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Family Law No. 00-1325, 6/26/2003. Click here for the full text of this decision FACTS: The issue in this case is the proper interpretation of a 1981 divorce decree that divided, among other assets, retirement benefits stemming from one spouse’s employment during and after the marriage. The trial court held that the divorce decree awarded the non-employee spouse a specific percentage of the retirement benefits valued at the date of divorce. The court of appeals reversed, concluding that the decree unambiguously awarded the non-employee spouse a percentage of the total amount of the benefits on the date of retirement. HOLDING: Affirmed. The 1983 case Berry v. Berry, 647 S.W.2d 945 (Tex. 1983), currently governs the division of retirement benefits. However, when the decree in question was entered in 1981, Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976) and Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977), provided trial courts the formula to use in determining the community interest in retirement benefits and the non-employee spouse’s share of that interest. The court used a fraction to apportion the community interest: the number of months married under the plan divided by the total number of months employed under the plan at the time of retirement. That fraction was multiplied by the non-employee spouse’s “just and right” share in the community interest as determined by the trial court (often 50 percent) and then multiplied by the value of the benefits received by the employee spouse at retirement. When the trial court entered George Payton Shanks’ and Kenda Carolyn (Shanks) Treadway’s divorce decree, it should have employed the Taggart formula to divide the retirement benefits, though of course the court would not have been able to insert numbers for the denominator of the community interest fraction or the value of the benefits, which could not be determined until retirement. Notwithstanding the state of the law at the time the divorce decree was entered, this case does not involve a direct appeal, and the court must interpret the decree to determine not what the trial court should have done but, if possible, what the court actually did. When interpreting a divorce decree, courts apply the general rules regarding construction of judgments. Wilde v. Murchie, 949 S.W.2d 331 (Tex. 1997) (per curiam) (citing Constance v. Constance, 544 S.W.2d 659 (Tex. 1976)). The court agrees with the court of appeals, that the decree is unambiguous, and Kenda should receive 25 percent of George’s total retirement benefits. The phrase “arising out of pastemployment as an employee of American Airlines” (emphasis added) does not render the decree ambiguous, as George argues; rather, it merely serves to identify more specifically the property that is being divided (i.e., George’s retirement plan). As noted by the court of appeals, the trial court awarded Kenda an interest of all sums received under such plan, not an interest of presently accrued benefits under such plan. And the plan that was in existence at the time of the divorce and referred to in the decree is the same plan in effect now that George has retired. The fact that the plan’s value may have increased since the divorce does not affect the decree’s plain language, which simply cannot reasonably be construed to award Kenda an interest only in the plan benefits that had accrued on the date of divorce. Whether intentional or not, the court that entered the decree failed to limit the community interest pursuant to the Taggartapportionment fraction and instead clearly gave Kenda a 25 percent interest in the totalamount (whatever that might be) to be paid to George under the plan. The court must enforce the decree as written in this case even though it conflicts with Taggart. The original decree in this case is unambiguous, and the trial court had no authority to enter an order altering or modifying the original disposition of property. George’s remedy for a substantive error of law by the trial court was by direct appeal, and he cannot now collaterally attack the judgment. Mapco Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990). The district court was therefore without authority to enter a QDRO altering the terms of the decree by limiting Kenda to a 25 percent interest in the benefits that had accrued under the plan at the time of the divorce. OPINION: O’Neill, J., delivered the opinion of the court.

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