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CourtListener opinion 4912212
Date unknown · US
- Extracted case name
- pending
- Extracted reporter citation
- 96 S.W.3d 227
- Docket / number
- pending
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 4912212 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to ERISA / defined contribution 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: ERISA / defined contribution issues
Evidence quotes
QDRO“s and expenses at Redeemers Academy, including all payments required for summer school and / or daycare. c. IT IS ORDERED AND DECREE[D] that [Wife] is awarded the sum of $38,000, in favor of [Wife] against [Husband]'s 401 (k), secured by payment through a Qualified Domestic Relations Order (QDRO). d. IT IS ORDERED AND DECREE[D] The IRS tax debt of the parties for tax [years 2015, 2016, 2017, 2018, and 2019], together with all penalties and interest due thereon, which [Husband] is ordered to timely pay. Husband is further ordered to indemnify Wife 1 Wife does not argue prejudice stemming from noncompliance by Husband with Rule 34.6(c).”
retirement benefits“debt" of the parties incurred during the marriage and to indemnify 3 In his reply brief, Husband argues the trial court was required to apply Family Code section 3.007(c), which states, "The separate property interest of a spouse in a defined contribution retirement plan may be traced using the tracing and characterization principles that apply to a nonretirement asset." Tex. Fam. Code Ann. § 3.007(c). First, the use of "may" indicates that this is not the exclusive means of apportioning separate and community interests in a defined contribution account. See Code Construction Act, Tex. Gov't Code Ann. § 311.016(1) ("‘May' c”
401(k)“nrewaju (Wife). In four issues identified in his notice of appeal on a partial reporter's record, Husband argues the trial court reversibly erred by (1) ordering Husband to pay the school fees of the couple's children, (2) awarding Wife $38,000 from Husband's 401(k) account, (3) ordering Husband to pay tax debt incurred during the marriage, and (4) ordering Husband to pay child support. We affirm. I. ANALYSIS Husband filed this appeal on a partial reporter's record. Texas Rule of Appellate Procedure 34.6(c)(1) states, "If the appellant requests a partial reporter's record, the appellant must include in the request a”
domestic relations order“nses at Redeemers Academy, including all payments required for summer school and / or daycare. c. IT IS ORDERED AND DECREE[D] that [Wife] is awarded the sum of $38,000, in favor of [Wife] against [Husband]'s 401 (k), secured by payment through a Qualified Domestic Relations Order (QDRO). d. IT IS ORDERED AND DECREE[D] The IRS tax debt of the parties for tax [years 2015, 2016, 2017, 2018, and 2019], together with all penalties and interest due thereon, which [Husband] is ordered to timely pay. Husband is further ordered to indemnify Wife 1 Wife does not argue prejudice stemming from noncompliance by Husband with Rule 34.6(c).”
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: 96 S.W.3d 227
- 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
Affirmed and Memorandum Opinion filed September 16, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00489-CV
BABATUNDE AOGO, Appellant
V.
NIHINLOLA OLANREWAJU, Appellee
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCV-244478
MEMORANDUM OPINION
Pro se appellant Babatunde Aogo (Husband) appeals the trial court's final
decree of divorce dissolving his marriage to appellee Nihinlola Olanrewaju (Wife).
In four issues identified in his notice of appeal on a partial reporter's record,
Husband argues the trial court reversibly erred by (1) ordering Husband to pay the
school fees of the couple's children, (2) awarding Wife $38,000 from Husband's
401(k) account, (3) ordering Husband to pay tax debt incurred during the marriage,
and (4) ordering Husband to pay child support. We affirm.
I. ANALYSIS
Husband filed this appeal on a partial reporter's record. Texas Rule of
Appellate Procedure 34.6(c)(1) states, "If the appellant requests a partial reporter's
record, the appellant must include in the request a statement of the points or issues
to be presented on appeal and will then be limited to those points or issues." Tex.
R. App. P. 34.6(c)(1). While complete omission of issues under Rule 34.6(c) is
fatal to those issues, the supreme court has "adopted a more flexible approach in
certain cases . . . when a rigid application of Rule 34.6 would result in denying
review on the merits, even though the appellee has not established any prejudice
from a slight relaxation of the rule." Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.
2002).1
Husband stated the following in his notice of appeal:
3. Babatunde Aogo desires to appeal part of the judgment.
a. IT IS ORDERED that the children shall be enrolled and remain at
the Redeemers Academy located at 5371 E. 5th street, Katy, Texas
77493, or any daycare chosen by [Wife], until they are enrolled in a
school program of the school to which [Wife]'s residence is zoned to.
b. IT IS FURTHER ORDERED that [Husband] shall pay for the
children's school fees and expenses at Redeemers Academy,
including all payments required for summer school and / or daycare.
c. IT IS ORDERED AND DECREE[D] that [Wife] is awarded the
sum of $38,000, in favor of [Wife] against [Husband]'s 401 (k),
secured by payment through a Qualified Domestic Relations Order
(QDRO).
d. IT IS ORDERED AND DECREE[D] The IRS tax debt of the
parties for tax [years 2015, 2016, 2017, 2018, and 2019], together
with all penalties and interest due thereon, which [Husband] is
ordered to timely pay. Husband is further ordered to indemnify Wife
1
Wife does not argue prejudice stemming from noncompliance by Husband with Rule
34.6(c).
2
for any liability she incurs as a result of the tax debts[.]
4. [sic] IT IS ORDER[ED] that Husband is obligated to pay and shall
pay to [Wife] child support of seven hundred and eight dollars and
zero cents ($708.00) per month[.]
While this language from the notice of appeal is not styled precisely as "points or
issues," following the supreme court's guidance in Bennett, we conclude it is
sufficient in this case to preserve issues that the trial court reversibly erred by
(1) ordering Husband to pay the school fees of the couple's children, (2) awarding
Wife $38,000 from Husband's 401(k) account, (3) ordering Husband to pay tax
debt incurred by the parties during the marriage and indemnify Wife for same, and
(4) ordering Husband to pay $708.00 per month in child support. See id.
Husband raises numerous other issues in his brief, at different times
identifying between six and 26 issues on appeal. To the extent Husband's
complaints fall outside the four issues we have identified above, we conclude they
are barred due to noncompliance with Rule 34.6(c). Tex. R. App. P. 34.6(c)(1)
(appeal on partial reporter's record is "limited to those points or issues" included in
statement of points or issues on appeal); see Bennett, 96 S.W.3d at 230 (observing
that, absent complete record on appeal and compliance with Rule 34.6(c), court of
appeals must presume that omitted items support trial court's judgment);
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (same); see also
Garcia v. Sasson, 516 S.W.3d 585, 591 (Tex. App.—Houston [1st Dist.] 2017, no
pet.) (applying Bennett and overruling issues not raised in Rule 34.6(c) statement
of issues); cf. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (explaining
that courts may not stray from procedural rules simply because litigant represented
self).
A. School fees
On the issue of school fees, Husband states that he "was also ordered to pay
3
the children['s] daycare with the addition to already ordered child support."
Husband then cites to the relevant portion of the trial court's decree. Husband does
not explain what, if any, reversible error the trial court committed by ordering
Husband to pay these fees. We conclude this issue presents nothing for our review.
See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (issues on appeal do not meet requirements of
Texas Rules of Appellate Procedure if they do not point out any error allegedly
committed by trial court).
We overrule Husband's issue challenging payment of school fees.
B. 401(k)
Husband next argues the trial court reversibly erred by awarding Wife
$38,000 in community property from Husband's 401(k) account, arguing that the
trial court applied the wrong standard in calculating the community interest in the
account and that the amount of the award was more than the value of the
community interest. Husband's 401(k) is a defined-contribution plan.2 See Boyd v.
Boyd, 67 S.W.3d 398, 409 (Tex. App.—Fort Worth 2002, no pet.). "[I]n order to
determine the community interest in a defined contribution plan, courts subtract the
value of the plan at the time of marriage from the value of the plan at the time of
divorce." Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.]
2000, no pet.).
Here, account statements show the value of the 401(k) account on the date of
2
A defined-contribution plan, in which a participant "has a separate account similar to a
savings account into which the employee and employer make contributions," is distinguishable
from a defined-benefit plan, which "promises employees a monthly benefit beginning at
retirement . . . based on the number of years of service the employee has at the time of
retirement, along with other factors such as age and salary history." Smith v. Smith, 22 S.W.3d
140, 148–49 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
4
the marriage was $24,617.57. The latest statement in the record, from
approximately one month before the trial court rendered the divorce decree, shows
a value of $99,478.25. Cf. Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) ("The value of community assets is generally
determined as of the date of divorce or as close to that date as possible.").
Applying the Smith formula results in a community interest in the 401(k) account
of $74,860.68. See 22 S.W.3d at 149. This clearly exceeds the $38,000 from the
401(k) awarded to Wife.3
We overrule Husband's challenge to the trial court's award to Wife of
$38,000 from Husband's 401(k) account.
C. IRS tax debt
Husband next argues the trial court reversibly erred by ordering Husband to
pay the "IRS tax debt" of the parties incurred during the marriage and to indemnify
3
In his reply brief, Husband argues the trial court was required to apply Family Code
section 3.007(c), which states, "The separate property interest of a spouse in a defined
contribution retirement plan may be traced using the tracing and characterization principles that
apply to a nonretirement asset." Tex. Fam. Code Ann. § 3.007(c). First, the use of "may"
indicates that this is not the exclusive means of apportioning separate and community interests in
a defined contribution account. See Code Construction Act, Tex. Gov't Code Ann. § 311.016(1)
("‘May' creates discretionary authority or grants permission or a power."). Moreover, in Texas,
property possessed by either spouse during or on dissolution of the marriage is presumed to be
community property absent clear and convincing evidence to the contrary. Tex. Fam. Code Ann.
§ 3.003. The spouse claiming certain property as separate must trace and clearly identify the
property claimed to be separate. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). Here, while the account statement at the time of
marriage lists specific shares in the account, no such listing is provided in the statement near the
time of divorce. Accordingly, even if Husband had raised this argument in his initial brief,
Husband has not met his burden to clearly trace his separate shares in the 401(k) account to show
by clear and convincing evidence that the Smith formula results in a miscalculation of the
community interest in the 401(k) account. See 22 S.W.3d at 149; see also Metropolitan Transit
Auth. of Harris Cnty. v. Douglas, 544 S.W.3d 486, 495 n.13 (Tex. App.—Houston [14th Dist.]
2018, pet. denied) ("Arguments raised for the first time in a reply brief are waived."); Tex. R.
App. P. 38.3 ("The appellant may file a reply brief addressing any matter in the appellee's
brief.").
5
Wife for same, contending that the trial court does not have jurisdiction to make a
determination as to IRS debt. "While a tax is technically not a debt and a court has
no power to relieve either party of personal liability to the taxing authority, in
dividing property between spouses a court may take the tax liability into
consideration and may even require one party to assume the other's liability or
require reimbursement for taxes paid." Able v. Able, 725 S.W.2d 778, 780 (Tex.
App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.); see Mullins v. Mullins, 785
S.W.2d 5, 7–8 (Tex. App.—Fort Worth 1990, no writ) ("[T]his is particularly true
when both parties are liable for the debt under federal law."). We conclude the trial
court acted within its authority in ordering Husband to pay the debt from, and
indemnify Wife for, federal tax liability incurred during the marriage.
We overrule Husband's challenge to the trial court's order concerning
payment of tax liability.
D. Child support
The trial court ordered Husband to make monthly child-support payments of
$708.00. Apparently conceding the amount of child support was agreed,4 Husband
argues that Wife's attorney made misrepresentations in crafting the agreement and
that the agreed child support exceeded that required by law and necessary to
address the needs of the children. These arguments identify no error by the trial
court and present nothing for our review. See Canton-Carter, 271 S.W.3d at 931;
cf. Tex. Fam. Code Ann. § 154.124(a) (agreed child support may deviate from
child-support guidelines in Family Code). Husband further argues the agreed child
support is not in the best interest of the children. Husband, however, does not
4
While there are references in the record to a Rule 11 agreement as to the amount of
child support that was read into the record, no such agreement is in the partial record before us.
Regardless, Husband has not raised arguments that would allow us to reverse the trial court's
child-support award, as explained further herein.
6
explain why this is so, and provides us no basis for concluding that the trial court
abused its discretion by finding that the award of $708.00 per month, and not a
reduced amount of child support, was in the best interest of the children. See
Canton-Carter, 271 S.W.3d at 931; cf. Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982) (trial court has "wide latitude" in determining child's best interest).
We overrule Husband's issue challenging the amount of child support.
II. CONCLUSION
We affirm the trial court's decree as challenged on appeal.5
/s/ Charles A. Spain
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
5
Wife also filed a motion to dismiss this appeal, arguing that Husband's issues on appeal
were moot or meritless. As to mootness, while Wife argued that Husband's issue regarding
school fees was moot because the children had been withdrawn from the institution in question,
she based her argument on documents attached to her motion, which this court cannot consider.
See WorldPeace v. Commission for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (appellate court "cannot consider documents attached as
appendices to briefs and must consider a case based solely upon the record filed"). To the extent
Wife argues that Husband's issues are meritless, we do not reach these arguments, having
addressed and disposed of Husband's issues in this opinion. Accordingly, we dismiss Wife's
motion as moot.
7