Divorce Decree Construed to Include End Date for Retirement Award

The Dallas Court of Appeals ladled from an alphabet soup of acronyms when considering the validity of a QDRO in Beshears v. Beshears, No. 05-12-01576-CV (Tex. App. – Dallas Jan. 30, 2014). In addition to the QDRO and ERISA, the case involved a QPSA (“Qualified Preretirement Survivor Annuity”) and a QJSA (“Qualified Joint and Survivor Annuity”). The reader is referred to the opinion for an explanation of these terms.

The case is reported here because the court held that the following language cut off a former wife’s interest in a former husband’s retirement benefits as of the date the trial court heard the divorce, which was November 8, 2001:

IT IS ORDERED AND DECREED that [former wife] is AWARDED, as her sole and separate property, a portion of [former husband]’s retirement benefits in the Retirement Plan for the Salaried Employees of Merck & Co., Inc., arising out of [former husband]’s employment with Merck & Co., Inc., that portion being 57.5% of 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 the Retirement Plan for the Salaried Employees of Merck & Co., Inc., and more particularly defined in a Qualified Domestic Relations Order signed by the Court on the day this Final Decree of Divorce is signed.

IT IS ORDERED AND DECREED and [former husband] is AWARDED, as his sole and separate property, the remainder of [former husband]’s retirement benefits in the Retirement Plan for the Salaried Employees of Merck & Co., Inc., arising out of his employment with Merck & Co., Inc.

Clearly, the divorce decree contained no date limitation although the limitation was included in the QDRO.

The court reached its decision by first observing that under Coker v. Coker, 650 S.W.2d 391 (Tex. 1983), it “must construe the decree as a whole to harmonize and give effect to the entire decree.” The court continued:

Paragraph twelve of the decree, which dealt with the property division, is entitled “Division of Marital Estate.” The decree provides that [former wife] and [former husband] reached an agreement as to the proposed division of the “marital estate.” The trial court also stated in the decree it was dividing the “marital estate.” With regard to property, other than the retirement account, divided in paragraph twelve of the decree, the trial court stated it was dividing property “accumulated by either party during the marriage relationship” and that had “accrued during the marriage.” The decree also stated the trial court was dividing the parties’ debts “as a part of the division of the estate of the parties.”

. . . .

The decree in this case repeatedly referenced the “marital estate,” the “estate of the parties,” and property acquired during the marriage. Accordingly, the decree, when read as a whole, unambiguously divided only the community estate and did not award [former wife] any of [former husband]’s post-divorce separate property accumulated in the retirement account. Accordingly, the trial court did not abuse its discretion by denying [former wife]’s oral request that the 2002 QDRO be amended to remove the November 8, 2001 date and to award her 57.5% of the retirement benefit as of the date of [former husband]’s retirement.

In a lengthy footnote,* the court distinguished the following cases: Reiss v. Reiss, 118 S.W.3d 439 (Tex. 2003); Shanks v. Treadway, 110 S.W.3d 444 (Tex. 2003); and McCaig v. McCaig, No. 12-06-00374-CV (Tex. App. – Tyler June 20, 2007, pet. denied) (mem. op.).

* Footnote 4:

Relying on the Texas supreme court’s opinions in Shanks and Reiss and the Tyler court of appeals’s opinion in McCaig, [former wife] argues the divorce decree unambiguously awarded her 57.5% of the entire retirement benefit at the time of [former husband]’s retirement. However, Shanks and McCaig interpreted only a provision in the divorce decree under consideration that divided the retirement benefit. See Shanks, 110 S.W.3d at 445; McCaig, 2007 WL 176584, at *1. Neither opinion indicates the decree under consideration included the words “marital estate,” “estate of the parties,” or “community property” or that, in construing the applicable decree in its entirety, there was any other provision impacting the division of the retirement benefit. In Reiss, the supreme court addressed a provision of the decree dividing “community property.” Reiss, 118 S.W.3d at 440. However, the term “community property” was not used in the provision dividing the retirement benefit, and that provision divided the benefit “if and when” it was received by the husband. Id. A divided court determined that, while the provision may have impermissibly classified separate property as community property, it awarded the wife a percentage of the retirement benefit as of the time of the husband’s retirement. Id. at 44-42. The divorce decree is this case does not divide the retirement benefit “if and when received” by [former husband]. Rather, in a section of the decree dealing only with the division of the marital estate, it awarded [former wife] 57.5% of the retirement benefit. Reading the decree as a whole, we cannot conclude it divided [former husband]’s separate property by awarding [former wife] 57.5% of the entire retirement benefit as of the time of [former husband]’s retirement. See Pearson v. Fillingim, 332 S.W.3d 363 (Tex. 2011) (per curiam).

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