Justia Military Law Opinion Summaries

Jeremiah Sullivan, III, appeals a stipulated judgment of dissolution of marriage. He challenged a 2018 order that was incorporated into the stipulated judgment, in which the family court found that it lacked jurisdiction to divide his ex-wife Lisa Sullivan’s military pension under the Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA). Jeremiah argued the court erred because Lisa “consent[ed] to the jurisdiction of the Court.” The Court of Appeal concluded the stipulated judgment was not appealable because it did not resolve all issues between the parties. At the parties’ joint request, however, the appellate court exercised its discretion to treat the appeal as a petition for writ of mandate. On the merits, it rejected the trial court’s ruling that a service member had to explicitly and specifically consent to the court’s authority to divide her military retirement under the FUSFSPA. Furthermore, the Court concluded Lisa did consent to the jurisdiction of the court within the meaning of the FUSFSPA by voluntarily filing her dissolution petition in California, seeking a judicial confirmation of “all” her separate property acquired before marriage, asking the court to determine “any” community property assets, and requesting the appointment of an expert under California Evidence Code section 730 to determine a proposed division of the parties’ retirement accounts. Accordingly, the Court of Appeal granted appropriate writ relief directing the family court to vacate the stipulated judgment and the relevant portion of the 2018 order. View "Marriage of Sullivan" on Justia Law

Rhone served in the military 1950-1953 and 1959-1988. In 1986, Rhone and JoAnne, divorced; the Florida Divorce Decree stated that JoAnne would receive 40% of Rhone’s military retirement benefits. In 1988, Rhone left military service due to disability. To receive disability compensation, Rhone waived part of his military retirement pay (38 U.S.C. 5305). The state court denied Rhone’s motion to modify the Divorce Decree, stating that the payment of retirement benefits constituted alimony, not a property division. The state court issued a Continuing Writ of Garnishment directing the VA to withhold that payment from Rhone’s retirement pay. The VA determined that the order obliged the VA to make payments from Rhone’s disability compensation. After Rhone attempted to avoid garnishment by renouncing benefits, in 2002 the VA determined that Rhone's compensation benefits were not subject to garnishment and had been erroneously withheld. Rhone was reimbursed for $27,664. In 2005, the VA determined that it must comply with the alimony award and resumed garnishing Rhone’s disability compensation.The Board of Veterans’ Appeals issued a 2020 decision, finding the 1991 order “valid on its face” and providing for “permanent periodic alimony” so that the VA legally garnished Rhone’s disability compensation under 42 U.S.C. 659(a); (h)(1)(A)(ii)(V). The Veterans Court and Federal Circuit affirmed, finding no due process violation. The statutes authorize the VA to withhold a portion of a veteran’s VA disability payment for alimony or child support pursuant to legal process when a veteran has waived a portion of military retirement pay to receive VA benefits. The VA lacks jurisdiction to decide questions associated with a state garnishment order. View "Rhone v. McDonough" on Justia Law

Plaintiff Deborah Foster sought to hold defendant Ray Foster, in contempt of court for failing to abide by a provision in their consent judgment of divorce. The judgment stated that defendant would pay plaintiff 50% of his military disposable retired pay accrued during the marriage or, if defendant waived a portion of his military retirement benefits in order to receive military disability benefits, that he would continue to pay plaintiff an amount equal to what she would have received had defendant not elected to receive such disability benefits. Defendant subsequently elected to receive increased disability benefits, including Combat-Related Special Compensation (CRSC) under 10 USC 1413a. That election reduced the amount of retirement pay defendant received, which, in turn, reduced plaintiff’s share of the retirement benefits from approximately $800 a month to approximately $200 a month. Defendant did not comply with the offset provision by paying plaintiff the difference. The trial court denied plaintiff’s request to hold defendant in contempt, but ordered him to comply with the consent judgment. Defendant failed to do so, and plaintiff again petitioned for defendant to be held in contempt. Defendant did not appear at the hearing, but argued in a written response that the federal courts had jurisdiction over the issue. The court found defendant in contempt, granted a money judgment in favor of plaintiff, and issued a bench warrant for defendant’s arrest because of his failure to appear at the hearing. At a show-cause hearing in June 2014, defendant argued that 10 USC 1408 and 38 USC 5301 prohibited him from assigning his disability benefits and that the trial court had erred by not complying with federal law. The court found defendant in contempt and ordered him to pay the arrearage and attorney fees. The Michigan Supreme Court held that the type of federal preemption at issue in this case did not deprive state courts of subject-matter jurisdiction. As a result, the Supreme Court concluded defendant’s challenge to enforcement of the provision at issue was an improper collateral attack on a final judgment. View "Foster v. Foster" on Justia Law

In July 2018, Leanne Hoff Bilger sued Joshua Bilger for legal separation. Bilger executed an admission of service, acknowledging he received the summons and complaint, settlement agreement and an exhibit relating to division of property and debts. The parties executed the settlement agreement which stated Bilger was a member of the armed forces. The district court issued an order for judgment, and the clerk of court entered a judgment granting the parties a legal separation. Joshua appealed a district court order denying his motion to dismiss and vacate the judgment for legal separation, arguing the court erred in finding the Servicemembers Civil Relief Act did not apply. The North Dakota Supreme Court concluded the Act applied; however, Bilger failed to invoke the protections of the Act. View "Bilger v. Bilger" on Justia Law

Louise and Frank married in 2000. Frank had served in the Air Force from 1974-1980 and, in 1989, began working for the Illinois State Police. While married, the parties paid $9626.40 to the State Retirement System, purchasing 48 months of permissive military service credit, 40 ILCS 5/14-103(j). Frank retired in 2011. In 2014, Louise filed a dissolution petition. The parties could not agree on the division of Frank’s pension. As of 2015, Frank’s monthly annuity payment was $9088.86. The purchased permissive service credit increased the monthly payment by $1363.33. The parties agreed that Louise should receive 50% of the marital portion of the pension but disagreed on whether the marital portion included the amount attributable to the permissive service credit. The trial court held that the permissive service credit was nonmarital because “what was purchased to enhance the pension ... was military time earned prior to the marriage” and ordered Frank to reimburse Louise $4813.20. The appellate court reversed, reasoning that Frank did not acquire the credit at the time of his military service. The Illinois Supreme Court affirmed, in favor of Louise. The permissive service credit was not “acquired” under that term’s ordinary and popularly understood meaning when Frank completed four years of active duty military service. Frank did not obtain or come into possession or control of the credit when he completed his active duty military service; his prior military service, by itself, does not have any value relative to his Illinois pension under the Pension Code. View "In re Marriage of Zamudio" on Justia Law

Kelley Kohler (Father) and Carolynn Chambers (Mother) were the biological parents of R.L.K., born April 17, 2012. Father received orders directing him to report for basic training and advanced individual training with the United States Army National Guard. Prior to leaving, Father filed a motion seeking an order authorizing the temporary transfer of his custody and visitation rights with R.L.K. to his spouse. Father maintained he was a "deploying parent" under the Oklahoma Deployed Parents Custody and Visitation Act. The trial court found the ODPCVA was controlling and vested Father's wife with the right to exercise visitation with R.L.K. during his absence. Mother appealed the judgment arguing the trial court erred as a matter of law by finding Father was a "deploying parent" as defined by the ODPCVA. In a case of first impression for the Oklahoma Supreme Court, it reversed the trial court, finding Father was not a "deploying parent" because his temporary transfer was not "in support of combat, contingency operation, or natural disaster" as mandated by 43 O.S.2011 section 150.1. View "Kohler v. Chambers" on Justia Law

Robert and Janice married in 1964; in 1986, they divorced. In the meantime, after 20 years of service, Robert had retired from the United States Air Force. In a stipulated judgment, the trial court awarded Janice her community property interest in Robert’s military retired pay. In 2012, it was determined that Robert had a combat-related disability. As a result, he became eligible to receive both veteran’s disability benefits and combat-related special compensation (CRSC); to do so, however, he had to waive his retired pay. Before the waiver, Robert received $791 a month and Janice received $541 in retired pay (taxable). After the waiver, Robert received $1,743 a month in veteran’s disability benefits and $1,389 a month in CRSC, for a total of $3,132 (tax-free); Janice received nothing. The trial court ordered Robert to start paying Janice $541 a month in permanent and nonmodifiable spousal support. Robert appealed, contending: (1) under federal law, the trial court lacked jurisdiction to make any award to Janice based on Robert’s receipt of either veteran’s disability benefits or CRSC; (2) the trial court erred by using spousal support as a remedy for the loss of a community property interest; (3) the trial court erred by making its award of spousal support nonmodifiable; (4) because the judgment dividing the community property was long-since final, the trial court could not give Janice any remedy for the loss of her community property interest in the retired pay; (5) all of Robert's income was exempt, therefore could not be required to satisfy Janice's claim; and (6) Janice was not entitled to spousal support, and the trial court abused its discretion by finding otherwise. The Court of Appeal agreed federal law prohibited the trial court from compensating Janice, in the form of spousal support or otherwise, for the loss of her share of Robert’s retired pay. However, it could properly modify spousal support, provided it did so based on the relevant factors and not as compensation. Accordingly, the Court reversed and remanded with directions to hold a new trial on Janice’s request for a modification of spousal support. View "In re Marriage of Cassinelli" on Justia Law

Robert and Janice married in 1964; in 1986, they divorced. In the meantime, after 20 years of service, Robert had retired from the United States Air Force. In a stipulated judgment, the trial court awarded Janice her community property interest in Robert’s military retired pay. In 2012, it was determined that Robert had a combat-related disability. As a result, he became eligible to receive both veteran’s disability benefits and combat-related special compensation (CRSC); to do so, however, he had to waive his retired pay. Before the waiver, Robert received $791 a month and Janice received $541 in retired pay (taxable). After the waiver, Robert received $1,743 a month in veteran’s disability benefits and $1,389 a month in CRSC, for a total of $3,132 (tax-free); Janice received nothing. The trial court ordered Robert to start paying Janice $541 a month in permanent and nonmodifiable spousal support. Robert appealed, contending: (1) under federal law, the trial court lacked jurisdiction to make any award to Janice based on Robert’s receipt of either veteran’s disability benefits or CRSC; (2) the trial court erred by using spousal support as a remedy for the loss of a community property interest; (3) the trial court erred by making its award of spousal support nonmodifiable; (4) because the judgment dividing the community property was long-since final, the trial court could not give Janice any remedy for the loss of her community property interest in the retired pay; (5) all of Robert's income was exempt, therefore could not be required to satisfy Janice's claim; and (6) Janice was not entitled to spousal support, and the trial court abused its discretion by finding otherwise. The Court of Appeal agreed federal law prohibited the trial court from compensating Janice, in the form of spousal support or otherwise, for the loss of her share of Robert’s retired pay. However, it could properly modify spousal support, provided it did so based on the relevant factors and not as compensation. Accordingly, the Court reversed and remanded with directions to hold a new trial on Janice’s request for a modification of spousal support. View "In re Marriage of Cassinelli" on Justia Law

A state court may not order a veteran to indemnify a divorced spouse for the loss in the spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits.The Uniformed Services Former Spouses’ Protection Act authorizes states to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U.S.C. 1408, excluding amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits. In their divorce, Sandra was awarded 50% of John’s future Air Force retirement pay, which she began to receive when John retired. Years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, John gave up an equivalent amount of retirement pay, 38 U.S.C. 5305. The Arizona Supreme Court affirmed a family court order that Sandra receive her full 50% regardless of the waiver. The U.S. Supreme Court reversed. John’s military pay was subject to a future contingency. State courts cannot “vest” that which they lack the authority to give. Family courts remain free to consider the contingency that some military retirement pay might be waived or consider reductions in value when calculating or recalculating the need for spousal support. View "Howell v. Howell" on Justia Law

In 1964, appellant Robert Cassinelli and respondent Janice Cassinelli were married; in 1986, they divorced. In the meantime, after 20 years of service, Robert had retired from the United States Air Force. In a stipulated judgment, the trial court awarded Janice her community property interest in Robert’s military retired pay. In 2012, it was determined that Robert had a combat-related disability. As a result, he became eligible to receive both veteran’s disability benefits and combat-related special compensation (CRSC); to do so, however, he had to waive his retired pay. Before the waiver, Robert received $791 a month and Janice received $541 in retired pay (taxable). After the waiver, Robert received $1,743 a month in veteran’s disability benefits and $1,389 a month in CRSC, for a total of $3,132 (tax-free); Janice received zero. As a result, the trial court ordered Robert to start paying Janice $541 a month in permanent and nonmodifiable spousal support. Robert appealed. The Court of Appeals agreed that the trial court erred by using spousal support as a remedy for the loss of a community property interest. However, it could properly order Robert to reimburse Janice for her lost community property interest; doing so would not have violated either federal law or finality principles. Accordingly, the Court reversed and remanded with directions to enter an order awarding Janice the same amount on a different theory. View "Marr. of Cassinelli" on Justia Law