In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00299-CV
NANCY MARGUERITE MAXWELL, Appellant
V.
STEVEN JOSEPH MAXWELL, Appellee
On Appeal from County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 06-07-07074-CV
MEMORANDUM OPINION
In one issue, Nancy Marguerite Maxwell challenges an order of the trial court
that clarified a Qualified Domestic Relations Order (“QDRO”) with the exact
amount that the Divorce Decree awarded her from her former husband, Steven
Maxwell’s, retirement annuity. For the reasons stated in this opinion, we affirm the
trial court’s order.
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Background
Nancy and Steven married on September 16, 1984, and on November 6, 1984,
Steven began working as an air traffic controller through the FAA where he
participated in the Federal Employees Retirement System (FERS). They divorced
on September 29, 2006, and Steven continued his employment with the FAA until
his retirement in October 2021.
In the Agreed Final Decree of Divorce, Nancy was awarded fifty percent of
Steven’s retirement benefits. The Decree stated:
W-6. A portion of Steven[]’s retirement benefits in FAA & H arising
out of Steven[]’s employment with the FAA as of August 31, 2006, that
portion being fifty (50%) percent of the community portion, together
with any interest, dividends, gains, or losses on that amount arising
since that date and more particularly defined in a Qualified Domestic
Relations Order [(“QDRO”)] signed by the Court on the day this
Agreed Final Decree of Divorce is signed.
On October 19, 2006, the trial judge signed the Domestic Relations Order,
which stated:
[Steven] and [Nancy] were married on September 16, 1984 and
divorced on September 29, 2006 (“Valuation Date”).
5. [Nancy] is entitled to FIFTY AND NO/100 PERCENT (50.00%) of
[Steven’s] self-only monthly annuity under the FERS, calculated as of
Valuation Date, unreduced for any option that may be selected by
[Steven]. When cost-of-living allowances (COLAs) are applied to
[Steven’s] retirement benefits, the same COLAs apply to [Nancy’s]
share.
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Following his retirement, Steven began receiving his retirement annuity, and
he received notice that Nancy was receiving a portion beyond what the QDRO
awarded her. In his Petition to Enter Post-Divorce Amended Court Order Acceptable
for Process (COAP) Federal Employees Retirement System (“Petition”), filed in
September 2022, Steven stated that the FERS now requires that a QDRO be referred
to as a COAP.1 He alleged that despite the language in the QDRO, Nancy was
receiving a portion of his annuity earned after the Valuation Date. According to the
Petition:
e. Upon [Steven]’s retirement and commencement of his pension, it was
discovered that the interpretational guidelines of the FERS had been
changed, such that an award of a percentage of a benefit, even if defined
as of the certain Valuation Date, would still reflect compensation
earned after such date, to the date of actual retirement, thereby
establishing a benefit for Nancy [] that exceeded the FERS interest
awarded by the Court.
Steven alleged that the correct calculation of Nancy’s monthly portion was
$1,761.00, and he requested that the trial court approve and sign an amended order
that specified the exact amount Nancy was entitled to receive. The amended order
stated:
5. [Nancy] is entitled to an amount equal to One Thousand Seven
Hundred Sixty One and 00/100ths Dollars ($1,761.00) of [Steven]’s
self-only monthly annuity under the FERS, unreduced for any option
that may be selected by [Steven]. When cost-of-living allowances
1
In this opinion, we will continue to refer to the document signed by the trial judge on October 19, 2006, as the QDRO, unless otherwise noted, as the title of the document is Domestic Relations Order.
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(COLAs) are applied to [Steven]’s retirement benefits, the same
COLAs apply to [Nancy]’s share.
Steven attached the proposed Amended Court Order Acceptable for Processing
(COAP) Federal Employees Retirement System.
Nancy generally denied the allegations in Steven’s Petition, but later filed her
First Amended Response, Special Exception, Affirmative Defense, and Plea in
Abatement to Steven Maxwell’s Petition to Enter Post-Divorce COAP. According
to Nancy, the Office of Personnel Management (OPM) approved the QDRO and
scheduled the commencement of her monthly payments of $3,472.99, and a
retroactive payment of $32,577.87 for benefits distributed to Steven from November
1, 2021, through November 31, 2022. She stated that the Agreed Final Decree of
Divorce and the QDRO are final and that Steven’s collateral attack violates section
9.007 of the Texas Family Code because it would amend, modify, alter or change
the division of property in the Final Decree and QDRO.
On February 21, 2024, Steven filed his First Amended Petition to Enter PostDivorce Amended Court Order Acceptable for Processing (COAP) Federal
Employees Retirement System (FERS), Petition for Clarification of Property
Division of Agreed Final Decree of Divorce, Petition for Clarification of Property
Division of Domestic Relations Order; Petition for Claim of Unjust Enrichment and
Restitution; and Petition for Money Had and Received. He alleged that under the
FERS, Nancy should receive $1,761.00 monthly, calculated as 50% of the benefit to
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the Valuation Date, and he requested the trial court sign the proposed order for
submission to the FERS. Steven also requested clarifying orders regarding his
retirement benefits and brought a claim of unjust enrichment and restitution for the
overpayment that he alleged Nancy received from the FERS. He attached as exhibits
the Agreed Final Decree of Divorce, Domestic Relations Order, and Amended Court
Order Acceptable for Processing (COAP) Federal Employees Retirement System.
He later filed a second amended petition with identical exhibits.
On March 18, 2024, a bench trial on the merits began. Counsel for Steven
explained to the trial judge that the dispute involved the formula that OPM used to
determine Nancy’s portion. Counsel stated that Nancy’s portion should be based on
the value of Steven’s retirement on the Valuation Date, but Nancy’s portion includes
his fifteen years of employment post-divorce. Counsel argued that Steven’s salary
increased almost every year, and OPM’s formula resulted in Nancy receiving a
portion of Steven’s post-divorce salary increases. At trial, Steven testified along with
Richard Johnson, the owner and employee of QDRO Services. Nancy did not call
any witnesses.
On March 22, 2024, the trial court issued its ruling and granted Steven’s
request for an amended court order acceptable for processing that would reflect that
Nancy’s portion was $1,767.00. The trial court denied the request for clarification
of the property division in the Agreed Final Decree of Divorce, awarded Steven
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$33,599.70 for the overpayments made to Nancy, and denied each party’s request
for attorney’s fees.
On May 9, 2024, the trial court signed the Order Granting Petition to Enter
Amended Court Order Acceptable for Processing (COAP) for Federal Employees
Retirement System (FERS) that granted Steven’s request to clarify and amend the
QDRO and stated that Nancy was entitled to $1,767.00 of Steven’s FERS annuity.
The Order added that Nancy had been overpaid $33,599.70 of the FERS annuity by
the OPM and it awarded the amount of the overpayment to Steven with 8.5%
compounded annual interest. The trial court also executed an Amended Domestic
Relations Order that stated that Nancy was entitled to $1,767.00 of Steven’s monthly
FERS annuity and $586.00 of Steven’s Supplemental FERS annuity.
On September 10, 2024, the trial court issued its Findings of Fact and
Conclusions of Law that included the following:
Findings of Fact
18. Steven Maxwell received correspondence from OPM, dated
December 7[,] 2022, which provided their method of calculating
Nancy[]’s portion of his retirement benefits, and state the following:
By court order your former spouse’s marital share of your retirement
benefit is 50% of 262 months of service during the marriage divided by
443 months of Federal service of 29.57% of your retirement benefits.
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Conclusions of Law
31. The express language of the parties’ Final Decree of Divorce awards Nancy [] 50% of “the community portion” of Steven Maxwell’s retirement benefits valued as of August [31], 2006.
32. In applying the Domestic Relations Order signed on October 19, 2006, OPM used Steven Maxwell’s post-divorce salary increases and post-divorce accrual of retirement benefits to calculate Nancy[]’s portion of [] Steven Maxwell’s retirement benefits, and this portion of his benefits were his separate property.
34. The Domestic Relations Order signed on October 19, 2006 divests Steven Maxwell of separate property retirement benefits which were earned and accrued as a result of continued employment and salary increases post-divorce.
35. The Court finds that clarification is necessary of the Domestic Relations Order to effectuate the property division in the Agreed Final Decree of Divorce.
36. The Court finds that an Amended Domestic Relations Order should include the following language:
Former Spouse is entitled to $1,767.00 of Member’s self-only monthly annuity under FERS, unreduced for any option that may be selected by Member.
37. The Second Amended Domestic Relations Order accurately reflects the property division as set out in the Agreed Final Decree of Divorce.
38. The Court finds that Nancy [] was over-paid a total sum of
$33,599.70 over the course of 30 months by OPM in retirement benefits which were awarded to Steven Maxwell in the divorce.
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This appeal followed. In her sole issue, Nancy argues that the trial court lacked
authority to enter the Amended Court Order Acceptable for Processing. According
to Nancy, she was awarded a percentage of Steven’s retirement, and not a specific
dollar amount, in order to receive any pay increase or cost of living adjustment.
Standard of Review
We review the trial court’s ruling on a post-divorce motion for enforcement
or clarification of a divorce decree under an abuse-of-discretion standard. See
Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.—Dallas 2008, no
pet.); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.—Texarkana
2003, pet. denied); see also Sigee v. Sigee, No. 09-21-00335-CV, 2023 WL 3114659,
at *3 (Tex. App.—Beaumont Apr. 27, 2023, no pet.) (mem. op.). A trial court abuses
its discretion when it acts arbitrary or unreasonably, or without any reference to
guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam).
If a trial court makes specific findings of fact and conclusions of law after a
bench trial and a reporter’s record is before the appellate court, the findings will be
sustained if there is evidence to support them, and the appellate court reviews the
legal conclusions drawn from the facts to determine their correctness. Fuhrman v.
Fuhrman, No. 09-24-00155-CV, 2026 WL 1025550, at *9 (Tex. App.—Beaumont
Apr. 16, 2026, no pet.) (mem. op.) (citation omitted). A trial court’s findings of fact
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entered in a bench trial have the same force and dignity as a jury’s answers to jury
questions. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991);
Fuhrman, 2026 WL 1025550, at *9. “In an appeal from a bench trial in which the
trial court made findings of fact and conclusions of law, appellants should challenge
the sufficiency of the evidence supporting specific findings of fact rather than
directing such a challenge generally at the judgment as a whole.” Fuhrman, 2026
WL 1025550, at *9 (citing Thompson & Knight LLP v. Patriot Expl., LLC, 444
S.W.3d 157, 162 (Tex. App.—Dallas 2014, no pet.); Carrasco v. Stewart, 224
S.W.3d 363, 367 (Tex. App.—El Paso 2006, no pet.)). “‘If the appellant does not
challenge the trial court’s findings of fact, when filed, these facts are binding upon
both the party and the appellate court.’” Cahill v. Cahill, No. 09-20-00206-CV, 2022
WL 318452, at *7 (Tex. App.—Beaumont Feb. 3, 2022, pet. denied) (mem.
op.) (citation omitted); see also Carrasco, 224 S.W.3d at 367).
Analysis
Section 9.007 of the Texas Family Code provides:
(a) A court may not amend, modify, alter, or change the division of
property made or approved in the decree of divorce or annulment.
An order to enforce the division is limited to an order to assist in the
implementation of or to clarify the prior order and may not alter or
change the substantive division of property.
(b) An order under this section that amends, modifies, alters, or changes
the actual, substantive division of property made or approved in a
final decree of divorce or annulment is beyond the power of the
divorce court and is unenforceable.
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Tex. Fam. Code Ann. § 9.007.
The Texas Supreme Court has held that when reading both 9.007(a) and
9.008(b) together, trial courts are “without authority to enter a QDRO altering the
terms of the decree.” Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003) (citing
Tex. Fam. Code Ann. §§ 9.007(a), 9.008(b)) (other citations omitted). A QDRO
“cannot change the substantive division of property made in the original decree.” Id.
The court can enter a clarifying order “to enforce compliance with an insufficiently
specific decree,” but it “‘may not amend, modify, alter, or change the division of
property made or approved in the decree of divorce.’” Id. (citing Tex. Fam. Code
Ann. §§ 9.007(a), 9.008(b)). A QDRO “may more precisely specify the manner of
carrying out the property division previously ordered,” but only “so long as the
substantive division of the property is not altered.” Vaughn v. Vaughn, No. 09-04-00030-CR, 2005 WL 1115965, at *6 (Tex. App.—Austin May 12, 2005, no pet.)
(mem. op.) (citation omitted). Any QDRO that alters the decree’s property division
is “void.” See Gainous v. Gainous, 219 S.W.3d 97, 108 (Tex. App.—Houston [1st
Dist.] 2006, pet. denied).
At trial, the trial judge questioned Johnston about his calculation regarding
Nancy’s portion. Johnston testified that the formula used by OPM calculates the
benefit based on the date of retirement despite case law specifying that any increase
in retirement benefits post-divorce are separate property of the participant. Johnston
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explained that if Steven retired on the Valuation Date, Nancy would be entitled to
$1,767.00, the accrual of Steven’s highest three years of salary and years of service.
Johnston also provided the formula currently used by OPM, the Taggart formula,
and the formula that should be used based on the date in the Divorce Decree, the
Berry formula. The Taggart formula calculates Nancy’s 50% benefit based on the
date of Steven’s retirement and total months of service on Steven’s retirement date
for a total of $3,473.00. The Berry formula calculates Nancy’s 50% benefit based
on the August 31, 2006, date in the Divorce Decree and Steven’s years of service as
of August 31, 2006, for a total of $1,767.00. The document with both the Taggart
and Berry formulas were admitted as evidence. On cross-examination, Johnston
explained that the QDRO cannot contradict the plain language of the Divorce
Decree, and OPM regulations cannot trump the plain language or intent of the
Divorce Decree.
Here, the trial court considered the evidence and determined that OPM did not
properly follow the instructions of the QDRO pertaining to Nancy’s portion.
Pursuant to sections 9.008 and 9.1045(a) of the Texas Family Code, the trial court
had the authority to clarify a QDRO that needs to be clearer or to clarify terms to
effectuate the division of property ordered by the court. See Tex. Fam. Code Ann.
§§ 9.008, 9.1045(a). Nancy failed to present sufficient evidence at trial or a clear
argument as to how the monthly payment of $3,472.99 was correct or that Steven’s
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calculation regarding his value of his retirement account as of August 31, 2006, was
incorrect. Nancy also failed to challenge any specific factual findings, which the
evidence supports. See Fuhrman, 2026 WL 1025550, at *9; Cahill, 2022 WL
318452, at *7; see also Carrasco, 224 S.W.3d at 367. Accordingly, those findings
are binding on this Court. See Cahill, 2022 WL 318452, at *7; Carrasco, 224 S.W.3d
at 367. Having reviewed the evidence at trial and the arguments presented on appeal,
we conclude that the trial court had authority to clarify the QDRO and did not abuse
its discretion in clarifying and amending the QDRO with the exact amount that the
Divorce Decree awarded Nancy from Steven’s annuity. See Sigee, 2023 WL
3114659, at *3; Hollingsworth, 274 S.W.3d at 815; McDonald, 118 S.W.3d at 832.
We overrule Nancy’s issue.
Conclusion
Having overruled appellant’s issue on appeal, we affirm the trial court’s
order.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on August 21, 2026
Opinion Delivered August 27, 2026
Before Golemon, C.J., Johnson and Chambers, JJ.
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