# Busby v. Busby

> Texas Supreme Court · July 29, 1970 · 13 Tex. Sup. Ct. J. 485

URL: https://www.frixlaw.com/law-library/cases/9681645

## Case

- **Full name:** Earl E. BUSBY, Petitioner, v. Mary Lou BUSBY, Respondent
- **Court:** Texas Supreme Court
- **Decided:** July 29, 1970
- **Citations:** 13 Tex. Sup. Ct. J. 485; 457 S.W.2d 551; 1970 Tex. LEXIS 235
- **Precedential status:** Published
- **Opinion:** Dissent by Walker
- **Judges:** Smith, Walker, Greenhill, McGee
- **Cited by:** 258 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned on other grounds by Jeffrey v. Kendrick, 1981 Tex. App. LEXIS 4031 (1981).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681645

## How later opinions describe it (automated extraction)

- recognizing that portion of military retirement benefits could be community property even though any value associated with benefits could be forfeited if husband was dishonorably discharged from military
- holding that benefits paid due to Busby’s involuntary retirement under § 1201 were subject to the same rule applicable to payments made for voluntarily retiring
- stating the rule that when a divorce decree fails to divide property, the husband and wife become tenants in common as to the community property
- stating unequivocally that “no disposition whatever” was made of certain retirement benefits in controversy
- noting, after partitioning property, that the divorce court would likely have apportioned property differently in a just and right division

## Opinion text

WALKER, Justice
(dissenting).
It is my opinion that the “right” of a member or former member of the armed forces to retirement benefits that are payable in the future, resting as it does on a statute that is subject to modification or repeal at any time, does not constitute property. The court granting the divorce could and should take it into consideration and, in the exercise of the broad powers conferred by Article 4638, is in position to enter an order that is just and equitable under the circumstances. See Mora v. Mora, Tex.Civ.App., 429 S.W.2d 660 (wr. dis.); Kirkham v. Kirkham, Tex.Civ.App., 335 S.W.2d 393 (no writ). Our present departure from reality in holding that “title” to benefits payable in the future “vests” or has its inception when the serviceman becomes eligible for retirement can lead to grossly inequitable results. As indicated by the concluding paragraph of the majority opinion, we may have such a case here. It seems to me that we should insist rather than suggest that the matter of statutory retirement benefits be submitted to and decided by the court granting the divorce. In my opinion the trial court was correct in holding that the divorce judgment entered on June 25, 1963, is res judicata of the claim now asserted by respondent, and I would affirm the trial court’s judgment that she take nothing.
GREENHILL and McGEE, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681645. Public record. Not legal advice.