                                                                                        ACCEPTED
                                                                                      07150029CV
                                                                       SEVENTH COURT OF APPEALS
                                                                                AMARILLO, TEXAS
                                                                              2/17/2015 5:30:49 PM
                                                                                 Vivian Long, Clerk



                      CAUSE NO. 07-15-00029-CV

                                                                   FILED IN
                                                            7th COURT OF APPEALS
                                                              AMARILLO, TEXAS
                          In the Court of Appeals           2/17/2015 5:30:49 PM
,,
I                For the Seventh Court of Appeals    District VIVIAN LONG
 I                                                                  CLERK
                              Amarillo, Texas
1
 I
]
I
J                        TIMOTHY PARRISH
                            APPELLANT
                                   vs.
                          TRISHA DUNAHOO
                             APPELLEE



     ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL
                             COUNTY,
               APPELLANT TIMOTHY PARRISH'S BRIEF



                CORBIN & ASSOCIATES, P.C., Attorneys
                        ASHLEY CLAPPER
                           SBN: 24076317
                        DANIEL A. CORBIN
                           SBN: 04814300
                         603 North 81h Street
                        Killeen, Texas 76541
                         Tel: (254) 526-4523
                         Fax: (254) 526-6711
                     legal@corbinlegalteam.com

                       Counsel for Timothy Parrish
                           TABLE OF CONTENTS


      IDENTITY OF THE PARTIES ..................................... 2
      INDEX OF AUTHORITIES ...................................... 3
      STANDARD OF REVIEW....................................... 4
      STATEMENT OF THE CASE ..................................... 5
      STATEMENT OF THE ISSUES PRESENTED ........................ 6
      STATEMENT OF THE FACTS ................................... 7-10
      SUMMARY OF THE ARGUMENT ............................... 11
      ARGUMENT. ............................................... 12-22
      PRAYER FOR RELIEF .......................................... 23
      CERTIFICATE OF WORD COUNT ................................ 24
      CERTIFICATE OF SERVICE..................................... 25
      APPENDIX .................................................... 26




·''




                                    1
            IDENTITY OF THE PARTIES AND ATTORNEYS


ATTORNEYS
ASHLEY CLAPPER
DANIEL CORBIN
Corbin & Associates, P.C.
603 N. 8th Street
Killeen, Texas 76541
Tel: (254) 526-4523
Fax: (254) 526-6711
Attorneys for Timothy Parrish

BRETT H. PRITCHARD
The Law Office of Brett H. Pritchard,
1201 South W.S. Young Drive
Killeen, Texas 76543
Tel: (254) 501-4040
Fax: (254) 953-1360
Attorney for Trisha Dunahoo


PARTIES
Timothy Parrish, Appellant
Trisha Dunahoo, Formerly Trisha Parrish, Appellee
(hereinafter Trisha Parrish)




                                 2
                                      INDEX OF AUTHORITIES




TEXAS CASES:


Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987) ..................... 19
Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011) ... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 13, 17,18
Joynerv. Joyner, 352 S.W. 3d 746 (Tex. App.-SanAntonio 2011) ...... .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 14, 16
Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) .............. 12, 13, 15
Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th
Cir. Tex. Dec. 19, 2014) ........................................ 12




STATUTES:


Tex. Fam. Code§ 9.006 (2014) .................................. 12
Tex. Fam. Code§ 9.007 (2014) ................................ 12, 13
Tex. Fam. Code§ 9.008 (2014) .................................. 12




                                                     3
                            STANDARD OF REVIEW


      The standard of review for determining whether the district court had

subject matter jurisdiction is de novo. Joyner v. Joyner, 352 S.W. 3d 746, 749

(Tex. App.-San Antonio 2011). "The issue of jurisdiction in this case turns on

whether the trial court modified or clarified the DRO." Id. at 749.




                                         4
                              STATEMENT OF THE CASE


      Timothy Parrish filed a MotiQn for Clarification of Military Retirement in

the 146th Judicial District Court seeking to clarify the award of military retirement

awarded to Trisha Parrish at the conclusion of his military service. C.R. 153.

Trisha Parrish filed a Motion for Enforcement of Military Retirement.

Subsequently, Trisha Parrish filed a Supplemental Motion to Enforce Military

Retirement. C.R. 185. The district court heard the Motion for Clarification of

Military Retirement on May 6, 2014. C.R. 198. The district court took the matter

under advisement and issued a Memorandum Ruling on May 22, 2014. C.R. 198.

The Court ordered that the End ofAward provision contained in the 2008

Domestic Relations Order should be removed and a new Domestic Relations

Order should be entered. (Exhibit C)'. The Court signed a new Domestic

Relations Order on November 12, 2014. (Exhibit D?




      'Memorandum Ruling
      2
          2014 Domestic Relations Order

                                          5
             STATEMENT OF THE ISSUES PRESENTED


1.   Did the District Court have subject matter jurisdiction to remove the End

     ofAward provision thereby modifYing the award of property as

     originally set out in the Final Decree of Divorce and the 2008 Domestic

     Relations Order?


2.   Was the removal of the End ofAward provision from the 2008 Domestic

     Relations Order barred by res judicata and therefore an error for the

     District Court remove the provision?




                                    6
                                  STATEMENT OF FACTS




       Timothy Parrish and Trisha Parrish were married on October 3, 1994. C.R.

5. Subsequently the couple divorced on April30, 2008 at which time the Judge

signed a Final Decree of Divorce and a Domestic Relations Order. (Trial Tr. Vol.

1, p. 5, May 6, 2014). The divorce decree and DRO were signed at the same time.

(Trial Tr. Vol. 1, p. 9, May 6, 2014). The Final Decree of Divorce states in

relevant part "The Court finds that the parties have entered into a written

agreement as contained in this decree by virtue of having approved this decree as

to both form and substance." (Exhibit Al To the extent permitted by law, the

parties stipulate that the agreement is enforceable as a contract." (Trial Tr. Vol. 1,

p. 13, May 6, 2014). The Domestic Relations Order is incorporated into the final

decree of divorce specifically on pages 15 and 16. (Exhibit At The parties

signed the Final Decree of Divorce approving it as to both form and substance.

(Exhibit A) 5 The Domestic Relations Order contained a provision that ended the

award of military retirement to Trisha Parrish after she received the retirement for

      3
          Fina1 Decree of Divorce, page 1
      4
          Final Decree of Divorce, page 15-16
      5
          Final Decree of Divorce, page 20

                                                7
        thirteen years and four months (herein after known as the End ofAward

        provision). (Trial Tr. Vol. 1, p. 6, May 6, 2014 ). Trisha Parrish signed the

        Domestic Relations Order, approving it as to both form and substance, and had it

        notarized prior to the entry of the Domestic Relations Order. (Trial Tr. Vol. 1, p.

        6, May 6, 2014 and Exhibit B 6). Timothy Parrish continued his military service

        and retired in December 2011. (Trial Tr. Vol. 1, p. 5, May 6, 2014). The

        Domestic Relations Order was submitted to Department Finance Accounting

        Services (herein after "DFAS"). (Trial Tr. Vol. 1, p. 5, May 6, 2014). Timothy

        Parrish subsequently filed a Motion for Clarification of Military Retirement

        Division on January 4, 2012 to clarify the amount of the award of the military
~j
~:1
 J      retirement Trisha Parrish was going to receive. (Trial Tr. Vol. 1, p. 6, May 6,
:'I
:j
.I

'I
.,
~ --~
        2014). Trisha Parrish filed a Petition for Enforcement of Retirement on November
"'I
        25, 2013 requesting the court to enforce the military retirement. C.R. 167.

        Subsequently, Trisha Parrish filed a Supplemental Petition for Enforcement of

        Retirement asking the court to remove the provision ending the award of military

        retirement that she would receive from the Domestic Relations Order. (Trial Tr.

        Vol. 1, p. 6, May 6, 2014 ). The court held a hearing on May 6, 2014 regarding the

        clarification. C.R. 198. Timothy Parrish argued that the challenge to the End of


              6
              2008 Domestic Relations Order, page 5.

                                                   8
Award provision was barred by res judicata. (Trial Tr. Vol. 1, p. 6, May 6, 2014).

Trisha Parrish argued that the court was not barred by res judicata because the

provision was riot contained in the divorce decree but contained in the DRO.

(Trial Tr. Vol. 1, p 16, May 6, 20 14). She reasoned that "the divorce decree is the

substantive contract of the parties," and that the DRO is not substantive. (Trial Tr.

Vol. 1, p. 9, May 6, 2014). "The contract was the Final Decree of Divorce, and all

a Domestic Relations Order does is effectuates what the court has ordered." (Trial

Tr. Vol. 1, p. 11, May 6, 2014). She goes on to say that Domestic Relations

Orders are never incorporated by reference, and in this case are not incorporated

by reference." (Trial Tr. Vol. 1, p. 16, May 6, 2014 ). Trisha Parrish further argues

that the court has unlimited jurisdiction to amend a DRO. (Trial Tr. Vol. 1, p. 9,

May 6, 2014). She argues that the End ofAward provision divests her of her

separate property rights because she is entitled to the retirement until the death of

herself or the death of Parrish. (Trial Tr. Vol. 1, p. 10, May 6, 2014). Parrish's

rebuttal argument was that the 2008 DRO was incorporated into the Final Decree

of Divorce and was a contract between the parties. (Trial Tr. Vol. 1, p.13, May 6,

2014). He argued that Trisha Parrish was trying to undo a substantive property

division that was a final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). He

points out that she had 30 days to file an appeal and she made no attempt to appeal


                                          9
the final judgment. (Trial Tr. Vol. 1, p. 13, May 6, 2014). The Court took the

matter of clarification under advisement and subsequently issued a memorandum

ruling. (Trial Tr. Vol. 1, p. 21, May 6, 2014; Exhibit C7). The memorandum

ruling clarified the calculation for Trisha Parrish's portion of the military

retirement. (Exhibit C8). Additionally, the memorandum ruling removed the

provision ending the award of military retirement from the Domestic Relations

Order. (Exhibit C9). On April 30, 2008 the District Court signed the amended

Domestic Relations Order. (Exhibit D 10). Timothy Parrish filed a notice of appeal

on December 10, 2014 to challenge the district court's ruling and entry of the 2014

Domestic Relations Order. C.R. 220.




      7
       Memorandum of Ruling.

      'Memorandum of Ruling
      9
          Memorandum of Ruling
      10
           2014 Domestic Relations Order

                                           10
                        SUMMARY OF THE ARGUMENT


      The district court did not have subject matter jurisdiction to remove the End

ofAward provision in the 2008 Domestic Relations Order. The district court has

the power to clarify any ambiguous terms of the Domestic Relations Order but

does not have jurisdiction to modify or amend the terms of the Domestic Relations

Order if the terms are not ambiguous. The End ofAward provision was not

ambiguous and therefore was a modification of a substantive property division that

was beyond the jurisdiction of the district court.


      Additionally, the terms of the 2008 Domestic Relations Order constitute a

final judgment. The removal of the End ofAward provision is a collateral attack

on a final judgment and is barred by res judicata.




                                          11
                                    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.


        The Texas Family Code gives the trial court that rendered a divorce decree

jurisdiction to enforce and clarify the property division contained in that decree.

Tex. Fam. Code §9.006-9.008. "An order. .. that amends, modifies, alters, or

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

decree of divorce .. .is beyond the power of the divorce court and is

unenforceable." Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San

Antonio 2011). Subject matter jurisdiction cannot be waived and may be raised

for the first time on appeal. Statin v. Deutsche Bank Nat 'l Trust Co., 2014 U.S.

App. LEXIS 24064 (5th Cir, Tex. Dec. 19, 2014). "Judgments should be construed

as a whole to harmonize and give effect to the entire decree." Shanks v.

Treadway, 110 S.W. 3d 444, 447. "If the decree, when read as a whole, is

unambiguous as to the property's disposition, the court must effectuate the order

in light of the literal language used." !d. "When the signing of the DRO occurs



                                         12
contemporaneously with the signing of the divorce decree, courts have construed

the DRO as part of the divorce decree." Hicks v. Hicks 348 S.W. 3d 281, 284

(Tex. App-Houston [14th dist.] 2011). The trial court is without power to modify

an unambiguous property division contained in a divorce decree. Tex. Fam. Code

9.007(b), Joyner v. Joyner, 352 S.W. 3d 746, 750 (Tex. App.-San Antonio

20 II). "An order. .. that amends, modifies, alters, or changes the actual,

substantive division of property made or approved in the final decree of

divorce .. .is beyond the power of the divorce court and is unenforceable." Id.


      The Court in Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003) signed a

divorce decree in 1981 that awarded the wife a 25% interest in the husband's

retirement benefits. There was no Domestic Relations Order entered at that time.

Id at 445. In 1998, seventeen years later, the husband filed a Motion to Sign

Qualified Domestic Relations Order. /d. His contention was that the wife's

retirement benefits should be calculated as 25% as of the date of divorce. Id. The

Wife asserted that the QDRO calculation was barred by res judicata and should be

interpreted as a collateral attack on the property division set out in the divorce

decree. Id. The trial court valued the wife's retirement benefits as of the date of

divorce. Id at 446. The Court of Appeals reversed the trial court stating the "trial

court's QDRO impermissibly altered the substantive division of property made in

                                          13
the original divorce decree." !d. The Supreme Court of Texas affirmed the court

of appeals. !d. The Supreme Court of Texas reasoned that the decree as written

was unambiguous and was therefore not subject to clarification. Id at 447. They

further assert that "the fact that the district court erroneously applied the law when

it entered the divorce decree does not alter the decree's plain language." !d.


      In Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011) the

husband asserts that the trial court lacked jurisdiction to enter a Domestic

Relations Order that impermissibly modified the substantive provisions of his

military retirement. !d. The parties divorced in 2001 at which time the court

entered a divorce decree that awarded the wife a portion of the husbands military

retirement "and stated that her portion would be 'more particularly defmed in a

Domestic Relations Order."' Id at 74 7-7 48. The Court entered a Domestic

Relations Order at the same time that awarded the wife 50% of the community

share of the husband's retirement in a hypothetical calculation. !d. in 2005, after

the husband retired, DF AS began paying the wife 50% of all accrued amounts of

the husband's retirement. !d. The husband filed to clarify the award of military

retirement. !d. The court entered an amended Domestic Relations Order that

changed the wife's retirement to 37 percent. !d. The husband appealed the

judgment stating that it was an impermissible change of the substantive property

                                         14
division. Jd at 749. The court found that the award to the wife was "not

ambiguous because it is expressed witb mathematical certainty," and was therefore

not within tbe subject matter jurisdiction oftbe court to change. Jd at 750.


       Timothy Parrish presents an argument similar to Shanks, and contends tbat

the district court did not have subject matter jurisdiction to remove the End of

Award provision from the 2008 Domestic Relations Order because the provision

was not ambiguous. This issue is raised for tbe first time on appeal. In this case,

the trial court approved and signed a Final Decree of Divorce and Domestic

Relations Order in 2008 tbat contained the End OfAward provision. Much like

the specified percentage in Shanks was unambiguous this provision is not

ambiguous. Trisha Parrish never asserts tbat the End ofAward provision is

ambiguous and therefore subject to clarification. Instead, Trisha Parrish asserts

that the original provision was not permissible under the law at the time the decree

and the DRO were signed. However, the Supreme Court of Texas has struck down

this argument in Shanks. The district court only has subject matter jurisdiction to

clarifY an ambiguous term which is not the case here. The plain language of tbe

2008 Domestic Relations Order clearly stated that the award would end after she

received the retirement for 13 years and 4 months after it began or until the death

of one of the parties. The district court in this case wrongfully changed the award

                                         15
that was set out in the original judgment in plain language which is beyond the

scope of the court's subject matter jurisdiction.


       Additionally, the court in Joyner found that the court was without power to

amend the DRO when the percentage was fixed with a mathematical certainty.

Unlike the award in Joyner this case does not have a mathematical certainty.

However, the language in the End ofAward provision specifies a total number of

years and months that Trisha Parrish is to receive the award of military retirement.

The specific end date is unambiguous and is not open to interpretation and is

therefore, outside of the subject matter jurisdiction of the court to remove.


      Furthermore, Trisha Parrish argues that the Domestic Relations Order is

simply an effectuating document and that the actual judgment is the Final Decree

of Divorce that is subject to clarification. This contention is flawed in two

different respects. First, the plain language ofthe Final Decree of Divorce states

that the terms are "more particularly specified in the domestic relations order

signed coincident with this decree and incorporated verbatim in it by reference."

(Exhibit A) 11 • The justification she gives to the court is basically that even though

the Final Decree of Divorce contains that language it does not really mean what



      11
           Final Decree of Divorce, page 15-16

                                                 16
     the plain language states. This argument is simply without merit. The terms of the

     Final Decree of Divorce are "enforceable as a contract," including the provision

     that incorporates the 2008 Domestic Relations Order into the Final Decree of

     Divorce. Furthermore, by signing the Final Decree of Divorce Trisha Parrish

     agreed to the terms of the 2008 Domestic Relations Order that was incorporated

     into the decree, specifically the End ofAward provision.


           In addition to the plain language of the Final Decree of Divorce that

     incorporates the terms of the 2008 DRO, the courts have addressed this issue in

     Hicks v. Hicks, 348 S.W.3d 281 (Tex. App. -Houston [141h dist.] 2011).


           The parties in Hicks entered into an agreed Final Decree of Divorce which

     was signed by the court at the same time the Domestic Relations Order was

     signed. ld at 282. The divorce decree expressly deleted any reference to the DRO

     contained in the decree. ld at 284. The DRO contained a provision "designating

     Wife as the former spouse beneficiary of the [husband's] Survivor Benefits Plan

     when no such designation was made in the final decree of divorce." Id at 283.

     The husband appealed the judgment stating that the court erred in signing the

     DRO with the additional provision as it was not contained in the divorce decree.

     ld. The Court found that the general rule is "when the signing of the DRO occurs



                                             17
,j
 '


 '
contemporaneously with the signing of the divorce decree, courts have construed

the DRO as part of the divorce decree." !d. at 284. The court reasoned that in this

spec'ific case, because the "references to the DRO are expressly deleted from the

agreed decree", that the court was to view the DRO as a separate order and not to

be read as part of the agreed divorce decree. Id.


      Trisha Parrish urges the court to view the Final Decree of Divorce as the

final judgment and the 2008 DRO as an effectuating document, whose terms are

not to be read as part of the substantive final judgment much like the Appellant in

Hicks. However, unlike Hicks, the Final Decree of Divorce in this case

specifically points to the 2008 Domestic Relations Order as an extension of the

final decree to be "incorporated verbatim in [the final decree] by reference."

(Exhibit A). In applying Hicks to this case the court must view the 2008 Domestic

Relations Order to be read in conjunction with the divorce decree and the terms

contained in the 2008 DRO should be treated as those contained in the divorce

decree.


      When the Court reads the Final Decree of Divorce and the 2008 Domestic

Relations Order as incorporated into the decree by virtue of the documents plain

language, and under the court's decision in Hicks v. Hicks, 348 S.W. 3d 281 (Tex.


                                         18
App.-Houston[14th dist.] 2011), as a whole, the court will find that the End of

Award provision is unambiguous and therefore beyond the subject matter

jurisdiction of the court to clarifY, As such, the Seventh Court of Appeals should

reverse the ruling of the 146th Judicial District Court.


   II.    THE DISTRICT COURT ERRED IN REMOVING THE END OF
          A WARD PROVISION FROM THE DOMESTIC RELATIONS
          ORDER BECAUSE A COLLATERAL ATTACK WAS BARRED
          BY RES JUDICATA.


   "The doctrine of Res Judicata bars relitigation of issues decided in a final

judgment." Cookv. Cameron, 733 S.W. 2d 137, 140 (Tex. 1987). Errors other

than lack of jurisdiction render the judgment merely voidable and must be attacked

within the prescribed time limits. Id. "A judgment is void only when it is apparent

that the court rendering the judgment 'had no jurisdiction of the parties, no

jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no

capacity to act as a court."' !d. "Errors other than lack of jurisdiction render a

judgment merely voidable and must be attacked within prescribed time limits." !d.


    In Cookv. Cameron733 S.W. 2d 137 (Tex. 1987), the court signed a final

decree in March 1979 that awarded thewife 35% of the husbands gross retired

pay. Id at 138. The court also added a contingent award that would make the


                                          19
award to the wife an amount equal to 45% ifthere were further litigation in the

case, other than a direct appeal. Id at 139. There was a direct appeal taken

(Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.-Corpus Christi 1980) and

the court affirmed the award of 35% of the gross retirement to the wife but

clarified dates that were not to be included in the calculation. !d. After the

husband retired he refused to pay the wife 35% of the gross retirement because

DFAS was paying 35% of the net retirement. !d. The wife subsequently filed an

enforcement. !d. The trial court refused to enforce the decree as did the court of

appeals stating that the amount of the award affirmed in the Texas Supreme Court

opinion in Cameron v. Cameron, 608 S.W. 2d 748 (Tex. Civ. App.--Corpus

Christie 1980) was ambiguous and subject to clarification. !d. The Supreme

Court of Texas found that the refusal of the trial court and the appellate court to

enforce the ruling in Cameron was a collateral attack on a final judgment. Id at

140. The Supreme Court of Texas reasoned that the doctrine of res judicata

applied to the final judgment and the collateral attack was without merit. !d. The

husband further argued that the judgment was void because the contingent award

divested him of his separate property rights and was therefore subject to collateral

attack. !d. The Court found that there had not been a direct appeal of the

contingent award during the prescribed time limits and therefore that provision

                                         20
was not subject to collateral attack. I d. The Court reasoned that "even though the

contingent award was improper, the divorce decree, including the contingent

penalty, is not subject to Cameron's collateral attack. Res judicata also applies

here to prevent relitigation of issues which should have been litigated in an earlier

appeal." Id.


      This case is almost identical to Cook. Timothy Parrish argued that Trisha

Parrish is attempting to change substantive property division by removing the End

ofAward provision contained in the 2008 Domestic Relations Order. He reasons

that this provision in the final judgment cannot be collaterally attacked because it

is barred by Res Judicata. The Court signed the Final Decree of Divorce and

Domestic Relations Order on April 30, 2008 at which time the judgment became

final. Trisha Parrish had 30 days to file an appeal of that judgment if she

disagreed with the judgment, which she failed to do. Additionally, Trisha Parrish

makes the exact same argument contained in Cook, that the trial court improperly

divested her of her separate property rights. However, the Texas Supreme Court

struck down that exact argument because it is one that should have been appealed

directly after the judgment. The law does not allow Trisha Parrish to return to

court six years later to attempt to change a property division that she is no longer

happy with, that she agreed to in the original documents.

                                         21
       The Final Decree of Divorce and the Domestic Relations Order became a

final judgment of the court 30 days after they were signed in 2008. Trisha Parrish

did not appeal the substantive property division within the prescribed time limits.

Therefore, the Seventh Court of Appeals should reverse the 146th District Court's

ruling because the attack on the substantive property division was barred by res

judicata.




                                        22
                                          PRAYER FOR RELIEF

    .I
"-1
,-·1
                  WHEREFORE, PREMISES CONSIDERED, Appellant, TIMOTHY
·'
            PARRJSH, respectfully prays this Court reverse the Trial Court's ruling.

            Appellant respectfully prays for any such other and further reliefto which

            Appellant may be entitled to at Jaw or in equity.




                                            Respectfully submitted,




                                            CORBIN & ASSOCIATES, PC ATTORNEYS
                                            603 North gm Street
                                            Killeen, Texas 76541
                                            Tel: (254) 526-4523
                                            Fax: (254) 526-6711


                                            By:UUJCv)
                                            ASHLEY CLAPPER
                                            State Bar No. 24076317
                                            DANIEL A. CORBIN
                                            State BarNo. 048I4300
                                            Attorneys for Appellant
:    ..1'



t:
!-_;



                                                     23
                          CERTIFICATE OF SERVICE


      Pursuant to TEX. R. APP. P. 9.4(i), I certify that a copy ofthis brief has a

word count of 4,193 words as counted by Wordperfect word count feature.




                                        24
                           CERTIFICATE OF SERVICE
      Pursuant to TEX. R. APP. P. 9.5, I certify that a copy of this brief has been
mailed via U.S. Mail, postage prepared to the following on d-/7- 6                 .

BRETT H. PRITCHARD
The Law Office of Brett H. Pritchard,
1201 South W.S. Young Drive
Killeen, Texas 76543
Tel: (254) 501-4040
Fax: (254) 953-1360
Attorney for Trisha Ann Parrish




                                        25
                                           APPENDIX


        EXHIBITS


          A.         Final Decree of Divorce


          B.         2008 Domestic Relations Order


          C.         Memorandum Ruling


          D.         2014 Domestic Relations Order


          E.         2014 Domestic Relations Order Nunc Pro Tunc


        CASE LAW

,,
',,


          1. Cameron v. Cameron, 608 S.W. 2d 748 (Tex. App.--corpus Christi 1980)


          2. Cookv. Cameron, 733 S.W. 2d 137 (Tex. 1987)


          3. Hicks v. Hicks, 348 S.W. 3d 281 (Tex. App.-Houston [14th dist] 2011)

 ~- ;
          4. Joyner v. Joyner, 352 S.W. 3d 746 (Tex. App.-San Antonio 2011)


          5. Shanks v. Shanks, 110 S.W. 3d 444 (Tex. 2003)


          6. Statin v. Deutsche Bank Nat'! Trust Co., 2014 U.S. App. LEXIS 24064 (5th

               Cir. Tex. Dec. 19, 2014).

                                               26
                                                                                                                           Puge 1




                   LexisNexis(i)
                          Pnu1t\rchihnld C::uucrnn, Appellant,''· Sue Akers Cameron, Appellee

                                                           No. 1578

                           Court of Civil AJ)pcals of Tcx11.s 1 Thirrc-clllh District, Corpu_s Chrisli

                                        608.1: Wld 748; HSII Tex. App. tEXTS 40211


                                                      Oclulu:r 23, 1980

SUBSEQUENT HISTORY:                 ['*I] Rehearing Denied             l*7SO] A review of the pertinent fncts of this case
November 20 1 19SO.                                               arc as follows. App~llanL entered the United Stales Air
                                                                  Force on .hmc 22, 1954, in New York. l**2] In 1955,
PRIOR HISTORY: On Appeal from the 28th Dislrict                   appelhmt \\·as :;tationcd at Lubbock Air Force Base in
Court ofNucccs County, Tcxns                                      Texas. The parties married in Midland, Tcws on
                                                                  September 29, 1957, and departed that day for California.
                                                                  The panics lived in Califomia_. n community property
COLI!"\SEL: For Appellant: Charlc' R. Cunninghmll ·               state, for thrc_c months. Thereafter, the· parties lived in
Corpw:: ChristL TX.                                               vnrious common law st.1tes. Appd1anl retired from the
                                                                  military m1 September I. 1977, at Grissom Air Force
For Appdkc: ScouT. Cook- Corpus Christi, TX.                      Ba'iC, TJlCiiana, The partics_thcn moved tnCorpus Christi,
                                                                   Texas..
,JLJDGI~S:    Horace S. Voung, l\ssodatc Justice.
                                                                       The pariics were di\"Orccd on March 29~ 1979. AI
OPIN!Ol"\ liY: YOUNG                                              the time of' trinl, appellant was receiving Sl 1 507Jl pL'r
                                                                  month under hi_s military rctiremclll bencCit'i and caming
OPINIO:'\                                                         nn annual salary of SJJ,()OO.OO as an accounting
                                                                  mstructor i.ll Corpus Christi State University. Appellee,
        [*749] In this appeal from a part of the trial court's
                                                                  at the time of lrlal, wa~ earning an annual salary of
judg-mclll in a divorce suit, Paul Archibald Cameron is
                                                                  $18,000.00 ns the DircCior or Placement at Del Mnr
uppcllaut and Sue Akers Cij.mcron is. appcllcl!. The
                                                                  College in Corpus ChristL
judgment granted the divorce, appointed appellee as
1   n:maging conscrvatQr o'f the one minor child, ordered               Appellnnl, ln points of crrms, one, two and- seven.
appellant 10 pay child support, u_nd divided the proper!);        contends the trial__c:ourt erred in divesting him of title to
of the parlic!'. AltJ10ugb there urc sOme fifteen points of       his separnte propeny _military retir-ement bencflls. Jt is
cnor raised by appellalll, the central issue in this uppcal       well sclllt!d lhat an- interest in a mililmy rclircmc.nt plan is:
mvnlvts the trial court'$ divestiture of' appellant's title to    an eat·ncd property rlght. This property right accrues by
his sep-arah': pen:ollill property. We hold that ~uch             fCtlSOJ1 or tile years of Service spct1l in the militmy [**3J
divestiture is not permissible by a trial com1 under the          by thnt spouse. B1ryby 11• Busby, 4S7 S. JV.2d 551 (Te:r.Sup.
recent Supreme Cmnt case of Campbd/1'. Campbell. 13               1970); Cearley "· Cearley, 544 S.W.2d 661 (Tex.Sup.
Tcx.Supp.CU :191 (June 4, 1980).            We accordingly         /976). Milil:_uy retirement, being an earned property
rc~1 crsc and rcnumd in part.                                     rig.hl 1 is sul~cct to division upon dissolution- of the
                                                                                                                        Page 2
                                608 S.W.2d 748, •750; 1980 Tex. App. LEXIS 4020, ••3



marriage. The inception of title rule is applied to          receipt.
dctcnninc the existence of a community property interest
in retirement benefits. Busby ~~. Busby, supra: Mitchim v.        In construing lhe meaning of a judgment, the entire
Mitdrim, 509 S. W.ld 710 (Tcx.Civ.App. -- Austin 1974),      contents of the inslrUmenl [ .. 5] must be considered.
re••'d on olhcr grounds, 518 S.W:ld J~] (fex.Sup. 1975).     The judgmcm should be read as a whole and each pari
lienee, the military rt:tircmcnt benefits which accrue       should be interpreted with rcrcrcncc to its entirety. Lou~
during the marriage while residing in common law states      S1ar Cement Cal'paralion v. Fair, 467 S. W.2d 401
and lhc benefits which accrue while single are 1hc           (Tex.Sup. 1971); State v. Star·/ey, 413 S.lfl.]d 451
separate property of the spouse in lhe military.             (Tcx.Civ.App. --Corpus Chrisli 1967, no wril). We hold
Conversely. the retircmcna benefits which accrue while       lhe judgmcnl clearly di\•cslcd appellant or lille to
residing in community property states arc community          thirty-five pcrccnl of his retirement benefits.
property. Busby ''· Busby, s11pra; Mite/tim \'. Mile/Jim,
                                                                   [•751) Prior lo lhe rcccnl Supreme Court case of
sup,·a.
                                                             Campbell   1'. Cumphe/1, supra, several or the Courts of

     Appellee counters appellant's divestiture theory in     Civil Appeals had held !hal while a lrial court tnay nol
her supplemental brief, filed after lhc Campbell decision,   divest one spouse of title to his or her separate real
by stating that lhe trial court did not aclually divest      property and transfer Iitie 10 the otl1er spouse [Eggemeyer
appcllanl of tide lo his scparale personal property. We      1•. Eggemeyer, 554 S. lV.ld JJ7 (fex.Sup. /977)/lhc lrial

disagree.                                                    court could divide the separate personal property of the
                                                             parties. The Supreme Court. however, in Campbr!ll
     The judgrnem reads, in part, as follows:                clearly slaled lhal lhcy consider lhcir holding in
                                                             Eggemeyer as stare decisis and hence controlling upon
            "Paul A. (**4] Cameron, Jr. is awarded           the issue of whether a trial conn may divest a spouse of
          as his sole and separate property all              his or her separnlc personal property. The following
          interest. separate and community, in the           language from Em:emeyer was quoled in Campbell:
          United States Milital}' Retirement Plan
          described above, subjccl only 10 lhe life                       "Trial Courts have a broad latitude in the
          interest of Sue A. Cameron and the                            di\·ision of the [.,..6) marital community
          Sun•ivor Benefit Package as hereinabove                       propeny, but that discretion docs not
          specified."                                                   extend to a taking of the fcc to the separate
                                                                        property of the one and its donation to the
This language is found in the judgment under the heading                other.••
''Division of Military RctircmcnL'' The conn also ordered
lhe following division of property:
           "A. Property lo Petitio11er. Petitioner is             The Court accordingly held thai a lrial coun may not
        awarded the following as Pelitioner's sole           divest one spouse of his or her title to separate personal
        and separale property, and Respondenl is             property and trunsrcr Iitie 10 the olher spouse. Hence, lhe
        hereby divesled or all righls, lille and             divesliture of appcllanl's lide 10 lhirly-five pcrcenl of his
        in1eres1 in and lo such property: ... (8)            separate propcny military retirement benefits was
        1ha1 percentage of lhe United States                 enoneous. Appellant's points of error one, two and seven
        Milit.ary Retirement of Paul A. Cameron,             are sustained.
        Jr. in accordance with the terms
        hereinafter SCI rortb."                                   Appellan1, in his third point of error~ contends that
                                                             lhc lrial court erred in awarding one-half of lhe Unilcd
The judgment funhcr rcciled lhal 1hc Uni1ed Sones            States Savings Bonds to appellee. These bonds were
Government would not directly rorward 10 appellee- her       acquired from runds withheld from appellant•s military
separate share of lhe retirement benefits. The court,        pay. The record rcOccts that the appellant was in the
lhcrcforc, made appellant constructive trustee of            mililary for a lola I or 278 monlhs. or lhese 278 monlhs,
thiny-five percent of thc retirement benefits and ordered    appellant was single for 39 months. During the
him to pay such sum to appellee within fh•e days of          remaining 239 months the parties resided in common law
                                                             states for 233 months and in a community propcny slate
                                                                                                                        Page 3
                                      608 S.W.2d 748, •751; 1980 Tex. App.LEXJS 4020, ••6



       for three months. We hold, therefore. that 275/278 of the    making a claim against the panics for the 52,800.00 paid
       United Stales Savings Bonds were the separate property       in error.
       of appellant. As we ha\'C mentioned, a trial court n1ay
       not divest one spouse ln7) of the title to his or her             All propeny possessed by eitl1cr spouse at the
       separate property and transfer the same lO the other         dissolution of the mnrriage [US] is presumed to be
       spouse. Campbell "· Campbell. supra. Appellant's third       community property. Tex.Fam.Codc Ann. § 5.02.
       poinl of error is sustained.                                 Appellant had the burden of rebutting the presumption
                                                                    lhat the sa\'ings account was part of the community
            Appellant, in his fifth point of error, contends that   estate. Tan·er 1'. Tan'er, 394 S.lf'.ld 780 (fa.Sup.
       the trial coun erred in ordering him to pay a $2,800.00      1965); Cel,•ames ''· Cen•a111es, 59/ S.lf~2cl 332
       debt This debt arose as a resuh of a savings account in      (Tex.Civ.App. --Corpus Christi 1979, no writ). We find
       Wochovia Bank and Trust Company, Kingston, North             that appellant has failed to overcome this burden.
       Carolina. There was testimony in the lower court with        Appellant's fifih poinl of error is overruled.
       regard to the savings account Appellant testified that il
       was his separate property account Appellee testified that        After a careful review of appellant's remaining points
       she was authorized to draw on the account and it was,        of error and appellee's eross-poinl, we deem it
       therefore. a jointly owned sa\'ings account of the panics.   unnecessary 10 consider these poinrs in light of our
                                                                    holding.
           Prior to lhe separation of the panics, appellee
       withdrew 52,800.00 from the savings account. This sum             Under Rule 434, T.R.C.P., that the ponion of the
       was approximately one-half of the balance. Appellant         judgment dividing the property of the partie.~ is reversed,
       thcrcaficr withdrew the remaining balance of the account     !levered and remanded to the trial eoun for a new trial on
       plus an additional $2,800.00. Tile additional $2,800.00      that issue. The remainder of the judgment is affirmed.
       was withdrawn by appellant due to an error of the bank.      The costs of this appeal are taXed one-half to each of the
       The bank, at the time of trial, was in the process of        panics.

.. ,
                                                                                                                                   Page 1




                       LexisNexis®
                         Sue Akers Cr1ok 1 formerly Sue Akers C:uneroni Jlclitinncr~ \'.Paul Archibald
                                                    Cameron, Hcspondcnt

                                                                  No. C-4658

                                                  SUPREME COURT OF TEXAS

                                   733S.W:2d !37; 1987Te>e IEYIS 369; JO Tex. Sup• .I. 550


                                                           .July 8, 1987, Decided

PRIOR HISTORY:        ['*I]  FROM NIJECES                               690. We reverse the. judgmcnl of the court of 1\f)pc.als nnd
COUNTY TIIJRTEENHI DISTRICT.                                            render judgmc.nt fm Conk.

                                                                              Sue Cnok, fonnerly Sue Cameron, und P;ml
COLJJ\SEL: Dudley, Mr. Willi:un A.._ Harri:i, Cook.                     Camero!! divorced in l\·l<trch 1979. As ~l pu11 Qf the
Hrowni11g, Jordan & llyden, Co~1k, Mr. Scolt T., Harris,                dh·on.;e dc:crcc in the prior suit; the trial court owardcd
Cook. Browning~ Jordan & Hyden, for petitioner-                         Cook lhirty-fh~ percent [0!'-"'2j <'f Cameron's gross
                                                                        mil"ilury retirement pi!y. The co·nn of ilppcals rcvcrsl!d the
Viles. Mr. Bn1cc D .. Wood & Burney. for rc.spondcm.                    tl'ial courCs uward. Cameron v. Canwrwl, 608 S.W.2d
                                                                        748 (Tex.Civ.App.- CmJ>US Christi 1980). In TC\'ming
JUDGES~            franklin S. Sj1ear:t, Jwaice. Concurring and         that cou11 o f':uprcals' judgment, rhi.'l court stated:
dissenthig opinlon by Wallace.
                                                                                     The .divorce   d~crc:c,   d;:ttcJ March 29,
OPINION lJY: SPEARS                                                             I ?79. nwards Sue Cameron hthirty-fivc
                                                                                perCclll (35 6,·0) of the gross prc...tcnl and
OPJNJO~                                                                         futt.tt~ Military Retirement presently being
                                                                                received. n Sue Olmeron is entit-led to
         ["13Sj ON MOTION FOil REIIEAilJN(;
                                                                                recover that thirty-fi\'c J1etcent hut nol
        \Vc gmnt the motion for n.:hcaring. withdraw the
                                                                                !'rom the perind from ?\·farch .25, 1979 to
                                                                                June 25, 198 I. 11u~refore, we affirm thnt
judgment and opiniou of March          l~j J9~..:7,   anU :iUbstitutc
                                                                                pari of' the trial court judgment awarding
I his   opinion.
                                                                                Sue Came-ron thirty-five percent of [~ J 39]
        This. is a post-judgment snit scekittg to enforce: our                  Lhc military retircmcnLpay .... (emphasis
judgmcm in Cameron v. Cameron, 64 I S. H~2t! 210 (Te.\·,                        addeo)
1982). The trial court refused to nrdcr Paul Cameron to
pny Sue Cook the difference between nur judgment                         641 S.W2d 210,213. Our opinion further addr~.:sscd the
afllrn1ing the divorce dr.cree_awnrding thirt.y-Hvc percent             nwurd of .U.S. Saviugs Bonds. Ln tli~ conclu:~ion, this
gross military rctit-cmc1u benefits und the govcrnn1ent's               cnun hciU_rcgarding the military rcJitcJUellt bl:nefil.';:
direct pnyment of lhirty-fivc percent net disposable                                \\:'e reverse that part of the: judgmcm of
rerirt.!I11C11L The cmm of appeals nflinned.           j()J S.   Wld            the cuun of uppcul~ that reversed the trial
                                                                                                                       Pagc2
                                    733 S.W.2d 137, '139; 1987 Tex. LEXIS 369, "2;
                                                  30 Tex. Sup. J. 550


        court's judgmcntlhat Sue Cameron rccciv~                Cameron her share of Military Retirement. . . ." 641
        thirty-fi\•e percent of military retirement             S. W..!d al 22.3. Even though the opinion earlier affinned
        pay, and we render judgment awarding                    the trial court's award of a gross percentage, the court of
        Sue Cameron her share of the military                   appeals st.Dted it was unclear whether ''her share of
        retirement pay but only from June 25,                   military retircmcnl" referred 10 gross or net disposable
        1981. /d. ot22J.                                        benefits. The court of appeals held the trial court had no
                                                                jurisdiction (.. 5] to resolve the ambiguity or enforce the
 [•• 3] The divorce decree also granted Cook forty-jil'e        judgment since the Supreme Coun had rendered our
percent of Cameron's gross military retirement in the           "ov.11 judgment." The court also affinned the uial court's
cvcnl further litigation other 1han a direct appeal was         refusal to award attorney's fees to Cook.
required to enforce the award of tllil'ly-flve percenl gross.
That provision was not appealed to this coun in                      On appeal here, Cook argues that the trial court and
Cameron.                                                        the court of appeals erred in failing to enforce our
                                                                Cmrwron judgment affinning the decree awarding
   This prcsenl action arose when Cameron disputed an           thirty~tive percent of gross military retirement pay. Cook
amount withdrawn by Cook fron1 a supcrccdcas bond on            contends the trial coon had a duty to enforce the decree
deposit whh the trial court. Cook returned to the trial         as affinned. We agree.
court that rendered the divorce decree and filed a n10tion
for contempl against Cameron, a motion to enforce                    When an appellate coun affinns a trial court's
judgment, and a motion in aid and clarification of              judgment or renders a judgment which the trial court
judgment. The trial court's order of July 25, 1983, held        should have rendered, that judgment becomes the
thai Cameron was required under this coun's judgmenl to         judgment of both courts. Stale \'. Walker, 679 S.lf'.2d
pay lhirty·five percent of his gross retiren1cn1 pay. The       484. 485 (Tex. 1984). "It is the duty of the trial court to
trial court awarded Cook an equitable lien for the              cnrorcc the judgment as [rendered)." C/Q• of Tyle•· v. St.
arrcaragcs, but determined Cameron's non-compliance             Louis S. W R.l'. Co., 405 S. W.2d JJO, 332 (Tex. 1966); see
was in good faith. The court held him in contempt for not       also TEX. FAM. CODE § 3.70) (Vernon Supp.
furnishing an accounting statement Ia Cook, but refused          19R7)(enforccment of divorce decree). Cameron affinns
to activate the contingent benefit provision awarding           the trial court's decree of thirty~ti\'e percent gross military
forty· five percent gross retirement.                           retirement pay. 641 S.W.ld ol 2/J. The trial court's
                                                                judgment. therefore, became the judgment of this court,
     In June 1983, the United States Government began           and the trial court erred in not enforcing the [.. 6]
paying Mrs. Cook directly, but only in an amount equal          judgment as rendered.
10 thirty-five t••4] percent of net dispo.r;able military
retirement. Cameron refused lo pay the difference                     [•.140) Tile refusal or lhc courts below to enforce
between our judgmenl and the government's direct                the award of gross pay derives from their interpretation
payment. Cook again rerumcd 10 lhe trial court in               that the USFSPA only approves payment of net
November, 1983 and filed a second amended motion for            disposable retirement pay. While we recognize the trial
contempt and a motion to enforce judgment, both of              court's and the court of arpeals' concern that Cameron
which lhe court denied. The trial court reasoned the            may conflict with the USFSPA, Cameron affinncd the
Unifonn Services Fonner Spouse's Protection Act /0              award of gross pay, and that judgment became final. The
U.S.C. § 1408 (1983) (USFSPA) only applies to net               doctrine of res judicata bars rclitigation of issues decided
disposable retirement, and a court may not. by valid            in a final judgment. Garcia ''· R.C. Cola •• 7-Up Bo11/ing
judgment, compel a payment of gross.                            Co., 667 S.W2d 517. 519 (Tex. 1984). Paul Cameron
                                                                correctly asserts thai a void judgment may be collaterally
     Cook then appealed to the court of appeals which           attacked; however, if the trial court's award of gross pay
affirmed the trial court's order. The court or appeals          were void, we would have so held in Cameron. Thus, lhe
determined the trial coun had no jurisdiction to hear           lower courts' refusal to enforce Camel"on as wriucn
Cook's motion for enforcement bccau.llie our Camcrmr            because they disagreed with the award of gross bcnefitc;
judgment was ambiguous. In the concluding sentences of          was an improrcr rclitigation of issues delcrn1ined in lhe
Cameron. we "render{ed] judgment awarding Sue                   prior final judgment. Although a holding may be
                                                                                                                            Page 3
                                           733 S.W.2d 137, "140; 1987 Tex. LEXIS 369, ""6;
                                                         30 Tex. Sup. J. 550


       subsequently overruled or disapproved, the O\lem.Jicd           though the contingent award was improper, the di\'orce
       judgment remains final to the panics involved. Segrest v.       decree. including lhe contingent penalty, is not subject lo
       Segrest, 649S.W.2d6/0, 612,<·ert. denied, 464 U.S. 894,         Cameron's collaleral [....,9] attack. Res judicata also
       78 L. Ed. 2d 232, /04 S. Ct. 242 (/983).                        applies here to prevent relitigation of issues which should
                                                                       have been liligated in an earlier appeal. Segrest, 749
             We [ ... 7] next addres.'i the contingent increase        S.W.2d nl 613. Determining lhat the contingent escalalion
       award of fony-nvc percent gross military retirement In          is not void does not, however~ completely resolve Cook's
       the 1979 divorce decree, the trial conn ordered thirty-five     contention that the trial court erred in refusing 10 aclivale
       percent gross retirement pay was just and right only if         ~1c penalty.
       Cook rccei\•ed that amount 11 Wilhout further litigalion
       other than a direct appeal." In the event Cameron failed to            The Family Code authorizes a trial court to issue
       comply with the award, the decree slated fony-five              orders in aid or clarification of a fanner divorce decree.
       percent of the gross retirement pay was just and right.         TEX. FAM. CODE ANN. § 3.70-.72 (Vernon Supp.
       Cook argues that the molions 10 force Cameron lo                1987). On Cook's first motion for contempl and motion in
       comply \\ith the conn's judgment constitute ''further           aid and clarification, 1he trial court found Cameron in
       litigation," and therefore, she is entitled to the contingent   contempt for failing lo forward an accounting statement
       increase.                                                       to Cook [•141) within five days of his rcccip~ bUithat
                                                                       11
                                                                          finding of contempt docs not amount to further
            Cameron contends the contingent increase is void           liligalion." On Cook's amended second motion. the trial
       and unenforceable as a matter of law. He asserts (I) the        court again refused Cook's request to activate lhe
       contingent provision renders the decree indefinite and          contingent escalation.
       uncenain because "funhcr litigation" is undefined and
       unclear; (2) the trial court is authorized to make only one          We hold the trial court's denial of Cook's request
       "just and right" division of property, and the contingent       does not mandate reversal. Cameron's testimony at the
       increase constitutes a second propeny division; and (3)         contempt hearing eslablished 10 the trial court that he did
<i
:::    the increase operates to divcs.t him of his separate            not willfully refuse to pay Mrs. Cook 35% of gross, but
       property after divorce. Cnmeron olso claims the                 instead considered the counsel of a lawyer with the Air
:--i
       contingent prm•ision is unconstitutional because it             Force Accounting and [ .. 10] Finance Center, the
   I
       violates the open courts provision, the due process [..8]       ranking legal officer at the Corpus Chrisli Naval Air
       clause, separation of powers, and the equal rights              Slation, and his own attorneys. Cameron's conclusion that
       amendment to the Texas Constitution.                            a gross amount wa.'i not required by our Camcro11
                                                                       judgment appears to be in good faith and docs not
            A judgment is void only when it is apparent thai the       warrant our imposition of the improper contingent
       coun rendering judgment "hod no jurisdiction of the             penalty. We agree that the aclion here resolving the
       panics, no jurisdiction of the subjecl maner, no                dispule concerning our Camerorr judgment does not
       jurisdiction to enter the judgment, or no capacity to acl as    constitute "further litigation" as intended by the decree.
       a court." 8rolt'ni11g ''·Placke, 698 S.W.ld 362. 363 (Tex.
        1985). Errors other lhon lack of jurisdiction render d1e            Finally, Cook also argues she is entillcd to attorney
       judgment merely \'oidable and must be attacked wi1hin           fees incurred in the proceeding to enforce the decree. A
       prescribed lime limits. /d. The trial court issuing the         court may, in its discretion, award attorney fees in a
       divorce decree had jurisdiction of the parties, subject         proceeding to enforce a divorce decree. TEX. FAM.
       matter, and capacity 10 act as a court. Any error regarding     CODE ANN. § 3.77 (Vernon Supp. 1987). Cook has
       the contingent increase then, rendered the judgmcnl             mude no showing, however, that the court abused its
       voidable, not void ob initio.                                   discretion in failing to nwnrd nttomcy fees.

           Cameron appealed the conlingenl increase provision               Accordingly, the judgments of the lower couns are
       to the court of appeals in his appeal from the divorce          reversed. We render judgment ordering the trial court to
       decree, but did not appeal the contingent award to this         enforce the judgment in Camero" v. Camei'OJJ awarding
       court. Cameron did appeal the conlingent provision in his       Cook thirty-five percent of gross retircmcnl benefits
       Cameron motion for rehearing, bul by nol submitting a           beginning June 25, 1981. This cause is remanded lo the
       crosspoint in Camero,, he waived 1he error. Thus, even          trial court solely 10 detenninc the amounts owing to
                                                                                                                                Page 4
                                               733 S.W.2d 137, •141; 1987 Tex. LEXIS 369, ••10;
                                                              30 Tex. Sup. J. 550


             Cook.                                                        event that [Cook] receives the allotted share without
                                                                          further litigation other than a direct appeal. . . ."
             COSCUR B\': WALLACE                                          Litigation is defined as a contest in the courts 10 enforce a
                                                                          right or seek a remedy. Black's Law Dir:tionar)' 841 (5th
             DISSE~T    B\': WALLACE                                      ed. 1979). The purpose of litigation is to preserve and
                                                                          enforce rights and secure compliance with the laws of the
             DISSE~T                                                      state. Mi.t.mwi, Kansas & Texas Ry. Cn. 1'. Hickman,
                                                                          183 U.S. 53, 60, 21 S. Ct. /8, 46 L. Ed. 78 (1901).
                  CONCURRING AND DISSENTING                               Because Cameron failed 10 honor lhe divorce decree,
                                                                          Cook was forced to file this lawsuit. By definition, she
                  [.. II)       OPINION       ON     MOTION       FOR
                                                                          was forced [.. 12] to pursue further litigation whether
             REHEARING
                                                                          Cameron ac1cd in good faith or not. ConscqucnlJy, she is
                  ( concur in the majority holding that Sue Cook is       cnlitled to 45% of Cameron's gross military relirement
             entitled to enforcement of the judgment rendered in          pay.
             Camei"On "· Cameron, 641 S. W.2d 210 (Tex. 1984)
                                                                               Cameron failed to properly challenge the contingent
             awarding her 35% of Paul Cameron's gross military
                                                                          provision in his direcl appeal of the divorce. Because he
             rerirement benefits. However, I dissent from the
                                                                          could have secured review of the provision in the divorce
             majority's refusal to enforce the contingenl increase
                                                                          appeal, res judicata bars him from litigating that issue in
             award.
                                                                          this lawsuit. Garcia 1'. RC Cola-- 7-Up Botlling Co., ~~7
                 The majority concludes this lawsuit docs not amount      S.W.ldJ17,J/9(Tex. /984).
             to "funhcr liligation'' because Cameron acted in goad
                                                                               For the foregoing reasons, I would hold Cook is
             faith in refusing to honor the divorce decree. I disagree.
                                                                          entitled lo enforcement of the entire divorce decree
             The decree states that 35% of gross military retirement
                                                                          including the contingent provision.
             benefits "is dctcnnined to be just and right only in the


.I
..
'.. ·,···1

":.
                                                                                                                               Page I




                        LexisNexisQD
                        K)1JZ EIJWAJW IHCKS, Appoll:mt ,., LA'KESHA                ~!ARIE    !JAYNES ITICKS,
                                                     Appellee

                                                         NO. 14-10-00577-CV

                         COUilT OF A I'I'EALS Of' TEXAS, FOI'IHEE:>ITII DISTRICT, IIOUSTO:-.i

                                            348,\: 11'.3<1 281; 2111 I Te.<. 1lPJ1· LEXIS 4909


                                                     ,June .JO, 21111, Opinion Filed

      PRIOI! IIISTOI!Y: [.. I]                                              In November 2009, Wife filed :m nrig[nnl petit' ion for
         On Appeal f'rom the 245th District Court, llm-ris             divon:c. In Deccmhcr 200iJ, Husbnnd filed an original

 .·
 .
      County. Texas: Trial Court Came No. 2009-73495. Judge
      Annette Kuntz .
                                                                       nnswer and an original coumcr-pc:tition for divorce. In
                                                                       January 20 I 0. the partie$ entered inlo an infomml


!.
~,
.;
)
      COUt\SEL: Jarnd N. Higdon or San /\JlHH\io, TX, t(1r
      appclh1nts.
                                                                       sdtlement ngrccml!nl purs\\"!lt to .\·ecJion 6.604 of the
                                                                       Tc~ms Famf(F Cruie. In March 2010, the trial court signed
                                                                       lhc fi.nal f""*2] decree of divorce, which was approved
                                                                       and consented lo as to lHHh form <Uld subsHince by
                                                                       llusbunJ and Wil(.;. >~.fler l-lushnnd fil!!d a motion for the
      Willinm Leslie Shireman    nr Houston. TX, for appclkcs.         trial court 10 dll so. On the sumt: day, lhc trial cour1
                                                                       signed the domt:stic rclalions order ("D.R0 11 ) at issue!
      JUDGES: Panel consists of Chief Jus1iee Hedges and               :.1pprovcd by o11ly Wife und her altumcy. References to
      Justices Seymore and Boyce.                                      the DRO nrc cros;'>Cd out in the final decree of divorce.,
                                                                       One title ted rcfen,!IIGC. in the final decree wuh:r ''Property
      OI'INIO:-.i BY: Addc Hedges                                      to Husband" is inlti:aled by 11 CI3" and !'LH," prcSUUH.IIJiy
                                                                       Wi fc a11d her attorney; .anoth(!r delc!cd reference under
      OPINION                                                          "Property to Wifi:::'' i$ initialed by "CB" only.
            l*-282] In this .di\'orcc ca$.C, Kyle Edward Bicks              In .'\p_ril10 I0-' l-lusbi!nd filed a_ motion to correct or
      {''Hu$h<md"} complain~ of elT-Or!' in a dolhc.-stlC rClatlonS    rc:form the jtldgmclll, complnining_ abont error-s ill both
      order •md in Lhc final decwe of divorce. He also contcllds       the lim1l decree of [*1S3) divorce and the DRO.
      that the trial coun abused its discretion by awarding            Husbnnd ulso n.•qucsted smlctions qgainst Wife, her
      appelle<, La'Kesha Mm·ie Haynes llicks ("Wife"),                 anmn:ey, ;md/or thdr expert ror_aiJcgcdly mbrc_prescnting
      atlomcy 1s fees   ~tnd   c>:pcnscs in the order denying          the .npplicable federal law to tbe court. and Husbnud
      Husband's motion to concct or reform rhc judgmem, We             n;qu~stcd trial and appdla!c !lttmncy's fees;· c.\.pcnscs.
      ::lftirtll tile finn! decree of divotCI.! and the awmd of        and co~ts. \VICe ·ntcd a rcspousc to the motion lo <.:orrcct
      attorney's fees and expenses. We reverse and remand 1he          ur- refNm tiH; judgment, :>l:.t.ting that the motion wa~
      domestic relations ordC"r for H.Irlhcr procl'ttlings             g:rnundkss llild brought solely for the pUfllOSC of
      consistent with this opinion.                                    hurassmcllt. In uddition, she requested lrial and appellate
                                                                       ntlorm.:y's fees, c:xpcmes, m1d costs. \\'ifc [UJ] riled a
                                                                                                                    Page 2
                                348 S.W.3d 281, "2R3; 2011 Tex. App. LEXIS 4909, ••J



separate motion for sanctions pursuant to Rule I J_ of tl1e          Husband and Wife aucsted by their signarurcs that
Texas Rules of Ch•il Procedure. claiming that Husband's        they appro\'cd and consented lo rhc di\'orcc decree as to
motion to correct or refonn the judgment was groundless        both form and substance. In lhc body of the decree. the
and brough1 for the purpose of harassment. She requested       trial court found thai the parties had (,.,.5] entered into a
as sanctions ( t) that lhe trial coun deny lhe motion to       written agreement, the wriUen agreemcnl being the Final
correct or refonn the judgment and (2l that she be             Decree of Divorce. The panics stipulared that the
awarded anomey's fees and expenses incurred in                 agrecmcnl was enforceable as a con1rac1 to the exlent
obtaining an order for sanctions.                              permiued by law. Because the parties entered inlo an
                                                               agreed divorce decree, it is lreated as a contract between
    The trial coun held a hearing on Husband's motion to       the parties with lhe law of contracts governing the
correct or rcfonn the judgment and on \Vifc's request for      interpretation of the dc:cn.-c's legal force and meaning. See
attorney's fees in her response. I The trial court denied      Pare v. Pate, 874 S.W.2d 186, 188 (Tex. App.--Hous/o/1
Husband's motion and ordered Husband to pay Wife's             {14rll Disr.] 1994, writ denied).
auomcy's fees and expenses in the amounl of S 1,950.00.
After the hearing, with the trial court's permission,                [•284) The DRO in this case was signed on lhc
Husband's trial counsel introduced expert testimony            same day as the agreed final decree of divorce. When the
regarding the calculation of and the community interest in     signing of the DRO occU11i contemporaneously with the
his n>ilitary retirement pay. 2 This appeal followed.          signing of the divorce decree, courts have construed the
                                                               DRO as pnrt of the divorce decree. See, e.g.• Gilli11 v.
            At the hearing, Wife's trial counsel staled that   Gillin, 307 S. W.3cl 395, 396 (Te.t. App.--San Antonio
       she would dismiss her motion for sanctions if the       2009, no (Jet.) (characterizing complaints aboul two
       trial court awarded the auomey's fees rcqucsled in      provisions of an incorporated DRO as being an appeal
       her response, which the trial court did.                from a divorce decree); Beyer ''· Beyer. No.
       2 According to Husband's brier, lhis was done           03-06-00803-CV, 2009 Tex. App. LEXIS 5913, 2009 WL
       outside the presence of the trial judge.                1341857, at • I (Tex. App.--Auslill July 28, 2009, pel.
                                                               de11iedJ (mem. op.) (appeal from domcs1ic relations order
II, ASALYSIS
                                                               ponion of decree). While the ORO in this case wa...~
A. [""4) DOMESTIC REI.ATIO~S 0ROER
                                                               signed on the same day as lhe final decree of divorce,
                                                               references [U6] 10 lh_c DRO arc expressly dclclcd from
     In his first issue, Husband contends thai the trial       the agreed decree. The trial court approved lhc agreement
coun erred in signing rhe DRO because the DRO                  of the parties "as conlaincd in this final Decree of
contains a fonnula incorrectly calcularing (I) the             Divorce.'' As "uch, we will review the DRO as a separate
community interest in his mililary retirement pay and (2)      order and not as pan of the agreed divorce dccrce.l
the retirement pay itself. In addilion, Husband claims that
the ORO designates Wife as the fom>cr spouse                          3      Post·divorce DROs. for example. are
beneficiary of his Survivor Benefit Plan when no such                 appealable orders. See Shanks "· Treadlt'ay. 110
                                                                      S.ll'.3d 444, 446 (Tex. 2003).
designation was made in lhe final decree of divorce.

    The parties entered into an agreed final decree of               Initially, we reject Wife's contention that Husband
divorce. For a consent judgment to be valid, each party        failed to preserve error on his issue. To presen•e a
musl explicilly and unmistakably gi\•e his or her consent      complaint of error in a judgment, a party must inform the
In re Browsard, Ill S. lfc3d 82 7, 831-33 (Tex.
                                                               trial court of its objection by a timely riled motion to
App.--/JoustoPJ {14111 Disr.] 2003, orig. proceeding).
                                                               amend or correcl the judgment, a motion for new trial, or
Appro\•al as to fonn and substance, slanding alone, docs       some olhcr similar method, and 1hc trial court must rule
not transform a judgment into a consent judgment. /J.          on the motion either expressly or implicilly. See Tex. R.
                                                               App. P. 33.1(a). Husband properly preserved error \\ith
The body of the judgment musl sugges~ for example, ·that
the judgment was rendered by consent. Clrang ''· Link          his timely filed motion to correct or refonn the judgment
Nguren, 81 S.W.3d 314, 316 PJ.l (Tex. App.--/Jou.<lon
                                                               complaining of the incorrect calculations in the DRO and
[14111 Dis/] 2001, 110 pel.).
                                                               Wife's beneficiary scatus. The motion was denied by
                                                               written order.
                                                                                                                          Page 3
                                        348 S.W.3d 281. "284; 2011 Tex. App. LEXIS 4909, .. 6



             Because the trial coun did not make findings.of fact             of Member's Disposable Retired Pay
        or conclusions oflaw, we assume that it made all findings             (DRP), if, as and when received,
        in support of its judgment. PIUlro "·Chambers Cmy., 922               multiplied by the following fonnula:
        S. W2d 945. 948 (Tex. /996). Funhennore, [••7] when
        findings of fact and conclusions of law are not filed, we                  Number of months Member and
        must affirm the trial court's judgment on any legal theory            Former Spouse were manicd during which
       that findS suppon in the evidence. In r~ WE.R., 669                    Member was in service (183 mos.) divided
,]     S.W.ld 7/6, 717 (Tex. /984} (per curiam). A conclusion                 by Number 1••9] of mon1hs Member was
['!    of law can be challenged on the ground that the trial coun             in service as of retirement (not greater
::'                                                                           than 480 months)
       did not properly apply the law to the facts. Tl-eadwat• v.
       Shanks, 110 S. W.3d /, 5 (Tex. App.--Dallas 2000), ah'd,
       110 S. W.3d 444 (Tex. 2003). We review questions of lnw                    X
. i,   de novo. In r·e Humphreys, RHO S.W.2d 402. 404 (Te.t .
                                                                                 Acti\•e duty base pay for an 0-6 with
       /994).
                                                                              26+ years of creditable service as of
       Calculation ofCommumly hrlere.rt irr Rctiremelll Pay                   0110112010 (SI0,047.00 per month)
                                                                              di\'idcd by Active duty base pay of
            The final decree of divorce awards lo Wife as her                 Member as of his date of retirement
       sole and separate propeny "[a) 50% ponion of the
       community sums, whether matwcd or unmatured,                   Husband contends, and we agree, thai the ORO does not
       accrued or unaccrued, vested or otherv.•ise, together with     calculate the con\munity sums owed to Wife in
       all increases thereof, the proceeds therefrom, and any         accordance with Texas law. The ORO purports louse the
       other rights related to or as a result of Kyle Edward          fraction fonnula established in Taggart ''· Taggart, 552
       Hicks' service in the United States Air Force, including       S. W.2d 422 (Tu. 1977), by di.,idins the number of
       any accrued unpaid bonuses. disability plan or benefits,       months married during Husband's sen•ice by the total
       or other benefits existing by reason of or as a result of      number of months Husband will be in service as of
       Kyle Edward Hicks' past or present employment."                relirement. However, the Taggart fraction no longer
       Therefore, the decree awards Wife a SO percent portion of      applies to situations such as this one.
       the community sums existing by reason of [..,.8) or ac; a
       result of Husband's pasl or present employment,                       4 "Disposable retired pay" is defined as the total
       including any ae~rued unpaid bonuses, disability plan or              monthly retired pay to which a member is entitled
       benefits, or other benefits. This award is consistcnl wilh            less ccnain amounts as applicable. !d. §
       the panics' informal settlement agreement which Slalcs:               /408(a}(4).
       "Wife shall be awarded 50% of the ["285] community
                                                                            In Taggart, the Supreme Coun of Texas developed a
       int~resl in husband's defined military retiren1ent pay."
                                                                       formula for dctemtining the ex1en1 of the community1s
             Under lhe Uniformed Services Former Spouses'             interest in a military retirement plan. 552 S. JJ~ld at
        Protection Act ("USFSPA 11 ), a divorce court may treat       423-24 (holding that divorced spouse "owned as her part
       di.<posable retired pay payable to a member for pay            of the community estate a share in the conlingcnl right to
       periods beginning after June 25. 1981 as marital propcny       military benefits even though that right had not matured
       subject lO di\'ision in accordance with the law of the         at the [""IO]timc of the divorce"). The Coun used the
       jurisdiction. See 10 U.S. CA. § 1408(c) (West 2010). The        fo11owing fraction when calculating the non-employee
       purpose of the DRO in this cu.llie is lO direct a military     spouse's one-half interest in the: employee-spouse's
       scr\'ice, rather than a civil pension plan administrator, to   retirement pay: the number of months the parties were
       make paymems out of Husband's disposable retired pay           married during the employee spouse's employment
       to Wife. See id. § 1408(dJ(/). 4 This panicular ORO -sets      divided by the total number of months of service that
       out the follo\\'ing fonnula as a calculation of the sums       entitled the employee spouse to the relircment benefits. 5
       owed to Wife:                                                  /d. at424.

                                                                             5   In Taggart the Coun used the number of
                Fonner Spouse shall receive [50 percent]
                                                                             months of service that entitled Mr. Taggart to the
                                                                                                                          Page 4
                                     348 S.W.3d 281. '285: 2011 Tex. App. LEXIS 4909, .. 10



            retirement benefilS (360 monlhs) rather tban lhc          DRO to he consistent with Texas law.
            actual number of months of scr\'ice at retirement.
            The Supreme Court of Texas has subsequently               Ca/culario11 of Retirement Pay
            construed this fraction as follows: 'the number of
            months married under the plan divided by the                   Husband also contends lhat the fonnula does not
            lotal number of monlhS en1ployed under the plan           accurately calculate the retired pay itself. The DRO uses
            at tlte time of retirement." S!Ja11ks, I 10 S. W.Jd at    the following fraction to calculate Husband's rclired pay:
            446 (citing Tagga1·1. 551 S. W.ld a/ 424).                Active duty base pay for an 0-6 with 26+ years of
I                                                                     crcdirnble service as of 01/01/2010 (SI0,047.00 per
I
'
         In BeriJ• v. BeriJ', the Court altered t~ Taggart            month) divided by llusband's acti\•e duty base pay as oF
     formula. 647 S.W.1d 945, 946-47 (Tc:r. 198J). The Court          his dale of retirement. Husband argues that both the
     did so by changing the fraction denominator to the               nun1erator and denominator of this fraction arc incorrect.
    number of months employed under the plan at tl1c lime of
    divorce. /d. (emphasis added); see also Sl1a11ks, 110                 The computation of retired pay involve...; factors such
     S. W.3d at 447 n.3 (Tex. 200J) (recognizing that the             as: (I) the percentage of pay base that a service member
     formula was altered). Bony also altered the [''II)              accrues toward retirement for every creditable complete
    valuation ponion of the fonnula. requiring the value of          year and month of service; (2) the service ["13)
     the benefits to be calculated at the date of di\'orce.          member's pay g<adc; and (3) the scn•ice member's pay
    Sl1a11k.<. I /0 S.II~Jd a/ 447 11.J. Thus. the Bem• formula      base at the service member's pay grade and longevity at
    prevents a ['286) divorce court from awarding to the             the time of the divorce or at the time of retirement,
    non-employee spouse any portion of a posr-divorce                whichever is applicable. See Caracdolo v. Cara,·cio/o,
    increase in retirement benefits that would invade the            151 S.llc3d 568, 571 (Tex. App.--San Antonio 2007, no
    employee spouse's separate property, such as                     pet.). Computation of retired pay for members of the
    post~divorcc raises. promotions, services rendered, or           armed forces is found in chapter 71 of title 10 of the
    contributions. See Ben)', 647 S. W1d al 947 (holding             Uniled Sllltcs Code. See 10 U.S.C.A. §§ 1401
    post~divorce increases attributable to pay raises and            (computation of re1ircd pay), 1405 (years or service).
    union-contract negotiations for an improved benefit plan         1406 (rclired pay base for members who first became
    arc not part of the parties' estate subject lo division on       members before September 8, 1980: final basie pay),
    divorce); Stavinoha l'. Sta\'l"noha, /26 S. H~3d 604, 610        140i (retired pay base for members who first became
    (Tex. App.--Hous/on f 14111 Dis/.] 1004, no pel.) (citing        members after September 7, 1980: high-36 month
    Ben-y). However, a divorce court may award the                   avemgc), 1409 (retired pay multiplier); see also id. §
    non-employee spouse her shan: of any post-divorce                8991 (computation of retired pay for member of the Air
    eost-of-li\'ing increase in the rctiremcnl benefit.              Force).
    Limbaug/1 v. Limbaugll. 71 S.II'Jd /, /6 11.12 (Tex.
    App.--Waco 2002, no pet.).                                              Husband claims lhal his retired pay base should be
                                                                      calculated using section 1407 rather 1han se,·tion 1406 of
         Here, Husband was not retired as of lhe dale of              the United Slates Code because he first became a member
     divorce. The DRO slates that: "Member was on active             of a unifomtcd service after September 7, 1980. The
    duty with the U.S. Air Force at ~1e lime this Order was           DRO appears ro calculate Husband's retired pay base
    entered." The fraction used 10 calculate Wire's                  under .vection 1406 (retired pay base for members who
    community interesl in Husband's [••12] retired pay                first became members bcrore September 8, 1980) because
    should follow the Berry• formula. Therefore, the                 the fraction's numeralor [••t4) uses Uusband's monthly
    applicable fraction is the number of monlhs Husband and          basic pay at Husband's pay grade. S-. id. § 1406. Under
    Wife were married during HusOOnd's employmc;nt under             sectimJ 1407, the high-36 monlh average is used 10
    the retirement plan divided by the number of months              calculate the ['287] retired pay base for those who first
    Husband was employed under the rc1iremen1 plan at the            became members of a unifonned service aner September
    time of divorce. We sustain the portion ofHmi>and's first        7, 1980. 0 ld. § 1407. "High-36 montl1 average" means
    ~ssue d~alin~ with the calculation of the communi1y              "the total amount of monthly basic pay to which the
    m1cres1 1n rcurcd JXIY found in the ORO. We reverse and          member was entitled for lhe 36 months (wbelhcr or nol
    remand for the lrial Coun to adjust the formula in the           consecutive) out of all the months of active- service of the
                                                                     member for which the monthly basic pay to which tbc
                                                                                                                           PageS
                                    348 S.W.Jd 281, "287; 2011 Tex. App. LEXIS 4909, ••14



    member was entitled was the highest, divided by 36. 11 !d.           Therefore, we sustain the portion of Husband's first
    § 1407(c). Therefore. evidence of when Husband began            issue dealing with the calculation of the retired pay itself
    unifonncd service is essential to Husband's argument that       found in the DRO. We reverse and remand for the trial
    lhe "high 36" formula should be used 10 calculate his           court to adjus1 the fonnula in the DRO to be consistent
    relired pay base. The existing formula in the DRO               with federal and state law.
    references ''26+ years of creditable service as of
    01/01/2010." This reference indicates thai Husband had          Wife's Beneficiar)! Status
    26 years and some months of creditable service in the
    military as of 0 1101/20 I 0. 7 Based on the reference in the        Finally. Husband argues that the DRO is inconsislent
    DRO lo "26+ years of creditable service as of                   with the agreed di\'Orce decree in that the ORO pro\'ides
                                                                    that ''(f]onner Spouse shall be deemed to be lhe
    01/01/2010:' Husband must have begun military service
    after September 7, 1980, and, therefore, the high·36            beneficiary of the Survivor Benefit Plan ("SBP") annuity
    month average will be used to calculate his relircd pay         through Member's military relirement and Member shall
                                                                    cxcculc any documeniS as are required to make the
    [""IS] bo.<e. See id. § 1407.
                                                                    designa1ion of Former Spouse as said beneficiary." The
           6 There is an exception for enlisted members             agreed divorce decree docs not specifically divide the
           reduced in grade and officers who do not serve           SBP annuity or mention Wife's status [••t7] as a fonner
           satisfactorily in the highest grade held by the          spouse beneficial)' lo the SBP annuity.R
           officer. /d. § /407(0. In that ca.•e. section /406
           applies. /d. § 1407({)(1). There is nothing in the               8 The divorce decree does make one reference to
           record lo suggest that Husband falls into Ibis                   sun•ivor benefits. Under the heading "Support as
           exceplion, thereby triggering section 1406.                      Obligation of Estate," the trial court ordered that
           7 To detennine a member's years of service1                      the provisions of child supporl in the decree
           "coch full month of service that is in addition to               remained the obligation of Husband's estate and
           the number of full years of service creditable to                did not tcrminale on his death. The decree states
           the member shall be credited as 1/12 of a year;                  that "[p)aymeniS receh•ed for the benefit of the
           and any remaining frnctionol part of a month shall               children including payments from the Social
           be disregardcd."/d. § /405.                                      Security Administration, Department of Veterans
I                                                                           Affairs or other governmental agency or life
         Husband further argues that for purposes of di\•ision              insurance proceeds, annuity payments, trust
I
'
    of his military retirement benclits upon divorce, lhc
    high-36 n1onth average should be calculated as of the
                                                                            distributions, or retireme1U SJII1'ivm· benefits. shall
                                                                            be a credil against this obligation." (Emphasis
    date of dh•orce. rather than the date of retirement We                  added).
    agree. See Grier''· Gr·ier, 7JI S.W2d 9JI. 932 (Tex.
    1987) (holding that "in apportioning military retirement                    The divorce decree orders Husband to
    benefits upon the dissolution of a marriage, lhe valuation             purchase life insurance and name Wife as primary
    of the communiry's interest in such benefits is to be based            hencfic:iary for the benefit of the children as
    on the retirement pay which corresponds to the rank                    additional child support, but there is no indication
    actually held by the service spouse on the date of the                 that the life insurance is a reference to the SBP
    divorce"); Caracciolo, 251 S.W.Jd at 572 (.. 16]                       annuity. The decree states that Husband must
    (husband lcstificd that "high 36" plan was only retiremenl             maintain the life insurance policy in full force and
    option und calculated "high 36" based on average base                  effect as long as child support is payable under
    pay during 36 months preceding. divorce).                              the tem15 of the decree.

         Husband also contends that the denominator of this               (*288) Under federal law, a member of the anned
    fraction (bottom fraction above) should be Husband's            forces (I) who is entitled to retired pay or (2) who would
    "gross re1ircd pay on the date of his rctircmcnl11 ralher       be eligible [""18] for reserve-component retired pay
    than "active duty base pay of Member as of his date of          except for the fact that he is under 60 years old is eligible
    retirement." We agree that Wife is entitled to a                to participate in the SOP.               10 U.S.C.A.        §
    percentage of Husband's dispo~ble n:tiredpay.                   1448(a)(l)IA)-!B). The SBP applies to eligible <crvice
I
'
                                                                    members who arc married or have a dependent child
                                                                                                                         Page 6
                                     348 S.W.3d 281, "288; 2011 Tex. App. LEXIS 4909, ""18



    when they become entitled to retired pay or eligible for        testimony at the hearing on lhe motion 10 correct or
    reserve-component retired pay. ld. § /448(a)(2J(A)-(8).         reform the judgment. Sec Tex. R. App. P. 47.1.
    The eligible service member may elect lo pro\'ide an
    annuity to a fom1cr spouse payable upon the member's            B. FINAL DECREE OF DIVORCE
    death. ld. .H /448(b)(l)-{3), 1450. Assuming that the
                                                                         ln his second issue, Husband contends that the lrial
    slatute applies to Husband, 9 he n1Ust. at the time of
                                                                    court erred by allowing reference [•289) to the ORO to
    making the election, provide "the Secretary concerned
                                                                    be stricken from the di\•orce decree.
    with a wriuen stalemcnt" selling fonh whether the
    election is being made pursuant to court order or pursuant          A party cannot appeal from a judgment to which he
    to a voluntary wriucn agreement as part of, or incident to,     has consenlcd or agreed unless there is an allegation and
    n divorce proceeding nnd, if so, whether the voluntary          proof of fraud, collusion, or misrcprcscnlation, Boufaissal
    wriuen agreement has been incorporated in, or mtificd or        ''· Boufaissa/, 251 S.W. .ld /60, 161-62 (Tex. App.--Dallas
    approved by, a court order. /d. § /448(b)(5). A court           2008, no ptt.). Husband attested by his sib'IIOIUre that he
    order   means    ''a   court's   linal   decree   of divorce,   approved and consented to the divorce decree as to both
    dissolution, or annulment or o court ordered, ratified, or      form and substance. In the body of the decree, the trial
    approved property settlement incident to such a decree ..       coun found that the panics hod entered into a written
    . ."/d.§ /447(13).                                              agreement as contained in the decree and, to the extent
                                                                    pcnniucd by law, the parties stipulated thai the agreement
            9 n A person who has a former spouse upon
                                                                    was enforceable as a contract. Despite this fact, Husband
            becoming eligible [.. 19] lo participale in the
                                                                    argues that he did not agree to the deletion of the
            Plan may elect 10 provide an annuity lo that
                                                                    language "as awarded in a Domeslic Relations Order" in
            former spouse." Jd. § 1448(h)(2)(A). In addition,
                                                                    section W-6 [ ..211 of 1hc decree because his attorney
            ''(a] person who is a panicipant in the Plan and is
                                                                    did not initial this deletion. This argument is without
            pro\•iding coverage for a spouse or a spouse and
                                                                    merit. Allhough it is true that only Wife's attorney's
            child (even lhough there is no beneficiary
                                                                    initials arc listed next to the deletion in seclion \V-6, the
            currently eligible for such coverage), and who has
                                                                    same deleted reference appears in the corresponding H-6:
            a fanner spouse who was not that person's former
                                                                    Husband does not complain about the same deletion here
            spouse when lhat person became eligible to
                                                                    even though only Wife's initials and her attorneYs initials
            panicipate in 1he Plan, may [subject to limitation]
                                                                    appear next to it. It
            elect to provide on annuily to that fonner spouse."
            /d.§ /448(b)(J)(A)(i)(l)-(lJ).
                                                                           II W-6 awards Wife a 50 percent portion of the
                                                                           community sums as a result of Husbnnd's past or
         Here, the agreed divorce decree docs not require
    Husband to name Wife as a former spouse beneficiary to                 present employment H-6 awards Husband all
    an SBP annuity.IO Because the DRO is not part of the                   sums us a result of Husband's past. present, or
    panics' agreement and it imposes an additional obligation              future employment. except that portion awarded
                                                                           to Wife in the decree.
    not included in the agreed divorce decree, the trial court
    erred by including this obligation in the ORO. We sustain           Because Husband consented to the decree and has
    1his ponion of Husband's lirst issue. \Ve reverse and           not made an allegation or fraud, collusion, or
    remand for the trial court to remove the reference to           misrepresentation, we overrule Husband's second issue.
    Wife's st.ntus as fanner spouse beneficiary of Husband's
    SBP in the DRO.                                                 C. A ITORI\"EV'S FEES
!
            LO The informal sculcmcnt agreement docs not                 In his third issue, Husband argues that the trial court
            specifically address the SBP either.                    abused its discretion by a\\'arding sanclions against him
                                                                    for filing a motion to correct or rcfonn lhe judgme01.
         To summarize, we rc\'crsc lhe ORO for lhc reasons
    staled and remand to [.. 20) rhe lrial court for funhcr             In her response to the motion to correct or refom1 the
    proceedings. Because of our disposilion of this issue, we       judgment, \Vifc contends that the motion is groundless
    need nol address Husband's contention that lhc lrial court      and brought for the purpose of harassment. Wife requests
    abused its discretion by excluding Husband's expert
                                                                                                                   Page7
                               348 S.\V.3d 181, *189: 2011 Tex. App. LEXIS 4909, **21



reasonable attorney's fees, expenses, and costs J,...22]               HUSBAND'S COUNSEL: No, Your
chrough trial and appeal or, in the ahcmadvc, reasonable            Honor. I got notice of 1500.
attorney's fees, expenses, and costs through trial and
appeal taxed as costs. Wife filed a separate motion for                 THE COURT; That's in her sanctions,
sanctions pursuant to Texas Rule ofCh·il Procedure /3 in            Counsel.
which she conlends that the motion to correct or reform
                                                                         HUSBAND'S COUNSEL: That's in
judgment is groundless and brought for lhe purpose of
harassment. Wife requests reasonable expenses, including
                                                                    her sanctions motion.
reasonable attorney's fees, incurred in obtaining an order
                                                                        THE COURT: And that's not before
for sanctions. At lhe hearing on the motion to correct or
                                                                    the Court, she's not going on that. She's
reform judgment, Wife agreed to pass on her motion for
                                                                    going on her response to your molion to
sanctions and proceed with the allomcy's fees requested
                                                                    correct or refonn.
in her response to Husband's motion. The trial court
awarded Wife her auomcy's fees in the amount of$1,500                    HUSBAND'S COUNSEL: Okay. So
and expenses in the amount of S4SO for a total amowtl of            these--these are not going 10 be sanctions,
$1,950.                                                             they're going 10 be attorney's fees for what
                                                                    purpose?
     Husband's only contention on appeal is that the trial
conn erred in awarding attorney's fees as sanctions.                     WIFE'S COUNSEL: I'll dismiss my
However, the trial court's order does not state that it is          motion for sanctions if you award the fees
awarding the attorney's fees as sanctions. Likewise, the            today. Obviously, it's not necessary to do
exchange between the trial coun and the attorneys at the            lhal. It's not set until sometime in July
hearing on the motion 10 correct or refonn the judgment             any\\'ay.
indicates that the attorney's fees were not awarded as
sanctions.
                                                                 Husband's only argument on appeal is that the trial
                                                             court erred in awarding Wife's attorney's fees and
                                                             expenses as sanctions. Because the record does not rcOcct
          THE (*'23] COURT: We're dealing                    his interpretation of 1hc proceedings, his argument is
       with a motion and your response.                      without merit.
            WIFE'S COUNSEL: That would be                        Therefore. [..,.24] we m·crrule Husband's third issue.
       my--
                                                             Ill. COSCLUSIOS
            THE COURT: Let me sec yours.
       She's asking for attorney fees, expenses                  We affirm the final decree of divorce and 1hc award
       and costs. You want lo respond to that. her           of attorney's fees and expenses in the order denying the
       response, since we're nol going fmward                motion to correct or refonn judgment. We reverse and
       [•290) on her sanclions, she's going on               remand the domeslic relations order for funher
       the response.                                         proceedings consistent with this opinion.

          HUSBAND'S COUNSEL:                 Well,               Is/ Adele Hedges
       Your Honor, the only --
                                                                 Chief Justice
           THE COURT: Do you want to
       cross-examine her on anything?
                                                                                                                                        Page I




b•
                         LexisNexis{>)
                             Do11gl:l~   Wayne JOY!\KR, Appcll:wl "·Jundt(' .\lnrit: JOVNEU, :\ppcllec

                                                                No. 04-10-IJIJ56J-CV

                            COURT OF APPI-:ALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                               352 S. H"3d 746; 20} I Tc<. .4pp. LEXJS 6731


                                                            August 24, 20ll~ Dcliverctl
                                                              Augusl 24,201 J, File-d

        ~UHSEQUENT         HlSTORY::       R~!lc;:~scd   f01· Publicntiot,   fliT' rehearing is granted, We withdraw our npinion and

        December 9, 2011.                                                    jlldgmcnl of April 6, 20 I I. nnd substitute this opinion mtJ
,.. i                                                                        judgment
A       PRIOR HISTORY: 1"1]
          From the 40!::!h Jutlicial DJ~tricl Coun, Be:~~ CotUity,                 Doug uppcals the Lrinl court's or~kr denying h!$
        Texas. Trial Couft No. 200H~CI-2133 I. 1-ltmotab/c David             petition !br hill or review to s-et a;;; ide an agreed amc.nde.d
        A Bcrchclnumn, Jr., Judge Presiding.                                 domestic rcl<llions order ·in a suit to darify his and
        )oyneJ' 1'. )nyllill', 1011 T('X. App. LEXJS 2516 (Tex. App.         Appellc!! Jilndlc. !v1aric Joyner's. dn'arcc decree and
        Son A11to11io, Apr. 61 2()1 1J                                       nttcmlant domc~tic rclntions order) In his pelition; Doug
                                                                             Hss~ncd th:11 th~- trial caun !;:~eked jllri.sdiction ·to elHer the

        lliSI'OSJTJON:      REVERSED & RENDERED.                             ord~.:r because il impcm1issibly modified the Sub.'it:Jntivc
                                                                             division of his military rc::lircmcnl bcncfit:'i. The trial coml
                                                                             denied Dn11g's ('lctition fOr bill (lf review. \Vc reverse the
        COL'i'\SEL: For APPELLANT: William Dougla.-;                         trial coml's order denying lhc l.-*2] bill of rCYicw and
        Bincham. Law Offices Or William Dougln.s Binchnm.                    \·ac.atc the Am.:ndcd Domestic I~ elations Order.
        Swt Antonio. TX.
                                                                                          Doug di..:-d prior lo !his appc::al. The Notice ot'
        For APPELLEE: Michael D. Bowles. Al\orncy At I-'ll\',                        Appc:a\ ln :.hj~ case was IHcd in Douf(S name by
        San Antonio, TX.                                                             Stephanie Joyner, Doug1s survivin·g spousc.
                                                                                     Jaitcllc argues thal there is no showing \hut
        .IUDG.ES: Orinion by: Rebecca Simmons, Juslit::c.                            Stephanie. has authority to prosecute this ~.Jlpcal,
        Silling; Sandcc Bryan tvbrion, Juslicc, Rebecca                               1
                                                                                     ' 1[ u party to a civil case t.Hcs allct- the Lrial court

        Simmons. Ju!ttice, Steven C. 1-l!lbig. Justice.                              rl!nd~rs judgment but bcfotc the c;~se has Peen
                                                                                      nn~tlly di:;poscd of on appe~tl, the appeal may be
        OPJNIO,"\ B\': Rt:becc<1 Simmons                                             pcr1'cl~tcd~ ;;md [w~] will proceed to ltdjudicatc the
                                                                                     nppeal n.:> if all parties were alivc.' 1 THX. R. A flP. !'.
        OPINION                                                                      7.J{a){/).

             [•7471 HEVERSED & RENDERED                                      BAChGIW\.1~0


            Appellant Doug!Cis (Doug) \Vayne Joyner's motion                      Doug and Jandlc were di.,•orced in October .100 1.
                                                                                                                      Pagc2
                                    352 S.W.3d 746, '747; 2011 Tex. App. LEX IS 6731, u2



     The: divorce decree awarded Janelle a portion of Doug's      trial court signed an order on June 22, 2007, denying the
     militnry retirement bcncfito;;. and stated that her Ponion   motion for new trial.
     would be ''more particularly defined in a [*748)
     Domestic Relations Order. •• The court subsequently                Doug retained new counsel and filed a pctilion for
     entered a [)omestic Relations Order (lhe DRO) awarding       bill of review in December 2008 attacking. the jurisdiction
     Janelle 50% of the community share of Doug's                 of the trial coun to modify the property division in lhe
 I   hypothetical retired pay, adjusted for cost of living        ORO and divorce decree. After a preliminary hearing, the
     adjustments.2 Afler Doug retired from active service in      trial court denied Doug's petition because Doug did not
 j   December 2005, the Department of Finance and                 establish the clements of a bill of review: that another
:I   Accounting Services (OF AS) mistakenly began paying          party, through fraud or acciden~ prevented him from
     Janelle 50°/o of Doug's actual disposable retired pay, nn    asserting a meritorious defense. See EastiiJ v. Dial, 288
     umount that was much (' '3] higher than what she wus         S.W.3d 491, 497 (Tex. App.--San Alllonio 2009, pet.
     awarded in the divorce.                                      denied). The trial court also found that Doug was at fuult
                                                                  or negligent by failing to pursue other legal ('*5]
            2       The divorce decree described Doug's           remedies. Doug's appeal followed.
            hypothetical retired pay as '(t]he disposable
            n10nthly retired pay of an E-7 with 16 years, 3       BILL OF REVIEW
            months of accrued crediaablc military service at
            date of di\'orcc.''                                         The trial court denied Doug's petition for bill of
                                                                  rC\'iew because      he failed to satisfy the fonnal
          Doug, who was living in Arizona at that lime,           requirements for a bill of review. Doug argues that if the
     retained local counsel to correct the mistake. Doug's        record reveals that the trial court lacked jurisdiction to
     attorney filed a motion to clarify the ORO. In July 2006,    enter the Amended DRO. he need not mecl lbe fom1al
     DF AS sent a lc11er to Doug and Janelle acknowledging        requirements for a bill of review. \Ve agree. If a direct
     that it had overpaid Janelle for six months. DFAS also       attack seeks 10 set aside a judgment because lhe lrinl
     stated lhat it had established a debt against Janelle's      court lacked subject mauer jurisdiclion, the petitioner
     future payments and credilcd the amount of her debt to       need not satisfy rhe formal bill of review requirements for
     Doug. In August 2006, the ponies entered into a Rule II      the court to consider d1e jurisdictional challenge.
     agreement (the Agreemcnt)l in which the parties agreed       Sweetwate1· Austill Props. LL.C. ''· [•749] SOS
     to the entry of an amended domestic relations order that     Allia11ce, llu·.. 199 S.U,3d 879, 889 (Tex. App.--Au.rti11
     was similar to the original DRO but provided that            2009. pet. Jellied): see also Middleton 1'. Mw:ff. 689
     Janelle's interest was 37"/o of Doug's disposable retired    S. W.ld 212. 213 (Tex. 198S) (per curiam) {op. on motion
     pay. In February 2007, the court signed an Amended           ror reh'g). We. therefore. tum to the question of whether
     Domestic Relations Order (the Amended ORO)                   the coun lacked jurisdiction lo enter the Amended DRO.
     incorporating the lenns of the Agreement
                                                                  Jt!RIShiCTIOS
            3    The Agreement was signed by the judge.,
            Janelle, Janelle's auomcy, and Doug's anomey,             Doug ar-'llcs that the Amended DRO is void because
            but not Doug.                                         il modifies the substantive division of property fron1 the
                                                                  divorce decree and ORO, which provided un
           In March 2007. Doug's attorney moved for a new         unambiguous award to Janelle of Doug's military
     trial because the Amended ["4] ORO did not address           retirement benefits.
     Doug's DFAS credit and impennissibly changed the
     terms of the divorce decree. TI1e trial court granted the    A. Stondard of Review & Applicable Law
     motion on the condition lhat Doug pay Sl,200 for
                                                                       Whether a trial court [u6] has jurisdiction is a
     Janelle's attomey's fees by June 7, 2007. The order slated
                                                                  question of law that we review de novo. Tex. Natw·al
     that 11 if the auomcts fcc payment condition herein is nol
                                                                  Res. Couservatioll Comm'n "· JT-Da1ry, 74 S.lf'.3d 849,
     timely mel, the Motion for New Trial is denied." Doug's
                                                                  855 (fe.t. 2002); Guei'DI"tl v. H.E. Butt Grocery Co .. 81
     counsel thercaflcr withdrew, and Doug alleged thai he
                                                                  S.W3d 550, 551 (Tex. App.-Sa11 A11to11io 2002. pet.
     was never aware of the conditional motion for new trial.
                                                                  dc11ied). The issue of jurisdiction in this case turns on
     When Janelle's attorney's fees were nol timely paid, lhc
                                                                                                                              Page)
                                          352 S.W.Jd 746, •749; 2011 Tex. App. LEX IS 6731, ••6



       whclhcr the trial coun modified or clarified d\C DRO              effect to the entire decree." Shanks " Tregdwav /JQ
       when il enlered lhe Amended ORO.                               s w ld 441        147an    200!1. "'[J]r lhc decree, when read
                                                                         as a u•hole. is unambiguous as to the propeny's
            Any pany affected by n divorce decree may seck to            disposition. the court must effectuate the order in light of
       enforce the decree by filing an enforcement action. TEX.          the literal language used."' Jd, (quoting Wilde''· M1trcllie,
       FAM. CODE ANN.§ 9.00l{ii) (Wcsl 2006). The !rial court            949 S.IY.Zd 331, 332 (Tex. /997) (per curiam)). However,
       that rendered the divorce decree generally retains the            if the decree is subject 10 more than one reasonable
       power to enforce or clarify the property di\'ision                interpretation and is therefore ambiguous, coons should
       approved or or conU!incd in lhc decree. ld. §§ 9.002,             apply lhe conSlruction lhal correclly applies lhc law. /d..
       9.006(a}, 9.008. Jr a court finds lhal u•• original ronn or       ''[W)hcthcr a divorce decree is ambiguous is a question of
       the division of property is ambiguous or not specific             law," /.d..
       enough to be enforceable by contempt, the court may
       cnlcr a clarifYing order to enforce compliance wilh the           B. Discussion
       original division orlhe propcny.ld. § 9.008(b). Howc\'er,
       "[a]n order ... that amends. modifies, alters. or changes           Doug and Janelle's divorce decree prO\•idcs that
       the actual, substantive di\·ision of property made or          Janelle is enlitlcd lo "[a) portion or [Doug)'s bencfilS in
       approved in a final decree of divorce ... is beyond the        the military pension plan arising out of [Doug's]
       power of the divorce court and is unenforceable.'' /d.         employment with the military, that portion being 50% of
       ["'7] § 9.007{b); .<ee also Pearcy 1'. Pearcy. /184 S.W.ld     the community interest and more panicularJy defined in a
       5/2, 514 (Tex.   App.~-San   Antonio 1994, no ll'rit).         Domestic Relations Order." The ORO formulated
                                                                      Janelle's entitlement as follows4:
             When interpreting a divorce decree, courts should
       construe the decree "as a whole to harmonize and give



                                                       195 monlhs                                          The disposable monlhly
                                                 Tolal Credilable                                        relired pay of an E· 7 wilh
       112         X                          Months or MiliU!ry     X                                        16 yea.., 3 monlhs or
                                             Service Forffoward                                                  accrued creditable
                                           Retirement, at Time of                                        military ser\'ice at date of
                                                       Retirement                                                          divorce.


                                                                         251 S.W.3d 568. 572-73 (Tet. App.··Sall Antonio 2007.
             [*750) II [*"8] also provided lhat she was cnlillcd      110    pel.) (upholding subsU!nlially similar language
       to a share, attributable to the communhy interest. of any      describing a legally correct formula); see also Berr;1' 1•.
       cost of li\'ing adjustments. The panics do not dispute that    Berry•, 647 S. W.2d 945. 947 (Tex. 1983) (appro,·ing an
       Doug re[ired from active military service in December          almost-identicnl    formula      for   determining     the
       2005. after 275 creditable monlhs or miliU!I)' service, and    non-employee spouse's community-propeny award).
       staned receiving retirement pay the following month.           Therefore, the 1rial coun was wi1hout jurisdiclion to
       Under the ORO, Janelle therefore was entitled to               modiiJ the ronnula. Sec TEX. F.m. CODE ANN. §
       35.4545% of SI ,215, Doug's adjuSied hypolhelical rclired      9.1107(b); Pean:v. 884 S. W.2d al 514.
       pay. The Amended ORO, however, cnlillcs Janelle lo
       37% or lhc $2,206 in disposable relired pny lhal Doug                    4     From [**9] lcfl lo right, the first operand
       was entitled 10 as of the date of his retirementS Janelle's               represents Janelle's half interest in the communily
       award of Doug's military retirement benefits under the                    property; the second represents the community
       ORO is nol ambiguous because il is expressed wilh                         share of Doug's retirement benefits; and the third
       mathematicnl certainty. See Cal'acciolo ''· Caracciolo,                   rcprcscnlS Doug's hypolhclical relired pay.
:::
,·.,
·••I
                                                                                                                            Page4
                                          352 S.W.3d 746, *750; 2011 Tex. App. LEXIS 6731, ''9



                 5 It is undisputed that Doug's disposablc_retircd      conferred by consenl or waiver}; see aim Met=ger ,._
                 pay in 2006 was $2,206. According to the formula       Mcr:ger, No. 01-04-00893-CJI. 2007 Tex ..4pp. L/Dr.1S
                 in the original DRO. Janelle was entitled to only      4487. 1007 WL 1633445, at *6-7 (/'ex. App.--llousto11
                 19.5272% of the disposable retired pay that Doug       {J.u Di.•t.J June 7, 2007, pet. denied) (mcm. op.) (holding
                 was entitled to as of the date of his retiremenl       that the parties' agreement did not give the court

il  :.,
              Janelle argues that this case is distinguishable from
          the authority Doug relies upon because Doug entered into
                                                                        jurisdiction in a clarificalion suit to modify an
                                                                        unambiguous divorce decree lo reflect the parties'
                                                                        agreement).
          an enforceable Rule I I agrccmcnl to increase Janelle's
          award in exchange for other consideration. Moreover, it              6      Our opinion should not be construed as
          is undispUicd that il was Doug, not Janelle, who soughl              affecting any contractual riglus that either Janelle
          clarification of the ORO. In eiTec~ Doug is now                      or Doug might have under the Rule II agreement.
          aprcaling the modification that he initially sought and              See Metzger, 2007 Tex ..4pp. LEXJS 4487, 2007
          then agreed to nearly four years ago. Although we                    li'L /63345, at *7.
          acknowledge that these facts appear unfair and create a
          waste of judicial resources, the legislature has detem1ined   COSCLUSIOS
          thai the trial court is without power to modify an
                                                                             The trial court lacked jurisdiction to modify the DRO
          unambiguous property di\'ision conlained in a divorce
                                                                        ond enter the Amended ORO. Therefore, Doug did not
          decree,6 See TEX. FA.II. CODE ANN.§ 9.007(b) (providing
                                                                        need to comply with the bill of review requirements to
          that modification of [UIO) propeny division in divorce
                                                                        challenge subject matter jurisdiction, and the trial court
          decree is outside the power of the divorce court); Tex.
          A.•.•'n nf Bu•. v. Tex. Air Cnntml Bd.. 852 S.ll'.2d 440,
                                                                        erred in denying the bill of review. More importantly, we
                                                                        ["751] grant the rcliefthe trial cnurt should have [""II]
          444-45 (/'ex. 1993/ (holding that subject matter
                                                                        granted and vacate the Amended DRO.
          jurisdiction cannol be wai\'cd); /11 1·e A.D.D.. 974 S. W2d
           ]99, 303 (/'ex. App.--So11 Antonio /998. 110 pet.)               Rebecca Simmons, Juslicc
I   ~-)
          (explaining that subjecl maucr jurisdiction cannot be


,,,I
                                                                                                                                    Pagt: I




                    LexisNexisOC'
                   GEORGE PAYTON SHANKS, l'l':TITIONEH v. !>:ENllA CAROLYN (SHANKS)
                                                          TREADWAY. RESPONDENT

                                                                     NO. 110-1325

                                                          SUI'llEME COURT 01' n:XAS

                                       110 S. 11-:Jd 4.f.J; )U(J3 Tex.. LEX IS 87; 46 7£•~-.:. Sup. J. 8.ffl

                                                              AJlril 24, 2002, Argued
                                                             .June 26, 2003 1 Delivered

PRIOI! IIISTOllV:         [>+IJ ON                    PETITION FOR                  1. H;tdtground
REVIFW FllOM THE COURT OF                             APPEALS I'OR
TilE FII'TI! DISTRICT OF TEXAS.                                                      Kcmla Carolyn Treadway i.i..nd GcoJ·gc P:.iyton
Tremhmy \\ Shank.1·, 1 }() S. WJd },                  2000 Tex. "I PI'·      Sh,mks 11\urdcd in 196~. George started WlHking for
LEXJS 7945 (Tex. Apv Dallas. ,\'m·. 17.               2000)                  Amcric:m Airlines in \966 and began particip<~ting in
                                                                             Amcrit::<ln':..; retirement program 1hc following yc;1r. The
DISPOSITION:           Anirmcd.                                              prograu1 indudcd both a defined [*'"'21 benefit plan and a
                                                                             defined cormibution plan. I George continw::d to Wllrk ror
                                                                             Amt:ric:m until hi!> retirement in 1998.
JlJD(-;J,:s: JUSTICE        O~EILL          delivered the (lpininn of
the Court.                                                                                  Generally. ;:~n employee parlldpntiug in a
                                                                                      ddiued benefit plan will rccci\'C a future benefit
QflJ~IO:"i    BV; Harriet O'Neill                                                     hasc:d on a specified formula thai often takes into
                                                                                      nccl1Unl earnings, length of service,. or both.
OI'TNTON                                                                              Uruwu, Comtlllml. An lmerdiscipliwu:~~ Anu~\'sis
                                                                                      Dfllw DNision o[Pe11sio11 Bc11ej'il.s in DiliOJ'Ce and
       l *-44-1]   The is.'luc in this          C;).S.C   is lhc proper               Po.H·.Judgmenl PiirlifirJI/ Acfions.' Cure:.1· Jot Jlw
lJJtcrptc\Ullun of a 198:1 di\'orcc dccrc:c                tim~   div[dcd,            ll!cquiLies in Hf!ny 1', Ben}', 37 BAYLOR L
anHmg other asscls, relircmelll benefits stemming !lorn                               REV. 107, 115-16 (1985). A defined contribution
one spouse's employment bol!t dunng and after lhc                                     plan, on the other hand, il' funded by conlributions
marriage. The trial court held thtH the ["'445J divorce                               of a S)1cci lied amount thai are invested or placed
dccrcl.! fl\\·ardcd the nun-employee spouse u specific                                111 a trust fund. and the employee is cnlillcd upon
percentage of the rctin.:mcnt b.;n~flts valued ar d1c d;.Hc of                        rctircrnclll to those contributions plus the t:arnings
Jivorcc. The court of appcalf. reversed, cnndutling t.hut                             thercun. !d. en II J.
the 1.kcrcc Ulmmbiguously nwardcd the nnn-cmployee
SjJOliSC 11 JlCfCCIHngc   of the                    the bell d)!_$ Oil
                                   luU\J Ul11dU11l oi'                              Gt·urgc nnd Kcnda divorced m 1981. Jn the div()rcc
the date or retirement. 110           .\~   W3d 1. 2000 Tex. App.            deCJcc. the districl court awitrdcd Ketlda a lwcnty-fi.vc
LEXIS 79.fS. We hold that the court of ~1ppcals correctly                    pcrcc:.·m jntcrcsl in Gcorgc1S n.::litc.trtcnl benefits:, m1d
inteq)rctcd lhc decree. Accordingly. we affirm the coun                      neither party appealed the ju~g.tilC~IL The relevant
of appeals' judgmem.                                                         portious of[HJ] the decree provide:
                                                                                                                      Page 2
                                        110 S.W.3d 444, "445; 2003 Tex. LEXIS 87, ""3;
                                                     46 Tex. Sup. J. 840


       The Coun finds that [George] has earned ~crtain           LEXIS 7945. The coun held that lhe divorce decree
    employee benefits under a pension plan arising out of        unambiguously awarded Kcnda "a twenty-five percent
    past employment as an employee of American Airlines.         interest of the 'total sum or sums paid or to be paid' from
                                                                 [George's] [ 00 5] pension plans and [did] not limit her
        [Kenda] is awarded a "pro-rala intcrcstu (as             award to a percentage of the benefits accrued in the plans
    hereinafter defined) of any and all sums received or paid    prior to the divorce." ld at 6, 2000 Tex App. LEXIS 7945
    lo (George] from such pension plan and such sum or           al • 11. The· court therefore remanded the case to the
    sums shall be payable to [Kenda] if, us and when paid by     district court to enter a revised QDRO awarding Kenda a
    American Airlines or the trustee of such plan to [George]    twenty-five percent interest in the entire amounl to be
    as pension or retirement employee benefits existing          paid to George as retirement benefits. We agree with the
    because of[George's] employment                              appellate court's intcrpretntion of the decree and therefore
                                                                 alfmn the court of appeals' jud!,'ltlent.
         IT IS DECREED !hat [Kenda's] "pro-rata interest"
    shall be defined as that sum o(money equal to 25% of the     II. Dh·ldlng Rellremenl BeneliiS
    total sum or sums paid or to be paid to [George] from
    such pension or retirement plan.                                   We begin with an overview of the law that was in
                                                                 cffccl in this area at the time the decree was entered to
                                                                 dernonslrate the complexities involved in dividing
                                                                 retirement benefils upon divorce. Our decisions focused
         IT IS FURTHER DECREED that all remaining
                                                                 first on the recognition of pension interests as community
    right, tille and interest in and to such American Airlines   propeny rights and lhen on the separate issues of
    pension and/or retiremem plan shall be and is hereby set
                                                                 apponionmcnt and valuation of benefits. In Cea,·leJJ "·
    aside to [George].
                                                                 Cem·Jer, we considered whether future pension benefits
         On March 9, 1998, approximately two mon1hs before       constitute community property rights subject to equitable
    his scheduled retirement dace. George filed a Motion to      di\'ision upon divorce. 544 S.ll'.2d 661, 663-64, 20 Tex.
    Sign Qualified Domestic Relations Order ("QDR0 11 ). See     Sup. Ct. J. 102 (Tex. 1976). We approved of the
I
I   TEX FAM. CODE § 9.10]. In his motion, George
                                                                 proposition thai even "nonvcstcd 2 pension rights arc ...
I   proposed that !he court calculate [••4] lhe value of bolh    a contingcnl in1crcst in propcny~" and nlo the cxlent thai
    the defined benefit and defined contribUiion plans as of     [,...6] such rights derive from employment during
    the date of dh•orce in awarding Kcnda her t\venty-five       covenure. they comprise n community asset subject to
    percent interest. In response, Kenda asserted thai res       division in a dissolutiQn proceeding." /d. (quoting Brow11
                                                                 1'. Brown, IS Cal. 3d 838, 126 Cal. Rptr. 633, 544 f'.2d
    judicata barred the attempted collateral attack. She
    requested that the district coun sign her proposed QDRO,     561, 561 (Cal. 1976)). We also discussed the difficulty of
    awarding her twenty-five percent of the tolal amount of      computing lhc present value of such a contingent interest
    the benefits to be paid to George.                           and approved the method of making the award of the
                                                                 non-employee spouse's community interest 11 effective if,
         The district court signed two QDROs - George's          as, and when the bencnts are received by the (employee]
    QDRO di\•iding lhe defined benefit plan valued at the        spouse." 544 S. W.1d a/666.
    date of divorce and Kenda's QDRO dividing both plans
    valued as of the date 1hat George actually rcceh•cd                 2 Pension plan bene fils become vested when the
    ["446] payment In light of lhc inconsistent order.;,                employee has an unconditional ownership interest
    George moved for reconsidcr.uion. The coun granted                  in them; thai is, the employee has the right 10
    George's motion, ''acated Kenda's QDRO, and entered                 receive the accrued benefits upon retirement
    another QDRO valuing the defined contribution plan al               whether or not he is working for the same
    the date of divorce. Kenda appealed.                                employer. Brown, 37 BAYLOR L. REV. at 119.
                                                                        In comrast, pension benefits arc "matured" when
        The coun of appeals reversed the judgment,                      lhc employee is entitled to "immediate collection
    concluding that the trial court's QDROs impermissibly               and enjoyment.'' ld.
    nltcrcd the substantive division of propcny made in the
    original divorce dccree.IIO S.II'.3J at 3, 1000 Tex. App.        The 1983 case Bei'IJ' "· Bei'IJ'. 647 S. W.ld 945, 16
                                                                 Tex. Sup. Ct. J. 166 (Te_,, 1983), currently go\'ems the
                                                                                                                             Page 3
                                           110 S.W.3d 444, '446; 2003 Tex. LEXIS 87, "6;
                                                         46 Tex. Sup. J. 840


     division of retirement [U7] benefits. However. w.hcn the          ("8) Ill. Interpreting the Dlvor<e Decree
     decree in question was entered in 1981, Cearley and
     Taggart 1'. Taggart, 552 S. W. 2d 422, 20 Tex. Sup. Ct. J.             Notwithstanding the state of the law at tbc time the
     334 (Tex. 1977). provided trial courts the fonnula to use         divorce decree was entered, this case docs not involve a
     in determining the communil)• interest in reliremenl              direct appeal, and we must interpret the decree to
     benefils and the non-employee spouse's share of that              delemline nol what the triol court should have done but,
     interest. The Court used a fraction to apportion the              if possible, what dte court actually did. When interpreting
     communiry inlerest: the number of months married under            a divorce decree, courts apply the general rules regarding
     the plan divided by the total number or months employed           construction of judgments. Wilde ''· Murchie, 949 S. Jll. 2d
     under the plan at the time of retirement. Tuggal"l, 552           3JJ, 332, 40 Tex. Sup. Ct. J. 910 (Tex. 1997) (per curiam)
     S. W.2d at 424. That fraction was multiplied by the               (citing Constance v. Co11stance, 544 S.l"2d 659, 660, 20
     non-employee spouse's      ·~ust   and right'' share in the       Tex. Sup. Ct. J. 106 (Tex. 1976)). Judgments should be
     contmunity inlercst as dclcnnincd by the trial court (oficn       conslrued as a whole to harmonize and give effect to the
     fiffy percent) and then multiplied by lhe value of the            entire decree. CorrslaiJce, 544 S.IJI.2d al 660. "If the
     bencfil<i rccei\'ed by the employee spouse at retirement.         decree, when read as a whole, is unambiguous as Ia the
     Jd. 3 When the trial [*447] court entered George and              propcny's disposition. the court must effectuate the order
     Kcnda's divorce decree, it should have employed the               in light of the literal language used." Wilde, 949 S.IY.2d
     Taggart fonnula to divide the retirement benefits, though         t1t 3J2; ,,ee also BtL<I<I' v. Ruddle, 794 S.IV.2d 761, 763,
     of course lhc court would not have been able to insert            33 Tex. Sup. Ct. J. 687 (Tex. /990). 1r the decree is
     numbers for the denominator of the community interest             ambiguous, the court should review the record along with
     fraction or the value of the benefits, which could not be         I he decree to aid in interpreting the judgment. Wilde, 949
     dc1cm1ined until retirement.                                      S. W.JJ at 332. In addition, if a judgment is ambiguous
                                                                       (**9) - that is, subject to more lhan one reasonable
            3 The Bel'l)' decision ahercd this rormula. 647            interpretation - couns should adopt the construction that
            S.11'.2d at 947. Although the Coun in Beny                 correctly applies the law. Ma,·G•·egol'\'. Ric/1, 941 S.IY.2d
            expressly declined to overrule Taggm·r with                74. 75, 40 Tex. Sup. Ct. J. 298 (Tex. 1997) (per curiam).
            regard to dte apportionment fraction, it                   As with other written instrumcnls, whether a divorce
            nevertheless effected a change in the fraclion's           decree is ambiguous is a question of law. Coker ''· Coker,
            denominator 10 the number of months employed               650 S. W.2d 391, 394, 26 Tex. Sup. Ct. J. 368 (Tex. /983).
            unc.Jer the plan at the time of divorce. Jd.; see also
            G1·ier v. G•·ier, 731 S. W.2d 93/, 932, 30 Te.<. Sup.           The decree in question identifies George's pension
            Ct. J. 416 (Tex. /987). BmJ• altered the valuation         plan as "arising out of past employment, 11 but then states
            portion of the formula as well, requiring the value        that Kenda is entitled to 11 3 'pro rata interest' ... of any
            of the benefits to be calculated at the date of            and all sums received or paid to [George] from such
            divorce lo avoid invading the employee spouse's            pension plan . . . ." The decree also defines "pro rata
            separate propcny. 647 S.W.2d at 947. It should be          in1eres1" as "25% of lhc total sum or sums paid or to be
            noted that serious concerns hD\'C been raised              paid to [George) from such pension or retirement plan."
            regarding the Berry formula's failure to accounl           TI1e decree does not set out a specific Taggan..Jike
            for postadivorcc increases in the value of                 fonnula to be used in calculating Kenda's inlerest.
            retirement benefits attributable· to community
            propcny contributions to 1he plan. Brown, 3 7                   The court of appeals concluded, and we agree, that
                                                                       the decree is unambiguous, and Kenda should receive
            BAYLOR L. REV. at 152-62. In addition, the
                                                                       twenty-five percent of George's total retirement bencfilS.
            problems associated w1th valuing benefits differ
            depending on the type or plan heing divided. /d. at        The phrase "arising out of past employment as an
            112-17, 152-62 (discussing the differences                 employee of American Airlines" (emphasis added} does
            between defined benefit plans and defined                  not render the decree ambiguous, as George argues;
            contribution plans). J-Jo\\'C\'er. the facts of the case   rather, [*"'10] it merely serves 10 identify more
            currently before the Coun do not provide us lhc            specifically the property that is being divided (i.e .•
.I          opportunity to address those concerns in this              George's retirement plan). 4 ('448] As noted by the
            opinion.                                                   courl of appeals, the lrial court awarded Kenda an interest
                                                                                                                    Page 4
                                    110 S.W.3d 444, *448; 2003 Tex. LEXIS 87, **10;
                                                  46 Tex. Sup. J. 840


of all sums received 'under such piau, not an intc:rcsl of      1hcreforc urges us to interpret the decree to award Kenda
presently accrued bcnctils under such plan. //0 S. W.3J at      an interest in only the community portion [UJ2j of the
6, 2000 T<x. App. LEXIS 7945. And the plan that was in          plan to avoid attributing to the trial court an intent to
existence at the time of the divorce and referred to in the     divide separate property, which it lacked aulhority to do.
decree is the same plan in effect now that George has           That argument is nawcd in two respcciS. First. h
retired. The fact that lhe plan's \'aluc may have increased     O\'erlooks the fact that applying Taggarl, which was the
since the divorce does not affect the dccree•s plain            controlling law at the time the decree was cn1ered and
language, which simply cannot reasonably be construed           required benefits to be \'alued at the time of lheir
to award Kcnda an interest only in the plan benefilS that       disbursement, would probably dives! George of a portion
had accrued on the dale of divorce. Whether intentional         of his separate property anyway. In fact, the reason the
or not, the court that entered the decree failed to limit the   Court allered the requisite fonnula in Berry was to avoid
community inlerest pursuant to the                   Taggart    im•ading a spouse's separate propeny. See supra note 3;
apportionment fraction and inslcad clearly gave Kenda a         Ben,•, 647 S. W.2d at 947. S This lension dcmonslratcs the
lwcnty·five percent inlcrcst in tbe total amount (whatever      difficulty inherenl in di\'iding pension plans that involve
thai might be) lo be paid to George under the plan.             both separate and community property and indiea1es that
                                                                interpreting such a division is not as simple as presuming
       4 Although George's relitcrncnl benefits include         a lack of intent to divide separate property. 6
       both a defined benefit plan and a defined
       contribulion plan, lhe decree referred to them as a             5 We reiterate that e\'en after Berl";&' was decided,
       single plan. Because this is not a direct appeal, it            concerns about in\•ading separate property
       is unnecessary to address at lcnglh the myrind                  remained. Brown, 37 BAYLOR L. REV. at
       differences between the two types of plans.                     152-62.
       Nevenheless, trial couns should take into serious               6 We recognize lhe imponance of safeguarding
       consideration the kind of plan al issue when                    individuol propcny rights, bul significonlly, il was
       dividing and valuing retirement benefits. See                   not until 1977 in Eggemeyer that this Court
       supra note 3; Brown, 37 BAYLOR L. REV. al                       expressly and unequivocally held thai a court
        134-36, 156-62.                                                cannot divest a spouse of his or her sepamtc
                                                                       propeny upon di\'orce. Eggemeyer, 554 S. W2d at
      [**I I] Viewing the division of the rlan benefits in             /4].
light of the decree as a whole, the fact that the court
awarded Kenda only a twenty-five percent interest in the              [..,.13] Such an analysis is also problematic because
plan also supports our interpretation. Trial judges musl        the fnct that the district court erroneously (*449] applied
carefully review all community assets in making a "just         the law when il entered the divorce decree does not aher
and right" division of those assets. and the retircmenl         lhe decree's plain language. ln Bcu:ter. which was decided
benefits \\'ere one of the assets considered in this case.      after Ben·y. 1he divorce decree in queslion awarded the
See Busby 1'. Bushy, 457 S.lrld 551, 555, 13 Tex. Sup.          non·employee spouse 11 37 1/2% of [the employee
C/. J. 485 (Tox. 1970). Given the complexities involved         spouse's] gross benefits, if, as and when he received
in dividing this type of asset. perhaps the trial court         them. TI1e decree also provided dtat [lhe non~employee
inlended to achieve an overall just ond right division by       spouse] was to receive 37 1/2% of the total benefits that
awarding Kenda a lesser interest in the total value of the      (the employee spouse) received each month.'' 794 S. IV.2d
plan at retirement rather than a grcalcr interest in a          <1/ 763 (emphasis removed). We held that "this language
smaller portion of the benefits. We simply cannot know          unambiguously pro\'ided that [the non-employee spouse]
with certainly becaus~ 1he decree was never appealed. In        wns to receive 37 1/2% of lhc total retirement benefits
any event. our responsibility is to conslruc the decree as      received by [the employee spouse] each month, including
written.                                                        any pOSI· divorce incrcoscs. 11 /d. 7 We therefore enforced
                                                                thl! decree as written even though it conflicted wilh
    It is true, as George points oul. that Texas law            Berry. ld. Similarly, we mm;.l enforce the decree as
prohibits coons from divesting spouses of their separale        written in this case even though it conflicts with Taggan.
property. Eggellwyer ''· Eggenu.•ye1·, 554 S. JY.2d JJ7,
139-40, 20 T<x. Sup. CJ. J. 308 (Tex. 1977). Rut George                7 \Ve note, however, that we disagree with the
                                                                                                                         PageS
                                         110 S.W.3d 444, •449; 2003 Tex. LEXIS 87, .. 13;
                                                       46 Tex. Sup. J. R40


             court of appeals' conclusion in lhis case that the      S.ll'.ld 675, 679 !Tex. App.-E/ Pam 1993, 11ril denied):
             phrase "if, as, and when received'' is "a lcnn of art   see also McGe!Jee v. Epley, 661 S.ll~2d 914, 925-26, 17
             evidencing an inlentto value a pension plan at the      Tex. Sup. C/. J. 45 (Tex. 1983) (slaling lhat clarificalion
             time of receipt rather than at the time of divorce."    orders cannot be used to effect a substantive change in a
             110 S.W.3d nl 6, 2000 Tex. App. LEXIS 7945. In          divorce decree after the trial coun's judgment becomes
             Cearley, when we recognized contingent pension          final), George's remedy for a substantive enor of law by
             benefits as community property rights subject Ia        the trial court was by direct appeal, and he cannot now
             division upon divorce, we acknowledged that "it         collaterally auack the judgment. Alapco, l11c. v. FmTest,

'i
,-I
 'I
             may be necessary in n1any instances for the
             judgment to make the apponionmenl lo the
              nonrctiring spouse effective if, as, and when the
                                                                     795 S.Jl~1d 700, 703, 33 Tex. Sup. C/. J. 303 (Tex. 1990);
                                                                     Baxter, 794 S. W.2d ol 762; SliltsOII ''· Slitrson, 668
                                                                     S.W2d 840, 841 [••IS] (Tex. App.-San Antonio /984,
  '
             benefits arc received by the [employee] spouse."        wril refJ 11.r.e.). The district coun was therefore without
             544 S. W.2d a/ 666, The lcnn lhus rcOcciS the           au~tority to enter a QDRO altering lhc tenns of lhc
             contingent nature of the community's interest in        decree by limiting Kenda to a twcnly-five percent interest
             the retirement benefits and not necessarily the         in the bcncfiiS that had accrued under the plan at the time
             value of that interest                                  of the divorce.

             (UJ4] Kcnda argues that the district court cannot       IV. Conclusion
      change the substantive division of property made in the
      original decree. We agree. While the court may enter a               The divorce decree is unambiguous and awarded
      ..clarifying order'' to enforce compliance with an             Kenda Treadway 1wemy-five percent of George Shanks's
      insullicienlly specific decree, TEX. FAM. CODE §               tot.al relircrncnl bencfiiS. The coun of appeals was eonecl
      9.008(h), a court "may not amend, modify, alter, or            in reversing the district coun's judgment, and we
      change tl1e division of property made or approved in the       thcrcrore affinn lhc judgment of 1hc coun of appeals.
      decree of divorce." /d. § 9.007(a). The original decree in
                                                                         llarriel O'Neill
      this case is unambiguous, and the trial court had no
      authority to enter an order altering or modifying 1hc              Juslicc
      original disposition ofproperty./J.; Pierce,,_ Pie1·ce, 850
                                                                                                                                    Page I




                 LexisNexis®
                 KAIUW H. STATJN, l'lalntirr- Appellant'"- DEVTSC\1£ HANK NATIONAL
                TJtUST COMPANV 1 as Ttustcc 1 ftll"lltcdy ~mowu 1ts llnnkcrs Trust Company, us
                    Trustee fur Ccl'ttficnlc Buldcrs or Saco I; JP J\IOHGAN CHASE FlANK~
               NATIONAL ASSOCIATION, as Mnt·t~•gcc; EMC ~IOIITGAGE COHPOIIATION,
                                 as Foruu:r :\lurt~a~cc. DcfcL1tlants- Appellees

                                            7\n. I.J·21111l0 Summary Calendar

                      UNITED STATES COUI!T OF ,\I'I'EALS FOR THE FIFTI1 ClllCUI"l"

                                               11114 (i..l'. App,J.EXIS 2406-f


                                                 Occembu        19~   20J 4. Filed

:'\OTIC£: PLEASlo REFER TO FEDERAL IW/.ES
OF APPELLAII': PROCEDURE RULe         32.1
GOVERNING TifF. CTTATION TO UNI'UBLISIII',D                                     * n"' l'msuanl to jJH CJH. 1?. 47.5, the courL hns
OPINIONS.                                                                       dclcm1i nc.d thnt this tlp_inion should not be
                                                                                published nnd is not prcccdcnl .cxc(!p_t under .the
PRIOH HISTORY:             [*I] Appeal trom the UniteJ                          limited circumslanccs SCl ronh in 5T!I CJR. R.
SUHCS Difitricl Coun ror the SoHthc:m DislrtCl or Texas.                        17.5..1.
USDCNo. 4:13·CV·3632.
                                                                           rn thi~ appc-<~l of a Ruh:: 12(b)(h) dit.:mis~nl of various
                                                                      claims chulkng_ing a forecJosurc, lhc Phlintirr comcnds
COUt\SEL: KAREY BEIL\!ARD STATIN, Plaiuti[[-                          that the amoum at stake in Lhis lawsuit         j,.,   insufllcicnt lo
Appellant, Pro sc, 1-luustou, TX.                                     wan-ant removal to fcdcml conn on divcr:.::ity grounds.

For DEUTSCIIE BANK NATIONAL TRUST                                     L
COMPA1\-'"Y. as Tntstet!. fOrmerly known us Banker;-;
                                                                           In   lat~   November 2013\ Karcy Smtin lih:d suit in
Trust Company, as Tntstec for Ccrliticalc Holders ()[
                                                                      Texas state .court llgninst Dcmsche Bimk, JP Morgan
Saco I, JP MORGAN CHASE BANK NATIONAL
                                                                      Chas~.     a11t.l EMC Mortgage Corpomti"on. Statln,
ASSOCI AT!ON, n> Mortgagee. EMC MORTGAGE
                                                                      <lppcaring pro se, alleged l*21 numerous violations of
COHPORATION, as Former tdortgagcc, Defendant.$ -
                                                                      Texafi la\1.' arising from the Defcnd;mt~ treatment of his
                                                                                                                  1


Appellee-s: 1VIarcit: Ly1m Sehoul, Esq .• Kndic Pn:ston
                                                                      mortgage and attempt to fQrcclnl'c nn his hnme. Stt1tin
B!..'nnion, \Villinm Lance Lewis, Esq. Quilling, Sc:ltllldcr,
                                                                      sought e-quitable relief voiding the lorcclosmc of his
Lownds. Winslett & rv1oser, P.C.. Dallas, TX.
                                                                      horne cmd gmntlng tlme to sccun: nn additional loan to
                                                                      pay oiT S2S.OOO due on the mortgagc,                   a~   well as a
.ll'llGES: Before DAVIS. CLF.MENT, and COSTA.
                                                                      declaration that the mor1g<Jge would be satisfied by a
Circuit Judges.
                                                                      S2S,OOO payrucur. Statin sought no     m~1nctary        damages.
OPit\ION
                                                                           The Dcf'cndants filed a LimelyNottcc ofRI!moval on
                                                                                                                    Pagc2
                                            2014 U.S. App. LEX!S 24064, •2



the basis of diversity. The Notice of Removal contained a      not cantest that the amount in controversy exceeds the
single sentence addressing the amount in controversy:          federal minimum jurisdiclional limits." Again, the
                                                               Defendants (0 4] nuached no proof of the house's fair
          The real property at issue has a current             markel value or the value of the other equitable relief.
       fair marker value of S87,SOG.                           They did not. for example, auach a coun(}' appraisal
                                                               district1s assessment of the property, which is a common
The value of the propcny is the rele\'ant consideration for    way the amount·in·controvcrsy requirement is provc::n in
determining amounc in controversy for these common             the numerous foreclosure cases that have been removed
foreclosure cases seeking injunclivc relief. Farkas ,.,        to federal coun in recent years. See, e.g., Valade= 1'. Ba11k
GMAC Mortg.. L.L.C., 737 F3d JJ8, 341 (5th Cir·.               of Am .. 1013 U.S. Dist. LEX/S 97092, 2013 WL 3559145,
201 3), but Defendants cited nothing ro suppon their           "3-4 (W.D. Tex. lui)' I I, 2013) (noting that couns "rcl[y]
S87,SOO valuation.'                                            on county lax a.~sessors' appraisals to determine lhc value
                                                               of properly in [amount in controversy] cases"); G01•ea v.
             The Supreme Coun recently decided that            JPMorga11 Chase Ba11k, N.A .. 2010 U.S. Dist. LEXIS
       defendants do not need to attach evidence               130940, 2010 WL 5140064, •4 (S.D. Tex. Dec. 10, 2010)
       supporting the alleged amount in controversy 10         (explaining why "the appraisal value from the Harris
       the nolicc of removal. See Dart Cherokee Basin          County Appraisal District" can '1detennin[e] the amount
       Operati11g Co., LLC v. Owe11.t,     S. Cl. . 20/4       in controvcrsyn). Instead, the Defendants pointed to their
       U.S. 1.EXJS 8435, 1014 JVL 7010692, at 0 6 (Dec.        allegation in the Notice of Removal that the house had a
       15, 2014). Thai has long been our approach. See         value of $87 ,SOG. The dislricl court denied the Motion ro
       Gebbia v. JVai-Mart Store.<, lire.. 233 F.Jd 880,       Remand, holding only that "[a]ccording to Defendants.
       882-83 (5tlr Cir. 20110). Dart Cherokee also            the current fair market value of the Property is assessed at
       explained, however. that once the notice          or    $87,500, which exceeds 1he federal jurisdictional amount
       removal's asserted amounr is ''challenged," the         of S75,0GG." The district court proceeded 10 the merits of
       parties "musl submit proof and the court [•3]           Statin's claims, which it ultimately dismissed.
       decides, by a preponderance of the evidence,
       whether lhc amounl·in-conlroversy requirement           II.
       has been satisOed." J0/4 U.S. LEXIS 8435, J0/4
        JVL 7010692 at •5 (citing 28 U.S.C. §                       Starin filed this appeal. In addition 10 contesting lhe
       1446(c)(2)(B)). Al~10ugh this discussion was            district court's ruling on the merits. he also challenges for
       likely not made with lhc procedural posture of this     lhc Orst lime on appeal the federal court's subject ["S]
       case in mind, it also docs nothing to cas1 doubt on     matter jurisdiclion on the grounds thai the
       the prior case law cited below that provides a          amount-in-conlrovcrsy requirement was not satisfied at
       procedure for 1his situation when the amount is         the time of removal.
       first challenged on appeal.
                                                                     Defendants contend thai they satisfied the
     Stalin lhcn filed a Molion to Change Venue. Citing        nmounl·in-controvcrsy requirement because. in their
lhe Texas Ci\•il Practice &. Remedies Code, Stalin argued      Notice of Removal, they assened a fact supporting the
that venue was proper in stale court. The motion funher        amount in controversy and it went unchallenged by the
argued that "Texas has a legal right 10 litigale issues        Plainti IT in the district coun. 2 Because subject matter
arising out of its Courts, and its lands" and concluded that   jurisdiction can nC\'cr be waived, however, a plainlifT
''defendant is improper, and premature in bringing his         may challenge the amount·in-controversy requirement for
claim and his 3J1SWer to this Honornble Court.'' Statin        the firsl time on appeal. See Larremore \'. Lykes Bros.
made no mention of diversity of citizenship, the amount        Inc .. 454 F. App'x 305, 306-07 (5th Cir. 2011) (citing
in controversy requiremenl, or uny other federal law.           Williams''· Best BIIJ' Co., Inc., 269 F.Jd 1316. 1319-21
                                                               (I Jth c;,., 200/) (citing U11ilcd Food & Commercial
     Both the Defendants and the district court treated         Worker.f Unio11, Local 9/9, AFL-C/0 \1, CclllerMark
Stalin's filing as a motion to remand the case to state        Props. Meriden Squal'c, l11c., 30 F.3d 298, 303-06 (2d
court. The Defendants addressed the amount in                  Cir. /994) (e:"plaining the concerns that underlie the rule
eonlfuversy requirement by arguing thai "Plainliff docs        and "declin[ing]lo hold lhal the [plainrifl] ha.< waived irs
                                                                                                                  Page 3
                                            2014 U.S. App. LEX1S 24064, •s



right to challenge for the first time [on app"!l1] the             After it receives any relevant evidence from both
defendants1 assertion of the amount in controversy set        sides. the district court can assess whether the Defendants
forth in the notice of removal 11 ))). The problem when the   ha\'e met lheir burden of demonstrating by a
issue is first raised on appeal with an insufficient          preponderance of the e\•idence that the amount in
evidentiruy record is that the removing party never had       controversy was satisfied al rhe time of removal. See 18
notice of a need to produce evidence in the district court    USC ,ii /446(c)(2)(B). Our determinalion !hat remand is
and cannot now provide such evidence to lhe appellate         warranred for development of a factual record on lhis
court Courts, including ours, confronted with this            issue is also supported by !he fact, of which we can take
situation have thus remanded the case to the district court   judicial notice because it comes from a public rccord,l
so the defendant can submit evidence to suppon iLS            !hat the county appraisal for !he property at the time of
claimed valuation (*6) of the case. See Larremore, 454        removal was only $62,392. See Real Property [•7]
F. App'x. at 307 ("[TI1e p1ainti!Ts] sought [only]            Account lnfonnation, Harris County Appraisal District,
declar.:uory and injunctive relief . . . Due to the           ai'Qi/able at hup://www.hcad.org/ (appraisal as of Jnn. 1,
incomplete nature of the faclual record, we cannot            2014).
determine if lhc amount in controversy exceeds the
jurisdictional requirement. ... [W)e think lhat a remand             3 "An appellate court may take judicial nolicc of
for development of the record and dctennination of                   facl~. even if such facts were not noticed by lhc

jurisdiction is appropriate.").                                      trial court. '1 Harris 1'. Bd. of Supe~isors of /..a.
                                                                     State Uni1•. & Agric. & Mech. Col/., 409 F. App'x
       2 Defendants furtl•cr contend that lhe amount in              725, 727n.2 (5th Cir. 2010).
       controversy is satisfied because the amounl due
       on the loan exceeds $75,000, but the amount due             The case therefore is REMANDED for 1hc limited
       on the loan does not maner as Statin is not            purpose of dctcm1ining whether the amount in
       seeking to recover any of the loan. It would ntatter   controversy exceeds S7S.OOO.
       if Defendants had sued Stalin for amounls due
       under the loan.
         21312015                       Texas Family Code- Section 9.006. Enforcement Of Dlvisloo Of Property- Texas Attorney Resoorces- Texas laws
                                                                                                                                                          ------------------l Sem&h

          onecle
                                1--;                                                                         ,.
           C'uurl Opinions                       Texas Family Code- Section 9.006. Enforcement Of
            US Supreme Coun                      Division Of Property
            LIS To:-.: Court                     I aa' Bcmm=b Hnmc > ~ >famjlrfc.1c > Te~:o"IS 1-'mnlly Codr • 5f.'djnn 9.0116. F.nfotnml:'nt Of hhi~ion 0€ ProJil'rt)·
            Hoard of F'alcnt Appeuls

           St:1lc Laws
.J
    i       Alabama
   I
            Ariwna
   I        California
            l-1orida
                                                 § 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except
            Georgia                              as provided by this subchapter and by the Texas Rules of Civil
            lllinoi:;                            Procedute, the court aay render further orders to enforce the
            Indiana                              divi~ion of property made in the de~ree of divor~e or annulment to
            !\J;tss;Jchusclls                    assi~t in th@ implementation of or to clarify th@ prior order.
            ~lil·hig.an                                  (b) The court may specify more precisely the manner of
            ~\~\·ada                             effecting the property division previously ~ade if the substantive
            !'\ew,Je~e~·                         division of property is not altered or changed.
            i'\cw \'ork                                  (c) An order of enforcement does not alte~ or affect the
            Korth Carolina                       finality of the dec~ee of divorce or annulm9nt beinB enforced.
            Ort.,;on                             Added by Acts 1997 1 75th Leg., ch. 7, § 1, eff. April 17, 1997.
            Jlenns~·knnia
            Texas
            Vi1-ginin
            Washington                           Section: ~            Jl.3ll4 l!.3.ll5 .!l.l!l!.l   !l.lll!:l !lJ!ll3 !l.l!lM 9&05 9.006 !LllllZ   !IJ!l!l! !1J!!19 !l.lllll
                                                 !1.!!.11 !IJll2. 9.Jll3   Nl:xt
           C:S Cudc
                                                 Last modified: August u, 2007
            1 USC   • General Prm;sions
            2 USC - The Congress                                                                                                                                         ··-·
                                                  Start 2015 by Saving Big
·-1·'~
            3 USC - The Prl'Sident
--..        -1liSC- Flng and Se.d
            5 USC - Gm·'t Organi1..1tion          New Auto Insurance Itates from$15/Month · Get Free Quotes!
            6 USC- Domrstic Securily
            7 USC- Agriculture
            8 USC- Aliens and Nationnlit\'
            9 t.:'SC ·Arbitration       ·
            1o VSC • Armed Fmtts
            11 USC- Bnnkrupte)'
            12 USC- Banks and Banking
            13 t.:SC - C<'mms
            1-1 USC- Coasl Guard
            15 USC- Commerce and Trade
            16 USC- Con!'ern&tion
            17 USC- Copyrights
            1S USC- Crimes
            19l1SC- Cw:toms Duties
            20 L"SC- Educntion
            21 USC- Food and Drugs
            2:! t:SC • Fort.•ign Relations
            23 USC· Highways
            24 L'SC · Hospital$
            25 L"SC · lndiuns
            26 l"SC- lnlt>mal Rcnmue Code
            27l:sc · Intoxicating liquors
            28 USC- .ludician·
            29 esc - t...bor ·
            30 USC- ~1int>rnl Lands
            31 tSC- Money and Finant-e
            32 USC -l'\ationnl Guard
            33 t;SC- X11'igation
            34 USC· J\"'7-" (repealed)
            35 t.:SC - Patents
            36liSC · l1altiotic Sodelies
            3i USC- Uniformed Senices
            36 liSC- Vctt.>rans' Benefits
            39 USC - Po!"lal Scnice
            40 USC • Public Property
            41 USC- PublieContrncts
            42 USC- Publie Health

         http1naw.anecle.oomnexasllamily/9.006.00.hlml                                                                                                                            112
713!~015                            Texas Family Code~ Scction-9.007. Umltation On Povver Of Cour1 To Enforce- Texas Attorney Resources- Texas Laws
                                                                                                                                                                                                    Search
 onecle
                                               Texas Family Code- Section g.007. Limitation On Power Of
    l_!S Suprt'me- C{)ml                       Court To Enforce
    US Ta;-.; Courl
                                               I Prnl   It~«<""m'l!   BfiD1e > ~ :>- }lamjl\' !',..,1" :-   Tc~ll~   Family Code· ~lion r}.!Hl7. timihl.lit,u On Power OJtcurt 'l'o
    Borml of Pa~\:'nt Appeals                  Enf¢1\'C


  Slate La\\'s

   Al::!hama                                                                                                                                                                               &ch!'lor'' l).,y
   Arizullll
   CaliforniH                                                                                                                                                                              '"""""''
                                                                                                                                                                                           li"""'"'"""•'='
                                                                                                                                                                                           Bu!ir-.e" Ad;r.ll!~
   Florida                                                                                                                                                                                 Hen!l!! Se~n~:B
                                                                                                                                                                                           lrllomlo.ttoo S~l
   G<·or~in                                    § 9.01:17. LIMITATION ON PO'.'IER Of CO\JRT TO ENfOHCE.                           (,1)    (I
   Illinoi!i                                   court may not amend, modify, alL~r 1 or ch~nr,e th~ division of                                                                             Maner·J          Del!!~
    \;;dian;~                                  property made or approved in th~ decree of divorc~ or annulm~nt. An                                                                         [;f)!-, ......
                                                                                                                                                                                           ~i'C,.,.,=~·ko<ll
   ~la:.;:-achusl'tls                          order to enfot·ce the division is limited to an order to assist in
                                                                                                                                                                                           6vs:!rw»,l.d-"i7fl
   ).Jichi~an                                  the implementution of or to darlfy the prior order <Jnd m<~y nol                                                                            l'I{OII)lUII.;m SY'"A
   :'\t~l'adil                                 01lter or chilnge the substantive division of p1-op~rty,                                                                                    H~llllSc.r.!le..""'l
                                                                                                                                                                                           Et!U(:.;'Ill!\r1
                                                        (~)   An order under thi~ section th~t amends, modifies,
   1'\t'w.kr;;ey
                                               alters, or chunges the actual, substilntive division of property
   i\ew York                                   made or approved in a finul decree of divorw or• <Jflnl.JJwent is beyond
                                                                                                                                                                                           PhD De.gt«s
                                                                                                                                                                                           ~p~~--~ l ..
   r;urth Carolinrt                            the power of _lh~ divorce court ilnd is utmnforicaiJlc.                                                                                     12   Got>a:n.'>"~

   Oregon                                               (c) The 'PO'Nl'l' of the court to render further order·s to                                                                        ll~tAd:;"nr
                                                                                                                                                                                           1-!c,lf\!:1~~~
   l'enn!;)']\·ania                            assist in the implem~ntation of or to clarify ·the -prof!erty division                                                                      EetJ:ato.1
   TCXi~S                                      is <1batcd whUC <H1 ilflPc<llat~ pt'NO~t.Hnu 1::. pen:ding.
   \'irg.inia
    \\';!$hi!l);;LOH                           Added by Acts 1997, 75th Leg., ch. 7, § 1, l!ff, April 17, 1997.



                                               Section: Pn~\·jnw: &.:illS SW1ill. Cl.oo;• 9.:.f!!23 9..&Qi 9.J.l!!5.                    .ll..lli1..6.   9.007 n noR 9.JlQ9_ Q-010 9.ill1
    1   U·lC- CE'nNnl Prm-iliions              9.i.!..L! _g__,__c]_J_J 9....U.1d N(>X!
   :!    USC- Tht:     Con~rE's.s
   :{ L;~c- Tbl.' Prcsid('Jll                  Lruf modified: Atrgust 11,2007
   ·I USC- Flag and S!.'.a\
   5 USC- GO\''l 0J'gani7-ntiou
   C1 l;SC • DomPstk SecLlril\'
   7 USC- A~riculture                ·          Start 2015 by Saving Big
   S USC- Ailcns ancl Nutionality               New Au1o Tnsurance Rares from S15/lvl"onth ·Get FreE_Quotes!
   'J CSC- Arbitral ion
   w USC- r\!11wrl Forrl~S
    11 USC-      I3ankrupt'c~·
   12 L;sc- Banks aJ1ll        Banldn~
   13 L;sc- Cl'HSUS
    1.1 UK- Coast Gunrd
   tf)   USC- Commerce Ctnd Tr;:tde
   H'> LSC- 0)11.5-L'n·atimt
   17 esc- Cop_,Tight.~
   JR CSC- Crimes
   19 CSC- Cnslom::: Duties
   :w USC- Eduea!ion
   :..!J USC'- Food und Drugs
   2.2 USC · Foreign Reh1tions
   2;~    L:SC- Hig1m·-ays
   :.1.4 CSC- Hospital.-,
   25USC- lndinn!;
   :26 USC ·lnlemal Rcn~m1e Code
   27 L'SC ~Intoxicating Liquors
    :::>H USC- .ludidary
    24 lfSC • L.abor
   :w t:sc · ,\Jine-rctl i.<JJHls
   ~11 L'SC ·· t-.-Ioney andFinanl'e-
   3::! LSC- !\':nirmal Guard
    :·l:~ USC • o'\nvlgntion
   ]·I l'SC- :\;w:-· {rcpeuk><-1)
   :35 CSC • Pat<mts
   :1fi USC- Patriotic: Societies
   3","' USC- l!niformcd SCJYiccS
   :3:S USC- Vct.t•r;ms' Benefitl'l
   ~~9 USC- Po:>tal Sen· icc
   iJO CSC- Public Proper!~·
   41 L'SC- PublicContwcts
   ·\2. L:SC • Public Jlcalth

!lltp:Jilaw.oneclo.com/texaslfamilyl9.007.00.h-tml                                                                                                                                                            112
2t.ll2015                              Texas Family Cede- Section9.008. Clarification Order. Texas Attorney Resources· Texas l.Jiws
                                                                                                              ·--·· ·-------
                                                                                                               ··~--



                                                                                                  ~-------------------'':-SeaO<h
 onecle
                      ,.                •                          f·   __ .,.




  Court Opinions                        Texas Family Code -Section g.oo8. Clarification Order
   liS Supreme Court                    I&Till Rfi"rnrrh linmr > ~ > Fnm!h·lndr > TCMS 1-'amily Cock- &x-tinn 9.0118. C'lnrlficatlon Ordet
   US Tax Court
   Boal'd of Paknl Appeals
                                         New 2015 Deals Available
  Stale Laws                             Auto Insurance kales from S15/Month Offe1 ends In 15 days! Save Now

   Alnhnma
   Arizona
   California                           § 9.888. ClARIFICATlOH ORDER. (a) On the request of a
   Floridil                             party or on the court's own motion~ the court ~y render a
   Georgia                              clarifying order before a motion for contempt is made or heard, in
   Illinois                             conjunction with a motion for contempt or on denial of a motion for
   Indiana                              contempt.
                                                (b) On a finding by the court that the original form of the
   Massachusl•lls
                                        division of property is not specific enough to be enforceable by
   ~Hrhigan
                                        contempt~ the court may t@nder a clarifying order setting forth
   ~e\"ada                              specific terms to enforce compliance with the original division of
   Xew,Jcr.=~ey                         property.
   New York                                     (c) The court may not give retroactive effect to a
   Xorth Carolina                       clarifying order.
   Oregon                                       (d) The court shall provide a reasonable time for c~~pliance
   Pennsyl\'nnin                        before enforcing a Cl3rifylng order by contempt or in another
   Tl',.a5                              manner.
   \'iq:inia                           Added    by   Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
   Wushington

  l'S Code
                                       Section: ~ 9.JWJ. 9.Jl1J._g 9.JW3 9JU!4 .9...QQS Ull!f! 9...0Jl2 g.oo8 9.JKl!l 9.&10. 9Jll1 9J11Z.
   1 USC· General Pro\isions           !Llll3 9.1114 !UW. lW;1
   2 USC • The Congn-ss
                                        Last modified: August 11, 2007
   3 USC - The President
   4 l!SC • Fl•g und Se;d
   5 USC - Go\''t Organi1..1tion                                                                                                             >
   6l:SC • Domestic Securitv
   7 USC- Agriculture          ·
   8 USC- Alil'n~ and Nottionalih·
   9 USC· Arbitration            ·
   tO USC· Armed Forces
   n USC- nnnknaptcy
   12  VSC- Banks and Bunking
   13 l:SC - Census
   1-1 USC- Coast Guard
   15 L'SC- Commerce and Trade
   16 l"SC- Consen:ntion
   17 usc. COp)Tights
   18 USC -Crimes
   19 USC- Customs Duties
   20 USC- Etluc..1.lion
   21 USC- Food nnd Dn1gs
   2:.! USC- Fon•ign Rdalions
   23 USC- Highways
   24 USC- Hospitals
   25 USC- Indians
   26 L'SC - lntt•rnal Re\·enue Code
   27 USC ·Intoxicating Liquors
   28 USC- ,Judiciary
   29 \.:SC • Labor
   30 USC - ~Hnl'ral Lands
   Jt USC -1\-Ione\' and Finance
   32 USC· Natio'nal Guard
   33 USC- N'a\igation
   34 USC- N'a''Y (repe~1led)
   35 USC • Patents
   36 USC- Patriotic Societies
   3i USC- Uniformed Senices
   38 USC- Vet~mms' Uenf."fits
   39 CSC- Po~tul Scni('c
   40 l~SC- Public Property
   4 t USC· Public Contr<~cls
   .p. l'SC- ruhlic Health

http:inaw.onecle.comnexas"anilyl9.008.00.html                                                                                                    112
                                                                                                                        0
'·I'                                                                   NO. 226,429-ll                                         ('0
           IN THE MA TrER OF                                                    §   IN THE DISTRICT COURT                       ~)-
           THE MARRIAGE OF                                                      §
                                                                                §
          TliVIOTHY PARRISH
          AND
                                                                                §
                                                                                §   !46TH .JUDICIAL DISTRICT              0'                 ,..
                                                                                                                                             ,_
                                                                                                                          0
          TRISHA ANN PARRISH                                                    §                       ,--.,
                                                                                                        ,.....-•\         <A      ~~-><      a:
                                                                                §                       ,.,      :·.·
                                                                                                                                  t;S~ c•I
                                                                                                                                             :.;...!


          AND IN THE INTEREST OF                                                §                       ~-~.:: ~
                                                                                                                            ~

                                                                                                                                  08L::
          JOSHUA ROBERT PARRISH AND                                                                     ~-~·
                                                                                                                  •.
                                                                                                                          """'    :::~ :2;
                                                                                                                                                  I
                                                                                                                                                  i
                                                                                                                          0
          ZACHARY ALLEN PARRISH,                                              §     BELL COUNTY, TEXAS~~                          ::~g~           I
          CHILDREN                                                                                      ·=
                                                                                                        t-1!.1
                                                                                                                          ('"'}


                                                                                                                          ""'    ---' I

                                                                                                                          '""' ~~i ,_i
                                                                                                                          "-          I
                                                                                                        ~

                                                              FINAL   D~:CREE   OF DIVORCE                                =
                                                                                                                          =           '
                                                                                                                          =
                                                                                                                          ......             CJ

                      On --~A"'P--'RL..:3).__u0__,2,0,08,___ _ the Court heard this case.
        ,Jppearances
             Petitioner, Tl1viOTHY PARRJSH, app~ared in person and through attorney of record,
        DANIEL A. CORBfN, and announced ready for trial.
                Respondent, TRISHA ANN PARRJSH, wai vcd issuance and service of citation by waiver
        duly filed and did not otherwise appear.                                             .
        Record

                      The making ofn record of testimony was waived by the panies with the consent of the Coun.
       Jurisdiction and Domicile

                The Court finds that the pleadings of Petitioner are in due form and contain all the
       allegations, information, and prerequisites required by law. The Court, after receiving evidence,
   I
       finds that it has jurisdiction of this case and of all the parties and that at least sixty days have elapsed
   I   since the date the suit was flied. The Court finds that, at the time this suit was filed, Petitioner had
   I
       been a domiciliary ofTexas for the preceding six-month period and a resident of the county in which
       this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly
       cited.

       Jury

                     A jury was waived, and questions of fact and of law were submitted to the Court .

       ..lgreement of Parries

.i            The Court finds that the parties haw entered into-a wriuen agreement as contained in this
   !   decree by vinue of having approved this decree as to both fonn and substance. To the extent
       permitted by law, the panics stipulate the agreement is enforceable as a contract. The Court
       approves the agreement of the parties as contair.ed in I his Final Decree at" Divorce.


       i"~:-.a!. :Je-:::-!!e or   ::OO'Icer;:,e
       ':':~Cil/'1' PARR:SH       "'· 7?.:SPJi.. ;vltl PAAIH$1t                                                         Page I
   ·'

 Divorce

        IT IS ORDERED AND DECREED lhal TIMOTHY PARRISH, Pelilioner, and TRJSHA
 ANN PARRISH, Respondenl, are divorced-and thai 1he marriage between them is dissolved on the
 ground ofinsupportability.
Children of the Marriage
           The Coun finds that Petitioner and Respondent arc the parents of the following children:
Name: JOSHUA ROBERT PARRISH
Sex: Male
Birth date:    March 26, 1996
Home state: Texas
Social Security number:
Name: ZACHARY ALLEN PARRISH
Sex: Male
Birth date:    September 4, 2000
Home state: Texas
Social Security number:
           The Court finds no other children of the marriage are expected.
Conservatorship
        The Court, havin~considered the circumstances ofthe parents and of the children, finds that
the following orders are m the best interest of the children.                            ·
       IT IS ORDERED that TIMOTHY PARRISH and TRJSHA ANN PARRISH are appointed
Joint Managing Conservators of the following children: JOSHUA ROBERT PARRISH and
ZACHARY ALLEN PARRISH.
       IT IS ORDERED that, at all times, TIMOTHY PARRISH, as a parent joint managing
conservator, shall have the following rights:
        I.     the right to receive infonnation from any other conservator ofthe children concerning
the health, education, and welfare of the children;
       2.      the right to confer with the other parent to the extent possible before making a
decision concerning the health, education, and welfare of the children;
           3.         the right of access to medical, dental, psychological, and educational records of the
children;
           4.         the right to consult with a physician, dentist, or psychologist of the children;
       5.      the right to consult with school officials concerning the children's welfare and
educational status, including school activities;
           6.         the right to anend school activities;

r1='1a:i. O.,cree ~f ::~vorce:
-:-:!o'IQ';'HJ PARRISH •;, ":'R:SHA MN PAP.RISH                                                      Page 2
  '
        7.     the right!.; be designated on the children's records as a person to be notified in case
 of an emergency;
        8.      the right to consent to medical, dental, and surgical treatment during an emergency
 involving an immediate danger to the health and safety of the children; and
        9.     the right to manage the estates of the children to the extent the estates have been
created by the parent or the parent's family.
        IT IS ORDERED that, at all times, TRJSHA ANN PARRJSH, as a parent joint managing
 conservator, shall have the following rights:
         I.      the right to receive information from any otherconservatorofthe children concerning
 the health, education, and welfare of the children;
        2.     the right to confer with the other parent to the extent possible before making a
decision concerning the health, education, and welfare of the children;
        3.          the right of access to medical, dental, psychological, and educational records of the
children;
           4.       the right to consult with a physician, dentist, or psychologist of the children;
        S.       the right to consult with school officials concerning the children's welfare and
 educational status, including school activities;
           6.       the right to attend school activilies;
        7.     the right to be designated on the children's records as a person to be notified in case
 of an emergency;
       8.      the right to consent to medical, dental, and surgical treatment during an emergency
involving an immediate danger to the health and safety of the children; and
        9.     the right to manage the estates of the children to the extent the estates have been
created by the parent or the parent's family.
        IT IS ORDERED that, at all times, TIMOTHY PARRISH and TRJSHA ANN PARRISH,
as parent joint managing conservators, shall each have the following duties:
        I.      the duty to inform the other conservator of the children in a timely manner of
significant information concerning the health, education, and welfare of the children; and
         2.       the duty to inform the other conservatorofthe children ifthe conservator resides with
for at least thirty days, marries, or intends to marry a person who the conservator knows is registered
as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with
an offense for which on conviction the person would be required to register under that chapter. IT
IS ORDERED that this information shall be tendered in the form of a notice made as soon as
practicable, but not later than the fortieth day after the date the conservator of the children begins to
reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS
ORDERED that the notice must include a description of the offense that is the basis of the person's

r.:.~•_J :ecrveo! :)1v=r;e
i~~y      PAAR!SH v, :a:sHA   ~~   PARR:SH                                                         Page 3
            .•

           requirement to register as a sex offender or of the offense with which the person is charged.
           WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C
           MISDEMEANOR IF THE CONSERVA"J:OR FAILS TO PROVIDE THIS NOTICE.
                   IT IS ORDERED that, during his respective periods of possession, TIMOTHY PARRISH,
           as parent joint managing conservator, shall have the following rights and duties:
  I                     I.          the duty of care, control, protection, and reasonable discipline of the children;
      I

                   2.     the duty to support the children, including providing the children with clothing, food,
  ·I'      shelter, and medical and dental care nol involving an invasive procedure;
:..
                  3.      the right to consent for the children to medical and dental care not involving an
           invasive procedure;
                       4.           the right to consent for the child to medical, dental, and surgical treatment during an
                                    emergency involving immediate danger to the health and safety of the child; and
                       5.           the right to direct the moral and religious training of the children.
                IT IS ORDERED that, during her respective periods of possession, TRISHA ANN
           PARRISH, as parent joint managing conservator, shall have the following rights and duties:
                       I.           the duty of care, control, protection, and reasonable discipline of the children;
                    2.    the duty to support the children, including providing the children with clothing, food,
           shelter, and medical and dental care not involving an invasive procedure;
                  3.      the right to consent for the children to medical and dental care not involving an
           invasive procedure; and
                       4.           the right to consent for the child to medical, dental, and surgical treatment during an
                                    emergency involving immediate danger to the health and safety of the child; and
                       5.           the right to direct the moral and religious training of the children.
                  IT IS ORDERED that TIMOTHY PARRISH, as a parent joint managing conservator, shall
           have the following rights and duty:
                  I.     the independent right to consent to medical, dental, and surgical treatment involving
          invasive procedures;
                       3.          the independent right to consent to psychiatric and psychological treatment of the
          children;
                  4.     the independent ri~ht to represent the children in h.:gal action and to make other
          decisions of substantial legal sigmficance concerning the children;
                  5.     the independent right to consent to marriage and to enlistment in the anned forces of
          the United States;                            ·


          F~nnl   Do~ree     ot   Dlvor~~
          T:l'.O:H"/ P.UR:51-1 .,, ';'itliHA ;.."'N PARR.i:.SH                                                     Page-l
        '
                     6.           the independent right to make decisions concerning the children's education;
                     7.     except as provided by section 264.0111 of the Texas Family Code, the independent
            right to the services and earnings of the children;
                 8.      except when a guardian ofthe children's estates or a guardian or auorney ad litem has
         been appointed for the children, the independent right to act as an agent of the children in relation
         to the children's estates if the children's action is required by a state, the United States, or a foreign
         government; and
                9.      the independent duty to manage the estates of the children to the extent the estates
         have been created by community property or the joint property of the parents.
                 IT IS ORDERED that TRISHA ANN PARRISH, as a parent joint managing conservator,
         shall have the following rights and duty:
                 l.     the independent right to consent to medical, dental, and surgical treatment involving
         invasive procedures;
                     2.          the independent right to consent to psychiatric and psychological treatment of the
         children;
                 3.      the exclusive right to receive and give receipt for periodic payments for the suppon
         of the children and to hold or disburse these funds for the benefit of the children;
                4.      the independent right to represent the children in legal action and to make other
         decisions of substantial legal significance concerning the children;
                5.      the independent right to consent to marriage and to enlistment in the armed forces of
         the United States;
                     6.          the independent right to make decisions concerning the children's education;
                 7.      except as provided by section 264.0111 of the Texas Family Code, the independent
         right to the services and earnings of the children;
                8.      except when a guardian of the children's estates or a guardian or allomey ad litem has
        been appointed for the children, the independent right to act as an agent of the children in relation
        to the children's estates if the children's action is required by a state, the United States, or a foreign
        government; and
               9.     the independent duty to manage the estates of the children to the extent the estates
        have been created by community property or the joint property of the parents.
                    Geographical Restriction
                IT IS ORDERED and THE PARTIES AGREE that a geographical restriction is in effect
        limiting the residence of the panies to a 100 mile radius of Bell County, Texas for five years from
        the entry ofthis order.



        n::.a~   :ec:'<le :f   :t~·10:ea
        :':1'!0-:!o!T i'AIIIt:SH v. r;nsHA   A....,   1ARJt:5H                                              Page 5
•·j
,, __
'
     Possession and Access  -·
           IT IS ORDERED AND THE PARTIES AGREED that the joint managing conservators shall
     have possession of the children at times mutually agreed to in advance by the parties, and in the
    absence of mutual agreement, as follows:
    I.      TIMOTHY PARRISH and TRISHA ANN PARISH will alternate weekly possession of the
    children beginning Sunday at 4:00p.m. and ending the following Sunday at 4:00p.m.
    2.        Other Provisions

            In addition to all other provisions for possession provided in this decree, the following
    periods of possession are ORDERED:
            I.      Right of First Refusal - If a parent will be absent for more than one hour while the
    children are in that parent's care, then that parent shall notifY the other parent, and the other parent
    shall have the right to care for the children during that absence.
          2.   Extracurricular Activities- Extracurricular expenses shall be split as follows: 50%
    by TIMOTHY PARRISH and SO% by TRJSHA ANN PARRISH.
    3.        Duration

            The periods of possession ordered above apply to each child the subject of this suit while that
    child is under the age of eighteen years and not otherwise emancipated.
    4.        Termination of Orders

           The provisions of this decree relating to conservatorship, possession, or access terminate on
    the remarriage of TIMOTHY PARRJSH to TRISHA ANN PARRlSH unless a nonparent or agency
    has been appointed conservator of the children under chapter I 53 of the Texas Family Code.
    Child Support

            IT IS ORDERED that TIMOTHY PARRISH is obligated to pay and shall pay to TRISHA
    ANN PARRISH child support of$1359.38 per month, with the first payment being due and payable
    on April I, 2008 and a like payment being due and payable on the first day of each month thereafter
    until the first month following the date of the earliest occurrence of one of the events specified
    below:
             I.      any child reaches the age of eighteen years or graduates from high school, whichever
    occurs later, subject to the provisions for support beyond the age of eighteen years set out below;
            2.       any child marries;
            3.       any child dies;
            4,       any child's disabilities are otherwise removed for general purposes; or
            5.       the date on which any child beginsactivcserviceasdefined by 10 U.S.C. Section 101
    after enlisting in the armed forces of the United States.
            Thereafter, TIMOTHY PARRISH is ORDERED to pay to TRISHA ANN PARRISH child
    support of$1087.51 per month, due and payable on the first day of the first month immediately
    following the date of the earliest occurrence of one of the events specified above for the other child
    and a like sum of S I 087.5 I due and payable on the fll'st day of each month thereafter until the next
    occurrence of one of the events specified above for the other child.

    Final DcJcJ"ee al Divorce
    T:I"'&lfY PARJUSN v, TRISHA A14N PARRISH                                                        Page 6
             lflhe child is eighteen years ofage and has not graduated from high school, IT IS ORDERED
      that TIMOTHY PARRISH's obligation to pay child support to TRJSHA .bu'-I"N PARRISH shall not
      tenninate but shall continue for as long as the child is enrolled·
              I.     under chapter 25 of the Texas Education Code in a secondary school in a program
      leading toward a high school diploma or under section 130.008 of the Education Code in courses for
     joint high school and junior college credit and is complying with the minimum attendance
     requirements of subchapter C of chapter 25 of the Education Code or
             2.   on a full-time basis in a private secondary school in a program leading toward a high
     school diploma and is complying with the minimum attendance requirements imposed by that
     school.
                 Withholding from Eamjngs
            IT IS ORDERED that any employer of TIMOTHY PARRISH shall be ordered to withhold
     from earnings for child support from the disposable earnings of TIMOTHY PARRISH for the
     support of JOSHUA ROBERT PARRISH and ZACHARY ALLEN PARRISH.
             IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of
     TIMOTHY PARRISH by the employer and paid in accordance with the order to that employer shall
     constitute a credit against the child support obligation. Payment of the full amount of child support
     ordered paid by this decree through the means ofwithholding from earnings shall discharge the child
     support obligation. If the amount withheld from earnings and credited against the child support
     obligation is less than 100 percent of the amount ordered to be paid by this decree, the balance due
     remains an obligation of TIMOTHY PARRISH, and it is hereby ORDERED that TIMOTHY·
     PARRJSH pay the balance due directly to the state disbursement unit specified below.
                On this date the Court signed an Order/Notice to Withhold Income for Child Support.
                Pavment
             IT IS ORDERED that all payments shall be made through the state disbursement unit at
     Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791, and
     thereafter promptly remitted to TRISHA ANN PARRISH for the support of the children. IT IS
     ORDERED that each party shall pay, when due, all fees charged to that party by the state
     disbursement unit and any other agency statutorily authorized to charge a fee.
                Change of Employment
             IT IS FURTHER ORDERED that TIMOTHY PARRISH shall notiJY this Court and TRJSHA
     ANN PARRISH by U.S. certified mail,return receipt requested,ofanychangeofaddress and of any
     tennination of employment. This notice shall be given no later than seven days after the change of
     address or the termination of employment. This notice or a subsequent notice shall also provide the
     current address of TIMOTHY PARRISH and the name and address of his current employer,
     whenever that infonnation becomes available.
                Clerk's Dutjes
             IT IS ORDERED that, on the requesi of a prosecuting attorney, the title IV-D agency, the
.I   friend of the Court, a domestic relations office, TRISHA ANN PARRISH, TIMOTHY PARRISH,
     or an attorney representing TRJSHA ANN PARRISH or TIMOTHY PARRISH, the clerk of this
     Court shall cause a cenified copy of the Order/Notice to Withhold Income for Child Suppon to be
     delivered to any employer.
     nrw~l   Qocreo o.! :tivorce
     T:MOTWI' PAJIR:SM  v. Till SMA A."QQ   PARRISH                                               Page 7
 Health Care
         I.     The Court finds that the following provisions of this medical support order are
 intended to and do comply with the priority requirements ofTexas Family Code section 154.182 as
 follows: The Court finds that health insurance is available through TIMOTHY PARRISH's
 employment at a reasonable cost and therefore ORDERS TIMOTHY PARRISH to provide heallh
 insurance as specified below."
        2.      IT IS ORDERED that TIMOTHY PARRISH and TR!SHA ANN PARRISH shall
each provide medical support and health care coverage for each child as set out in this order as
additional child support for as long as the Court may order TIMOTHY PARRISH and TRISHA
ANN PARRISH to provide support for the child under sections 154.001 and 154.002 of the Texas
Family Code. Beginning on the day TIMOTHY PARRISH and TRISHA ANN PARRISH's actual
or potential obligation to support a child under sections 154.001 and 154.002 of the Family Code
terminates, IT IS ORDERED that TIMOTHY PARRISH and TR.ISHA ANN PARRISH are
discharged from the obligations set forth in this medical support order with respect to that child,
except for any failure by a parent to fully comply with those obligations before that date.
         3.        Definitions·
          "Health t11SU11111ce" means insurance coverage that provides basic health-care services, including usual ~hysician
services, office visiu, hospitalization, and laboratory, X-ray, and emergency services, that may be provided through a
health maintenance organ•ution or other private or public organiulion, oU.er than medical assistance under chapter 32
of the Texas Human Resources Code.
         "Reasonable cost" means the cost of health insurance coverage for a child that does not exceed nine percent of
the responsible parent's annual resources as described by the Texas Family Code section IS4.062(b).
         "Reasonable and necessa~y health-care expenses not pold by insurance and incurred by or on behalfofachild"
include, without limitation. any copayments ror office visits or prcscrir.tion drugs, chc yearly deducliblc, if any, and
medical, surgical, prescription drug, menml health-care services, dcnta . eye care, ophthalmological, and onhodontic
charges. These reasonable and necessary health-care expenses do not include expenses for travel to and from the health·
care provider or for nonprescription medication.
         "Furnish"' means:
                   a.        to hand deliver the docuonent by o person eighteen years or older either to the recipient or to
                             a person who 1$ eighteen yean or older and permanently resides with the recipient;
                   b.        to deliver the document to the recipient by certified mail, return receipt requested, to the
                             recipien(s last known mailing or residence address; or
                   c.        to deliver the document to the recipient at the recipient's last knO\\n mailing or residence
                             address using any person or entity whose principal business is that of a courier or deliverer
                             of papers or ~ocumenu either within or ouuide the United States.
          4.      Obligations ofTIMOTHY PARRISH· TIMOTHY PARRISH is ORDERED to include and maintain
each child In TIMOTHY PARRISH's health insurance available through his employment no laterthan the date the Court
signs this order.
         s.       Obligations of TIMOTHY PARRISH· TIMOTHY PARRISH is ORDERED·
                  a.       to furnish to each conservator of the children and the child SUpPOrt registry the following
                           information no later than the thirtieth day after the date the notice of the rendition of this
                           order is received:
                           i.        the Social Security number oflhe parent providing insurance;
                           II.       the name ond address oflhe employer of the parent providing insurance;
                           iii.      whether the employer is self-insured or has health insurance available;
                           iv.       prooflhat health inSurance has been provided for each child; and
                           v.        the nome of the health insurance canrier, the number of the policy, a copy of the
                                     policy and schedule ofbenefou, a health insur:mce membership card, claim forms,
                                    and any other information necessary to submit a claim or, if the employer is self.
                                     insured, a copy of the schedule of benefiu, a membership card, clatm forms, and
                                    nny other inronnation necessory 10 submir a claim:
Final DQ~rce o£ Diva~ce
~:~iHY PAARtSH v, ~~tSHA     ANN PARRISH                                                                           Page 8
                               b.         to furnish to eaoh oonservalor of the children a copy of any renewals or ohangcs to the health
                                          insurance polioy covering a ohild, or any additional information regarding health insurance
                                          coverage or the child, including any change in the acluol cost of the health insurance for the
·.i                                       child, no later than tho. fifteenth day after the pany providing the health insurance receives
  '                                       or is provided wilh the renewal, change. or additional infonnatlon;
                               c.         to furnish each conservator of the children and the ohild suppon regiSll}' ";th all
                                          dooumenlation acoessiblc 10 TIMOTHY PARRISH or any terminauon or lapse of the health
                                          insurance coverage of a child no later than the fifteenth day after the date of the tennination
                                          or lapse;
                               d.         after termination or lapse ofhcallh insurance coverage, to fumish each conservalor of the
                                          children and lhe child suppon registry wilh all dooumentation accessible 10 TIMOTHY
                                          PARRISH oflheovailabilil)' of additional health insuranoe forthe children no later than the
                                          nfteenth day after the dale the insurance becomes available;
                               e.         after a termination or lapse of health insuranoe coverage, to furnish each oonservator of the
                                          children and the ohild suppon registry with all documentation acoessible to TIMOTHY
                                          PARRISH of the availability of enrollment of the children in a government medical
                                          assistanoe program, goverrunenl health plan, medioal assiSlance program under chapter 32
                                          of the Texas Human Resouroes Code or a stale child health plan under chapter 62 of the
                                          Texas Health and Safely Code, no later than the fifteenlh day after the date the enrollment
                                          in the program becomes available;
                               r.         to enroll the children at the next available enrollment period in a health insurance plan that
                                          is available at reasonable coS! after the previous health insuranoe has been terminated or has
                                          lapsed; and
                               g.         to enroll the ohildren in a governmem medical assistance program, goverrunenl health plan,
                                          medical assistanoe program under ohapler 32 of the Texas Human Resources Code or a stale
                                          child health plan under chapter 62 of the Texas Health and Safety Code if the ohildren are
                                          eligible for enrollment in the program and no health insurance plan Is available at reasonable
                                          cost.
                6.      Secondary Coverage • IT IS ORDERED that nothing in this order shall prevent either pany li'om
      providing secondary heallh Insurance coverage for the children at that pony's sole cost and expense. IT IS FURTHER
      ORDERED that if a party provides secondary health insurance coverage for the children, both parties shall cooperate
      fUlly wilh regard to ihe handling and fil1ng or claims with the insurance carrier providing the coverage in order to
      ma.•imizc the bencfiiS available to the children and to ensure that the pany who pays for health-care ••penses for lhe
      children is reimbursed for the paymentli'om both carriers to the fullest extent possible.
                7.        Compliance with Insurance Company RequiremeniS • Eaeh pony is ORDERED 10 conform to all
      requirements imposed by !he terms and conditions of the policy of health insurance oovcring the children in order to
      assure maximum reimbursement or direct payment by the lnsuranoe company of the Incurred health-care expense,
      including bul nol limited Co requirements for advance notice to caniert second opinions, and the like. Each pany is
      ORDERED to anemptto use "preferred P.roviders," or services within lhe heallh maintenance organization, ifapplicable;
      however, this proviston shall not apply tfemergeney care is required. Disallowance of the bill by a health insurer shall
      notexcwcthe obligation ofeither pany to make payment; however, if a bill is disallowed or the benefit reduced beoause
      of the failure of a pany to follow procedures or requirements of the oarrier, IT IS ORDERED that the pany failing to
      follow the oarrier's prooedures or requirements shall be wholly responsible for the increased ponion of that bill.
                IT IS FURTHER ORDERED thai no surgical procedure, other lhan in an emergency or one oovcrcd by
      insuranoe, shall be performed on the ehild unless the parent consenting lo surgery has first OOIISUlled with at least two
      medical doolors, both of whom stale an opinion that the surgery is medioally necessary. IT IS FURTHER ORDERED
      that a parent who fails 10 obtain the required medical opinions before consenllo surgery on the child shall be wholly
      responsible for all medical and hospital expenses incurred in connection therewith.
                8.       Claims. Except as provided in this paragraph, the pany who is notoarrying the health insurance poliey
      covering the children Is ORDERED to furnish to the parry carrvlng the policy, within fifteen days of receiving them, any
      and all forms, reoeif.IS• bills, and statements reneoling the heallh·oare expenses the pany not oanying lhc polioy incurs
      on behalfofthe ohl dren. In aocordance with section 1204.25! of the Texas lnsuranoeCode,lT IS ORDERED lhallhe
      pany who is not carrying the health insurance policy covering the children may, 01 thai pany's option, Ole direolly with
      the insuranoe oarrier with whom coverage is provided for the benefit of the ohildren any olaims for health-care e•penses,
      inoluding but notlimhed to medical, hospitalization, and dental cosiS, and receive paymenl5 direotly li'om the insuranoe
      company.
                The pany who is oarrylng the health insurance policy covering the children is ORDERED 10 submit all forms
      required by the insurance company for paymen1 or reimbursemem of heahh·care expenses incurred by eilher pany on
      behalf of a child to the insuranoe carrier within fifteen days of that party's receiving any form, rcoeipl, bill, orstalement
      reflecting the expenses.

      T!.:W.l ::GC:ee ;;J~   01VCU'CQ'
      ':'.O:~Y   i'.U.R:SH   11. ~!SK.\   ANN PARRISH                                                                          Page 9
           9.       Consm~cllve TruSl Cor PaymeniS Received -IT IS ORDERED !hal any Insurance pa)tneniS received
 bv a pany !Tom lhe heallh insurance carrier as reimbursement ror heallh-care expenses incurred by or on behalf ora child
 shall belong to the pony who Incurred and paid those expenses. IT IS FURllfER ORDERED lhatlhe pony receiving
 the insurance payments is designaced a consttuclivelruslee 10 receive any insurance checks or payments for hea(lh ..care
 expenses incurred and paid by the other pany, and the pony cmrying lhe policy shall endorse and forward the checks
 or paymeniS, along with any explanation of benefits received, to the other pany within threo days of receiving them.
           10.     Heallh-Care Expenses Not Paid by Insurance or Cash Medical Suppon- Subject to lhe provisions in
panJII'IIph 7. immedla1ely above, IT IS ORDERED 1ha1, if health-care expenses are incurred Cor a child, TIMOTHY
PARRISH and TRISHA ANN PARRISH shall pay all reasonable and necessary health-care expenses no1 paid by
insurance or covered by the amount or cash medical suppon ordered o.nd incuned by or on behillfofthe child in 1he
following ponions:
                  a.        If the health-care expenses are incurred by using a HMO or PPO plan, in an emergency, or
                            with the wrinen agreement of the other pony, TIMOTHY PARRISH is ORDERED 10 pay
                            SO perccnland TRISHA ANN PARRISH is ORDERED to pay SO percent.
                  b.        Except in an emergency or if the other parent agreed in writing, if a pony incurs health-care
                            expenses for the child by using the services of health-care providers not employed by the
                            HMO or approved by the PPO, the pany incurring the services is ORDERED to pay 100
                            percent and the other pony is ORDERED to pay 0 percenL
                  c.        If TIMOTHY PARRISH provides health insurance for the child throush an HMO or a PPO
                            thai does not provide c:ovcragc ror the child where the child resides or have nelwork
                            providers In the area where the child resides, TIMOTHY PARRISH is ORDERED to pay 50
                            percent and TRISHA ANN PARRISH is ORDERED to pay SO percent.
                  d.        If the child is enrolled In a health-care plan that is not an HMO or a PPO, TIMOTHY
                            PARRISH is ORDERED to pay SO percent and TRISHA ANN PARRISH is ORDERED to
                            pay 50 percent.
                  c.        If 1he child was enrolled in a government medical assistance program, govcrnmen1 health
                            plan, medicalwistance program under chapter 32 of the Texas Human Resources Code or
                            a state child health plan under chapter 62 of the Texas Health and Safety Code and is no
                            longer eligible for coverage in that plan or program, TIMOTHY PARRISH is ORDERED
                           to pay SO percent and TRISHA ANN PARRISH is ORDERED to pay 50 percent until health
                            insurance Is provided for the child or the child Is again eligible for enrollment in a
                           government medical assisUJnce program, government health plan, mcdicalassislllnce program
                           under chapter 32 of the Texas Human Resources Code or a slate child health plan under
                           chapter 62 of the Texas Health and Safety Code.
                  r.        If health care coverage is provided for the child in the fonn of cash medical suppon,
                            TIMOTHY PARRISH is ORDERED to pay 50 percent and TRISHA ANN PARRISH is
                           ORDERED to pay 50 percent.
          IT IS ORDERED that the pany who pays for a health-care expense on behalfofa child shall furnish to the other
party, within 1hiny days of receiving them, all fonns, receipiS, bills, and explanations ofbeneniS paid renecting the
uninsured ponion of the health-care expenses the paying pany incurs on behalf of the child. IT IS FURTHER
ORDERED that if the paying pony furnishes all of these forms, receipiS, bills, and explanations of beneOts to the
nonpaying pany within thiny days of receiving them, the nonpaying pony shall pay his or her share of the uninsured
ponion of the health-care expenses either by paying !he health-care provider directly or by reimbursing the paying pony
at 1he paying pony's last known mailing or residence address for any advance payment .xceeding the paying pony's share
of the expenses no later than thiny days after the nonpaying party receives the following documentation relating to the
health-care expense:
                  a.         a receipt ror a presc:ription,
                  b.         a receipt for a copayment for health-care services,
                  c.         a receir,t for health-care expenses of a type not covered by the health insurance plan, or
                  d.         an exp analion ofbenefiiS stating the beneniS paid for all other health-care expenses.
           If the paying pony does n01 furnish to the nonpaying pony all of the forms, receipiS, bills, and explanations of
benefiiS paid renecting the uninsured ponion of a health-care expense the paying pony incurred on behalf of the child
within thiny days of receiving these documeniS,IT IS ORDERED that the nonpaying pony shall pay his or her share of
the uninsured ponion of the health-care expense either by paying the health-care provider directly or by reimbursing lhe
paying pony at the payingpany'slast known mailing or residence address for any advance payment exceeding the paying
pony's share of the expense no la1er than 120 days after the nonpaying pony receives the documenll!lion listed above in
this section relating to the health-care expense.
          IT IS ORDERED that reasonableness of the charges for health-care expenses shall be presumed \\'hen a pony
is furnished wi1h the applicable documents for the charges and that disallowance of the bill by a health insurer shall no1
excuse that part)''s obligation lo make payment or reimbursement as otherwise provided herein.

F1nal :Jvcree of tH vorce
T:~y    PARJUSH v. ":'Jt:.SHA AHN PMR:SH                                                                        Page 10
                II.         Miscellaneous Health Care Provisions-
           Each parent will deliver the medications of1h.: children to the other paren1 atlhe beginning orthe other parent's
  parenling time, unless the medicalions have been divided by tho phannacist into two containers that provide appropriale
  dosages and administrations ro cover the time wilh each parent or unless IWO prescriplions can be obtained.

       12.   WARNING- A PARENT ORDERED TO PROVIDE HEALTH INSURANCE OR
  TO PAY THE OTHER PARENT ADDITIONAL CHILD SUPPORT FOR THE COST OF
  HEALTH INSURANCE WHO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL
  EXPENSES OF THE CHILDREN, WITHOUT REGARD TO WHETHER THE EXPENSES
  WOULD HAVE BEEN PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR
  THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON
  BEHALF OF THE CHILDREN.
  Miscellaneous Child Supporl Provisions

               Militarv Health Care and Commissarv Privileges
           The Court finds that TIMOTHY PARRISH is a member of the United States Anned Forces
   and that the children of tbis marriage are eligible to receive health care and other benefits as
   dependents of a United States Armed Forces member. Therefore, TIMOTHY PARRISH is
   ORDERED 10 keep and maintain in current status and deliver to TRISHA ANN PARRISH the
   identification cards and any other forms necessary for lhe children of this marriage to be provided
   health care through all facilities available 10 the children as dependents of a United States Armed
   Forces member. TIMOTHY PARRISH is FURTHER ORDERED to provide to TRISHA ANN
   PARRISH all additional verified applications for renewal of dependent tdentilication cards at least
.. thiny days before the expiration date of the identificalion cards, until the children are no longer
   eligible for these benefits.
               No Credit for Infonnal Pavmenls
          IT IS ORDERED that the child support as prescribed in this decree shall be exclusively
  discharged in the manner ordered and thai any direct payments made by TIMOTHY PARRISH to
  TRISHA ANN PARRISH or any expenditures incurred by TIMOTHY PARRISH during TIMOTHY
  PARRISH's periods of possession of or access to lhe children, as prescribed in this decree, for food,
  clothing, gifts, lravel, shelter, or enlertainmenl are deemed in addition 10 and not in lieu of the
  support ordered in this decree.
               Sypoort as Obligation of Esta!e
         IT IS ORDERED that the provisions for child support in this decree shall be an obligation
 of the estate of TIMOTHY PARRISH, shall no! terminate on the death ofTIMOTHY PARRISH,
 and the remaining unpaid balance of the child support obligation becomes payable on the date
 TIMOTHY PARRISH dies.
               Teunination of Orders on Remarriage of Parties
         The provisions of this decree relating to current child support lerrninate on the remarriage
 of TIMOTHY PARRISH to TRJSHA ANN PARRISH unless a nonparent or agency has been
 appoinled conservator of the children under chapter I 53 of the Texas Family Code. An obligation
 to pay child support under this decree does nol terminate on the death ofTRISHA ANN PARRISH
 but continues as an obligation to JOSHUA ROBERT PARRISH and ZACHARY ALLEN
 PARRISH.




 r~cal Po~ree         of e,vcr:e
 TZ~O':'H't   PAilR!SH V.   ~!5HA   o\,'ln ?Ailii::SH                                                            Page II
         .'

        Medical Notification
                Each pany is ORDERED to info!lll the other party within one (I) hours of any medical
        condition of the children requiring surgical intervention, hospitalization, or both.
                 Within thirty (30) days after the Court signs this decree, each party is ORDERED to elCecute-
               I.      all necessary releases pursuant to the Health Insurance Portability and Accountability.
        Act (HIPAA) and 45 C.F.R. section 164.508 to permit the other conservator to obtain health-care
        infonnation regarding the children; and
                2.     for all health-care providers of the children, an authorization for disclosure of
        protected health information to the other conservator pursuant to the HIPAA and 45 C.F.R. section
        164.508.
                Each party is further ORDERED to designate the other conservator as a person to whom
        protected health information regarding the children may be disclosed whenever the party executes
        an authorization for disclosure of protected health information pursuant [o the HIPAA and 45 C.F.R.
        section 164.508.
        Information Regarding Ponies
                The information required for each party by section I 05.006(a) of the Texas Family Code is
        as follows:
        Name: TIMOTHY PARRISH
              Social Security number:               XXX-XX-XXXX
l,'.-         Driver's license number:              01252634       Issuing state: Texas
              Current residence address:            472 Cactus Cr., Killeen, Texas 76542
              Mailing address:                      472 Cactus Cr., Killeen, Texas 76542
              Home telephone number:                254-526-9963
              Name of employer:                     United States Army
              Address of employment:                Fort Hood, Texas
              Work telephone number:                254-238-0592
        Name: TRJSHA ANN PARRISH
              Social Security number:               XXX-XX-XXXX
              Driver's license number               21845377      Issuing state: Texas
              Current residence address:            472 Cactus Circle, Killeen, Texas 76542
              Mailing address:                      472 Cactus Circle, Killeen, Texas 76542
              Home telephone number:                254-526-9963
              Name of employer:                     Florence School District
              Address of employment:                Florence, Texas
              Work telephone number:                254-258-1762
              EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH
        OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN
        THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME
        TELEPHONE NUMBER, NAJviE OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S
        LICENSE NUMBER, Ai'ID WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO
        GIVE NOTICE OF A.N INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION
        TO EACH OTHER PARTY, THE COl.iRT, AND THE STATE CASE REGISTRY ON OR




        r1aal Docraa af Divo~cu
        ~!~Y    PARR!SH v. TRISKA   A.~   PARRISH                                                    Page 12
BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT
KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO
PROVIDE 60-DA Y NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OFTHE CHANGE
ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE
CHANGE.
     THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE
COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY
VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR
ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.
      FAILUREBYAPARTYTOOBEYTHEORDEROFTHISCOURTTOPROVIDEEACH
OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN
THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE
THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE
PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500
FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S
FEES AND COURT COSTS.
        Notice shall be given to the other party by delivering a copy of the notice to the party by
registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering
a copy of the notice either in person to the clerk of this Court or by registered or certified mail
addressed to the clerk at 120 I Huey Road, Belton, Texas 76513. Notice shall be given to the state
case registry by mailing a copy of the notice to State Case Registry, Contract Services Section,
MC046S, P.O. Box 12017, Austin, Texas 78711-2017.
       NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE
REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN
THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER
AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY
AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD
FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING
THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO
KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO
LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY
CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
$10,000.
      WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD
SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING
OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX
MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT
FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
      FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE
AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S
NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.
      FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING
THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL
BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY
FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.




Ftn4l DQe=oe at DiVOrce
TIHO':HY PARRISH v,   ~ISHA   A."fN PARRISN                                                    Page 13
      Division of!vlarila/ Estate
             The Coun finds that the following is a just and right division of the panies' marital estate,
      having due regard for the rights of each party and the children of the marriage.
                  Propenv to Husband
              IT IS ORDERED AND DECREED that the husband, TIMOTHY PARRISH, is awarded the
      following as his sole and separate propeny, and the wife is divested of all right, title, interest, and
      claim in and to that propeny:
              H-1. 50% of the proceeds remaining from the sale ofthe home after the net proceeds have
      been used to pay the debts owed to USAA and USAA Visa, including but not limited to any escrow
      funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage
      door opener, warranties and service contracts, and title and closing documents
                                        Tract Sixteen (16), Triple Seven River Estates, Section Four, a subdivision
                                        in Bell County, Texas, according to the map or plat of record in Cabinet A,
                                        Slide 297-B, Plat Records of Bell County, Texas.
                                        472 Cactus Circle, Killeen, Texas
              H-2. A 50"/o undivided interest in the following real propeny, including but not limited to
      any escrow funds, prepaid insW1Uice, utility deposits, keys, house plans, home security •ccess and
      code, garage door opener, warranties and service contracts, and title and closing documents:
'I                                      LOT SIXTEEN (16), IN BLOCK TWO (2), OF WATERCREST
                                        ADDITION, PHASE FOUR, IN THE CITY OF KILLEEN, BELL
                                        COUNTY, TEXAS, ACCORDING TO THE PLAT OF RECORD IN
                                        CABINET C, SLIDE 24-B, PLAT RECORDS OF BELL COUNTY,
                                        TEXAS.
                                        3507 Coral Bay Lane, Killeen, Texas
              H-3. All household furniture, furnishings, fixtures, goods, an objects, collectibles,
      appliances, and equipment in the possession of the husband or subject to his sole control including
      but not limited to the following: Shed, Pool, Leather Couches, Kitchen Table and Hutch, 2 Big
      Dressers, 52" Television, Console Television, Joshua's Furniture and Computer, White Dishes,
      Master Bedroom Dresser, Glasses, I Set of Silverware, End Tables, Zachary's Book Case, Office
      Book Case, Game Cube, Tools, Lawn Equipment.
             H-4. All clothing, jewelry, and other personal effects in the possession of the husband or
     subject to his sole control.
             H-5. All sums of cash in the possession of the husband or subject to his sole control,
     including funds on deposit, together with accrued but unpaid interest, in banks, savings institutions,
     or other financial institutions, which accounts stand in the husband's sole name or from which the
     husband has the sole right to withdraw funds or which are subject to the husband's sole control.
             H-6. The sums, whether matured or immatured, accrued or unaccrued, vested or otherwise,
     together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-
     sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 40 I (k) plan,
     employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason
     of the husband's past, present, or future employment.


     Fl~al   cecr~~   of   01vor~•
     :-:I":O'i"HY PAP.R!SH v. ':'R!SIL\ .\.'IN PAIUUSN                                                    Page 14
         H-7. The individual retirement accounts, simplified employee pensions, annuities, and
 variable aMuity life insurance benefits in the husband's name.
         H-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 ofTIMOTHY PARRISH's service in the United States Anny, 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 PARRJSH'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 TRISHA
 ANN PARRISH as more particularly specified in the domestic relations order signed coincident with
 this decree and incorporated verbatim in it by reference.
    H-9. The 2005 Honda Civic motor vehicle, vehicle identification number
-----------'together with all prepaid insurance, keys, and title documents.
          Property to Wjfe
        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:
         W-1. SO% of the proceeds remaining from the sale ofthe home after the net proceeds have
 been used to pay the debts owed to USAA and USAA Visa, including but not limited to any escrow
 funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage
 door opener, warranties and service contracts, and title and closing documents:
                             Tract Sixteen {16), Triple Seven River Estates, Section Four, a subdivision.
                             in Bell County, Texas, according to the map or plat of record in Cabinet A,
                             Slide 297-B, Plat Records of Bell County, Texas.
                            472 Cactus Circle, Killeen, Texas
        W-2. A SO% undivided interest in the following real property, including but not limited to
 any escrow funds, prepaid insurance, utility deposits, keys, house plans, home security access and
 code, garage door opener, warranties and service contracts, and title and closing documents:
                            LOT SIXTEEN {16), IN BLOCK TWO {2), OF WATERCREST
                            ADDITION, PHASE FOUR, IN THE CITY OF KILLEEN, BELL
                            COUNTY, TEXAS, ACCORDING TO THE PLAT OF RECORD IN
                            CABINET C, SLIDE 24-B, PLAT RECORDS OF BELL COUNTY,
                            TEXAS.
                            3S07 Coral Bay Lane, Killeen, Texas
        \V-3. All household furniture, furnishings, fixtures, goods, art objects, collectibles,
appliances, and equipment in the possession of the wife or subject to her sole control including but
not limited to the following: Green Couches, Office Television, Computer Table, File Cabinets,
Master Bedroom Furniture, 2 Twin Beds, Green Ivy Dishes, Green Ivy Bakeware, Showman Dishes,
White China, Zachary's Dresser, Spare Room Dresser, Baking Stuff, I SetofSilverware, Patio Table
and Chairs, Computer Chair, Gray Lawn Mo"•er, Electric Weed Eater, Book Cases, XBOX.
        W-4. All clothing, jewelry, and other personal effects in the possession of the wife or
subject to her sole control.



F!rA; Oecree ot Dtvoreo
;:~~r ~AaRZSH   v.   ~A:SHA A.~   PARR!SM                                                      Page 15
   .•

          W-5. All sums of cash in the possession of the wife or subject to her sole control, including
  funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other
  financial institutions, which accounts stand in the wife's sole name or from which the wife has the
  sole right to withdraw funds or which are subject to the wife's sole control.
         W-6. The 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 any profit-
 sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 40 I (k) plan,
 employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason
 of the wife's past, present, or future employment.
         W-7. The individual retirement accounts, simplified employee pensions, annuities, and
 variable annuity life insurance benefits in the wife's name.
         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 ofTIMOTHY 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.
      W-9. The 2003 Cluysler Sebring motor vehicle, vehicle identification number
 - - - - - - - - - - ' together with all prepaid insurance, keys, and title documents.
             Division of Debt
             Debts to Husband
         IT IS ORDERED AND DECREED that the husband, TIMOTHY PARRISH, shall pay, as
 a part of the division of the estate of the parties, and shall indemnify and hold the wife and her
 property harmless from any failure to so discharge, these items:
         H-1. The balance due, including principal, interest, tax, and insurance escrow, on the
 promissory note executed by TIMOTHY J. PARRISH and TRISHA A. PARRISH, in the original
 principal sum of$130,000.00, dated April29, 2003, payable to MERS, and secured by deed of trust
 on the real property awarded in this decree to the husband and wife, which is recorded at volume
 __ ,page_, Deed of Trust Records of Bell County, Texas.

        H-2. The balance due, including principal, interest, tax, and insurance escrow, on the
promissory note executed by TIMOTHY JAY PARRISH and TRISHA PARRISH, in the original
principal sum of$71,400.00, dated January26, 2004, payable to Amerigroup Mortgage Corporation,
and secured by deed of trust on the real property awarded in this decree to the husband and wife,
which is recorded at volume __ , page __, Deed of Trust Records of Bell County, Texas.
       H-3. The balance due, including principal, interes~ and all other charges, on the promissory
note payable to Honda Finance, and given as part of the purchase price of and secured by a lien on
the 2005 Honda Civic motor vehicle awarded to husband.
            H-4.           The following debts, charges, liabilities, and obligations:
                           Debt owed to USAA, Account number 3876
                                 Balance: $63,918.50



Final   Deer~    of Dlvorce
T:HO':"'I't itAAR.:5H Y.    n:stiA Ami   ,Ait8ISH                                              Page 16
                        Debt owed to USAA Visa, Account number xxxx
                              Balance: $5,113.67.
         H-5. Any and all debts, charges, liabilities, and other obligations incurred solely by the
 husband from and after October 22, 2007 unless express provision is made in this decree to the
 contrary.
           Debts to Wife
         IT IS ORDERED AND DECREED that the wife, TRJSHA ANN PARRISH, shall pay, as
 a part of the division of the estate of the parties, and shall indemnify and hold the husband and his
 property hannless from any failure to so discharge, these items:
           W-I. The following debts, charges, liabilities, and obligations:
                        Debt owed to Store Cards, Account number xxxx
                               Balance: $600.00
         W-2. Any and all debts, charges, liabilities, and other obligations incurred solely by the
 wife from and after October 22,2007 unless express provision is made in this decree to the contrary.
           Notjce
         IT IS ORDERED AND DECREED that each party shall send to the other party, within three
 days of its receipt, a copy of any correspondence from a creditor or taxing authonty concerning any
 potential liability of the other party.
     Provisions Dealing with Sale of Residence Located at 472 Cactus Drive, Killeen, Texas
         IT IS FURTHER ORDERED AND DECREED that the property and all improvements
 located thereon at tract sixteen, Triple Seven River Estates subdivision, section Four, according to
 the map, plat, or deed records of Bell County, Texas, and more commonly known as 472 Cactus
 Circle, Killeen, Bell County, Texas, shall be sold under the following tenns and conditions:
       I.     The property shall be sold for a price that is mutually agreeable to TIMOTHY
 PAR.RJSH and TRJSHA ANN PARRISH.
         2.      TIMOTHY PAR.RJSH shall continue to make all payments of principal, interest,
ta.xes, and insurance on the property during the pendency of the sale, and TIMOTHY PAR.RJSH shall
have the exclusive ri~ht to enjoy the use and possession of the premises until closing. All
maintenance and repatrs necessary to keep the property in its present condition shall be paid by
TIMOTHY PARRISH.
        3.    The net sales proceeds (defined as the gross sales price less cost of sale and full
payment of anr mortgage indebtedness or liens on the property} shall be distributed as follows:
described herem above.
        4.      TRISHA ANN PARRISH shall pay to TIMOTHY PAR.RJSH $359.38 per month,
with the first payment being due and payable on April I, 2008 and a like payment bemg due and
payable on the first day of each month thereafter ending the first month following the sale of the
home located at 472 Cactus Drive, Killeen, Texas.




t1nal   oee~ce   o£   D1va~=e
:":1'10THY ;tAM.lSH v, ':'RISH.A NIH PARill5H                                                Page 17
  '
      Provisions Dealing with the Residence Located at3507 Coral Bay Lane, Killeen, Texas
         IT IS FURTHER ORDERED AND-DECREED that TIMOTHY PARRISH shall be entitled
 to receive any and all income derived from the property located al 3507 Coral Bay Lane, Killeen,
 Texas.
            Attorney's Fees
         To effect an equitable division of the estate of the parties and as a part of the division, and
 for services rendered in coMeclion with conservatorship and support ofthe children, each party shall
 be responsible for his or her own attorney's fees, expenses, and costs incurred as a result of legal
 representation in this case.
            Treatment/Al!ocatjon ofCommunitv Income for Year of Divorce
         II IS ORDERED AND DECREED that, for the calendar year 2008, each party shall file an
 individual income lax return in accordance with the Internal Revenue Code.
         IT IS ORDERED A."'D DECREED that for calendar year 2008, each party shall indemnify
and hold the other party and his or her property harmless from any lax liability associated with the
reponing party's individual lax return for tliat year unless the parties have agreed to allocate their lax
liability in a manner different from that reflected on their returns.
         II IS ORDERED AND DECREED that each party shall furnish such information to the other
party as is requested to prepare federal income tax returns for 2008 within thirty days of receipt of
a written request for the information, and in no event shall the available information be exchanged
later than March I, 2009. As requested information becomes available after that date, it shall be
provided within len days of receipt.
          IT IS ORDERED AND DECREED that all payments made to the other party in accordance
 v.ith the allocation provisions for payment of federal income taxes contained in this Final Decree of
 Divorce are not deemed income 10 the party receiving those payments but are pan of the property
 division and necessary for a just and right division of the parties' estate.
            Deoendencv Tax Exemption
      TIMOTHY PARRISH will have the right to claim the dependency exemption for JOSHUA
 ROBERT PARRISH, for the purpose of federal income taxes.
    TRJSHA ANN PARRISH will have the right 10 claim the dependency exemption for
ZACHARY ALLEN PARRISH for purpose of federal income taxes.
            Confirma!ion of Separa!e Propertv
        II IS ORDERED AND DECREED that the following described property is confirmed as the
separate property ofTRISHA ANN PARRISH: Snow Globes and Disney !!ems.
Court Costs
        II IS ORDERED AND DECREED ihat costs of court are to be borne by the party who
incurred them.




F1~al ;eere~ ~' )tvarc~
':':~":":ofY PA.RJt:JH ? _ TR:SHA   .Um PARR:S".t                                               Page 18
      '
      Discharge from Discovery Relent/on Requiremenl
            IT IS ORDERED AND DECREED that the parties and their respective attorneys are
     discharged from the requirement of keeping and storing the documents produced in this case in
     accordance with rule 191.4(d) of the Texas Rules of Civil Procedure.
     Decree Acknowledgment
             Petitioner, TIMOTHY PARRISH, and Respondent, TRISHA ANN PARRISH, each
     acknowledge that before signing this Final Decree of Divorce they have read this Final Decree of
     Divorce fully and completely, have had the opportunity to ask any questions regarding the same, and
     fully understand that the contents of this Final Decree of Divorce constitute a full and complete
     resolution of this case. Petitioner and Respondent acknowledge that they have voluntarily affixed
     their signatures to this Final Decree of Divorce, believing this agreement to be a just and right
     division of the marital debt and assets, and state that they have not signed by virtue of any coercion,
     any duress, or any agreement other than those specifically set forth in this Final Decree of Divorce.
     Indemnification
              Each party represents and warrants that he or she has not incurred any outstanding debt,
     obligation, or other liability on which the other party is or may be liable, other than those described
     in this decree. Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is
     hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or
     an omission of the other party liable for such debt, obligation, liability, act or omission of the other
     party, that other party will, at his or her sole expense, defend the party not assuming the debt,
     obligation, liability, act, or omission of the other party against any such claim or demand, whether
     or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or
     omission of the other party and hold him or her harmless from all damages resulting from the claim
     or demand.
             Damages, as used in this provision, includes any reasonable loss, cost, expense, penalty, and
     other damage, including without limitation attorney's fees and other costs and expenses reasonably
>I
     and necessarily incurred in enforcing this indemnity.
 I            IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on
 I
     demand, for any payment made by the indemnified party at any time after the entl)' of the divorce
     decree to satisfy a judgment of any court of competent jurisdiction or in accordance with a bona fide
     compromise or settlement of claims, demands, or actions for any damages to which this indemnity
     relates.
            The parties agree and IT IS ORDERED that each party will give the other party prompt
     wrinen notice of any litigation threatened or instituted against either party that might constitute the
     basis of a claim for indemnity under this decree.
     ClarifYing Orders
'I
 I           Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves
     the right to make orders necessary to clarify and enforce this decree.




     Final   c~crcc   ol Dlvorcv
     itMOTHY PARR.:SH v, RUHA ANN PMRISH                                                            Page 19
                                                                    __.:...,,~ ....---·-····-·-·-·--· ..···-----·--··-
                                                                   ,•




        ReliefNot Granted

               IT IS ORDERED AND DECREED that all relief requested in this case and not expressly
       granted is denied. This is a final judgment, for which Jet execution and all writs and processes
       necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties
       and is appealable.

       Date ofJudgment
       SIGNED on _ ___,_A,_PR...,__..3u.Ou2,008,.,.__ __

                                                             OrtgiiHIISiped b)' Judge Fane~ H. Jezat
                                                       JUDGE PRESIDING
       APPROVED AS TO FORM ONLY:

       Corbin & Associates, P.C., Allomeys
       603 Nonh Eighth Street
       Killeen, Texas 76541
       Tel: (254) 526-4523
       Fax: (254} 526-6711


       By:
             ~D~A~N~IE~L~A-.~CO~RB~~~------------
             Attomey for Petitioner
             State BarNo. 04814300




       TIMOTHiP                  SH               '
       Petitioner




,I
'
,,
r-:




      T1~l   Decree of Divorce
      o;MOTHY PM-.:SH ·1.   TJU:.SHA A.'fff PAJUU'SH                                                   Page 20
                                                                                 NO. 226,429-ll

       IN THE MATTER OF                                                             §      IN THE DISTRICT COURT
       THE MARRIAGE OF                                                              §
                                                        /                          ·§
       TIMOTHY PARRISH                                                              §
       AND                                                                          §      146TH JUIHCJAL DISTRICT      O'l
       TIUSHA ANN PARRISH                                                           §                                   CJ

                                                                                    §                           ~
                                                                                                                ~
       AND JN THE INn:REST QF
       .JOSHUA ROBERT PARIUSH AND.'
                                                                                    §
                                                                                    §
                                                                                                                w
                                                                                                                rr.JJ
       ZACHARY ALLEN PARRISH,                                                       §
       CHILDREN                                                                     §      BELL COUNTY, TEXAS   """"'
                                                                                                                M.,
                                                                                                                        =
                                                                                                                        =
                                                            DOI\H:STIC RELATfONS ORDER                                  =
                                                                                                                        ~


       The Court, having entered a judgment of dissolution of marriage in this case on
        (t?'r\.),.5)                 ~, 2008,, and llnding that the entry of a domestic relations order i~
       appropriate, makes the following fmdings and conclusions of Jaw and enters them as an order in
      this proceeding.
       Findings
                   The Court tinds, in accordance with the Uniformed Scryices Pormer.Spouses' Protection
  I
'I
  I   Act, 10 U.S.C, section 1408, as follows:
 :i
 I                 1. This Court has jurisdiction over TIMOTHY PAIUUSH. The residence of"'TMOTHY
 I
 !'   PARRISH is in Killeen, Bell County, Texas, other' than because ofmi1itary assignment.
                   2. Petitioner, TIMOTHY PARlUSH, and i\cspondcnt, TRISHA ANN PARRISH, were
      originally married in October 3, 1994, and were divorced on _________ , 2008. That
      marriag~        lusted for 13 years and 4 months during which time 'llMOTHY PARRISH served 13
      years and 4 months or more of creditable service toward retirement.
                  3. TIMOT1-lY PARlUSH's Social Securi1y number is 2J2C94·1 168, his address is 472
      Cactus Circle, Kilcen, 'I.'X 76542, and his birth date fs December 30, 1964.
                  4. TRISHAANN PARRISH's Social Secudty mtmbcr is XXX-XX-XXXX and her address is
      6~9    Deer Run Road, Killeen, Texas 76549, and her birth date is April25. 1972.
                  5. The rights ofT!lvl<.JTHY PARRISH under the Servicemcmbcrs Civil Relief Act were
      fully complied with in this case.

      ~mentic t::cJ<~.t:.lt!IJU    Ord!lr ·   MOl::l.t~;~;-y   IU,'t.:.rerm.mt                            1
      i!~oLt)y   1-'arr!..o~   ..,._ 'fr1Bh.._ Ann p,.n     ~~:h
                                                                                       ;:·.. :


                            6. TIMOTHY PARRISH is not retired from the United Stales United States Army at the
             time of this order.
                            7. The award of disposable retired_ pay made to TRlSHA AN:--1 PARRIS11 in tlus order is
            made in compliance with the. Uniformed Services Former Spouses' Protection Act.
                            8. It is intended by this Court and the parties that the Defense Finance and Accounting
            Service (DFAS) designee make the payments du~RJSHA ANN PARRISH of her interest in
            the disposable retired pay awarded in t~er directly lo TRISHA ANN PARRJSH.
            Award /o Nonmember Spouse
                            IT IS THEREFORE ORDERED that TRISHA ANN PARRISH havejl!dgment against
            and recover from TIMOTHY PARRISH from the military retirement benefits of which resulted
            from his·service in the United Stales Armed Forces, according to the fraction calculated by the
            fonnula below. On the date of divorce, TIMOTHY PARRISH had achieved the grade ofCW3
            and had served 13 years and 4 months. The high average pay over the last 36 months_ of the
            marriage was $5382.1 0. The number of months of marriage is one hundred sixty ( 160).
:'I                        The formula is: Fifty per cent(50%) multiplied by the number of months married divided
r~.
      .;
            by the total number of months served by TIMOTHY PARRJSH. This fraction is further
      '!    multiplied by the disposable military retired pay to which is TIMOTHY PARRJSH entitled at

      1     retirement, the result being the share thai TRISHA ANN l'ARRJSH, the Non-Member spouse, is

      II    entitled to received, IF, AS and WHEN TIMOTHY PARRJSH receives retired pay or:

       '
       I
      ·I
            50% X Number of months married X Disposable military retired pay~Non-Member's share
                           Total number of months served


                           !TIS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRJSH each
                                                                                                     -~



           month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH 's
           disposable military retired pay, together will all cost-of-living ~djustments applicable thereto,
           payable only IF, AS and WHEN received by TIMOTHY PARRJSH.
      ·•                   IT IS ORDERED that, if DFAS declines or refu.•es to pay TRISHA ANN PARRISH

      ~J   each month, TIMOTIJY PARRJSH is ORDERED to calculate and pay TRISHA ANN


      I    ~.x-..u.~:it:   flelllt.ioru: Order -
           ':;"11r.oth\' flarrlflh v. 1'ri&he. Arln
                                                   ~.l.lJ.tar~
                                                       J•&r~.i.&h
                                                                 Rtttlnne:.:..
[ :~
!'-,
;,.;

rj
i·
l:.~
i,j
               PARRISH's share each month to TRISI-JA ANN PARRISH at her last known address by check,
f:(!
,.,.
i·-·
,."'           money order, wire transfer, cash or any other method reasonably calculated to meet the
         ~
r:;

;·j
,.,
fl
         !
         1
               conditions of this Order_
                           IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each
il
iJ
         1     month, to the extent allowed by law, the calculated percentage of TIMOTHY PARRISH's
         j
         1     disposable retired pay at retirement, together with all cost-of-living adjustments applicable
~i
K:t
         'I
          '    thereto, payable, IF, AS, and WHEN received by TIMOTHY PARRISH.
lj
i"·


         !i
               Con.flrllclive Trust
                           IT IS FURTHER ORDERED that TIMOTHY PARRISH be and is hereby designated a
               constructive trustee for the benefit ofTRISHA ANN PARRISH for the purpose of receiving the
               retired pay awarded herein to TRISHA ANN PARRISH as TRISHA ANN PARRISH's sole and
               separate property until the end of the award, and TIMOTHY PARRISH be and is hereby
               ORDERED, on receipt thereof, to deliver by first-class mail to TRISHA:ANN PARRISH at her
               last known address by negotiable instrument that portion of each monthly retired pay payments
          '
··_;      '
;,,~
               awarded to TR!SHA ANN PARRISH herein not paid directly (or by allotment) by DFAS within

         i
:,:~.:
:;,-;
•·.~:
               three days of the receipt of any such payments by TIMOTHY PARRISH. All payments made
~: :1    )
         ·t
               directly to TRISHA ANN PARRISH by DFAS shall be a credit against this obligation.
'·l
:·._~
         >'
         ·t                For purposes of this order, TIMOTHY PARRISH is specifically directed, on penalty of
          I
         :1    contempt, to payinterest in the disposable retired pay as ordered in this order, AND IT IS SO
::r
         -I    TRISHA ANN PARRISH's ORDERED. TIMOTHY PARRISH is specifically directed that he is
;·:      I,
'("      'i    not relieved of that obligation except to the extent that he is specifically notified that I 00 percent
              ofTRISHA Al\'N PARRISH's interest in the retirement benefit has been directly paid by DFAS,
              and IT IS SO ORDERED.

         :I               IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by
                                                                                                     ~



         "
         1    TIMOTHY PARRISH shall not reduce the amount equal to the percentage of the disposable
          I   retired pay or of the disposable retired pay the Court has herein awarded to TRJSHA AlliN

          I
         'I
              PARR!SH , except as provided by Jaw. In this regard, IT IS FURTHER ORDERED that
              TIMOTHY PARRJSH shall not merge his military retired pay with any other pension and shall
              not pw-sue any course of action that would defeat, reduce, or limit TRISHA ANN PARRISH 's

              ~~st~c ~elUtlons Ord~r              - Hili tory      R~tir~~cn:
              'I.HIOt!.y Pc.r:il!lt Y.   :irJNI,iJ lt::JI I'A!'l'.iSh
         j
                            -··
      right to receive TRISHA ANN PARRISH's full share of TIMOTHY PARRISH's retired pay as
      awarded in this order, unless otherwise <rrdered herein.
      End ofAward
                  IT IS ORDERED lhatlhe payment of the disposable retirement pay awarded in this order
      to TRJSHA ANN PARRISH shall continue
                                       '
                                           for 13 .vears and 4 months after it begins or until the
      death of TIMOTHY PARRISH or TRISHA ANN PARRISH, whichever event occurs first.
      Retiree Account Statements and Pr·ivacy Waiver
                  IT IS ORDERED !hat, since TRISHA ANN PARRISH is entitled to a percentage interest
      in any cost-of-living or olher increase in lhe United States Armed Forces disposable retired pay,
      TIMOTHY I'ARRISH shall send to TRISHA ANN PARRISH at her last known address a copy
      of each retired pay \•oucher (Retiree Account Statement) !hat he receives in the future wilhin five
      days of his receipt of it.
      Retirement
                 IT IS ORDERED that TIMOTHY PARRISH shall notifY TRISHA ANN PARRISH of
      his application for retired pay, and provide TRISHA ANN PARRISH wilh a true copy of his
      Application tbr Retired Pay Benefits, on the date he applies for those benefits. This notification
      shall be mailed by TIMOTHY PARRISH to at her last known address. TIMOTHY PARRISH is
.I    FURTHER ORDERED to provide to TRISHA ANN PARRISH a true and correct copy of the
      first Retired Annuitant Statement received by him within five days of his receipt of same.
     Survivor Benefit Plan
                 The. Court further finds that TRISHA ANN PARRISH should be designated as a former
     spouse beneficiary ofTIMOUIY PARRISH's Armed Forces Survivor Benefit Plan and that
     TRISHA ANN PARRISH's designation as a former spouse beneficiary should not be modified,
     amended, withdrawn, reduced, or altered to TRISHA ANN PARRISH 's detrimen~ by TIMOTHY
     PARRISH during TRISHA ANN PARRISH 's lifetime, and IT IS SO ORDERED.
                 IT IS THEREFORE ORDERED !hat TIMOTHY PARRISH shall immediately designate
     TRISHA ANN PARRISH his former spouse beneficiary under the Armed Forces Survivor
     Benefit Plan as his former spouse.
                 IT IS TI1EREFORE ORDERED !hat TRISHA ANN PARRISH be and is hereby
,i
     !lcn=t!.c   Rl!:at!c~$.   Crde:-   ~   P!!.lho.T)' kl!ti:-clllc:":r
     T!.lt.o:.f:)' P.r.rri.sh "· Tr!&h.fl Arm Pa:r!st:
                                       '·'                                       •
                                                                                 )




             designated as a fom1er spouse beneficiary under TIMOTHY PARRISH's Armed Forces Survivor
             Benefit Plan .
                   . IT IS ORDERED that TIMOTHY.PARRISH shall immediately obtain, fully complete,
.!
'1           sign, and retum to the entity required to effect the Armed Forces Survivor Benefit Plan election
             all documents, papers, and forms necessary to provide the Armed Forces Survivor Benefit Plan
             benefits to TRISHA ANN PARRISH as TIMOTHY PARRISH's former spouse and shall
             immediately provide TRISHA ANN PARRISH copies of those documents, papers, and fo1111s.
                    IT IS ORDERED that TIMOTHY PARRISH shall not during TRlSHA ANN PARRISH's
             lifetime modify, amend, withdraw, or in any other manner alter the election to name TRISHA
             ANN PARRISH as a former spouse beneficiary ofTIMOTHY PARRISH's Am1ed Forces
             Survivor Benefit Plan.
             Continued Jurisdiction and Clarification
                    Without affecting the finality of the Final Decree of Divorce or this Domestic ,Relations
             Order, 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.

             SIGNED on _ _ _A_P_R_3_0_2D_OB_ _ __


                                                           JUDGE PRESIDING

             AGREED TQ IN FORM AND SUBSTANCE
     .')
       '      ' -z:ft_        12 :A
     ..;
             ~~~s~?j~.-
     ,·
     ·'    ~~JL4
             T~HA A
                                =fA . u ~sc..
                              ARRISH


                                                                                 ,2008.



     ·:


                                                                                          '·
                                   CAUSE     NU~!TIER      226.429.B




IN THEM ATTER OF                                                      IN THE DTSTR!CT COURT

THE MARRIAGE OF
                                                                      14Gn1 JUDICIAL DISTIUC!'
TIMOTHY PARRISH
ANJJ
T!USHA ANN PARRISH
                                                                      BELL COUNTY. TEXAS
AND IN THE INTEREST OF
.JOSHl!A ROBERT PARRISH AND
ZACHARY ALLEN PARRISII,
CHlLDREN



                                 l'villMORANDUM OFRTJLlNG


          On May 06,2014, Petitioner appc:Jrcd with nllorncy. Ashley Clapper.
Respondent appeared wii.h nttorncy. Brett Pritchard, l-\ hc:aring wa.'l held on P.._-:tlliuner's
}\·'lotion for CJarifictl!ion and Rcspom.lcnt"s Petition ror EnfurCI?IilenL

        The court finds thnl the terms or lht: Fin a! Decree (~r Divorce and Lhc Dom~:ilic
He lations Order in Lhi.s ca~e. both cnterl~d un Apri! 30. ~UUH. arc ,·ague ;md ambiguous
;mel arc therefore subject to clmificatin11, Tlw unkr.s .o.;hould bl· r¢vlsc.U lO rcnccl th;u
Tirnotlly P<mish. Petirioncr, served two hundred ninety one (29 I) momhs in the miliwry.
!he patrlcs were man·ied one hundred sixty ( !60) or tho:-;..: IJ'!Olllh!-i, lhe applicabic
disposable mill wry pny i.< .';5,382.10, and that paytnents ro Trisllil P:ltTJSIJ. Re.spontient.
shall continue until the death of either of the pari ie'.

        Trisba Parrish's Peril ion !'or Etlforcement is GRANTED. Timothy Parrish is
onicred 10 pay Trish:1 Parrish nny amotmls she lw~ no! rccel\'ed       10 date based upon the
e<.Jlcularion of benefits described in the prec:ediug paragraph Hllcl to-l:tke. sudt act ion as
111<1)' be necessary to implement the pll"~\'is.ions (lj' this ruling.

     TrishJ Parris-h' ..., rcguc.'\1 thnl TimuilJy Parrh:.ll be lu::IU in {.:lllllempll1f' coon is
DENIED.
            Each party shall pay its own attorney's fees and costs of court incurred by them.

             Mr. Pritchard shall prepare otders which may be appropriate to inplement the
;j   provisions of this ruling.
J
.I




     SIGNED TIDS        "J. z-v,J      DAYOF        AA~                   • 2014.
                                                              NO. 226.429-B
                                                                                      ORiGINAL
      IN THE MATTER OF                                              §   IN THE DISTRICT COURT Q
 I
      THE MARRIAGE OF                                               §
:j                                                                  §


                                                                                               --·
 ''   TIMOTHY PARRISH                                               §   !46TH JUDICIAL DISTRIC'fl';
      AND                                                           §
      TRISHA ANN PARRISH                                                                       1\.L
                                                                                                      ~
                                                                    §   BELL COUNTY, TEXAS

                                                                                                      aN=
                                                     DOMESTIC RELATIONS ORDER

              The Court, having entered a decree of divorce coincident with the signing of this domestic
      relations order, finding that the entry of a domestic relations order (DRO) is necessary to effectuate
      the terms of that depree of divorce, and further finding that the entry of a DRO is appropriate, makes
      the following findipgs and conclusions of law and enters them as an order in this proceeding.
      Findings
             The Court !jnds, in accordance with the Uniformed Servid.es Fonner Spouses' Protection Act,
      \0 U.S.C. section 1408, as follows:
               I. This Court has jurisdiction over TIMOTHY PARRlSH. The residence of Service Member
      is in Killeen, Bell County, Texas, other than because of military assignment.
             2. Service Member, and TRISHA ANN PARRJSH, ("Former Spouse"), were originally
      married on October 3, 1994, and that marriage lasted for 13 years and 4 months, during which time
      Service Member s~rved 13 years and 4 month or more of creditable service toward retirement.
           3. Service M~mber's Social Security number is XXX-XX-XXXX, his address is 585 CR 4745,
      Kempner, Texas, and his birth date is December 30, 1964.
              4.  Former. Spouse's Social Security number is XXX-XX-XXXX, her address is

                                     '
                                                      .
      113'55 MooM' t.liotJ ao. rf!ooot rx ?it5S;t, and her birth date is Apri125, 1972 .
                                                          .




             5. The rights of Service Member under the Servicemembers Civil Relief Act were fully
      complied with in this case.
              6. Service Member is not retired from the United States United States Army at the time of
      this order.
             7. The award of disposable retired pay made to Former Spouse in this order is made in
      compliance with the Uniformed Services Fonner Spouses' Protection Act.
              8. It is intended by this Court and the parties that the Defense Finance and Accounting
      Service (DFAS) desi~nee make the payments due to Fonner Spouse of her interest in the disposable
      retired pay awarded m this order directly to Fonner Spouse.




      Domulk Re\aliOIU Orlkf • Mililacy R.etirmcnl                                                          1
      PARRISH, TlMOnlY 11-1187·fM AC
Award to Fonner Spouse
  .     IT IS THE~F!JRE ORDERED that the Former Spouse is awarded27..5'7 percent of the
disposable military retired pay the member would have received had the member retired at the
pay~de ofCW4 with a retired pay base of$5,3 82.10 and with 24 years ancJ,. months of creditable
semce IT IS FURTHER ORDERED that DFAS thereafter pay TRISHA ANN PARRISH each
month, to the extent allowed by law, the calculated percentage ofTIMOTHY PARRISH's disposable
retired pay at retirement, together with all cost-of-living adjustments applicable thereto, payable, IF,
AS, and WHEN received by TIMOTHY PARRISH.
       IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay
ofServicemember is the sole and separate property ofServicemember.
Amounts In E:xcess.o/50 Percent
         ITIS ORD~ that if the dollar amount or award (or a larger sum as increases take effect)
exceeds SO percent of the disposable retired pay, DFAS shall pay to Former Spouse the maximum
amount allowable :w\der the Uniformed Services Former Spouses' Protection Act and Service
Member shall be resp~nsible for paying the balance ofthe award each month to Former Spouse, and
it is accordingly ORDERED.
                             ' I
Constructive Trust :
                      i
        IT IS FURTHER ORDERED that Service Member be and is hereby designated a constructive
trustee for the benefit of Former Spouse for the purpose of receiving the retired pay awarded herein
to Former Spouse as Former Spouse's sole and separate property, and Service Member be and is
hereby ORDERED, on recei{'t thereof, to deliver by first-class mail to Former Spouse at her last
known address by negotiable mstrument that portion of each monthly retired pay payments awarded
to Former Spouse herein not paid directly (or by allotment) by DFAS within three days ofthe receipt
of any such payments by Service Member. All payments made directly to Former Spouse by DFAS
shall be a credit agalhst this obligation.
                                  I

        Forpurposesbfthis order, Service Member is specifically directed, on penalty of contempt,
to pay Former Spodscl's interest in the disposable retired pay as ordered in this order, AND IT IS SO
ORDERED. Service Member is specifically directed that he is not relieved ofthat obligation except
to the extent that heo is specifically notified that I00 percent of Former Spouse's interest in the
retirement benefit hail been directly paid by DFAS, and IT IS SO ORDERED.
        IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by
Service Member sl}all not reduce the amount equal to the percentage of the disposable retired pay
or of the disposable r.erln:d pay the Co~ has herein awarded to Former Spouse, ex~ept as provided
by federal law and J)rohibited from being changed by a state court order. In th1s regard, IT IS
FURTHER ORDERED that Service Member shall not merge his military retired pay with any other
pension and shall no~pursue any course of action that would defeat, reduce, or limit Former Spouse's
right to receive Fohher Spouse's full separate-property share of Service Member's retired pay as
awarded in this order,
                    . ; unless otherwise ordered herein .




Doma\it \\da\ioftS Onltr • Mil\IUJ 1\etin:nmd
PARR.ISH, TIN01HY 11-llll:fMAC                                                                         2



                              ! !
                              .   '
Retiree Account Statements and Privacy Waiver
        IT IS FURTHER ORDERED that Service Member shall deliver by first class mail to Fonner
SpoiiSeat IZS~lArfiA. Mmzp5 rx a,sfcz .orsuchotheraddressasFonnerSpoiiSemay
hereafter specliJIWriting, a true an correct egible copy of each Retiree Account Statement
received by Service ~ember from DFAS within five day of its receipt.
Retirement
        IT IS ORDERED that Service Member shall notify Fonner Spouse of his application for
retired pay, and provide Fonner Spouse with a true copy ofhis Application for Retired Pay Benefits,
on the date he applies for those benefits. This notification shall be mailed by Service Member to
Fonner SpoiiSe at her last known address. Service Member is FURTHER ORDERED to provide
to Fonner SpoiiSe !I true and correct copy of the first Retiree Account Statement received by him
within five days of; its receipt.
Application for Direct Pay ofRetired Pay
                     !
        Fonner Spciuse is hereby directed to apply for Fonner Spouse's entitlement to a portion of
Service Member's retired pay by contacting the DFAS Legal Department, completing the Application
for Former Spouse Payments from Retired Pay (DO Fonn 2293), and dehvering it along with a
certified copy of this DRO (certified within ninety days of its dehvery to DFAS) and a photocopy
of the parties' marriage certificate to: DFAS-CL, Garuisbment Operations (Code LL), P.O. Box
998001, Cleveland, Ohio 44199-8001 by certified mail, return receipt requested.
Taxes
                     l
       IT IS FURtHER ORDERED that Former Spt~use shall include in her gross income fDr her
taxable years of receipt all retired pay received by Fonner Spt~use pursuant to this order, and, to the
extent benefits are. payable to Fonner Spouse by DFAS, Service Member shall not include such
benefits in Service .Member's gross income for such taxable years.
Continued Jurisdiction
                  .I
                       and Clarification
        Although ttje'Court and the parties intend that DFAS make direct payments to Former Spt~use
Df Fonner Spouse's interest in the disposable retired pay awarded herein, IT IS FURTiffiR
ORDERED that, if this order does not qualify for direct payment, Service Member shall cooperate
and do all things neeessary to aid Former Spouse in obtaining a clarification of this order that will
qualify for direct payment of Former Spouse'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.               ·
                     !




                    I.




                        '
-Rdotlons0o4or-Militayllclo.-
                                                                                                      3
PAMISH, TIMOTHY II·IIIT.,.. AC
          •

             Without affecting the finality of the Final Decree of Divorce or this Domestic Relations
     Order, 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.

     SIGNED on                f'(uv~ /'2., 2ol'f




                                  .   )




 I
'I




                                                                                    CERTifiED COPY
                                                                                DOCUMENT A1TACHED IS A
                                                                                 TRUE & CORRECT COPY
                                                                                OF THE ORIGINAL ON FILE
      Domestic llel>lioaso.lor. M;lilooyltciUancnl                                                          4


                                                                         ·e
      PAIUUSH, TIMOTHY 11·1117·FM AC
                                                                                      NOV 12 20ft
                                                                                  SHj:~IA F. NORMAl~>
                                                                         ~~,:.,~~
