Opinion filed April 5, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00136-CV
                                         __________

                               JERRY DON BIEN, Appellant

                                                V.

                                  ESTHER BIEN, Appellee


                              On Appeal from the 35th District Court

                                      Brown County, Texas

                                 Trial Court Cause No. 93-06-319


                                          OPINION
          This appeal arises from a post-divorce proceeding to enforce a property division of
railroad retirement benefits. The trial court determined that appellee, Esther Bien, was entitled to
a money judgment against appellant, Jerry Don Bien, in the amount of $39,912.87 for her share
of “Tier II benefits” he had received as a part of his railroad retirement. The trial court also
ordered Jerry to pay Esther’s attorney’s fees in the amount of $1,500. Jerry challenges the
sufficiency of the evidence supporting the trial court’s order in three issues. We modify and
affirm.
                                        Background Facts

       Jerry and Esther were married in 1972. Their divorce occurred in 1994. The agreed final
decree of divorce contained the following property award to Esther:
            ESTHER JEAN BIEN is awarded, and the Railroad Retirement Board is
       directed to pay, an interest in the portion of JERRY DON BIEN’s benefits under
       the Railroad Retirement Act (45 U.S.C. § 231, et. seq.) which may be divided as
       provided by section 14 of that Act (45 U.S.C. § 231m). ESTHER JEAN BIEN’s
       share shall be computed by multiplying the divisible portion of JERRY DON
       BIEN’S monthly benefit by a fraction the numerator of which is the number of
       years JERRY DON BIEN worked for a railroad employer during the period of
       marriage, and the denominator of which shall be total number of years employed
       by a railroad employer at retirement, and then dividing the product by two.

Jerry testified that he began receiving a “disability check” as a railroad employee in 1994
“shortly after the divorce.” Esther testified that, at some point many years later, she discovered
that a portion of the benefits that Jerry had been receiving since 1994 constituted Tier II benefits.
Upon contacting the Railroad Retirement Board in 2006, the board began paying her $237.98 a
month from Jerry’s railroad retirement annuity.         Jerry testified that his monthly railroad
retirement benefits were reduced at that time by the same amount.             Esther instituted the
underlying enforcement action in order to recover her share of the Tier II benefits that Jerry
received from 1994 until she began receiving her proportionate share of the benefits directly
from the Railroad Retirement Board in 2006.
                                        Standard of Review
       We review the trial court’s ruling on a post-divorce motion for enforcement under an
abuse of discretion standard. See Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied). The test for abuse of discretion is a question of whether
the court acted without reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
       Jerry couches his three issues on appeal as challenges to the legal and factual sufficiency
of the evidence. Under an abuse of discretion standard, legal and factual sufficiency challenges
to the evidence are not independent grounds of error but are relevant factors in assessing whether
the trial court abused its discretion. Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.—
Eastland 2006, no pet.). Because we apply an abuse of discretion standard to an enforcement
proceeding, the traditional sufficiency standards of review overlap the abuse of discretion
standard, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476
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(Tex. App.—Austin 2002, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). Once it has been determined that the abuse of discretion standard applies,
an appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient
information on which to exercise its discretion and (2) whether the trial court erred in its
application of discretion. Child, 210 S.W.3d at 696. The traditional sufficiency review comes
into play with regard to the first question; however, the inquiry does not end there. Id. The
appellate court then proceeds to determine whether, based on the evidence, the trial court made a
reasonable decision. Id.
         In considering a legal sufficiency challenge, we review all the evidence in the light most
favorable to the prevailing party and indulge every inference in its favor. City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005).                            We must credit any favorable evidence if a
reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder
could not. Id. at 821–22, 827. We may sustain a legal sufficiency challenge only when (1) the
record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of
law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only
evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of a vital fact. Id. at 810; Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997). To address a factual sufficiency challenge, we must
consider and weigh all of the evidence and should set aside a fact finding only if the evidence is
so weak or the finding is so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986).
                                                           Analysis
         In his first issue, Jerry challenges the legal and factual sufficiency of the evidence that
Esther was entitled to any benefits prior to attaining the age of sixty-two. He cites 45 U.S.C.
§ 231a(c)(4) in support of this contention. His reliance on Section 231a(c)(4) is misplaced. As
explained in Osborne v. Osborne, 260 P.3d 202, 204–05 (Utah Ct. App. 2011),
Section 231a(c)(4) applies to Tier I railroad retirement benefits.1 The division of Tier II benefits
in a divorce proceeding is governed by 45 U.S.C. § 231m. Osborne, 260 P.3d at 204–05.

         1
           The court’s opinion in Osborne contains an excellent discussion regarding the distinction between Tier I and Tier II
railroad retirement benefits. As set out in Osborne, Tier I benefits are akin to social security benefits. 260 P.3d at 204–05.
Accordingly, they do not constitute a divisible asset in a divorce proceeding. Id. However, a divorced spouse may qualify for
Tier I benefits under federal statute regardless of, or even in the complete absence of, specific language in the divorce decree
regarding such an annuity. See Gilmore v. Garner, 580 S.E.2d 15, 18 (N.C. Ct.. App. 2003). Tier II benefits constitute a divisible
marital asset because they are similar to a traditional defined benefit plan. Osborne, 260 P.3d at 204–05.
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Neither Section 231m nor the divorce decree contains a requirement that Esther attain any
particular age before receiving her proportionate share of Tier II benefits. Accordingly, there is
no legal basis for appellant’s evidentiary challenge based on Esther’s age. Furthermore, we
conclude that the trial court did not abuse its discretion in awarding a recovery to Esther for her
share of Tier II benefits that Jerry had received in the past. Appellant’s first issue is overruled.
       Jerry asserts in his second issue that there is no evidence that he received Tier II benefits.
However, the trial court admitted into evidence a letter from the Railroad Retirement Board
dated March 18, 2003, that informed Jerry that his monthly Tier I benefits were $1,503 and that
his monthly Tier II benefits were $551.50. This letter indicates that Jerry received Tier II
benefits prior to the date of the letter. Additionally, Esther testified that she and her attorney had
obtained documents from the Railroad Retirement Board and that the documents indicated that
Jerry had received Tier II benefits since 1994. Accordingly, the trial court did not abuse its
discretion in determining that Jerry had received Tier II benefits.          Jerry’s second issue is
overruled.
       In his third issue, Jerry attacks the sufficiency of the evidence supporting the amount of
the judgment awarded to Esther. He first argues that a money judgment should not be entered
against him because the decree directed the Railroad Retirement Board to pay Esther her share of
the Tier II Benefits rather than himself. This argument lacks merit because he received all of the
Tier II benefits for several years. The divorce decree specifically provided that Jerry was
awarded his Tier II benefits “EXCEPT that portion of such benefits specifically awarded to
ESTHER JEAN BIEN as hereinafter described” (emphasis in original).
       Jerry also asserts that the amount of the judgment entered against him is incorrect based
upon the evidence offered at trial. We agree. Esther sought and obtained a money judgment
against Jerry for fifty percent of all Tier II benefits he received from September 1994 until
December 2006, in the gross amount of $79,825.73. However, the evidence reflected that the
Railroad Retirement Board began paying benefits directly to Esther in April 2006. This factor
reduces the gross amount of Tier II benefits paid entirely to Jerry by $4,949.28 ($549.92 x 9
months) to $74,876.45. Additionally, the Railroad Retirement Board did not pay Esther fifty
percent of Jerry’s Tier II benefits. Instead, the Board paid her approximately 43.28% of Jerry’s
monthly Tier II benefits upon its receipt of the formula set out in the divorce decree. In this
regard, Jerry testified that he began working for the railroad prior to marriage. Accordingly, the
evidence only supported an award of $32,406.53 to Esther, which amount equals 43.28% of the
                                                  4
gross amount of Tier II benefits paid entirely to Jerry. We conclude that the trial court’s award
of a judgment in excess of this amount constitutes an abuse of discretion. Accordingly, Jerry’s
third issue is sustained in part.
                                      This Court’s Ruling
        The judgment of the trial court awarding a money judgment to Esther is reduced to the
amount of $32,406.53. As modified, the judgment of the trial court is affirmed.




                                                            TERRY McCALL
                                                            JUSTICE


April 5, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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