United States v. Stelter
567 S.W.2d 797
Tex.
1978
Check Treatment

*1 America, UNITED STATES

Petitioner, STELTER, Respondent. M. Boyd, Atty., Jamie C. U. P. Hugh S. Shovlin, Atty., Antonio, Asst. U. for S. San petitioner. Deason, Jr., Paso, A.

Charles El re- spondent.

GREENHILL, Chief Justice. States, sovereign, The United as a cannot be sued without its consent. Unless consents, it so it is immune from suit. problem The in this case whether United States has its be sued in the proceeding be fore us. We hold that it not. While regrettable, here result it is our plea sovereign to hold immunity made the U. sus attorney S. must be tained. Accordingly we must reverse judgment appeals. S.W.2d 227. background of the case is this: Doro-

thy Stelter, and Robert W. who no had children, were divorced in El Paso in 1973. their was awarded home El Paso had been automobile, all of her civil service retire- her life policies, insurance personal effects and a Shepard German dog. Robert was awarded a truck and his effects. The due balances on were certain debts allocated between them.

Robert had been retired from the U. S. .twenty years after He of service. Dorothy during married fourteen of years. those In the decree registry was ordered to court %oths of his retirement within days receipt; five after its and such sums were Dorothy. then to be appealed divorce was not either and is final. *2 Robert, however, disobeyed has the or- ment even if it called them “alimo- benefits ders of the pay Texas divorce court to the ny.” above, however, As set out portion regis- of the retirement excluded from the word “alimony” pay- court;

try of the the State. ments or transfers property compli- “in has, therefore, not been the any ance with community property settle- her; beyond amounts due and Robert is the ment, equitable distribution of property, or our courts to enforce of. the other division of property divorce decree. or former spouses.” brought garnish- Stelter has this provides divorce, Our statute that upon ment suit Her “the court shall order a division of the prayer is that required the United States be parties estate of the in' a manner that the directly portion her mili- the just court deems right, having due re- tary brings retirement benefits. This us to gard rights of each . . . .” the Act of which she contends Code, Family Section 3.63. government constitutes a consent of the Cearley In v. Cearley, 544 S.W.2d 661 purpose. be sued for this (Tex.1976), we military pension held that The Act is found in 42 United States benefits earned during marriage were com- give 659. That law does con- Section munity property subject and were to divi- “legal obligations pro- sent to suits for bene-, upon sion divorce even though some support alimony pay- vide child or make fits would payable be and receivable in the ments.” future. “alimony.” The Act defines the word In military When the retirement benefits doing, 662(c). says so it in Section were not in taken into account the divorce [alimony] any term does not include Such court’s “division of par- the estates” of the or its payment property or transfer of ties, e., brought i. were not to the court’s spouse value an individual to his attention when the court divided the prop- in spouse compliance any former with divorce, spouses upon erties of the it was equita- particular held a fraction of military retire- or other divi- ble distribution go ment benefits should as for- property sion of during earned of the mar- spouses. mer riage. v. Busby Busby, 457 S.W.2d 551 such,' “Alimony” after (Tex.1970). assume, permitted in Texas. We shall however, question that the are payments When community military not within the Texas definition of “alimo retirement benefits are before the divorce part military since at least a ny” court, the .court should take them into con retirement benefits were earned the hus sideration with all other of the property, during marriage. Francis v. band and wife “just right” to a division. This Francis, (Tex.1967); Busby v. 412 29 S.W.2d power discussed this (Tex.1970). Busby, 457 551 S.W.2d McKnight McKnight, divorce court 543 shall further assume without decid- (Tex.1976). We holding Our S.W.2d just the cases set out ing, logic under the was given pow that divorce court broad above, enforce attempt that the wife’s “just right” ers under the provisions of her divorce decree is not a suit to make a statute, and that a wages of “current on that would basis not be services.”1 disturbed in the absence of an abuse of discretion. The de We will also assume that could Joseph cisions discussed in for the United W. provided have for consent article, McKnight’s for these retire- Division of to be sued Texas Mari- prohibits garnishment. Emphasis through- such All Civil Statutes Annotated. Article 4099 statutory references are to Vernon Texas out is ours. Property Divorce, Mary’s tal 8 St. Law along S.W.2d with the well-reasoned (1976). page Journal At the writer approach in Nunnally, In re 506 F.2d 1024 suggested that “It states is not (5th 1975). Cir. always, usually, court should or even divide future payments between the McGEE, J., joins in this dissent. An exercise of the judg- court’s always *3 required.” has not its consent for the garnishment United States to be sued obligations

otherwise when the arise from

“any distribution of or other TRANSAMERICAN LEASING spouses.” division of As COMPANY, Petitioner, read the Family we Section 3.63 of cases, and oth- ers, the divorce court in that capacity acted BEARS, INC., al., THREE et home, spouses Respondents. truck, car, the wife’s civil benefits, service retirement the military retirement all of the other assets liabilities of the therefore, Congress, not consent- ed United States be sued in this

instance; and we so hold. must

It is unfortunate that Robert Stelter is the courts Texas so the decree

(cid:127)of divorce can be en- by the contempt powers.

forced exercise of

It is also unfortunate the Act of as it is.

worded are not

protected as are in other states they may bring

where a suit to recover alimo- But even support payments. sug-

ny

gest deprived that Texas of the protection law Act

equal help would be of no If a court were strike down the

Stelter. there discriminatory, would be no

law giving spouses to sue the

law

United judgments district court are reversed appeals aside, is dismissed.

set and the cause JOHNSON, J.,

Dissenting opinion McGEE, J., joins.

JOHNSON, Justice, dissenting. respectfully dissent submitted.

This adopt writer would

This appeals, of civil opinion of the court