Medrano v. Miller

¶1This is a legal malpractice suit by Oscar Medrano against Marvin Miller, the attorney who represented him in a divorce suit. In 1972, a divorce was granted between Oscar Medrano and his wife, Raquel Medra-no. Although Oscar Medrano was in the military service, no division of military benefits was made in the divorce suit.

¶2On January 4,1979, Raquel Medrano filed suit against her ex-husband, Oscar Medra-no, seeking partition of the military retirement benefits. Appellant, Oscar Medrano, instituted a cross-action against appellee, Marvin Miller, seeking damages for negligence in handling his divorce, alleging that Miller negligently failed to dispose of the military retirement benefits, failed to secure them for Oscar Medrano, and failed to advise him of his potential exposure to a subsequent partition suit. Miller filed an answer including a plea of limitations. The cross-action was severed from the partition suit. Miller filed a motion for summary judgment which was granted by the trial court, and Medrano appeals from the granting of such summary judgment.

¶3By two points of error, appellant asserts that the trial court erred in granting summary judgment to appellee because there were fact issues as to whether Miller acted negligently in failing to dispose of military retirement benefits, and as to whether the claim of Medrano was barred by limitations.

¶4An attorney in a malpractice suit is not liable for an error in judgment if he acts in good faith and his acts are well founded and in the best interest of his client. State v. Baker, 539 S.W.2d 367, 375 (Tex.Civ.App.-Austin 1976), aff’d, 559 S.W.2d 145 (1977); Hicks v. State, 422 S.W.2d 539 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref’d n. r. e.); Cook v. Irion, 409 S.W.2d 475 (Tex.Civ.App.-San Antonio 1966, no writ).1

¶5*783It is undisputed that at the time the divorce was granted appellant’s military retirement benefits were non-vested,2 that is, he had not served the 20-year period required for him to be eligible to receive retirement benefits. Appellant urges that there was a fact issue as to whether or not appellee’s conduct in connection with his failure to dispose of the military retirement benefits was substandard and the proximate cause of resulting damages, relying heavily on Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.-Dallas 1971, writ dism’d).

¶6In passing on the question of appellant’s alleged negligence in this legal malpractice suit, we need to examine the history of military retirement benefits in divorce cases in this state. Prior to the pertinent dates of the divorce here involved (August and September, 1972), this court had decided three such cases, all involving vested retirement benefits. In Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.-San Antonio 1960, no writ), this court held the military retirement benefits were community property and could be partitioned upon divorce where the retirement benefits had accrued by reason of 2272 years of military service. Eight years later, in Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.-San Antonio 1968, writ dism’d), we held that military retirement benefits were community property where the husband had served over 25 years in the military service, a length of time sufficient for him to obtain a vested property right, even though the benefits were not payable at the time the divorce was granted. In Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.-San Antonio 1969, no writ), we again held that vested military retirement benefits were community property assets.

¶7In 1970, the Texas Supreme Court was presented with a related problem in Busby v. Busby, 457 S.W.2d 551 (Tex.1970). The court held that military disability retirement benefits of the husband who had served in the military for over 20 years at the time of the divorce were community in nature and partitionable upon divorce.

¶8Miser v. Miser, supra,relied upon by appellant, was handed down by the Dallas Court of Civil Appeals in December, 1971, shortly before the divorce here involved. In Miser, the husband had served I8V2 years in the armed services at the time of the divorce, lacking approximately 172 years additional military service to be eligible for retirement benefits. He had, however, at the time committed himself to a reenlistment period which would extend beyond the 20-year period. The court, limiting its holding to the particular facts and circumstances before it, held that the military retirement benefits were community in nature, and a property right subject to division upon divorce.

¶9It is seen that on the applicable dates in which Miller is charged with negligence, only one Texas ease, Miser v. Miser, had held that a non-vested military retirement benefit was partitionable upon divorce. On the other side of the coin, there were a number of cases, including three by this court, indicating to the contrary. At this point the issue of non-vested military retirement benefits was at best unsettled.

¶10This court, as late as 1975 in Bright v. Bright, 531 S.W.2d 440 (Tex.Civ.App.-San Antonio 1975, no writ), held that a divorce court had no power to provide non-vested military retirement benefits, in a case where at the time of the divorce the husband had 16 years and 4 months of military service.3 The identical question was considered by the Austin Court of Appeals in Lumpkins v. Lumpkins, 519 S.W.2d 491*784(Tex.Civ.App.-Austin 1975, writ ref’d n. r. e.), where the court, after a full discussion of authorities, held that before military retirement benefits are subject to division by the divorce court the benefits must be vested. Even the Dallas Court of Civil Appeals, the court which had handed down Miserin 1971, two years later in Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.-Dallas 1973, writ dism’d), held that military retirement benefits of the husband who had served 8% years in the Air Force were not partitionable upon divorce, and distinguished Miserfrom Davisbecause of different fact situations.

¶11It was not until 1976, four years after the Medrano divorce was granted, that the issue as to the character of non-vested military retirement benefits in Texas was settled. In Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), the Supreme Court of Texas considered the issue because of the conflict between the decision rendered by the Austin court in Cearley v. Cearley, 536 S.W.2d 96 (Tex.Civ.App.-Austin 1976) and that reached in the Misercase, noting:

While the status of military pension benefits earned during marriage is now firmly established as community property, the decisions in this and other community property States have differed as to whether the pension payments must have vested or matured before they are subject to apportionment by a divorce court, or whether future contingent payments may be apportioned ‘if, as, and when’ they mature and are received by the retired spouse.

¶12Cearley, supra, at 663.

¶13The court noted that Miserwas the first reported case in Texas to apportion benefits which had neither accrued nor matured at the time the marriage was dissolved. The opinion by the supreme court in Cearley clearly indicates that the law up to that point was settled as to vested military retirement benefits, but somewhat unsettled where said benefits were not vested. The court in Cearley then determined the issue by holding that non-vested as well as vested military retirement benefits were partitionable upon divorce.

¶14At the worst, appellant made an error in judgment. There is nothing in the record to indicate that he acted in bad faith or that his actions were not well founded or in the best interest of his client. When the record here is considered in the light of the controlling principles of law hereinbefore set forth, it is evident that there is no fact issue as to the negligence of appellant.

¶15The trial court correctly granted the motion for summary judgment. At the time of the Medrano divorce, the great weight of authority held that a divorce court had no power to divide non-vested military benefits. Assuming, arguendo, that appellant made an error in judgment on this unsettled question of law, this alone would not make an attorney liable for damages for malpractice if he were acting in good faith and in an honest belief that his advice and his acts are well founded and in the best interest of his client. There is no evidence in the record whatsoever that appellant was not acting in good faith and in an honest belief that his advice and his acts were well founded and in the best interest of his client.

¶16Moreover, we can see no damages to appellant. The failure of a trial court to partition or divide a community asset in a divorce suit results only in the owners of such assets holding such property in common and neither party loses whatever interest he or she may own in such property. Appellant has not lost his interest in the retirement benefits by the failure to partition or divide such benefits at the time of the divorce. If the retirement benefits are partitioned now, he is in no worse position than he would have been had the benefits been partitioned in 1972 at the time of the divorce.

¶17Appellant’s point of error number 1 is overruled.

¶18In view of our holding herein, we deem it not necessary to consider appellant’s point of error number 2 which pertains to appel-lee’s defense of limitations.

¶19The judgment of the trial court is affirmed.