Ex Parte Welch, 633 S.W.2d 691

Ex Parte Welch

633 S.W.2d 691

Tex. App.

1982

Check Treatment

DICKENSON, Justice.

This is a post McCarty 1 contempt proceeding. Relator, Cleatus Eugene Welch, was ordered to pay his former wife, Gwy-nelle Alvаrez, twenty-five percent of his military nondisability retired pay in their Decree of Divorce dated February 2, 1979. Relator has made all required payments through May of 1981. 2

After learning of the McCarty decision, relator ceased paying his former spousе any part of the retirement benefits awarded to her in their Decree of Divorce. The former wife movеd to hold him in contempt, and after hearing proof the 326th District Court entered an Order of Contempt and Commitment dаted February 2, 1982, finding that relator “has contemptuously violated the order of this Court in separate violations in that he has failed and refused, although he was able to do so, to pay Respondent her share of the military retirement benefit” for the months of June, 1981, through January, 1982. The 326th District Court then ordered relator confined to the Taylor County Jail for one day and further confined until he has paid the arrearage and attorney fees. We admitted rеlator to bail, pending hearing and decision of his petition to this court for a writ of habeas corpus. We hоld the Decree of Divorce is neither void nor subject to collateral attack, and we order relator remanded to the custody of the Sheriff of Taylor County.

This court previously recognized that we are bound to follow the holding in McCarty when we applied it to a case which was pending on motion for rehearing. See Koon v. Koon, 621 S.W.2d 834 (Tex.Civ.Aрp.—Eastland 1981, no writ). Thereafter, the Supreme Court of Texas acknowledged the McCarty decision as the “supreme law of the land.” See Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981). The Trahan opinion cited the Fifth Circuit’s opinion in Erspan v. Badgett, 659 F.2d 26 (5th Cir. 1981) and quoted with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍approvаl the statement that:

(T)he res judicata consequences of a final, unappealed judgment on the merits (аre not) altered by the fact that the judgment may have been wrong or rested upon a legal principle subsequently overruled in another case.

The Fifth Circuit’s opinion in Erspan continues, 659 F.2d at 28:

Nothing in McCarty suggests that the Supreme Court therein intended to invalidate, or otherwise render unenforceable, prior valid and subsisting state court judgments. Absent some indication of such an intent, we declinе to do so.

*693 In view of the dicta in Trahan and the holdings in Erspan and Ex parte Gaudion, 628 S.W.2d 500 (Tex.App.—Austin 1982, original proceeding), 3 we decline to follow Ex parte Buckhanan, 626 S.W.2d 65 (Tex.App.—San Antonio 1981, original proceeding), 4 and Ex parte Acree, 623 S.W.2d 810 (Tex.App.—El Paso 1981, original proceeding). We do not agree with the holdings of Buckhanan and Acree that the pre-McCarty divorces are vоid and, therefore, subject to collateral attack, insofar as they award a portion of the military nоndisability retired pay to former spouses of retired military personnel. Ex parte Johnson, 591 S.W.2d 453 (Tex.1979), is not in point because it dealt with a federal law which clearly stated that veterans’ administration benefits “shall not be liable to attachment, lеvy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

We note in passing that the three ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dissenting justices stated in McCarty, 453 U.S. at 236, 101 S.Ct. at 2743, 69 L.Ed.2d at 608:

(T)he Court fails either to quote or cite the test for pre-emption which Hisquier-do 5 established.... The reason for the omission of this seemingly critical sentence from the Court’s opinion today is of course quite clear: the Court cannot, even to its satisfaction, plausibly maintain that Congress has “positively required by direct enactment” that California’s community property law be preempted by the provisions governing military retired pay.

The McCarty dissent notes, 453 U.S. at 243, 101 S.Ct. at 2746, 69 L.Ed.2d at 613:

(T)oday’s decision is not simply a logical extensiоn of prior precedent.... I am not certain whether the analysis was wrong in Hisquierdo or in this case, but it is clear that both cannot be correct.

Just prior to the McCarty decision, the Supreme Court of Texas stated in Ex parte Burson, 615 S.W.2d 192 at 194 (Tex.1981):

A district court, under our decisions, has the power to enforce a decree ordering a spouse to make payments out of the Air Force disability retirement pay.... If there is no appeal from the divorce court’s division of the property, that'decree may not be collaterally attacked.

Footnote 2 of Burson, discussing whether normal military retirement statutes preempt state law, states: ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“There is no express рre-emption, and we find no implied preemption.”

We hold that McCarty should not be applied retroactively and that the stаte community property laws were not expressly preempted by the federal statutes dealing with military nondisаbility retired pay. Congress did not “positively require by direct enactment” that our state community property laws be preempted as to the military nondisability retired pay. See Trahan v. Trahan, supra; Ex parte Burson, supra; Ex parte Gaudion, supra; Erspan v. Badgett, supra. The Decree of Divorce is not void and cannot be collaterally attacked.

Relator is remanded to the custody of the Sheriff of Taylor County.

Notes

. On June 26, 1981, the United States Supreme Court, with three .justices dissenting, held that federal law precludes a state court from dividing military nondisability retired pay in connection with divorce proceedings pursuant to state community property laws. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

. We note that he was held in contempt on October 9, 1979, and again on June 4, 1981. The arrearages thеn due were paid on June 5, 1981, shortly before the McCarty decision was announced.

. See the authorities cited therein from Alabama, Idaho ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and Cаlifornia which have expressly refused to apply McCarty retroactively to invalidate prior final divorce dеcisions which divided military retirement benefits. The Supreme Court of Texas denied a petition for writ of habeas corpus in C-1031, Ex parte John Joseph Gaudion, 25 Tex.Sup.Ct.J. 170 (February 10, 1982) (no written opinion).

. A different panel of the San Antonio Court reached a different result in Ex parte Rodriguez, No. 04-81-00333-CV (Tex.App. — San Antonio, December 10, 1981) (not yet reported, pending rehearing en banc). The Suprеme Court of Texas denied a petition for writ of habeas corpus in C-911, Ex parte Simon Y. Rodriguez, 25 Tex.Sup.CtJ. 110 (December 31, 1981) (no written opiniоn).

. Hisquierdo v. Hisquierdo, 439 U.S. 572 at 581, 99 S.Ct. 802 at 808, 59 L.Ed.2d 1 (1979), states the test:

On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that State law be preempted.