MEMORANDUM OPINION

Paul Jones and Teresa Jones1 were divorced in 2009. In 2020, the trial court rendered a Military Retirement Pension Division Order (MRPDO), finding the order “necessary to effectuate the terms” of the parties’ divorce decree. Paul, appearing pro se, appeals the order.

For the following reasons, we will affirm the MRPDO.

BACKGROUND

The final divorce decree provides, relevantly, that Paul is awarded

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 or as a result of PAUL R. JONES’s service in the United States U.S. Army, including any accrued unpaid bonuses, disability plan or benefits, Thrift Savings Plan, or other benefits existing by reason of or as a result of PAUL R. JONES’s past, present, or future employment, except that portion of PAUL R. JONES’s U.S. military retirement that has been awarded in this decree to TERESA GAIL JONES as more particularly specified in the and not clear and specific enough to be enforceable and pleading the affirmative defenses of limitations and laches.

On April 28, 2020, Teresa filed (1) a “Motion to Reopen Evidence” alleging that

new evidence had “come to light which must be considered to ensure the due administration of justice as contemplated by TRCP 270” and (2) a “Motion to Confirm Retirement Division

Arrearage” asserting that on the date it signed the decree the trial court also “signed an order that appears in the [court’s] minutes . . . award[ing Teresa] a share of [Paul’s] military retirement, if as and when received” and that the “amount and frequency of obligation remain unchanged to

the date of this motion.”3 While the record is unclear whether the latter motion was granted, on May 26, 2020 the trial court conducted an evidentiary hearing on Teresa’s petition for clarification and enforcement and other pending motions. Teresa, Paul, and their respective attorneys testified.

On July 28, 2020, the trial court signed the MRPDO. Relevant provisions include the following:

Findings of Fact:

...

Award to Former Spouse

IT IS THEREFORE ORDERED that [Teresa] is awarded 34.04 percent of [Paul]’s disposable military retired pay.

IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay [Teresa] each month the calculated percentage of [Paul]’s disposable retired pay at retirement, together with all COLAS applicable thereto, payable, IF, AS, and WHEN received by [Paul].

IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay of [Paul] is the sole and separate property of [Paul].

The MRPDO does not contain any provisions related to retirement-benefit arrearages or a ruling on Teresa’s motion to enforce.^[4] Paul filed a “Motion to Dismiss Military Retirement Pension

Order,” which was overruled by operation of law, and then perfected this appeal.

DISCUSSION

Paul asserts five multifarious and overlapping issues on appeal—several of which lack citations to the record and supporting authority and all of which are difficult to follow5—but we have distilled them into three6: (1) the trial court’s MRPDO is void because it purports to amend the decree in violation of Family Code section 9.007; (2) the trial court exceeded its

authority in rendering the MRPDO when it divided Paul’s military retirement benefits in violation of Family Code section 9.101; and (3) Teresa’s motion to enforce the decree’s property division was time-barred by Family Code section 9.003. We will address each issue in turn.

Family Code section 9.007

Family Code section 9.007 prohibits a trial court from amending, modifying, altering, or changing the actual, substantive division of property in a final divorce decree. Tex.

Fam. Code § 9.007(a), (b). Paul argues that the divorce decree was ambiguous as to the division

of his military retirement benefits, awarding Teresa an “indeterminable portion” of the benefits, and that the trial court’s MRPDO “mutated” that award to provide Teresa 34.04 percent of the benefits, amounting to an amendment, modification, alteration, or change to the division of property in the decree in violation of section 9.007. See id. We disagree.

An ambiguous division of property in a divorce decree nonetheless amounts to a division of that property; the ambiguity does not constitute a failure to divide the property. See

Watret v. Watret, 623 S.W.3d 555, 561 (Tex. App.—El Paso 2021, no pet.). When a divorce decree clearly awards to each spouse all sums relating to military retirement benefits except those portions awarded to the other spouse, such language constitutes a division of the retirement benefits, albeit an ambiguous one with respect to the percentage awarded to each spouse. See id.

(holding that provision in divorce decree substantially similar to subject decree “show[ed] both parties retained an interest in the retirement” but “due to missing details, specifically a percentage,” was ambiguous, requiring clarification); Guerrero v. Guerra, 165 S.W.3d 778, 782

practicable”); Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc., 997 S.W.2d 298, 304 n.9 (Tex. App.—Austin 1999, pet. denied) (consolidating points of error for discussion).

(Tex. App.—San Antonio 2005, no pet.) (“While a court may not modify a property division in a divorce decree, if it is ambiguous, the trial court may enter a clarifying order to enforce compliance with the division of property.”). A trial court’s clarification (by way of a qualified

domestic relations order (QDRO) or similar order) of a decree’s ambiguous division of retirement benefits does not constitute a change to the decree’s substantive division of property

and does not run afoul of section 9.007. See Watret, 623 S.W.3d at 563; see also Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997) (“[I]f the decree is ambiguous, the court must

interpret the judgment by reviewing the decree as a whole and the record to ascertain the property’s disposition.”).

In its “Award to Former Spouse” entitling Teresa to 34.04 percent of Paul’s military retirement benefits, the trial court merely clarified the decree’s ambiguous division

of those benefits but did not improperly modify the decree’s property division. See Watret, 623 S.W.3d at 563. Accordingly, we overrule Paul’s first issue.^[7]

Family Code section 9.101

Family Code section 9.101 provides

[T]he court that rendered a final decree of divorce . . . retains continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order or similar order permitting payment of pension, retirement plan, or other employee benefits divisible under the law of this state or of the United States to an alternate payee or other lawful payee.

Tex. Fam. Code § 9.101(a). As best we can discern Paul’s complaint regarding section 9.101, he seems to be arguing that the trial court erred in rendering the MRPDO without first rendering a

QDRO. Alternatively, his argument appears to be that because the MRPDO was entered later than the decree, the trial court somehow lacked power to enter the MRPDO when it did. As to the latter, we have disposed of this argument in the above discussion concerning Family Code

section 9.007. As to the former, he does not cite to any authority supporting this argument, and under Family Code sections 9.101 and 9.103, a trial court that rendered a final divorce decree is authorized to render a QDRO or similar order if one has not been rendered previously. See id.

§§ 9.101, .103 (allowing party to petition court to render QDRO or similar order if court did not already render one); Watret, 623 S.W.3d at 563. The MRPDO here is a “similar order” to a

QDRO in that it permits payment to Teresa of Paul’s military retirement benefits that accrued during the marriage and are thus divisible under Texas law. See Tex. Fam. Code § 9.101; see also 10 U.S.C. § 1408(c)(1) (providing state courts authority to treat “disposable retired pay” as community property). Moreover, it is the substance, character, and function of an order that

determines its effect, not its caption, see Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992), and the MRPDO clearly functions as an order described in sections 9.101 and 9.103. Accordingly, the trial court was authorized to render the MRPDO pursuant to sections

9.101 and 9.103, and we overrule Paul’s second issue.

Family Code section 9.003

Family Code section 9.003(b) provides that a suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes

final, whichever is later. Tex. Fam. Code § 9.003(b). While Teresa’s motion to enforce and for clarification did request arrearages for past-due retirement payments, she requested arrearages dating back to only February 1, 20188—within the two-year statute of limitations. See In re

Marriage of Reinauer, 946 S.W.2d 853, 860 (Tex. App.—Amarillo 1997, pet. denied) (noting that party’s right to retirement benefits matures in installments, when paid to retiree, and that limitations period “would accrue as to each installment,” requiring party to “sue to recover her share within two years of the date of [each required] payment”). Moreover, even if Teresa had

requested payments that were barred by the statute of limitations, the order being appealed (the MRPDO) did not award Teresa any arrearages but merely clarified the amount she was awarded in the decree. See Watret, 623 S.W.3d at 564 (holding that party’s request for order to clarify

decree as to retirement benefits was matter over which trial court has continuing jurisdiction and that section 9.003 statute of limitations did not apply); Marshall v. Priess, 99 S.W.3d 150, 157

(Tex. App.—Houston [14th Dist.] 2002, no pet.) (same). Accordingly, the limitations period in section 9.003 does not apply, and we overrule Paul’s third issue.^[9]

CONCLUSION

Having overruled Paul’s issues, we affirm the trial court’s MRPDO.

__________________________________________ Thomas J. Baker, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Affirmed

Filed: September 15, 2021