Petition for Writ of Certiorari — Morris v. Morris

Supreme Court, U.S.

FILED

O98 291 AU i719

K

Docket No. OFFICE OF THE CLER

THE SUPREME COURT OF THE UNITED STATES

October 1997 Term

ROBERT G. MORRIS.

Petitioner

verses

SANDRA L. MORRIS.

Respondent

On Petition for Writ of Certiorari From the

Supreme Court of Texas

PETITION FOR WRIT OF CERTIORARI

Anthony W. Walluk. Kevin Shay

Attorney for Petitioner Attorney for Respondent

110 E. Nueva 14400 Northbrook Drive

San Antonio, Texas 78204 Suite 230

210 226-4384 San Antonio, Texas 78232

210 491-0800

Docket No.

THE SUPREME COURT OF THE UNITED STATES

October 1997 Term

ROBERT G. MORRIS.

Petitioner

verses

SANDRA L. MORRIS,

Respondent

On Petition for Writ of Certiorari From the

Supreme Court of Texas

PETITION FOR WRIT OF CERTIORARI

Anthony W. Walluk. Kevin Shay

Attorney for Petitioner Attorney for Respondent

110 E. Nueva 14400 Northbrook Drive

San Antonio, Texas 78204 Suite 230

210 226-4384 San Antonio, Texas 78232

210 491-0800

QUESTONS PRESENTED FOR REVIEW

ONE

May the state courts of Texas award a portion of gross

military retired pay as a division of property in a divorce within

their jurisdiction after the passage of the Uniformed Services

Former Spouse Protection Act [USFSPA] (10 U.S.C. 1408 ) ?

TWO

May a divorce decree entered in 1984 purporting to award

50% " of the military retirement benefits and any future

increases in benefits, due and payable ....... as a result

of...military service" be construed by a court as awarding a

portion of "gross" military retirement pay after the decision in

MANSELL v. MANSELL, 490 U.S. 581, 109 S.Ct. 2023

(1989) which interpreted the USFSPA as restricting division of

military retired pay to " disposable " ?

THREE

If "gross" military retired pay can be divided by a state

court after the passage of the USFSPA, should the clear and

unambiguous wording and purpose of the enabling statute, to

limit division to "disposable " military retired pay, be presumed

to be the intent of a divorce decree in the absence of specific

decretal wording to the contrary ?

PARTIES

The caption contains all of the parties to the previous proceedings

TABLE OF CONTENTS

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TABLES OF AIITQOUITONG iv

CITATIONS OF THE OPINIONS AND ORDERS. .......sscsseseessee: 1

STATEMENT OF THE BASIS FOR JURISDICTION.......+...000+. 2 |

STATUSOMY PODVIIIIE on 3

STATEMENT G8 TOE CARE cic cctktceeecdrercacs 5

RGU MMNE ook a 9

CN I 13

CORTIICATS OF SERVES 15

ASUS CITING i 16

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IIPS aR a ONE RI

INDEX OF CITED AUTHORITIES

United States Supreme Court

Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023

Bi GSE Ee Uti: tee ogee ers aaa Ro TRE sod ot i, 9,10,11

McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728

EGE satis ck icoetees Si clabicennauni otoconia bpinieeaceea cD )

Texas Supreme Court

Berry v. Berry, 786 S.W. 2d 672 (Tex. 1990).......0......... a

Tranhan v. Trahan, 626 S.W. 2d 485 ( Tex. 1981 ).......... 9

Texas Court of Appeals

Jones v. Jones, 900 S.W 2d 7860

(Tex. App.- San Antonio 1995, writ denied)........................ 12

United States Statutes

Pic Soe: GS S558 Sea es oe ee 3.5.6

RG CF te SO RE ise oe ee ieee i,3,5,6,7,9,11,13

Be 25: 2e; SD Bee ko ee a 2

IV

CITATION OF THE REPORTS

OF THE OPINIONS AND ORDERS

None of the opinions and orders in this case were published

Copies of the orders themselves are contained in the appendix

STATEMENT OF THE BASIS FOR JURISDICTION OF

THE COURT

This case resulted from an a motion to clarify and enforce a

divorce decree in the 27th District Court of Texas. The case

involved a federal question, to wit: the interpretation of 10

U.S.Code § 1408, a federal statute. The case was

unsuccessfully appealed by Petitioner to the Texas Fourth

Circuit Court of Appeals and the Texas Supreme Court. This

writ is taken from the Texas Supreme Court decision denying

Petitioner's request for review

The Supreme Court has jurisdiction of this case under the

provisions of 10 U. S. Code § 1257

,

STATUTORY PROVISIONS

The following federal statues applies to this matter

$US Code § 5532

(b) A retired officer of a regular component of a

uniformed service who holds a position is entitled to receive

the full pay of the position, but during the period for which he

receives pay, his retired or retainer pay shall be reduced to an

annual rate equal to the first $2,000 of the retired or retainer

pay plus one-half of the remainder, if any. In the operation of

the formula for the reduction of retired or retainer pay under

this subsection, the amount of $2,000 shall be increased, from

time to time, by appropriate percentage, in direct proportion to

each increase in retired or retainer pay under section 1401]a(b)

of title 10 to reflect changes in the Consumer Price Index

lO U.S. Code § 1408

(a)(4) "Disposable retired or retainer pay" means the

total monthly retired or retainer pay to which a member is

~

3

entitled (other than the retire pay of a member retired for

disability under chapter 61 of this title [10 USCS §§ 1201] et

seq. |) less amounts which-

(B) are required by law to be and are

deducted from the retired or retainer pay of such member,

including fines and forfeitures ordered by courts-martial,

Federal employment taxes, and amounts waived in order to

receive compensation under title 5 or title 38 [5 USCS §§ 101

et seq.; 38 USCS §§ 101 et seq];

(c)(1) Subject to the limitations of this section, a

court may treat disposable retired or retainer pay payable to a

member for pay periods beginning after June 25, 1981, either

as property solely of the member or as property of the member

and his spouse in accordance with the law of the jurisdiction of

such court

FACTUAL STATEMENT OF THE CASE

Robert G. Morris, Petitioner and Sandra L. Morris, Respondent

were divorced in Boerne Texas on May 23, 1984. At that time Robert

G. Morris was retired from the United States Air Force. At the time of

the divorce, the Uniformed Services Former Spouse Protection Act (10

U.S. Code § 1408, hereafter referred to as USFSPA ) became effective

on February |, 1983. That statute granted state courts the right to

divide only " disposable" military retired pay. Disposable retired pay

was determined by a very specific formula stated in the statute

[ section 1408(a)( 4 ]. The divorce decree in this case was prepared by

Sandra L. Morris's attorney. It stated that she was awarded 50% "of

the military retirement benefits and any future increases in benefits, due

and payable to ROBERT G. MORRIS....as a result of his military

service." On that date, the USFSPA specifically limited this award to

50% of Petitioner's disposable military retired pay. Robert G. Morris

began paying Sandra L. Morris 50% of the amount he received from the

Air Force as retirement pay

In 1986 Robert G. Morris began working for the Air Force

again as a civilian employee. Because he was a retired regular officer, 5

U.S.C. § 5532 required that he forfeit a portion of his retired pay. This

;

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Re CU IT ED eI HTT Ow

resulted in Petitioner receiving "disposable" retired pay, as determined

by the Defense Accounting and Finance Office by application of the

formula contained in the USFSPA. The amount of this new

"disposable" retired pay he began receiving was less than the previous

amount he received prior to the 5 U.C Code § 5532 deductions.

Petitioner adjusted the amount of Sandra L. Morris's retired pay

downward by the same percentage that his was reduced and he began

paying her 50% of his "disposable" retired pay, which he was now

receiving. He sent her an explanation of why the amount she was

receiving was lower, and continued sending her the lower amount based

on his "disposable" retired pay. These payments to Respondent were

consistent with the provisions of the USFSPA formulas for payment of

disposable retired pay. Sandra L. Morris accepted the lower amount for

5 years, then filed a motion for clarification and enforcement for the

purpose of requiring Robert G. Morris to pay her based on his gross

military retired pay as he had originally done when his gross retired pay

and his disposable ret.red pay were the same amount. At the hearing on

the motion the trial judge determined that the retired pay due to Sandra

L. Morris should be based on Robert G. Morris's gross retirement pay,

not his disposable retired pay as provided for by the federal enabling

statute, the USFSPA.

This federal question was first raised at the trial court's hearing

of Respondent's motion for clarification and enforcement, specifically in

the opening statement of Petitioner's Counsel at page 8 of the record

and again in the closing argument at page 66 of the record. The trial

judge ignored the limitations of "disposable" retired pay imposed by the

federal statute at pages 68-70 of the trial record. The initial decision in

this motion was appealed by Petitioner to the Fourth Circuit Court of

Appeals of Texas. The federal question regarding the interpretation if

10 U.S. Code § 1408, raised in the appellate brief in the first point of

error, pages 2-3. The Court of Appeals ruled against petitioner on the

federal question. In the Petition for Review to the Texas Supreme

Court, the federal question was again raised in the argument in

Petitioner's brief as well as in each of the points of error asserted. The

Texas Supreme Court denied the Petition for Review on May 21, 1998.

This Petition is taken from that denial of appeal.

ROBERT G. MORRIS appealed the trial court's decision to the

Fourth Circuit Court of Appeals arguing, among other noted errors,

that the trial court decision was contrary to the specific wording of the

USFSPA and the United States Supreme Court's interpretation of the

statute. The Court denied the appeal in an opinion dated September 10,

1997. A request for rehearing was denied on November 4, 1997.

Petitioner then appealed the case to the Texas Supreme Court and on

7

May 21, 1998, that Court denied his petition without opinion

Petitioner makes this petition for certiorari based on the denial of the

appeal by the Texas Supreme Court

ORE 6. DI Re re

ARGUMENT

Petitioner contends that the trial court was without jurisdiction

to award a portion of his gross military retired pay to Respondent. The

United States Supreme Court preempted this area of family law in the

case of McCarty v. McCarty, 453 U.S. 210 (1981). They concluded

that there was an overriding federal interest in the issue of military

retired pay and they asserted the supremacy of federal law. As a result

of that decision, states were totally without authority to divide military

retired pay. This limitation was accepted by the Texas Supreme Court

in /ranhan v. Trahan, 626 S.W. 2d 485 ( Tex. 1981 ). In 1982 the

U.S. Congress passed the Uniformed Services Former Spouses'

Protection Act (USFSPA) to reverse that Supreme Court decision.

This statute gave limited authority to state courts to award military

retired pay as community property. Congress very specifically stated

that only a portion of "disposable" retired pay could be so awarded (

section 1408c ).

The decree in this case was signed and entered on May 8, 1994 ,

after the passage of the USFSPA. The United States Supreme Court in

interpreting the USFSPA in the case of Mansell v. Mansell, 490 U.S.

581, 109 S.Ct. 2023 ( 1989 ) held that Congress by " plain and precise

language" intended to limit it's grant of jurisdiction over military retired

oI ANNIE ret

pay to disposable pay and to "place limits on state courts designed to

protect retirees." ( id at 594). Therefore, according to that

interpretation of legislative intent in 1982, a Texas district court did not

have the jurisdiction in 1984 to award a portion of "gross" retired pay in

this decree. Regardless of intent of the parties, all that could possibly

have been disposed of by the original decree and by the court was

disposable retired pay.

Assuming arguendo that the statute allowed parties to agree to

go beyond the " plain and precise language" of the statute, which

Petitioner maintains could not have been done under the statute, the

drafter of the agreement should have used similarly clear and precise

language to change the absolute limitations created by the statute. The

record in this case establishes that xespondent's attorney drafted the

documents and failed to state what if any formula other than that

provided by the statute was intended. The wording used was " military

retirement benefits ", not "gross" or "total" or any other wording which

would suggest other than disposable retired pay was intended. In the

absence of specific decretal language, the clear and precise wording of

the federal enabling statute should have applied to the case. The default

position in the absence of any other indications to the contrary would

have to be "disposable" according to Congress and the United States

Supreme Court. Petitioner testified that he presumed he would be

10

giving Respondent 50% of what he received "if as and when received".

The record establishes that Petitioner did in fact send Respondent 50%

of what he received, which amount changed over the years as the

"disposable" pay he received from the Air Force changed. Petitioner

complied with the wording of the decree as well as the intent of the

statute.

The United States Supreme Court in Mansell v. Mansell

(id ) held in very plain wording that disposable military retired pay

means disposable, not gross. The Fourth Circuit Court of Appeals,

in deciding our case, correctly cited this holding of Mansell on

page 3 of their Opinion ( appendix B-4 ). However that Court

went on to incorrectly determine that the Supreme Court left the

application of Mansell up to the state courts. That conclusion

would be inconsistent with the explicit statements of the law in

Mansell,. Texas Courts from the Supreme Court down have

misinterpreted and misapplied the law of Mansell, relying on

footnote 5 on page 586 of Mansell ( supra) as permitting the states

to determine the USFSPA's applicability.

We submit that is not what footnote 5 says or suggests.

That footnote very clearly says that it is up to the states to

determine if their individual res judicata laws allow the reopening

of pre-\/cCarty cases in order to apply the new post McCarty

11

disposable retirement rules. In that footnote, the U.S. Supreme

Court stated that res judicata was the state's business, the federal

issue of what disposable military retired pay, however was properly

before them. The case of Berry v. Berry, 786 S.W. 2d 672 (Tex.

Pe ee einen en amen ner

| 1990) cited by the Court of Appeals ( appendix B-4 ) was very

much on point on this issue. The Berry case was a divorce that

was granted in 1980, pre McCarty and pre USFSPA. The Texas

Supreme Court in that case correctly cited Mansell as leaving the

retroactive application of USFSPA regarding divorces granted

before 1981 to the states. Our case is clearly distinguishable

because it does not involve a retroactive application of USFSPA.

However the Texas courts insist on reading more into Mansell than

was intended. In Jones v. Jones, (Tex. App.- San Antonio1995,

writ denied ) the same State Court of Appeals that denied g

Petitioner's case held that the limitations of the USFSPA and

Mansell did not apply in a divorce granted in 1988, because of res

judicata.

Mansell does not leave the decision of when or whether to

apply the limitations of the 1982 USFSPA up to the states courts of

Texas. It clearly requires those 1982 limitations to this divorce

which occurred in 1984.

12

CONCLUSION

The USFSPA. limited the jurisdiction of state courts by allowing

them to only divide "disposable" military retired pay. The trial court in

this case had no jurisdiction to divide Petitioner's gross pay as it did. |

Mansell very clearly addressed this issue and this Court stated that

" disposable means disposable", yet the court system of Texas, as late |

as 1984 in our case and 1988 in the Jones case, is still allowing division

of gross retired pay in contradiction of the precise and clear wording of

the enabling statute. After McCarty the states had no authority over

military retired pay. The only authority they have been given is over

disposable retired pay, it is submitted that there is no validity to any

theory whereby Texas state courts can find authority over gross military

retired pay.

If in fact a division of gross pay is authorized, precise decretal

language must be required by the drafter of a decree if the intend

jurisdiction limitations of disposable pay set by the statute were

intended to be circumvented. Without that wording, the limitations of

the federal enabling statute must apply, otherwise the presumption

would be gross rather than disposable.

13

REN ne ee

COE NPE RECIPE EFA aU

In either case, the award of retired pay should have been limited

to disposable pay as defined in the statute. The evidence of record

indicates that Petitioner intended to pay Respondent in accordance with

what the statute defines as disposable pay, i.e. that total amount which

he received from the Air Force. Petitioner's actions indicate that he did

comply with the statute. The judgment of the trial court in this case

must be reversed in that it misapplies the federal enabling statute in this

area of family law which the United States Supreme Court has

determined to preempt.

Respectfully Submitted,

O Ly WIGS

VAthony W. Walluk.

sel for Petitioner

G. Morris

y¥ 14, 1998

14

CERTIFICATE OF SERVICE

I certify that I mailed two copies of this Petition to Mr.

Kevin Shay, Counsel for Respondent at 14400 Northbrook

Drive, Suite 230 San Antonio, Texas 78232 by regular mail on

August 14, 1998 at the same time that I submitted the original

and 39 copies of the Petition to the Court.

wo _

ony W. Walluk

nsel for Petitioner

ert G. Morris

APPENDIX CONTENTS

| Bi Oe NN icici eid adecakng bad auiseb bus dabsvcacad cara

B. Opinion of the Fourth Circuit Court of Appeals

( SMI Do be onc vsaksvinvancciecccon a: BMS NS ORO PEON Bl

C. Order of the Fourth Circuit Court of Appeals

NN II a ee ae Cl

D. Denial of Appeal from Texas Supreme Court............... D

16

No. 4621

IN THE MATTER OF IN THE DISTRICT COURT

THE MARRIAGE OF KENDALL COUNTY,

SANDRA L. MORRIS,

AND ROBERT G. MORRIS TEXAS

ORDER

The hearing on Movant's Motion to Enforce was heard on

February 7, 1996. Movant, Sandra L. Morris, appeared in

person and by attorney, as did Robert G. Morris, respondent.

The Court examined the pleadings and heard the evidence

and arguments of counsel. All parties whose nghts, privileges,

duties, of powers may be affected by the motion received

notice or appeared at the hearing.

The Court finds that respondent has violated the terms of

the Property Settlement and Divorce Agreement dated May 8,

1984 that was approved and incorporated by this Court in its

Decree of Divorce entered in the above-entitled matter on May

23, 1984 concerning the payment of retirement benefits

between the parties. A copy of the Property Settlement and

Divorce Agreement is attached to the motion to enforce as

Exhibit A. Respondent has failed to abide by the property

settlement by refusing and continuing to refuse to pay movant

her full share of benefits that became due and payable each

month commencing with July of 1993 to date. Accordingly, it

is ORDERED that Movant have judgment against Respondent

in the total amount of $14,820.18

It is FURTHER ORDERED that Movant have judgment

against Respondent in the additional amount of $3,000.00 for

reasonable attorney fees incurred on to motion to enforce

It is FURTHER ORDERED that Movant shall take all

reasonable action to qualify her to receive an involuntary

allotment of Respondent's military retirement benefits under

the Uniform Services Former Spouse Protection Act, 10

U.S.C. Section 1408 et seq.

It is FURTHER ORDERED that Respondent pay all unpaid

amounts of Movant's portion of military retirement benefits

received by Respondent as trustee pursuant to the terms of the

Property Settlement and Divorce Agreement to be calculated

as 50% of the gross military retirement benefits less previous

payments to or for the benefit of Movant made by or on behalf

of Respondent by the Air Force or otherwise.

It is FURTHER ORDERED that Respondent deliver to

Movant copies of all Air Force Retiree Account Statements, or

their equivalent, and tax information returns (e.g. IRS forms

W-2, W-2P, 1099R, etc.) that Respondent receives from the

Air Force or other government entity with respect to

Respondent's military retirement that is subject to the Property

Settlement and Divorce Agreement within 10 days of his

receipt of such documents.

It is FURTHER ORDERED that Respondent issue a tax

information return, IRS Form 1099 or equivalent, to Movant

each year, beginning with 1995, showing the total amounts

paid to Movant by Respondent, less any amounts reported to

Movant directly by the Air Force or other governmental entity,

with respect to Respondent's military retirement that is subject

to the Property Settlement and Divorce Agreement, following

all the Internal Revenue Service rules and regulations

regarding such tax information returns.

And it is FURTHER ORDERED that all relief not expressly

granted in this Order is denied.

April

SIGNED this 11th day of February, 1996.

signed

JUDGE PRESIDING

Approved as to form

KEVIN P. SHAY

___ signed

Kevin P. Shay

Attorney for Sandra Morris

3238 N.W. Loop 410

San Antonio, Texas 78213

Telephone 210-308-8388

Facsimile 210-340-5200

State Bar ID No. 18163500

ANTHONY W. WALLUK

___ signed

Anthony W. Walluk

Attorney for Robert G. Morris

110 E. Nueva

San Antonio, Texas 78204

Telephone 210-226-4384

Facsimile 210-226-4526

State Bar ID No. 20796100

Court of Appeals

Fourth Court of Appeals District of Texas

San Antonio

OPINION

No. 04-96-00629-CV

Robert G. MORRIS,

Appellant

V.

Sandra L. MORRIS,

Appellee

From the 216th Judicial District Court of Kendall County

Tnal Court No. 4621

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice (concurring in the

judgment)

Delivered and Filed: September 10, 1997

AFFIRMED

In this case about community property rights in military

retirement pay, we credit the trial court's construction of the

Pe en

LAWS Bibel e Aoelainls

i ina as ep De ci) Aae ale Silt OEE ITAA GT Se LPR ENS Se MDE TONE 9 TF

seb Aa I eto tS a EN 0 es i ah

- Son ib

cy ee ees

ambiguities in the decree and find it cannot be collaterally

attached.

Appellant Robert G. Morris and appellee Sandra L. Morris

were married in 1958 and divorced in 1984. The property

settlement agreement incorporated in the divorce decree

awarded 50 percent "of the military retirement benefits and any

future increases in benefits" to Sandra Morris. In 1986, Robert

Morris took a civilian job at Kelly Air Force Base, which

reduced his retirement benefits; Sandra Morris's share was

reduced accordingly. He also remarried, and the Air Force

began deducting survivor benefits plan increments. He

consulted an Air Force attorney and in a 1990 letter told

Sandra Morris that he had been overpaying her because he had

been sending her a percentage of his gross pay, not net pay as

called for in federal law. He adjusted his payment accordingly.

Five years later, Sandra Morris filed a Motion to Enforce

claiming she had been underpaid; she sought an adjustment and

attorney's fees. Robert Morris filed a cross-motion claiming

Sandra Morris's claim was preempted by federal statute and

that Sandra Morris's petition was barred by the statute of

limitations; he also sought attorney's fees. After a bench trial,

the trial court ordered him to pay her 50 percent of his gross

military retirement pay as well as attorney's fees and past

arrearages. In its Findings of Fact and Conclusions of Law,

the court found that the parties intended the 50 percent figure

in the 1984 divorce decree and property settlement to be

applied to gross retirement pay.

In two points of error Robert Morris complains the tral

court erred because the result in this case is preempted by

federal law and because the trial court erred in not construing

ambiguities in the original settlement agreement against the

drafter. We affirm.

PREEMPTION BY FEDERAL LAW

Robert Morris contends in his point of error that the trial

court was without power to enter the order it entered, because

it conflicted both wit an act of Congress and with a decision of

the U.S. Supreme Court. We do not agree.

This attack on the divorce decree in response to Sandra

Morris's motion to enforce constitutes a collateral attack on a

final and unappealable judgment and so invokes the issue of res

judicata. Jones v. Jones, 900 S.W.2d 786, 787 (Tex. App.-San

Antonio 1995, writ denied).

Federal preemption of the right of community property

jurisdictions to apportion military retirement pay defines the

law in this area. The Supreme Court first held that the

A ee AEN A tier SET MS

Supremacy Clause and federal statues barred states from

treating military retirement pay as community property.

McCarty v. McCarty, 453 U.S. 210 (1981). In response,

Congress passed the United Services Former Spouse’

Protection Act, 10 U.S.C. § 1408 (1988) which granted a

limited in that states were granted the authority to apportion

net retirement pay, not gross retirement pay as was the case

before McCarty was decided 10 U.S.C. § 1408 (a)(4)(B);

Mansell v. Mansell, 490 U.S. 581, 589-590 (1989).

In order for Robert Morris's attack to succeed, he must

show the decree which incorporates the settlement to be void,

not merely mistaken; in other words, he must show that the

court had no jurisdiction over a party or his property, no

jurisdiction of the subject mater, no jurisdiction to enter the

particular judgment, or no capacity to act as a court. Austin

Indep. School Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.

1973).

This is not the case before us today. Both at the time the

original decree in this case was approved and at the time of the

bench tnal, USFSPA granted Texas courts jurisdiction over

military retirement pay. Therefore the court had jurisdiction of

B-4

3

d

Oe

the subject matter; the judgment is therefore not void, and any

collateral attack on this order must fail. Berry v. Berry, 786

S.W.2d 672 (Tex. 1990); Jones, 900 S.W.2d at 788.

Robert Morris complains that the Supreme Court's decision

in Mansell prempts this result. However, the Mansell decision

specifically left to the states the question of whether their

interpretation of res judicata permitted application of Mansell

to previously entered divorce decrees. Mansell, 490 U.S. at

586 n.5.In turn, our supreme court has held that Texas law

does not permit re-opening previously entered decrees. Berry,

786 S.W.2d at 673.

Robert's first point of error is overruled.

In his second point of error, Robert Morris argues the trial

court erred in not construing the ambiguities in the property

settlement agreement against the drafter of the document,

Sandra Mornis. We disagree.

Robert Morris's argument is that the finder of fact erred in

its decision. We will construe this as an attack on the trial

court's conclusion of law that Sandra Morris was entitled to 50

percent of Robert Morris's gross retirement pay. We will

therefore uphold the trial court's finding if it can be sustained

on any legal theory supported by the evidence. Kofis v.

Nowlin Jewelry Inc., 844 S.W.2d 920, 922 (Tex. App.-

Houston [14th Dist.] 1992, no writ).

Property settlement agreements incorporated into a divorce

decree are construed in the same way as a contract. Coker v.

Coker, 650 S.W.2d 391, 393 (Tex. 1983). Our record reflects

the trial court «.unounced he did consider this rule of

construction in his decision but found that the agreement of the

parties controlled. We therefore look to see if there is support

in the record for this conclusion.

Acts of the parties done in the course of performance,

which indicate the construction that the parties themselves put

on the contract, may properly be considered by the court in

i 1 ea i tae ba

interpreting an agreement that is doubtful or ambiguous. Lone

Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d

504, 508 (1942): Gillman v. Phillips Petroleum Co., 601

S.W.2d 513, 516 (Tex. App.-Armadillo 1980, no wnt); 14

TEX.JUR. 3d Contracts §205 (1981).

Here the record reflects that Robert Morris paid Sandra

Morris half his gross retirement pay for almost two years after

the agreement was signed. The tnal court in our case could

have taken this as some evidence that the parties intended the

agreement to cover gross pay and not net pay.

Morris's second point of error is overruled.

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

DO NOT PUBLISH

Court of Appeals

Fourth Court of Appeals District of Texas

San Antonio

JUDGMENT

No. 04-96-00629-CV

Robert G. MORRIS,

Appellant

V.

Sandra L. MORRIS,

Appellee

From the 216th Judicial District Court of Kendall County

Trial Court No. 4621

Honorable Stephen B. Ables, Judge Presiding

BEFORE JUSTICE RICKHOFF, JUSTICE STONE AND

JUSTICE DUNCAN

In accordance with this Court's opinion of this date, the

judgment of the trial court is AFFIRMED. It is ORDERED

that appellee Sandra L. Morris recover her costs of this appeal

from appellant Robert G. Morris as principal and from

Anthony W. Walluk and Peter Held as sureties on appellant's

cost bond.

SIGNED September 10, 1997.

signed

TOM RICKHOFF

JUSTICE

COURT OF APPEALS

FOURTH COURT OF APPEALS DISTRICT

300 DOLOROSA, SUITE 3200

BEXAR COUNTY CRIMINAL JUSTICE CENTER

SAN ANTONIO, TEXAS 78205-3037

HERB SCHAEFER, CLERK

November 4, 1997

Anthony W. Walluk

110 East Nueva

San Antonio, TX 78204

Kevin P. Shay

3238 N.W. Loop 410

San Antonio, TX 78213-2811

RE: Court of Appeals Number: 04-96-00629-CV

Trial Court Case Number: 4621

Style: Robert G. Morris

V.

Sandra L. Morris

Dear Counsel:

After examination of the record in the above styled

and numbered cause the Court DENIES Appellant's Motion

for Rehearing.

ORDERED the day and year first above written.

Very truly yours,

HERB SCHAEFER, CLERK

signed

JOYCE WIATREK, DEPUTY

CLERK

THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

May 21, 1998

Mr. Anthony W. Walluk

110 E. Nueva

San Antonio, TX 78204

a ee ne ae

Mr. Kevin P. Shay

14400 Northbrook Drive, Suite 230

San Antonio, TX 78232

RE: Case Number 97-1186

; Court of Appeals Number: 04-96-00629-CV

Trial Court Number: 4621

Style: ROBERT G. MORRIS

\

SANDRA L. MORRIS

Dear Counsel:

LVRS REEI SILER St ENC EAE

Today, the Supreme Court of Texas denied the petition

for review in the above styled case.

Sincerely,

John T. Adams, Clerk

td Pt SRE a eke

dy: signed

§ Michael H. Kopp,

Deputy

cc: Mr. Herb Schaefer, Clerk

Ms. Shirley R. Stehling