## Facts

- Gary Dennis Harvey and Patricia Felter Harvey divorced by consent decree on May 16, 1990.
- During the marriage, Gary participated in a 3M retirement plan.
- The decree awarded Patricia 45% of the present value of Gary’s accrued plan benefits as of October 21, 1988, payable when benefits became payable, with flexibility as to form of payment.
- The decree did not expressly mention survivor benefits or designate Patricia as Gary’s “surviving spouse.”
- A plan representative advised that the decree did not satisfy requirements for payment as a qualified domestic relations order (QDRO) and suggested adding technical language, including a surviving-spouse designation.
- More than two years later, Patricia moved for enforcement and clarification seeking QDRO-compliant language and designation as surviving spouse for plan purposes.
- Gary objected, arguing the requested changes would grant Patricia new rights and impermissibly modify the final property division.

## Issues

1. Whether a post-judgment order adding QDRO-compliant terms, including naming the former spouse as “surviving spouse” for plan purposes, is an impermissible substantive modification of a final divorce property division.
2. Whether the divorce decree’s silence regarding survivor benefits created an ambiguity that the trial court could resolve through clarification.
3. Whether interpreting a consent divorce decree under contract principles supports construing the original award to include survivor-benefit treatment consistent with the awarded percentage interest.

## Decision

- The court of appeals affirmed the trial court’s clarification order.
- It held the order functioned as a permissible clarification and enforcement mechanism, not a substantive change to the division of marital property.
- The court treated the consent decree as a contract and concluded the surviving-spouse/QDRO language was consistent with effectuating the decree’s original allocation of retirement benefits.

## Legal Principles

- After a divorce property division becomes final, a trial court generally may not alter or change the substantive division of property; it may only enforce or clarify it.
- A trial court may clarify an ambiguous or incomplete decree to make it sufficiently definite for enforcement, including by supplying technical terms necessary for retirement-plan administration, so long as the substantive division is not changed.
- A consent divorce decree is construed like a contract; ambiguity is resolved by examining the text and apparent intent rather than treating silence as a clear exclusion of a benefit.
- Adding QDRO-compliant provisions may be proper when they enable payment of an already-awarded interest and do not grant a different percentage or a new category of property.

## Conclusion

The appellate court upheld a post-divorce clarification order that added QDRO language and designated the former wife as the participant’s surviving spouse for plan purposes, reasoning that the original consent decree’s award of a fixed percentage of accrued benefits was ambiguous as to survivorship treatment and that the clarification made the decree enforceable without changing the underlying property division.


Harvey v. Harvey, 905 S.W.2d 760 (Tex. App.—Austin 1995)