                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                               NO. 2-08-130-CV


MARRITA MURPHY                                                        APPELLANT

                                        V.

DANIEL JUDE LEVEILLE                                                    APPELLEE

                                    ------------

           FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      In this appeal from a final divorce decree, Appellant Marrita Murphy, pro

se,2 argues the trial court erred by signing a final decree and orders inconsistent

with the parties’ mediated settlement agreement. We affirm.




      1
          … See Tex. R. App. P. 47.4.
      2
          … Murphy is a nonpracticing attorney.
                                 Background

      Murphy married Appellee Daniel Leveille on April 9, 1987. Leveille filed

for divorce on November 14, 2005.

      Murphy and Leveille entered into a written, mediated settlement

agreement on August 30, 2007. The agreement provided that its terms would

be incorporated into a final decree “using the language of the Texas Family Law

Practice Forms Manual” and that any dispute regarding the drafting of the

decree would be submitted to the mediator for binding arbitration. The day

after the mediation, the trial court took judicial notice of the agreement and

granted the parties’ divorce.

      Thereafter, the parties failed to agree on the form of the final decree.

After several hearings, on January 18, 2008, the trial court signed a final

decree and orders regarding benefits submitted by Leveille.      Murphy filed

motions to modify the decree, complaining that the decree contained several

errors and omissions and failed to comport with the mediated settlement

agreement.   The trial court submitted one issue—whether the parties had

agreed that Murphy would receive survivor benefits in both of two retirement

plans—to the mediator for binding arbitration. The arbitrator ruled that Murphy

was entitled to survivor benefits in both plans.




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      The trial court rendered an amended decree on March 24, 2008. Murphy

filed a notice of appeal on April 4, 2008.

                                   Discussion

1.    Amended Final Decree

      In her first issue, Murphy argues that the trial court erred by signing an

amended final decree that varied from the terms of the mediated settlement

agreement. A trial court has no authority to enter a judgment that varies from

the terms of a mediated settlement agreement. In re Marriage of Joyner, 196

S.W.3d 883, 890–91 (Tex. App.—Texarkana 2006, pet. denied); Garcia-Udall

v. Udall, 141 S.W.3d 323, 330 (Tex. App.—Dallas 2004, no pet.); Keim v.

Anderson, 943 S.W.2d 938, 946 (Tex. App.—El Paso 1997, no pet.). A final

judgment founded upon a settlement agreement reached by the parties must be

in strict or literal compliance with the terms of that agreement.        Clanin v.

Clanin, 918 S.W.2d 673, 678 (Tex. App.—Fort Worth 1996, no writ) (reversing

and remanding for limited purpose of reforming decree in accordance with

parties’ settlement agreement).

      a.    Waiver

      In subparts (A), (B), (C), and (E) of her first issue, Murphy argues that the

trial court erred by including language in the amended final decree that if the

decree and the mediated settlement agreement conflicted, the decree

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controlled; that the trial court erred by awarding her half of only the community

share of Leveille’s Federal Employees Retirement System (“FERS”) benefits; that

the trial court erred by failing to use “Texas Family Law Practice Forms Manual

Form 19-31, applicable comment 8 for dividing the community military

retirement”; and that the trial court erred by inserting the words “disability plan

or benefits” into the paragraph of the decree awarding to Leveille his Air Force

and FERS retirement benefits accruing before the parties were married and after

they divorced.

      To preserve a complaint of error in a judgment, a party must inform the

trial court of its objection by a motion to amend or correct the judgment, a

motion for new trial, or some other similar method.           Dal-Chrome Co. v.

Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex. App.—Dallas 2006, no pet.);

see also Tex. R. App. P. 33.1(a).       We have carefully reviewed Murphy’s

“Motion to Modify Judgment,” her “Motion for Reconsideration/Modify

Judgment II,” and her arguments at the February 15, 2008 and March 23,

2008 hearings on her motions to modify. Murphy did not raise the arguments

she makes in subissues (A), (B), (C), and (E) there or elsewhere in the record.3



      3
        … Murphy filed with this court several volumes of documents that do not
appear in the record, and we denied her motions to “Compel Supplemental
Appellate Record.” We cannot consider documents attached to an appellate
brief that do not appear in the record. Till v. Thomas, 10 S.W.3d 730, 733

                                        4
Therefore, we hold that Murphy failed to preserve these subissues for review,

and we overrule them.

      b.    Survivor Benefits

      In subissue (D), Murphy argues that the trial court erred “in the

perfunctory approval of the final divorce decree and changed the bargained for

exchange for Appellant Murphy to have right of survivorship in both the Military

and Federal Retirements.” The gist of her argument is that the parties agreed

that Leveille would obtain survivorship benefits in the retirement plans for

Murphy, but the trial court failed to include such language in the decree.

      The settlement agreement provides that Murphy is to receive

      [a]ny and all sums . . . and any other rights related to any profit-
      sharing plan, retirement plan, pension plan, employee stock option
      plan, employee savings plan, accrued unpaid bonuses, or other
      benefit program existing by reason of Respondent’s [Murphy’s]
      past, present or future employment . . . and ½ of Respondent’s
      interest in FERS and [h]er ½ of the community portion of his USAF
      retirement with right of survivorship.




(Tex. App.—Houston [1st Dist.] 1999, no pet.). This court must hear and
determine a case based on the record as filed and may not consider documents
attached as exhibits to briefs. Id. Therefore, we have not reviewed the
additional documents Murphy attempted to file, and they play no role in our
analysis.

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The trial court’s first decree was silent as to survivorship, and the orders

executed at the same time as the first decree gave Murphy a right of

survivorship in Leveille’s Air Force benefits but not his FERS benefits.

      In her first motion to modify the decree, Murphy argued that the

settlement agreement’s survivorship provision applied to both the Air Force

retirement benefits and the FERS benefits. Because the settlement agreement

provided that all disputes related to drafting a decree that complied with the

agreement would be submitted to the mediator for binding arbitration, the trial

court referred the question to the mediator. The mediator ruled that “Murphy

was to be awarded survivor benefits in both retirement plans” and that “IF Mrs.

[sic] Murphy could impact the retirement [plans] in such a way that Mr.

Leveille’s retirement were to be reduced by any action on her part (e.g., if she

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.”

      The trial court’s amended decree, like the first decree, does not mention

Murphy’s survivorship rights. But the “Amended Retirement Benefits Court

Order for Division of Federal Employees’ Retirement System Benefits” states

that “Murphy is awarded a former spouse survivor annuity,” and the Amended

Domestic Relations Order provides that, with regard to Leveille’s Air Force

benefits, “the disposable retirement pay awarded in this order to Marrita

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Murphy shall continue until the death of Daniel Jude Leveille or Marrita Murphy.

Marrita 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 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 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. We therefore overrule the

remainder of Murphy’s first issue.

2.    Domestic Relations Order

      In her second issue, Murphy argues that the trial court erred by modifying

the terms of the parties’ settlement agreement with its amended domestic

relations order—the order that concerns Leveille’s Air Force retirement benefits.




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      a.    Waiver

      As she did with her first issue, Murphy raises unpreserved subissues in

her second issue—namely, subissues (A), (E), and (F), in which she argues that

the trial court erred by failing to use “Texas Family Law Practice Forms Manual

Form 19-31, comment 8 for dividing the community military retirement”; that

the trial court erred by altering “Appellant Murphy’s 20/20/20 military spouse

status”; and that the trial court erred by altering the “agreed use of the Texas

Family Law Practice Manual Form 19-31, regarding Retiree Statements and

Retirement.” Murphy waived these subissues by failing to raise them in the trial

court, and we overrule subissues (A), (E), and (F). See Tex. R. App. P. 33.1(a).

      b.    Number of “Retirement Points”

      In her subissue (B), Murphy argues that the trial court recited the incorrect

number of “retirement points” belonging to the community in the domestic

relations order—2,864 instead of 3,275.        The difference between the two

numbers apparently results from the delay between the date the trial court

granted the divorce—August 31, 2007—and the date the trial court signed the

first decree—January 18, 2008.

      As the sole authority supporting her argument, Murphy cites 10 U.S.C.A.

1408(c)(1) (West 1998) for the proposition that “the federal government does

not make a division without a Final Divorce[] Decree containing a Fixed Seal of

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the Court,” which, according to Murphy, means that the points to be divided

are those that existed on the date the trial court signed the first decree, not the

date of divorce. Section 1408(c)(1) does not support her argument. Section

1408(c)(1) provides that “a court may treat disposable retired pay payable to

a member for pay periods beginning after June 25, 1981, either as property

solely of the member or as property of the member and his spouse in

accordance with the law of the jurisdiction of such court.”          10 U.S.C.A.

1408(c)(1) (emphasis added).

      Under the “law of the jurisdiction of such court”—Texas law—the extent

of the community estate is determined at the date of divorce, and a spouse is

only entitled to division of property that the community owns at the date of

divorce.   Von Hohn v. Von Hohn, 260 S.W.3d 631, 641, 642 (Tex.

App.—Tyler 2008, no pet.). All assets of the community estate are valued as

of the time of dissolution of the marriage. Id. at 641. Thus, under Texas law

and section 1408(c)(1), the trial court correctly divided the community’s

“points” in Leveille’s Air Force retirement as of the date of divorce.         We

overrule Murphy’s subissue (B).




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      c.    Prohibition Against Elections That Reduce Murphy’s Award

      In subissue (C), Murphy argues that “[t]he language ‘[Leveille] will not

make any election under the Federal Employees’ Retirement [System] or the

U.S. Air Force Retirement Plan that would reduce the amounts awarded to

[Murphy] herein’ was not recorded into any of the court documents yet was

read into the record.’” Contrary to Murphy’s argument, this exact language

appears in paragraph 5 on page 3 of the amended decree.             We overrule

subissue (C).

      d.    Survivor Benefits

      In subissue (D), Murphy argues that the trial court erred by “changing the

bargained for exchange for the continuation of Appellant Murphy’s right of

survivorship in the Military Retirement.” Her argument is essentially the same

as her argument under issue I(D), and we likewise overrule issue II(D)for the

reasons set forth in our analysis of issue I(D).

3.    FERS Order

      In her third issue, Murphy raises several complaints about the trial court’s

order regarding Leveille’s FERS benefits.

      a.    Waiver

      In subissues (A) and (B), Murphy argues that the trial court erred by

awarding her half of the community share of Leveille’s FERS benefits and by

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failing to follow Texas Family Law Practice Manual Form 19-18. She waived

these subissues by failing to raise them in the trial court, and we overrule her

subissues (A) and (B). See Tex. R. App. P. 33.1(a).

      b.    Prohibition Against Elections That Reduce Murphy’s Award

      In subissue (C), Murphy argues that the trial court erred by failing to

include in the FERS order language prohibiting Leveille from making any election

that would reduce Murphy’s award of Leveille’s FERS benefits. As we noted

in our discussion of issue II(C), the trial court included such language in the

amended final decree. Murphy does not explain, nor can we see, why the

inclusion of the language in question in the decree does not afford her adequate

protection—particularly in light of the fact that the FERS order is directed to the

United State Office of Personnel Management, not Murphy or Leveille. We

overrule the remainder of her third issue.

                                   Conclusion

      Having overruled Murphy’s three issues, we affirm the trial court’s

amended decree and amended orders.


                                             PER CURIAM

PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.

DELIVERED: August 26, 2009



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