Hicks v. Hicks
2011 Tex. App. LEXIS 4909
| Tex. App. | 2011Background
- Husband and Wife divorced in 2010 after an informal settlement; final decree and a DRO were signed contemporaneously.
- The DRO was approved by Wife and her attorney, but references to it were deleted from the final decree; some deletions were initialed by Wife and her counsel.
- Husband moved to correct or reform the judgment, asserting errors in the final decree and the DRO, and sought sanctions and fees.
- Trial court denied the motion to correct or reform and awarded Wife $1,950 in attorney's fees and costs; Husband appealed.
- The issue centers on whether the DRO correctly calculates Wife’s community share of Husband’s military retirement pay and SBP beneficiary status, and whether the final decree aligns with federal law and Texas law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DRO: community interest calculation improper | Hicks argues Berry/Taggart-based fraction misapplied; wrong denominator. | Hicks contends the DRO follows Taggart as used previously; seeks correct calculation. | Reversed; remanded to apply Berry fraction for community interest. |
| DRO: retired pay calculation incorrect | Hicks asserts base pay and formula misstate the high-36/retired pay computation. | Hicks contends the DRO uses inaccurate numerator/denominator for retired pay. | Reversed; remanded to compute retired pay per Berry/Grier framework and law. |
| DRO: SBP beneficiary designation inconsistent with divorce decree | Wife seeks SBP beneficiary designation via DRO not present in the decree. | Divorce decree did not require SBP designation; DRO cannot impose new obligation. | Granted; remanded to remove SBP beneficiary language from DRO. |
Key Cases Cited
- Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977) (established the original fraction for community interest in military retirement)
- Berry v. Berry, 647 S.W.2d 945 (Tex. 1983) (altered denominator to months employed at divorce and barred post-divorce increases from community; allows cost-of-living increases)
- Grier v. Grier, 731 S.W.2d 931 (Tex. 1987) (valuation of military retirement benefits at date of divorce)
- Shanks v. Treadway, 110 S.W.3d 439 (Tex. 2003) (clarified Berry/Taggart lineage for fractions in retirement division)
- Caracciolo v. Caracciolo, 251 S.W.3d 568 (Tex. App.—San Antonio 2007) (discussed retired pay computations under federal law for Texas divisions)
- In re Broussard, 112 S.W.3d 827 (Tex.App.-Houston [14th Dist.] 2003) (consent judgment requirements and contract-like interpretation of divorce decrees)
- Chang v. Linh Nguyen, 81 S.W.3d 314 (Tex.App.-Houston [14th Dist.] 2001) (consent or approval of divorce decree and incorporation of agreements)