      received had the member become eligible to receive retired pay on
      August 31, 2007. . . . The parties stipulate that the date of marriage is
      April 9, 1987 and the date of divorce is August 31, 2007 . . . . IT IS
      FURTHER ORDERED that DFAS pay [Murphy] each month, to the
      extent allowed by law, the calculated percentage of [Leveille’s]
      disposable retired pay at retirement, together with all cost-of-living
      adjustments applicable thereto, payable, IF, AS, and WHEN received
      by [Leveille].
      ....
      Constructive Trust
            IT IS FURTHER ORDERED that [Leveille] be and is hereby
      designated a constructive trustee for the benefit of [Murphy] for the
      purpose of receiving the retired pay awarded herein to [Murphy] as
      [Murphy’s] sole and separate property, and [Leveille] be and is hereby
      ORDERED, on receipt thereof, to deliver by first-class mail to
      [Murphy] at her last known address by negotiable instrument that
      portion of each monthly retired pay payments awarded to [Murphy]
      herein not paid directly (or by allotment) by DFAS within three days of
      the receipt of any such payments by [Leveille]. All payments made
      directly to [Murphy] by DFAS shall be a credit against this obligation.




8
      A DRO “is a species of post-divorce enforcement order.” In re N.T.P., 402 S.W.3d
      13, 23 (Tex. App.—San Antonio 2012, no pet.). Its purpose is to create or recognize
      an alternate payee’s right, or to assign an alternate payee the right, to receive benefits
      payable to a participant under a retirement plan. Id.
9
      “Disposable retired pay” is the total monthly amount of retirement pay to which a
      member is entitled, less applicable exclusions. 10 U.S.C. § 1408(a)(4).
                                              5
           For purposes of this order, [Leveille] is specifically directed, on
      penalty of contempt, to pay [Murphy’s] interest in the disposable retired
      pay as ordered in this order, AND IT IS SO ORDERED. . . .
      Death
             IT IS ORDERED that the payment of the disposable retirement
      pay awarded in this order to Murphy shall continue until the death of
      [Leveille] or [Murphy]. [Murphy] has the option of exercising her
      right of survivorship.
      ....
      Retirement
            IT IS ORDERED that [Leveille] shall notify [Murphy] of his
      application for retired pay, and provide [Murphy] with a true copy of
      his Application for Retired Pay Benefits, on the date he applies for those
      benefits. . . .
      Continued Jurisdiction and Clarification
            Without affecting the finality of the [Amended Final Decree] or
      [Amended DRO], 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.
             Although the Court and the parties intend that DFAS make direct
      payments to [Murphy] of [Leveille’s] interest in the disposable retired
      pay awarded herein, IT IS FURTHER ORDERED that, if this order
      does not qualify for direct payment, [Leveille] and [Murphy] shall
      cooperate and do all things necessary to aid the parties in obtaining a
      clarification of this order that will qualify for direct payment of
      [Murphy’s] interest in the disposable retired pay awarded in this order.
      IT IS FURTHER ORDERED that this Court reserves jurisdiction to
      enter such a clarifying order.

(Emphasis added.) Thus, the trial court ordered Leveille to pay Murphy a portion of

his disposable retirement pay, until his or her death. It granted Murphy “the option”

of exercising her right of survivorship. At issue is Murphy’s right of survivorship.



                                          6
      In her previous appeal, Murphy argued that the trial court’s Amended Final

Decree and Amended DRO still did not comport with the terms of the MSA with

respect to her right of survivorship.10 In affirming the Amended Final Decree and

amended orders, the court of appeals concluded:

      The trial court’s [Amended Final Decree], like the first decree, does not
      mention Murphy’s survivorship rights. But the “Amended Retirement
      Benefits Court Order for Division of [FERS] Benefits” states that
      “Murphy is awarded a former spouse survivor annuity,” and the
      [Amended DRO] provides that, with regard to Leveille’s [USAF]
      benefits, “the disposable retirement pay awarded in this order to
      [Murphy] shall continue until the death of [Leveille] or [Murphy].
      [Murphy] has the option of exercising her right of survivorship.”
      Murphy argues that the trial court erred by failing to expressly award
      her survivor benefits in the [Amended Final Decree] and by failing to
      order Leveille to pay for her survivor benefits. But the trial court’s
      amended orders do specifically provide for Murphy’s survivorship
      benefits, and the decree states that both orders are “incorporated
      verbatim in [the Amended Final Decree] by reference.” Murphy does
      not explain why this incorporation by reference was inadequate.
      Further, the mediator ruled in binding arbitration that if Murphy “were
      able to obtain a survivor’s benefit plan payable to her . . . it would be
      necessary for her to do so at her own expense.” To the extent that the
      trial court’s orders require Murphy to obtain survivor benefits at her
      own expense, the orders are consistent with the mediator’s arbitration
      ruling.[11]

(Emphasis added.)

      In the instant appeal, Murphy asserts that, in December 2008, she sent a letter

to DFAS, seeking to establish former-spouse survivor benefits under the SBP, along


10
      Murphy, 2009 WL 2619857, at *2.
11
      Id. at *2–4 (emphasis added).

                                         7
with the requisite form and copies of the MSA and Amended DRO.12 It is undisputed

that she did not receive notice from DFAS that a “deemed former spouse election”

had been established.13

      On March 10, 2017, Leveille, having then reached retirement age, filed an

Application for Retired Pay (“Application”) with DFAS. In his Application, he

named his then-current spouse, Rhonda Leveille, as his survivor beneficiary under

the SBP, and DFAS established SBP coverage for Rhonda Leveille.

      After Leveille sent Murphy a copy of his Application, Murphy inquired with

DFAS as to why she had not been established as the survivor beneficiary. DFAS

referred her to the Defense Office of Hearings and Appeals, and Murphy appealed.

      On January 17, 2019, DFAS issued an Administrative Report (“DFAS

Report”) in the appeal, explaining that:

            An election to provide [an] SBP annuity to a former spouse must
      be written, signed by the person making the election, and received by
      the Secretary concerned within one year after the date of the decree of
      divorce, dissolution, or annulment. 10 U.S.C. § 1448(b)(3)(A)(iii). . . .



12
      A former spouse may apply directly to the branch of service from which the former
      service person retired for survivor coverage. See 10 U.S.C. § 1450(f)(3)(A)
      (“deemed former spouse election”).
13
      Cf. MacMillan v. MacMillan, 751 S.W.2d 302, 303 (Tex. App.—San Antonio 1988,
      no pet.) (stating that, after former spouse presented parties’ divorce decree to U.S.
      Army, in accordance with provisions of “deemed former spouse election” statute,
      Secretary of the Army notified servicemember that deemed spouse election had
      been established and then former spouse became eligible for monthly SBP benefit
      upon servicemember’s death).

                                            8
       Pursuant to 10 U.S.C. § 1450(f)(3)(A) (2006), if a person
described in 10 U.S.C. § 1448(b)(3) is required by a court order to elect
to provide an annuity to a former spouse, and such person then fails or
refuses to make such an election, such person shall be deemed to have
made such an election if the Secretary concerned receives a written
request from the former spouse concerned requesting that such an
election be deemed to have been made and receives a copy of the court
order, regular on its face, which requires such election.
      In accordance with 10 U.S.C. § 1450(f)(3)(C)(2006), an election
may not be deemed to have been made in the case of any person unless
the Secretary concerned receives a request from the former spouse of
the person within one year of the date of the court order or filing
involved.
      ....
       [Leveille] elected spouse military [SBP] coverage under the
Reserve Component for [Murphy], prior to being eligible to receive
retired pay. [Leveille] and [Murphy] were divorced on January 18,
2008. Within one year of their divorce, [Leveille] made no request to
voluntarily continue survivor benefit coverage for his former spouse,
[Murphy].
      Neither the Final Decree of Divorce nor any of the subsequent
documents specified that [Leveille] was to provide retired military
survivor benefit coverage for [Murphy] as his former spouse. The
language in those documents pertaining to “survivorship” was vague
and general.
      ....
       [Murphy] was not awarded former spouse SBP in the Final
Decree of Divorce (or any of the subsequent documents) and [Leveille]
did not voluntarily elect former spouse SBP coverage for [Murphy],
within one year from the date of their divorce. Consequently, DFAS
appropriately denied [Murphy] the former spouse SBP coverage as an
eligible beneficiary. . . . We note, however, that when, as here, an award
for former spouse SBP coverage fails, a former spouse has the right to
pursue an enforceable order from the appropriate state court. If a court
later modifies the divorce decree to give the former spouse rights to
SBP coverage, a new one-year period arises during which the former
spouse can become the member’s beneficiary.

                                    9
      The DFAS Report noted that, on March 16, 2009, it received a letter from

Murphy, seeking to make a former spouse deemed election, along with copies of the

MSA and Amended DRO. However, because Murphy failed to include a copy of

the final decree, as required, DFAS did not change the SBP coverage from “spouse

to former spouse.”

      On June 26, 2019, Murphy filed a combined “Motion to Amend the Amended

[Final Decree], the Corresponding Amended [DRO], and Motion to Enforce with

Contempt of Court Against [Leveille].” On August 27, 2019, Murphy filed a

combined “Motion to Amend the Amended [Final Decree], the Corresponding

Amended [DRO], and [to] Order Completion of DFAS Form.” In her motions,

Murphy asked the trial court to “modify” the Amended Final Decree and Amended

DRO with respect to her “future . . . survivor benefit.” She attached a copy of

Leveille’s Application and the DFAS Report. At a hearing on the motions, at which

Murphy appeared telephonically, Murphy asked the trial court to issue an amended

or modified decree. The trial court declined, stating that it lacked plenary power to

do so. Murphy also asked the trial court to issue a “new decree clarifying that [she

was] the beneficiary for the survivor benefit . . . in order to start the one-year period

over and give [Leveille] a second opportunity to comply with the terms of the

divorce.” (Emphasis added.)       Murphy asserted, however, “It’s clear from the



                                           10
amended final divorce decree that I have survivor benefits and no one else.” The

trial court concluded that there was nothing to clarify “that would change anything.”

      After the hearing, the trial court issued an order denying Murphy’s August 27,

2019 “Motion to Amend the Amended [Final Decree], the Corresponding Amended

[DRO], and [to] Order Completion of DFAS Form.” In its findings and conclusions,

the trial court found that the Amended Final Decree included an Amended DRO,

“specifically awarding [Murphy] the option to make a right of survivorship

election.” Murphy, however, “failed to show that she followed DFAS procedures

and protocols when applying for such survivor benefits” and “failed to comply with

DFAS’s requests for further action in a timely manner.” Thus, “[n]othing in

[Murphy’s] requested relief could be amended or clarified that would have changed

the outcome of any terms of the prior order” and “no relief could be granted.”

                                    Discussion

      In her first, second, and third issues, Murphy argues that the trial court erred

in denying her motion to amend, clarify, or enforce the Amended Final Decree and

Amended DRO because Leveille failed to name her as the survivor beneficiary under

the SBP. Murphy further argues that the trial court erred in concluding that she

failed to timely invoke the deemed former spouse election for survivor benefits

coverage.




                                         11
A.    Standard of Review and Applicable Law

      We interpret the language of a divorce decree in the same manner in which

we interpret other judgments. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009).

We construe the decree as a whole in order to harmonize and give effect to the entire

decree. Id. If the decree is unambiguous, we must adhere to the literal language

used. Id. If the decree is ambiguous, it is interpreted by reviewing both the decree

as a whole and the record. Id. Whether a divorce decree is ambiguous is a question

of law. Id. at 901–02.

      “Property adjudications in a divorce decree become final the same as other

judgments relating to title and possession of property.” DeGroot v. DeGroot, 260

S.W.3d 658, 662 (Tex. App.—Dallas 2008, no pet.). A motion for new trial or a

motion to modify, correct, or reform a judgment, if any, must be filed within thirty

days after the judgment is signed. TEX. R. CIV. P. 329b. After the trial court’s

plenary power expires, the trial court may not alter, amend, or modify the substantive

division of the property in the divorce decree. See id.; TEX. FAM. CODE § 9.007.

Seeking an order that alters or modifies a property division constitutes an

impermissible collateral attack. Hagen, 282 S.W.3d at 902.

      However, the Family Code provides that a trial court that renders a decree

retains continuing subject matter jurisdiction to clarify and enforce its property

division. See TEX. FAM. CODE §§ 9.002, 9.006(a), (b) (“[T]he court may render


                                         12
further orders to enforce the division of property made or approved in the

decree . . . to assist in the implementation of or to clarify the prior order” and “may

specify more precisely the manner of effecting the property division previously

made if the substantive division of property is not altered or changed”); In re W.L.W.,

370 S.W.3d 799, 803 (Tex. App.—Fort Worth 2012, orig. proceeding [mand.

denied]). “On a finding by the court that the original form of the division of property

is not specific enough to be enforceable by contempt, the court may render a

clarifying order setting forth specific terms to enforce compliance with the original

division of property.” TEX. FAM. CODE § 9.008. Similarly, a trial court may issue

an order clarifying a domestic relations order. In re A.E.R., No. 2-05-057-CV, 2006

WL 349695, at *2 (Tex. App.—Fort Worth Feb. 16, 2006, no pet.)(mem. op.). “An

order to enforce the division is limited to an order to assist in the implementation of

or to clarify the prior order and may not alter or change the substantive division of

property.” TEX. FAM. CODE § 9.007(a).

      We review a trial court’s denial of a motion for clarification or motion for

enforcement of a divorce decree for an abuse of discretion. Worford v. Stamper, 801

S.W.2d 108, 109 (Tex. 1990); Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.—

Fort Worth 2008, pet. dism’d). A trial court abuses its discretion if it acts in an

unreasonable and arbitrary manner or without reference to any guiding rules and




                                          13
principles or erroneously exercises its power by making a choice that was not within

the range of choices permitted by law. Murray, 276 S.W.3d at 143.

      Under the SBP (Survivor Benefit Plan), an eligible servicemember may elect

to provide an annuity, payable upon the servicemember’s death, to a spouse, former

spouse, or child. 10 U.S.C. §§ 1448(a)–(b), 1450. With respect to establishing a

former spouse as beneficiary, “[a]ny such election must be written, signed by the

person making the election, and received by the Secretary concerned within one year

after the date of the decree of divorce.” 10 U.S.C. § 1448(b)(3)(A)(iii). A trial court

may order a service member to elect to provide an SBP annuity to a former spouse.

See 10 U.S.C. § 1450(f)(3)(B); see also Morris v. Morris, 894 S.W.2d 859, 864–65

(Tex. App.—Fort Worth 1995, no pet.).

      If a person is required by court order to elect to provide an annuity to a former

spouse and fails or refuses to make such an election, “such person shall be deemed

to have made such an election if the Secretary concerned receives” a written request

from the former spouse requesting that such an election be deemed to have been

made and, as applicable here, a copy of the “court order, regular on its face, which

requires such election.” 10 U.S.C. § 1450(f)(3)(A). “An election may not be deemed

to have been made under subparagraph (A) in the case of any person unless the

Secretary concerned receives a request from the former spouse of the person within

one year of the date of the court order or filing involved.” 10 U.S.C. § 1450(f)(3)(C).


                                          14
A “court order” means a court’s “final decree of divorce . . . or a court ordered,

ratified, or approved property settlement incident to such a decree (including a final

decree modifying the terms of a previously issued decree of divorce . . . or of a court

ordered, ratified, or approved property settlement agreement incident to such

previously issued decree).” 10 U.S.C. § 1447(13)(A).

B.    Analysis

      In her “Motion to Amend the Amended Final Divorce Decree, the

Corresponding [Amended DRO], and Order Completion of DFAS Form,” Murphy

pointed to the following term of the Amended DRO:

      IT IS ORDERED [that] the payment of the disposable retirement pay
      awarded in this order to [Murphy] shall continue until the death of
      [Leveille] or [Murphy]. [Murphy] has the option of exercising her right
      of survivorship.

And, she pointed to the term of the Amended Final Decree stating: “It is ordered that

each party shall complete timely any forms necessary to effectuate the terms of this

decree.” She asserted that Leveille, in his 2017 Application, elected his spouse,

Rhonda Leveille, as the beneficiary with right of survivorship, “in violation of [the

trial court’s] orders.” And, the DFAS Report states that “Leveille did not voluntarily

elect former spouse SBP coverage for [Murphy], within one year from the date of

their divorce.” She noted that DFAS stated that “when, as here, an award for former

spouse SBP coverage fails, a former spouse has the right to pursue an enforceable

order from the appropriate state court.” Namely, “[i]f a court later modifies the
                                          15
divorce decree to give the former spouse rights to SBP coverage, a new one-year

period arises during which the former spouse can become the member’s

beneficiary.”

      In her motion, Murphy first sought to “amend” the 2008 Amended Final

Decree and Amended DRO. Specifically, she asked the trial court to “modify” the

Amended Final Decree and Amended DRO “as per the DFAS [Report] to assist

DFAS in fulfilling the terms” of the MSA and Amended Final Decree.

      Any motion to modify, correct, or reform a decree must be filed within thirty

days after the date the decree is signed. See TEX. R. CIV. P. 329b. Thereafter, the

trial court may not alter, amend, or modify the substantive division of the property

in the divorce decree. See TEX. FAM. CODE § 9.007. Thus, at the time of Murphy’s

2019 motion, the trial court was without plenary power to amend or modify its 2008

Amended Final Decree and Amended DRO. Further, Murphy asserts in her reply

brief that she “was already awarded the future property DFAS survivor benefit and

there was nothing to [substantively] change or modify in the Amended Final

Decree.”

      Next, in her motion and at the hearing, Murphy asked the trial court to issue

an order “clarifying” that she is “still the beneficiary as awarded in the amended final

decree.” Again, “[o]n a finding by the court that the original form of the division of

property is not specific enough to be enforceable by contempt, the court may render


                                          16
a clarifying order setting forth specific terms to enforce compliance with the original

division of property.” TEX. FAM. CODE § 9.008(b). However, Murphy did not assert

any ambiguity or lack of specificity in the Amended Final Decree. Rather, at the

hearing, Murphy stated, “It’s clear from the amended final divorce decree that I have

survivor benefits and no one else.” And, the trial court found that there was nothing

to clarify. Thus, Murphy has not shown on appeal that the trial court abused its

discretion in denying her request for a clarifying order. See Worford, 801 S.W.2d at

109; Murray, 276 S.W.3d at 143.

      Next, in her motion, Murphy sought enforcement of the Amended Final

Decree as follows: “Murphy prays the Court will enforce this Court’s Order for

Leveille to file the proper beneficiary form as required by the [Amended Final

Decree] awarding Murphy survivor benefits in the DFAS retirement.”

      We note that the portion of the Amended DRO on which Murphy relied in her

motion states: “Murphy has the option of exercising her right of survivorship.”

Thus, the trial court reasonably concluded that, with respect to establishing a right

of survivorship, it was incumbent upon Murphy, and not Leveille, to exercise that

option. Whether Murphy actually complied with federal law, such that DFAS erred

in not designating her as a former-spouse beneficiary under the SBP, is not before




                                          17
us.14 Not only is DFAS not a party to this appeal, but the issue presented here is

whether the trial court erred in denying Murphy’s motion for enforcement as against

Leveille.

      Further, the trial court reasonably concluded that nothing in Murphy’s

requested relief could have changed the outcome. As discussed at the hearing,

ordering Leveille to file a new application at DFAS electing Murphy as former

spouse beneficiary would constitute a useless act. See DiGiuseppe v. Lawler, 269

S.W.3d 588, 594–95 (Tex. 2008) (noting that Texas law does not require

performance of futile acts). Although, under state law, “the SBP annuity was marital

property subject to equitable distribution by the trial court[,] . . . the right to claim

entitlement to an SBP annuity is also governed by and subject to conditions set forth

in the SBP at 10 U.S.C. §§ 1447–1455.” Dugan v. Childers, 539 S.E.2d 723, 725

(Va. 2001) (quoting King v. King, 483 S.E.2d 379, 382 (Ga. 1997)). Federal law is

clear that a former-spouse election “must be . . . received by the Secretary concerned

within one year after the date of the decree of divorce.”                     10 U.S.C.



14
      Further, in her brief, Murphy references numerous documents that she did not
      present at the hearing, but rather she attached afterwards to her Proposed Findings
      of Facts and Conclusions of Law in the trial court. She asserts on appeal that the
      trial court ruled on her motion “without reviewing anything [she] submitted.” When
      reviewing the merits of the trial court’s decision, we are limited to considering the
      material that was before the court at the time that it ruled. See Cox v. Prince, No.
      2-03-175-CV, 2003 WL 22725407, at *1–2 (Tex. App.—Fort Worth Nov. 20, 2003,
      no pet.) (mem. op.) (“A trial judge is presumed to consider only the testimony and
      exhibits properly in evidence.”).
                                           18
§ 1448(b)(3)(A)(iii) (emphasis added). Thus, even were the trial court to use its

enforcement and contempt power to compel Leveille to file the required documents

to elect former-spouse coverage on Murphy’s behalf, as she requests, the ability to

effectuate such an election is subject to this federal statutory limit.

      Here, Leveille completed 20 years of creditable military service in 2000. On

April 22, 2001, he became a reserve-component participant in the SBP and

designated Murphy as spouse beneficiary. See 10 U.S.C. § 1448(a)(1)(B), (2)(B).

On March 28, 2008, the trial court signed the Amended Final Decree. The parties

do not dispute that the one-year deadline to re-designate Murphy as a former-spouse

beneficiary expired one-year later, in 2009. See 10 U.S.C. § 1448(b)(3)(A)(iii).

Leveille argued at the motion hearing that the “designation must be made within a

one-year period from the date of divorce or it [was] forever barred.” Murphy also

argued that the “regulations required within one year.” And, the trial court noted

“it’s been 11 years now since this divorce decree.”

      Although we express no opinion as to whether federal law actually precluded

the trial court from resurrecting Murphy’s entitlement to be designated a

former-spouse beneficiary under section 1448, we cannot say that the trial court’s

decision to deny Murphy’s requested action was unreasonable, arbitrary, or made

without reference to any guiding principles. See Schneider v. Schneider, 5 S.W.3d

925, 929–330 (Tex. App.—Austin 1999, no pet.) (“[W]e cannot say that the trial


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court acted in an unreasonable and arbitrary manner or without reference to any

guiding principles when it refused to impose a constructive trust. The trial court

indicated in its conclusions of law that its decision was based, at least in part, on its

belief that the relief . . . requested was preempted by federal law. The record

indicates that the trial court was relying on section 1448(b)(2)(B) of Title 10 of the

United States Code. . . .”).

      Again, as DFAS is not a party to these proceedings, the trial court was without

authority to enter a judgment purporting to compel DFAS to re-open the statutory

one-year election period eleven years after the date of the Amended Final Decree.

See TEX. R. CIV. P. 124; Patrick v. Patrick, 728 S.W.2d 864, 868 (Tex. App.—Fort

Worth 1987, writ ref’d n.r.e.) (“The Department of the Air Force was not a party to

the proceedings and the trial court was without authority to enter any judgment

purporting to order the said department to pay over a portion of the benefits to the

appellee.”).

      Finally, with respect to Murphy’s complaint on appeal that the trial court erred

in denying her motion to find Leveille in contempt, the record shows that she moved

for contempt in her June 2019 motion, and not in her August 2019 motion. And, the

trial court’s order reflects that it ruled on her August 2019 motion. Murphy does not

direct us to any place in the record in which the trial court ruled on her motion for

contempt. Further, an order denying a motion for contempt is not appealable.


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Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); Cadle Co. v. Lobingier, 50

S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied) (“Decisions in

contempt proceedings cannot be reviewed on appeal because contempt orders are

not appealable, even when appealed along with a judgment that is appealable.”).

      We hold that Murphy has not shown that the trial court abused its discretion

in denying her motion to amend, clarify, or enforce the Amended Final Decree and

Amended DRO in the manner that Murphy espouses.

      We overrule Murphy’s first, second, and third issues.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.




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