## IN THE SUPREME COURT OF TEXAS

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### No. 17-0155

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### B ART 

### D ALTON 

### , P ETITIONER 

### ,

v. 

### C AROL 

### D ALTON 

### , R ESPONDENT

══════════════════════ ════════════════════ O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE T WELFTH D ISTRICT OF T EXAS

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J USTICE L EHRMANN , concurring.
For years, Texas was the only state in the nati on to reject court-ordered alimony as contrary to public policy. See Cameron v. Cameron , 641 S.W.2d 210, 218 n.7 (Tex. 1982). Unsurprisingly, the state was roundly criticized for declining to enact “even the most limited of spousal maintenance statutes” notwithstanding the “v ery real hardships” caused by the policy. See, e.g. , James W. Paulsen, Remember the Alamo[ny]! The Unique Texas Ban on Permanent Alimony and the Development of Community Property Law , 56 L AW & C ONTEMP

. P ROBS . 7, 8 (Spring 1993). In 1995, the Texas Legislature finally reversed course by enacting wh at is now codified as Texas Family Code chapter 8, opening the door fo r court-ordered main tenance under limited circumstances. Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 10.02, 1995 Tex. Gen. Laws 3543, 3577–80, recodified by Act of Apr. 7, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 8, 34–37. In 2001, the Legislature strengthened chapter 8 by enacting provisions allowing for2 enforcement of spousal maintenance orders by income withholding. Act of May 22, 2001, 77th Leg., R.S., ch. 807, § 1, 2001 Tex. Gen. Laws 1574, 1578–86 (codified as T EX
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. C ODE §§ 8.101–.305). In this case, we are presented with a Texas di vorce decree giving full faith and credit to an Oklahoma order approving a spousal maintenan ce agreement between Ba rt and Carol Dalton. After Bart fell behind on his maintenance paymen ts, Carol sought to enfo rce the order by income withholding and by an assignment of Bart’s retire ment benefits. The Cour t holds that Carol is entitled to neither of these enforcement mechanis ms. While I agree with that result under the circumstances of this case, I write separately to clarify my views on a spouse’s ability to enforce spousal maintenance obligations to the extent th ey qualify as such under chapter 8 of the Family Code. I. Income Withholding I agree with the Court that Texas law authorizes income w ithholding only to enforce a court-ordered obligation that qualif ies as spousal maintenance under chapter 8. I also agree that in this case, Carol has made no effort, at any stag e of the proceedings, to allege or prove that any portion of the ordered spousal supp ort so qualifies. Because of th at failure, the Court does not address whether a party who has been awarded agreed spousal s upport under another state’s law, but seeks enforcement in Texas, should be given the opportunity in the enforcement proceedings to show that some or all of th e ordered maintenance is eligible for income withholding. I would affirmatively recognize that the en forcing party has that opportunity. The Family Code expressly pr ovides that the “court may order that income be withheld from the disposable earnings of the obligor in a proceeding in which there is an agreement for3 periodic payments of spousal maintenance under the terms of this chapter vo luntarily entered into between the parties and approved by the court.” T EX
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. C ODE § 8.101(a-1). However, the “court may not order that income be withheld . . . to the extent that an y provision of an agreed order for maintenance exceeds the amount of peri odic support the court could have ordered under this chapter or for any period of maintenance beyond the period of maintenance the court could have ordered under this chapter.” Id. § 8.101(a-2). Implicit in this language is the directive that
courts may order that income be withheld “to the exte nt” that the agreed spousal maintenance could have qualified under chapter 8. This is consistent with In re Green , in which we analyzed similar statutory limitations on enforcing agreed spousal maintenance by cont empt. 221 S.W.3d 645, 648 (Tex. 2007) (discussing
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. C ODE § 8.059(a)). In Green , we held that a maintenance obligation is punishable by contempt “only if it meets Chap ter Eight’s other requirements.” Id. (emphasis removed). That is, “one spouse’s voluntary agr eement to support the other, to the extent it exceeds a legal duty , is a contractual debt that cannot be enforced by contempt.” Id. (emphasis added). The logical corollary to this statement is that, to the extent a spouse’s voluntary agreement to support the other does not exceed a legal duty, it may be enforced by both contempt and income withholding. Accordingly, I would hold that, upon proof at an enforcement hearing th at a party qualified for spousal maintenance under chapter 8 at the time of the divorce, a judgment for arrearages on a maintenance agreement is enforceable by income w ithholding or contempt “to the extent” that the agreement does not exceed what could have been orde red under that chapter. In turn, I respectfully disagree with any implication that such information mu st be either in the decr ee or in the record at the time of the divorce, as I belie ve the parties should be given th e opportunity to li tigate this issue4 at the enforcement hearing. Otherwise, as a prac tical matter, a party atte mpting to enforce an outof-state spousal maintenance order or agr eement in Texas could never do so by income withholding or contempt because such orders or agreements are simply not entered with another state’s law in mind. II. Retirement Benefits The Court holds that the trial court erred in entering a qualified domestic relations order (QDRO) assigning Carol additional interests in Ba rt’s retirement accounts to satisfy his alimony arrearages. Because Carol has never argued that any portion of Bart’s su pport obligation qualifies as spousal maintenance under chapter 8, I agree with the Court that it is enforceable in Texas only as a contract and that Texas la w does not authorize satis faction of those arrearages via a QDRO. However, in so holding, the Court indicat es that Texas law authorizes a QDRO only to effectuate the property division in a divorce de cree. To the extent the Court holds that QDROs may not be used to enforce delinquent spousal maintenan ce and child support oblig ations imposed by the decree—a position contrary to that taken by family-law commentators in this State and the overwhelming majority of courts in othe r jurisdictions—I respectfully disagree. As the Court explains, federal law genera lly prohibits assignmen t or alienation of retirement benefits and preempts state law to the contrary. 29 U.S.C. §§ 1056(d)(1), 1144(a). However, QDROs are exempt from this prohibition. See id. § 1056(d); Boggs v. Boggs , 520 U.S. 833, 846 (1997) (noting that QDROs “are exempt from both the pe nsion plan anti-alienation provision and ERISA’s general pre-emption claus e” (citations omitted)). ERISA defines a QDRO as “a domestic relations order” that “creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternat e payee the right to, receive all or a portion of the benefits payable5 with respect to a participant under a plan,” a nd that meets various other technical statutory requirements. 29 U.S.C. § 1056(d)(3)(B )(i), (C), (D). In turn, a “d omestic relations order” is “any judgment, decree, or order (inclu ding approval of a property settle ment agreement)” that “relates to the provision of child support, alimony payments, or marital prop erty rights to a spouse, former spouse, child, or other dependent of a particip ant” and “is made pursuant to a State domestic relations law (including a community property law).” Id. § 1056(d)(3)(B)(ii). The Court concludes that Texas law does not explicitly authorize a QDRO for purposes other than enforcing a property division in the d ecree. The Court in turn implies that a Texas court’s order assigning retirement benefits for any other purpose—including enforcement of child support or spousal maintenance under chapter 8—woul d not be made “pursuant to a State domestic relations law” and would not qualify even as a do mestic relations order under ERISA, let alone a qualified domestic relations orde r. I respectfully disagree. First, I disagree that the “State domestic relations law” to which ERISA refers is a law authorizing a QDRO. Rather, a “State domestic relations law ( including a community property law ),” id. (emphasis added), is necessar ily the law giving rise to the underlying right the party is seeking to enforce through a QDRO, i.e., child s upport, alimony, or property division. That is, a Texas order qualifies as a domestic relations or der under ERISA so long as the order relates to child support, alimony, or property division that is authorized by state law. See Stinner v. Stinner , 554 A.2d 45, 47–48 (Pa. 1989) (noting that the judgme nt for past-due alimony that the wife was attempting to enforce by garnis hing the husband’s pension was “made pursuant to the decisional domestic relations la w of Pennsylvania”).6 That said (and ERISA aside), I agree with th e Court that a judgment for child support or spousal maintenance, like any other judgment, cannot be enforced in Texas in a manner that violates Texas law. 1 However, enforcing such a judgment vi a attachment of retirement benefits is fully in accordance with Texas law. Although re tirement benefits are generally exempt from attachment for the satisfaction of debts, T EX
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. C ODE § 42.0021, Texas treats both child support and spousal maintenance obligations as materially different from traditional debts. For example, the Texas Constitution broadly prohibits imprisonment for debts, T EX
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. art. I, § 18, but this prohibition does not apply to child support obligations or to court-ordered spousal maintenance obligations under chapter 8. In re Green , 221 S.W.3d at 647. Similarly, Texas law generally exempts wages from seizure or attachment. T EX
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. C ODE § 42.001(b)(1). But income w ithholding is expressly availabl e as a mechanism to enforce child support and spousal ma intenance obligations. T EX
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. C ODE §§ 8.101–.102 (allowing income withholding fo r both current spousal maintenance obligations and maintenance arrearages); id. §§ 158.001, .003 (allowing income withholding for both current child support obliga tions and support arrearages). As mentioned above, the Property Code la rgely exempts retire ment benefits from attachment or seizure “for th e satisfaction of debts.” T EX
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. C ODE § 42.0021(a). But this prohibition does not apply to a ch ild support or spousal maintenan ce obligation for the same reason the prohibition against imprisonmen t for debts does not apply: such an obligation is not a “debt”;

1 While ERISA allows states to enforce child support, alimony, and property divisions authorized under the enforcing state’s law via assignment of re tirement benefits (as long as the domestic relations order is “qualified” by meeting technical requirements), it does not require states to do so. That is, if Texas law affirmatively prohibited enforcement of child support and spousal maintenance orders by assigning retirement benefits, ERISA would have no effect on such a law.7 it is a “legal duty arising out of the status of the parties.” Green , 221 S.W.3d at 647 (quoting Ex Parte Hall , 854 S.W.2d 656, 658 (Tex. 1993)). The Illinois Court of Appeals relied on this distinction in In re Marriage of Thomas , explaining that “when a former spouse seeks the assignment of the plan participant’s retire ment accounts after obtai ning a judgment for a maintenance and child support arrearage, the spouse is not a typical creditor as that term is used in [the Illinois version of Texas Property Code section 42.0021].” 789 N.E.2d 821, 831 (Ill. App. Ct. 2003). Accordingly, the court of appeals held that the trial court could enter a QDRO assigning the participant’s retirement and pension benefits to satisfy such a judgment. Id. Courts in other jurisdic tions have held similarly. For ex ample, the Iowa Court of Appeals, finding “no established prohibition against an assignment [of retirement benefits to satisfy pastdue alimony] under state law,” conclu ded that the “question whether to permit the assignment rests with the particular facts of each case, and the equi table powers of the court in dissolution matters.” In re Marriage of Bruns , 535 N.W.2d 157, 162–63 (Iowa Ct. App. 1995). The Indiana Court of Appeals cited Bruns approvingly in finding a QDRO “to be an appropriate mechanism for enforcement of [the] support arrearage judgment.” Hogle v. Hogle , 732 N.E.2d 1278, 1284 (Ind. Ct. App. 2000). 2 I agree with these well-reasoned decisions a nd believe Texas law similarly allows for enforcement of child support and chapter 8 spous al maintenance obligations via a QDRO that complies with ERISA’s requirements. 3 Any conclusion to the contra ry would require us to ignore

2 Of course, as a general matter, “every court having jurisdiction to render a judgment has the inherent power to enforce its judgments. That power is part of the court’s jurisdiction, and the court may employ suitable methods to enforce its jurisdiction.” Arndt v. Farris , 633 S.W.2d 497, 499 (Tex. 1982) (citations omitted).
3 The Court distinguishes these out-of-state cases as relying on “state law [that] allowed the garnishment of retirement benefits.” Ante at ___. But with the exceptio n of Idaho, none of the statut es the Court cites specifically8 Texas’s treatment of such obligations in comparis on to traditional debts a nd would interfere with Texas policy favoring their enforcement. Again, Texas Propert y Code section 42.0021’s exemption of retirement accounts from attachment, execution, and seizure spec ifically applies to the satisfaction of debts. Neither spousal maintenance nor child support is merely a debt under Texas law. By contrast, the Court, finding no Texas statut e affirmatively discussing the use of QDROs for a purpose unrelated to effectuatin g a property division, concludes that such orders are therefore not authorized by Texas law. The Court cites chap ter 9, subchapter B of the Family Code, entitled “Post-Decree Qualified Domestic Relations Or der,” to support its position. Section 9.101 provides: (a) Notwithstanding any other provision of this chapter, the court that rendered a final decree of divorce or annul ment or another final order dividing property under this title retains continui ng, exclusive jurisd iction to render an enforceable qualified domestic relations order or similar order permitting payment of pension, retirement plan, or other em ployee benefits divisible under the law of this state or of the United States to an alternate payee or other lawful payee. (b) Unless prohibited by federal law, a suit seeking a qualified domestic relations order or similar order under this section applies to a previously divided pension, retirement plan, or other employee benefit divisi ble under the law of this state or of the United States, whether the plan or benefit is private, state, or federal.
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. C ODE § 9.101. The statute goes on to obligate courts to “liberally construe this subchapter to effect payment of retirement bene fits that were divided by a previous decree.” Id. § 9.105.

authorize enforcement of alimony via attachment or garnishment of retirement benefits. Rather, they speak generally of paying such obligations from the property of the other spouse or utilizing the mechanisms available for enforcement of judgments. See id. at nn.19–20 (citing Idaho, Illinois, Indiana, Missouri, and Pennsylvania statutes regarding enforcement of spousal maintenance obligations).9 The Court reads this language to limit a court’s authority to enter a QDRO for a purpose other than effecting payment of previously divided benefits. 4 But subchapter B contains no language limiting the authority a court may otherw ise have (under both ERIS A and state law) to enter an order permitting attachment of retirement benefits. That is, no thing in subchapter B prohibits a court from enforcing child support and spousal maintenance via such an attachment. Because I believe Texas law otherwise provides c ourts with that authority, I find the Court’s reading of subchapter B overly restrictive. It is true, as the Court notes, that Texas cour ts have no power to “ame nd, modify, alter, or change the division of property made or approved in the decree of divorce or annulment.” Id. § 9.007(a). But garnishment of retirement benefits awarded to the payee spous e in order to enforce a child support or spousal maintena nce obligation does nothing to the decree’s di vision of property. Indeed, almost every court to address the issue has held that using a QDRO for this purpose does not amount to an improper modification of th e decree’s adjudication of property rights. E.g. , Hogle , 732 N.E.2d at 1284; Baird v. Baird , 843 S.W.2d 388, 392 (Mo. Ct. App. 1992); see also In re Marriage of Thomas , 789 N.E.2d at 831 (holding that “ERISA permits a trial court’s entry of a QDRO to assign pension and other retirement benefits to a former spouse to satisfy a judgment for past-due maintenance and child support payments”). 5 I agree with these decisions. A court does not redivide marital property by enforcing a ju dgment for delinquent child support or spousal maintenance against the payee s pouse’s retirement benefits. See Hogle , 732 N.E.2d at 1284; cf.

4 The Court recognizes that section 154.003 broadly authorizes a court to order that child support be paid by “the setting aside of property to be administered for th e support of the child as sp ecified in the order.” T EX
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. C ODE § 154.003(4). It is not clear to me whether the Court reads this statute to authorize garnishment of retirement benefits to enforce child support arrearages, notwithstanding chapter 9.
5 The Virginia Supreme Court decided otherwise in what has been called a “rogue” decision. Brett R. Turner, 2 E QUITABLE D ISTRIBUTION OF P ROP

. 3d § 6:19 (Nov. 2017) (citing Hoy v. Hoy , 510 S.E.2d 253 (Va. 1999)).10 Am. Tel. & Tel. Co. v. Merry , 592 F.2d 118, 124 (2d Cir. 1979) (“The purpose of [ERISA’s] proscription on alienation and as signment is to protect an em ployee from his own financial improvidence in dealings with third parties. The provision is not intended to alter traditional support obligations but rather to assure that the empl oyee and his beneficiar ies reap the ultimate benefits due upon retirement.”). Such assign ment, like income withholding and contempt, is merely a mechanism to ensure satisfacti on of a legal duty that is already owed. Finally, I note that Texas commentators have understood Texas law to authorize the use of QDROs to enforce child support a nd spousal maintenance orders. See, e.g. , Charla H. Bradshaw, Retirement and Employment Benefits , 2016 T EXAS B AR CLE A DVANCED F AM

. L. ch. 19, at 37–38 (advising the use of QDROs in en forcing orders for child support and spousal maintenance); 33
J OHN F. E LDER , T EXAS P RACTICE : H ANDBOOK OF T EXAS F AMILY L AW § 6.3 (2017) (“[A] qualified domestic relations order concerni ng retirement benefits can be used to enforce alimony and child support if plan payments are actually being made .”). My conclusions on this issue are thus consistent with expert views on the subject. III. Conclusion Again, I ultimately join the result the Court re aches in this case, but I disagree with several of the Court’s statements, both express and implie d, with regard to enforcing spousal maintenance in Texas. Because the respondent never argued or demonstrated that she qualified for spousal maintenance under Texas Family Code chapte r 8, I concur in th e Court’s judgment.

________________________________ Debra H. Lehrmann Justice OPINION DELIVERED: June 29, 2018