Earl E. BUSBY, Petitioner, v. Mary Lou BUSBY, Respondent.
No. B-1553.
Supreme Court of Texas.
July 29, 1970.
551
Mitchell, Gilbert & McLean, Phillip W. Gilbert, Charles E. Johanson, Maurice Angley, Jr., Austin, for respondent.
SMITH, Justice.
Respondent, Mary Lou Busby sued her former husband, Earl E. Busby, for partition of certain Air Force Disability Retirement benefits, which had not been divided by a judgment of divorce entered on June 25, 1963. The trial court, without the intervention of a jury, entered judgment that Respondent take nothing. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Respondent recover one-half of the retirement benefits. 439 S.W.2d 687. We affirm. The parties will be designated as they were in the trial court.
The first question for decision is wheth
The facts are these. The defendant entered the United States Air Force on September 14, 1942. The defendant and plaintiff were married on March 1, 1946. On September 14, 1962 defendant completed 20 years of service in the Air Force and thus became eligible for voluntary retirement. On June 25, 1963 the Air Force ordered defendant‘s disability retirement on account of a diabetic condition and a thyroid deficiency, to be effective July 19, 1963. Defendant, at the time of the trial, had received, as disability retirement pay, the sum of $21,690.53 from July 20, 1963 through the date of trial in this case, January 31, 1968. The divorce decree disposed of certain real and personal property, but no disposition whatever was made of the retirement benefits involved in the present controversy. The Motion for New Trial in the divorce suit was overruled on July 1, 1963.
On November 1, 1967 the plaintiff filed this suit against the defendant to recover and have partitioned equally the disability retirement benefits which had been paid to the defendant at the time of trial as well as an equal one half of all benefits accruing in the future. The plaintiff contends that the defendant‘s right to the disability benefits accrued as a property right during the time of their marriage and thus was the community property of the parties at the time of their divorce. The defendant contends that he never possessed a “property right” in the disability retirement benefits during the time of the marriage of the parties and therefore the benefits were not community property at the time of the divorce, and are now his separate property. He also asserts that if he did have a “property right” in the benefits at the time of the divorce, such right arose prior to the marriage of the parties, and hence is separate property. We do not agree with the defendant‘s contentions for the reasons now to be stated.
We are persuaded by the decisions in the cases of Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ. App. 1960) no writ, and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. 1968) writ dism‘d., in reaching our decision in this case. The defendant contends that the result reached in those cases can only be rationalized as a division of the estate of the parties under the broad equity powers given to the trial court in a case of divorce, and that the case now before the Court is fundamentally different in that it is a partition suit and not a case of divorce.
In Kirkham, the trial court granted the wife a divorce and awarded her: custody of a child, support for the child, a portion of certain unspecified community property, and a thirty per cent interest in and to the military retirement pay account of the husband. The husband attacked only the part of the judgment that awarded the wife a thirty per cent interest in his retired pay account. His three points of error were that (1) the military retired pay account was not the community property of the parties, (2) that it was error to award the wife thirty per cent of it, and (3) that it was error to award the wife a money judgment for part of it. The Court of Civil Appeals overruled all three of these points. It held that the military retirement pay account was not a gift or gratuity but an earned property right which accrued to him by reason of his years of service in military service; the military retirement pay account was earnings of the husband during marriage, and as such, community property, citing
Mora was a divorce suit in which the wife on appeal complained of the failure of the trial court to find that a portion of the husband‘s interest in a military service retirement plan was the community property of the parties. The Court of Civil Appeals relied upon its earlier decision in Kirkham v. Kirkham for the proposition that an interest in a military retirement plan was an earned property right which accrued by reason of his military service, and that the portion earned during marriage constitutes community property under
In considering the same question, the Supreme Court of Washington in Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966) quoted extensively from Kirkham, and held:
“The retirement pay account is not a gift or gratuity accruing to appellant, but is an earned property right which accrues by reason of his years of service in military service.”
The decision of the Supreme Court of New Mexico in LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969) is also in accord, citing Kirkham and Mora.
The defendant has sought to distinguish all of the above cases on the ground that they dealt with voluntary retirement from military service which he contends is different from the disability retirement situation involved in this case. We can see no distinction. “Voluntary retirement” refers to the right of a service man to voluntarily retire, upon his election to do so, after he has completed a required tenure of service. See
The retirement benefits accruing to the defendant in the present case come under the provisions of
Our analysis of the two types of military retirements leads us to conclude that the rule applied in the voluntary retirement cases should be applied here. Since the evidence shows that the disability retirement benefits accrued during marriage, we hold that the benefits received by the defendant constitute community property. See Mora v. Mora, supra.
Having held that the retirement benefits involved in this suit were community property at the time of the divorce, we next dispose of the defendant‘s contention that partition of such community property is barred under the doctrine of res judicata, since the plaintiff failed to ask for a partition in the divorce suit. We cannot agree with defendant‘s contention. It is well settled that where, as here, a divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428 (1891). Since this property was not parti-
We strongly suspect that the trial court which pronounced the decree of divorce and ordered a division of the estate of the parties in 1963, would not have divided defendant‘s disability retirement benefits as is being accomplished here. In the future, counsel for litigants in divorce suits should call to the attention of the trial judge all of the assets of the marriage. In any event, and especially in suits where one of the parties is not represented by counsel, the trial judges of the state, sitting in divorce suits, should inquire as to the existence of insurance or retirement programs to the end that the final judgment fully disposes of all property valuables of the community.
The judgment of the Court of Civil Appeals is affirmed.
Dissenting opinion by WALKER, J., in which GREENHILL and McGEE, JJ., join.
WALKER, Justice (dissenting).
It is my opinion that the “right” of a member or former member of the armed forces to retirement benefits that are payable in the future, resting as it does on a statute that is subject to modification or repeal at any time, does not constitute property. The court granting the divorce could and should take it into consideration and, in the exercise of the broad powers conferred by Article 4638, is in position to enter an order that is just and equitable under the circumstances. See Mora v. Mora, Tex.Civ.App., 429 S.W.2d 660 (wr. dis.); Kirkham v. Kirkham, Tex.Civ.App., 335 S.W.2d 393 (no writ). Our present departure from reality in holding that “title” to benefits payable in the future “vests” or has its inception when the serviceman becomes eligible for retirement can lead to grossly inequitable results. As indicated by the concluding paragraph of the majority opinion, we may have such a case here. It seems to me that we should insist rather than suggest that the matter of statutory retirement benefits be submitted to and decided by the court granting the divorce. In my opinion the trial court was correct in holding that the divorce judgment entered on June 25, 1963, is res judicata of the claim now asserted by respondent, and I would affirm the trial court‘s judgment that she take nothing.
GREENHILL and McGEE, JJ., join in this dissent.