Brister Dissent in Hagen v. Hagen (Tex. 2009)

Majority opinion in Hagen v. Hagen (Tex. May 1, 2009)(Johnson)
family law, divorce decree, clarification order, retirement disability benefits division, res judicata, relitigation)
Brister filed a dissenting opinion, in which Justice O’Neill and Justice Medina joined.

     The Court says this divorce decree did not divide VA disability pay, and even if it did it is binding
because it was voidable rather than void. I disagree on both counts.

     I would also try a little harder to find an alternative to today’s judgment, which allows an ex-
husband to cut off a community asset awarded to his ex-wife. We should remand for Doris Hagen to
pursue further proceedings; because the Court instead renders judgment against her, I respectfully

* * *
Can Waived Retirement Pay Be Recovered?

     In most states, a divorce court can order alimony or child support paid from VA disability benefits.
[30] But in community-property states like Texas (as already noted), a divorce court cannot divide
VA disability pay because it is not assignable property.[31] This problem can be mitigated when
disability occurs before divorce by considering VA disability pay in dividing all the other property
between the spouses in a manner that is just and right.[32] But when disability occurs after divorce,
a just-and-right division of retirement benefits may be rendered neither just nor right by allowing one
party to cut off the other’s share of those benefits.[33]

     “In most states, if a former service member unilaterally waives retired pay to receive VA
disability pay, the courts will not stand idly by.”[34] Surely that should be the rule in Texas too.      The
decree here did not just award Doris part of Raoul’s retirement pay; it also appointed him trustee of
those funds for her use and benefit. As a result, it is hard to see how his decision to waive those
funds did not breach his fiduciary duty as her trustee.[35] Nor is it clear why converting retirement
pay to VA disability pay did not constitute conversion; while “money can be converted only if it is
specifically identified and held in trust,”[36] this money was.

     Of course, any judgment against Raoul could not be collected from his disability payments
because they are exempt.[37] And they remain exempt after receipt so long as they are held in a
form “readily available as needed for support and maintenance . . . and have not been converted
into permanent investments.”[38] But if Raoul has other assets or funds from which such a judgment
could be collected, there is no reason to prevent Doris from trying.[39]

     While Doris pleaded conversion and breach of fiduciary duty in the trial court, she briefed neither
when she appealed the trial court’s dismissal of her case. But she was relying on the continued
validity of Berry v. Berry, under which she should prevail unless we overrule it. “When, as here, a
party presents her case in reliance on precedent that has been recently overruled, remand is
appropriate.”[40] Accordingly, rather than rendering judgment against Doris, I would overrule Berry
and remand in the interest of justice for her to pursue alternate means.[41]

RAOUL HAGEN v. DORIS J. HAGEN; from Bexar County; 4th district (04-06-00705-CV, ___ SW3d ___, 08-01-
The Court reverses the court of appeals' judgment and affirms the trial court's judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, and Justice Willett joined. [pdf]
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [
pdf version
of Brister's dissent]
Link to
Electronic Briefs for this case