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CourtListener opinion 4285541
Citation: Domestic Relations Order · Date unknown · US
- Extracted case name
- In re Marriage of Bowe & Perry
- Extracted reporter citation
- Domestic Relations Order
- Docket / number
- pending
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 4285541 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to QDRO procedure / domestic relations order issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
Retrieval annotation
Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: QDRO procedure / domestic relations order issues
Evidence quotes
QDRO“nd to that portion of the United States disposable retired or retainer pay to be paid as a result of [Craig's] service in the United States Air Force and reserves subject to [Audrey's] award as more fully set out in the Qualified Domestic Relations Order [QDRO] to be entered herein. The [QDRO] will deal with the benefits from the date of marriage to the date of divorce. All other benefits are awarded to [Craig]. [Emphasis added.] 2 The decree was originally signed on December 19, 1996. On December 30, the trial court granted Craig's agreed motion to correct the December 19 decree, which Craig incorrectly st”
retirement benefits“Air Force Reserve. During his reserve duty, Craig worked as a pilot for a commercial airline. In 1996, Craig filed for divorce. The trial court signed a final divorce decree on December 30, 1996,2 and as relevant to this appeal, addressed Craig's military-retirement benefits: [Craig] is awarded the following as [his] sole and separate property, and [Audrey] is divested of . . . .... . . . [a]ll right, title, and interest in and to that portion of the United States disposable retired or retainer pay to be paid as a result of [Craig's] service in the United States Air Force and reserves subject to [Audrey's] award as m”
domestic relations order“, title, and interest in and to that portion of the United States disposable retired or retainer pay to be paid as a result of [Craig's] service in the United States Air Force and reserves subject to [Audrey's] award as more fully set out in the Qualified Domestic Relations Order [QDRO] to be entered herein. The [QDRO] will deal with the benefits from the date of marriage to the date of divorce. All other benefits are awarded to [Craig]. [Emphasis added.] 2 The decree was originally signed on December 19, 1996. On December 30, the trial court granted Craig's agreed motion to correct the December 19 decree, which Craig incorrec”
valuation/division“- FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 324-578647-15 ---------- MEMORANDUM OPINION1 ---------- Appellant Audrey Diane Gourley appeals from the trial court's judgment declaring a 1998 divorce decree void and declaring the property division as stated in the prior 1996 divorce decree enforceable. Because we agree with the trial court that the 1998 divorce decree was void, we affirm the trial court's declaratory judgment. 1 See Tex. R. App. P. 47.4. I. BACKGROUND A. THE 1996 DECREE On June 11, 1978, Audrey and Appellee Craig Neil Gourley were married. During the marriage, Craig serve”
Source and provenance
- Source type
- courtlistener_qdro_opinion_full_text
- Permissions posture
- public
- Generated status
- machine draft public v0
- Review status
- gold label pending
- Jurisdiction metadata
- US
- Deterministic extraction
- reporter: Domestic Relations Order
- Generated at
- May 14, 2026
Related public corpus pages
Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00228-CV
AUDREY DIANE GOURLEY APPELLANT
V.
CRAIG NEIL GOURLEY APPELLEE
----------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 324-578647-15
----------
MEMORANDUM OPINION1
----------
Appellant Audrey Diane Gourley appeals from the trial court's judgment
declaring a 1998 divorce decree void and declaring the property division as
stated in the prior 1996 divorce decree enforceable. Because we agree with the
trial court that the 1998 divorce decree was void, we affirm the trial court's
declaratory judgment.
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
A. THE 1996 DECREE
On June 11, 1978, Audrey and Appellee Craig Neil Gourley were married.
During the marriage, Craig served as an officer in the United States Air Force
until October 1988, when he separated from active duty to serve with the United
States Air Force Reserve. During his reserve duty, Craig worked as a pilot for a
commercial airline. In 1996, Craig filed for divorce. The trial court signed a final
divorce decree on December 30, 1996,2 and as relevant to this appeal,
addressed Craig's military-retirement benefits:
[Craig] is awarded the following as [his] sole and separate property,
and [Audrey] is divested of . . .
....
. . . [a]ll right, title, and interest in and to that portion of the
United States disposable retired or retainer pay to be paid as a
result of [Craig's] service in the United States Air Force and reserves
subject to [Audrey's] award as more fully set out in the Qualified
Domestic Relations Order [QDRO] to be entered herein. The
[QDRO] will deal with the benefits from the date of marriage to the
date of divorce. All other benefits are awarded to [Craig].
[Emphasis added.]
2
The decree was originally signed on December 19, 1996. On December
30, the trial court granted Craig's agreed motion to correct the December 19
decree, which Craig incorrectly styled as a motion for judgment nunc pro tunc,
and signed a decree that same day to increase Audrey's allowed owelty-lien
amount. See generally Tex. R. Civ. P. 306a.6 & 316 (allowing for nunc pro tunc
correction of clerical mistakes in judgment after plenary power expires), 329b
(addressing requirements for motions to modify, correct, or reform the judgment).
The division of Craig's military-retirement benefits was not affected by the
corrected December 30 decree. Our use of "the 1996 decree" in this opinion
refers to the decree signed by the trial court on December 30.
2
See generally Tex. Fam. Code Ann. § 7.003 (West 2006) (requiring trial court to
address retirement benefits in property division). The trial court then awarded
Audrey a one-half, separate-property interest in Craig's military-retirement
benefits:
[Audrey] is awarded the following as [her] sole and separate
property, and [Craig] is hereby divested of all right, title, interest, and
claim in and to . . .
....
. . . [o]ne-half of [Craig's] retirement benefits from the United
States Air Force and Reserves from the date of marriage to the
date of divorce, provided that, without affecting the finality of this
decree, the parties may submit a separate [QDRO] at a later date, in
order to effectuate this award. [Emphases added.]
Audrey was not represented by counsel during the divorce proceedings. No
party appealed from the 1996 decree.
B. THE 1998 DECREE
On April 13, 1998—almost sixteen months after the trial court signed the
1996 decree—Craig filed an agreed motion for judgment nunc pro tunc asking
the trial court to correct the 1996 decree to add language required by the United
States Air Force, which had been "inadvertently omitted" from the 1996 decree.
That same day, the trial court granted Craig's motion, entering a decree that
changed the language dividing Craig's military-retirement benefits (1) to award
Craig as his separate property "[a]ll right, title and interest in and to that portion of
the United States Air Force disposable retired or retainer pay to be paid as a
3
result of [Craig's] service in the United States Air Force and Air Force Reserve
not awarded in this Decree to Audrey" and (2) to award Audrey as her separate
property
[a]ll right, title and interest in and to fifty percent (50%) of the United
States Air Force disposable retired or retainer pay to be paid as a
result of [Craig's] service in the United States Air Force and Air
Force Reserve, and fifty percent (50%) of all increases in the United
States Air Force disposable retirement or retainer pay due to cost of
living or other reasons, if, as, and when received. [Emphasis
added.]
The trial court further included language required by federal law:
Payment of United States Air Force Retirement Pay
The Court finds, in accordance with the Uniformed Services
Former Spouses' Protection Act, 10 U.S.C. Section 1408, as follows:
....
. . . It is intended by this Court and the parties that the
secretary of the Air Force or his designee make the payments due to
[Audrey] of her interest in the retirement benefits awarded in this
decree directly to her.
IT IS FURTHER ORDERED AND DECREED that the
Secretary of the Air Force or his designated agent will pay to
[Audrey] directly, each month, her interest awarded in this decree in
the United States Air Force disposable retired or retainer pay paid as
a result of [Craig's] service in the United States Air Force and the Air
Force Reserves, plus fifty percent (50%) of all cost-of-living or other
increases in the United States Air Force disposable retired or
retainer pay, on a monthly basis if, as and when that retirement
pay is due to be paid. [Emphasis added.]
Craig's divorce attorney added this language at the request of the United States
Department of Defense. The 1998 decree also included a finding that Craig was
retired from the United States Air Force "at the time this case was tried"—
4
December 19, 1996. Again, Craig's attorney included this language in the
proposed decree because the Department of Defense informed him "that that
[specific] language needed to be involved."
C. DECLARATORY JUDGMENT
In early 2011, Craig left reserve duty and returned to active duty with the
United States Air Force. He retired from the United States Air Force on July 1,
2015. That same day, Craig filed a declaratory-judgment action in the same trial
court that had entered the 1996 and 1998 decrees, seeking a declaration that the
value of Audrey's one-half interest in his military-retirement benefits must be
determined as of the date of the divorce, not the date of Craig's retirement as
asserted by Audrey and as indicated in the 1998 decree. See generally Tex.
Fam. Code Ann. § 9.001 (West Supp. 2017) (allowing party affected by property
division to file suit to enforce in court that entered decree). He averred that the
1998 decree was void because it effected a substantive and material change in
the property division awarded in the 1996 decree; thus, the division as stated in
the 1996 decree was the operative division of Craig's military-retirement benefits.
Audrey filed a counterpetition for a declaration that the property division in the
1998 decree was the applicable division of Craig's retirement benefits because it
was based on a Rule 11 agreement. See Tex. R. Civ. P. 11.
Craig and Audrey filed multiple motions for summary judgment, which the
trial court denied. At the ensuing January 6, 2017 bench trial, Craig testified that
he had never entered into an agreement with Audrey to substantively change the
5
division of his military-retirement benefits as awarded in the 1996 decree.
Audrey testified that during a meeting she had with Craig and his attorney in his
attorney's office in 1998 before Craig filed the 1998 nunc pro tunc motion,3 they
discussed the change in the division of Craig's military-retirement benefits to
clarify that she would receive one-half of the benefits up to the time of his
retirement. In short, Audrey asserted that the 1998 decree represented an
enforceable Rule 11 agreement to substantively change the award of Craig's
military-retirement benefits. Craig testified that Audrey's asserted meeting never
occurred and that they never agreed to substantively change the property
division. Craig's divorce attorney and the attorney's legal assistant likewise
testified that such a meeting never took place. Craig's divorce attorney also
testified that the language added in the 1998 decree—that Craig was retired at
the time of the 1996 divorce and that Audrey's one-half interest in Craig's military
retirement included the years between the 1996 divorce and Craig's retirement
date—was at the specific request of the Department of Defense and that there
was no agreement between Craig and Audrey in 1998 to substantively change
the property division reflected in the 1996 decree.
At the conclusion of the evidence, the trial court orally found that the
property-division change in the 1998 decree was substantive, that Craig did not
intend a substantive change by moving for a judgment nunc pro tunc, and that
3
Audrey was not represented by counsel until Craig filed his declaratory-
judgment petition in 2015.
6
the 1998 decree resulted in a substantial and inequitable windfall in Audrey's
favor. But the trial court deferred its final "rendition." On January 20, 2017, the
trial court issued a letter ruling to the parties concluding that the 1998 decree was
void because it effected a substantive change from the 1996 decree and was
entered outside of the trial court's plenary power. It further found that there was
no agreement between Craig and Audrey to substantively change the division of
Craig's military-retirement benefits in favor of Audrey and specified that it found
Audrey's testimony to be less credible than that of Craig, his divorce attorney,
and the attorney's legal assistant. In the letter, the trial court granted Craig's
request for a declaration that Audrey's one-half of the benefit be computed from
the date of the marriage to the date of the divorce. Finally, the trial court
instructed counsel to "present an order to the Court within fourteen days."
On March 9, 2017, Craig filed a motion requesting that the trial court sign
the proposed declaratory judgment he attached to the motion. The trial court
signed the declaratory judgment on April 7, reflecting the findings and
conclusions from the letter ruling and holding that the 1996 decree was "revived."
Audrey's motion for new trial was overruled by operation of law. See Tex. R. Civ.
P. 329b(c).
D. ISSUES TO ADDRESS ON APPEAL
In five issues, Audrey appeals and argues that the trial court erred by
concluding that the 1998 divorce decree was void and not an enforceable Rule
11 agreement and by declaring the 1996 decree enforceable. Audrey argues in
7
her sixth issue that the trial court erred by denying her motions for summary
judgment for the same reasons its declaratory judgment was in error.
We begin with issue six, challenging the trial court's denial of Audrey's
summary-judgment motions. After the trial court denied all of the summary-
judgment motions filed by Craig and Audrey, the judge sat as the fact-finder and
held a trial on the merits. Where a summary-judgment motion is denied by the
trial court and the case is tried on its merits, the order denying the summary-
judgment motion is not reviewable on appeal. See Ackermann v. Vordenbaum,
403 S.W.2d 362, 365 (Tex. 1966); Collier v. Moe, No. 03-17-00340-CV, 2018 WL
1192454, at *1 (Tex. App.—Austin Mar. 8, 2018, no pet.) (mem. op.); Hobby
Lobby Stores, Inc. v. Standard Renewable Energy, LP, No. 02-15-00124-CV,
2016 WL 4247969, at *7 n.13 (Tex. App.—Fort Worth Aug. 11, 2016, pet. denied)
(mem. op.). Thus, we overrule issue six and turn to Audrey's issues directed to
the trial court's declaratory judgment—issues one through five.4
4
Even though Audrey presents five distinct issues in her statement of the
issues challenging the declaratory judgment, she conflates and mixes the
arguments attacking the declaratory judgment under each issue. For example,
issue one is stated as, "The Trial Court Erred in Ruling the 1998 Decree was
Void." But in arguing issue one, Audrey briefs whether Craig's contractual
defenses and declaratory-judgment action were impermissible collateral attacks,
which is part of her fourth issue—whether the 1998 decree was a contract—and
also argued under issue five—whether the trial court made a substantive
alteration to the 1998 decree's property division. We have attempted to address
each argument raised by Audrey in support of the validity of the 1998 decree and
decline to attach her arguments to a specific issue. See generally Thunderbird
Supply Co., Inc. v. Williams, 161 S.W.3d 731, 733 n.1, 736 (Tex. App.—
Beaumont 2005, no pet.) (noting argument in brief combined seven issues and
addressing arguments raised without specifying issue number).
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II. JURISDICTION
Audrey asserts that the trial court erred by declaring the 1998 decree void
and unenforceable because it was rendered outside its plenary power. We
review the trial court's determination regarding subject-matter jurisdiction de
novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004) ("Appellate courts reviewing a challenge to a trial court's subject matter
jurisdiction review the trial court's ruling de novo."); cf. Alaimo v. U.S. Bank Trust
Nat'l Ass'n, No. 02-16-00123-CV, 2017 WL 3633297, at *3 (Tex. App.—Fort
Worth Aug. 24, 2017, no pet.) (recognizing that trial court loses subject-matter
jurisdiction over case once plenary power expires).
Here, the trial court's 1996 decree clearly awarded Audrey one-half of
Craig's military-retirement benefits as of the date of divorce. The 1998 decree
was a substantive and material change from the 1996 decree in this respect and,
hence, cannot be considered a permissible and valid nunc pro tunc judgment or
an allowable enforcement of the division stated in the 1996 decree. See Tex.
Fam. Code Ann. § 9.007(a)–(b); Shanks v. Treadway, 110 S.W.3d 444, 449
(Tex. 2003); Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978). Accordingly,
the trial court signed the 1998 decree clearly outside of its plenary power to do
so, and Audrey seems to concede as much in her brief: "[T]he fact that the
court's plenary power had expired has no bearing on the validity of the [1998
decree]." See Tex. R. Civ. P. 329b(d); In re Marriage of Bowe & Perry, Nos. 14-
9
16-00551-CV, 14-16-00557-CV, 2017 WL 6102779, at *4–5 (Tex. App.—Houston
[14th Dist.] Dec. 7, 2017, no pet.) (mem. op.).
What Audrey does argue, however, is that the 1998 decree—a "consent
judgment"—arose out of an enforceable, contractual Rule 11 agreement between
Audrey and Craig. Audrey contends that the divorce case was "pending" as
contemplated by Rule 11 based on the agreed, contractual April 13, 1998 motion
for judgment nunc pro tunc; thus, the trial court could enforce this Rule 11
agreement by signing the agreed 1998 decree even though its plenary power
had expired. See generally Tex. R. Civ. P. 11 (allowing parties' agreement to be
enforced if "touching any suit pending"). But as Craig points out, the 1996
decree became final after no party appealed; therefore, there was no case
pending as contemplated by Rule 11. Cf. Cunningham v. Zurich Am. Ins. Co.,
352 S.W.3d 519, 525 (Tex. App.—Fort Worth 2011, pet. denied) (holding case on
appeal was considered pending for purposes of Rule 11, allowing trial court to
enforce agreement); In re Guthrie, 45 S.W.3d 719, 728 (Tex. App.—Dallas 2001,
pet. denied) (concluding action is pending under Rule 11 "until all issues have
been determined, final judgment has been rendered, and all postjudgment
motions have been disposed of"). To conclude otherwise would allow parties to
agree, through Rule 11 or other contractual arrangement, to vest a trial court with
subject-matter jurisdiction where none exists. Once plenary power has expired,
a trial court's jurisdiction cannot be vested by party agreement. See In re
10
Vaishangi, Inc., 442 S.W.3d 256, 260–61 (Tex. 2014) (orig. proceeding); In re
S.A.H., 465 S.W.3d 662, 665 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Audrey also asserts that Craig's declaratory-judgment action and
contractual defenses were impermissible collateral attacks on the property
division stated in the 1998 decree, which Craig did not appeal and which was
presumptively valid. But the 1998 decree was entered outside of the trial court's
subject-matter jurisdiction and accordingly was subject to collateral attack as a
void judgment. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009) (holding
void, but not voidable, divorce decree is subject to collateral attack); Alfonso v.
Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (recognizing subject-matter jurisdiction
cannot be waived and may be raised at any time). Even though no party
appealed from the 1998 decree, the record affirmatively demonstrates that the
trial court lacked the subject-matter jurisdiction to enter it. Thus, the presumption
that the 1998 decree was valid based on its finality disappears, rendering the
1998 decree subject to collateral attack at any time. See S.A.H., 465 S.W.3d at
665.
For these reasons, we overrule Audrey's five issues directed to the trial
court's declaratory judgment.
III. CONCLUSION
Because the division of Craig's military-retirement benefits in the 1998
decree effected a substantive and material, not clerical, change from the division
as stated in the 1996 decree—a final and enforceable judgment at the time the
11
1998 decree was signed—the 1998 decree was void as entered outside the trial
court's plenary power. See generally Tex. Fam. Code Ann. § 9.007(b) (providing
trial court does not have the power to change the property division stated in a
final divorce decree). Audrey and Craig's agreement to move the trial court to
sign the 1998 decree did not vest the trial court with the subject-matter
jurisdiction to do so. And the trial court did not err by so concluding in its
declaratory judgment. Accordingly, we affirm the trial court's declaratory
judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.
DELIVERED: June 14, 2018
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