Justia Military Law Opinion Summaries

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

The issue this case presented for the Court of Appeals' review was whether one spouse’s unilateral election (after a settlement agreement and judgment of dissolution) to change from one type of military benefit (retirement that was taxable and community property) to another type of military benefit (combat-related special compensation that was not taxable and separate property) could defeat the community property interest of the other spouse set forth in the marital settlement agreement. The Court determined that one spouse could not, by invoking a condition wholly within his control, defeat the community interest of the other spouse. The trial court here correctly determined that "the post-judgment election" by appellant Philip Chapman did not relieve him of his agreement to pay respondent Judy Chapman $475 per month for her community property share of his military retirement. The Court reversed the trial court’s order, however, because the remedy the court selected was improper. The trial court imposed a constructive trust on the funds received by Philip as combat-related special compensation benefits. But the remedy of a constructive trust was available only for wrongful conduct. View "Marriage of Chapman" on Justia Law

Mother Mari M. appealed a juvenile court order that her son M.M., born June 2013, was a child described by Welfare and Institutions Code section 300, subdivision (a). The San Diego County Health and Human Services Agency received a report of severe domestic violence between mother and Rogers M., minor's father, which had taken place on December 2, 2014 and which had been witnessed by minor. The domestic violence included father choking mother while holding minor; father throwing mother into a piano, a table and onto the floor while minor was "at their feet"; father pinning mother on the floor at least two times; father breaking mother's phone; and mother hitting and kicking father and shredding his shirt among other allegations. The December 2 domestic violence incident came to light two days later when Mother contacted father's naval command and sought a military protective order (MPO). Mother contended the juvenile court erred when it: (1) assumed permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act after officials and a supreme court judge from minor's "home state" of Japan unambiguously and repeatedly stated it was inappropriate under their legal system for a Japanese court to communicate with the juvenile court regarding this case; (2) failed to advise her that she could commence a separate custody action in Japan; and (3) found minor a dependent under subdivision (a) of Welfare and Institutions Code section 300, rather than under subdivision (b) of that statute. Finding no reversible error, the Court of Appeal affirmed. View "In re M.M." on Justia Law

Mr. and Ms. Haynes divorced in 1995. Mr. Haynes died in 2000. Ms. Haynes sought Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. 1310, as a “surviving spouse.” Because Ms. Haynes was not married to Mr. Haynes at the time of his death, the VA Regional Office denied the claim. Ms. Haynes later requested that the Regional Office reopen her claim on the presentation of new documentation showing a decision by the Army Board of Correction of Military Records to award Ms. Haynes an annuity as a “former spouse” under the Uniformed Services Former Spouse Protection Act , 10 U.S.C. 1447(10), which permits former spouses to receive annuities. The Regional Office denied the request. The Board of Veterans’ Appeals agreed, while acknowledging Ms. Haynes’ argument that because the basis for her divorce was physical abuse, she should not be required to demonstrate marriage at the time of Mr. Haynes’ death in order to receive DIC benefits. The Veterans Court and Federal Circuit affirmed. Although Mr. Haynes’ abusive actions were documented, the statute requires validly married spouses at the time of the veteran’s death. View "Haynes v. McDonald" on Justia Law

Upon the divorce of Mother and Father, Mother was awarded custody of the parties’ two children, and Father was granted parenting time. Thereafter, Mother joined the military and was assigned to Fort Benning, Georgia for a one-year period. Pursuant to Neb. Rev. Stat. 43-2929.01, which affords procedural protections in cases involving child custody and parenting time to military parents affected by mobilization or deployment, the district court permitted the children to relocate to Georgia with Mother for the remainder of her temporary assignment. Father appealed. The Supreme Court dismissed the appeal, holding that the Legislature did not intend for appellate review of truly temporary orders entered pursuant to section 43-2929.01(4)(a), and therefore, the Court lacked jurisdiction over the appeal. View "Huskey v. Huskey" on Justia Law

A mother and father of two minor children divorced in 2005. The mother was awarded sole legal and physical custody of the children and the father was ordered to pay child support. The father then joined the Army a year later. Five years later, the mother filed a motion to modify the standing child support award, seeking to increase the father's support obligation due to an increase in his income. The father did not respond to the motion to modify until the superior court informed him that it was prepared to award child support in the amount requested by the mother if the father did not file an opposition. The father then opposed the motion, arguing that the Servicemembers Civil Relief Act protected him from adverse civil actions because he was actively serving in the United States Army and contended that the mother had not properly served him with notice of the modification proceeding. Furthermore, he argued that the superior court should deduct the Basic Allowance for Housing that the father received as a servicemember from his income calculation. The superior court modified the parties' child support award without holding a hearing, ordering the father to pay increased child support. The father appealed, raising three challenges to the superior court's decision. Upon careful consideration of the father's arguments, the Supreme Court affirmed the Superior Court with respect to the father's challenges. View "Childs v. Childs" on Justia Law

George Neville filed a petition for modification of a final judgment of divorce seeking to have his ex-wife, Tina Blitz, pay their daughter's college expenses. The chancellor ordered the parties to divide the college expenses equally, after scholarships and a monthly housing stipend from the Post-9/11 GI Bill were deducted. George, who had assigned his Post-9/11 GI Bill benefits to his daughter, appealed arguing the chancellor erred by dividing the monthly housing stipend between Tina and himself. The chancellor found that George should take credit for the payment of the daughter's tuition, fees, and books from the Post-9/11 GI Bill, but not the monthly housing stipend. He ordered that the housing stipend be taken off the top , along with the daughter's scholarships, before the remaining expenses were divided between George and Tina. Upon review, the Supreme Court held that the chancellor's allocation of the monthly housing stipend was a violation of 38 U.S.C. 3319(f)(3) because it constituted division of the benefit between parties in a civil proceeding. Accordingly, the Court reversed and remanded the case back to the chancellor to modify the order to give George credit for all benefits from the Post-9/11 GI Bill. View "Neville v. Blitz" on Justia Law

Louis Burden, a Vietnam veteran, served on active duty in the Army from 1948 until 1968. He married Michele in a ceremonial marriage in April, 2004. Two months later, Burden died. In August 2004, Michele applied for dependency and indemnity compensation. A VA regional office denied her claim because she had not been married to Burden for at least one year prior to his death, 38 U.S.C. 1102(a). Michele asserted that she and Burden had been living in a common law marriage for five years prior to his death. The board acknowledged that she had provided some evidence to support her claim, but concluded that it did not constitute the “clear and convincing proof” required to establish a valid common law marriage under Alabama law. The Veterans Court and the Federal Circuit upheld the denial. State law, including state law evidentiary burdens, applies in determining the validity of a purported common law marriage View "Burden v. Shinseki" on Justia Law

James Mallard and Tonya Mallard (now Tonya Mallard Burkart) were divorced on in 2001. Incorporated into the Final Judgment of Divorce was the Child Custody and Support and Property Settlement Agreement executed by the parties. A significant portion of the financial settlement that Burkart received in the property settlement agreement consisted of forty percent of Mallard's "disposable military retirement pay" for ten years. Following the divorce, Mallard elected to adopt a sixty-percent disability rating as part of his retirement pay. Mallard did not provide any of these disability benefits to Burkart. When Mallard filed a Petition for Modification of Judgment of Divorce in chancery court pursuant to child-support and custody matters, Burkart filed a counterpetition for contempt, asserting that Mallard had structured his retirement in such a way as to defeat her forty-percent interest in the total retirement pay. The chancellor determined that Burkart was entitled to forty percent of the disability benefits, but he declined to find Mallard in contempt. Mallard appealed. Upon review, the Supreme Court found that since federal law preempts state law, state courts are precluded from allocating military disability benefits to a nonmilitary spouse; therefore, the Court reversed and remanded the case for further proceedings. View "Mallard v. Burkart" on Justia Law