## Facts

- Wife sued for divorce; Husband answered and counter-petitioned.
- The parties executed an informal settlement agreement under Texas Family Code § 6.604.
- The trial court signed an agreed final divorce decree, approved by both parties as to form and substance; Husband requested entry of the decree.
- The decree awarded Wife a share of Husband’s Air Force disposable retired pay using a time rule fraction based on months of creditable service during marriage over total months at retirement.
- The same day, the trial court signed a Domestic Relations Order (DRO) addressing military retirement; Husband did not sign the DRO.
- References to the DRO were crossed out in the signed final decree.
- Husband remained on active duty after divorce; his retirement benefits could increase due to post-divorce service and promotions.
- Husband filed a post-judgment motion to correct or reform the judgment, challenging alleged errors in the decree and DRO and seeking sanctions and attorney’s fees.
- Wife opposed the motion as groundless and sought attorney’s fees and expenses; the trial court denied Husband’s motion and ordered him to pay Wife’s fees and expenses.
- Husband appealed the decree (as related to retirement), the DRO, and the post-judgment fee award.

## Issues

1. Whether the DRO permissibly implemented the decree’s division of military retirement or instead altered the substantive property division by using an improper calculation method.
2. Whether the DRO could designate Wife as the former-spouse beneficiary under the Survivor Benefit Plan (SBP) when the decree did not expressly award SBP benefits.
3. Whether the trial court abused its discretion by awarding Wife attorney’s fees and expenses in connection with the post-judgment motion.

## Decision

- The final decree of divorce was affirmed.
- The order awarding Wife attorney’s fees and expenses was affirmed.
- The DRO was reversed and remanded because it did not conform to the decree and exceeded the DRO’s implementing function.

## Legal Principles

- A domestic relations order entered after a divorce decree may implement and enforce the decree’s property division but may not vary, enlarge, or diminish the substantive division of property.
- For defined-benefit retirement interests, Texas law applies the *Berry* framework to prevent an unawarded sharing of post-divorce increases attributable to continued service or promotion.
- Survivor benefits under an SBP are a distinct property interest; a post-decree order may not award SBP rights absent an express award in the decree.
- In family cases, a trial court has discretion to award reasonable attorney’s fees and expenses incurred in post-judgment motion practice; such an award is reviewed for abuse of discretion and is not invalid merely because it is not labeled as a sanction.

## Conclusion

The appellate court upheld the agreed divorce decree and the post-judgment attorney’s fee award, but it reversed and remanded the military-retirement DRO because it improperly modified the decree by miscalculating the community interest and by adding SBP beneficiary rights not granted in the decree.


Hicks v. Hicks, 348 S.W.3d 281 (Tex. App.—Houston [14th Dist.] 2011)