CourtListener opinion 2889269

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NO. 07-02-0421-CV 

 IN THE COURT OF APPEALS 

 FOR THE SEVENTH DISTRICT OF TEXAS 

 AT AMARILLO 

 PANEL E 

 MARCH 25, 2003 

 ______________________________ 

 IN THE MATTER OF THE MARRIAGE OF 

 PAUL N. BROGDON AND BRENDA BROGDON 

 _________________________________ 

 FROM THE 317TH DISTRICT COURT OF JEFFERSON COUNTY; 

 NO. C-128,685; HONORABLE LARRY THORNE, JUDGE 

 _______________________________ 

 Before QUINN and REAVIS, JJ. and BOYD, S.J. (1) 
 
 MEMORANDUM OPINION (2) 

 Appellant Paul N. Brogdon presents nine points of error seeking to reverse a 
judgment that he pay Brenda Chance, formerly Brenda Brogdon, $55,664 plus $750 costs 
and bearing ten percent interest. By his points of error, Paul asserts the trial court erred as 
a matter of law (1) by substantively changing the terms of the 1986 divorce decree and 
QDRO (3) after it had lost plenary jurisdiction; (2) by substantively changing the express 
terms of the 1986 divorce decree and QDRO to re-allocate his savings plan benefits 
contrary to Texas law; (3) in substantively changing the terms of the decree because such 
change was barred by res judicata; (4) by giving retroactive effect to its clarification order; 
(5) by assessing interest in its September 4, 2002 order at ten percent requiring a remittitur 
and reformation of judgment if merited; (6) by reducing an enforceable QDRO to a money 
judgment without additional service of process: (7) in awarding Brenda a proportionate part 
of his first distribution from his savings plan because the 1986 decree, QDRO, and May 
17, 2002 findings awarded said distribution exclusively to him as his separate property; and 
(8) in its calculations under ERISA (4) requiring a suggestion of remittitur or a reversal and 
remand for proper recalculation. By his ninth point, Paul requests that if this Court 
remands the matter to the trial court for recalculation, it do so with additional instructions 
in light of the uncertainty of the actuarial assumptions being employed in the deposition 
evidence of non-attorneys being embraced by the trial court. Based upon the rationale 
expressed herein, we affirm the judgment signed September 4, 2002. 
 
 Brenda and Paul were divorced in 1986 and their decree contained a QDRO which, 
among other provisions, awarded Brenda one-half of the interest in Paul's Chevron Profit 
Sharing/Savings Plan. Several months after the divorce, Chevron's attorneys informed 
Brenda's attorney that in order for the decree to qualify as a QDRO, both parties and their 
attorneys needed to sign an agreement letter. By letter dated December 15, 1986, to 
Paul's attorney, Brenda's attorney requested Paul's signature and indicated that as soon 
as he signed, Brenda would also sign and the letter would be returned to Chevron's 
attorneys. A second letter requesting Paul's signature was again sent on January 28, 
1987. The letter, however, remained unsigned. Brenda testified that she believed she was 
not eligible to receive her share of the savings plan until Paul reached retirement age; thus, 
she took no further action until she sought new counsel in 1999 in response to a letter from 
Chevron explaining that the agreement letter had not been signed and that because Paul 
had made withdrawals from the plan, the funds were insufficient to cover her share. (5) 
Brenda's new attorney wrote Paul's attorney again requesting that he sign the agreement 
letter within seven days, threatening legal action if he failed to do so. Paul did not comply 
and Brenda moved to enforce the judgment. On January 19, 2000, the trial court signed 
an order compelling Paul to sign. After Brenda's motion was amended a third time, the trial 
court heard evidence and on September 4, 2002, signed a money judgment awarding her 
$55,664 (6) plus costs and interest at the rate of ten percent annually. A week later the trial 
court signed a QDRO containing a notice to Chevron's Plan Administrator that the QDRO 
was not an agreement between the parties, but was in fact an order of the court that did 
not require the parties' signatures. 
 
 Before we address the issues, we first review portions of record applicable to most, 
if not all, of Paul's issues. At the hearing on May 17, 2002, the trial court heard Brenda's 
third amended motion to enforce judgment, at which Brenda and Paul both appeared and 
testified. At that time, Paul's pleadings included a general denial, a specific denial that the 
QDRO is an instrument of the Court or that it needs to be modified, and a prayer for 
general relief and attorney's fees. His pleadings, however, did not raise any affirmative 
defenses, i.e. preemption of state law by ERISA, res judicata, or a plea to the jurisdiction 
of the court. Before announcing ready, counsel for Brenda outlined her position. Then, 
counsel for Paul advised the court: 
 
 1. The history stated by Brenda's attorney was substantially correct; 
 
 2. Acknowledge no real fact disputes; 
 
 3. Paul made withdrawals under the erroneous assumption that Chevron 
had sent him only his portion of the money; and 
 
 4. Paul \obviously got some money that this lady was entitled to.