Petition for Writ of Certiorari — Preston L. Drane, Petitioner v. Stephania Drane

No. _____________

In The

Supreme Court of the United States

_______________

PRESTON L. DRANE,

Petitioner,

v.

STEPHANIA DRANE,

_______________

Respondent.

On Petition For A Writ Of Certiorari To The Fifth

District Court of Appeal Of Florida

_______________

PETITION FOR WRIT OF CERTIORARI

_______________

Andrew B. Greenlee, Esq.*

Andrew B. Greenlee, P.A.

Attorney for Petitioner

401 E. 1st Street, Unit 261

Sanford, Florida 32772

407-808-6411

andrew@andrewgreenleelaw.com

*Counsel of Record for Petitioner

June 22, 2022

___________________________________________________________

___________________________________________________________

i

QUESTION PRESENTED

In a dissolution of marriage proceeding, may a

court disregard military documentation showing that

a veteran is receiving payments for disability, which

are not subject to equitable distribution under the

Uniformed Services Former Spouses’ Protection Act,

10 U.S.C. § 1408(a)(4)(A), and instead rely on expert

testimony to conclude that the payments are a

pension that may be divisible upon divorce?

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner Preston L. Drane was the Appellant

in the court below.

Respondent, who was the Appellee in the court

below, is Mr. Drane’s former wife, Stephania Drane.

Petitioner is not a corporation. No party is a

parent or publicly held company owning 10% or more

of any corporation’s stock.

iii

STATEMENT OF RELATED PROCEEDINGS

•

Drane v. Drane, Case No. 05-2017-DR-22905,

•

Drane v. Drane, 333 So. 3d 1128 (Fla. 5th DCA

Fla. 18th Jud. Cir. 2017). Supplemental Final

Judgment of Dissolution of Marriage entered

on December 16, 2020.

2022).

Supplemental Final Judgment of

Dissolution of Marriage per curiam affirmed

on February 22, 2022.

iv

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ..................................................... ii

STATEMENT OF RELATED PROCEEDINGS ....... iii

TABLE OF AUTHORITIES ......................................vii

PETITION FOR WRIT OF CERTIORARI ................. 1

DECISIONS BELOW .................................................. 1

STATEMENT OF JURISDICTION ............................ 1

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED ......................................... 2

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE WRIT .................. 9

CONCLUSION .......................................................... 17

APPENDIX

Appendix A

Opinion in the District Court of Appeal of the

State of Florida Fifth District

(February 22, 2022) ............................................ App. 1

v

Appendix B

Supplemental Final Judgment of Dissolution of

Marriage in the Circuit Court of the Eighteenth

Judicial Circuit in and for Brevard County,

Florida (December 16, 2020) .............................. App. 3

Appendix C

Medical Board Report (January 10, 2022)......... App. 9

Appendix D

Certificate of Release or Discharge from Active

Duty (November 24, 2020) ............................... App. 10

Appendix E

Letter from Defense Finance and Accounting

Service dated February 14, 2018

(November 24, 2020)......................................... App. 11

Appendix F

Letter from Defense Finance and Accounting

Service dated October 5, 2017

(November 24, 2020)......................................... App. 17

Appendix G

Transcript Excerpt (November 24, 2020) ........ App. 19

Appendix H

Transcript Excerpt, Hearing Before Judge

Roberts in the Circuit Court of the Eighteenth

Judicial Circuit in and for Brevard County,

Florida (January 16, 2021) ............................... App. 21

vi

Appendix I

Special Order in the Department of the Air

Force Washington DC 20330-5026 dated May

26, 2010 (November 24, 2020) .......................... App. 31

vii

TABLE OF AUTHORITIES

Cases

Page(s)

Florida v. Rodriguez,

469 U.S. 1 (1984) ...................................................... 2

Howell v. Howell,

137 S. Ct. 1400 (2017) .................................. 9, 11, 13

Mansell v. Mansell,

490 U.S. 581 (1989) ............................................ 2, 10

McCarty v. McCarty,

453 U.S. 210 (1981) ............................................ 9, 11

Michigan v. Long,

463 U.S. 1032 (1983) ................................................ 2

Constitution and Statutes

U.S. Const. art. VI, § 2 ................................................ 3

10 U.S.C. § 1201(a) .................................................... 11

10 U.S.C. § 1401(a) .................................................... 12

10 U.S.C. § 1408 .......................................................... 9

10 U.S.C. § 1408(a)(4)(A) .......................... i, 2, 8, 10, 11

28 U.S.C. § 1257(a) ...................................................... 1

viii

Other Authorities

Defense Finance and Accounting Service, Is it

Taxable?

available

at

https://www.dfas.mil/retiredmilitary/manage/t

axes/isittaxable/ (last visited June 15, 2022) ........ 16

DoD 7000.14-R, Vol. 7B, Chapter 24, § 240201

(August 2017) ................................................... 13, 14

1

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Preston L. Drane, respectfully

petitions the Court for a writ of certiorari to review

the decision of Florida’s Fifth District Court of

Appeal, which affirmed a judgment holding that his

military disability payments are subject to equitable

distribution in dissolution of marriage proceedings.

DECISIONS BELOW

The Circuit Court of the Eighteenth Judicial

Circuit, in and for Brevard County, Florida, entered a

Supplemental Final Judgment of Dissolution of

Marriage. App. 3.

Florida’s Fifth District Court of Appeal issued

an order per curiam affirming that decision without a

written opinion. That order is published at 333 So. 3d

1128 (Fla. 5th DCA 2022) and reproduced in the

appendix. App. 1.

STATEMENT OF JURISDICTION

The Fifth District Court of Appeal issued its

order on February 22, 2022. App. 1. This Court

extended the time for Mr. Drane to submit this

petition until June 22, 2022. This petition is timely.

This Court has jurisdiction to review the

decision of the Fifth District Court of Appeal under

28 U.S.C. § 1257(a), because the appellate court, the

state court of last resort, ruled on Petitioner’s claim

that his permanent military disability benefits were

2

indivisible under a federal statute, 10 U.S.C.

§ 1408(a)(4)(A).

See Mansell v. Mansell, 490 U.S.

581, 583 (1989) (reviewing similar question); see also

Florida v. Rodriguez, 469 U.S. 1, 2 (1984) (granting

petition for writ of certiorari to the Third District

Court of Appeal of Florida to review per curiam

affirmance on issue of federal constitutional law);

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)

(jurisdiction lies where the decision in question

“appears to rest primarily on federal law, or to be

interwoven with the federal law,” or where the

“adequacy and independence of any possible state

law ground is not clear from the face of the opinion”).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Uniformed Services Former Spouses’

Protection Act, 10 U.S.C. § 1408(a)(4)(A), provides as

follows:

The term ‘disposable retired pay’ means

the total monthly retired pay to which a

member is entitled less amounts

which—

(i) are owed by that member to

the

United States for previous

overpayments of retired pay and for

recoupments required by law resulting

from entitlement to retired pay;

(ii) are deducted from the retired

pay of such member as a result of

3

forfeitures of retired pay ordered by a

court-martial or as a result of a waiver

of retired pay required by law in order

to receive compensation under title 5 or

title 38;

(iii) in the case of a member

entitled to retired pay under chapter 61

of this title, are equal to the amount of

retired pay of the member under that

chapter computed using the percentage

of the member’s disability on the date

when the member was retired (or the

date on which the member’s name was

placed on the temporary disability

retired list); or

(iv) are deducted because of an

election under chapter 73 of this title to

provide an annuity to a spouse or former

spouse to whom payment of a portion of

such member’s retired pay is being

made pursuant to a court order under

this section.

The Supremacy Clause provides that the

United States Constitution and all federal laws

enacted pursuant to the federal constitution are “the

supreme Law of the Land.” U.S. Const. art. VI, § 2.

STATEMENT OF THE CASE

Mr. Drane served in the Air Force for twentythree years and attained the rank of Master

4

Sergeant.

App. 10.

He received multiple

commendations for his service, including a

“Meritorious Service Medal,” an “Air Force

Commendation Medal with one oak leaf cluster,” an

“Air Force Achievement Medal,” an “AF Outstanding

Unit Award with 4 oak leaf clusters,” an “AF Good

Conduct Medal with 7 oak leaf clusters” a “National

Defense Service Medal with 1 service star,” a “Global

War on Terrorism Service Medal,” and an “AF

Longevity Service with 4 oak” award. App. 10.

During his service, Mr. Drane suffered a back

injury that prevented him from “reasonably

performing the duties of his office, grade, rank, or

rating.” App. 9. The Air Force found this injury was

sustained in the line of duty and constituted a

permanent disability that required Mr. Drane to be

relieved from further service under 10 U.S.C.

chapter 61. App. 9, 32. Mr. Drane was placed on the

“Permanent Disability Retired List” (PDRL) and

granted retirement pay calculated based on a

disability formula. App. 11, 14-16.

During “9.22 years” of his service in the Air

Force, Mr. Drane was married to his former wife,

Stephania Drane (“Former Wife”), who also served as

an active-duty member of the Air Force during their

marriage. App. 4, 6. In 2017, however, Mr. Drane

petitioned the state trial court for dissolution of

marriage. App. 6.

5

The parties entered a Marital Settlement

Agreement, which was filed on February 14, 2020. In

the agreement, each of the parties expressly waived

the right to “receive any Survivor Benefits” from the

estate of the other. The trial court ratified the

Marital Settlement Agreement and Parenting Plan

and incorporated its terms into the Final Judgment

of Dissolution of Marriage. App. 23. The court

reserved ruling on the type of pay Mr. Drane was

receiving, its valuation and distribution of the

parties’ retirement pay. App. 3.

The trial court convened a hearing on that

issue. In opening statements, Mr. Drane emphasized

that all the paperwork related to his discharge from

the military characterizes his retirement as

occasioned by his permanent disability. App. 19-20.

And, he argued, under federal law, those permanent

disability payments are not subject to equitable

distribution. App. 20. The Former Wife argued in

response that, notwithstanding the plain language of

his discharge papers, Mr. Drane’s permanent

disability pay was a pension and therefore subject to

equitable distribution as regular Air Force

retirement pay. App. 4.

To support her theory, the Former Wife called

an expert, Timothy Voit, a “financial analyst” in a

“forensic economics firm.” App. 4. Mr. Voit testified

that the marital portion of monthly benefit was

$875.90. Mr. Voit did not use any military formula to

6

arrive at his figure. Nor did he attempt to reconcile

his calculations with section 1408(a)(4)(A) of the

Uniform Services Former Spouses Act, which

precluded the equitable distribution of any portion of

Mr. Drane’s permanent disability pay.

Instead, he claimed that Mr. Drane’s payments

were not disability payments at all, but instead were

retirement pay. See App. 24, 32. Mr. Voit based his

determination primarily on the fact that a certain

portion of the income of Mr. Drane was listed as

taxable income. See App. 25. According to Mr. Voit,

this meant that 100% of the payments, apart from

other VA payments, constituted a disposable retired

pay. See App. 25.

After Mr. Voit concluded his testimony, Mr.

Drane testified regarding his disability and discharge

from military service. See App. 25. Mr. Drane

disputed the notion that all disability payments are

non-taxable and referenced his exhibits, as well as

Department of Defense regulation 7000.14-R. Mr.

Drane testified that he had intimate experience with

the regulations governing permanent disability

payment because he helped author some of those

regulations during his military service. See App. 30.

Mr. Drane introduced into evidence a series of

documents related to his permanent disability

retirement. His Air Force DD-214 form, the official

paperwork documenting his separation from the Air

7

Force, states that he was medically discharged due to

his permanent disability. App. 10.

In addition, Mr. Drane introduced a letter

dated February 14, 2018, from the Defense Finance

Accounting Service (“DFAS”) that stated that he was

placed on the “Permanent Disability Retired List.”

App. 11. That letter described the two different

methods of calculating his disability retirement pay.

“Method A” employed a calculation using his

permanent disability rating of 40%, while “Method B”

utilized the longevity of his service. Because Method

B was more favorable to Mr. Drane, DFAS

automatically used that calculation to arrive at the

rate of his permanent disability pay. App. 11.

The Air Force determined that Mr. Drane was

injured “in the line of duty.” App. 9. Mr. Drane’s

medical report revealed a finding that his injury was

permanent but was not a “direct result of a combat

related injury” or a “disability that was the direct

result of armed conflict or was caused by an

instrumentality of war and incurred in the line of

duty during a period of war.” App. 9.

According to a Special Order issued by the Air

Force governing his discharge from the military, Mr.

Drane was “relieved from active duty” and

“permanently disability retired . . . with compensable

percentage for physical disability” of 40%. App. 31.

At the conclusion of the hearing, the lower court

8

reserved ruling on matter. The court held another

hearing in December of 2020, where it announced its

ruling. At the outset, the trial court announced that

it was accepting Mr. Voit’s “opinion as set forth in his

opinion letter.” App. 27. And it found, based on the

testimony of Mr. Voit, that “taxable income is

equivalent to the retirement pay and is not disability

pay,” and so it concluded that there was “no

component of this that is disability pay.” App. 28-29.

Despite the exhibits Mr. Drane introduced into

evidence, the lower court found that there was “no

evidence that there was some sort of separate 40

percent component to his disability.” App. 28. Thus,

it ruled that all the monthly payments Mr. Drane

received from the Air Force were subject to equitable

distribution. App. 29. The trial court entered a

supplemental final judgment in accordance with

those rulings. App. 3.

On appeal, Mr. Drane renewed his argument

that his permanent disability payments were not

subject to equitable distribution under section

1408(a)(4)(A) of the Uniform Services Former

Spouses Act. He observed that, as a chapter 61

medical retiree, the disability components of his pay

were exempted from the definition of “disposable

retired pay” that is divisible upon divorce.

Mr. Drane also observed that the documents

received in evidence established that payments he

9

received from the Air Force were not a retirement

pension, but instead were payments for his

permanent disability. Finally, Mr. Drane argued

that the trial court erred when it ordered Mr. Drane

to name the Former Wife as the beneficiary of

survivor benefits after she expressly waived the right

to receive those benefits in a marital settlement

agreement.

The Fifth District Court of Appeal affirmed the

judgment without a written opinion. App. 1. Mr.

Drane now petitions this Court for a writ of certiorari

to review that decision.

REASONS FOR GRANTING THE WRIT

In 1981, this Court held that, under the

Supremacy Clause of the United States Constitution,

federal law precluded state courts from dividing

military retirement pay under state community

property or equitable distribution laws. McCarty v.

McCarty, 453 U.S. 210, 211, 235 (1981). In response

to this decision, Congress enacted the Uniformed

Services Former Spouses’ Protection Act, 10 U.S.C.

§ 1408. See generally Howell v. Howell, 137 S. Ct.

1400, 1403 (2017).

Under this statutory framework, Congress

permitted states to treat veterans’ “disposable retired

pay” as divisible property, i.e., community property

divisible upon divorce. Id. However, disability

benefits were exempted from this definition. See

10

Mansell v. Mansell, 490 U.S. 581, 583 (1989); 10

U.S.C. § 1408(a)(4)(A).

Under 10 U.S.C. § 1408(a)(4)(A), “disposable

retired pay” is defined as follows:

The term ‘disposable retired pay’ means

the total monthly retired pay to which a

member is entitled less amounts

which—

(i) are owed by that member to

the

United States for previous

overpayments of retired pay and for

recoupments required by law resulting

from entitlement to retired pay;

(ii) are deducted from the retired

pay of such member as a result of

forfeitures of retired pay ordered by a

court-martial or as a result of a waiver

of retired pay required by law in order

to receive compensation under title 5 or

title 38;

(iii) in the case of a member

entitled to retired pay under

chapter 61 of this title, are equal to

the amount of retired pay of the

member

under

that

chapter

computed using the percentage of

the member’s disability on the date

when the member was retired (or

the date on which the member’s

11

name was placed on the temporary

disability retired list); or

(iv) are deducted because of an

election under chapter 73 of this title to

provide an annuity to a spouse or former

spouse to whom payment of a portion of

such member’s retired pay is being

made pursuant to a court order under

this section.

10 U.S.C. § 1408(a)(4)(A).

As the Court opined in Howell v. Howell, the

“basic reasons McCarty gave for believing that

Congress intended to exempt military retirement pay

from state community property laws apply a fortiori

to disability pay.” Howell, 137 S. Ct. at 1406.

In this case, the documentary evidence showed

that Mr. Drane retired from the military because of a

permanent disability under chapter 61. Mr. Drane’s

Form DD214 conclusively establishes that his

“REASON FOR SEPARATION” was “DISABILITY,

PERMANENT.” App. 10. And because Mr. Drane

was “unfit to perform [his] duties” because “of

physical disability,” 10 U.S.C. § 1201(a), he was

placed on the Permanent Disability Retired List and

awarded “compensable disability” pay. App. 17.

In addition to his DD214 form, Mr. Drane

introduced a letter dated February 14, 2018, from

12

DFAS that stated that he was placed on the

“Permanent Disability Retired List.” App. 11. That

letter described the two different methods of

calculating his disability retirement pay, “Method A”

and “Method B.” App. 14. The calculation employed

a formula derived from a federal statute governing

the rate of military disability pay, 10 U.S.C.

§ 1401(a). Although the lower court suggested that

there was “no evidence that there was some sort of

separate 40 percent component to his disability,”

Method A expressly refers to Mr. Drane’s “disability

rating (40%)” in its calculation. App. 14-15.

So, too, does the Findings and Recommended

Disposition of the Air Force Physical Evaluation

Board, in which the board found Mr. Drane “unfit”

and recommended “permanent retirement with a

disability rating of 40%.” App. 9. Moreover, the

Special Order from the Air Force stated that Mr.

Drane was “relieved from Active Duty” and

“permanently disability retired . . . with compensable

percentage for physical disability of 040 percent.”

App. 31.

Finally, in an October 2017 letter, DFAS

stated that Mr. Drane remains “on the

retired/retainer rolls of this center and has a

compensable disability retirement rated at 40%

effective September 4, 2010.” App. 17. If the trial

court found “no evidence that there was some sort of

separate 40 percent component to his disability,”

13

then it clearly disregarded most of the documents

submitted by Mr. Drane.

In support of its decision, the trial court relied

on expert testimony, along with a notation in Mr.

Drane’s Monthly Retiree Account Statement that

showed his disability payments were taxable income.

R. at 858. According to the lower court, “taxable

income is equivalent to the retirement pay and is not

disability pay,” and so it found that there was “no

component of this that is disability pay.” App. 25.

This premise is flawed.

While disability

payments

received

from

the

Veteran’s

Administration are not taxable, see Howell, 137 S. Ct.

at 1403, under Department of Defense regulations,

disability pay from the individual branches of the

military may be subject to federal income tax

withholding. See DoD 7000.14-R, Vol. 7B, Chapter

24, § 240201 (August 2017).

The applicable

regulation, “Gross Retired Pay Not Subject to FITW”

(Federal Income Tax Withholding), provides as

follows:

The gross retired pay of a

member is not subject to FITW if the

member’s retired pay is computed only

on the basis of percentage of disability,

and the member is on the temporary or

permanent disability retired lists, if:

14

A. On or before September 24,

1975, the member was entitled to

receive retired pay computed on the

basis of percentage of disability Title 26,

United States Code (U.S.C.), sections

104(a)(4) and 104(b)(2)(A);

B. On September 24, 1975, he or

she was a member of the Armed Forces

(or Reserve Component thereof) or

under a binding written commitment to

become such a member (26 U.S.C.

§ 104(a)(4) and § 104(b)(2)(B)); or

C. The member receives disability

retired pay because of a combat-related

injury. The term “combat-related injury”

means personal injury or sickness

incurred as a direct result of armed

conflict, or while engaged in extra

hazardous service, or under conditions

simulating war, or caused by an

instrument of war. This determination

is made by the applicable Service at the

time of discharge.

DoD 7000.14-R, Vol. 7B,

paragraph 240201 (August 2017).

Chapter

24,

With regard to the first two categories, Mr.

Drane was not a member of the military on or before

15

September 24, 1975. He therefore could not possibly

have been “entitled to receive retired pay computed

on the basis of percentage of disability” at that point

in time. And, according to the findings of the Air

Force Physical Evaluation Board, Mr. Drane was

found not to have suffered a “combat-related injury.”

Thus, because Mr. Drane did not fit into any of those

three categories, his disability pay was taxable

income.

This conclusion is reinforced by the guidance

provided on the website of DFAS, which states as

follows:

TDRL/PDRL Exemption: If you

retired

under

a

disability

law

(Temporary Disability Retirement List

or Permanent Disability Retirement

List), your retired pay will be fully nontaxable if your pay is calculated based

upon your military (not VA) disability

percentage and you meet one of the

following conditions:

• You were in the military or

under a contractual obligation to join

the military on September 24, 1975, or

• Your military disability rating

is combat-related.

16

See Defense Finance and Accounting Service, Is it

Taxable?

available

at

https://www.dfas.mil/retiredmilitary/manage/taxes/isi

ttaxable/ (last visited June 15, 2022).

Once again, Mr. Drane was placed on the

Permanent Disability Retirement List, but he was

not in the military in 1975, and his military disability

was

deemed

not

to

be

“combat-related.”

Notwithstanding the expert testimony to the

contrary, Mr. Drane’s military retirement payments

were both taxable income and designed to

compensate him for his permanent disability

sustained in the line of duty.

This Court should hold that trial courts in

dissolution of marriage proceedings should not

blindly accept the opinions of expert on pure issues of

law, such as the proper categorization of military

retirement pay, particularly when the documentary

evidence from the military conclusively resolves the

question.

Mr. Drane placed his body on the line during

his military service.

He paid a heavy price:

Permanent Disability. Affirming the judgment below

would not only contravene binding federal statutes

that prohibit the division of disability pay as marital

property, it would divest Mr. Drane of money he

receives to compensate him for the physical sacrifice

17

he made for this Country. This Court should not

countenance such an outcome.

CONCLUSION

Based on the foregoing, this Court should

grant this petition and review the decision below.

Respectfully submitted on this 22nd day of

June, 2022.

Andrew B. Greenlee, Esq.*

Andrew B. Greenlee, P.A.

Attorney for Petitioner

401 E. 1st Street, Unit 261

Sanford, Florida 32772

407-808-6411

andrew@andrewgreenleelaw.com

*Counsel of Record for Petitioner