Carroll v. Carroll (2009)

In Carroll v. Carroll, No. 04-08-00063-CV (Tex. App.--San Antonio Jan. 14, 2009, no pet.) (mem. op.), the Fourth Court of Appeals reviewed the decision of a trial court to award a forty-nine percent interest in the total retirement pay of the appellant as opposed to a forty-nine percent interest in the community property portion of the retirement pay. In that case, the former husband had accrued a total of twenty-eight years and one month of service with the United States Army, with twenty-two years and ten months having been accrued during the marriage. Id. The decree specifically stated that "the community interest of former husband's monthly gross retired pay subject to being divided by this Court is 100% of the monthly gross retired pay of an O-5 grade officer with 22 years and 10 months of creditable service towards retirement." Id. In other words, the decree defined the "community interest" in the pension as solely that amount which was earned during the marriage, and did not include any amounts earned prior to or after the marriage. See id. Crucially, the decree in Carroll then awarded the former wife forty-nine percent of only the community interest in the monthly retirement benefits. Id. In a memorandum opinion, the court of appeals found the trial court's clarification order improperly made substantive changes to the decree by basing the former wife's 49% award on the former husband's total military retirement pay rather than by following the formula set forth in the decree and basing the former wife's 49% award on the military retirement pay of "an O-5 grade officer with 22 years and 10 months of creditable service towards retirement." Id. The court noted that, "in the absence of an ambiguity, the trial court was without authority to modify the judgment via a clarification order; therefore, we must enforce the decree in accordance with its unambiguous language and the intent of the parties." Id. (citing Pearcy v. Pearcy, 884 S.W.2d 512, 514 (Tex. App.--San Antonio 1994, no writ)). In Carroll, the decree specifically provided that the former wife's award would be based only on that portion of the former husband's retired pay that was actually earned during the marriage. Id.