                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-12-00482-CV

                                           Earl SEABRON,
                                               Appellant

                                                  v.
                                               Ayesha
                                          Ayesha SEABRON,
                                               Appellee

                         From the 78th District Court, Wichita County, Texas
                                     Trial Court No. 134,732-B
                            Honorable W. Bernard Fudge, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: August 30, 2013

AFFIRMED AS MODIFIED IN PART; REVERSED AND REMANDED IN PART

           In this post-decree divorce action, Earl Seabron challenges the trial court’s clarification

order and domestic relations order concerning military retirement benefits. We affirm as modified

in part and reverse and remand in part.

                                             BACKGROUND

           Earl Seabron and Ayesha Seabron were married in 1966 and divorced in 1990. At the time

of the divorce, Earl was retired from the United States Air Force and was receiving military

retirement. The divorce decree provided that Ayesha was to receive 42.95% of the “gross present
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and future military retirement” received each month by Earl commencing on January 1, 1990. The

divorce decree designated Earl as Ayesha’s constructive trustee for the purpose of receiving the

military retired pay. Additionally, the decree required Earl to deliver to Ayesha a copy of each

Retired Pay Account Statement he received. A domestic relations order for military retirement

was not entered. Neither party appealed the judgment. Earl paid Ayesha $425.77 directly from

his military retired pay each month thereafter for almost twenty years.

       On March 16, 2010, claiming that she never received an increase in the amount of the

allotment received by her when Earl received cost of living increases, Ayesha filed a “Motion for

Contempt; Motion for Clarification and Motion for Domestic Relations Order; Motion for

Judgment and Enforcement of Petitioner’s Military Retirement Award; and Petitioner’s Request

for Discovery to Respondent.” Specifically, Ayesha sought: (1) that Earl be held in contempt and

fined for failing to produce his Retired Pay Account Statements from December 1989 through the

present; (2) a clarification order and domestic relations order providing for cost of living increases

(to be paid directly to Ayesha by the Department of Finance and Accounting Service (DFAS)); (3)

judgment and enforcement of her military retirement award; and (4) attorney’s fees and costs.

       In response, Earl pleaded the affirmative defenses of statute of limitations (asserted two-

year limitations period applied); laches and estoppel; and payment, accord, and satisfaction. He

also pleaded that Ayesha was improperly attempting to change the substantive property division

ordered by the court in the final decree of divorce, and that he was entitled to an offset or a credit

for having paid the federal taxes due on Ayesha’s share of the military retired pay.

       A bench trial was held in early 2012, at which Ayesha, Earl, and Pamela Greenroyd, a

Certified Public Accountant, testified; Ayesha’s attorney also testified as to the amount of

reasonable attorney’s fees. Following the bench trial, the trial court issued a letter to the parties in

which it stated that it “finds that 4 years is the applicable limitation period” because Earl is
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“designated a constructive trustee for the benefit of Ayesha Seabron with respect to the retirement

benefits awarded to her” and because section 16.004(a)(5) of the Civil Practice and Remedies Code

“establishes a 4 year limitations period for ‘breach of a fiduciary duty.’” See TEX. CIV. PRAC. &

REM. CODE ANN. § 16.004(a)(5) (West 2002) (providing four-year limitations period for cause of

action for breach of fiduciary duty). Thus, the trial court stated that it was granting Ayesha a

money judgment for past due retirement benefits for the period of March 16, 2006 (4 years prior

to the March 16, 2010 filing date of Ayesha’s motion for contempt) to March 1, 2012 (the date of

trial). The court stated that it was authorized by Zeolla v. Zeolla, 15 S.W.3d 239 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied), to make a retroactive order so long as the court considered

any applicable statute of limitation. Thereafter, the trial court rendered its “Order on Motion for

Contempt, Motion for Clarification and Motion for Domestic Relations Order, and Motion for

Judgment and Enforcement of Petitioner’s Military Retirement Award.” The clarification order

provided in pertinent part as follows:

       The fifth paragraph of page 23 of the Final Decree of Divorce rendered by the Court
       on April 18, 1990, stated:

       “IT IS ORDERED AND DECREED that AYESHA SEABRON shall have
       judgment against and recover from EARL CLIFTON SEABRON 42.95 percent of
       the gross present and future military retirement received each month commencing
       on January 1, 1990 by EARL CLIFTON SEABRON. Any election of benefits by
       EARL CLIFTON SEABRON shall not reduce the amount or percentage of the
       retirement awarded to AYESHA SEABRON.”

       This paragraph is clarified to read as follows:

       “IT IS ORDERED AND DECREED that AYESHA SEABRON shall have
       judgment against and recover from EARL CLIFTON SEABRON 42.95 percent of
       his disposable, present military retirement and 42.95 percent of any future cost of
       living increases. Any such benefits, whether received monthly or otherwise, shall
       be paid in accordance with the provisions of this Decree. Any election of benefits
       by EARL CLIFTON SEABRON shall not reduce the amount or percentage of the
       retirement awarded to AYESHA SEABRON or the percentage of the cost of living
       increases awarded to AYESHA SEABRON.”


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           The court further held that the language ordering Earl to deliver a copy of his Retired Pay

Account Statement to Ayesha should be clarified to include Retired Pay Account Statements

received by him “by mail, electronic mail, other electronic means, or by any means whatsoever

. . . .”

           The trial court did not hold Earl in contempt of court, but found that he had violated the

provision of the final decree requiring him to deliver legible copies of his Retired Pay Account

Statements to Ayesha. The court granted judgment for Ayesha against Earl in the amount of

$22,552.98 for past due retirement benefits, to be paid over 7 years, and further ordered Earl to

pay $6,074.65 in attorney’s fees and expenses.

           The trial court also rendered a Domestic Relations Order (DRO) in which Ayesha was

awarded 42.95% of Earl’s disposable military retired pay. DFAS was further ordered to directly

pay Ayesha her allotted percentage of disposable retired pay, together with all cost-of-living

adjustments applicable thereto, if, as, and when received by Earl.

                                              DISCUSSION

           On appeal, Earl challenges the clarification order and DRO, chiefly arguing that the trial

court: (1) had no jurisdiction to render a clarifying order; (2) substantively changed the property

division; and (3) erroneously applied a four-year statute of limitations. Earl also challenges the

award of attorney’s fees and the trial court’s findings of fact and conclusions of law.

Standard of Review

           We review a trial court’s ruling on a motion for clarification and enforcement for an abuse

of discretion. See In re M.K.R., 216 S.W.3d 58, 61 (Tex. App.—Fort Worth 2007, no pet.)

(reviewing trial court’s ruling on child support arrearages and payment of attorney’s fees under

abuse-of-discretion standard); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—

Texarkana 2003, pet. denied) (reviewing trial court’s clarifying order under abuse-of-discretion
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standard); In re T.J.L., 97 S.W.3d 257, 265 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(reviewing enforcement order under abuse-of-discretion standard). To determine whether a trial

court abused its discretion, we must decide whether the trial court acted without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). Merely because a trial court may decide a matter within its discretion in a different manner

than an appellate court would in a similar circumstance does not demonstrate that an abuse of

discretion has occurred. Id.

Jurisdiction

       Earl argues that the provision of the 1990 divorce decree dividing “gross” military

retirement pay is void based on the United States Supreme Court’s decision in Mansell v. Mansell,

490 U.S. 581 (1989). He thus contends that in 1990 the trial court lacked jurisdiction to render a

judgment dividing “gross” military retired pay pursuant to the Uniformed Services Former

Spouses’ Protection Act (“USFSPA”) and its interpretation by the Mansell court. See 10 U.S.C.A.

§ 1408(c)(1). We construe these contentions as an argument that the final decree of divorce is

void and therefore incapable of clarification.

       In Mansell v. Mansell, the Supreme Court held that the USFSPA did not give state courts

authority to treat total military retirement pay as community property, but rather, gave them the

authority to treat disposable military retirement pay as community property. Mansell, 490 U.S. at

583. Accordingly, state courts have authority to divide only disposable military retired pay, not

gross. Mansell was decided May 30, 1989 and the Seabrons’ divorce decree was signed almost a

year later on April 18, 1990. Therefore, in this case, the divorce decree improperly divided gross

retired pay. Mansell does not, however, as Earl argues, render the 1990 decree void. Although

the decree contained an erroneous property division pursuant to the USFSPA, and was thus

voidable, it was not a void order because, at the time of the property division in 1990, the trial
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court had jurisdiction of the subject matter and the parties. See Hagen v. Hagen, 282 S.W.3d 899,

907 (Tex. 2009) (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003)); Ex parte Kruse, 911

S.W.2d 839, 841 (Tex. App.—Amarillo 1995, orig. proceeding [habeas corpus denied]); see also

Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (explaining difference between void and

voidable judgments). Accordingly, the trial court had jurisdiction to entertain Ayesha’s motion

for clarification. We thus overrule Earl’s jurisdictional complaint.

Clarification vs. Modification of the Divorce Decree

       Earl next argues that the change from “gross” to “disposable” military retirement pay

violates the prohibition against changing the substantive property division and constituted an

impermissible collateral attack on the final decree of divorce. See TEX. FAM. CODE ANN. § 9.007

(West 2006) (trial court may not modify the substantive division of property made in the final

divorce decree).

       A judgment finalizing a divorce and dividing marital property bars relitigation of the

property division. Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011). Seeking an order that

alters or modifies a divorce decree’s property division constitutes an impermissible collateral

attack. TEX. FAM. CODE ANN. § 9.007(a), (b) (West 2006); Hagen, 282 S.W.3d at 902. A trial

court does, however, retain continuing subject matter jurisdiction to clarify and to enforce the

decree’s property division. See TEX. FAM. CODE ANN. §§ 9.002, 9.008 (West 2006); see also id.

§ 9.006(a), (b) (West 2006) (providing that trial court has continuing jurisdiction to “render further

orders to enforce the division of property made in the decree . . . to assist in the implementation of

or to clarify the prior order”; and may “specify more precisely the manner of effecting the property

division previously made if the substantive division of property is not altered or changed”); In re

W.L.W., 370 S.W.3d 799, 803 (Tex. App.—Fort Worth 2012, orig. proceeding [mand. denied]).

The only basis for clarifying a prior decree is when a provision is ambiguous. In re R.F.G., 282
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S.W.3d 722, 725 (Tex. App.—Dallas 2009, no pet.); Bina v. Bina, 908 S.W.2d 595, 598 (Tex.

App.—Fort Worth 1995, no writ). Whether a divorce decree is ambiguous is a question of law we

review de novo. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003).

       Ayesha maintains that because the USFSPA prohibits the award of anything but disposable

retired pay, the language of the 1990 divorce decree awarding her a portion of “gross” military

retirement was latently ambiguous, and that the trial court was therefore authorized to render a

clarifying order. We agree with Ayesha that the 2012 order clarifies rather than alters the decree.

       Although the award of “gross present and future military retirement” is unambiguous on

its face, the fact that the USFSPA prohibits the division of anything but disposable retired pay

renders the decree ambiguous and therefore incapable of enforcement. See Zeolla v. Zeolla, 15

S.W.3d 239, 242 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (latent ambiguity existed

where husband retired at age 57, but decree was silent as to husband’s obligations if he retired at

any age other than 65; trial court was therefore authorized to enter a clarifying order); see also

Brown v. Brown, 236 S.W.3d 343, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding

that award of “401(k) plan in the amount of $136,000” was subject to more than one reasonable

interpretation and thus clarification was permitted). The clarification did not alter the essential

proportional division of the military retirement benefits. If anything, the clarification benefited

Earl because it reduced the amount of military retired pay awarded to Ayesha (42.95 percent of

“disposable” retired pay is less than 42.95 percent of “gross” retired pay). In sum, the challenged

order permissibly clarified the decree to correct an ambiguity so that the parties could comply with

its terms. See TEX. FAM. CODE ANN. §§ 9.008(b), 9.006(a), (b). The trial court exercised its

authority to clarify the ambiguity in order to give effect to the just and right allocation of the

community estate that it originally intended. Thus, we hold that the trial court did not abuse its



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discretion in rendering the clarification order and ordering that Ayesha recover “42.95 percent of

[Earl’s] disposable, present military retirement.”

        We additionally hold that the trial court did not abuse its discretion in clarifying the decree

to award Ayesha 42.95 percent of any future cost of living increases or in ordering Earl to mail to

Ayesha a copy of each Retired Pay Account Statement received by him “by mail, electronic mail,

other electronic means, or by any means whatsoever” within five days from receipt by the United

States Government. As stated above, a trial court retains continuing subject matter jurisdiction to

clarify and to enforce the decree’s property division. See TEX. FAM. CODE ANN. §§ 9.002,

9.006(a), 9.008(a). Earl does not complain about these provisions on appeal, and there is sufficient

evidence that, at the time of divorce, the trial court intended for Ayesha to receive future cost of

living increases. 1

        We therefore affirm the trial court’s clarification of the division of Earl’s military retired

pay, including the required cost of living increases and the forwarding of Retired Pay Account

Statements. Accordingly, we overrule Earl’s collateral attack complaint.

Statute of Limitations

        Earl next argues that the trial court deprived him of due process of law when it added a

cause of action for breach of fiduciary duty after the close of evidence that was not pleaded or

proved at trial, and that caused the rendition of an improper judgment because it resulted in the

application of a four-year statute of limitations. Ayesha responds that Preston v. Preston, No. 04-

03-00333-CV, 2004 WL 1835765, at *2 (Tex. App.—San Antonio Aug. 18, 2004, no pet.) (mem.

op.), should control. In Preston, this court held that when the divorce decree designates the



1
  Earl testified that when the decree was rendered, it was his understanding that Ayesha would be entitled to cost of
living increases (“COLAs”). Earl does not argue on appeal that Ayesha was not entitled to COLAs or that the trial
court erred in awarding COLAs to her.

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respondent as a constructive trustee for the petitioner for the purpose of receiving retired military

pay, and the petitioner files a motion to enforce the retirement pay provisions in the divorce decree,

the petitioner has brought a “breach of fiduciary duty action.” We further held that the two-year

statute of limitations provided by section 9.003(b) of the Family Code was inapplicable because

suit was not brought to enforce a division of future property in that case; rather, the petitioner-wife

had brought a breach of fiduciary duty claim to enforce the divorce decree. Id.; See TEX. FAM.

CODE ANN. § 9.003(a) (West 2006) (two-year statute of limitations applies to proceedings for

enforcement of divorce decree). Thus, we applied the four-year statute of limitations applicable

to breach of fiduciary duty claims. Preston, 2004 WL 1835765, at *2; TEX. CIV. PRAC. & REM.

CODE ANN. § 16.004(a)(5) (West 2002).

       In Preston, however, there was no indication that the breach of fiduciary duty claim was

neither pleaded nor proved at trial, but rather added after the close of evidence. Here, Earl had no

notice of the breach of fiduciary duty claim and corresponding four-year statute of limitations.

Admittedly, Ayesha did not plead a breach of fiduciary duty claim. Instead, the trial court sua

sponte included the claim in the clarification order for the purpose of applying a four-year statute

of limitations. Texas Rule of Civil Procedure 301 requires the trial court’s judgment to conform

to the pleadings. TEX. R. CIV. P. 301. Additionally, due process requires that a litigant be given

fair notice of the issues that will be decided in the litigation. See Cunningham v. Parkdale Bank,

660 S.W.2d 810, 813 (Tex. 1983). Because Earl was not on notice that a breach of fiduciary duty

claim would be pursued at trial, we conclude the trial court erred in recognizing the claim and in

applying a four-year statute of limitations.

       We note, however, that Ayesha benefitted from the four-year limitations period by a mere

two months, because there was no evidence presented at trial regarding Earl’s earnings for the

years 2006 and 2007. Thus, Ayesha was awarded a judgment for the period of January 1, 2008 to
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March 1, 2012, which amounts to a total of 26 months before filing suit as opposed to the two

years or twenty-four months allowed by the statute of limitations. See TEX. FAM. CODE ANN.

§ 9.003. Accordingly, we reverse the portion of the judgment awarding Ayesha damages insofar

as it awards her past military retirement pay prior to March 16, 2008. The case is remanded to the

trial court for entry of a judgment which awards Ayesha her percentage of Earl’s past military

retirement pay with applicable cost of living increases limited to the period from March 16, 2008

to March 1, 2012.

       Attorney’s Fees

       Next, Earl argues that the award of attorney’s fees was improper because judgment was

rendered upon an unpleaded and unproved cause of action for breach of fiduciary duty and Ayesha

failed to properly prove up the award for the time that legal assistants worked on the case. Chapter

9 of the Family Code pertains to post-decree proceedings, and subchapter A is titled “Suit to

Enforce Decree.” Section 9.014 provides that “[t]he court may award reasonable attorney’s fees

in a proceeding under this subchapter.” TEX. FAM. CODE ANN. § 9.014 (West Supp. 2012). The

decision to grant or deny attorney’s fees under this statute is reviewed for an abuse of discretion.

Cook v. Cameron, 733 S.W.2d 137, 141 (Tex. 1987); Chavez v. Chavez, 12 S.W.3d 563, 566 (Tex.

App.—San Antonio 1999, no pet.) (applying abuse-of-discretion standard of review to award of

attorney’s fees under section 9.014 of the Family Code). Because this post-decree suit is governed

by Chapter 9, we conclude the trial court had the authority to grant attorney’s fees.

       An award of attorney’s fees may include a legal assistant’s time to the extent that the work

performed has traditionally been done by an attorney. All Seasons Window & Door Mfg., Inc. v.

Red Dot Corp., 181 S.W.3d 490, 504 (Tex. App.—Texarkana 2005, no pet.); Gill Sav. Ass’n v.

Int’l Supply Co., 759 S.W.2d 697, 702 (Tex. App.—Dallas 1988, writ denied). To recover

attorney’s fees for work performed by legal assistants, “the evidence must establish: (1) the
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qualifications of the legal assistant to perform substantive legal work; (2) that the legal assistant

performed substantive legal work under the direction and supervision of an attorney; (3) the nature

of the legal work performed; (4) the legal assistant’s hourly rate; and (5) the number of hours

expended by the legal assistant.” Multi–Moto Corp. v. ITT Commercial Fin. Corp., 806 S.W.2d

560, 570 (Tex. App.—Dallas 1990, writ denied); All Seasons Window, 181 S.W.3d at 504.

       Earl asserts that the award of attorney’s fees was improper because Ayesha did not prove

that the legal assistants performed “substantive legal work.” We agree. At trial, Ayesha’s attorney,

Chad Petross, testified regarding the amount of reasonable attorney’s fees. Billing records were

admitted in support of his testimony, showing work that Petross, another of the firm’s attorney,

and two legal assistants did to prepare Ayesha’s case. Petross did not, however, provide any

testimony or evidence indicating that the work performed by his legal assistants was “substantive

legal work.” See Jarvis v. K & E Re One, LLC, 390 S.W.3d 631, 643-44 (Tex. App.—Dallas 2012,

no pet.) (affirming award of attorney’s fees that included work performed by legal assistant where

there was testimony that legal assistant had twenty-six years’ experience in the legal field as a

legal secretary and a legal assistant, was certified as a professional legal secretary in 1991 and as

a legal assistant in 2003; there was also testimony that the legal assistant’s work related to

substantive legal matter). We thus sustain Earl’s complaint regarding the award of attorney’s fees.

Because the record contains no evidence concerning the legal assistants other than their hourly rate

and number of hours expended, we modify the judgment to reduce the attorney’s fees and expenses

awarded to Ayesha by the sum of $1,010. As modified, we affirm the award of attorney’s fees.

                                           CONCLUSION

       Based on the foregoing, we reverse the portion of the trial court’s judgment awarding

Ayesha past military retired pay, and we remand the case to the trial court for the entry of a

judgment which awards Ayesha her percentage of Earl’s disposable military retirement and cost
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of living increases for the period from March 16, 2008 to March 1, 2012. We further modify the

award of attorney’s fees and reduce the award by $1,010 for work performed by legal assistants.

In all other respects, the judgment of the trial court is affirmed. Based on our disposition, we need

not address Earl’s complaints regarding the trial court’s findings of fact and conclusions of law.


                                                   Rebeca C. Martinez, Justice




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