                                                                    ACCEPTED
                                                               07-15-00029-CV
                                                  SEVENTH COURT OF APPEALS
                                                            AMARILLO, TEXAS
                                                          5/15/2015 4:35:56 PM
                                                              Vivian Long, Clerk




     CAUSE NO. 07-15-00029-CV
                                               FILED IN
                                        7th COURT OF APPEALS
                                          AMARILLO, TEXAS
    IN THE SEVENTH DISTRICT COURT OF   APPEALS
                                        5/15/2015 4:35:56 PM
                                             VIVIAN LONG
               AT AMARILLO, TEXAS               CLERK



          TIMOTHY PARRISH, APPELLANT

                       v.

           TRISHA DUNAHOO, APPELLEE


    APPEALED FROM THE 146TH DISTRICT COURT OF

               BELL COUNTY, TEXAS


               BRIEF OF APPELLEE


                        BOBBY DALE BARINA
                        Texas Bar No. 01738480
                        455 East Central Texas
                        Expressway, Suite 104
                        Harker Heights, Texas 76548
                        Tel: 254-699-3755
                        Fax: 254-699-1074
                        BobbyDaleBarina@Barinalaw.com
                        ATTORNEY FOR
                        TRISHA DUNAHOO,
                        APPELLEE



APPELLEE REQUESTS ORAL ARGUMENT.
             IDENTITY OF PARTIES AND COUNSEL

     Appellee, TRISHA DUNAHOO, submits the following list of all

parties and counsel pursuant to Tex. R. App. P. 38.1(a):

Appellant:
Timothy Parrish
Daniel Corbin                                    Appellate Counsel
Texas Bar No. 04814300                           And Trial Counsel
Ashley Clapper                                   for Appellant
Texas Bar No. 24076317
Corbin & Associates, P.C.
603 North 8th Street
Killeen, Texas 76541
Phone: 254-526-4523
Fax: 254-526-6711
Email: legal@corbinlegalteam.com

Appellee:
Trisha Dunahoo
Brett H. Pritchard                               Trial Counsel for
Texas Bar Number 24010324                        Appellee
The Law Office of Brett H. Pritchard
1201 South W.S. Young Drive
Killeen, Texas 76542
Phone: 254-501-4040
Fax: 254-953-1360
Email: Brett@bpattorney.com

Bobby Dale Barina                                Appellate Counsel for
Texas Bar Number 01738480                        Appellee
Bobby Dale Barina
455 East Central Texas Expressway,
Suite 104
Harker Heights, Texas 76548
Phone: 254-699-3755
Fax: 254-699-1074
Email: BobbyDaleBarina@barinalaw.com
                                2
                                TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................. 2

TABLE OF AUTHORITIES ...................................................................... 4

STATEMENT ON ORAL ARGUMENT ................................................... 6

ISSUES PRESENTED FOR REVIEW ..................................................... 7

STATEMENT OF FACTS ......................................................................... 8

APPELLANT ARGUMENT I:             The district court did not have
subject matter jurisdiction to remove the provision ending the
award of military retirement because it modified an unambiguous
substantive property division from the divorce decree and the 2008
domestic relations order………………………………………………………12

RESPONSE TO APPELLANT ARGUMENT I:                 The Trial Court
retains subject matter of the Domestic Relationship Order under
Chapters 9.104 and 9.1045 of the Texas Family Code. Under these
chapters, the court can amend the Domestic Relationship Order……..12

APPELLANT ARGUMENT II: The District Court erred in
emoving the end of award provision for the Domestic Relations Order
because a collateral attack was barred by Res Judicata……………...…19

RESPONSE TO APPELLANT ARGUMENT II: The Trial Court did
not err when he clarified the Domestic Relations Order………………...19

PRAYER        ............................................................................................... 22

CERTIFICATE OF COMPLIANCE ........................................................ 23

CERTIFICATE OF SERVICE................................................................. 23

APPENDIX TO BRIEF OF APPELLEE, TRISHA DUNAHOO ............ 24




                                                    3
                            TABLE OF AUTHORITIES

Cases                                                                                Page(s)

Guevara v. H.E. Butt Grocery Co.,
82 S.W.3d 550 (Tex. App. 2002) .............................................................. 12

Harmon v. Harmon,
    879 S.W.2d 213 (Tex. App. 1994) ............................................. 18, 21

In re N.T.P.,
      402 S.W.3d 13 (Tex. App. 2012) ..................................................... 16

McGinty v. Modern Film Effects, Inc.,
    553 S.W.2d 21 (Tex. Civ. App. 1977) ....................................... 18, 21

Pearcy v. Pearcy,
     884 S.W.2d 512 (Tex. App. 1994) ................................................... 16

Quijano v. Quijano,
     347 S.W.3d 345 (Tex. App. 2011) ................................................... 13

Shanks v. Treadway,
    110 S.W.3d 444 (Tex. 2003) ...................................................... 14, 20

Texas Natural Res. Conservation Comm'n v. IT-Davy,
     74 S.W.3d 849 (Tex. 2002).............................................................. 12

Vargas v. Vaca,
     376 S.W.2d 65 (Tex. Civ. App. 1964) ....................................... 18, 21

Williams v. Kaufman,
      275 S.W.3d 637 (Tex. App. 2009) ............................................. 18, 21

Statutes

Tex. Fam. Code Ann. § 9.007(a) (West) .................................................. 15

Tex. Fam. Code Ann. § 9.007(b) .............................................................. 15

Tex. Fam. Code Ann. § 9.008 .................................................................. 16

Tex. Fam. Code Ann. § 9.008(b) ........................................................ 14, 16
                                     4
Tex. Fam. Code Ann. § 9.104 (West 2006) .............................................. 15

Tex. Fam. Code Ann. §§ 9.002, 9.006(a), 9.008 (West) ........................... 14

Rules

Tex. R. App. P. 38.1(a) ............................................................................... 2

Tex. R. App. P. 9.4(i)(1) ........................................................................... 24

Tex. R. Civ. P. 296 ............................................................................. 17, 20

Tex. R. Civ. P. 296-299 ...................................................................... 17, 20

Tex. R. App. P. 9.4(i)(1)……………………………………………………….23




                                                   5
                STATEMENT ON ORAL ARGUMENT

        Appellee, Trisha Dunahoo, requests this Court to grant oral

argument. Oral argument would provide the Court with a more complete

understanding of the facts presented in this appeal and would

significantly aide the Court in analyzing the legal circumstances of this

case.




                                   6
               ISSUES PRESENTED FOR REVIEW

Issue 1:   Did the District Court have subject matter jurisdiction

to remove the End of Award provision thereby modifying the

award of property as originally set out in the Final Decree of

Divorce and the 2008 Domestic Relations Order?


Response to Issue 1:     The District Court had subject matter

jurisdiction to clarify the Domestic Relations Order.


Issue 2:   Was the removal of the End of Award provision from

the 2008 Domestic Relations Order barred by res judicata and

therefore an error for the District Court remove the provision.


Response to Issue 2:     Res Judicata did not bar the Trial Court

from Clarifying the 2008 Domestic Relations Order.




                                7
                       STATEMENT OF FACTS

Volume 1 of 1

     This case was heard before the Honorable Jack W. Jones, Jr. on

May 6, 2014. The court called the case and proceeded to address the

matter of the clarification of a prior order. This Motion for filed by

father as he is referred to as the Movant. (1R.R. at 4) The following are

the summary the statements made by counsel and the court. The

mother, referred to as the Respondent, presented her own motion to

clarify the DRO. (1R.R. at ) The case was heard on argument alone

without witnesses. (1R.R. at 4).

MOVANT’S ARGUMENT (1R.R. at 4)

     The parties were divorced on April 30, 2008 and the final decree

and the DRO was signed the same day. (1R.R. at 5) At the time of the

divorce the parties had been married for 13 years and 4 months. This

equaled 160 months of marriage. The movant retired December 2011.

The Movant’s request was to have the trial court amend or clarify the

DRO to reflect to that the wife receive a lower percentage of the father,

service member’s, retirement. (1R.R. at 6)




                                     8
     Counsel for the Movant then addressed the Respondent’s request

for relief. (1R.R. at 6) The movant stated that the original domestic

relations order, herein after referred to as DRO. (CR. at ) had an end

date to her receiving her portion of the military retirement. It was

stated as “end date of her award”. (1R.R. at 6) The wife was awarded

retirement of 13 years and four months. The movant requested that the

court leave the ending date intact in the order. The theories that they

relied upon was res judicata and that the agreement was contractual.

The respondent is requesting the court to remove the end date on the

DRO. (1R.R. at 6)

RESPONDENT’S ARGUMENT (1R.R. at 6)

     The respondent filed a Motion to Amend the Domestic

Relationship Order. (1R.R. at 9) The court has jurisdiction of the

Domestic Relationship Order under Chapters 9.104 and 9.1045 of the

Texas Family Code. Under these chapters, the court can amend the

Domestic Relationship Order. (1R.R. at 9)

     Her argument is that the divorce decree and the DRO were signed

at the same time. (1R.R. at 9) That the divorce decree is the substantive

document and contract of the parties and the DRO is not. The original


                                    9
petition for divorce did not plea for a disproportionate share of property.

Nor did they plea to divest the Respondent of separate property. (1R.R.

at 9) The separate property was her portion of the military retirement.

(1R.R. at 9) She states that the DRO is not protected by the theory of

res judicata, because the court retains jurisdiction to amend the DRO.

(1R.R. at 10) Furthermore she adds that the divorce decree doesn’t

allow a disproportionate share of the property and that the divorce

decree did not included any findings that divested her of separate

property. Additionally that the DRO is an effectuating order that effects

the Divorce Decree. (1R.R. at 10) The DRO is not contractual (1R.R. at

11)

MOVANT’S REBUTTAL ARGUMENT (1R.R. at 12)

      The Movant responded that the decree was the result of an

agreement of the parties. (1R.R. at 12) That parties can and do contract

away separate property rights. (1R.R. at 13) The court did not divest

her of her separate property rights she contracted them away. (1R.R. at

14)

RESPONDENT’S REBUTTAL ARGUMENT (1R.R. at 15)




                                    10
     The again reiterates that the DRO was an effectuating document

and that it was not incorporated by reference into the decree of divorce.

(1R.R. at 16) She again points out 9.101 and 9.1045. (1R.R. at 16)He

requested that the court enter a correct DRO. (1R.R. at 17)

     The parties agreed that if she testified she would say that her

intention at the time of the divorce was to receive (1R.R. at 18) the

standard division of the retirement benefits. (1R.R. at 19)




                                    11
Appellant’s Argument I

The district court did not have subject matter jurisdiction to
remove the provision ending the award of military retirement
because it modified an unambiguous substantive property
division from the divorce decree and the 2008 domestic
relations order.

Response to Appellant Argument I:

The Trial Court retains subject matter of the Domestic
Relationship Order under Chapters 9.104 and 9.1045 of the
Texas Family Code. Under these chapters, the court can amend
the Domestic Relationship Order.

                  ARGUMENT AND AUTHORITIES

     The Trial Court had the jurisdiction to review and clarify the 2008

domestic relationship order. The issue of jurisdiction in this case turns

on whether the Clarification Order was a modification of the Domestic

Relationship Order or simply a clarification of the Domestic Relationship

Order.

     In the instant case the court clarified the Domestic Relations Order

to allow it to be enforceable.

Standard of Review.

     Whether a trial court has jurisdiction is a question of law that we

review de novo. Texas 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

                                   12
550, 551 (Tex. App. 2002).

     A Domestic Relations Order, such as the one here, “is a species of

post-divorce enforcement order.” Quijano v. Quijano, 347 S.W.3d 345, 353

(Tex. App. 2011)(Tex.App.-Houston [14th Dist.] 2011, no pet.). The

purpose of a Domestic Relations Order is to create or recognize an

alternate payee’s right, or to assign an alternate payee the right, to

receive all or a portion of the benefits payable to a participant under a

retirement plan. Id. at 353–54. The purpose is not to award separate

property or to divest a party of property. A trial court that renders a

divorce decree generally retains the power to enforce or clarify the

property division approved of or contained in the decree. Tex. Fam. Code

Ann. §§ 9.002, 9.006(a), 9.008 (West). The court may enter a clarifying

order to enforce compliance with the original division of the property.

Tex. Fam. Code Ann. § 9.008(b); see also § 9.1045(a) (providing that a

“court that renders a qualified domestic relations order retains

continuing, exclusive jurisdiction to amend the order to correct the order

or clarify the terms of the order to effectuate the division of property

ordered by the court”). However, after its plenary power expires, a court

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


                                   13
the decree. Tex. Fam. Code Ann. § 9.007(a) (West); Shanks v. Treadway,

110 S.W.3d 444, 449 (Tex. 2003). An order that amends, modifies, alters,

or changes the actual, substantive division of property made or approved

in a final decree of divorce is beyond the jurisdiction of the trial court and

is unenforceable. Tex. Fam. Code Ann. § 9.007(b).

     The Final Decree of Divorce clearly states that under property to

wife that:

     “IT IS ORDERED AND DECREED that the wife, Trisha Ann
     Parrish, is awarded the following as her sole and separate property,
     and the husband is divested of all right, title, interest, and claim in
     and to that property: (CR at 27)

     W-8. 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 TIMOTHY PARRISH's service in the
          United States Army, including any accrued unpaid bonuses,
          disability plan or benefits, Thrift Savings Plan, or other
          benefits existing by reason of or as a result of TIMOTHY
          PARRISH's past, present, or future employment, except that
          portion of TIMOTHY PARRISH's U.S. military retirement
          that has been awarded in this decree to TIMOTHY PARRISH
          as more particularly specified in the domestic relations order
          signed coincident with this decree and incorporated verbatim
          in it by reference.”




                                     14
     Therefore her separate property would be available to her through

the Domestic Relations Order. The 2008 Domestic Relations Order set up

a conflict that required clarification.


           The 2008 Domestic Relations Order stated that the award of

separate property would one day end and no longer be Trisha Dunahoo’s

Separate property. The Domestic Relations Order states:


     “End of Award
                IT IS ORDERED that the payment of the disposable
          retirement pay awarded in this order to TRISHA ANN
          PARRISH shall continue for 13 years and 4 months after it
          begins or until the death of TIMOTHY PARRISH or
          TRISHA ANN PARRISH, whichever event occurs first. (CR
          at 36)”


     The appellant’s argument that the trial court erred because there

is no evidence or any finding that the original Domestic Relations Order’s

language was not specific enough to be enforceable by contempt or that

the agency in charge of administering military domestic relations orders

had any difficulty interpreting or implementing the Domestic Relations

Order. The Family Code provides that if a plan administrator

“determines that a domestic relations order does not satisfy the

requirements of a qualified domestic relations order or similar order, the

                                     15
court retains continuing, exclusive jurisdiction over the parties and their

property to the extent necessary to render a qualified domestic relations

order.” Tex. Fam. Code Ann. § 9.104 (West 2006). However, nothing in

the Family Code section pertaining to qualified domestic relations orders

requires such a determination by a plan administrator as a prerequisite

to clarification of the order. In re N.T.P., 402 S.W.3d 13 (Tex. App. 2012)

     Additionally, there does not have to be a finding that the original

order was not specific enough to be enforceable by contempt. Prior to the

2005 enactment of section 9.1045, courts looked to Family Code Tex.

Fam. Code Ann. § 9.008, which provided that “[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 a clarifying order

setting forth specific terms to enforce compliance with the original

division of property.” Tex. Fam. Code Ann. § 9.008(b); see Pearcy v.

Pearcy, 884 S.W.2d 512, 514 (Tex. App. 1994)(relying on prior version of

Family Code Tex. Fam. Code Ann. § 9.008 to conclude clarification of

division of military pay was improper because “there was neither an

expressed nor implied finding that the division of military retirement was

so unspecific that it could not be enforced by contempt.”). However,


                                    16
section 9.1045 provides that a “court that renders a qualified domestic

relations order retains continuing, exclusive jurisdiction to amend the

order to correct the order or clarify the terms of the order to effectuate

the division of property ordered by the court.” Id. § 9.1045(a). Nothing in

section 9.1045 requires a finding that the original Domestic Relations

Order was not enforceable by contempt as a prerequisite to clarification

of the order.

     Clearly the court had jurisdiction to clarify the Domestic relations

Order.

Failure to secure Findings of Facts and Conclusions of Law

     Timothy Parrish filed an untimely request that the trial court make

findings of fact and conclusions of law, and later he failed to file a notice

of overdue findings of facts and conclusions of law, and thus the trial

court was not required to make them. See Tex. R. Civ. P. 296-299. The

Domestic Relations Order that Timothy Parrish filed this appeal was

entered on November 12, 2014 (C.R. at 219) and the twenty day deadline

to request findings of facts and conclusions of law was December 2, 2014.

See Tex. R. Civ. P. 296. Timothy Parrish filed his Request for Findings of

Fact and Conclusions of Law on December 9, 2014. (C.R. at 225). The


                                     17
courts have consistently held that the Trial court was not required to

make findings of fact and conclusions of law in bench trial, when the

request for findings of fact and conclusions of law was filed more than 20

days after judgment was signed. Williams v. Kaufman, 275 S.W.3d 637

(Tex. App. 2009), Harmon v. Harmon, 879 S.W.2d 213 (Tex. App. 1994),

writ denied (Dec. 1, 1994), abrogated by Ratisseau v. Ratisseau, 44

S.W.3d 695 (Tex. App. 2001), rehearing denied, writ denied. Where

appellant there are no findings of fact or conclusions of law, if there is

evidence to support the judgment of the trial court on any theory of the

case, the judgment should be affirmed and every issue raised by the

testimony will be resolved in support of the judgment. McGinty v. Modern

Film Effects, Inc., 553 S.W.2d 21 (Tex. Civ. App. 1977). Therefore all

disputed issues of fact had to be resolved in favor of the judgment and all

evidence in conflict therewith had to be disregarded where appellant did

not ask the trial court to make and file findings of fact or conclusions of

law. Vargas v. Vaca, 376 S.W.2d 65 (Tex. Civ. App. 1964).

           In the instant case the parties agreed that if Trisha Dunahoo

testified she would say that her intention at the time of the divorce was

to receive (1R.R. at 18) the standard division of the retirement benefits.


                                    18
(1R.R. at 19) This court should find that the facts and concluions

support the court decision in this case. Based on the conflict between

the decree and the 2008 Domestic Relations Order the court correctly

clarified the Domestic Relations Order. Additionally the Trial Court had

jurisdiction to clarify the Domestic Relations Order

     The Court of Appeals should overrule the Appellant’s argument

and affirm the Trial Court’s decision.

Appellant’s Argument II

The District Court erred in removing the end of award
provision for the Domestic Relations Order because a collateral
attack was barred by Res Judicata.

Response to Appellant Argument II:

The Trial Court did not err when he clarified the Domestic
Relations Order.

                 ARGUMENT AND AUTHORITIES

     The Trial Court had the jurisdiction to review and clarify the 2008

domestic relationship order. The issue of jurisdiction in this case turns

on whether the Clarification Order was a modification of the Domestic

Relationship Order or simply a clarification of the Domestic

Relationship Order. In the instant case the court clarified the Domestic

Relations Order to allow it to be enforceable. Once this court determines
                                    19
that the Trial Court clarified the order and then the court may enter a

“clarifying order”. Tex. Fam.Code § 9.008(b), a court “may not amend,

modify, alter, or change the division of property made or approved in

the decree of divorce. Shanks, 110 S.W.3d 444 Therefore the issue of

Res Judicata does not apply in this case, and this was not a collateral

attack.

Failure to secure Findings of Facts and Conclusions of Law

Timothy Parrish filed an untimely request that the trial court make

findings of fact and conclusions of law, and later he failed to file a notice

of overdue findings of facts and conclusions of law, and thus the trial

court was not required to make them. See Tex. R. Civ. P. 296-299. The

Domestic Relations Order that Timothy Parrish filed this appeal was

entered on November 12, 2014 (C.R. at 219) and the twenty day deadline

to request findings of facts and conclusions of law was December 2, 2014.

See Tex. R. Civ. P. 296. Timothy Parrish filed his Request for Findings of

Fact and Conclusions of Law on December 9, 2014. (C.R. at 225). The

courts have consistently held that the Trial court was not required to

make findings of fact and conclusions of law in bench trial, when the

request for findings of fact and conclusions of law was filed more than 20


                                     20
days after judgment was signed. Williams, 275 S.W.3d 637, Harmon, 879

S.W.2d 213, rehearing denied, writ denied. Where appellant there are no

findings of fact or conclusions of law, if there is evidence to support the

judgment of the trial court on any theory of the case, the judgment should

be affirmed and every issue raised by the testimony will be resolved in

support of the judgment. McGinty, 553 S.W.2d 21. Therefore all disputed

issues of fact had to be resolved in favor of the judgment and all evidence

in conflict therewith had to be disregarded where appellant did not ask

the trial court to make and file findings of fact or conclusions of law.

Vargas, 376 S.W.2d 65.

           In the instant case the parties agreed that if Trisha Dunahoo

testified she would say that her intention at the time of the divorce was

to receive (1R.R. at 18) the standard division of the retirement benefits.

(1R.R. at 19) This court should find that the facts and concluions

support the court decision in this case. Based on the conflict between

the decree and the 2008 Domestic Relations Order the court correctly

clarified the Domestic Relations Order. Additionally the Trial Court had

jurisdiction to clarify the Domestic Relations Order




                                    21
      The Court of Appeals should overrule the Appellant’s argument

and affirm the Trial Court’s decision.

                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, TRISHA DUNAHOO,

Appellant, requests this Court to AFFIRM in all things the November 12,

2014 Domestic Relations Order. TRISHA DUNAHOO prays for all other

relief to which she is entitled.

                                    Respectfully submitted,

                                    /s/ Bobby Dale Barina
                                    Bobby Dale Barina
                                    Texas Bar No. 01738480
                                    455 East Central Texas Expressway,
                                    Suite 104
                                    Harker Heights, Texas 76548
                                    Tel: 254-699-3755
                                    Fax: 254-699-1074
                                    BobbyDaleBarina@BarinaLaw.Com
                                    ATTORNEY FOR TRISHA
                                    DUNAHOO




                                     22
                 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using
Microsoft Word 2013 and contains 2,769 words, as determined by the
Tex. R. App. P. 9.4(i)(1), computer software's word-count function,
excluding the sections of the document listed in

                                 /s/ Bobby Dale Barina
                                 Bobby Dale Barina




                    CERTIFICATE OF SERVICE

     I certify that on May 15, 2015, I served a copy of Brief of Appellee
on Ashley Clapper, counsel for Appellant, by fax at 254-526-6711
respectively.

                                 /s/ Bobby Dale Barina
                                 Bobby Dale Barina




                                   23
