Petition for Writ of Certiorari — Yann Iannucci, Petitioner v. Macomb County Friend of the Court

APPENDIX A

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

YANN IANNUCCI,

UNPUBLISHED

December 19, 2019

Plaintiff-Appellant,

No. 345886

Macomb Circuit Court

LC No. 2010-006282-DM

v

JULIE MICHELLE JONES,

Defendant,

and

MACOMB COUNTY FRIEND OF THE COURT,

Appellee.

Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

The circuit court held Yann Iannucci in contempt for repeatedly failing to meet his courtordered child support obligations. The circuit court gave Iannucci ample opportunity to prepare

and present his defense that federal law precluded the use of his veterans’ disability benefits for

child support purposes and preempted state law to the contrary. Iannucci’s defenses lacked

merit, and even if he was correct, the proper avenue was to comply with the court’s orders and

appeal. We affirm.

I. BACKGROUND

Yan Iannucci and Julie Jones reached a consent judgment of divorce in 2011. The couple

was awarded joint legal custody of their two children. Jones had primary physical custody while

Iannucci enjoyed parenting time on alternating weekends and for one dinner a week. Iannucci

agreed to pay $250 per month in child support for the first six months and then to have child

support evaluated by the Friend of the Court (FOC). Six months later, the FOC increased

Iannucci’s child support obligation to $812 per month.

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Immediately after reaching the consent judgment, Iannucci launched his now-eight-year

mission to eliminate his child support obligation. Throughout, Iannucci noted that he is an

honorably discharged veteran supported only by veterans’ disability benefits and asserted that

such benefits are exempt “from invasion under any condition.”

Iannucci also immediately fell behind in his payments. Contempt proceedings were

initiated on several occasions and other enforcement actions were taken. In 2014, Iannucci was

convicted of criminal nonsupport, a conviction that this Court affirmed. See People v Iannucci,

314 Mich App 542; 887 NW2d 817 (2016). Thereafter, Iannucci continued to avoid his child

support obligations. As a result, monthly payments to eliminate his arrearage were added to his

child support obligation. Iannucci refined his argument to assert that the circuit court lacked

jurisdiction to require the invasion of his federal benefits to satisfy his child support obligation.

Iannucci claimed that federal authorities regulated the benefits and preempted the field. On

August 4, 2016, the circuit court rejected this argument, citing Rose v Rose, 481 US 619; 107 S

Ct 2029; 95 L Ed 2d 599 (1987), and this Court’s opinion affirming Iannucci’s criminal

conviction, for the proposition that the state courts had jurisdiction to deem Iannucci’s veterans’

disability benefits as income for child support purposes. But still, Iannucci did not comply with

the court’s child support order.

In 2018, the circuit court held Iannucci in contempt of court. In doing so, the circuit

court noted that Iannucci’s jurisdictional challenge had been decided in the criminal matter and

in the court’s 2016 order denying Iannucci’s motion to eliminate his child support duty. The

only question then before it, the court reasoned, was whether Iannucci should be held in

contempt for failure to comply with the court’s child support order. The answer to that question

was “yes.” It is from that order that Iannucci now appeals.

Iannucci hangs his hat on a September 24, 2013 letter from the Department of Veterans

Affairs, denying a request to “apportion” his benefits between himself and his children. The VA

“decided that the claim for an apportionment must be denied because an apportionment would

cause [Iannucci] undue financial hardship” under 38 CFR 3.451. Iannucci contends that

Congress amended 42 USC 659 in response to the United States Supreme Court’s opinion in

Rose, 481 US 619, holding that state courts could consider veterans’ disability benefits in

calculating child support awards. Michigan courts are preempted by the amended statute from

treating veterans’ disability benefits as income for child support purposes, Iannucci asserts.

II. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s order holding a party in contempt, but

consider underlying legal issues de novo and examine underlying factual findings for clear error.

Davis v City of Detroit Fin Review Team, 296 Mich App 568, 623; 821 NW2d 896 (2012).

“A party must obey an order entered by a court with proper jurisdiction, even if the order

is clearly incorrect, or the party must face the risk of being held in contempt and possibly being

ordered to comply with the order at a later date.” Kirby v Mich High School Athletic Ass’n, 459

Mich 23, 40; 585 NW2d 290 (1998).

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A person may not disregard a court order simply on the basis of his subjective

view that the order is wrong or will be declared invalid on appeal. Allowing such

behavior would encourage noncompliance with valid court orders on the basis of

misguided subjective views that the orders are wrong. There exists no place in

our justice system for self-help. [In re Contempt of Dudzinski (Grable v Brown),

257 Mich App 96, 111; 667 NW2d 68 (2003).]

If a party disagrees with a court’s ruling or order, the proper course is to seek appellate review.

Taking the matter into one’s own hands and deciding not to comply with the court’s orders risks

criminal contempt, even if the individual is ultimately deemed correct. Id. at 111-112.

III. ANALYSIS

The circuit court did not abuse its discretion in holding Iannucci in contempt. The court

had repeatedly ordered Iannucci to financially support his children since August 2011. Iannucci

raised his federal preemption and jurisdictional challenges in both his criminal matter and in the

ongoing child custody/child support action and those challenges were rejected on both fronts.

Yet, Iannucci did not appeal the circuit court’s 2016 child support order after the court rejected

his defense. Instead, Iannucci disobeyed the court’s orders and continued to insist that his

disability benefits could not be counted as income for purposes of calculating support. This was

contempt and the circuit court acted well within its powers to hold Iannucci liable.

Iannucci contends, however, that the circuit court was divested of jurisdiction by federal

statutes that preempt the field. MCL 552.17a(1) provides that circuit courts have “jurisdiction to

make an order or judgment relative to the minor children of the parties . . . and may require either

parent to pay for the support of each child.” Unless an exception applies, courts must employ the

FOC child support formula to calculate child support. MCL 552.605. 2017 MCSF 2.01(C)(4)

includes within a parent’s “income” “[m]ilitary specialty pay, allowance for quarters and rations,

housing, veterans’ administration benefits, G.I. benefits (other than education allotment, or drill

pay).” The disability benefits at issue in this case are “veterans’ administration benefits” and are

therefore considered income under the formula.

The formula does not contravene preemptive federal law.

Under the Supremacy Clause of the United States Constitution, US Const,

art VI, cl 2, federal law preempts state law where Congress so intends. Generally,

federal law does not preempt laws governing divorce or domestic relations, a

legal arena belonging to the states rather than the United States. Thus, state

family and family-property law must do major damage to clear and substantial

federal interests before the Supremacy Clause will demand that state law be

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overridden. [Biondo v Biondo, 291 Mich App 720, 725; 809 NW2d 397 (2011)

(cleaned up).1]

As found by the circuit court, the United States Supreme Court has held that state courts

may invade veterans’ disability benefits that have already been distributed to the veteran as a

source of income for child support purposes. Just as in this case, the father in Rose, 481 US at

622, was “a totally disabled veteran” whose income was composed of veterans’ disability

benefits. The trial court in Rose used those benefits when calculating the father’s income and

ordering him to pay child support. Id. Just as in this case, the father in Rose failed to pay and

the trial court held him in contempt. Id. at 623. And the question before the Court in Rose is the

same question before us now: “whether a state court has jurisdiction to hold a disabled veteran in

contempt for failing to pay child support, where the veteran’s only means of satisfying this

obligation is to utilize benefits received from the Veterans’ Administration.” Id. at 621-622.

The Supreme Court reminded in Rose that it had “consistently recognized that the whole

subject of the domestic relations of husband and wife, parent and child, belongs to the laws of

the States and not to the laws of the United States.” Id. at 625 (cleaned up). The Court

continued, “On the rare occasion when state family law has come into conflict with a federal

statute, this Court has limited review under the Supremacy Clause to a determination whether

Congress has positively required by direct enactment’ that state law be pre-empted. Before a

state law governing domestic relations will be overridden, it must do major damage to clear and

substantial federal interests.” Id. (cleaned up).

Relevant to the current appeal, the veteran father in Rose relied upon 42 USC 659(a),

which then provided:

“Moneys (the entitlement to which is based upon remuneration for employment)

due from, or payable by, the United States . . . to any individual, including

members of the armed services, shall be subject, in like manner and to the same

extent as if the United States . . . were a private person, to legal process brought

for the enforcement, against such individual of his legal obligations to provide

child support . . . .” [Rose, 481 US at 634, quoting 42 USC 659(a) (1982).]

The Court interpreted this provision as creating “a limited waiver of sovereign immunity so that

state courts could issue valid orders directed against agencies of the United States Government

attaching funds in the possession of those agencies,” Rose, 481 Mich at 635, not to assist

veterans in avoiding child support obligations calculated on funds already disbursed from the

agency to the individual: “[W]hile it may be true that these funds are exempt from garnishment

or attachment while in the hands of the Administrator, we are not persuaded that once these

1

This opinion uses the parenthetical (cleaned up) to improve readability without altering the

substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as

brackets, alterations, internal quotation marks, and unimportant citations have been omitted from

the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).

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funds are delivered to the veteran a state court cannot require that veteran to use them to satisfy

an order of child support.” Id.

Nine years after Rose, Congress amended 42 USC 659 to add section (h)(1)(B)(iii). This

provision states, that “[m]oneys subject to process . . . do not include any payment . . . of

periodic benefits under title 38, United States Code,” i.e., veterans’ benefits. Iannucci contends

that Congress added this provision in response to Rose to eliminate the authority of state courts

to calculate income based on veterans’ disability benefits. However, there is no indication in the

statute or the legislative history to support this proposition. We could locate no caselaw in any

jurisdiction interpreting 42 USC 659(h)(1)(B)(iii) in the manner suggested. Compare Matter of

Nieves v Iacono, 162 AD3d 669, 669-670; 77 NYS3d 493 (2018) (citations omitted) (“Contrary

to the father’s contention, federal law does not prohibit the inclusion of veterans disability

benefits as income in calculating a veteran’s child support obligation. Although veterans

benefits are exempt from many claims, 42 USC 659(a) specifically provides that this exemption

does not apply to child support obligations.”). The passage of almost a decade between the

resolution of Rose and the amendment of 42 USC 659, and more than 20 years since the statutory

amendment with no change in judicial approach, makes any connection between subsection

(h)(1)(B)(iii) and Rose attenuated at best. And it remains true that the state court did not enter

any order of garnishment; rather, it ordered the use of the veterans’ benefits already disbursed to

Iannucci in calculating Iannucci’s income.

Iannucci also cites 38 USC 5301(a)(1) as precluding the calculation of child support

based on his veterans’ disability benefits. The statute provides that “[p]ayments of benefits . . .

shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure

by or under any legal or equitable process whatever, either before or after receipt by the

beneficiary.” However, the Supreme Court in Rose rejected this argument as well:2

Though the legislative history for this provision is also sparse, it recognizes two

purposes: to avoid the possibility of the Veterans’ Administration being placed in

the position of a collection agency and to prevent the deprivation and depletion of

the means of subsistence of veterans dependent upon these benefits as the main

source of their income. Neither purpose is constrained by allowing the state court

in the present case to hold appellant in contempt for failing to pay child support.

The contempt proceeding did not turn the Administrator into a collection agency;

the Administrator was not obliged to participate in the proceeding or to pay

benefits directly to appellee. Nor did the exercise of state-court jurisdiction over

appellant’s disability benefits deprive appellant of his means of subsistence

contrary to Congress’[s] intent, for these benefits are not provided to support

appellant alone. [Rose, 481 US at 630 (cleaned up).]

2

When Rose was decided, the pertinent language of 38 USC 5301(a)(1) was located in 38 USC

3101(a).

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Iannucci asserts that the circuit court’s jurisdiction was preempted by 38 USC 511, too.

Subsection 511(a) provides that the Secretary of the Veterans’ Department “shall decide all

questions of law and fact necessary to a decision by the Secretary under a law that affects the

provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.” As

evidenced by the letter provided by Iannucci, the secretary determined that the department could

not apportion his veterans’ disability benefits between himself and his children because this

would cause an undue financial hardship to Iannucci. Although the Rose Court did not consider

the preemptive power of 38 USC 511, the Court’s analysis regarding § 659 is persuasive. Under

the support order and the contempt finding, the secretary’s decision is left untouched as Iannucci

is provided the exact same amount of benefits. “[O]nce those funds [were] delivered to the

veteran,” the circuit court was free to consider them as income that could be used “to satisfy an

order of child support.” Rose, 481 US at 635.

As the circuit court repeatedly decided in this case, the federal statutes do not prevent

state courts from considering veterans’ disability benefits as income in calculating child support

and the federal statutes do no preempt state law in this field. The circuit court had jurisdiction to

consider this issue and did not err. Accordingly, Iannucci is not entitled to relief and the civil

contempt order must stand.

IV. JUDICIAL DISQUALIFICATION

Iannucci also raises several complaints about the trial judge assigned to his case—

Macomb Circuit Court Judge Mark Switalski—as well as the Macomb County Friend of the

Court. We will address these claims as a request for judicial disqualification on remand.

Iannucci contends that Judge Switalski has a pecuniary interest in this matter. A judge

must disqualify him or herself from a matter in which he or she “has a pecuniary interest in the

outcome.” Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975). We are

aware of no state policy that provides kickbacks to trial court judges based on the amount of

child support awarded. Iannucci contends that 42 USC 658(4)(D) “allows for federal incentive

payments to be received by the state and friend of the court for monies collected for child

support.” The cited statute was repealed and certain provisions moved to 42 USC 655. Under

either state, this is not a money-making venture. Rather, the federal government provides grants

to the states to cover a percentage of the cost of running FOC systems.

Iannucci accuses Judge Switalski (and the FOC) of fraud and identity theft. This claim

stems from April 11, 2012 and May 2, 2017 “income withholding orders” naming the

“Employer/Income Withholder” as “Department of Veterans Affairs Civilian” and a September

10, 2013 order identifying the “Employer/Income Withholder” as “Michigan Unemployment

Insurance Agency.” Iannucci suspects fraud because he was not a civilian employee of the

federal government and never collected state unemployment benefits. The purpose of the

income withholding orders was to notify entities providing funds to Iannucci to withhold certain

amounts to cover Iannucci’s child support obligation. If Iannucci did not collect unemployment

benefits, the Michigan Unemployment Agency could not withhold any payments and Iannucci

suffered no prejudice. It is possible that Iannucci’s designation as a civilian employee of the

Department of Veterans Affairs was a mischaracterization by an FOC employee who was

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otherwise uncertain how to categorize the disabled veteran. Again, Iannucci was not prejudiced

by this classification. Accordingly, his challenges lack merit.

Iannucci also accuses Judge Switalski of allowing out-of-state attorneys to practice in

Michigan without being admitted to our bar. This bizarre assertion arises from Judge Switalski’s

review of legal treatises in researching Iannucci’s claims that his veterans’ disability benefits

could not be calculated as income. Judges and lawyers frequently refer to legal treatises to

increase their knowledge base. When faced with an infrequently occurring legal issue, like that

presented in this matter, continuing education is required. The alternative would be to have

important legal questions arbitrarily resolved by uneducated jurists. Certainly no party would

prefer this alternative. And ultimately, there is no legal requirement that the author of such

treatises be licensed to practice in the state of the judge.

Iannucci challenges “the credibility” of the FOC based on earlier child custody and

parenting time recommendations. Iannucci impugns Jones’s mental health, accuses her of

abusing and neglecting their children, and complains that the FOC and circuit court did not

adequately enforce parenting time orders. However, a parent may not withhold child support as

retribution for the other parent’s parenting time violations or as vengeance for losing a custody

battle. Child custody and parenting time are separate and distinct issues from child support. If

Iannucci was displeased with the orders denying his motion to change custody and to enforce

parenting time, he should have appealed those rulings. See Ewald v Ewald, 292 Mich App 706,

718-719; 810 NW2d 396 (2011); Rzadkowolski v Pefley, 237 Mich App 405, 409; 603 NW2d

646 (1999).

Finally, Iannucci opines that the circuit court and FOC were driven by “[d]iscrimation

against the veterans [sic] . . . to procure fiduciary and pecuniary gains.” There is no record

indication that any state actor held any discriminatory animus against Iannucci as a veteran.

Rather, all parents, whether or not a disabled veteran, must support their children. Iannucci had

funds from which he could support his children and was required to use them. It was not

discrimination to impose a child support obligation.

We affirm.

/s/ Christopher M. Murray

/s/ David H. Sawyer

/s/ Elizabeth L. Gleicher

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APPENDIX B

Order

Michigan Supreme Court

Lansing, Michigan

September 8, 2020

Bridget M. McCormack,

Chief Justice

160891

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

YANN IANNUCCI,

Plaintiff-Appellant,

v

SC: 160891

COA: 345886

Macomb CC: 2010-006282-DM

JULIE MICHELLE JONES,

Defendant,

and

MACOMB COUNTY FRIEND OF THE COURT,

Appellee.

_________________________________________/

On order of the Court, the application for leave to appeal the December 19, 2019

judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

September 8, 2020

b0831

Clerk

8a

Justices

APPENDIX C

Order

Michigan Supreme Court

Lansing, Michigan

November 24, 2020

Bridget M. McCormack,

Chief Justice

160891(99)(104)

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

YANN IANNUCCI,

Plaintiff-Appellant,

v

SC: 160891

COA: 345886

Macomb CC: 2010-006282-DM

JULIE MICHELLE JONES,

Defendant,

and

MACOMB COUNTY FRIEND OF THE COURT,

Appellee.

_________________________________________/

On order of the Court, the motion for reconsideration of this

2020 order is considered, and it is DENIED, because we are not persuaded that

reconsideration of our previous order is warranted. MCR 7.311(G). The motion to exceed

the page limitation for the motion for reconsideration is GRANTED.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

November 24, 2020

a1116

Clerk

9a

Justices

APPENDIX D

10a

IN THE SUPREME COURT

YANN IANNUCCI,

Plaintiff/Appellant,

SCT Docket No. 160891

COA Docket No. 345886

Circuit Court No. 10-006282-DM

v

JULIE MICHELLE JONES,

Defendant,

and

MACOMB COUNTY FRIEND OF TH

COURT,

Appellee.

__________________________________________________________________

MOTION FOR RECONSIDERATION

***FILED UNDER AO 2019-6***

__________________________________________________________________

Respectfully submitted by:

Carson J. Tucker (P62209)

Lex Fori, PLLC for and on behalf of Trinity Advocates

Attorneys for Petitioner

117 N. First St., Suite 111

Ann Arbor, MI 48104

(734) 887-9261

cjtucker@lexfori.org

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STATE OF MICHIGAN

TABLE OF AUTHORITIES ....................................................... ii

MOTION FOR RECONSIDERATION ...................................... 1

BRIEF IN SUPPORT OF RECONSIDERATION ..................... 2

CONCLUSION ........................................................................... 23

RELIEF REQUESTED .............................................................. 31

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TABLE OF CONTENTS

Cases

Betty v Brooks & Perkins,

446 Mich 270; 521 NW2d 518 (1994) ..............................................26

Bowie v Arder,

441 Mich 23; 490 NW2d 568 (1992) ..................................... 11, 13, 14

City of Detroit v Ambassador Bridge,

481 Mich 29; 748 NW2d 221 (2008) ................................................27

Cushman v Shinseki,

576 F 3d 1290 (Fed Cir 2009) ...........................................................28

Davis v Wechsler,

263 US 22; 44 S Ct 13; 68 L Ed 143 (1923)......................................25

Driver v Union Indus Trust & Savings Bank,

264 Mich 42; 249 NW 459 (1933) ....................................................13

Ex Parte Lange,

5 US 163; 21 L Ed 872 (1873) ..........................................................13

Ex Parte Rowland,

104 US 604; 26 L Ed 61 (1881) ........................................................13

Fletcher v Fletcher,

447 Mich 871; 526 NW2d 889 (1994) ..............................................27

Foster v Foster,

___ Mich ___; ___ NW2d ___ (2020) ....................................... passim

Fox v Univ of Michigan Bd of Regents,

375 Mich 238; 134 NW2d 146 (1965) ........................................ 12, 13

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TABLE OF AUTHORITIES

Henderson v Shinseki,

562 US 428; 131 S Ct 1197; 179 L Ed 2d 159 (2011) .........................5

Hillman v Maretta,

569 US 483; 133 S Ct 1943; 186 L Ed 2d 43 (2013) .........................29

Hines v Lowrey,

305 US 85; 59 S Ct 31; 83 L Ed 56 (1938).................................. 16, 25

Howell v Howell,

137 S Ct 1400; 197 L Ed 2d 781 (2017)..................................... passim

In re Estate of Fraser,

288 Mich 392; 285 NW 1 (1939) ......................................................14

In re Marriage of Cassinelli (On Remand),

20 Cal App 5th 1267; 229 Cal Rptr 3d 801 (2018)..............................8

Kalb v Feurstein,

308 US 433; 60 S Ct 343; 84 L Ed 370 (1940)............................ 25, 26

Mansell v Mansell,

490 US 581; 109 S Ct 2023; 104 L Ed 2d 675 (1989) ................. 17, 29

Martin v Hunter’s Lessee,

14 US 304; 4 L Ed 97 (1816) ............................................................18

Mathews v Eldridge,

424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976) ...............................28

McCarty v McCarty,

453 US 210; 101 S Ct 2728; 69 L Ed 2d 589 (1981) ............. 17, 23, 28

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Free v Bland,

369 US 663; 82 S Ct 1089; 8 L Ed 2d 180 (1962) .............................16

Megee v Carmine,

290 Mich App 551; 802 NW2d 669 (2010).......................................11

Moore v Peake,

2008 US App Vet Claims LEXIS 1640 (2008)....................................5

People v Bryant,

491 Mich 575; 822 NW2d 124 (2012) ..............................................27

Ridgway v Ridgway,

454 US 46; 102 S Ct 49; 70 L Ed 2d 39 (1981)........................... 17, 29

Rose v Rose,

481 US 619; 107 S Ct 2029; 95 L Ed 2d 599 (1987) .................. passim

Rostker v Goldberg,

453 US 57; 101 S Ct 2646; 69 L Ed 2d 478 (1981) ...........................28

Ryan v Brunswick Corp,

454 Mich 20; 557 NW2d 541 (1997) ................................................27

Sprietsma v Mercury Marine,

537 US 31; 123 S Ct 518; 154 L Ed 2d 466 (2002) ...........................27

Straus v Governor,

459 Mich 526; 592 NW2d 53 (1999) ................................................12

Travelers v Detroit Edison,

465 Mich 185, 204; 631 NW2d 733 (2001) ................................ 11, 12

United States v Hall,

98 US 343; 25 L Ed 180 (1878) .................................................. 15, 16

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McCulloch v Maryland,

17 US 316; 4 L Ed 579 (1819) ..........................................................26

Veterans for Common Sense v Shinseki,

678 F 3d 1013 (9th Cir 2012)..............................................................5

Windsor v McVeigh,

93 US 274; 23 L Ed 914 (1876) .................................................. 13, 14

Wissner v Wissner,

338 US 655; 70 S Ct 398; 94 L Ed 424 (1949)...................... 16, 27, 29

Statutes

18 USC § 1001 ...................................................................................9

38 USC § 211 ....................................................................... 2, 3, 4, 18

38 USC § 511 ............................................................................ passim

38 USC § 5301 .......................................................................... passim

38 USC § 5307 .................................................................................19

38 USC § 7251 ...................................................................................6

38 USC § 7261 ...................................................................................6

42 USC § 659 ........................................................................... 7, 9, 25

Rules

MCR 2.119 .......................................................................................29

MCR 7.311 ................................................................................... 1, 29

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United States v. Oregon,

366 US 643; 81 S Ct 1278; 6 L Ed 2d 575 (1961) ................. 16, 27, 29

Cooley, Constitutional Limitations (7th Ed) (1903) ...........................14

Regulations

5 CFR § 581.103 .................................................................................8

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Treatises

Pursuant to Michigan Court Rule (MCR) 7.311(G), Appellant seeks

reconsideration of the September 9, 2020 order of the court denying

leave to appeal in the case of Iannucci v Jones, et al, unpublished

opinion per curiam of the Court of Appeals, issued December 19, 2019

(Docket No. 345886)).

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MOTION FOR RECONSIDERATION

I am not persuaded that if the Administrator [now the

Secretary of Veterans Affairs] makes an apportionment

ruling, a state court may enter a conflicting child support

order. It would be extraordinary to hold that a federal

officer’s authorized allocation of federally granted funds

between two claimants can be overridden by a state

official.

***

I also disagree with the Court’s construction of 38

U.S.C. § 211(a), which provides that “decisions of the

Administrator on any question of law or fact under any law

administered by the Veterans’ Administration providing

benefits for veterans and their dependents…shall be final

and conclusive and no other official or any court of the

United States shall have power or jurisdiction to review

any such decision.” The Court finds this inapplicable

because it does not explicitly exclude state-court

jurisdiction, as it does federal…and because its

underlying purpose of “achiev[ing] uniformity in the

administration of veterans’ benefits and protect[ing] the

Administrator from expensive and time-consuming

litigation…would not be impaired. I would find it

inapplicable for a much simpler reason.

Had the Administrator granted or denied an application

to apportion benefits, state-court action providing a

contrary disposition would arguably conflict with the

language of § 211 making his decisions “final and

conclusive” – and if so would in my view be pre-empted,

regardless of the Court’s perception that it does not

conflict with the “purposes” of § 211. But there is

absolutely no need to pronounce upon that issue here.

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BRIEF IN SUPPORT OF RECONSIDERATION

So stated Justice Scalia, speaking to the applicability of 38 USC § 211

to the very circumstances that is before the Court in this case. However,

not only did the Secretary make a decision denying the apportionment

of Petitioner’s disability benefits, but Congress responded and changed

38 USC § 211 just after Rose to do exactly what Justice Scalia referred

to, i.e., explicitly exclude state court jurisdiction altogether. See 38

USC § 511(a) (in 1988 in direct response to Rose, reference in § 211(a)

to courts “of the United States” was removed and replaced with a

separate sentence that excludes review of benefits determinations as to

“any other official or by any court”). Moreover, the first sentence was

changed to make it clear that the Secretary primarily “shall decide all

questions of law and fact”, as opposed to the prior language which

merely provided that the “decisions of the Administrator” would be

deemed final and conclusive as to courts of the United States. These

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Because the Administrator can make an apportionment

only upon receipt of a claim…and because no claim for

apportionment of the benefits at issue here has ever been

filed, the Administrator has made no “decision” to which

finality and conclusiveness can attach. Rose v Rose, 481

US 619, 641-642; 107 S Ct 2029; 95 L Ed 2d 599 (1987)

(emphasis added).

primacy and exclusivity of jurisdiction over all claims for veterans’

benefits by both veterans and their dependents.

Prior to 1988, federal law did not give the Secretary initial (and

therefore primary) jurisdiction to “decide all questions of law or fact”

regarding veterans’ benefits, and it limited the jurisdiction of the

Veterans Administration over claims to such benefits to federal courts

– “court[s] of the United States”.

See 38 USC § 211(a) (1970)

(emphasis added). Placing the primary and initial decision over all

questions of law and fact concerning the division of benefits to veterans

and dependents within the exclusive jurisdiction of the executive

agency created for that purpose and creating an internal and wholly

“federal” court system for review of that agency’s decisions, with a

linear appellate track straight to the Supreme Court, was a change in the

law designed to remove any doubts and uncertainties created by having

multiple concurrent jurisdictional decision-making authorities and

therefore multiple states addressing the diverse considerations

necessary when considering a disabled veteran’s needs for his or her

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were fundamental changes in the law that removed any doubt about the

dependents. See, e.g., Henderson v Shinseki, 562 US 428, 441; 131 S

Ct 1197; 179 L Ed 2d 159 (2011). As explained by one court, “[i]n

order to dissuade the judiciary from ignoring ‘the explicit language that

Congress used in isolating decisions of the Administrator from judicial

scrutiny,’…Congress overhauled both the internal review mechanism

and § 211 in the [Veterans Judicial Review Act ] VJRA. Pub. L. No.

100-687, 102 Stat. 4105.” Veterans for Common Sense v Shinseki, 678

F 3d 1013, 1021 (9th Cir 2012), cert denied 568 US 1086 (2013).

Congress has explicitly excluded other courts from second guessing

individual benefits determinations and adjudications – these types of

decisions have been deemed by Congress to be without the jurisdiction

of the courts and within the exclusive jurisdiction and final adjudicative

authority of the VA. Veterans for Common SenseId. Section 511

dictates that the Board of Veterans’ Appeals and the VA makes the

ultimate decision on claims for benefits and provides one, and only one,

reviewing body. Moore v Peake, 2008 US App Vet Claims LEXIS 1640

(2008).

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own benefits and, consequently, any potential needs of his or her

intervene with the veteran’s disability benefits absent a decision by the

agency with exclusive jurisdiction over such claims, but it also created

an Article I Court (the United States Court of Appeals for Veterans

Claims) to exclusively review such decisions. See 38 USC §§ 7251 and

7261, respectively. See Public Law 100-687, November 18, 1988, 38

USC § 7251 (“There is hereby established, under Article I of the

Constitution of the United States, a court of record to be known as the

United States Court of Appeals for Veterans Claims.”).

Finally, since Rose, supra, the Supreme Court of the United States

has confirmed what Justice Scalia and Justice White surmised in their

separate statements in that case, to wit, 38 USC § 5301 does in fact

apply to prohibit state court orders that force a veteran to use his or her

disability benefits to satisfy a state court order, even one that merely

makes the veteran pay a sum of money that will necessarily implicate

the restricted benefits. See Rose, 481 US at 642-644 (SCALIA, J.,

concurring), 644-647 (WHITE, J., dissenting). In Howell v Howell, 137

S Ct 1400, 1405-1406; 197 L Ed 2d 781 (2017), the Court addressed

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Not only did Congress remove any doubt that state courts could not

that under 38 USC § 5301 state courts have no authority to vest these

benefits in anyone other than the beneficiary. “Regardless of their

form, such reimbursement and indemnification orders displace the

federal rule and stand as an obstacle to the accomplishment and

execution of the purposes and objectives of Congress. All such orders

are thus preempted.” Id. at 1406 (emphasis added).

The Court

reiterated that under preexisting federal law, only Congress could lift

the absolute preemption and give the state permission to count a

veteran’s disability as disposable income. Id. at 1404.

Indeed, Howell acknowledged that in some circumstances involving

disability pay that is received in lieu of waived retired pay the state may

allow division for purposes of support of dependents, see 137 S Ct at

1406 (citing Rose) and 42 USC § 659(a), (h)(1)(A)(ii)(V) (authorizing

the federal government to honor state court orders when there is

“income” being paid in the form of military disability retired pay (a

portion of retired pay owed to the veteran is replaced with “partial”

disability pay). But see 42 USC § 659(h)(1)(B)(iii) (excluding from

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this concern directly and held that all such orders are preempted and

veterans with service-connected disability exceeding the retirement

allowance and/or with service-connected disabilities incurred prior to

eligibility for retirement). State courts may exercise jurisdiction and

authority over veteran’s disability pay to satisfy a child support or

spousal support award, but only up to the amount of his or her waived

retired pay. 42 USC § 659(a), (h)(1)(A)(ii)(V), (B)(iii); 5 CFR §

581.103 (2018). See also In re Marriage of Cassinelli (On Remand),

20 Cal App 5th 1267, 1277; 229 Cal Rptr 3d 801 (2018) (on remand

from the United States Supreme Court for consideration of Howell).

Howell reaffirmed that all other disability benefits are protected

unless Congress has made an exception. Id. at 1404-1406. Here, there

is no exception and thus, Petitioner’s benefits are protected by the

affirmative and sweeping prohibitions from “any legal or equitable

process whatever, either before or after receipt” found in 38 USC §

5301(a)(1).

No such federal permission exists in this case because Petitioner is

a permanently and totally disabled veteran who never attained time in

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this federal allowance all regular disability pay paid to disabled

as a disposable asset subject to state court support orders. He has no

income, period. There is no question in this case that the state has

exceeded its jurisdiction in counting Petitioner’s restricted benefits as

disposable assets because those are the only benefits he has. The state

found itself in such a bind concerning the classification of Petitioner’s

benefits that it fraudulently identified them as “income” from

Petitioner’s employment with the Veterans Administration. Indeed, the

coding of Petitioner’s payments as “income” was a fraudulent act in

contravention of the exclusive federal jurisdiction of the Veterans

Administration over the restricted benefits. See 18 USC § 1001(a).

In other words, because Petitioner’s disability benefits are paid by

the Veterans Administration, and because Respondent knew that under

federal law it could only “count” Petitioner’s benefits if it classified

them as “income”, i.e., “remuneration for employment” under 42 USC

§ 659(h)(1)(A)(ii)(V), it coded the particular benefits of Petitioner as

“employment income” from employment with the Veterans’

Administration.

This was done despite the fact that the Internal

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service sufficient to even be eligible for benefits that might be available

certified as a matter of public record that Petitioner had no income from

earnings during the relevant periods of time. (ATTACHMENT A). It

should not go without mention that Petitioner has been convicted of a

felony for an alleged failure to pay monies that the federal government

considers restricted disability benefits and would never pay directly

over to the state or to dependents under court order in keeping with its

obligations pursuant to federal law, inter alia, 42 USC §

659(h)(1)(B)(iii) and 38 USC § 5301. In other words, Petitioner has

been convicted for an act that the federal government deems to be

lawful withholding of the benefits at issue.

This Court has recently confirmed the overarching principles in

Howell. State courts have always been preempted in this subject matter

unless federal law allows exercise of jurisdiction and authority over the

federal benefits at issue. Foster v Foster, ___ Mich ___; ___ NW2d

___ (April 29, 2020), Slip Opinion (Op) at 11-18. Moreover, the Court

applied 38 USC § 5301, recognizing that it jurisdictionally prohibited

the veteran from dispossessing himself of the benefits at issue and it

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Revenue Service (IRS) and Social Security Administration (SSA) have

veteran to use these benefits to pay orders in contravention of federal

law. Id. at 2-3, 19 (overruling Megee v Carmine, 290 Mich App 551,

574-575; 802 NW2d 669 (2010)).

Petitioner has presented the Court with the facts demonstrating that

there is a fundamental jurisdictional defect in the exercise by the state

over the disposition of his federal veterans’ disability benefits. As this

Court has recognized where another governmental agency has primary

(and in this case exclusive federal) jurisdiction over a claim or issue,

the state courts lack subject matter jurisdiction to enter any rulings that

would contravene the disposition of that claim by the agency which

retains such jurisdiction. Travelers v Detroit Edison, 465 Mich 185,

204; 631 NW2d 733 (2001) (citing Bowie v Arder, 441 Mich 23, 39;

490 NW2d 568 (1992) and stating “[a] court either has, or does not have,

subject-matter jurisdiction over a particular case.”). State courts are

precluded “from inquiring into and adjudicating” claims and issues that

reside solely and exclusively within the federal agency designated for

that purpose. Id. at 194. As the United States Supreme Court has

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also prohibited state courts from entering orders that would force the

agencies that have been tasked with exercising the full scope of

Congress’s enumerated powers under the Constitution. Id.

As jurisdictional defects may be raised at any time, even collaterally

or after the time for appeal has passed, and a court must always, sua

sponte, question its own authority and jurisdiction over a particular

matter, see Straus v Governor, 459 Mich 526, 532; 592 NW2d 53

(1999) (emphasis added), citing Fox v Univ of Michigan Bd of Regents,

375 Mich 238, 242; 134 NW2d 146 (1965), Petitioner respectfully

submits that here, as the Court of Appeals’ opinion contravened the

primary and exclusive jurisdiction of a federal agency designated by

Congress as the sole arbiter of claims for veterans’ benefits,

reconsideration is warranted. The Court of Appeals’ opinion cannot

stand, regardless of the time that has passed or the multitude of actions

that have been taken against Petitioner in his quest to correct the grave

errors of law that have occurred and that have severely prejudiced his

constitutional rights.

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recognized, the doctrine of primary jurisdiction applies to federal

jurisdiction over the subject matter and those acts are simply void ab

initio. As Justice Potter of this Court explained long ago, drawing on

the decisions of the United States Supreme Court concerning same:

Jurisdiction, in its fullest sense, is not restricted to the

subject-matter and the parties. If the court lacks

jurisdiction to render, or exceeds its jurisdiction in

rendering, the particular judgment in the particular case,

such judgment is subject to collateral attack, even though

the court had jurisdiction of the parties and of the subjectmatter. The supreme court of the United States, the

ultimate authority, has so ruled in Windsor v McVeigh, 93

US 274; Ex Parte Rowland, 104 US 604; Ex Parte Lange,

18 Wall (85 US) 163.

Driver v Union Indus Trust & Savings Bank, 264 Mich

42, 50-51; 249 NW 459 (1933) (POTTER, J.)

(emphasis added) (some internal citations omitted).

Later cases in Michigan adhere to this three-pronged query

concerning the exercise of proper jurisdiction and authority. See,

e.g., Straus, 459 Mich at 532; Fox, 375 Mich at 242. See also Bowie

v Arder, 441 Mich 23, 39; 490 NW2d 568 (1992).

A state court that “transcend[s] the limits of its authority” in

rendering a judgment issues a void decree. Windsor v McVeigh, 93

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When a court exceeds it jurisdiction or authority it acts without

consented to (as the federal statute expressly provides here in the

form of 38 USC § 5301(a)(3)), nor can it serve as the basis for a

subsequent finding of contempt or other penalty. In re Estate of

Fraser, 288 Mich 392, 394; 285 NW 1 (1939); Bowie, 441 Mich at

57. See also Cooley, Constitutional Limitations (7th Ed) (1903), pp

575-576, stating:

If [the court] assumes to act in a case over which the

law does not give it authority, the proceeding and

judgment will be altogether void, and the rights of

property cannot be divested by means of them….

[C]onsent can never confer jurisdiction: by which is

meant that the consent of parties cannot empower a

court to act upon subjects which are not submitted to

its determination and judgment by the law.”

***

[W]here a court by law has no jurisdiction of the

subject- matter of a controversy, a party whose rights

are sought to be affected by it is at liberty to repudiate

its proceedings and refuse to be bound by them,

notwithstanding he may once have consented to its

action, either by voluntarily commencing the

proceeding as plaintiff, or as defendant by appearing

and pleading to the merits, or by any other formal or

informal action. This right he may avail himself of at

any stage of the case; and the maxim that requires one

to move promptly who would take advantage of an

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US 274, 282; 23 L Ed 914 (1876). Such a decree can neither be

There is no question that the state has exceeded its jurisdiction and

authority in this case. The Court of Appeals’ conclusion that Petitioner

is jurisdictionally and substantively precluded from challenging the

state’s power in this case is jurisdictional error and can neither be

waived or surrendered. While the Court of Appeals’ conveniently skips

over the fact that the 2013 apportionment denial decision by the

Secretary of the Department of Veterans’ Affairs (VA) was absolute

and dispositive concerning whether Petitioner’s disability benefits

could be used at all for support of the dependents, the constitutional and

statutory framework supporting that decision is clear and unmistakable

in its breadth and scope. See 38 USC § 511(a). Not one jot or tittle of

state sovereignty remains to divert or otherwise decide the use of

Petitioner’s benefits.

They are also protected by affirmative and

positive federal legislation. 38 USC § 5301(a)(1). See also United

States v Hall, 98 US 343, 349-355; 25 L Ed 180 (1878). The Court, in

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irregularity does not apply here, since this is not mere

irregular action, but a total want of power to act at

all…. [T]here can be no waiver of rights by laches in

a case where consent would be altogether nugatory.

(emphasis added).

benefit legislation that “[t]hese diverse selections from the almost

innumerable list of acts passed granting pensions are sufficient to prove

that throughout the whole period since the Constitution was adopted it

has been the policy of Congress to enact such regulations as will secure

to the beneficiaries of the pensions granted the exclusive use and benefit

of the money appropriated and paid for that purpose. Id. at 352

(emphasis added). Exclusive use and benefit cannot occur if Appellant

is forever bound by an agreement which the statute says is void from

inception.

All of the legislative authority concerning the provision of veterans’

benefits and their disposition are a direct exercise by Congress of its

enumerated powers over military affairs. Id. at 346-356. See also

Hines v Lowrey, 305 US 85, 90-91; 59 S Ct 31; 83 L Ed 56 (1938);

Wissner v Wissner, 338 US 655, 660-661; 70 S Ct 398; 94 L Ed 424

(1949); United States v. Oregon, 366 US 643, 648-649; 81 S Ct 1278;

6 L Ed 2d 575 (1961); Free v Bland, 369 US 663, 666; 82 S Ct 1089; 8

L Ed 2d 180 (1962); McCarty v McCarty, 453 US 210, 220-223; 101 S

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1878, stated of canvassing the anti-attachment provisions in veterans’

55; 102 S Ct 49; 70 L Ed 2d 39 (1981); Mansell v Mansell, 490 US 581,

587; 109 S Ct 2023; 104 L Ed 2d 675 (1989); Howell v Howell, 137 S

Ct 1400, 1404; 197 L Ed 2d 781 (2017). As this Court has most recently

acknowledged in its unanimous opinion, federal law preempts state law

control over military benefits absent congressional authority. Foster v

Foster, __ Mich ___; ___ NW2d ____, (April 29, 2020), Slip Opinion

at 11-18 and n 51. See also Foster v Foster (On Second Remand),

Unpublished Per Curiam Opinion of the Michigan Court of Appeals,

issued July 30, 2020 (Docket No. 324853) (holding simply that “[s]tate

courts are deprived of subject-matter jurisdiction when principles of

federal preemption are applicable” and therefore, due to the principles

of federal preemption of state law concerning veterans’ disability

benefits, the disabled veteran there “did not engage in an improper

collateral attack on the consent judgment with respect to the offset

provision” and the subsequent contempt orders requiring him to pay his

former spouse using his restricted veteran’s disability benefits were null

and void. Id. at 2.

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Ct 2728; 69 L Ed 2d 589 (1981); Ridgway v Ridgway, 454 US 46, 54-

state courts because where federal preemption applies, the federal

government has retained its sovereign authority over the issue. The

state court has no authority to exceed its constitutional jurisdiction in

such matters. The delegated powers of the federal government have not

been surrendered to the states. The states may only exercise jurisdiction

and authority over those matters that have been granted to it by

Congress. If the rule were otherwise, then 50 states could have 50

different rules (or even one consistent but erroneous rule) than that

established as the Supreme Law under the Constitution. Justice Story

described this as a situation that would be “truly deplorable”. Martin v

Hunter’s Lessee, 14 US 304, 348; 4 L Ed 97 (1816).

Against this backdrop the conclusion is quite simple. Not only has

Congress been delegated absolute preemptive authority over these

matters, but in 1988, after the Rose decision that the Court of Appeals’

relies on here to assert state authority over the federal benefits,

Congress amended 38 USC § 211 (now 38 USC § 511) to remove any

of the reservations concerning potential concurrent state jurisdiction

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Federal preemption goes to the subject matter jurisdiction of the

US at 628. A decision by a state court that forces a disabled veteran to

use his or her restricted benefits to pay for support of dependents,

especially after the Secretary of Veterans Affairs has denied a

dependent’s claim, is a decision that necessarily interferes with and

ostensibly supersedes (albeit erroneously) the primary and exclusive

jurisdiction of the VA.

Acting within its primary and exclusive jurisdiction over the

disposition of Petitioner’s benefits, the Secretary of the Department of

Veterans Affairs (VA) made a decision to deny an apportionment of

those benefits for support of the dependents under 38 USC § 5307. This

decision was made by the Secretary under its authority as provided in

38 U.S.C. § 511(a). That provision states that “[t]he Secretary shall

decide all questions of law and fact necessary to a decision by the

Secretary under a law that affects the provision of benefits by the

Secretary to veterans or the dependents or survivors of veterans.”

(emphasis added). The second sentence of that provision continues:

“[T]he decision of the Secretary as to any such question shall be final

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over claims by dependents for veterans’ benefits. See Rose v Rose, 481

court, whether by an action in the nature of mandamus or otherwise.”

(emphasis added).

As Petitioner has himself repeatedly argued in this case, the state

court’s decisions forcing him to dispossess himself of his federal

disability benefits are and always have been jurisdictionally defective

because the Secretary made the decision that the dependents were not

entitled to any of Petitioner’s benefits.

Its decision was “final”,

“conclusive” and “exclusive” of “any court” exercising any legal

process. If the applicant for an apportionment wishes to seek a review

of that decision, an Article I court was created by Congress for that

purpose in 1988 with the passage of the Veterans Judicial Review Act

(VJRA).

The decision of the Secretary denying the claim for apportionment.

Jurisdiction is exclusively vested in the Secretary as to “any court”.

Federal law nowhere allows for the benefits at issue to be without the

jurisdictional protections afforded by federal law and Congress’s

assurance that only the Secretary can make the initial benefits

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and conclusive and may not be reviewed by any other official or by any

them in a manner that differs from the original disposition.

Any claim or decision that relates to or involves the disposition of a

veterans’ federal disability benefits necessarily affects a decision that

has already been made by the VA Secretary concerning a claim for

those benefits by the veteran and his or her dependents. 38 USC §

511(a). The VA’s decision as to how much of those benefits should be

paid to the veteran and the reasons those payments are made cannot be

interfered with or disrupted by a contrary ruling by any other person or

court. Id. This disrupts the federal appropriation, the congressional

scheme for military compensation, and most importantly the delegated

and exclusive powers of Congress over military affairs. To be clear,

any decision by a state court that would cause a diversion of these

protected funds away from the federally designated beneficiary (usually

the veteran) to any other person or entity would be an extrajurisdictional act and in direct conflict with the provisions of 38 USC §

511, the VJRA and the anti-attachment provision, 38 USC § 5301. So,

to conclude that a state court is without authority, is to say that it has

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determination and, necessarily, any subsequent request to apportion

contrary ruling.

Finally, as an affirmative protection that directly prohibits state

courts from entering indemnification or direct reimbursement orders

that invade the restricted assets, 38 USC § 5301 provides an additional

layer of positive protection with its expansive prohibition on “any legal

or equitable process whatever, either before or after receipt.”

Appellee can point to no direct, federal law that allows the state to

count or otherwise include Petitioner’s benefits as disposable assets or

available income for purposes of satisfying a child support order.

Congress unequivocally removed any ambiguity when it provided in 38

USC § 511 after Rose that the Secretary of Veterans Affairs “shall

decide all questions of law and fact” with respect to claims for benefit

by both veteran and their dependents, and further removed any doubt

that the exclusivity of jurisdiction applied to any court that might

otherwise preside over or review a claim for the veteran’s disability

benefits.

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no jurisdiction, and here, that is constitutional jurisdiction, to issue a

The 2017 unanimous opinion of the United States Supreme Court in

Howell v Howell, 581 US ___; 137 S Ct 1400; 197 L Ed 2d 781 (2017)

137 S Ct 1400 (2017) explicitly ruled that the states were (and always

have been) preempted from contradicting federal statutory law that

governed the disposition of veterans’ disability benefits. “[F]ederal law,

as construed in McCarty, completely preempted the application of state

community property law to military retirement pay” and stating that

“McCarty, with its rule of federal preemption, still applies.” (emphasis

added). Howell, supra at 1403-1404.

The Court of Appeals chose to ignore the critical fact that here, the

VA made an apportionment decision with respect to veterans’ benefits.

As this Court recently confirmed in Foster v Foster, where an

apportionment occurs by virtue of settlement of the veteran’s disability

claim, federal law prohibits state courts from asserting authority or

control over the decision in a manner that would be contrary to the

decision made by the Veterans Administration. The reason for this is

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CONCLUSION

and final and may not be contradicted by any other court or tribunal.

Moreover, the Court noted that the plain and unambiguous language

of 38 USC § 5301 directly applies to jurisdictionally bar all state courts

from attempting to dispossess veterans of their disability benefits

whether before or after receipt – in other words, no legal or equitable

process can be used to either redirect payment (through garnishment,

attachment, levy or seizure – before receipt by the beneficiary), or direct

payment by the beneficiary after receipt by him or her of these benefits.

It simply cannot be done and no contractual agreement or other form of

coercive mechanism can be instituted to get around this absolute

prohibition. See 38 USC § 5301(a)(1), (3)(A) and (C).

Because federal law has always preempted state law in this very

specific circumstance, any state-court domestic relations order

awarding support (child and/or spousal) would be void and

unenforceable, both going forward and retroactively. In this case,

Appellant’s federal disability benefits are specifically excluded from

consideration as remuneration for employment, and therefore as

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simple. Under 38 USC § 511, a claim for veterans’ benefits is exclusive

such, these benefits are jurisdictionally protected from any legal

process whatever by 38 USC § 5301. Federal law is very clear and has

been strengthened to exclude state courts from interfering with the

disposition of veterans’ disability benefits.

A state court that rules incorrectly on a matter preempted by federal

law acts in excess of its jurisdiction. Such rulings, and the judgments

they spring from, including all subsequent contempt and related orders

are void ab initio and exposed to collateral attack. The United States

Supreme Court has said as much: “That a state court before which a

proceeding is competently initiated may – by operation of supreme

federal law – lose jurisdiction to proceed to a judgment unassailable on

collateral attack is not a concept unknown to our federal system.” Kalb

v Feurstein, 308 US 433, 440, n 12; 60 S Ct 343; 84 L Ed 370 (1940);

Davis v Wechsler, 263 US 22, 24-25; 44 S Ct 13; 68 L Ed 143 (1923);

and Hines v Lowrey, 305 US 85, 90, 91; 59 S Ct 31; 83 L Ed 56, 60

(1938) (applying the same principle to Congress’ exercise of its

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income, by 42 USC § 659(a); (h)(1)(A)(ii)(V); and (h)(1)(B)(iii). As

provides the veterans’ benefits at issue in this case).

“The States cannot, in the exercise of control over local laws and

practice, vest state courts with power to violate the supreme law of the

land.” Kalb, 308 US at 439. “States have no power…to retard, impede,

burden, or in any manner control, the operations of the constitutional

laws enacted by Congress to carry into execution the powers vested in

the general government.” McCulloch v Maryland, 17 U.S. (4 Wheat)

316, 436; 4 L Ed 579 (1819) (MARSHALL, CJ) (emphasis added).

Absent such power, any attempt by state courts to impede the operation

of federal laws must be considered a nullity and void. Kalb, supra.

This Court has the constitutional authority and indeed the duty to

say what federal law requires and to abide by that law pursuant to the

Supremacy Clause of the United States Constitution. Betty v Brooks &

Perkins, 446 Mich 270, 276; 521 NW2d 518 (1994) (stating that

“[w]here federal questions are involved [this Court] is bound to follow

the prevailing opinions of the United States Supreme Court.”) (internal

citations omitted); City of Detroit v Ambassador Bridge, 481 Mich 29,

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Military Powers, the enumerated powers under which Congress

preempted by federal law the state court lacks subject matter

jurisdiction and authority to act in a manner contrary to the prevailing

federal rule. Ryan v Brunswick Corp, 454 Mich 20, 27; 557 NW2d 541

(1997), overruled on other grounds by Sprietsma v Mercury Marine,

537 US 31; 123 S Ct 518; 154 L Ed 2d 466 (2002). It is necessary for

this Court to address Court of Appeals’ opinions “that misapplied

constitutional

principles

and

United

States

Supreme

Court

precedent….” People v Bryant, 491 Mich 575, 583, n 5; 822 NW2d

124 (2012). See also Fletcher v Fletcher, 447 Mich 871, 881; 526

NW2d 889 (1994) (stating: “When a court incorrectly chooses,

interprets, or applies the law, it commits legal error that the appellate

court is bound to correct.”).

Since providing veterans’ benefits is a function reserved for

Congress under Article I of the Constitution, see Wissner v Wissner,

338 US 655, 660-661; 70 S Ct 398; 94 L Ed 424 (1950); United States

v Oregon, 366 US 643, 649; 81 S Ct 1278; 6 L Ed 2d 575 (1961);

Johnson v. Robison, 415 U.S. 361, 376, 385; 94 S Ct 1160; 39 L Ed 2d

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36; 748 NW2d 221 (2008). Indeed, where a state law proceeding is

the jurisdiction of a state court over ordinary divorce proceedings in

which there are no constitutionally protected property rights. Cushman

v Shinseki, 576 F 3d 1290, 1296-1297 (Fed Cir 2009) (veterans’

benefits are constitutionally protected property rights), following

Mathews v Eldridge, 424 US 319, 332; 96 S Ct 893; 47 L Ed 2d 18

(1976) (disability benefits are constitutionally protected property

rights). Petitioner is and continues to be deprived of his fundamental

constitutional rights as a result of a felony conviction based on orders

of the state court that the latter lacked the constitutional and

jurisdictional authority to issue.

Here, the vitiating defect lies at the very heart of the state court’s

assumption of authority over a subject within the sole realm of

Congress, premises deemed to be among the most respected of those

within which Congress exercises its limited, but reserved powers.

McCarty, 453 US at 236, citing Rostker v Goldberg, 453 US 57, 64-65;

101 S Ct 2646; 69 L Ed 2d 478 (1981). “[P]erhaps in no other area has

the Court accorded Congress greater deference.” Rostker, supra. As

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389 (1974); and McCarty, 453 US at 236, the issue involves more than

furtherance of its constitutional powers under Article I, state law must

yield. Ridgway, 454 US at 55.

Simply put, the state has no authority or jurisdiction over federally

protected veterans’ benefits. Since the Constitution first delegated to

Congress the authority to provide for national defense, “Congress has

directly and specifically legislated in the area” concerning the division

of veterans’ benefits as property. United States v Oregon, 366 US at

649. See also Mansell, 490 US at 587. The provisioning of these

benefits has been deemed by the Court as “a legitimate one within the

congressional powers over national defense”. Wissner, 338 US at 660661. Thus, “a state divorce decree, like other law governing the

economic aspects of domestic relations, must give way to clearly

conflicting federal enactments.” Ridgway, 454 US at 55 (emphasis

added). See also Hillman v Maretta, 569 US 483, 491; 133 S Ct 1943;

186 L Ed 2d 43 (2013).

MCR 7.311(G) provides that motions for reconsideration are subject

to the restrictions contained in MCR 2.119(F)(3). That rule in turn

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with all matters of federal preemption, where Congress acts in

rehearing or reconsideration which merely presents the same issues

ruled on by the court, either expressly or by reasonable implication, will

not be granted. The moving party must demonstrate a palpable error by

which the court and the parties have been misled and show that a

different disposition of the motion must result from correction of the

error.”

Here, since this Court’s recent decision in Foster v Foster has

confirmed that federal preemption applies unless Congress says

otherwise, and Congress clearly strengthened the law to jurisdictionally

exclude state courts from making a disposition of a veteran’s disability

benefits in a manner contrary to the determination made by the agency

with primary and exclusive jurisdiction to do so, palpable error has

occurred in binding Petitioner to a void state court order.

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states that “without restricting the discretion of the court, a motion for

Appellant respectfully requests this Court to grant his motion for

reconsideration and consider his appeal of the Court of Appeals’

opinion on the merits.

Respectfully submitted by:

_________________________

Carson J. Tucker (P62209)

Lex Fori, PLLC for and on

behalf of Trinity Advocates

Attorneys for Petitioner

117 N. First St., Suite 111

Ann Arbor, MI 48104

(734) 887-9261

Dated: September 29, 2020

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RELIEF REQUESTED

In accordance with Administrative Order No. 2019-6, this brief

contains 5,776 words (as identified by the Microsoft Word “word

count” function) and was prepared using the proportional font typeface

Times New Roman set at 14-point.

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CERTIFICATE OF COMPLIANCE

Certified Record of No Earnings for Petitioner Yann

Iannucci from Social Security Administration,

dated 22 September 2020

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ATTACHMENT A

RECEIVED by MSC 9/29/2020 8:40:40 PM

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