      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-18-00287-CV



                                    Lawrence Allen, Appellant

                                                   v.

                                     Claire L. Allen, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
     NO. 2014-0804-F425, HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING



                             MEMORANDUM OPINION


                This appeal concerns the interpretation of a divorce decree providing Claire L. Allen

with one-third of “an amount equal to [Lawrence Allen’s] U.S. Army Retirement Pay” as spousal

maintenance.1 At issue is whether Claire is entitled to spousal maintenance based on Lawrence’s

retirement pay amount when Lawrence has waived the retirement pay to receive disability benefits.

After a bench trial, the trial court rendered final judgment in Claire’s favor. We agree and affirm.


                                          BACKGROUND

                The relevant facts are undisputed and taken from the evidence admitted at trial.2 In

1982, Lawrence retired from the United States Army and started receiving military retirement



       1
           Because both parties have the same last name, we refer to them by their first names.
       2
          Lawrence’s counsel explained at trial that “[t]he facts are not really in dispute, and this is
not a fact case. This is going to be a law case.”
benefits. In 1984, Lawrence and Claire were divorced by Decree of Dissolution of Marriage

(Divorce Decree) in the superior court of Whatcom County, Washington (Washington Court). At

issue in this appeal is the following Divorce Decree provision:


       By way of child support and spousal maintenance Lawrence H. Allen shall pay
       through the registry of the Superior Court for Whatcom County for the benefit of
       Claire L. Allen on the first day of each calendar month an amount equal to his U.S.
       Army retirement pay (presently $1,240 per month, subject to periodic cost of living
       increases). Of such amount one-third of the total payment shall be deemed spousal
       maintenance and such payment shall continue so long as both parties survive; two-
       thirds of such monthly payment shall be deemed child support for the parties[’] three
       minor children.


Before September 2013, Lawrence paid Claire spousal maintenance by way of garnishment through

the Defense Finance and Accounting Service (DFAS), which administers military retirement pay.

However, in 2013, Lawrence waived his retirement payment to receive Combat-Related Special

Compensation (CRSC) and Veterans Affairs disability (collectively, Disability Benefits), see

10 U.S.C. § 1413a(b); 38 U.S.C. §§ 5304(a)(1), 5305, and then stopped paying spousal maintenance.

Nevertheless, Lawrence continued receiving monthly Retiree Account Statements and CRSC pay

statements from the DFAS that showed the amount of retirement pay Lawrence was waiving.3

               Claire filed a petition to enforce the Divorce Decree under the Uniform Enforcement

of Foreign Judgments Act. See Tex. Civ. Prac. & Rem. Code §§ 35.001–.008. Following




       3
        The Retiree Account Statements showed the “gross pay” amount minus the “VA waiver”
amount, resulting in no “net pay”; the CRSC Pay statement showed the “Retired Pay Before
Deductions” amount and the “Retired Pay Offset By DVA [Department of Veterans Affairs]
Compensation” amount, resulting in no “CRSC Debt Balance.”

                                                2
proceedings on competing summary judgment motions and an appeal to this Court,4 the trial court

conducted a bench trial on December 12, 2017, at which both parties testified. After the trial, the

court rendered final judgment in Claire’s favor, awarded Claire attorney’s fees, and entered findings

of fact and conclusions of law. As relevant here, the court found and concluded that:


•       “The clear and unambiguous terms of the Divorce Decree require Lawrence to make a
        monthly payment of spousal maintenance to Claire in an amount equal to one-third of his
        Army Retirement Pay plus cost-of-living adjustments”;

•       Lawrence’s monthly payment to Claire under the Divorce Decree is spousal maintenance and
        “Claire was not awarded any portion of Lawrence’s military retirement as property”;

•       federal law distinguishes between property and spousal maintenance;

•       although federal law prohibits states from treating retired pay as community property, it does
        not prohibit taking account of amounts waived for disability in calculating spousal support;

•       Lawrence’s monthly pay statements “show the amount of retired pay awarded to Lawrence
        each month and the amount waived for V.A. Disability each month”;

•       Claire received partial spousal maintenance payments from September 2013 through March
        2014 totaling $226.22 and no spousal payments since March 2014;

•       “Lawrence owes Claire a total spousal support arrearage as of December 12, 2017 of
        $41,575.18, which should be awarded as a judgment against Lawrence in favor of Claire”;
        and

•       “Claire incurred reasonable and necessary attorney’s fees of $11,600[.]”5

        4
          We affirmed the trial court’s denial of Claire’s motion, reversed the grant of Lawrence’s
motion on no evidence grounds, and remanded for further proceedings without reaching the merits
of the parties’ arguments. Allen v. Allen, No. 03-16-00314-CV, 2017 WL 2224529, at *4 (Tex.
App.—Austin May 17, 2017, no pet.) (mem. op.).
        5
          The trial court also concluded that the Divorce Decree is entitled to full faith and credit and
qualifies as a “support order,” which requires the application of Washington law to calculate spousal
maintenance arrearages. See Tex. Fam. Code §§ 159.001, .604(a), (c). However, the trial court
found that “[n]either party supplied the court with necessary information to take judicial notice of

                                                   3
Lawrence now appeals the trial court’s judgment.


                                   STANDARD OF REVIEW

               A foreign divorce decree becomes a final, enforceable Texas judgment entitled to full

faith and credit when properly filed in Texas court. Dalton v. Dalton, 551 S.W.3d 126, 135 (Tex.

2018) (citing Tex. Civ. Prac. & Rem. Code §§ 35.001, .003(a)). In construing a divorce decree, we

interpret the language as we do other judgments of courts. Hagen v. Hagen, 282 S.W.3d 899, 901

(Tex. 2009). If the language is unambiguous, we adhere to the literal language used; if ambiguous,

we interpret the decree in light of the record and the decree as a whole. Id.

               A trial court’s ruling enforcing a divorce decree is reviewed under an overarching

abuse of discretion standard. Foreman v. Foreman, No. 03-13-00245-CV, 2014 WL 711249, at *3

(Tex. App.—Austin Feb. 19, 2014, no pet.) (mem. op.) (citing Murray v. Murray, 276 S.W.3d 138,

143 (Tex. App.—Fort Worth 2008, pet. dism’d); Hollingsworth v. Hollingsworth, 274 S.W.3d 811,

815 (Tex. App.—Dallas 2008, no pet.)). “A trial court abuses its discretion when it acts arbitrarily

or unreasonably, without reference to guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78

(Tex. 2011). However, to the extent the trial court’s ruling rests on questions of law, we review




Washington law” and concluded that Washington law is presumed to be the same as Texas’s for
purposes of this analysis, citing Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 456 (Tex.
App.—El Paso 2005, no pet.) (“When a party does not provide a court with proof of laws of another
state by judicial notice or otherwise, then the laws are presumed to be the same as that of Texas.”).
In their briefing before this Court, the parties have not cited Washington law nor do they contest the
finding of fact regarding judicial notice of Washington law or the presumption that Washington law
is the same as Texas law for purposes of this analysis.

                                                  4
those determinations de novo. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.

proceeding) (observing that trial court has no “discretion” to misinterpret or misapply law).


                                           DISCUSSION

               The parties do not dispute that the Divorce Decree is a valid foreign judgment entitled

to full faith and credit under Texas law that awarded spousal maintenance to Claire but did not award

a share of Lawrence’s military retirement as an award of property. Nor do the parties dispute the trial

court’s calculations in determining the $41,575.18 amount owed in spousal maintenance arrearages

if Lawrence is unsuccessful on appeal. Lawrence instead raises the following three issues on appeal.

First, he argues that no evidence supports the trial court’s findings regarding his spousal maintenance

arrearages because his Disability Benefits are not “retirement pay” under federal law and that to use

the Disability Benefits as the basis for calculating the spousal maintenance amount is contrary to and

preempted by federal law. Second, he asserts that the Divorce Decree unambiguously provides that

“Claire is to receive her spousal maintenance based upon a percentage of the Army Retirement Pay

Lawrence receives” and that the trial court failed to give full faith and credit to the unambiguous

language of the Divorce Decree. Third, he agrees that attorney’s fees should be awarded to Claire

if she prevails, see Tex. Fam. Code § 159.313, but argues that there is no basis for an award of

attorney’s fees or interest because she should not prevail on the first two issues. Because Lawrence’s

second issue concerns the actual language of the Divorce Decree—an issue essential for determining

his first issue regarding federal law—we turn first to the language of the Divorce Decree and then

to the question of federal law and attorney’s fees.




                                                  5
Language of the Divorce Decree

               The trial court entered a finding of fact that “[t]he clear and unambiguous terms of

the Divorce Decree require Lawrence to make a monthly payment of spousal maintenance to Claire

in an amount equal to one-third of his Army Retirement Pay plus cost-of-living adjustments.”

Lawrence argues first that the trial court has “rewrit[ten]” the Divorce Decree contrary to its

unambiguous language because pursuant to Hagen, 282 S.W.3d at 899, “Claire is to receive her

spousal maintenance based upon a percentage of the Army Retirement Pay Lawrence receives”

(emphasis added); and second that “the trial court has calculated Lawrence’s spousal support

obligation based on his Veterans Administration disability payment and his Combat-Related Special

Compensation—not on his U.S. Army retirement pay.” We find both arguments unavailing.

               First, the Divorce Decree does not require that Lawrence actually receive the specified

retirement pay amount for it to serve as the basis for calculating the spousal maintenance amount.

Instead, the Divorce Decree expressly states that Lawrence “shall pay . . . an amount equal to his

U.S. Army Retirement Pay,” and one-third of that payment “shall be deemed spousal maintenance.”

Lawrence’s only argument is to cite Hagen and state: “To paraphrase, and rephrase, the Hagen

court’s statement: The Allens’ 1984 divorce decree is unambiguous. It provides Claire is to receive

her spousal maintenance based upon a percentage of the Army Retirement Pay Lawrence receives.”

But Hagen is inapposite to the Divorce Decree here because the Hagen divorce decree expressly

addressed whether the retirement pay is calculated when received by awarding it as community

property: “One-half of 18/20ths of all Army Retirement Pay or Military Retirement Pay, IF, AS

AND WHEN RECEIVED.” Id. at 901. The Hagen Court noted that “[t]he Hagens’ decree plainly



                                                 6
entitled Doris only to part of the Army or military retirement pay Raoul received, if, as, and when

he received it.” Id. at 907. “[T]he language used in divorce decrees is important, and we must

presume the divorce court chose it carefully,” strictly adhering to the unambiguous language of the

Divorce Decree. See id. at 901, 908. Here, there is no comparable language to the Hagen decree’s

language of “IF, AS AND WHEN RECEIVED”; instead, the Washington Court in the Divorce

Decree chose not to limit the retirement pay to the amount actually received for purposes of

calculating spousal maintenance.

               Second, Lawrence’s assertion that the trial court calculated the spousal maintenance

arrearages based on the amount of Disability Benefits Lawrence received is incorrect. The trial court

made a finding of fact that Lawrence’s “monthly pay statements show the amount of retired pay

awarded to Lawrence each month and the amount waived for V.A. Disability each month.” In

calculating the spousal maintenance arrearages, the trial court used the numbers for the amount of

retired pay awarded to Lawrence each month that corresponded with the amounts listed on the

monthly pay statements.6 The record does not indicate that the trial court calculated the arrearages


       6
         The trial court found that (1) “the last full spousal maintenance payment received by Claire
in August 2013 was in the amount of $979.05” and applied that amount from September 2013
through November 2015, subtracting $226.22 for Lawrence’s partial payments during that time
period; (2) the amount of Lawrence’s retirement pay for December 2015 was $3,065 and spousal
maintenance was therefore $1,021.67 for that month; and (3) the amount of Lawrence’s retirement
pay for November 2016 through December 2017 was $3,074 per month, and the amount of spousal
maintenance was therefore $1,024.67 for those months. The trial court then added these amounts
to calculate a total arrearage of $41,575.18. The retirement pay amount the trial court listed for
December 2015 and December 2016 was the same amount listed on the December 2015 and
December 2016 Retiree Account Statements, respectively, for “Gross Pay” before the “VA Waiver”
was taken. The retirement pay amounts listed for the 2017 months correspond to the “Retired Pay
Before Deductions” amount listed on the 2017 CRSC Pay Statements. It is unclear why the trial
court did not provide spousal maintenance for January through October 2016, but perhaps it was

                                                 7
based on Lawrence’s Disability Payments received instead of the retirement payment amounts listed

on the monthly pay statements.

               Having concluded that the Divorce Decree does not impose a requirement that

Lawrence actually receive the retirement pay before the spousal maintenance amount is calculated

and that the trial court based its calculations on Lawrence’s retirement pay shown on the monthly

pay statements, we overrule Lawrence’s second issue and turn to Lawrence’s first issue.


Federal Law

               In his first issue, Lawrence primarily argues that the trial court’s reliance on “amounts

other than his actual U.S. Army retirement pay”—i.e., Lawrence’s Disability Benefits—“as a basis

for determining an arearage of spousal maintenance is contrary to and pre-empted by federal law.”

However, as we have already concluded, the trial court relied upon the stated amount of retirement

pay that Lawrence waived, not the amount of Disability Benefits he received, to calculate the spousal

maintenance arrearages. For this reason, Lawrence’s primary argument fails, and instead we must

inquire whether Lawrence has provided any arguments or authorities for concluding that federal law

prohibits or preempts a state court from relying upon retirement payment amounts that have been

waived to compute spousal maintenance arrearages.

               We begin by providing a brief overview of the federal statutory framework. Chapter

71 of Title 10 of the United States Code governs the computation of retired pay for the armed forces,

including Lawrence’s retirement pay. See 10 U.S.C. §§ 1401–1415. Section 1401 of chapter 71




because there was no corresponding monthly pay statements in evidence for those months.

                                                  8
provides the formula for calculating “[t]he monthly retired pay of a person entitled thereto under this

subtitle,” with certain costs of living adjustments provided. Id. §§ 1401(a), 1401a. To prevent

duplication of benefits, however, waiver of retirement payment amounts may be necessary to receive

veterans’ disability benefits under Title 38 of the United States Code or CRSC payments under

section 1413a of Title 10. See id. § 1413a(b); 38 U.S.C. §§ 5304(a)(1), 5305. Section 5305 of Title

38, as relevant here, provides:


       [A]ny person who is receiving pay pursuant to any provision of law providing retired
       or retirement pay to persons in the Armed Forces . . . and who would be eligible to
       receive pension or compensation under the laws administered by the Secretary if such
       person were not receiving such retired or retirement pay, shall be entitled to receive
       such pension or compensation upon the filing by such person with the department by
       which such retired or retirement pay is paid of a waiver of so much of such person’s
       retired or retirement pay as is equal in amount to such pension or compensation.


38 U.S.C. § 5305. Finally, the Uniformed Services Former Spouses’ Protection Act (USFSPA), see

10 U.S.C. § 1408, concerns court orders providing for child support, alimony, and division of

property, id. § 1408(a)(2), and “creates a payments mechanism under which the Federal Government

will make direct payments to a former spouse[.]” Mansell v. Mansell, 490 U.S. 581, 585 (1989).

Moreover, the USFSPA expressly permits a State to treat a military veteran’s retirement pay as

divisible property, 10 U.S.C. § 1408(c)(1), but exempts any amount deducted “as a result of a

waiver” that the veteran must make “in order to receive” disability benefits, id. § 1408(a)(4)(B); see

Howell v. Howell, 137 S. Ct. 1400, 1402 (2017).




                                                  9
                To support his position, Lawrence cites three cases that deal with the USFSPA:

Howell, 137 S. Ct. at 1406; Mansell, 490 U.S. at 584; and Hagen, 282 S.W.3d at 908.7 However,

Lawrence’s legal citations fail to support his position: each of the three cited cases concerns a

divorce decree that divided community property, not a decree that awarded spousal maintenance like

the Divorce Decree here. Howell, 137 S. Ct. at 1402 (noting that “[i]n this case a State treated as

community property and awarded to a veteran’s spouse upon divorce a portion of the veteran’s total

retirement pay”); Mansell, 490 U.S. at 594–95 (holding that States cannot treat as community

property and divide at divorce veteran’s waived portion of his retirement); Hagen, 282 S.W.3d at

901 (noting that “decree awarded Doris right, title, and interest to” portion of military retirement

pay). In contrast to community property, “[s]pousal maintenance . . . is not property,” nor is it “a

fixed division of the community property[.]”8 O’Carolan v. Hopper, 71 S.W.3d 529, 533–34 (Tex.

App.—Austin 2002, no pet.); see also 42 U.S.C. § 659(i)(3)(B)(ii) (defining “alimony” as including

spousal support but excluding any payment or transfer of property awarded pursuant to divorce).




        7
         The only other case authority that Lawrence cites in his briefing before this Court is
Foreman v. Foreman, and he cites this case solely for the legal proposition that “[n]either the district
court nor this Court has any discretion but to give effect to the decree’s unambiguous
terms.” No. 03-13-00245-CV, 2014 WL 711249, at *5 (Tex. App.—Austin Feb. 19, 2014, no pet.)
(mem. op.).
        8
             The trial court made the following finding of fact: “Claire was not awarded any portion
of Lawrence’s military retirement as property. Lawrence also agrees that Claire was not awarded
any portion of Lawrence’s military retirement as property.” Lawrence does not challenge this finding
of fact. See Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex. App.—Austin
2004, pet. denied) (“A party waives its challenges to the findings of fact and conclusions of law if
it fails to raise them in its original appellate brief.”). And at trial, Lawrence testified that his military
retirement “was not divided as property” in the Divorce Decree and that Claire “wasn’t awarded a
certain percentage of [Lawrence’s] military retirement to keep as her property.”

                                                     10
                This distinction is important because the USFSPA limits the community property

available for division to “disposable retired pay” but imposes no such limitation on alimony.

Compare 10 U.S.C. § 1408(a)(2)(B)(iii), (C) (defining applicable “court order” as order providing

for division of property that specifically provides for payment of amount “from the disposable retired

pay”), and id. § 1408(c)(1) (authorizing court to “treat disposable retired pay” as divisible property

if in accordance with law of court’s jurisdiction), with id. § 1408(a)(2)(B)(ii) (defining applicable

“court order” as order providing for “payment of alimony” as defined by 42 U.S.C. § 659(i)(3),

which does not include division of property pursuant to divorce); see also Howell, 137 S. Ct. at 1406

(noting that although USFSPA prohibits treating waived retired pay as divisible community property,

family court may take account of future reductions in value to retired pay through waiver when

calculating need for spousal support (citing Rose v. Rose, 481 U.S. 619, 630–34 & n.6 (1987); 10

U.S.C. § 1408(e)(6))). The USFSPA defines “disposable retired pay” as “the total monthly retired

pay to which a member is entitled” minus certain deductions, including amounts that “are deducted

from the retired pay of such member . . . as a result of a waiver of retired pay required by law in order

to receive compensation under title 5 or title 38.” 10 U.S.C. § 1408(a)(4)(A)(ii).9

                The ratio decidendi of each of Lawrence’s cited federal cases rests upon the

USFSPA’s language regarding “disposable retired pay” as applied to the division of community

property, not to spousal maintenance. See Howell, 137 S. Ct. at 1405–06 (holding that state courts’


        9
        By expressly exempting waived retirement amounts from disposable retired pay, the statute
implies that “retired pay,” without the adjective “disposable,” includes waived retirement
pay—further supporting the interpretation of the Divorce Decree as awarding spousal maintenance
based on the full retirement pay amount to which Lawrence is entitled, regardless of whether
Lawrence waives it or not.

                                                   11
attempt to reimburse or indemnify reduction in value of community property division award of

military retirement pay due to post-divorce decree waiver of retirement pay as awarding precisely

“the portion that Congress omitted from the [USFSPA]’s definition of ‘disposable retired pay,’

namely, the portion that federal law prohibits state courts from awarding to a divorced veteran’s

former spouse”); Mansell, 490 U.S. at 589 (concluding that under USFSPA’s “plain and precise

language, state courts have been granted the authority to treat disposable retired pay as community

property; they have not been granted the authority to treat total retired pay as community property”).

Importantly, Lawrence’s primary authority Howell prohibits a state court’s attempt to reimburse or

indemnify a community property division award based on the USFSPA’s definition of “disposable

retired pay.” 137 S. Ct. at 1405–06. But here, there was no community property division award of

military retirement pay, and Lawrence has failed to provide any statutory grounds for why

“disposable retired pay” applies to spousal maintenance. Mansell likewise applies to the actual

division of military retirement pay as community property, which it is undisputed did not occur here.

See 490 U.S. at 589.10 In short, we disagree that Lawrence’s cited authority limits or preempts the

ability of a trial court to enforce a divorce decree that bases a spousal maintenance award on the

amount of military retirement pay, regardless of whether the military retirement pay has been waived

or not. We therefore overrule Lawrence’s first issue.


       10
            Hagen v. Hagen did not concern a question regarding “disposable retired pay,” but
whether a divorce decree dividing as community property military retirement pay therefore provided
for division of received disability compensation. 282 S.W.3d 899, 908 (Tex. 2009). The Hagen
Court concluded that disability compensation is not military retirement pay. Id. As we have already
noted, the trial court here did not base its spousal maintenance calculation on the amount Lawrence
received in Disability Benefits, but on the waived military retirement pay—thereby making
Hagen inapposite.

                                                 12
Attorney’s Fees

               As his final issue, Lawrence notes that section 159.313 of the Texas Family Code

provides for attorney’s fees “[i]f an obligee prevails[.]” Tex. Fam. Code § 159.313(b). He argues

that because his first two issues demonstrate that “there is no basis for a determination of any

arrearages,” there is “no basis for an award of attorney’s fees or interest.” But having overruled

Lawrence’s first two issues, we conclude Claire has prevailed and therefore there is a basis for an

award of attorney’s fees. We overrule Lawrence’s third issue.


                                         CONCLUSION

               We conclude that the waiver of military retirement pay to receive disability benefits

does not diminish the amount of spousal maintenance when the unambiguous language of the

divorce decree bases the amount of spousal maintenance on the military retirement pay amount

without limiting it to the pay received. Accordingly, we affirm the trial court’s final judgment.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: April 12, 2019




                                                13
