Grier v. Grier

GRIER, Petitioner, Elsie M.B. GRIER, Jr., Respondent.

Edward G.

No. C-5736.

Supreme Court of Texas.

6,May 1987.

Rehearing Denied June 1987. Coldwell, Guevara, Rebe,

Colbert N. Bau- Coldwell, Paso, mann El petitioner. & Gates, Paso, John El respondent. ON MOTION FOR REHEARING WALLACE, Justice. grant

We Rehearing, Motion for judgment opinion withdraw the April opinion. 1987 and this substitute post-divorce declaratory judgment This presents action proper as to the characterization division re- tirement benefits. The were Griers divorc- ed in At the time of the divorce major Edward was a United States Army. dispose The divorce decree did benefits, of Edward’s as these were benefits not divisible commu- nity at the property time of the decree. divorce, Eight months after the promoted rank colonel. Grier in a 1983 Elsie filed suit Califor- seeking partition

nia court of Edward’s re- brought tirement benefits. Edward this declaratory action judgment for a that his declared non- benefits community property under the divorce de- cree of The trial court rendered judgment Edward’s retire- partition subject ment were community property and awarded Elsie Grier Edward’s future 37.45% gross upon the retirement benefits based The court of lieutenant colonel. and rendered reversed awarding of Edward’s “dis- Elsie 37.45% posable pay” payable major to a 932

who retired on the of Before the Supreme would have date the the decision of U.S. 713 Grier’s divorce. S.W.2d We af- McCarty McCarty, Court in v. 453 U.S. appeals firm the the of court of (1981), 101 S.Ct. as modified herein. apportioned community Texas courts the in property interest retirement benefits Grier contends the court Elsie that of during marriage according the earned to reversing appeals in erred the trial court Taggart in Taggart, formula established v. awarding portion in of a Edward’s (Tex.1977) Cearley 552 S.W.2d v. retirement on the rank of benefits based (Tex.1976). Cearley, In 544 S.W.2d 661 major, rather than on the rank of lieuten- Supreme McCarty, the Court determined disagree ant conten- colonel. We with this military not that retirement benefits could the in tion. At time of the Grier’s divorce by property be treated the states as marital major, Edward held the rank of but Congress subject to divorce. by on division had been FUSFSPA with the intent “re- 1975 AUS Lieutenant Colonel’s Promotion enacted to actually promoted Board. Edward was it was when the store the law to what May to the rank of lieutenant colonel until permitted apply di- courts were to State 2, 1976, eight some months after the di- military pay.” S.Rep. vorce laws to retired undisputed It is did vorce. Cong., reprinted No. 97th 2d Sess. any not become entitled of the increased Cong. & Ad.News in U.S.Code accompanying pay or retirement benefits the court of 1599. We now address his elevation in rank until after his divorce appeals’ holding that FUSFSPA also from Elsie Grier. prohibiting of state courts from effect apportioning more than of service 50% Berry Berry, 647 S.W.2d 945 spouse’s “disposable pay.” (Tex.1983), of the we settled holding appeals of its The court based apportionment of the commu valuation and Congress to limit the states’ intended nity’s interest in retirement Such benefits. ability to characterize and divide spous apportioned are to be 1408(c)(1) of pay on retirement section community’s es based on the value of the which reads: FUSFSPA at the time of divorce. Since Ed interest the in ward did not become entitled to section, [ sjubjectto of this the limitations pay in his result crease may disposable treat retired a court ing his, promotion until his di after property solely pay either as retainer ... vorce, awarding an Elsie share of order property of of member as Edward's benefits based on the spouse and his in accordance member impermis- colonel would of such jurisdiction the law of the with sibly separate property. invade Edward’s added). (emphasis court apportioning military re We hold that “Disposable pay” is defined retired upon the dissolution of a tirement benefits statutory gross pay less certain statute as community’s marriage, of the the valuation may elected at the deductions which benefits is to be based on interest spouse. 10 option of the service U.S.C. pay corresponds to the retirement 1408(a)(4). actually by held service the rank spouse the divorce. on the date of An examination this statute convinces us that it was not intended to limit the question of We must next consider the power “disposa- states’ characterize community Elsie’s whether share as a pay ble” retired marital asset. pay is lim- Edward’s retirement This section FUSFSPA not concerned disposable pay under the ited to net 50% limiting pay amount retired Spous- Former Federal Uniformed Services courts, by available for division state but es’ Protection U.S.C. § designed to (FUSFSPA), instead limit the the court of has amount pay garnished held. can be pursu- paid years September out service secretaries together service orders for child support, ant court alimo- with increases which occur other than ny, property division and increases attributable to elevation in rank the like. This military spouse services rendered purpose is revealed this section’s statu- modified, after date divorce. As tory “Payment of title: Retired Retainer judgment appeals of court of is af- Compliance Pay in With Court Orders.” firmed. maximum When the amount of of dis- 50% pay

posable garnished retired been has pursuant service secretaries to court MAUZY, J., concurring and

orders, any obligation further of the ser- dissenting. spouse may by any

vice be “enforced Justice, MAUZY, concurring and means dissent- available under law.” 10 U.S.C. ing. 1408(e)(6). As the statute makes clear: § in

[ n]othing this section shall be con dissenting 15,1987 My opinion April of is strued to relieve liability a member of concurring and this and dissent- withdrawn payment alimony, support, of child or ing opinion is substituted therefor. payments required by other a court order agree I with the court’s decision that the grounds payments on the that made out community military in retirement of disposable pay retired retainer un gross is military benefits derived re- der this section in have made pay. respectfully tirement I as to dissent permitted maximum amount [under holding military court’s that the retire- Act]. ment at are at issue herein valued 1408(e)(6). 10 U.S.C. § major. the rank of I would hold that Elsie Grier is entitled to benefits valued at We note that our construction of the colonel. effect of FUSFSPA is one which has been adopted by other which courts have had an Edward and Elsie Grier were married opportunity See, to consider the issue. Ca 25, 1959, and on November were divorced Thompson, v. 131, sas 42 Cal.3d 228 Cal. 18, September 1975. Edward entered 33, (1986), Rptr. denied, 720 P.2d 921 cert. 1953, Army 7, pri- U.S. on as December - U.S. -, 659, 107 S.Ct. corporal. vate E-l and to the of rose rank (1987); Deliduka, Deliduka v. 347 N.W.2d Army Edward then left the and entered (Minn.App.1984). 12, college September in of 1955. On June 1959, 2nd Edward was commissioned as a We hold that the Federal Uniformed lieutenant, adjusted which commission was Spouses’ Services Former Protection 29, July par- 1960. On the date 10 U.S.C. does not limit the amount divorce, ties’ Edward had accrued 14.98 military pay of which be years service while married apportioned characterized commu in years’ Elsie and 16.84 total time nity property sys asset under our marital September rank service. Edward’s on tem. pro We conclude that FUSFSPA divorce, major, Army the date of visions are intended as a limit on the (AUS); however, on the United States disposable amount of pay which can divorce, July garnished paid be out the service placed on the AUS Lieu- pursuant secretaries court orders. List. re- tenant Colonel’s Promotion He ceived his lieutenant colonel’s commission The of the court of is on May modified to the extent Elsie Grier is gross

awarded Edward Grier’s 37.45% valuing major rank at the Elsie’s pay benefits, retired or retainer on the rank of based share of the major currently payable to such Berry Berry, relies on court (Tex.1983). agree officer who would have retired with 20 I S.W.2d Berry that, general aas rule and for the service secretary, which letter sets the purpose consistency, retirement benefits maximum number of officers to be recom- Ford, supra, grade. should be valued as of the mended each date divorce. at Nevertheless, Further, applying general regard rule and without to va- cancies, cause, promotion-list each to the instant has officer whose court lieutenant, regular grade captain, form over The is 1st substance. is that result major precision in considered a Selection Board the law for the sake of consist- higher grade, to the next ency prevailed far equity. has over in- The enough in advance of the date on he equity. stant cause is cut from the cloth of 7, 14, complete years will of service precise is not herein what recommended, may if he promot- so that serving rank Edward Grier was on the date complete ed on the date he on which will rather, he, fact, of divorce but al- (1959) 3299(b) that service. 10 U.S.C. § ready higher promoted to next the (recodified at 10 U.S.C. 628 & § grade [1983 I on or the date before of divorce? Supp.1986]). hold Edward would Grier had been promoted to lieutenant colonel to the promotion by Once selected for a Selec- parties' divorce. Board, promotion-list tion officers are ei- promoted ther or eliminated from the ac- A of the the re- determination value of (recodified list. 10 tive U.S.C. 3299 at 10 § requires tirement benefits at issue herein 631, Supp.1986]). If U.S.C. 632 & §§ [1983 statutes, analysis regulations an of the and an officer “eliminated from active the procedures, mandatory, all of which are 3299, pursuant list” section is a “de- to he govern peculiar promotions and are to officer,” ferred is a member which promotion pro- in the armed forces. promotion is considered for to the who officers, begins commanding cess who grade captain, major, or colo- evaluations, make written as Offi- known nel, for promotion. but not recommended (OERs), Efficiency Reports cer mili- of the (recodified (1959) 10 U.S.C. 3303 at 10 § tary members under their command. 631, Supp.1986]). & A U.S.C. 632 §§ [1983 permanent are OERs an officer’s by again deferred officer is considered record, file, or and constitute considering next officers Selection Board primary upon promotions rest. basis which list, if grade promotion his and military personnel Those files are reviewed recommended, may promoted, if he be Boards, by statutorily constituted Selection retire, recommended, eligible, must if not operate regulations prescribed which under eligible retirement, if not for he must instance, by, Secretary this eligibility retire his for retirement. (recodified Army. (1959) 10 3297 U.S.C. § 3303(c), (d), (1-3) (1959) (recodi- 10 U.S.C. § seq. [1983]). 10 Based at U.S.C. 611 et § 631, 632). fied at 10 U.S.C. §§ Boards, reviews, on their the Selection evaluating point system utilize promotion, Once selected for a Selection military member, pro- the file of a make to Board’s are submitted recommendations to sec- motion recommendations the service Deputy for the Office Chief of Staff Pro- Ellis, See Judicial Review retary. Personnel, recom- who in turn forwards its Military, motions 98 Mil.L.Rev. 129 for promotion mendations the service Selection Boards (1982); Ford, presi- them secretary, who forwards to the Officer Law, Ford, and Due Process 70 137 Mil.L.Rev. for submission to the Senate. dent (1975). supra, at 151.1 recommendations, approved for making its Officers recommended may removed from the promotion Board follows a letter instruction president, by con- appoint- and with the advice and Pursuant Armed Forces 3281(l)-(8) grades, U.S.C. § include in sent of the Senate. ments in commission (1959); (recodified ascending through major § at 10 U.S.C. § (1959). order 2nd lieutenant [1983]) by general, Regular Army in the shall be made by president Board’s ground on the not receive his commission. In a second promotion-list officer, case, D’Arco, that the presi Captain Anthony U.S.M.C., opinion, qualified commanding dent’s received notice via his pro for officer of his promotion selection for (1959)(recodified motion. 10 U.S.C. 3308 § major, pending confirmation the Senate. [1983]). However, at 10 U.S.C. 629 any eventually The Senate confirmed D’Arco’s president removal may not be promotion, pending but while his name was arbitrary capricious, and when such is Senate, charged before the D’Arco was case, officer is entitled to with violations of the Uniform Code of judicial Boyd States, review. v. United Justice, Military alleging the theft of denied, 207 Ct.Cl. cert. 424 U.S. government building wrong materials and (1975); S.Ct. 47 L.Ed.2d 314 Dorl v. appropriation ful government of a vehicle. States, United denied, 200 Ct.Cl. cert. meantime, In the promotion D’Arco’s 414 U.S. 94 S.Ct. approved. Following court-martial, (1973). D’Arco’s commission was withheld. His argues presi- that because the conviction promotion was affirmed and power dent has the to remove officers not States, denied. D’Arco v. United 441 F.2d qualified promotion, promotion his (Ct.Cl.1971).2 lieutenant colonel was not assured. The Thus, once an officer has been selected then, is when an officer be approved presi- promotion list, removed from a once he has dent, with the advice and consent of the been approved selected and promotion, for Senate, and his subsequently pub- name with the advice and consent of the Senate? applicable military circular, lished in the Army Regulations provide that an officer signing of his commission is a matter promotion be removed routine, from a list “at receipt and the actual of his any time” assured, when it is disciplinary found that disciplinary commission is absent action against has been taken egregious act, action for an officer. such as moral 624-100, 19(e), AR (August 1974; felony charges.3 misconduct or A Tllf rebut- July 1966). Further, presumption table that Edward would re- the few cases promotion ceive his upon wherein a attached official officer was selected and notice approved pro- that he had been approved promotion for for subsequently motion. community’s acquired rights was denied his commission to actual were fixed and determined at the time Ed- promotion indicate the kind of for conduct published ward Grier’s name was justified. which removal is Martin, William 1975 AUS Lieutenant Colonel’s Promotion officer, Naval alleged Reserve List. have through “streaked” Ho- Biltmore tel Ballroom in City during York New

U.S. Naval pres- Reserve dance and in the

ence of fellow Naval Reservists “and their Warner,

ladies.” Martin v. F.Supp. (E.D.N.Y.1976). Although Mar- promotion

tin’s approved, he did pro- D’Arco was a U.S. Marine officer whose pro- cases commanders should not deliver the approved by motion Secretary motion, report but the circumstances to the Navy Corps regulations providing Marine Corps.” Commandant of the D’Arco Marine promotion removal of an officer from a U.S., 441 F.2d at n. 2. provided paragraph 1420-2a of the Marine (1961): Corps Manual "Action toward withhold- Similarly, receipt of retirement benefits ing an officer’s should be considered themselves are conditioned the occurrence cause, example, for serious involve- event; i.e., of an member must ment in an incident which raises doubt as his eligible retire and remain to receive the bene- integrity, adversely moral profes- reflects on his Accordingly, judgments fits. should and ability, being sional or results in his recom- "if, do recite as and when received.” mended for trial court-martial. In such

Case Details

Case Name: Grier v. Grier

Court Name: Texas Supreme Court

Date Published: May 6, 1987

Citation: 731 S.W.2d 931

Docket Number: C-5736

Court Abbreviation: Tex.