## Facts

- Peggy Eddy (wife) and Clarence Eddy (husband) married July 4, 1964.
- Clarence served in the military for 119 months before marriage and 195 months during marriage, and he retired before the divorce decree was entered.
- The parties divorced by a final decree dated October 23, 1981.
- The decree dissolved the marriage, divided certain community property, and assigned responsibility for certain debts, but it did not mention or dispose of Clarence’s military non-disability retirement benefits.
- The decree included language denying all relief requested but not expressly granted; neither party appealed, and the decree became final.
- Before the decree, the U.S. Supreme Court decided *McCarty v. McCarty* (June 26, 1981), holding that federal law preempted state community-property division of military retired pay.
- After the decree became final, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA), signed September 9, 1982, authorizing state courts to treat disposable retired pay as marital/community property under state law (for pay periods after June 25, 1981).
- Relying on the decree’s silence, Peggy filed a separate suit to partition Clarence’s military retirement benefits as undivided community property.
- The trial court rendered a take-nothing judgment against Peggy, reasoning that (1) at the time of the divorce *McCarty* prevented division of the benefits under Texas community-property law, and (2) Peggy’s partition claim was barred because the divorce decree was final (res judicata).
- Peggy appealed from the take-nothing judgment.

## Issues

1. Does res judicata bar a former spouse’s post-divorce partition suit seeking division of military retirement benefits when the divorce decree (entered during the *McCarty*–USFSPA gap) did not mention or dispose of those benefits but became final?
2. After enactment of the USFSPA and Texas precedent treating *McCarty* as not altering Texas community-property rules for “gap” divorces, may omitted military retirement benefits be treated as undivided community property subject to partition?

## Decision

- The Court of Appeals reversed the take-nothing judgment and remanded.
- The court held that res judicata did not bar Peggy’s partition action because the divorce decree did not adjudicate or dispose of the military retirement benefits.
- The court treated the community portion of Clarence’s military retirement benefits as omitted community property subject to post-divorce partition in light of the USFSPA and Texas authority addressing gap-period decrees.

## Legal Principles

- Under Texas law, community property not disposed of in a divorce decree is not awarded by implication; it remains jointly owned by the former spouses as tenants in common and may be divided in a later partition suit.
- Res judicata prevents relitigation of matters that were actually decided (or necessarily decided) in a prior final judgment, but it does not bar a partition action for a specific asset that the divorce decree did not divide or award.
- Boilerplate decree language denying relief not expressly granted does not, by itself, dispose of an unidentified and unawarded asset; a decree must actually divide the property to end the parties’ co-ownership.
- The USFSPA authorizes state courts to treat disposable military retired pay as property divisible under state law for pay periods after June 25, 1981, restoring state authority that *McCarty* had been read to preempt.
- Under Texas Supreme Court guidance for gap-period divorces (including *Allison v. Allison*), *McCarty* does not permanently defeat a former spouse’s community-property claim where the decree was silent as to the retirement benefits; the benefits can be addressed as omitted community property through partition rather than by reopening the divorce judgment.

## Conclusion

Because the Eddys’ divorce decree did not mention or divide Clarence’s military retirement benefits, those benefits were not disposed of and remained subject to a later partition action; the court therefore reversed the take-nothing judgment and remanded, holding that res judicata did not bar Peggy’s claim and that, after the USFSPA and governing Texas precedent for gap-period decrees, the community interest in the military retired pay could be partitioned.


Eddy v. Eddy, 710 S.W.2d 783 (1986)