Opinion
No. 04-05-00475-CV
Delivered and Filed: February 1, 2006.
Appeal from the 406th Judicial District Court, Webb County, Texas, Trial Court No. 2003-Cvg-001787-D4, Honorable Oscar J. Hale, Jr., Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Josefina Ann Uribe Hudson ("Josie") appeals the trial court's order denying her motion for enforcement and clarification of the final divorce decree. Josie argues that she is entitled to post-divorce interest earned on retirement benefits awarded to her in the divorce decree. Because we hold the decree unambiguously awarded Josie one-half of post-divorce interest on the retirement accounts, the trial court's judgment is reversed.
Background
A final decree of divorce was entered on July 13, 2004, dissolving the twenty-four year marriage of Josie and Robert Hudson ("Don") and dividing their marital estate. Each spouse was awarded one-half of the other spouse's retirement benefits as set forth in the agreed divorce decree. Each account subject to division was listed in the decree, along with the approximate dollar amount of money in the account. Shortly after the divorce, all of the retirement accounts were divided by the parties, except for two Mass Mutual accounts. In September of 2004, Josie filed two qualified domestic relations orders (QDROs). In the first QDRO, Josie requested that one-half of the first Mass Mutual Variable Annuity Account be awarded to her, "plus all earnings on that sum from the date of this order forward." In the second QDRO, Josie requested that one-half of the second Mass Mutual Variable Annuity Account be awarded to her, "plus all earnings on that sum from the date of this order forward." At a hearing in April of 2005, Don contested the QDROs, arguing that the divorce decree unambiguously awarded Josie a portion of the retirement benefits valued as of the date of divorce, and thus, she was not entitled to any interest earned on the accounts after the date of divorce. The trial court ruled that Josie's QDROs were not in conformity with the final decree of divorce and ordered Josie to file amended QDROs consistent with the divorce decree. The trial court specifically ordered Josie to remove the following language from the QDROs: "plus all earnings on that sum from the date of this order forward."
Discussion
A trial court may not amend, modify, alter, or change the division of property made or approved in the divorce decree. See Tex. Fam. Code Ann. § 9.007(a) (Vernon 1998); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003). If the divorce decree is plain and unambiguous, the court is required to give effect to the literal meaning of its language. Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex. 1990). Here, both parties claim that the final decree of divorce is unambiguous. Josie claims that the decree clearly awarded post-divorce interest on the Mass Mutual accounts to her, while Don claims that because a specific dollar amount was apportioned to each account, the decree clearly ordered division of the accounts at the time of divorce, and therefore Josie is not entitled to any post-divorce earnings on the accounts. Whether a divorce decree is ambiguous is a question of law subject to de novo review. See Shanks, 110 S.W.3d at 447; Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex.App.-San Antonio 2005, no pet.). When the decree is unambiguous, there is no room left for interpretation, and the effect of the decree is a question of law for the court to decide in light of the literal meaning of the language used. See Stephens v. Marlowe, 20 S.W.3d 250, 253 (Tex.App.-Texarkana 2000, no pet.).
The final decree of divorce awarded to Josie as her sole and separate property:
One-half of all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of Robert Donald Hudson, Jr.'s past, present, or future employment, including but not limited to:
(a) Laredo Dermatology Assoc., P.A.
(b) Sisters of Mercy of the Americas 401(k) Plan, [Account No.] (in the approximate amount of $7,223.00)
(c) Sisters of Mercy of the Americas, [Account No.] (in the approximate amount of $30,500.00)
(d) Mass Mutual Variable Annuity, [Account No.] (in the approximate amount of $21,000.00)
(e) Mass Mutual Variable Annuity, [Account No.] (in the approximate amount of $281,356.00)
(Emphasis added.) When the language of the decree is unambiguous, as it is here, we interpret the decree literally. See Reiss v. Reiss, 118 S.W.3d 439, 441-42 (Tex. 2003) (citing Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). The decree did not specifically mention how interest earned on the accounts was to do be disposed of; however, the decree is unambiguous on its face in awarding Josie one-half of the retirement accounts, "together with all increases." While Don contends that the parties are bound by the specific dollar amounts apportioned to each account in the decree, he cites no authority to support his proposition. Based on its language, we hold that the divorce decree unambiguously awarded Josie one-half of the Mass Mutual accounts, including post-divorce interest earned on the accounts.
While Josie is not asking for any contributions made to the accounts by Don after the date of divorce, we note that post-divorce increases in the value of an individual's retirement plan that are attributable to the person's continued employment, such as raises, promotions, and post-divorce contributions, are the individual's separate property and are not subject to division. See Grier v. Grier, 731 S.W.2d 931, 932 (Tex. 1987); Boyd v. Boyd, 67 S.W.3d 398, 408 (Tex.App.-Fort Worth 2002, no pet.). Conversely, post-divorce cost-of-living increases and other increases in value that are not attributable to the employee's continued employment after divorce are community property subject to division. See Grier, 731 S.W.2d at 933 (awarding nonemployee wife percentage of husband's retirement benefits that were community property valued at date of divorce plus future increases other than those attributable to post-divorce elevation in rank or services rendered); see also Burchfield v. Finch, 968 S.W.2d 422, 424 (Tex.App.-Texarkana 1998, pet. denied) (holding that post-divorce increases in an individual's retirement benefits are subject to community property division if they are not attributable to post-divorce employment or contributions); Phillips v. Parrish, 814 S.W.2d 501, 505 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (awarding nonemployee spouse her share of post-divorce cost-of-living increases and increases due to upgrading of benefits). Don had the burden of proving that any post-divorce increases in the Mass Mutual accounts were his separate property, such as increases through raises, promotions, services rendered, or contribution. Burchfield, 968 S.W.2d at 425; see also Boniface v. Boniface, 656 S.W.2d 131, 135 (Tex.App.-Austin 1983, no writ) (noting that wife was not required to establish the value of her interest in contributions to husband's retirement plan); Dessommes v. Dessommes, 505 S.W.2d 673, 678 (Tex.Civ.App.-Dallas 1973, writ ref'd n.r.e.) (imposing burden on former husband to establish value of post-divorce contributions to his retirement plan). Don failed to sustain this burden, and therefore we presume that any post-divorce increases in the accounts are permissibly divisible community property. Accordingly, Josie is entitled to the interest that has accrued on the retirement accounts from the date of divorce until the date the retirement accounts are divided. Josie's issues are sustained. The cause is remanded to the trial court for the entry of QDROs consistent with this opinion and for consideration of an award of attorney's fees. See Tex. Fam Code Ann. § 9.014 (Vernon 1998).
But see Reiss, which upheld the literal, unambiguous language of divorce decree awarding wife fifty percent of husband's total retirement benefits if and when he retires, even though award invaded his separate property. 118 S.W.3d at 442.