COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DIANA DOUGLAS,

 Appellant/Cross-Appellee,

v.

EDDIE G. DOUGLAS,

 Appellee/Cross-Appellant.

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No. 08-12-00259-CV

Appeal from the

383rd Judicial District Court

of El Paso County, Texas 

(TC# 88-7957)

O P I N I O N

In this appeal from the trial court’ s post-divorce clarification order, both Diana Douglas 

and Eddie G. Douglas challenge the trial court’s division of Eddie’s disposable military retired

pay. Diana argues the division is inconsistent with the unambiguous language in the decree. 

Eddie raises the same complaint, but also contends the trial court erred in awarding Diana an 

arrearage judgment and in failing to award him attorney’s fees and costs and to file findings of fact 

and conclusions of law. For the reasons discussed below, we agree the trial court improperly 

calculated the percentage of Eddie’s military retired pay to which Diana is entitled and the amount 

of arrearages owed. We, therefore, affirm in part, reverse and render in part, and reverse and 

remand in part.
2

FACTUAL AND PROCEDURAL BACKGROUND

Eddie and Diana married in January 1974 and divorced in September 1989.

1

 At the time 

of the divorce, Eddie was a Captain in the United States Air Force with 150 months of creditable 

service. The decree apportioned Eddie’s military retirement pay as follows: 

[T]he Court ORDERS that such military retirement benefits shall be divided and 

distributed as follows: [Diana] is invested in one-half (1/2) of [Eddie]’s ‘Gross 

Retired Income’ (military retired pay) as her community property interest share of 

[Eddie]’s military retired pay, if, and as received by [Eddie]. In the event [Eddie] 

retires from the United States Air Force, [Diana] shall have a community property 

interest share of one-half (1/2) times [Eddie]’s Air Force retirement, based upon a 

formula of one-half (1/2) times a fraction of which the numerator (150) is the 

number of months that the parties were married during which time [Eddie] had 

credible time in the United States Air Force toward retirement, prior to the date of 

divorce (150 months), and the denominator of which is the number of months that 

[Eddie] shall have of credible service toward his military retirement, times gross 

retirement benefits receivable, if [Eddie] were eligible for retirement at the time of 

the divorce, at his present rank of Captain.

Neither Eddie nor Diana appealed the divorce decree, and the record does not contain any

post-judgment motion challenging the decree.

After the divorce, Eddie remained in the Air Force. In March 2009, he retired from the 

Air Force with the rank of Colonel. By then, Eddie had accrued 372 months of creditable service. 

Upon his retirement, Eddie began receiving $7,719.00 in gross retirement pay per month. 

Shortly thereafter, Diana applied to the Defense Finance and Accounting Service (DFAS) 

for her share of Eddie’s military retirement and submitted a certified copy of the divorce decree in 

support of her application. In July 2009, DFAS notified Diana that it could not approve her 

application because the language in the decree dividing Eddie’s retired pay was faulty. DFAS 

advised Diana that this deficiency could be remedied if she obtained a clarifying order that: (1) 

awarded either a fixed sum or a percentage of Eddie’s retirement pay; or (2) that provided a 

 

1 The divorce decree was not signed until May 1990.
3

formula “wherein the only missing element is the denominator (member’s years of service or total 

points earned by a reservist).”

In October 2009, Diana moved to clarify the divorce decree and to enforce the division of 

property. Specifically, Diana moved for an order dividing Eddie’s military retirement pension 

benefits , for an award of arrearages for underpayments, including pre- and post-judgment interest,

and for an award of attorney’s fees. After answering, Eddie filed a counter-motion for 

clarification.

In March 2011, the trial court held an evidentiary hearing on the parties’ competing 

motions.

2

 After taking the matter under advisement, the trial court issued a clarification order in 

July 2012. The order provides, in relevant part, that:

The former spouse, Ms. Diana Douglas, is entitled to receive 4.096% of the 

Member, Mr. Eddie Granger Douglas’, Disposable Military Retired Pay. This 

interest in Mr. Eddie Granger Douglas’s retirement includes any future costs of 

living or other benefits which are not derived as a result of future services of the 

Member, Mr. Eddie Granger Douglas, and Ms. Diana Douglas is entitled to any 

future costs of living or other benefits which are not derived as a result of future 

services of the Member, Mr. Eddie Granger Douglas, absolutely and forever.

It is also ordered that because the Member, Mr. Eddie Granger Douglas, has not 

paid Ms. Diana Douglas her proportion of his military retired pay since 2009, this 

Court finds and orders that he owes Ms. Diana Douglas an arrearage in the amount 

of $9,877.54. [Emphasis added].

The order does not award attorney’s fees to any party.

Although the trial court’s order contained findings of fact and conclusions of law, they 

were rudimentary in nature and failed to explain the basis for the trial court’s decision. 

Consequently, both parties timely requested findings of fact and conclusions of law, but none were 

 

2 This was the second hearing on the matter. The trial court first heard the matter in August 2010 and signed a 

clarification order approximately three months later. But the trial court granted Diana’s request to reconsider the 

matter de novo.
4

issued. Eddie, but not Diana, timely filed a notice of past due findings and conclusions. Despite 

the notice, the trial court failed to file the requested findings and conclusions.

MILITARY RETIREMENT PAY

We begin by addressing the parties’ contentions that the trial court incorrectly calculated 

the percentage of Eddie’s military retirement pay to which Diana is entitled. Although both 

parties contend the trial court used the wrong formula in calculating that percentage, they urge 

different formulas.

In her sole issue, Diana insists the trial court should have used the following formula:

50% ×

150 months of service during marriage

150 months of service credited toward marriage

× gross retirement benefits receivable

According to Diana the dollar amount corresponding to Eddie’s “gross retirement benefits 

receivable” had he been entitled to retire on the date of divorce at his then-rank of Captain is 

$2,808.60. As stipulated by the parties, this amount corresponds to the final base pay of a Captain 

with 150 months of longevity on September 14, 1989. Thus, under Diana’s formula, she is 

entitled to $1,404.03 per month (50 percent of $2,808.60). In his second-cross issue, Eddie is 

adamant the trial court should have used the following formula:

50% ×

150 months of service during marriage

372 months of service credited toward marriage × 23.7500% × $2,808.60 (base pay of Captain at divorce)

$7,719.00 (total monthly amount received based on 372 months of service)

Under Eddie’s formula, Diana is entitled to $134.48 per month (1.7421 percent of $7,719.00—the 

gross retired pay Eddie began receiving upon retirement based on 372 months of creditable 

service).

We agree the trial court erred in concluding Diana is entitled to 4.096 percent of Eddie’s 

“Disposable Military Retired Pay.”
5

Standard of Review

We review the trial court’s ruling on a post-divorce motion for clarification or enforcement 

of a divorce decree for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990)(per curiam). A trial court abuses its discretion when it acts arbitrarily or unreasonable or 

without reference to any guiding rules or principles. Id.

When, as here, the trial court makes no separate findings of fact or conclusions of law, we 

must draw every reasonable inference supported by the record in favor of the trial court’s 

judgment. Id. But when, as here, the appellate record contains the reporter’s and clerk’s records,

the trial court’s implied findings and conclusions are not conclusive. BMC Software Belgium, 

N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).

Applicable Law

A trial court may enter orders of enforcement and clarification to enforce or specify more 

precisely a divorce decree’s property division. TEX.FAM.CODE ANN. § 9.006(a)(West Supp. 

2014). But a trial court is prohibited from amending, modifying, altering, or changing the 

division of property originally set out in the decree. TEX.FAM.CODE ANN. § 9.007(a)(West 2006).

In interpreting the language of a decree, we construe the decree as a whole to harmonize 

and give effect to the entire decree. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009)[quotation 

marks omitted]. If the decree is unambiguous, we interpret it by adhering to the literal language 

used in the decree. Id. If the decree is ambiguous, however, we interpret it by reviewing both the 

decree in its entirety and the record. Id. Whether a divorce decree is ambiguous is a question of 

law. Id. at 901-02 [quotation marks omitted].

Apportionment and Valuation of Community Interest
6

The divorce decree employs the following formula in awarding Diana a community 

interest in Eddie’s gross retired pay:

50% ×

150

"the number of months that [Eddie] shall have of credible service toward his military retirement"

× "gross retirement benefits receivable, if [Eddie] were eligible for retirement at the time of the divorce,

at his present rank of Captain"

Eddie had not retired from the Air Force when he and Diana divorced in 1989.

Since 1983, Texas law has provided a formula for determining the extent and value of the 

community interest in an employee spouse’s defined-benefit plan, when the latter began plan 

participation during marriage but retired after divorce. See Berry v. Berry, 647 S.W.2d 945, 

946-47 (Tex. 1983). This formula is known as the Berry formula. Under the Berry formula, the 

extent of the community’s interest is determined by dividing the number of months married under 

the plan by the number of months employed under the plan at the time of divorce and the value of 

the interest is determined as of the date of the divorce rather than as of the date of retirement. 

Berry, 647 S.W.2d 945, 946-47. The Berry formula is the formula employed in the divorce 

decree. When applied to Eddie’s service record, the formula yields the following: 

50% ×

150 (months married under the plan)

150 (months employed under the plan at divorce)

× gross retirement benefits receivable by Captain at divorce

or

50% × gross retirement benefits receivable by Captain at divorce

Diana agrees the decree employs the Berry formula. Eddie does not. He argues “[t]he 

absence of the ‘150’ in the denominator to match the one in the numerator tracks the legal genre in 

1989 and follows the Taggart formula, but with a limitation—‘if Respondent/Husband were 
7

eligible for retirement at the time of the divorce, at his present rank of Captain’—to comply with 

the dictate of Berry.” In other words, Eddie posits that the extent of Diana’s community interest 

is governed by the fraction formula established in Taggart v. Taggart, 552 S.W.2d 422 (Tex. 

1977), whereas the value of her interest is governed by the Berry formula. Under the Taggart

formula, the extent of the non-member spouse’s community interest in retirement benefits is 

calculated by dividing the number of months married under the plan by the total number of months

employed at retirement. Thus, when applied to his service record, Eddie’s purported hybrid 

Taggart-Berry formula yields the following: 

50% ×

150 (months married under the plan)

372 (months employed under the plan at retirement)

× gross retirement benefits receivable by Captain at divorce

or

20.16129032258065% × gross retirement benefits receivable by Captain at divorce

Eddie’s argument is unavailing for two reasons. First, and more importantly, the Berry 

court, though expressly declining to overrule Taggart, significantly altered the Taggart formula. 

See Shanks v. Treadway, 110 S.W.3d 444, 446 n.3 (Tex. 2003)(recognizing that Berry altered the 

apportionment and valuation portions of the Taggart formula); Wilson v. Uzzell, 953 S.W.2d 384, 

390 (Tex.App--El Paso 1997, no pet.)(same). Second, Eddie cites no authority on point, and we 

have found none, to support the proposition that the decree uses a hybrid Taggart-Berry formula to 

divide his military retired pay. Further, the portions of the legal commentaries Eddie cites in 

support of this proposition do not aid him. See David R. McClure & Larry H. Schwartz, Federal 

Retirement Benefits, STATE BAR OF TEXAS, ADVANCED FAMILY LAW COURSE, in 

Volume 2, Chapter V, pgs. 36-40 (1989)(discussing whether federal law limits the award of 
8

retirement benefits to disposable pay rather than gross pay in light of Grier and Mansell v. 

Mansell, 490 U.S. 581, 584, 109 S.Ct. 2023, 2026, 104 L.Ed.2d 675 (1989)); John Compere, Texas 

Family Law Overview and Update, State Bar of Texas, 8th Annual General Practice Institute, Tab 

F, pgs. 11-12 (May 1985)(discussing division of retirement benefits under Texas law, particularly 

under the Taggart and Berry formulas).

Eddie also contends “‘372’ can be the only logical denominator [because] if the 

denominator were ‘150,’ as Diana argues, that part of the hypothetical award would be superfluous 

since the number would then be a known commodity.” In hindsight, the trial court should have 

fixed the denominator at 150. But that the trial court failed to do so does not mean the decree did 

not employ the Berry formula. To accept Eddie’s proposed formula is to run afoul of the principle 

espoused in Berry that the community’s interest in a retirement plan must correspond to the 

percentage of the plan accrued during marriage. Eddie’s formula would impermissible dilute 

Diana’s community interest accrued during the parties’ marriage.

In sum, the decree is governed by the Berry formula, not the Taggart formula or some 

hybrid of it.

Hypothetical Gross Retired Pay of Air Force Captain at Time of Divorce

When the Berry formula is applied to apportion military retirement benefits upon divorce, 

“the valuation of the community’s interest in such benefits is to be based on the retirement pay 

which corresponds to the rank actually held by the service spouse on the date of the divorce.” 

Grier v. Grier, 731 S.W.2d 931, 932 (Tex. 1987)

3

. Here, it is undisputed that Eddie was a Captain 

 

3 This Court recongnized that Grier was overruled, in part, by Mansell. See Chandler v. Chandler, 991 S.W.2d 367, 

398 (Tex.App.--El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054, 120 S.Ct. 1557, 146 L.Ed.2d 462 

(2000)(concluding Mansell explicitly rejected the Texas Supreme Court’s interpretation of the USFSPA in Grier that 

the Act does not limit a trial court from treating total retired pay as community property). Grier, however, has not 
9

with 150 months of creditable service when the parties divorced. It is also undisputed that the 

Uniformed Services Former Spouses Protection Act (USFSPA)

4 was in effect in 1989, and the 

decree’s language indicates Eddie’s gross retired pay should be divided in accordance with 

USFSPA:

It is the intention of this Decree to comply in all respects with the 

Uniformed Services Former Spouses’ Protection Act, 10 USC, Section 1401, et 

seq. which would enable the wife to receive directly from the United States Air 

Force that portion of the Respondent/Husband’s ‘Gross Retirement Income’

awarded to Petitioner/Wife by this Decree.

Because Eddie was not retired when he and Diana divorced, her interest in his gross retired pay is 

based on his hypothetical gross retired pay, which is calculated as if he had retired at the time of 

their divorce. See Guidance on Dividing Military Retired Pay, Garnishment Operations, Defense 

Finance and Accounting Service 14, Revised Jan. 29 2012 (available at 

http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html)(“The hypothetical retired pay 

amount is a fictional computation, in that the member often does not have the required 20 years of 

creditable service necessary to be eligible to receive retired pay on the date his or her retired pay is 

divided. Hence, we are computing a retired pay amount as if the member would have been 

 

been expressly overruled and remains good law for the proposition that, for purposes of apportioning military 

retirement benefits upon divorce under the Berry formula, the service member’s retired pay should be calculated as of 

the date of divorce, rather than the date of retirement. See Hicks v. Hicks, 348 S.W.3d 281, 287 (Tex.App.--Houston 

[14th Dist.] 2011, no pet.)(citing Grier for this proposition); Caracciolo v. Caracciolo, 251 S.W.3d 568, 572 

(Tex.App.--San Antonio 2007, no pet.)(same).

4 USFSPA grants the States the authority to treat all disposable retired pay as marital property. See 10 U.S.C.A.

§ 1408(c)(1)(West 2010). The Act was adopted by Congress in 1982 in response to the Supreme Court’s decision in 

McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), holding that State courts had no 

jurisdiction under any circumstances to treat non-disability retired pay of a military member as marital property upon 

divorce. Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989); see Peter Mallory, Military 

Retired Pay and Divorce: Congress Retires McCarty v. McCarty--Is That Enough?, 40 WASH. & LEE L. REV. 271 

(1983). By its terms, USFSPA took effect on February 1, 1983, but it provided that courts had the ability to effectuate 

divisions of military retired or retainer pay as of June 25, 1981. Section 1006 of Pub.L. 97-252, as amended Pub.L. 

98-94, Title IX, § 941(c)(4), Sept. 24, 1983, 97 Stat. 614;  Pub.L. 98-525, Title VI, § 645(b), Oct. 19, 1984, 98 Stat. 

2492.
10

eligible to retire on that date.”).

Under USFSPA, the hypothetical retired gross pay award corresponding to the service 

member’s rank on the date of divorce is computed by multiplying the member’s retired pay base 

by the retired pay multiplier. 10 U.S.C.A. § 3991(a)(1)(A)-(B)(West 2010). For service 

members who entered the military before September 8, 1980, the retired pay base is the member’s 

final basic pay. 10 U.S.C.A. § 1406(c). Since Eddie entered the Air Force before that date, this 

method is used. The parties agree Eddie’s retired pay base is $2,808.60—the final basic pay of a 

Captain with 150 months of longevity on September 14, 1989. The retired pay multiplier is the 

product of 2.5 percent of the member’s years of creditable service. 10 U.S.C.A.

§ 1409(b)(1)(A)-(B). Eddie’s 150 months of creditable service is equivalent to 12.5 years.5 

Based on these figures, Eddie’s retired pay multiplier is .3125 (12.5 years multiplied by 2.5

percent).

Applying the formula, Eddie’s hypothetical retired gross pay is $877.00 per month 

(Eddie’s retired pay multiplier of .3125 (12.5 years multiplied by 2.5%) multiplied by his retired 

pay base ($2,808.60)).6 In other words, if Eddie had retired when the parties divorced, his 

monthly retired gross pay would have been $877.00. As discussed above, Diana’s community 

interest in Eddie’s military retirement benefits is 50 percent. This interest should be applied to 

Eddie’s hypothetical retired gross pay of $877.00. Accordingly, Diana’s award is $437.50 per 

month.

 

5 To determine a member’s years of service, each full month of service that is in addition to the number of full years 

creditable to the member shall be credited as 1/12 of a year; and any remaining fractional part of a month shall be 

disregarded. 10 U.S.C.A. § 1405.

6 Because Eddie’s hypothetical gross retirement pay is not a multiple of $1, it is rounded down to the next lower 

multiple of $1. 10 U.S.C.A. § 1412 (West 2014).
11

Diana asserts Eddie’s hypothetical gross retired pay is his final basic pay of $2,808.60. 

Thus, she argues applying the Berry formula entitles her to $1,404.03 (50 percent of $2,808.60) 

per month. But Diana is incorrect. Eddie’s hypothetical gross retired pay must be calculated in 

accordance with USFSPA. Accordingly, Diana is not entitled to half of $2,808.60.

Eddie agrees his hypothetical gross retired pay must be calculated in accordance with 

USFSPA. He claims, however, his retired pay multiplier must be further reduced from 31.25 

percent to 23.75 percent as required by federal law to account “for the 90 months that [he] was 

short of the minimum 240 needed for retirement eligibility.” The federal law to which Eddie cites 

is the Temporary Early Retirement Authority (TERA), enacted in 1992 and designed to “provide 

the Secretary of Defense a temporary additional force management tool with which to effect the 

drawdown of military forces through 1995.”7 National Defense Authorization Act for Fiscal 

Year 1993, Pub.L. No. 102-484, div. D, tit. XLIV, § 4403(a), 106 Stat. 2315, 2702 (1992) 

(codified at 10 U.S.C.A. § 1293 note). TERA, among other things, authorized the Secretaries of 

the military branches to allow service members with more than fifteen but less than twenty years of 

total active duty service to apply for early retirement. See id. at § 4403(b). In pertinent part, the 

statute provided that:

(e) Computation of Retired Pay. Retired or retainer pay of a member retired (or 

transferred to the Fleet Reserve or Fleet Marine Corps Reserve) under a provision 

of title 10, United States Code, by reason of eligibility pursuant to subsection (b) 

shall be reduced by 1/12th of 1 percent for each full month by which the number of 

months of active service of the member are less than 240 as of the date of the 

member’s retirement (or transfer to the Fleet Reserve or Fleet Marine Corps 

Reserve).

 

7 The “active force drawdown period” was in effect from the Act’s enactment until December 31, 2001. See

Departments of Defense and Energy Appropriations, Pub.L. No. 106-398 § 571(a)(2)(codified at note 10 U.S.C.A.

§ 1293).
12

Id. at § 4403(e). But TERA is inapplicable for two reasons. First, it was not in effect on 

September 14, 1989, the date of Eddie’s hypothetical retirement. Second, even if TERA were in 

effect, Eddie would have been ineligible for early retirement because he had fewer than fifteen

years of service.

Disposable Retired Pay

Our discussion, however, does not end here. In order for an award to be enforceable under 

USFSPA, the award must be expressed either as a fixed dollar amount or as a percentage of 

disposable retired pay under 10 U.S.C.A. § 1408(a)(2)(C).8 A percentage award is preferable 

because it protects the non-member spouse’s interest in cost of living allowances. See Caracciolo 

v. Caracciolo, 251 S.W.3d 568, 573 n.3 (Tex.App.--San Antonio 2007, no pet.). Here, the 

divorce decree makes clear that Diana’s one-half interest “includes any future costs of living or 

other benefits which are not derived as a result of [Eddie’s] future services . . . .”9 Obeying the 

decree’s mandate, we will convert Diana’s award to a percentage of Eddie’s actual disposable 

 

8

“Disposable retired pay” is defined as the total monthly retired pay to which a member is entitled less certain 

amounts as applicable. 10 U.S.C.A. § 1408(a)(4).

9 A divorce court may award the non-member spouse her share of any post-divorce cost-of-living allowance in the 

retirement benefit. Limbaugh v. Limbaugh, 71 S.W.3d 1, 16 n.12 (Tex.App.--Waco 2002, no pet.). We note, 

however, that Diana did not seek an award of post-divorce cost-of-living allowances in her petition for clarification 

and enforcement, and there is no indication in the record that the issue was tried by consent or that Diana introduced 

any evidence to support the award of post-divorce cost-of-living allowances. It is well-settled that a trial court is 

without power to grant relief to a party in the absence of pleadings to support that relief. Cunningham v. Parkdale 

Bank, 660 S.W.2d 810, 813 (Tex. 1983).

Notwithstanding the above, Diana is not without recourse. According to DFAS:

[U]nless the court order directs otherwise, we will apply retired pay cost-of-living-allowances 

(COLAs) to the hypothetical retired pay amount up to the member’s actual retirement date to find a 

‘present value’ of the hypothetical retired pay as of the member’s actual retirement date. The 

addition of the COLAs does not result in the former spouse benefiting from the member’s additional 

service time or promotions after the hypothetical retirement date. It simply provides the former 

spouse with the COLA amount he or she would have received had the member actually become 

eligible to receive retired pay on the hypothetical retirement date.

Guidance on Dividing Military Retired Pay, Garnishment Operations, Defense Finance and Accounting Service 14, 

Revised Jan. 29 2012 (available at http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html).
13

retired pay.

Converting Diana’s award requires us to multiply the percentage awarded to her by a 

fraction, the numerator of which is Eddie’s hypothetical gross retired pay and the denominator of 

which is Eddie’s actual gross retired pay. See Guidance on Dividing Military Retired Pay, 

Garnishment Operations, Defense Finance and Accounting Service 15, Revised Jan. 29 2012 

(available at http://www.dfas.mil/garnishment/usfspa/attorneyinstructions.html). Eddie’s 

hypothetical retired gross pay is $877.00, and his retired gross pay at retirement was $7,719.00. 

Applying the formula to these numbers yields:

[50%] ×

$877.00

$7,719.00 = [5.68078766679622%]

Thus, Diana is entitled to 5.68078766679622 percent of Eddie’s disposable retired pay.

In purporting to clarify that Diana is entitled to 4.096 percent of Eddie’s “Disposable 

Military Retired Pay” under the divorce decree, the trial court failed to give effect to the decree’s 

unambiguous language and, in doing so, radically altered Diana’s award. In essence, the trial 

court’s clarification order impermissible modifies the divorce decree. We therefore conclude the 

trial court abused its discretion.

In light of the foregoing, Diana’s sole issue is sustained, in part, and overruled, in part, and 

Eddie’s second cross-issue is sustained, in part, and overruled, in part.

ARREARAGE JUDGMENT

In his third cross-issue, Eddie contends the trial court erred in awarding Diana $9,877.54 in 

arrearages.

10

 We agree. But he also claims “[a]pplication of [his] proferred calculations, and 

 

10 It is clear that the trial court enforced the divorce decree by awarding Diana a money judgment pursuant to Section 

9.010(b) of the Family Code. This section provides that: “If a party did not receive payments of money as awarded 
14

proper credits for monies already paid to Diana, results in an arrearage award of zero dollars.” 

We disagree. 

Eddie retired on or about March 1, 2009. The trial court held the de novo hearing on 

March 16, 2011 but did not render judgment until July 13, 2012. By our calculations, arrearages 

accrued from March 2009 to July 2012. Based on the correct valuation of Diana’s monthly 

award, the total amount of arrearages up to the date of judgment is $17,937.50 ($437.50 multiplied 

by 41 months). Eddie, however, should receive credit for $2,958.46 in payments made to and 

accepted by Diana.11 Accordingly, Diana is entitled to $14,979.04 in arrearages, plus pre- and 

post-judgment interest.

12

Eddie’s third cross-issue is sustained, in part, and overruled, in part.

ATTORNEY’S FEES

In his fourth and final cross-issue, Eddie maintains the trial court should have awarded him 

attorney’s fees and costs pursuant to Section 9.014 of the Family Code because he was the 

prevailing party.13 According to Eddie, he was the prevailing party because the “judgment, while 

 

in the decree of divorce or annulment, the court may render judgment against a defaulting party for the amount of 

unpaid payments to which the party is entitled.” TEX.FAM.CODE ANN. § 9.010(b)(West 2006).

11 Eddie claims he had paid Diana $3,227.42 by the time the trial court presided over the de novo hearing. The record 

indicates Diana accepted and deposited checks worth $2,958.46. The record also indicates Eddie sent Diana two 

checks dated January 31, 2011 and February 28, 2011, each in the amount of $134.48. The record, however, does not 

indicate Diana accepted and deposited these checks.

12 Because Diana sought pre- and post-judgment interest as an element of damages, she is entitled to recover pre- and 

post-judgment interest. DeGroot v. DeGroot, 369 S.W.3d 918, 926-27 (Tex.App.--Dallas 2012, no pet.). 

13 Section 9.014 provides that: 

The court may award reasonable attorney’s fees in a proceeding under this subchapter. The court 

may order the attorney’s fees to be paid directly to the attorney, who may enforce the order for fees 

in the attorney’s own name by any means available for the enforcement of a judgment for debt.

TEX.FAM.CODE ANN. § 9.014 (West Supp. 2014). As one appeals court has observed, Section 9.014 does not require 

that the trial court find a party as the prevailing party to award attorney’s fees under that statute. In re S.E.C., 2009 
15

inaccurate and incomprehensible, was generally in favor of [him].” We disagree.

A prevailing party is one who is vindicated by the judgment rendered on the main issue or 

issues even if not to the extent of his or her original contentions. See In re S.E.C., No. 

05-08-00781-CR, 2009 WL 3353624, at *3 (Tex.App.--Dallas Oct. 20, 2009, no pet.)(mem. op.); 

Hawkins v. Ehler, 100 S.W.3d 534, 544 (Tex.App.--Fort Worth 2003, no pet.). In this case, there 

were two main issues litigated at trial. The first issue was the percentage or amount of Eddie’s 

military retired pay to which Diana is entitled. Although both parties advanced wildly opposing 

figures, the trial court accepted neither in rendering its judgment awarding Diana 4.096 percent of 

Eddie’s “Disposable Military Retired Pay.” Our conclusion that Diana is entitled to 

5.68078766679622 percent rather than 1.7421 percent, as urged by Eddie, vindicates the judgment 

rendered in Diana’s favor. Hence, Diana prevailed on this issue. The second issue was the 

amount, if any, of arrearages. The trial court found in favor of Diana on that issue, awarding her 

$9,877.54. On appeal, we have concluded that Diana is entitled to an even larger award. 

Because the trial court’s judgment vindicates Diana on this issue, she prevailed on it.

In sum, Diana is the prevailing party on both issues. Because Eddie was—and is—not the 

prevailing party, the trial court did not abuse its discretion in failing to award him attorney’s fees 

under Section 9.014.

14

 See In re S.E.C., 2009 WL 3353624, at *3; Hawkins, 100 S.W.3d at 545. 

Eddie’s fourth cross-issue is overruled.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

WL 3353624, at *1. “Rather, by its express language, the statute’s only requirements are that the award be 

‘reasonable’ and in connection with a proceeding to enforce a decree of divorce or annulment providing for a division 

of property.” Id.

14 We review a trial court’s decision to grant or deny attorney’s fees under Section 9.014 for an abuse of discretion. 

In re S.E.C., 2009 WL 3353624, at *1; de la Garza v. de la Garza, 185 S.W.3d 924, 930-31 (Tex.App.--Dallas 2006, 

no pet.).
16

In his first-cross issue, Eddie argues the trial court committed reversible error by failing to 

make the requested findings of fact and conclusions of law. As a general rule, a trial court has a 

mandatory duty to issue findings of fact and conclusions of law when properly requested, and the 

failure to issue them is harmful if an appellant is prevented from properly presenting a case on 

appeal. See TEX.R.CIV.P. 296, 297; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). Eddie 

claims he was harmed because he is “left to guess as to which [of the multiple] theories and 

defenses the trial court relied upon in rendering its decision.” But Eddie does not want us to abate 

the appeal and order the trial court to issue the missing findings and conclusions. Instead, he 

maintains “justice will be best served by this Court determining the correct judgment the trial court 

should have entered based on evidence introduced at trial and acting accordingly.” This is 

precisely what we have done.

Eddie’s first-cross issue is overruled.

CONCLUSION

We reverse the portions of the trial court’s clarification order awarding Diana 4.096

percent of Eddie’s disposable retired pay and $9,877.54 in arrearages. We render judgment 

awarding Diana 5.68078766679622 percent of Eddie’s disposable retired pay and $14,979.04 in 

arrearages. We remand to the trial court to determine and award pre- and post-judgment interest. 

The trial court’s judgment is otherwise affirmed.

November 14, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

Rivera, J. Not Participating