IN THE SUPREME COURT OF TEXAS
════════════
No. 07-1065
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Raoul Hagen, Petitioner,
v.
Doris J. Hagen, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth
District of Texas
════════════════════════════════════════════════════
Argued January
14, 2009
Justice Johnson delivered the opinion of
the Court, in which Chief Justice
Jefferson, Justice Hecht, Justice Wainwright, Justice Green, and Justice Willett joined.
Justice Brister filed a dissenting
opinion, in which Justice O’Neill
and Justice Medina joined.
Doris and Raoul Hagen’s 1976 divorce
decree awarded a percentage of Raoul’s military retirement pay to Doris to be paid if, as, and when he received it. After
Raoul’s subsequent retirement from the Army, he was determined by the Veterans’
Administration (VA) to have a service-connected disability. He then elected to
be paid VA disability benefit payments, which are not subject to federal income
taxes, in place of part of his military retirement payments, which are subject
to income taxes. Raoul’s election reduced the amount of military retirement pay
he received. When Doris began receiving her
percentage of the reduced Army retirement pay Raoul received, she sought
enforcement and clarification of the divorce decree. The trial court determined
that the decree divided only the military retirement pay being received by
Raoul, it did not divide his VA disability benefits, and Doris
was entitled to only a percentage of the military retirement pay. The court of
appeals reversed. The appeals court held that the trial
court modified the 1976 decree instead of clarifying it, and the modification
was barred by res judicata principles. ___ S.W.3d ___, ___.
We hold that the trial court correctly clarified the unambiguous original
decree, and its action was not a modification barred by res judicata
principles. We reverse the court of appeals’ judgment and affirm the judgment
of the trial court.
I.
Background
Doris and Raoul Hagen divorced in
1976. At the time of the divorce, Raoul was a member of the United States Army.
The decree awarded Doris right, title, and
interest to
One-half of 18/20ths
of all Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN
RECEIVED, and the Petitioner RAOUL HAGEN shall be a Trustee of the One-half of
18/20ths of all Army Retirement Pay or Military Retirement Pay, for the use and
benefit of DORIS J. HAGEN, and shall pay the same immediately upon each receipt
of the same, to DORIS J. HAGEN.
When Raoul retired from the Army in
1992 his retirement compensation consisted solely of military retirement pay,
which was subject to federal income taxes. In 2003, the VA determined Raoul had
a service-connected disability rating of forty-percent. As allowed by federal
statute, Raoul elected to waive part of his retirement pay and be paid VA
disability in its place. See 38 U.S.C. § 5305. The VA disability pay is
not subject to federal income taxes. See id. § 5301(a)(1).
After Raoul made his election, payments to Doris
were reduced to an amount calculated by applying the decree’s formula to only
the military retirement pay Raoul received.
Doris
filed a combined motion for contempt, clarification of the decree, and petition
for damages. She claimed that Raoul failed to comply with the 1976 decree
because he failed to pay her the proper amount of his gross retirement pay, and
in the alternative, she sought clarification of the decree. She also sought
damages from Raoul alleging that by electing to be paid VA disability pay and
waive part of his retirement pay, he breached a fiduciary duty to her and
converted payments she should have received. Following a non-jury hearing, the
trial court (1) ordered that “the military retirement pay now being received by
Raoul Hagen shall be divided according to the formula stated in the Original
Decree of Divorce,” (2) found the amount subject to division under the decree
did not include Raoul’s disability pay, (3) awarded attorney’s fees in the
event of appeal, and (4) denied all other relief.
Doris
appealed, and the court of appeals reversed. ___ S.W.3d ___.
Relying in large part on Berry v. Berry, 786 S.W.2d 672 (Tex. 1990) (per
curiam), the court of appeals held that res judicata barred Raoul’s position as
a collateral attack on the divorce decree, and the Uniformed Services Former
Spouses’ Protection Act (USFSPA)
could not be applied retroactively to collaterally attack the decree. ___ S.W.3d at ___. We hold that the trial court’s action was
a permissible clarification, not an impermissible modification, of the decree.
II.
Interpreting Divorce Decrees
We interpret divorce decree language
as we do other judgments of courts. Shanks v. Treadway,
110 S.W.3d 444, 447 (Tex.
2003). We construe the decree as a whole to harmonize and give effect to
the entire decree. Id.
If the decree is unambiguous, the Court must adhere to the literal language
used. Id.
If the decree is ambiguous, however, the decree is interpreted by reviewing
both the decree as a whole and the record. See Wilde v.
Murchie, 949 S.W.2d 331, 332 (Tex.
1997) (per curiam). Whether a divorce decree is ambiguous is a question
of law. Shanks, 110 S.W.3d at 447.
As with other final, unappealed
judgments which are regular on their face, divorce decrees and judgments are
not vulnerable to collateral attack. Berry,
786 S.W.2d at 673. The decree must be void, not
voidable, for a collateral attack to be permitted. Id. Errors other than lack of
jurisdiction over the parties or the subject matter render the judgment
voidable and may be corrected only through a direct appeal. Reiss
v. Reiss, 118 S.W.3d 439, 443 (Tex.
2003).
The Family Code provides that trial
courts may enter orders of enforcement and clarification to enforce or specify
more precisely a decree’s property division. Tex.
Fam. Code § 9.006(a) (“[T]he court may render further orders to enforce
the division of property made in the decree of divorce or annulment to assist
in the implementation of or to clarify the prior order.”). But courts may not
“amend, modify, alter, or change the division of property” originally set out
in the decree. Id. § 9.007(a). Attempting to obtain an order that alters or
modifies a divorce decree’s property division is an impermissible collateral
attack. See Reiss, 118 S.W.3d at 442 (holding that a trial court’s
correct construction of a divorce decree’s award “does not impermissibly
‘amend, modify, alter, or change the division of property made or approved in
the decree of divorce’” (quoting Tex. Fam. Code § 9.007(a))).
III.
The Decree in Question
A.
The Decree’s Language
The Hagens
stipulated that their decree
awarded Doris “One-half of 18/20ths of all
Army Retirement Pay or Military Retirement Pay, IF, AS AND WHEN RECEIVED,” and
directed Raoul to “pay the same immediately upon each receipt of the same, to
DORIS J. HAGEN.” Neither party claims the decree defined “Army Retirement Pay”
or “Military Retirement Pay” to include any type of compensation or pay outside
of the plain import of the words used. The decree language does not
specifically reference VA disability compensation Raoul might receive, and the
parties do not contend that VA benefits were referenced anywhere in the decree.
We conclude the decree is unambiguous in dividing military retirement pay “if,
as and when” Raoul received it. The question, then, is whether, at the time the
decree was entered, military retirement pay included VA disability
compensation. See Shanks, 110 S.W.3d at 447 (stating
that we “must effectuate the order in light of the literal language used”).
B.
Retirement Pay and VA Disability Compensation
When the trial court entered the Hagens’ decree on May 7,
1976, federal law provided two means by which a former service member could
receive disability-related compensation: retirement pay for physical disability
under Title 10 of the United States Code and VA disability compensation under
Title 38. Armed Forces (Title 10), ch. 1041, 70A Stat. 91
(1956) (current version at 10 U.S.C. § 1201); Veterans’ Benefits (Title 38), §
310, 72 Stat. 1119 (1958) (current version at 38 U.S.C. § 1110). Under
Title 10, if a member was found to be disabled, the secretary of the applicable
branch of the armed forces could “retire the member, with retired pay” computed
under the statute. Armed Forces (Title 10), ch. 1041, 70A
Stat. 91 (1956) (current version at 10 U.S.C. § 1201). Title 38, on the
other hand, mentioned nothing about retirement. Veterans’
Benefits (Title 38), § 310, 72 Stat. 1119 (1958) (current version at 38 U.S.C.
§ 1110). Instead, it compensated for “disability resulting from personal
injury suffered or disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of duty.” Id.; see also
Veterans’ Benefits (Title 38), § 331, 72 Stat. 1122 (1958) (current version at
38 U.S.C. § 1131) (providing VA disability compensation for peacetime
injuries).
At the time the trial court entered
the Hagens’ decree, Texas courts recognized that only military
disability pay that was an earned property right could be divided upon divorce,
and VA disability compensation was not an earned property right. Busby v. Busby, 457 S.W.2d 551, 552-53 (Tex. 1970); Dominey v. Dominey, 481
S.W.2d 473, 475 (Tex. Civ. App.—El Paso 1972, no writ); Ramsey v. Ramsey,
474 S.W.2d 939, 941 (Tex. Civ. App.—Eastland 1971, writ dism’d). In Busby,
we did not address the question of VA disability benefits; we addressed only
the two types of military retirement pay—voluntary retirement benefits and
disability retirement benefits. 457 S.W.2d at 554. We
held that military retirement pay—whether based upon a member’s voluntary
election to retire after having served the required time or whether based on
retirement for disability—is not a gift or gratuity
but an earned property right divisible upon divorce. Id. at 552. In Ramsey, the court of appeals applied Busby
to VA disability benefits, holding that VA disability benefits are not an
earned property right because they compensate “for personal injury or disease .
. . for service-connected disability,” and there is “no obligation or promise
by the Veterans’ Administration to remunerate” for service-connected
disabilities. 474 S.W.2d at 941. VA disability
benefits were, thus, characterized differently than military retirement pay. VA
disability benefits were characterized as a gratuity based upon a
service-connected disability rather than an earned property right based upon
years of service. Id.; see also
Milliken v. Gleason, 332 F.2d 122, 123 (1st Cir. 1964), cert. denied,
379 U.S.
1002 (1965) (holding that because the payment of VA disability compensation is
at the discretion of the United States Congress, such compensation is not
considered property).
C.
The Parties’ Contentions
Citing Dominey, 481 S.W.2d
473, Doris nevertheless argues that at the time the decree was entered, Texas courts had
established disability pay was an earned property right. Dominey,
however, pertained to Navy disability retirement pay, not VA disability
benefits. Id. at 474. In Dominey, the court expressly
distinguished Ramsey and the VA benefits at issue there from military
retirement benefits. Id. at
475. In doing so, the court held that although the retirement benefits
being received by Dominey were military disability retirement benefits, they
were nonetheless retirement benefits and thus property, unlike the VA
disability retirement benefits at issue in Ramsey. Id. at 475-76.
Relying on Baxter v. Ruddle,
794 S.W.2d 761, 762-63 (Tex. 1990); Berry, 786 S.W.2d at 673; and Jones
v. Jones, 900 S.W.2d 786, 789 (Tex. App.—San Antonio 1995, writ denied),
Doris also argues Texas courts have held that ex-spouses who make a
post-divorce election to waive military retirement pay for VA disability
benefits are in effect collaterally attacking the decree, and such an attack is
barred by res judicata principles. We do not disagree that asserting the USFSPA
as justification for violating provisions of a final divorce decree could
constitute a collateral attack under some circumstances. But Raoul is not
making such an assertion in this matter; rather, he relies on the specific
language of the decree. And the cases Doris references do not support her
position that Raoul’s waiver was a collateral attack on the Hagens’ decree.
In Baxter, the parties agreed
to a property settlement and the agreed decree was not appealed. 794 S.W.2d at 762. The decree provided that the wife
received
All
right, title and interest to thirty-seven and one-half percent (37 1/2%) of
JAMES RUDDLE’s gross U.S. Army retirement and/or disability benefits and/or
V.A. disability benefits (including thirty-seven and one-half percent (37 1/2%)
of all increases therein due to the cost of living) if, as and when received.
Id. Ruddle
remained in the service after the divorce, so his retirement pay increased over
the amount he would have received had he retired at the time of divorce. Id. He did not
comply with the decree by paying his former wife, Judith Ann Baxter, the
specified percentage of his actual gross retirement pay. Id. In considering Baxter’s Motion
for Contempt and Arrearage Judgment, the trial court determined Baxter was
entitled to a percentage of benefits valued as of the time of the divorce. Id. This Court
held that the unappealed, agreed divorce decree unambiguously provided for
Baxter to receive thirty-seven and one-half percent of the gross
retirement benefits received by Ruddle, including post-divorce increases; the
parties agreed to the method of apportionment and their agreement should be
enforced even if the court could not have ordered the division except for the
parties’ agreement; the decree was binding on the parties; and the trial
court’s determination in contravention to the decree was barred by res
judicata. Id. at 762-63. Unlike the Hagens’
decree, the agreed, unappealed decree in Baxter specifically referenced
and divided gross retirement benefits, VA disability benefits, and all cost of
living increases. Id. at 762. And, unlike Raoul’s situation, in which he seeks to
enforce the language of the decree, Ruddle attempted to effect a
substantive change to a prior final decree’s express provisions.
In Berry, relied on in large part by the
court of appeals in this case, the parties entered into an agreement and
consent decree. 786 S.W.2d at 673. The decree
specified the wife would receive “twenty-five percent of . . . gross Air
Force disability retirement pay.” Berry v. Berry, 780 S.W.2d 846, 847
(Tex. App.—Dallas 1989), rev’d per curiam, 786 S.W.2d 672 (Tex. 1990) (emphasis
added). The husband later elected to accept VA disability benefits, and his
retirement pay was reduced accordingly. Berry,
786 S.W.2d at 673. The wife began receiving a
percentage of the reduced retirement pay and sought to enforce the decree’s
literal language that awarded her a portion of the husband’s gross retirement
pay. Id.
At the enforcement hearing, the wife introduced a statement from the Air Force
showing the husband’s gross Air Force disability retirement pay had not
changed, but the VA disability benefits were credited against the retirement
pay as a deduction and reduced the gross pay to a net amount:
As the statement
clearly indicates, Husband received gross pay in the amount of $2,422
with a VA waiver of $1,355 and an A.L.M.T. reduction of $9. After subtracting
this waiver and reduction, Husband was left with a net pay of $1,058.
Berry, 780 S.W.2d at 849. The trial court held the wife was
entitled to twenty-five percent of the husband’s net Air Force disability pay
of $1,058. Id. at 847-48. The court of appeals affirmed. Id. at 851. This Court noted that the original decree provided
for the wife to receive twenty-five percent of the husband’s gross pay,
not net pay; the decree was final; the decree was not void; and the
decree could not be substantively altered by using the USFSPA to collaterally
attack it:
This court has held
that, as with other final, unappealed judgments which are regular upon their
face, divorce judgments are not vulnerable to collateral attack. Although a
final judgment may be erroneous or voidable, it is not void and thus subject to
collateral attack if the court had jurisdiction of the parties and the subject
matter. Because the final judgment is voidable as opposed to void, the rule of
res judicata would apply. Under these cases, the subsequent adoption of the
USFSPA cannot be used to collaterally attack the Berrys’ final divorce decree.
786 S.W.2d at 673 (citations omitted). As a result, the
Court enforced the divorce decree according to its literal language that
awarded the wife a percentage of what she proved was the husband’s gross
retirement pay. See id. at 674.
And in Jones, 900 S.W.2d 786,
the consent decree entered pursuant to an agreement between the parties
provided as follows:
[Wife is awarded]
if, as, and when retirement is received by DONALD J. JONES, a monthly amount
equal to twenty-five percent (25%) of that monthly amount that a retired Major
with 20 years service will receive on the date DONALD J. JONES begins to
receive his retirement, with the same percentage of any and all costs of living
related increases to which DONALD J. JONES shall become entitled for the period
beginning on the date of retirement and ending on the death of DONALD J. JONES.
Id. at 787. Donald Jones later retired, accepted a disability
retirement amount in lieu of part of his regular retirement pay, and sought to
preclude payment of any of the disability retirement pay to his former wife
based on the USFSPA. Id.
The trial court enforced the decree as written. Id. In affirming, the court of
appeals held that Jones’s attempt to apply the USFSPA to alter the substantive
provisions of the decree was an attempt to avoid the effect of the unappealed
decree and was thus a prohibited collateral attack. Id. at 787-88. Similar to the outcome in Berry, the end result was that the
decree was enforced according to its original language. See id.
In Baxter, Berry, and Jones, there were
attempts to, in effect, modify or change a prior final decree’s provisions.
Here, Raoul does not attempt to attack, change, or alter the decree; he seeks
enforcement according to its literal language. If a trial court order does not
modify or amend the substantive division of property set out in a final decree,
then the court merely construes the decree, and its order is properly
classified as a clarification or enforcement order. See Tex. Fam. Code §§ 9.006-.007. Only an
attempt to judicially alter or change the substantive provisions of a final
decree constitutes a prohibited collateral attack. See Reiss, 118 S.W.3d at 442. The trial court’s clarification order in
this case did not change the decree’s substantive division of property and thus
did not permit a collateral attack on the decree.
Doris also contends the decree
awarded her a portion of Raoul’s “gross” or “total” military pay because courts
have held that language similar to language used in the Hagens’ decree encompasses all types of
military pay, including VA disability benefits. Her argument fails. First,
“military pay” is different from and does not include VA disability pay as we
have discussed above. Next, the literal language employed in this decree is
unambiguous, does not specify division of gross military pay, and does not
specify a division of VA disability benefits. See Shanks, 110 S.W.3d at 447. And, none of the cases Doris
references—Jones, 900 S.W.2d 786; Gallegos v. Gallegos, 788
S.W.2d 158 (Tex. App.—San Antonio 1990, no writ); or Ex parte Hovermale,
636 S.W.2d 828 (Tex. App.—San Antonio 1982, no writ)—support her
position. In Jones, the court of appeals did not consider whether
“military retirement pay” means “gross” military pay. See 900 S.W.2d 786. It enforced a decree that provided the wife
was to receive an amount set by formula. Id. at 787-88 (wife was awarded
“a monthly amount equal to twenty-five percent (25%) of that monthly amount
that a retired Major with 20 years service will receive on the date DONALD J.
JONES begins to receive his retirement,” together with cost of living
increases). In Hovermale and Gallegos, the decrees divided “gross
military retirement pay,” and because the decrees included the term “gross,”
the courts did not address whether a decree not including that term has the
same meaning. See Hovermale, 636 S.W.2d at 829 (noting the final decree
“requir[ed] relator to pay to his former wife a portion of his gross monthly
military retirement pay, based on a formula set out in the decree of divorce”);
Gallegos, 788 S.W.2d at 160 (the decree provided “IT IS ORDERED AND
DECREED that [appellee] shall have judgment against and recover from
[appellant] twenty-one and one-half percent (21.5%) of the gross present and
future military retirement pay received each month by [appellant]”).
IV.
Response to the Dissent
The dissent says our holding today
conflicts with Berry because the Hagens’ decree is similar to the Berry
decree in that neither specifically references VA disability compensation, yet
we held the Berry decree divided VA disability while we hold the Hagen
decree does not. With due respect, the dissent is mistaken. Neither the Berry decree nor the Hagens’
decree divided VA disability compensation, nor did we hold in Berry that the decree there did so.
In Berry, the original decree specified
the husband was to instruct a bank to “disburse to Wife monthly, as received,
at a bank or other address of her choice, twenty-five percent (25%) of said
Retirement Pay computed on the gross amount thereof before any deductions.”
Berry,
780 S.W.2d at 847 (emphasis added). The decree did not limit or specify the
type or amount of deductions that could be taken from the retirement pay. Under
the language of the decree, the type or amount of deductions did not matter
because the wife was to be paid an amount computed on the husband’s gross
retirement pay before deductions. Id.
The decree’s language made it clear the parties and the court contemplated the
possibility that in the future some types of deductions or reductions might be
applied to the gross retirement pay. They took that possibility into account
and provided for it. Id. at
847-49. The husband later attempted to collaterally attack the final, unappealed
decree. 786 S.W.2d at 673.
Contrary to the dissent’s position,
this Court did not hold that the decree divided VA disability benefits. The
Court held that the husband was barred from using the USFSPA to collaterally
attack the original decree, noting (1) the unappealed, final decree contained a
formula calculating the wife’s entitlement based on the “gross amount [of
retirement pay] before deductions” language, and (2) a copy of one of the
husband’s Air Force Retiree Account Statements showed the term “gross” pay was
used to indicate monthly pay before any deductions. Id. at 673 & n.1.
In the case before us, the Hagens’
original decree did not award Doris amounts “calculated on” Raoul’s gross, or
even total, retirement pay before deductions, as the decree in Berry
did. The Hagens’ decree plainly entitled Doris only to part of the Army or
military retirement pay Raoul received, if, as, and when he received it. As discussed
previously, such military retirement pay did not include VA disability
benefits. Thus, the trial court in this case did not modify the Hagens’ decree; it only
clarified that the decree did not divide VA disability pay that was or might
become payable to Raoul because of disability resulting from service-connected
personal injury or disease. The trial court in this case did not allow an
impermissible collateral attack on the decree, just as this Court did not allow
an impermissible collateral attack on the decree in Berry. See id. at 673; see also Tex.
Fam. Code § 9.007(a) (“A court may not amend, modify, alter, or change
the division of property made or approved in the decree of divorce or
annulment.”); Black’s Law Dictionary
278 (8th ed. 2004) (defining “collateral attack” as “[a]n attack on a judgment
in a proceeding other than a direct appeal”).
Although the dissent urges that the Hagens’ decree is void,
neither of the parties have taken that position. To the contrary, Doris has asserted the decree is not void. Of
course, whether a judgment or decree is void does not depend on what the
parties say; it depends on legal principles. See Brazzel v. Murray, 481
S.W.2d 801, 803 (Tex.
1972) (quoting Murchison v. White, 54 Tex. 78 (1880)) (“A void act is
one entirely null within itself, not binding on either party,
and which is not susceptible of ratification or confirmation. Its
nullity cannot be waived.”). But in this case, the trial court in 1976 had
jurisdiction over the parties and the subject matter, and it did not act
outside its capacity as a court. See Reiss v. Reiss, 118
S.W.3d 439, 443 (Tex.
2003). The trial court did not issue an advisory opinion about VA disability
benefits Raoul might later receive due to a disability emanating from his
military service; it did not address them at all.
The dissent recognizes that divorce
decrees divide future retirement benefits that are contingent on continued
future employment but contrasts VA disability benefits from that type of compensation
because “payments are not ‘earned’ during marriage and ‘are
not property.’” We do not disagree with the dissent’s statement, but it
is not relevant here because the Hagens’
decree simply did not divide Raoul’s VA disability pay. It divided his Army or
military retirement pay if, as, and when he received it.
Finally, the dissent says that
because this Court held in Berry that a
decree dividing military retirement pay also divided VA disability pay that
arose later, we should overrule Berry
and remand the case for Doris to reassert her claims for conversion and breach
of fiduciary duty because she relied on Berry.
We decline to do so for at least three reasons. First, as we have explained
above, we do not agree that our decision in this case conflicts with Berry and we decline to overrule Berry. Second, Doris did not—as the
dissent claims—rely on Berry
in the trial court and court of appeals for the proposition that a decree
dividing military retirement pay also divides VA disability pay arising later.
In the trial court, the court of appeals, and this Court, Doris cited Berry only for the proposition that the Hagens’ decree was final
and could not be modified by the trial court. She did not include Berry in her
brief of authorities to the trial court, nor did her counsel mention it at the
hearing on her motion for contempt except one time in connection with res
judicata:
[This]
case is protected by res judicata. No one ever appealed this case. And there
are many, many cases on that. Two cases that I haven’t included in my brief,
one is Berry versus Berry, which is a Supreme Court of Texas
case.
In her briefs at
the court of appeals and this Court, Doris again cited Berry only once, and the reference
was in regard to the res judicata issue:
A trial court may
not amend, modify, alter or change the division of property made or approved in
a decree of divorce or annulment. It is limited to an order to assist in the
implementation of or to clarify the prior order . . . . Berry
v. Berry, 786 S.W.2d 672 (Tex. 1990).
Third, Doris asserted claims against Raoul for breach of
fiduciary duty and conversion in the trial court. The claims were denied, and Doris has not presented the issues on appeal. The issue
Doris pursued in the court of appeals was whether the trial court’s order
modified or clarified the Hagens’
original decree.
V.
Conclusion
The Hagens’ 1976 divorce decree is unambiguous.
It provides Doris is to receive a percentage
of the Army Retirement Pay or Military Retirement Pay Raoul receives. It does
not provide she is to receive payments calculated on any other basis, or that
she is to receive part of his VA disability compensation. The trial court’s
order was a proper clarification of, and not an impermissible modification of,
the decree.
On the surface, it appears that
Raoul’s election to receive VA benefits has worked an inequity on Doris. But the language used in divorce decrees is
important, and we must presume the divorce court chose it carefully, especially
given the frequency of attempts to enforce decrees—as was the case here—through
contempt orders. The meager record before us shows that Doris
did not appeal from the 1976 decree when it was entered over thirty years ago.
There is no indication she did not then have full
opportunity to present her legal and equitable positions, present her proof,
and request the decree she wanted the trial court to enter.
We conclude Doris
has had full opportunity to seek relief. The record does not justify a remand
for further litigation of the issues. We reverse the judgment of the court of
appeals and affirm the judgment of the trial court.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: May 1, 2009
