Petition for Writ of Certiorari — Ray James Foster, Petitioner v. Deborah Lynn Foster
Supreme Court briefOct 24, 2022
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No. __-____
IN THE SUPREME COURT OF THE UNITED STATES
RAY J. FOSTER,
Petitioner,
v.
DEBORAH LYNN FOSTER,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE MICHIGAN SUPREME COURT
PETITION FOR A WRIT OF CERTIORARI
CARSON J. TUCKER, JD, MSEL
Counsel of Record
LEX FORI, PLLC
DPT #3020
1250 W. 14 Mile Rd.
Troy, MI 48083-1030
(734) 887-9261
cjtucker@lexfori.org
i
QUESTIONS PRESENTED
1. May state law doctrines of judicial convenience,
like res judicata and collateral estoppel, be
raised against a preemptive federal statute, 38
U.S.C. § 5301, which voids from inception any
and all agreements made by a disabled veteran
to dispossess himself of his federally protected
veterans’ disability benefits?
2. Even if a state court may raise such state law
doctrines, does a disabled veteran have a
continuing obligation to use his restricted
disability pay to satisfy such an agreement,
where 38 U.S.C. § 5301 explicitly prohibits a
state court from using any “legal or equitable”
means whatever from forcing such a
dispossession of the veteran’s benefits, and
applies to all such benefits “due or to become
due” and “before or after receipt”, and that
same state court already ruled that 38 U.S.C. §
5301 applied to the very agreement at issue in
this case?
ii
PARTIES TO THE PROCEEDING
Petitioner, Sergeant First Class (retired), Ray
James Foster, was the Defendant-Appellee below.
Respondent, Deborah Lynn Foster was the PlaintiffAppellant.
There are no corporate parties and no other
parties to the proceedings.
CORPORATE DISCLOSURE
There are no corporate parties involved in this
proceeding.
RELATED PROCEEDINGS
This case
proceedings:
arises
from
the
following
prior
Foster v. Foster, United States Supreme Court,
Motion to Proceed as Veteran, denied on March 6,
2023, Docket No. 22M76;
Foster v. Foster, United States Supreme Court,
Application for Extension of Time to File Petition,
Granted on August 24, 2022, Docket No. 22A166;
Foster v. Foster, 509 Mich. 109, 115; 983 N.W.2d
373 (April 5, 2022) (Foster II) (Appendix (App.) 1a22a), modified on remand at Foster v. Foster, 974
N.W.2d 185 (2022) (May 27, 2022) (Foster III) (App.
23a);
iii
Foster v. Foster (On Second Remand), 2020 Mich.
App. LEXIS 4880 (July 30, 2020) (App. 24a-27a);
Foster v. Foster, 505 Mich. 151; 949 N.W.2d 102
(April 29, 2020) (Foster I) (App. 28a-78a);
Foster v. Foster (On Remand), 2018 Mich. App.
LEXIS 809 (March 22, 2018); and
Foster v. Foster, 2016 Mich. App. LEXIS 1850
(October 13, 2016).
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES ..................................... vi
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 2
STATEMENT OF THE CASE ................................... 2
A. Introduction .......................................................... 2
B. Background ......................................................... 10
REASONS FOR GRANTING THE PETITION ...... 22
CONCLUSION AND RELIEF REQUESTED ........ 33
INDEX TO APPENDIX
Foster v. Foster (Foster II), 509 Mich. 109;
N.W.2d
(April 5, 2022) .............................................1a-22a
Foster v. Foster (Opinion Amended, Rehearing
Denied) (Foster III), 509 Mich. 988; 974 N.W.2d 185
(May 27, 2022) ........................................................23a
v
Foster v. Foster (On Second Remand), 2020 Mich.
App. LEXIS 4880 (July 30, 2020) ...................24a-27a
Foster v. Foster (Foster I), 505 Mich. 151; 949 N.W.2d
102 (April 29, 2020)...................................DD
vi
TABLE OF AUTHORITIES
Constitutional Provisions
U.S. Const. Art. I, cls. 11-14 ... 2, 5, 6, 7, 20, 23, 24, 29
U.S. Const. Art. VI, cl. 2 ............................................ 8
Statutes
10 U.S.C. § 1408 ...................... 2, 10, 11, 13, 14, 15, 20
10 U.S.C. § 1413a ............................................... 10, 11
38 U.S.C. § 4301 ......................................................... 6
42 U.S.C. § 659 ........................................................... 3
Cases
Barney v. Barney, 216 Mich. 224; 184
N.W. 860 (1921) .................................................... 27
Bennett v. Arkansas, 485 U.S. 395; 108
S. Ct. 1204; 99 L. Ed. 2d 455 (1988) ...................... 4
Buchanan v. Alexander, 4 How. 20
(1845) .......................................................... 7, 24, 30
Ex Parte Rowland, 104 U.S. 604; 26 L.
Ed. 861 (1881) ....................................................... 27
vii
Fields v. Korn, 366 Mich. 108; 113
N.W.2d 860 (1962) ................................................ 29
Free v. Bland, 369 U.S. 663; 82 S. Ct.
1089 ; 8 L. Ed. 2d 180 (1962)................................ 30
Gibbons v. Ogden, 22 U.S. 1; 6 L. Ed. 23
(1824) .............................................................. 26, 30
Henderson v. Shinseki, 562 U.S. 428; 131
S. Ct. 1197; 179 L. Ed. 2d 159 (2011) .................. 31
Hillman v. Maretta, 569 U.S. 483; 133 S.
Ct. 1943; 186 L. Ed. 2d 43 (2013)................... 4, 5, 8
Johnson v. Robison, 415 U.S. 361; 94 S.
Ct. 1160; 39 L. Ed. 2d 389 (1974) ......................... 24
Koepke v. Dyer, 80 Mich. 311; 45 NW 143
(1890) .................................................................... 27
Mansell v. Mansell, 490 U.S. 581; 109 S.
Ct. 2023 (1989).............................................. 2, 4, 14
Marbury v. Madison, 5 U.S. 137; 2 L. Ed.
60 (1803)................................................................ 25
McCarty v. McCarty, 453 U.S. 210; 101
S. Ct. 2728; 69 L. Ed. 2d 589 (1981)4, 7, 8, 14, 15,
16, 17, 22, 23, 24, 30, 32
Megee v. Carmine, 290 Mich. App, 551;
802 NW2d 669 (2010) ..................................... 12, 19
viii
Porter v. Aetna Cas. & Surety Co., 370
U.S. 159; 82 S. Ct. 1231; 8 L. Ed. 2d
407 (1962).......................................................... 3, 31
Ridgway v. Ridgway, 454 U.S. 46; 102 S.
Ct. 49; 70 L. Ed. 2d 39 (1981)3, 5, 9, 22, 23, 24, 30,
31
Rostker v. Goldberg, 453 U.S. 57; 101 S.
Ct. 2646; 69 L. Ed. 2d 478 (1981) ......................... 23
Semmes v. United States, 91 U.S. 21; 23
L. Ed.193 (1875).................................................... 27
Tarble’s Case, 13 Wall. 397 (1872) .......................... 25
Torres v. Tex. Dep't of Pub. Safety, 142 S.
Ct. 2455 (2022).................................2, 5, 6, 8, 23, 25
United States v. Hall, 98 U.S. 343; 25 L.
Ed. 180 (1878) ......................................................... 3
United States v. O’Brien, 391 U.S. 367;
88 S. Ct. 1673; 20 L. Ed. 2d 672 (1968)
............................................................................... 23
United States v. Oregon, 366 U.S. 643; 81
S. Ct. 1278; 6 L. Ed. 2d 575 (1961) ................ 24, 31
Wissner v. Wissner, 338 U.S. 655; 70 S.
Ct. 398; 94 L. Ed. 424 (1950)...................5, 9, 22, 31
ix
Treatises
1 Freeman, Judgments (5th ed.) ............................. 27
Other Authorities
Black’s Law Dictionary (6th ed.) ............................. 26
Black’s Law Dictionary (7th ed.) ............................. 27
1
PETITION FOR WRIT OF CERTIORARI
Petitioner, Ray James Foster, petitions for a Writ
of Certiorari to the Michigan Supreme Court, which
denied Petitioner’s motion for a rehearing on May 27,
2022.
OPINIONS BELOW
On April 5, 2022, the Michigan Supreme Court
issued an opinion holding that Petitioner was barred
by state-law doctrines of res judicata and collateral
estoppel from challenging a settlement agreement
that the Court had already ruled was preempted by
federal law and barred by 38 U.S.C. § 5301(a)(3).
Foster v. Foster, ___N.W.3d___; 2022 Mich. LEXIS
734 (2022) (Foster II) (App. 1a-22a), modified on
remand at Foster v. Foster, 974 N.W.2d 185 (2022)
(Foster III) (App. 23a).
On Second Remand, the Michigan Court of
Appeals ruled that Petitioner was not barred from
challenging a 2008 judgment based on a settlement
agreement that was preempted by federal law and
void from inception per 38 U.S.C. § 5301. Foster v.
Foster, No. 324853, 2020 Mich. App. LEXIS 4880 (Ct.
App. July 30, 2020) (App. 24a-27a).
The Michigan Supreme Court issued its first
opinion on April 29, 2020, unanimously holding that
federal law preempted state law and that 38 U.S.C. §
5301(a)(3) prohibited the settlement agreement
entered in 2008 in which Petitioner agreed to pay
Respondent using his federal disability pay. Foster v
2
Foster, 505 Mich. 151, 171-173; 949 N.W.2d 102
(2020) (Foster I) (App. 28a-78a).
These decisions comprise the substantive rulings
from which Petitioner seeks a writ of certiorari.
JURISDICTION
This Court has jurisdiction pursuant to 28
U.S.C.S. § 1254(1).
STATEMENT OF THE CASE
A. Introduction
Congress’s authority over military benefits
originates from its enumerated “military powers”
under Article I, § 8, clauses 11 through 14 of the
Constitution. In matters governing the compensation
and benefits provided to veterans, the state has no
sovereignty or jurisdiction without an express grant
from Congress. See, respectively, Torres v. Tex. Dep't
of Pub. Safety, 142 S. Ct. 2455, 2460 (2022); Howell,
137 S. Ct. at 1404; Mansell v. Mansell, 490 U.S. 581,
588; 109 S. Ct. 2023 (1989). In fact, unless otherwise
allowed by federal law, Congress affirmatively
prohibits the state from using “any legal or equitable
process whatever” to dispossess a veteran of these
benefits. See 38 U.S.C. § 5301(a)(1), accord Howell,
supra at 1405.
Even where Congress has granted permission to
the states to consider veterans’ benefits in state court
proceedings, the grant is precise and limited. Howell,
137 S. Ct. at 1404; Mansell, 490 U.S. at 588 (Congress
3
must explicitly give the states jurisdiction over
military benefits and when it does so the grant is
precise and limited); 10 U.S.C. § 1408(a)(4) (state may
consider only disposable retired pay as divisible
property); 42 U.S.C. § 659(h)(1)(A)(ii)(V) (state may
consider only partial retirement disability as
“remuneration for employment”, i.e., income,
available for garnishment for child support and
spousal support); 42 U.S.C. § 659(h)(1)(B)(iii)
(excluding from the definition of income all other
veterans’ disability compensation).
Petitioner is a disabled veteran. He is 100 percent
permanently and totally disabled. His only means of
sustenance is his federal veterans’ disability
compensation.
These benefits are affirmatively protected from all
legal and equitable process either before or after
receipt. 38 U.S.C. § 5301(a)(1). There is no ambiguity
in this provision. It wholly voids attempts by the state
to exercise control over these restricted benefits.
United States v. Hall, 98 U.S. 343, 346-57; 25 L. Ed.
180 (1878) (canvassing legislation applicable to
military benefits); Ridgway v. Ridgway, 454 U.S. 46,
56; 102 S. Ct. 49; 70 L. Ed. 2d 39 (1981). This Court
construes this provision liberally in favor of the
veteran and regards these funds as “inviolate” and
inaccessible to all state court process. Porter v. Aetna
Cas. & Surety Co., 370 U.S. 159, 162; 82 S. Ct. 1231; 8
L. Ed. 2d 407 (1962).
This Court recently reconfirmed that federal law
preempts all state law concerning the disposition of
veterans’ disability benefits in state domestic
4
relations proceedings. Howell, 137 S. Ct. at 1404,
1406. There, the Court reiterated that Congress must
affirmatively grant the state authority over such
benefits, and when it does, that grant is precise and
limited. Id. at 1404, citing Mansell, supra. The Court
also stated that without this express statutory grant,
38 U.S.C. § 5301(a)(1) affirmatively prohibits state
courts from exercising any authority or control over
these benefits. Id. at 1405. Finally, the Court
concluded that this prohibition applied to all disability
pay because Congress’s preemption had never been
expressly lifted by federal legislation (the exclusive
means by which a state court could ever have
authority over veterans’ disability benefits). Id. at
1406, citing McCarty v. McCarty, 453 U.S. 210, 232235; 101 S. Ct. 2728; 69 L. Ed. 2d 589 (1981). “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” and therefore “McCarty, with its rule
of federal pre-emption, still applies.” Howell, 137 S.
Ct. at 1404, 1406 (emphasis added).
Veterans disability benefits are those which
Congress appropriated for disabled veterans under its
enumerated powers without any grant of authority to
the states to consider them as an available asset in
state court proceedings. The state does not have any
concurrent authority to sequester these funds and put
them to a use different from their intended purpose.
This Court’s reiteration in Howell that federal law
preempts all state law in this particular subject,
unless Congress says otherwise remains intact. There
is no implied exception to absolute federal preemption
in this area. Bennett v. Arkansas, 485 U.S. 395, 398;
5
108 S. Ct. 1204; 99 L. Ed. 2d 455 (1988). See also
Hillman v. Maretta, 569 U.S. 483, 490-91, 493-95, 496;
133 S. Ct. 1943; 186 L. Ed. 2d 43 (2013) (noting in the
area of federal benefits, Congress has preempted the
entire field even in the area of state family law and
relying on several cases addressing military benefits
legislation to sustain its rationale, e.g., Ridgway, 454
U.S. at 54-56 and Wissner v. Wissner, 338 U.S. 655;
70 S. Ct. 398; 94 L. Ed. 424 (1950)).
Finally, this Court recently reconfirmed the
absolute surrender of sovereignty by the states over
all federal authority concerning legislation passed
pursuant to Congress’ military powers. Torres v. Tex.
Dep’t of Pub. Safety, 142 S. Ct. 2455, 2460 (2022).
There, the Court reasoned that the very sovereign
authority of the state over all matters pertaining to
national defense and the armed forces was
surrendered by the state in its agreement to join the
federal system. “Upon entering the Union, the States
implicitly agreed that their sovereignty would yield to
federal policy to build and keep a national military.”
Id.
The Court went on to hold that in the realm of
federal legislation governing military affairs, “the
federal power is complete in itself, and the States
consented to the exercise of that power – in its entirety
– in the plan of the Convention” and “when the States
entered the federal system, they renounced their right
to interfere with national policy in this area.” Id.
(cleaned up). “The States ultimately ratified the
Constitution knowing that their sovereignty would
give way to national military policy.” Id. at 2464.
6
Consistent with those preemption cases like
Howell, Hillman, and Ridgway, inter alia, Congress’
authority in this realm, carries with it “inherently the
power to remedy state efforts to frustrate national
aims; objections sounding in ordinary federalism
principles were untenable.” Id. at 2465, citing Stewart
v. Kahn, 11 Wall 493, 507 (1871) (cleaned up).
While the holding in Torres provided a longawaited answer to the question of whether a state
could assert sovereign immunity in lawsuits filed by
returning servicemembers alleging employment
discrimination against state employers under the
federal Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. §
4301, et seq., it stands as a complement to this Court’s
application of federal preemption under the
Supremacy Clause concerning Congress’s exercise of
the same enumerated Article I Military Powers as
against state efforts to thwart Congress’ objectives
and goals in passing legislation thereunder. Id. at
2460, 2463-64; citing Article I, § 8, cls. 1, 11-14.
This is no surprise.
The concepts of state
sovereignty and freedom to legislate or adjudicate in
those areas not specifically reserved, i.e., enumerated,
in Article I, are two sides of the same coin. Where
Congress has exercised its Article I Military Powers,
inherent structural waiver prevents the state from
asserting sovereign immunity because Congress has
provided a mechanism for the objectives of legislation
passed pursuant to its enumerated powers to be
realized by pursuit of a statutory civil action against
the state. In Torres, we are instructed that the state
cannot assert sovereign immunity where a returning
7
servicemember seeks to vindicate his pre-deployment
employment rights and status as against his employer
(the state of Texas) under the USERRA, an act passed
pursuant to Congress’ Article I Military Powers to
benefit returning servicemembers. On the flip side,
Article VI, clause 2, the Supremacy Clause, prohibits,
i.e., preempts, the state from passing and enforcing
laws or issuing judicial decisions that equally
frustrate the same national interests underlying
Congress’s plenary powers in the premises.
Hence, in Howell, supra, and other cases
addressing the USFSPA, state courts are prohibited
from repurposing those federal benefits that Congress
has provided, again under its Article I military
powers, to incentivize, maintain, and support national
service. As was stated in McCarty, 453 U.S. at 229, n.
23, quoting Buchanan v. Alexander, 4 How. 20 (1845),
the funds of the government are appropriated for a
specific purpose and if they may be diverted or
redirected by state process or otherwise, the proper
functioning of the government would cease.
Thus, to the extent the state cannot assert
immunity if doing so interferes with a personal right
conveyed by Congress’ legislation under its Article I
Military Powers because the state surrendered its
sovereignty in this area, the state is preempted by
those same powers from passing legislation or issuing
judicial decisions (extra judicial acts) that interfere
with veterans’ federal rights and personal
entitlements. In either case, the state’s resistance
results in the same frustration of Congress’ goals in
maintaining and building a federal military force and
protecting national security. McCarty, supra.
8
Structural waiver of sovereignty occurred when
the states consented to join the union in recognition of
the enumerated and limited, but absolute powers
reserved by the federal government under Article I, §
8. Preemption occurs because the states cannot
legislate or adjudicate where Congress has acted
affirmatively to pass legislation pursuant to and
within the realm of those Article I powers. See also
U.S. Const. Art. VI, cl. 2 (1789) (the Supremacy
Clause).
Indeed, the USERRA, like the USFSPA, both of
which provide military servicemembers and veterans
with post-service benefits, is legislation intended to
promote, maintain, and incentivize service to the
nation and to ensure reintegration into civilian life;
the former preserving a servicemember’s right to
return to civilian work without penalty, and the latter
providing him or her (and family) benefits if he or she
becomes disabled in the service of the country. Torres,
supra at 2464-65 (explaining the importance of federal
control and maintenance of national military);
Howell, supra at 1406 (“the basic reasons McCarty,
supra, gave for believing that Congress intended to
exempt military retirement pay from state community
property laws apply a fortiori to disability pay
(describing the federal interests in attracting and
retaining military personnel).”) (cleaned up).
Of course, if the state has no sovereign authority
to assert immunity, a fortiori, it has no jurisdiction to
render judicial decisions that conflict with prevailing
federal legislation in the occupied field. See also,
Hillman v. Maretta, 569 U.S. 483, 490-91, 493-95, 496;
9
133 S. Ct. 1943; 186 L .Ed. 2d 43 (2013) (noting that
in the area of federal benefits Congress has preempted
the entire field even in the area of state family law and
relying on the cases addressing military benefits
legislation to sustain its rationale, e.g., Ridgway, 454
U.S. at 54-56 and Wissner v. Wissner, 338 U.S. 655; 70
S. Ct. 398; 94 L. Ed. 424 (1950)).
In the instant case, after correctly ruling in its first
opinion that federal law preempted all state law and
38 U.S.C. § 5301 prohibited consent agreements by
veterans in which they agree to dispossess themselves
of their federal disability benefits, the Court
inexplicably ruled in a second opinion that Petitioner
was barred by state doctrines of judicial convenience
such as res judicata and collateral estoppel from
challenging the effects of that federally prohibited
agreement.
The Court used a sophistic argument about basic
subject matter jurisdiction to escape the absolute
effects of federal preemption. However, where federal
preemption applies, the question of jurisdiction is
irrelevant if, as this Court has held, the state has “no
authority” in the premises to “vest” or otherwise
control the disposition of federal benefits that are
purposed by Congress to support disabled veterans
and expressly protected from all “legal or equitable”
powers of the state. See 38 U.S.C. § 5301(a)(1).
The Michigan Supreme Court’s decision to force
Petitioner to litigate his continuing rights in his
federal disability benefits must be reversed if this
Court expects the states to respect the Supremacy
Clause of the United States Constitution.
10
B. Background
Petitioner spent over 20 years in service to our
country, commencing his duty in the United States
Army in 1985. See Foster I, 505 Mich at 157. He
retired from the Army in September of 2007. Id. He
was deployed to Iraq and Afghanistan where, as a
platoon leader, he conducted daily foot patrols.
During two separate deployments, Petitioner
suffered traumatic brain injuries, a broken back, and
broken legs as a result of hostile enemy attacks. He
also lost several of his fellow troops. As a result, in
addition to his physical injuries, he has severe and
often debilitating post-traumatic stress disorder
(PTSD).
His injuries would ultimately result in his status
as a combat-disabled veteran. He is 100 percent
disabled and 100 percent unemployable.
As of October 2007, before the 2008 divorce
judgment, he was designated as “service-connected”
disabled and, because his injuries were incurred
during combat, he was entitled to Combat Related
Special Compensation (CRSC) under 10 U.S.C. §
1413a. Foster I, 505 Mich at 157 and 159, n 4. (noting
that Petitioner suffered from his disabilities and was
designated disabled as of October 2007).
In 2008, Petitioner and Respondent divorced.
Because Petitioner was then receiving retired pay
11
from the military, Respondent began receiving a
portion of Petitioner’s retirement pay as allowed by
federal law. 10 U.S.C. § 1408(a)(4) and (c) (USFSPA).
Even though Petitioner received a retroactive
disability designation that incepted in 2007 (prior to
the 2008 divorce judgment), disability benefits were
not paid to him until 2010. At that point, the
automatic share of Petitioner’s disposable (and
therefore legally divisible) military retirement pay
that had been being automatically paid to Respondent
under USFSPA ceased. Foster I, supra at 159.
Petitioner was no longer receiving such disposable
pay from the federal government. Instead, he began
receiving indivisible, and federally restricted,
disability benefits under Title 10 and Title 38. See 10
U.S.C. § 1413a(g) (CRSC benefits are not disposable
retirement benefits subject to division under 10 U.S.C.
§ 1408 (USFSPA)).
The Defense Finance and Accounting Agency
(DFAS), the federal agency that previously made
direct payments to Respondent of her allotted share of
Petitioner’s disposable retired pay, could no longer
legally make payments to her because there was no
longer any available disposable retired pay.
When DFAS stopped paying Respondent her
share, she filed a contempt motion against Petitioner
in the trial court seeking to have the court force him
to abide by the illegal consent agreement he had
signed in 2008 in which he agreed to use his disability
pay to make up any difference in Respondent’s loss of
her share of Petitioner’s military retirement pay.
12
In 2014, Petitioner was arrested and thrown in jail
in Iron County, Michigan on a warrant for a failure to
pay these illegal property division payments. The
trial court issued an “appearance bond,” which was
unlawfully transformed into a “collateral bond” in
which the trial court ordered Petitioner’s elderly and
ailing mother to have a lien placed on her home under
that bond to force Petitioner to use his federal
disability pay (the only income he has) to make
payments towards the arrearage that had been
calculated by the trial court.
Petitioner appealed the contempt ruling on
December 2, 2014, challenging the trial court’s
disposition of the case with respect to the bond
arrangement and the forced payment of his federal
disability pay.
Petitioner continued to use his
disability pay to pay $1000 per month to Respondent
pending the disposition of his appeal.
Petitioner cited 38 U.S.C. § 5301 and raised the
issue concerning the voidness of the 2008 judgment
under the statute. Throughout these pleadings,
Petitioner also challenged the judgment as explicitly
preempted by federal law and therefore void. Id.
On October 13, 2016, the Michigan Court of
Appeals, following the case of Megee v. Carmine, 290
Mich. App, 551; 802 NW2d 669 (2010), rev’d by Foster
I, 505 Mich. 151; 949 N.W.2d 102 (2020), ruled that
the trial court was not preempted by federal law and
was not therefore prohibited from issuing the
contempt order to force Petitioner to use his disability
pay to make up the difference of his former spouse’s
13
lost share. Foster v. Foster, 2016 Mich. App. LEXIS
1850, Unpublished Opinion of the Michigan Court of
Appeals, Docket No. 324853 (Decided October 13,
2016).
With respect to the applicability of 38 U.S.C. §
5301, the Court of Appeals reasoned that it was not
applicable because it contained the statement “except
to the extent specifically authorized by law.” Id.
Because the Michigan Court of Appeals had ruled in
Megee, supra, that state courts could circumvent
preemptive federal law and force veterans to part with
disability pay that might otherwise be protected by 10
U.S.C. § 1408 and 38 U.S.C. § 5301, the Court
reasoned that this was “the law” referred to in § 5301
which allowed state courts to ignore its otherwise
sweeping prohibitions. Id.
Petitioner appealed to the Michigan Supreme
Court in November of 2016. On December 2, 2016,
this Court granted a petition for certiorari in the case
of Howell v. Howell, 137 S. Ct. 1400; 197 L. Ed. 2d 781
(2017), to address the propriety of state court orders
forcing veterans to dispossess themselves of their
disability benefits by way of such means as were
employed by the state court in this case. Undersigned
counsel brought this to the attention of the Michigan
Supreme Court by way of a supplemental authority
statement filed on December 12, 2016.
Undersigned counsel then filed an amicus curiae
brief pro bono in this Court on behalf of Veterans of
Foreign Wars (VFW) and Operation Firing for Effect
(OFFE), non-profit veterans’ support and service
organizations supporting the veteran petitioner in
14
Howell. On May 15, 2017, this Court unanimously
followed the four main arguments made by
undersigned counsel in support of full preemption of
federal law over the states in these cases. Howell v.
Howell, ___US___; 137 S. Ct. 1400; 197 L .Ed. 2d 781,
788 (2017).
First, the Court unanimously held that state
courts were (and always have been) absolutely
preempted by federal law from issuing orders that
force veterans to part with their disability benefits to
satisfy state court divorce awards dividing marital
property. As urged by amici, the Court ruled that
preexisting federal law and the Court’s jurisprudence,
particularly its 1989 decision in Mansell v Mansell,
490 U.S. 581, 588-592; 109 S. Ct. 2023; 104 L. Ed. 2d
675 (1989), demonstrated the absolute preemption of
the state in terms of exercising any authority or
control over these sequestered funds. Howell, 137 S.
Ct. at 1303-1406. The Court ruled “federal law, as
construed in McCarty, ‘completely preempted the
application of state community property law to
military retirement pay’” and that only “Congress
could ‘overcome’ this preemption ‘by enacting an
affirmative grant of authority giving the States the
power to treat the military retirement pay as
community property.’” Id. at 1404. The Court
recognized that Congress had done so in the USFSPA,
10 U.S.C. § 1408, but only to a “limited extent”; the
USFSPA “provided a ‘precise and limited’ grant of the
power to divide federal military retirement pay.” Id.
This was important clarification on the part of the
Court because not only did it reaffirm that the states
never had authority in this realm, but it solidified the
15
principle that in the premises of veterans’
compensation and benefits, without explicit federal
legislation lifting the total preemption in this area,
the states cannot (and never could) “adjust” the
equities occasioned by the operation of federal law and
force veterans to dispossess themselves of their
personal entitlements. See Howell, 137 S. Ct. at 1403.
The states were always prohibited from not only
dividing federal benefits, but also from issuing or
approving of any orders or judgments, respectively,
wherein the veteran was forced to make up the
difference of the former spouse’s lost share of the
veteran’s retirement pay.
Put simply, before the USFSPA the states had no
authority over federal veterans’ benefits in divorce
proceedings (whether they were retirement benefits or
disability benefits). The USFSPA only gave the state
a limited grant of authority to allow the division of up
to 50 percent of the disabled veterans disposable
retirement pay. The federal government remained
responsible to distribute the former spouse’s share of
these disposable benefits on the condition that the
state court order was compliant with the limitations
in the USFSPA. See 10 U.S.C. § 1408(a)(2), (a)(4)(A)
and (c). After the USFSPA, the states only had
authority to approve, via a federally approved state
court order, a division of up to 50 percent of a former
servicemember’s disposable retirement pay. Id. The
USFSPA never gave the states authority over any
other federal veterans’ benefits, and it certainly did
not authorize the states to find ways to offset the
federal distribution of veterans’ benefits to the proper
beneficiaries (in most cases, the veteran).
16
As urged by amici, this clarification was necessary
because post-McCarty (post-1981), the states
concluded that the previously “absolute” field
preemption in this area had been abolished in toto by
Congress’ passage of the USFSPA, leaving the states
free to come up with any number of concocted theories
of equitable relief to “restore” a former spouse’s
“share” of what had previously been “divisible” in
divorce proceedings, when he or she began receiving
less or nothing of his or her prior share because the
veteran had become entitled to restricted and nondisposable, and therefore non-divisible disability pay.
As undersigned instructed the Court, it’s “preUSFSPA jurisprudence, principally McCarty v.
McCarty, 453 U.S. 210 (1981), continues to prohibit
any consideration of such pay by state courts in the
division of marital property. In other words, despite
broad misstatements to the contrary, state courts
never had pre-existing authority, equitable or
otherwise, to divide veterans’ benefits as marital
property. Such ostensible authority asserted by state
courts before the McCarty decision was simply ultra
vires.” As amici counseled the Court in Howell, “preMcCarty preemption in this area was never abrogated
by the USFSPA.” Hence, the sweeping significance of
the Court’s statement in Howell: “McCarty ‘completely
preempted the application of state community
property law to military retirement pay” and that
“McCarty with its rule of federal preemption, still
applies.” Howell, 137 S. Ct. at 1403-04 (emphasis
added).
Significantly, the Court also followed the
suggestion of amici that not only is there absolute,
17
field preemption in this area of federal law, but state
courts are affirmatively prohibited by positive federal
law, namely, 38 U.S.C. § 5301, from dividing (via “any
equitable or legal” means) veterans’ disability
benefits. Amici argued that 38 U.S.C. § 5301 imposes
a jurisdictional limitation against present and future
dedication of non-disposable funds. Citing § 5301, the
Court in Howell unanimously ruled that “[s]tate
courts cannot ‘vest’ that which (under governing
federal law) they lack the authority to give.” Howell,
137 S. Ct. at 1405. In this regard, the Court was
directly addressing federal law’s absolute prohibition
on state courts from effectuating (whether through
equity or approval of a consent decree) a future
involuntary divestment of disability benefits that a
veteran may receive post-divorce. See Howell, 137 S.
Ct. at 1405-1406. Any state court orders, in whatever
form, purporting to force an alternate distribution of
a veteran’s disability benefits without federal
authorization are ultra vires, “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.
Finally, and critically, the Court said that the
absolute and total preemption of federal law in this
area applied not only to military pensions and
retirement pay, but also to all federally designated
disability benefits. Howell, 137 S Ct at 1406. “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.” Id. (describing the federal interests
in attracting and retaining military personnel). And
those reasons apply with equal force to a veteran’s
18
postdivorce waiver to receive disability benefits to
which he or she has become entitled.” Id.
Howell effectively nullified what was at that time
a fair majority of wayward state court rulings across
the country, which had previously held, consistent
with Megee, supra, that state courts could exercise
power and control over these benefits notwithstanding
federal preemption and, in this case, the express
prohibitions of positive federal law, particularly, 38
U.S.C. § 5301. See 137 S. Ct. at 1404-05 (noting a split
of authority in the states, with only a minority then
holding that federal law preempts state law).
On November 15, 2017, the Michigan Supreme
Court vacated the 2016 opinion of the Court of
Appeals and remanded the case to the court of appeals
instructing it to apply Howell. Foster v. Foster, 501
Mich. 917, 903 N.W.2d 189 (2017).
Despite the sweeping and unanimous ruling from
this Court in Howell, the Michigan Court of Appeals
stubbornly held fast to its original position. Applying
Megee, supra, the Court ruled that state courts could
circumvent federal law and force Petitioner to use his
disability pay because no federal statute prohibited
the state from using Combat Related Special
Compensation (CRSC) under Title 10 – Petitioner’s
only form of income – to satisfy the 2008 consent
judgment. Foster v. Foster (On Remand), No. 324853,
2018 Mich. App. LEXIS 809 (Ct. App. Mar. 22, 2018).
Again, with the looming threat to his mother’s
home, which was being held under siege by the trial
court’s unlawful transformation of the appearance
19
bond (which was extinguished by operation of law
upon Petitioner’s appearance before the court in June
of 2014 after his arrest), to a “contempt bond,”
Petitioner continued paying the $1000 per month and
filed a second application to appeal to the Michigan
Supreme Court.
On November 7, 2018, the Michigan Supreme
Court granted the application. On April 20, 2020, the
Court unanimously reversed the decision of the Court
of Appeals. It overruled Megee. Foster I, 505 Mich. at
156, 174. Importantly, the Court applied 38 U.S.C. §
5301(a)(3) and ruled that the 2008 consent judgment
constituted an agreement that was prohibited by 38
U.S.C. § 5301(a)(3). Id. at 172-173.
The Court remanded for the Court of Appeals to
consider whether state common law doctrines of res
judicata or collateral estoppel could be raised to
prevent Petitioner’s 2014 challenge to the terms of the
2008 consent judgment on the basis of federal
preemption. Id. at 156.
In an opinion that was approximately one-and-ahalf pages, the Michigan Court of Appeals, following
decades of Michigan state case law on the subject,
ruled that where principles of federal preemption
apply, “[s]tate courts are deprived of subject-matter
jurisdiction.” Foster v. Foster, No. 324853, 2020 Mich.
App. LEXIS 4880 (Ct. App. July 30, 2020) (App. 24a27a). The Court held that since the consent judgment
was preempted by federal law, as the Michigan
Supreme Court acknowledged, Petitioner did not
engage in an improper collateral attack and the trial
court lacked subject matter jurisdiction to enforce the
20
consent judgment with respect to the offset provision
due to the principle of federal preemption.
Respondent filed an application for leave to appeal
that decision to the Michigan Supreme Court. 1 On
December 23, 2020, the Michigan Supreme Court
granted Respondent’s application.
On April 5, 2022, the Michigan Supreme Court
reversed the court of appeals July 30, 2020 decision.
The Court held that the state common law doctrine of
judicial convenience, res judicata, applies to
judgments that divide military retirement and
disability benefits, even if those judgments
contravene pre-existing and preemptive federal law.
The Court also held that there is no exclusive federal
forum for dividing military disability benefits in
divorce actions, as if this was somehow dispositive of
Congress’ supremacy over the states in the exercise of
its military powers. The Court further held that
federal preemption under 10 U.S.C. § 1408 (the
USFSPA) and 38 U.S.C. § 5301 does not deprive
Michigan state courts of subject matter jurisdiction
Petitioner filed a motion for restitution in the trial
court, which awarded him the full, net amount of
restitution. The trial court denied Petitioner’s request
for interest, costs, and attorneys fees. Respondent
appealed that decision separately, but later
abandoned it. Foster v. Foster, No. 355654, 2022 Mich.
App. LEXIS 3791 (Ct. App. June 29, 2022). Petitioner
filed a cross appeal seeking review of the trial court’s
decision denying him interest, costs, any attorney
fees. That cross appeal remains pending. Id.
1
21
over a divorce action involving the division of marital
property and the Court of Appeals erroneously
concluded that the type of federal preemption at issue
in this case deprived state courts of subject matter
jurisdiction, and, according to the court, as there was
no other justification for a collateral attack on the
consent judgment in this case. Foster v Foster,
___NW3d___; 2022 Mich. LEXIS 734 at *1 (Apr. 5,
2022) ), reh’g denied, opinion amended at Foster v
Foster, ___NW3d___; 2022 Mich. LEXIS 997, at *1
(May 27, 2022) (Foster III).
Despite the incongruity in its holding in Foster I,
that federal law has always preempted state law in
this particular subject, and that 38 U.S.C. § 5301(a)(3)
rendered
the
2008
consent
judgment
an
impermissible assignment, see Foster I, 505 Mich. at
165-171, n. 51, 172-173, the Court held that in this
case state courts did not lack subject matter
jurisdiction even if there was federal preemption, and
therefore, Petitioner could be barred by the doctrine of
res judicata from challenging the judgment.
The Court completely ignored Petitioner’s
statutory argument that any agreements found to
have violated 38 U.S.C. § 5301 were void, despite
having raised this argument from the beginning of
this appeal in 2014, through final briefing in the
Court, and at oral argument.
Petitioner filed a motion for rehearing pointing out
several errors in the Michigan Supreme Court’s
opinion. The court denied rehearing but amended its
opinion to acknowledge that Petitioner’s entitlement
22
to disability benefits incepted in 2007, prior to the
2008 consent judgment.
REASONS FOR GRANTING THE PETITION
1. Section 5301(a)(3)(A) and (C) is a federal statute
which voids from inception all agreements in which a
disabled veteran agrees for consideration to pay his
federal benefits to another party. No state court can
circumvent this provision using state common-law
doctrines of judicial convenience such as res judicata
or collateral estoppel. Allowing state courts to use
such theories to ignore preemptive federal statutes is
tantamount to ignoring the Supremacy Clause.
Ridgway, supra, provides the most succinct yet
comprehensive summary of Congress’ authority on
the scope and breadth of legislation concerning
military affairs vis-à-vis state family law. Citing,
inter alia, McCarty v McCarty, 453 U.S. 210; 101 S.
Ct. 2728; 69 L. Ed. 2d 589 (1981) and Wissner, supra,
the Court stated:
Notwithstanding the limited application of
federal law in the field of domestic relations
generally this Court, even in that area, has not
hesitated to protect, under the Supremacy
Clause, rights and expectancies established by
federal law against the operation of state law,
or to prevent the frustration and erosion of the
congressional policy embodied in the federal
rights. While 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
23
be overridden, the relative importance to the
State of its own law is not material when
there is a conflict with a valid federal law,
for the Framers of our Constitution
provided that the federal law must prevail.
And, specifically, a state divorce decree,
like other law governing the economic
aspects of domestic relations, must give
way to clearly conflicting federal
enactments. That principle is but the
necessary consequence of the Supremacy
Clause of our National Constitution.
Ridgway, 454 U.S. at 54-55 (cleaned up)
(emphasis added).
These cases confirm the broad reach of the Supremacy
Clause in the narrow areas of the Constitution
wherein Congress retained absolute power to act.
U.S. Const., Art. VI, cl. 2 (1789).
Thus, the enumerated power of Congress in Article
I to raise and maintain the armed forces “is complete
in itself”. Torres, supra. This “power” includes
providing the benefits to veterans after their service
to the nation renders them disabled. McCarty v.
McCarty, 453 U.S. 210, 232-33; 101 S. Ct. 2728; 69 L.
Ed. 2d 589 (1981) (noting that state courts are not free
to reduce the benefits that Congress has determined
are necessary for the servicemember). These funds
are appropriated under Congress’ military powers,
and in no area of the law have the courts given
Congress more deference. Id. at 230. See also Rostker
v. Goldberg, 453 U.S. 57, 63; 101 S. Ct. 2646; 69 L. Ed.
2d 478 (1981); United States v. O’Brien, 391 U.S. 367,
24
377; 88 S. Ct. 1673; 20 L. Ed. 2d 672 (1968) (also cited
in Torres, supra).
Thwarting Congress’ objectives to provide benefits
to returning servicemembers and veterans, whether
by blocking discrimination suits by them against their
state employer or finding ways through legislation or
judicial fiat to dispossess them of their personal
benefits, results in the same frustration of the
national cause. Again, as succinctly noted by this
Court in McCarty, the funds of the government are
appropriated for a specific, enumerated purpose and if
they may be diverted or redirected by state process or
otherwise, the functioning of the government would
cease. McCarty, 453 U.S. at 229, n. 23, quoting
Buchanan v. Alexander, 4 How. 20 (1845).
It is also beyond debate that Congress’ military
powers are the direct source of all federal military
compensation and benefits provisions for our nation’s
forgotten warriors. See, e.g., United States v. Oregon,
366 U.S. 643, 648-49; 81 S. Ct. 1278; 6 L. Ed. 2d 575
(1961) (stating “Congress undoubtedly has the power
– under its constitutional powers to raise armies and
navies and to conduct wars – to pay pensions…for
veterans.”); Johnson v. Robison, 415 U.S. 361, 376,
384-85; 94 S. Ct. 1160; 39 L. Ed. 2d 389 (1974);
McCarty, 453 U.S. at 232-33, Ridgway v. Ridgway,
454 U.S. 46, 54-56; 102 S. Ct. 49; 70 L. Ed. 2d 39 (1981)
(applying Congress’ enumerated powers to pass laws
allowing servicemembers to designate beneficiaries
for receipt of federal life insurance benefits, the Court
ruled that “a state divorce decree, like other law
governing the economic aspects of domestic relations,
must give way to clearly conflicting federal
25
enactments”), and Howell, 137 S. Ct. at 1405, 1406
(holding that under 38 U.S.C. § 5301 (the provision at
issue in this case) “[s]tates cannot ‘vest’ that which
(under governing federal law) they lack the authority
to give.”).
Therefore, all statutory provisions protecting
veterans’ disability pay are directly supported by
Congress’ enumerated Military Powers. Of course,
Congress’ “enumerated powers” are accorded federal
supremacy under Article VI, Clause 2 of the
Constitution (the Supremacy Clause). By ratifying
the Constitution, “the States implicitly agreed that
their sovereignty would yield to federal policy to build
and keep the Armed Forces.
Torres, supra.
Consistent with this structural understanding,
Congress has long legislated regarding the
maintenance of the military forces at the expense of
state sovereignty. Id. Thus, the Supreme Court has
recognized that “ordinary background principles of
state sovereignty are displaced in this uniquely
federal area.” Id., citing Tarble’s Case, 13 Wall. 397,
398 (1872).
If a state court could ignore the directives of a
federal statute which prohibits them from entering
“any legal or equitable” orders dispossessing veterans
of these benefits, and which, by its plain language,
declares that any agreement or security for an
agreement on the part of the beneficiary to dispossess
himself of those benefits is “void from inception,” then
the state could “subvert the very foundation of all
written constitutions” and “declare that an act, which
according to the principles and the theory of our
government, is entirely void; is yet, in practice,
26
completely obligatory.” Marbury v. Madison, 5 U.S.
137, 178; 2 L. Ed. 60 (1803) (emphasis added). “The
nullity of any act, inconsistent with the constitution,
is produced by the declaration that the constitution is
the supreme law.” Gibbons v. Ogden, 22 U.S. 1, 210211; 6 L. Ed. 23 (1824) (emphasis added). There, the
Court expounded upon Congress’ enumerated powers:
“This power, like all others vested in Congress, is
complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than
are prescribed in the constitution” and further, “the
sovereignty of Congress, though limited to specified
objects, is plenary as to those objects….” “Full power
to regulate a particular subject, implies the whole
power, and leaves no residuum.” Id. at 196-197
(emphasis added).
Unfortunately, in its second
opinion, the Michigan Supreme Court ignored these
unwavering principles of constitutional hierarchy and
shirked its duties to follow them.
In any event, the consent judgment in this case,
which is the same as a contract, as the Michigan
Supreme Court recognized in its first opinion in this
case, Foster I, 505 Mich. at 172-173, simply is, was,
and always will be “void ab initio”. A contract that is
“void from its inception” is treated as if it never
existed. Void contracts do not in effect exist; indeed,
the very term ‘void contract’ is an oxymoron because a
contract that is void is not a contract at all. Black’s
Law Dictionary (6th ed.) (defining ‘void contract’ as:
‘[a] contract that does not exist at law’) (emphasis
added).
It is of no moment that Petitioner raised the issue
in 2010, or in 2014, or even now. An agreement that
27
is “void from inception” is an absolute nullity. “A void
judgment is ‘[a] judgment that has no legal force or
effect, the invalidity of which may be asserted by any
party whose rights are affected at any time and any
place, whether directly or collaterally. From its
inception, a void judgment continues to be absolutely
null. It is incapable of being confirmed, ratified, or
enforced in any manner or to any degree.” Black’s Law
Dictionary (7th ed.), p. 848 (emphasis added).
“It is well settled by the authorities that a
judgment may be void for want of authority in a court
to render the particular judgment rendered though
the court may have had jurisdiction over the subject
matter and the parties.” 1 Freeman, Judgments (5th
ed.) § 354, p. 733 (emphasis added). If a judgment is,
even in part, beyond the power of the court to render,
it is void as to the excess. Ex Parte Rowland, 104 U.S.
604, 612; 26 L. Ed. 861 (1881) (stating “if the
command was in whole or in part beyond the power of
the court, the writ, or so much as was in excess of
jurisdiction, was void, and the court had no right in
law to punish for any contempt of its unauthorized
requirements.”) “It is settled law that a judgment may
be good in part, and bad in part, – good to the extent
it is authorized by law, and bad for the residue.”
Semmes v. United States, 91 U.S. 21, 27; 23 L. Ed.193
(1875). See also Barney v. Barney, 216 Mich. 224, 228;
184 N.W. 860 (1921) and Koepke v. Dyer, 80 Mich. 311,
312; 45 NW 143 (1890) (the latter cited in Freeman,
supra, § 324, pp. 648-649 (discussing the severability
of and the effects of judgments or orders void for lack
of the court’s authority to enter them from otherwise
valid judgments)). See also, Freeman, supra, § 226, p.
28
443 (“[T]he court may strike from the judgment any
portion of it which is wholly void.”) (emphasis added).
All this to say that there is no necessity for a state
court to declare the obvious, and there is no heed to be
paid to one that ignores it, even a state’s highest court
that tergiversates in its rulings from one term to the
next. Here, the consent judgment is void. Any court,
at any time, can, in fact, must, sua sponte, undo the
effects of a judgment or ruling that is declared by
federal statute (indeed supreme and absolute federal
law) to be void from inception.
This Court ruled in 2017 that pursuant to 38
U.S.C. § 5301(a)(1) a state court has no authority
under this provision to vest any rights to the restricted
disability benefits in anyone other than the federally
designated beneficiary. Howell, 137 S. Ct. at 1405.
Following that decision, the Michigan Supreme Court
ruled that this statute applied to the consent
judgment in this case. Foster I, 505 Mich. at 172-173.
Notwithstanding the Court’s decision in Foster II, this
Court has the authority to recognize that because that
2008 agreement was a contract that sought to
dispossess Petitioner of his vested federal disability
benefits contrary to the federal statute voiding any
such agreements, no subsequent court can ever claim
that Petitioner has a legal obligation to follow what is,
in all essence, an absolute nullity. This is especially
true because at the time the 2008 judgment was
entered into, Petitioner was already disabled and his
entitlement to his restricted benefits had already
incepted.
The
Michigan
Supreme
Court
acknowledged this in its first opinion, Foster I, 505
Mich. at 159, n. 4, and was forced to amend its second
29
opinion to affirm this essential fact. Foster III, 2022
Mich. LEXIS 997, at *1.
The 2008 consent agreement was, at the time it
was executed, void to the extent that it obligated
Petitioner to part with his federal veterans’ disability
pay. It was, as the statute provides, “void from
inception.” See 38 U.S.C. § 5301(a)(3)(A) and (C). As
previously noted, where a “contract was, as the
statute says, ‘void’; that word ‘void’ is the mandate of
the statute. It means the ultimate of legal nullity.
The English is plain. So is the verity of the lower
court’s judgment.” Fields v. Korn, 366 Mich. 108, 110;
113 N.W.2d 860 (1962) (allowing recovery in
restitution where a contract for the sale of real
property was void under the statute of frauds).
2. Moreover, assuming arguendo that the state
common law theories interposed to avoid the sweeping
preemptive effect of the § 5301, the state can never
sanction a continuing violation of that provision
where it prohibits state courts from using any legal or
equitable order to force the veteran to use his or her
disability benefits to satisfy any judgment or order.
In Howell, this Court said of § 5301 that “state
courts cannot ‘vest’ that which they have no authority
to give. …” The plain language of the provision
contains explicit language providing that a state court
can use no legal or equitable power whatever to
dispossess the disabled veteran of his or her personal
entitlement to disability benefits. See 38 U.S.C. §
5301(a)(1). This language, and the Court’s clear
pronouncement in Howell teaches that the state is
under a continuing obligation to respect the mandates
30
of federal law embodied in preemptive federal statutes
passed pursuant to Congress’ enumerated military
powers.
Ridgway, supra, addressed a provision identical
to § 5301, and ruled that it prohibited the state from
using any legal or equitable process to frustrate the
veteran’s designated beneficiary from receiving
military benefits (life insurance). Citing that part of
Gibbons v. Ogden, 22. U.S. 1, 210-211 (1824), in which
this Court declared the absolute nullity of any state
action contrary to an enactment passed pursuant to
Congress’s delegated powers and Free v. Bland, 369
U.S. 663, 666; 82 S. Ct. 1089 ; 8 L. Ed. 2d 180 (1962),
the Court said: “[the] relative importance to the State
of its own law is not material when there is a conflict
with a valid federal law, for the Framers of our
Constitution provided that the federal law must
prevail.” Ridgway, supra at 55 (emphasis added). The
Court continued: “[A] state divorce decree, like other
law governing the economic aspects of domestic
relations, must give way to clearly conflicting federal
enactments.” Id., citing McCarty, supra.
“That
principle is but the necessary consequence of the
Supremacy Clause of the National Constitution.” Id.
In McCarty the Court quite plainly said that the
“funds of the government are specifically appropriated
to certain national objects, and if such appropriations
may be diverted and defeated by state process or
otherwise, the functions of the government may be
suspended.” McCarty, 453 U.S. at 229, n. 23 (emphasis
added), quoting Buchanan v. Alexander, 45 U.S. 20
(1846).
31
As with all federal statutes addressing veterans,
38 U.S.C. § 5301 is liberally construed in favor of
protecting the beneficiary and the funds received as
compensation for service-connected disabilities.
Porter v. Aetna Casualty & Surety Co., 370 U.S. at 162
(interpreting 38 U.S.C. § 3101 (now § 5301) and
stating the provision was to be “liberally construed to
protect funds granted by Congress for the
maintenance and support of the beneficiaries thereof”
and that the funds “should remain inviolate.”). See
also Henderson v. Shinseki, 562 U.S. 428, 440-441; 131
S. Ct. 1197; 179 L. Ed. 2d 159 (2011) (“provisions for
benefits to members of the Armed Services are to be
construed in the beneficiaries’ favor”); Oregon, 366
U.S. at 647 (“[t]he solicitude of Congress for veterans
is of long standing.”).
Moreover, 38 U.S.C. § 5301, by its plain
language, applies to more than just “attachments” or
“garnishments”. It specifically applies to “any legal or
equitable process whatever, either before or after
receipt.” See Wissner, 338 U.S. at 659 (state court
judgment ordering a “diversion of future payments as
soon as they are paid by the Government” was a
seizure in “flat conflict” with the identical provision
protecting military life insurance benefits paid to the
veteran’s designated beneficiary). This Court in
Ridgway, in countering this oft-repeated contention,
stated that it “fails to give effect to the unqualified
sweep of the federal statute.” 454 U.S. at 60-61. The
statute “prohibits, in the broadest of terms, any
‘attachment, levy, or seizure by or under any legal or
equitable process whatever,’ whether accomplished
‘either before or after receipt by the beneficiary.’” Id.
at 61.
32
Relating the statute back to the Supremacy
Clause, the Court concluded that the statute:
[E]nsures that the benefits actually reach the
beneficiary. It pre-empts all state law that stands in
its way. It protects the benefits from legal process
“[notwithstanding] any other law. . .of any State’. . . .
It prevents the vagaries of state law from disrupting
the national scheme, and guarantees a national
uniformity that enhances the effectiveness of
congressional policy…. Id. Accord McCarty, 453 U.S.
at 229, n. 23.
Indeed, the statute itself states that agreements
covered by subsection (a)(3)(A) are likewise “void from
their inception.” A clearer pronouncement of a court’s
inability to sanction or otherwise approve of such an
agreement could not be imagined.
“Void from
inception” means the violating provision never
existed.
This analysis would suggest that any ruling by a
state court which purports to allow the state to
continue to force a disabled veteran to use his
veterans’ disability pay to satisfy a monetary payment
obligation contained in a property settlement
agreement would be null and void, and of no force an
effect.
In its first opinion in this case, the Michigan
Supreme Court explicitly ruled that the agreement
Petitioner had entered into was prohibited by 38
U.S.C. § 5301(a)(3)(A). The court did not reverse that
ruling in its second opinion. In fact, the court
33
completely ignored the language of the statute which
voids from inception the very agreement which the
court had already ruled was a prohibited assignment.
[cites.]
Regardless of the court’s second opinion,
Petitioner cannot be forced to violate the federal
statute going forward by using his only source of
sustenance, his veterans’ disability pay, to pay
Respondent. And, indeed, the state can employ no
“legal or equitable” powers to force Petitioner to do
that which preemptive federal law prohibits.
CONCLUSION AND RELIEF REQUESTED
Petitioner respectfully requests the Court to grant
his petition or summarily reverse the Supreme Court
of Michigan as being contrary to preemptive federal
law.
Respectfully submitted,
CARSON J. TUCKER, JD, MSEL
Counsel of Record
LEX FORI, PLLC
DPT #3020
1250 W. 14 Mile Rd.
Troy, MI 48083-1030
(734) 887-9261
cjtucker@lexfori.org
Dated: May 4, 2023
APPENDIX
INDEX TO APPENDIX
Foster v. Foster (Foster II), 509 Mich. 109;
N.W.2d
(April 5, 2022) .............................................1a-22a
Foster v. Foster (Opinion Amended, Rehearing
Denied) (Foster III), 509 Mich. 988; 974 N.W.2d 185
(May 27, 2022) ........................................................23a
Foster v. Foster (On Second Remand), 2020 Mich.
App. LEXIS 4880 (July 30, 2020) ...................24a-27a
Foster v. Foster (Foster I), 505 Mich. 151; 949 N.W.2d
102 (April 29, 2020).........................................28a-78a
1a
FILED April 5, 2022
STATE OF MICHIGAN
SUPREME COURT
DEBORAH LYNN FOSTER,
Plaintiff/Counterdefendant- Appellant,
v
No. 161892
RAY JAMES FOSTER,
Defendant/Counterplaintiff- Appellee.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
At issue presently in this case is whether
defendant can collaterally attack a provision in the
parties’ consent judgment of divorce related to the
division of defendant’s military retirement benefits on
the ground that it conflicts with federal law. We
previously held, among other things, that “[t]he trial
court was preempted under federal law from
including in the consent judgment the . . . provision
on which plaintiff relies.” Foster v Foster, 505 Mich
151, 175; 949 NW2d 102 (2020) (Foster I). But we
“express[ed] no opinion on the effect our holdings
have on defendant’s ability to challenge, on collateral
review, the consent judgment” and, instead,
“remand[ed] the case to the Court of Appeals so that
the panel [could] address the effect of our holdings on
defendants’ ability to challenge the terms of the
consent judgment.” Id. at 175, 175-176. On remand,
the Court of Appeals held that “[s]tate courts are
2a
deprived of subject-matter jurisdiction when
principles of federal preemption are applicable.”
Foster v Foster (On Second Remand), unpublished per
curiam opinion of the Court of Appeals, issued July
30, 2020 (Docket No. 324853) (Foster II), p 2. Because
“an error in the exercise of a court’s subject-matter
jurisdiction can be collaterally attacked,” the Court of
Appeals concluded that “defendant did not engage in
an improper collateral attack on the consent
judgment
” Id. We disagree. Instead, we hold that
the type of federal preemption at issue in this case
does not deprive state courts of subject-matter
jurisdiction. As a result, we conclude that defendant’s
challenge to enforcement of the provision at issue is
an improper collateral attack on a final judgment.
I. FACTS AND PROCEDURAL HISTORY
The facts and procedural history of this case are
adequately set forth in our previous opinion, Foster I,
505 Mich at 157-161, and need not be restated in their
entirety here. For purposes of this opinion, it is
sufficient to highlight the following points.
The parties’ consent judgment of divorce was
entered in December 2008. At the time of the divorce,
defendant was receiving both military retirement pay
and military disability benefits for injuries he
sustained during the Iraq War. Pursuant to their
property settlement, plaintiff was awarded 50% of
defendant’s retirement pay, also known as
“disposable military retired pay.” She was not
awarded any of defendant’s military disability
benefits. To protect plaintiff in the event that
defendant became entitled to (and accepted) more
3a
disability benefits than he currently received,
consequently diminishing the retirement benefits
that were divided and awarded to plaintiff, the parties
agreed to include a provision in the consent judgment
of divorce that has become known as the “offset
provision.” In the offset provision, if defendant elected
to receive an increase in disability pay, he agreed to
pay plaintiff an amount equal to what she would have
received had defendant not elected to do so.1
In February 2010, defendant became eligible for,
and elected to receive, increased disability benefits,
which
included
Combat-Related
Special
2
Compensation (CRSC).
1 The offset provision states as follows:
If Defendant should ever become disabled, either
partially or in whole, then Plaintiff’s share of Defendant’s
entitlement shall be calculated as if Defendant had not
become disabled. Defendant shall be responsible to pay,
directly to Plaintiff, the sum to which she would be
entitled if Defendant had not become disabled.
Defendant shall pay this sum to Plaintiff out of his own
pocket and earnings, whether he is paying that sum from
his disability pay or otherwise, even if the military
refuses to pay those sums directly to Plaintiff. If the
military merely reduces, but does not entirely stop, direct
payment to Plaintiff, Defendant shall be responsible to
pay directly to Plaintiff any decrease in pay that Plaintiff
should have been awarded had Defendant not become
disabled, together with any Cost of Living increases that
Plaintiff would have received had Defendant not become
disabled. Failure of Defendant to pay these amounts is
punishable through all contempt powers of the Court.
Under federal law, a retired veteran’s retirement pay can be
divided with a former spouse in divorce proceedings, but
disability pay cannot. See 10 USC 1408(c) (permitting division
2
4a
As a result, the amount plaintiff received each
month decreased from approximately $800 to
approximately $200. Defendant failed to comply with
the offset provision by paying plaintiff the difference.
In May 2010, plaintiff filed a petition seeking to
hold defendant in contempt for failing to comply with
the consent judgment. A few months later, defendant
argued, for the first time, that under federal law,
CRSC benefits are not subject to division in a divorce
action. In an opinion and order dated October 8, 2010,
the trial court denied plaintiff’s request to hold
defendant in contempt but ordered defendant to
comply with the provisions of the judgment. The trial
court acknowledged that it did not have the power to
divide military disability pay but noted that the
parties here had agreed upon the division and neither
of “disposable retired pay”); 10 USC 1408(a)(4)(A) (defining
“disposable retired pay”). See generally Sullivan & Raphun,
Dividing Military Retired Pay: Disability Payments and the
Puzzle of the Parachute Pension, 24 J Am Acad Matrimonial L
at 152. The VA waiver reduces the amount of retired pay the
veteran receives, which reduces the sum of money being divided
with a former spouse. Id. CRSC is an exception to the
antidouble-dipping rule. CRSC payments “are not retired pay.”
10 USC 1413a(g). CRSC is an additional payment to a veteran,
on top of disability pay, in the same amount as the reduction to
the veteran’s retired pay as a result of the VA waiver. However,
CRSC payments, like disability payments, are also not divisible
with a former spouse in divorce proceedings. See Foster I, 505
Mich at 171; Defense Finance and Accounting Service,
Comparing CRSC and CRDP.
<https://www.dfas.mil/retiredmilitary/disability/comparison.ht
ml> (accessed March 9, 2022) [https:perma.cc/77E7-CAS9]. See
generally Dividing Military Retired Pay: Disability Payments
and the Puzzle of the Parachute Pension, 24 J Am Acad
Matrimonial L at 163.
5a
party had moved to set aside the judgment on the
ground of mutual mistake. The trial court warned
that if defendant failed to comply with the order that
he would be held in contempt.
On March 25, 2011, plaintiff filed a petition to hold
defendant in contempt, alleging that he had not made
any payments as ordered. Although he did not appear
at the hearing, defendant filed a response, arguing
that he was not in contempt and, for the first time,
arguing that the issue was within the jurisdiction of
the federal courts. On May 10, 2011, the trial court
entered an order holding defendant in contempt,
granting a money judgment to plaintiff, and issuing a
bench warrant for defendant’s arrest because he did
not appear at the hearing.
At a show-cause hearing on June 27, 2014,
defendant, relying on 10 USC 1408 and 38 USC 5301,
argued that he could not assign his disability benefits
and that the trial court had erred by not complying
with federal law. The trial court observed, “[W]e have
litigated this issue and re-litigated this issue and it
has not been properly appealed.” The trial court
ordered plaintiff to pay the arrearage.
On September 22, 2014, the trial court entered an
order holding defendant in contempt and ordering
him to pay the arrearage and attorney fees.
Defendant appealed that order in the Court of
Appeals.
The Court of Appeals initially affirmed the trial
court order. Foster v Foster, unpublished per curiam
opinion of the Court of Appeals, issued October 13,
6a
2016 (Docket No. 324853). Defendant sought leave to
appeal in this Court. We vacated the judgment and
remanded the case to the Court of Appeals for
reconsideration in light of Howell v Howell, 581
US ; 137 S Ct 1400; 197 L Ed 2d 781 (2017). Foster
v Foster, 501 Mich 917 (2017). The Court of Appeals
again affirmed. Foster v Foster (On Remand),
unpublished per curiam opinion of the Court of
Appeals, issued March 22, 2018 (Docket No. 324853).
Defendant again sought leave to appeal in this Court.
After granting the application, the Court held as
follows:
We conclude that federal law preempts state
law such that the consent judgment is
unenforceable to the extent that it required
defendant to reimburse plaintiff for the
reduction in the amount payable to her due to
his election to receive CRSC. Although the
Court of Appeals indicated its agreement with
plaintiff’s assertion that defendant was
engaging in an improper collateral attack
against the consent judgment, the panel did not
discuss the effect of federal preemption on the
trial court’s subject-matter jurisdiction or
defendant’s ability to challenge the terms of the
consent judgment outside of direct appeal.
Because these questions remain important, we
vacate that portion of the Court of Appeals’
opinion agreeing with plaintiff that defendant
was engaging in an improper collateral attack
and reverse the balance of the Court of Appeals’
opinion in this case. Moreover, we overrule the
Court of Appeals’ opinion in Megee v Carmine,
7a
[290 Mich App 551, 574-575; 802 NW2d 669
(2010),] which held that a veteran is obligated
to compensate a former spouse in an amount
equal to the share of retirement pay that the
nonveteran spouse would have received,
pursuant to a divorce judgment, had the
veteran not elected to waive military
retirement pay in favor of CRSC. This case is
remanded to the Court of Appeals so that the
panel may address the effect of our holdings on
defendant’s ability to challenge the terms of the
consent judgment. [Foster I, 505 Mich at 156
(citation omitted).]
On the second remand, the Court of Appeals
reversed in Foster II. After a lengthy block quote of
this Court’s opinion in Foster I, the Court of Appeals
dedicated a single paragraph to the issue of subjectmatter jurisdiction. It cited Ryan v Brunswick Corp,
454 Mich 20, 27; 557 NW2d 541 (1997), abrogated in
part on other grounds in Sprietsma v Mercury Marine,
537 US 51, 63-64 (2002); People v Kanaan, 278 Mich
App 594, 602; 751 NW2d 57 (2008); and Konynenbelt
v Flagstar Bank, FSB, 242 Mich App 21, 25; 617
NW2d 706 (2000), for the proposition that state courts
are deprived of subject-matter jurisdiction when
principles of federal preemption are applicable. The
Court concluded that “defendant did not engage in an
improper collateral attack on the consent judgment
and the trial court lacked subject-matter jurisdiction
to enforce the consent judgment with respect to the
offset provision due to the principle of federal
preemption.” Foster II, unpub op at 2.
8a
Plaintiff sought leave to appeal in this Court, and
we granted plaintiff’s application to address
whether the defendant has the ability to
challenge the relevant term of the consent
judgment in this case given that federal law
precludes a provision requiring that the
plaintiff
receive
reimbursement
or
indemnification payments to compensate for
reductions in the defendant’s military
retirement pay resulting from his election to
receive any disability benefits. See Howell v
Howell, 581 US
; 137 S Ct 400; 197 L Ed 2d
781 (2017). [Foster v Foster, 506 Mich 1030
(2020).]
II. STANDARD OF REVIEW
The application of the doctrine of res judicata is a
question of law that we review de novo. Washington v
Sinai Hosp of Greater Detroit, 478 Mich 412, 417; 733
NW2d 755 (2007). Questions of subject-matter
jurisdiction are also questions of law that we review
de novo. Winkler v Marist Fathers of Detroit, Inc, 500
Mich 327, 333; 901 NW2d 566 (2017).
III. ANALYSIS
This Court previously held that the offset
provision in the parties’ consent judgment of divorce
impermissibly divides defendant’s military disability
pay in violation of federal law. See Foster I, 505 Mich
at 175 (“The trial court was preempted under federal
law from including in the consent judgment the offset
provision on which plaintiff relies.”). We must now
9a
answer the question we left open in Foster I: whether
defendant may challenge this provision of the consent
judgment on collateral review.
A. THE DOCTRINE OF RES JUDICATA APPLIES
TO JUDGMENTS THAT DIVIDE MILITARY
RETIREMENT AND DISABILITY BENEFITS
We have previously explained the doctrine of res
judicata as follows:
The doctrine of res judicata is employed to
prevent multiple suits litigating the same cause
of action. The doctrine bars a second,
subsequent action when (1) the prior action was
decided on the merits, (2) both actions involve
the same parties or their privies, and (3) the
matter in the second case was, or could have
been, resolved in the first. This Court has taken
a broad approach to the doctrine of res judicata,
holding that it bars not only claims already
litigated, but also every claim arising from the
same transaction that the parties, exercising
reasonable diligence, could have raised but did
not. [Adair v Michigan, 470 Mich 105, 121; 680
NW2d 386 (2004) (citation omitted).]
Importantly for purposes of this case, the doctrine of
res judicata applies even if the prior judgment rested
on an invalid legal principle. See Colestock v
Colestock, 135 Mich App 393, 397-398; 354 NW2d 354
(1984) (“A judgment of divorce dividing marital
property is res judicata and not subject to collateral
attack, even if the judgment may have been wrong or
rested on a subsequently overruled legal principle.”);
10D
Detwiler v Glavin, 377 Mich 1, 14; 138 NW2d 336
(1965) (holding that the doctrine of res judicata
applies to “a valid but erroneous judgment”). See also
Federated Dep’t Stores, Inc v Moitie, 452 US 394, 398;
101 S Ct 2424; 69 LEd2d 103 (1981) (“Nor are the res
judicata consequences of a final, unappealed
judgment on the merits altered by the fact that the
judgment may have been wrong or rested on a legal
principle subsequently overruled in another case.”).
This Court has long recognized as “a settled rule
of law that a divorce decree which has become final
may not have its property settlement provisions
modified except for fraud or for other such causes as
any other final decree may be modified.” Pierson v
Pierson, 351 Mich 637, 645; 88 NW2d 500 (1958).3
The Court of Appeals has explained why finality
in this context is extremely important:
Public policy demands finality of litigation in
the area of family law to preserve surviving
family structure. To permit divorce judgments
which have long since become final to be
reopened so as to award military pensions to
the husband as his separate property would
flaunt the rule of res judicata and upset settled
property distributions upon which parties have
planned their lives. The consequences would be
devastating, not only from the standpoint of the
litigants, but also in terms of the work load of
3 See also Keeney v Keeney, 374 Mich 660, 663; 133 NW2d 199
(1965); Greene v Greene, 357 Mich 196, 201; 98 NW2d 519 (1959);
and Roddy v Roddy, 342 Mich 66, 69; 68 NW2d 762 (1955).
11D
the courts. [McGinn v McGinn, 126 Mich App
689, 693; 337 NW2d 632 (1983) (citation
omitted).][4]
The United States Supreme Court has recognized
that the application of the doctrine of res judicata in
this context is an issue of state law. See Mansell v
Mansell, 490 US 581, 586 n 5; 109 S Ct 2023; 104 L
Ed 2d 675 (1989) (“Whether the doctrine of res
judicata . . . should have barred the reopening of preMcCarty [v McCarty, 453 US 210; 101 S Ct 2728; 69 L
Ed 2d 589 (1981),] settlements is a matter of state law
over which we have no jurisdiction.”). See also 2
Turner, Equitable Distribution of Property (4th ed), §
6:6, p 49 (noting that the Court had dismissed in
Sheldon v Sheldon, 456 US 941 (1982), for want of a
substantial federal question, a petition raising the
issue of whether “‘federal preemption of state
community property laws regarding division of
military retirement pay render state judgments void
for lack of subject matter jurisdiction where such
judgments were entered after Congress had
preempted area of law’ ”).5
4 See also Staple v Staple, 241 Mich App 562, 579; 616 NW2d 219
(2000) (“The Family Law Section of the State Bar, representing
more than three thousand family law specialists, elaborates on
the public policy value of finality in divorce cases: ‘There is
probably not a single family law practitioner in the State of
Michigan who would not advocate the importance of finality in
their divorce cases. Divorce cases, by their nature, involve
parties coming together and resolving contentious matters The
parties, after the divorce, wish to go on in their separate lives
and not…be subject to future petitions for relief’”).
5 As this Court has recognized, this type of dismissal indicates
“that all the issues properly presented to the Supreme Court
12D
Applying these principles, the provision of the
parties’ consent judgment of divorce that divides
defendant’s military retirement and disability
benefits is generally enforceable under the doctrine of
res judicata even though it is preempted by federal
law. See generally Kirby v Mich High Sch Athletic
Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998) (noting
that “[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”).6
B. THE PARTIES’ DIVORCE JUDGMENT IS NOT
VOID AND THEREFORE IS NOT SUBJECT TO
COLLATERAL ATTACK
Even though it is otherwise enforceable, defendant
argues that because the offset provision is preempted
by federal law, it is automatically void and, therefore,
have been considered on the merits and held to be without
substance; for this reason, the adjudication is binding precedent
under the doctrine of stare decisis with respect to those issues
when raised in subsequent matters.” Gora v Ferndale, 456 Mich
704, 713; 576 NW2d 141 (1998) (quotation marks and citations
omitted).
6 It is worth noting that our holding places us in good company
because the majority of state courts have held that “military
benefits of all sorts can be divided under the law of res judicata.”
Turner, § 6:9, p 72. See Id. at 72-73 n 4 (listing cases). A minority
of state courts hold to the contrary. See Id. at 74 n 9 (listing cases
and text accompanying). However, as the author observes,
“[n]one of these decisions cite either Sheldon or footnote 5 in
Mansell,” and “[n]one have showed any awareness of the
postremand history of Mansell[.]” Id. at 74.
13D
subject to collateral attack at any time.7 As an initial
matter, defendant asserts that a judgment containing
a provision that exceeds the limits of the trial court’s
authority is void. Id. However, as we explained in
Buczkowski v Buczkowski, 351 Mich 216, 221-222; 88
NW2d 416 (1958), there is an important distinction
between the court’s jurisdiction of the parties and the
subject matter of the suit, on the one hand, and the
court’s erroneous exercise of that jurisdiction, on the
other:
The failure to distinguish between “the
erroneous exercise of jurisdiction” and “the
want of jurisdiction” is a fruitful source of
confusion and errancy of decision. In the first
case the errors of the trial court can only be
corrected by appeal or writ of error. In the last
case its judgments are void, and may be
assailed by indirect as well as direct attack. The
7 This Court has long recognized a distinction between a judgment
that is void and one that is voidable. See Clark v Holmes, 1 Doug
390, 393 (1844) (“It is a well settled doctrine that, when
proceeding to exercise the powers conferred, [inferior courts of
special and limited jurisdiction] must have jurisdiction of the
person, by means of the proper process or appearance of the
party, as well as of the subject matter of the suit; and when they
thus have jurisdiction of the person and the cause, if in the
further proceedings they commit error, the proceedings are not
void, but only voidable, and may be reversed for error by the
proper court of review where a power of review is given; . . . but
on the contrary, when they have not such jurisdiction of the cause
and of the person, their proceedings are absolutely void, and
cannot afford any justification or protection, and they became
trespassers by any act done to enforce them.”). See also 3
Longhofer, Michigan Court Rules Practice (7th ed), § 2612.13, pp
624-625 (discussing the distinction between void and voidable
judgments).
14D
judgment of a court of general jurisdiction, with
the parties before it, and with power to grant or
refuse relief in the case presented, though (the
judgment is) contrary to law as expressed in the
decisions of the supreme court or the terms of a
statute, is at most only an erroneous exercise of
jurisdiction, and as such is impregnable to an
assault in a collateral proceeding.
The loose practice has grown up, even in
some opinions, of saying that a court had no
“jurisdiction” to take certain legal action when
what is actually meant is that the court had no
legal “right” to take the action, that it was in
error. If the loose meaning were correct it would
reduce the doctrine of res judicata to a
shambles and provoke endless litigation, since
any decree or judgment of an erring tribunal
would be a mere nullity. It must constantly be
borne in mind, as we have pointed out in
Jackson City Bank & Trust Co. v Fredrick, 271
Mich 538, 544[; 260 NW 908 (1935)], that:
There is a wide difference between a
want of jurisdiction, in which case the
court has no power to adjudicate at all,
and a mistake in the exercise of
undoubted jurisdiction, in which case the
action of the trial court is not void
although it may be subject to direct
attack on appeal. This fundamental
distinction runs through all the cases.[8]
8 Buczkowski, 351 Mich at 221-222 (cleaned up). See also People
v Washington, 508 Mich
;
NW2d
(2021), slip op at 10-
15D
In In re Ferranti, 504 Mich 1, 22; 934 NW2d 610
(2019), again quoting from Jackson City Bank, we
explained that only judgments entered without
personal jurisdiction or subject-matter jurisdiction
are void and subject to collateral attack:
“[W]hen there is a want of jurisdiction over the
parties, or the subject-matter, no matter what
formalities may have been taken by the trial
court, the action thereof is void because of its
want of jurisdiction, and consequently its
proceedings may be questioned collaterally as
well as directly. They are of no more value than
as though they did not exist. But in cases where
the court has undoubted jurisdiction of the
subject matter, and of the parties, the action of
the trial court, though involving an erroneous
exercise of jurisdiction, which might be taken
advantage of by direct appeal, or by direct
attack, yet the judgment or decree is not void
though it might be set aside for the irregular or
erroneous exercise of jurisdiction if appealed
from. It may not be called in question
collaterally.” [Ferranti, 504 Mich at 22, quoting
Jackson City Bank, 271 Mich at 544-545.]
11 (“The prosecutor is correct that there is a widespread and
unfortunate practice among both state and federal courts of
using the term ‘jurisdiction’ imprecisely, to refer both to the
subject-matter and the personal jurisdiction of the court, and to
the court’s general authority to take action.”); Id. at
n 5; slip
op at 12 n 5 (noting that “the terms ‘power’ and ‘authority’ are
generally used to refer to errors in the exercise of jurisdiction and
other nonjurisdictional errors”).
16D
As these authorities make clear, defendant’s
assertion that the judgment is void and subject to
collateral attack simply because it conflicts with
federal law is “manifestly in error.” Buczkowski, 351
Mich at 221.
Next, defendant argues that the judgment is void
and subject to collateral attack because Congress
deprived state courts of subject-matter jurisdiction
over the division of military disability benefits.9 To
prevail on this argument, defendant must
demonstrate that Congress has given exclusive
jurisdiction over the division of military disability
benefits in a divorce action to a federal forum. See,
e.g., 21 CJS, Courts, § 272, p 288 (“The preemption
9 To the extent defendant continues to assert that all types of
federal preemption deprive state courts of subject-matter
jurisdiction—the position he advanced during his prior trip to
this Court—we disagree with this assertion. Instead, we adopt
the analysis on this point in the concurring opinion in Foster I
and clarify our caselaw in this area. See Foster I, 505 Mich at
181-188 (VIVIANO, J., concurring). In particular, although in
Henry v Laborers’ Local 1191, 495 Mich 260, 287 n 82; 848 NW2d
130 (2014), we asserted that “preemption is a question of subjectmatter jurisdiction,” it is clear that “our assertion was made in
the context of Garmon preemption [see San Diego Bldg Trades
Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775
(1959),] and was indisputably correct in that context given that
Congress has established an exclusive federal forum, the
National Labor Relations Board, to adjudicate certain claims
” Foster I, 505 Mich
under the National Labor Relations Act
at 184. We also disavow our statement in Ryan v Brunswick
Corp, 454 Mich 20, 27; 557 NW2d 541 (1997), that “[w]here the
principles of federal preemption apply, state courts are deprived
of subject matter jurisdiction.” Finally, to the extent it reached a
different conclusion, we overrule Packowski v United Food &
Commercial Workers Local 951, 289 Mich App 132; 796 NW2d 94
(2010).
17D
doctrine does not deprive state courts of subject
matter jurisdiction over claims involving federal
preemption unless Congress has given exclusive
jurisdiction to a federal forum.”).10 However, as
discussed later in this opinion, defendant has failed to
persuade us that the Veteran’s Administration or any
other federal forum has exclusive jurisdiction over the
division of military disability benefits in a divorce
action.
10 See also Marshall v Consumers Power Co, 65 Mich App 237,
245; 237 NW2d 266 (1976) (setting out a two-part test for
determining whether Congress has impliedly preempted state
law, under which a court must (1) “determine whether Congress
has preempted states from legislating or regulating the subject
matter of the instant case,” and (2) “if it has, [determine]
whether it has also vested exclusive jurisdiction of that subject
matter in the Federal court system”). The second part of the test
is not satisfied in this case because Congress has not “vested
exclusive jurisdiction of th[is] subject matter,” i.e., division of
military disability benefits in a divorce action, in a federal forum.
See Veterans for Common Sense v Shinseki, 678 F3d 1013, 10251026 (CA 9, 2012) (en banc) (“[W]e conclude that [38 USC 511]
precludes jurisdiction over a claim if it requires the district court
to review VA decisions that relate to benefits decisions, including
any decision made by the Secretary in the course of making
If that test is met, then the district
benefits determinations
court must cede any claim to jurisdiction over the case, and
parties must seek a forum in the Veterans Court and the Federal
Circuit.”) (quotation marks and citations omitted; emphasis
added). And Kalb v Feuerstein, 308 US 433, 438-439; 60 S Ct 343;
84 L Ed 370 (1940), cited by defendant, only serves to confirm
this point. At issue in Kalb was whether a state court had
jurisdiction in a foreclosure matter over property that fell under
the jurisdiction of the bankruptcy court. But Congress has
established an exclusive federal forum for bankruptcy matters.
Id. at 439.
18D
The United States Supreme Court rejected a similar
argument in Rose v Rose, 481 US 619; 107 S Ct 2029;
95 L Ed 2d 599 (1987), after first observing:
We have 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. 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. at
625 (cleaned up).]
Relying on 38 USC 3107(a)(2), the veteran spouse
argued that the Veteran’s Affairs administrator had
exclusive authority over all issues involving the
disposition of military disability benefits. Rejecting
that argument, the Court explained:
This jurisdictional framework finds little
support in the statute and implementing
regulations. Neither [38 USC 3107(a)(2) nor 38
CFR 3.450 through 3.461 (1986)] mentions the
limited role appellant assigns the state court’s
child support order or the restrictions appellant
seeks to impose on that court’s ability to enforce
such an order. Nor is it clear that Congress
envisioned
the
Administrator
making
19D
independent child support determinations in
conflict with existing state-court orders. . . .
. . . Given the traditional authority of state
courts over the issue of child support, their
unparalleled familiarity with local economic
factors affecting divorced parents and children,
and their experience in applying state statutes
that do contain detailed support guidelines and
established procedures for allocating resources
following divorce, we conclude that Congress
would surely have been more explicit had it
intended the Administrator’s apportionment
power to displace a state court’s power to
enforce an order of child support. Thus, we do
not agree that the implicit pre-emption
appellant finds in § 3107(a)(2) is “positively
required by direct enactment,” or that the state
court’s award of child support from appellant’s
disability benefits does “major damage” to any
“clear and substantial” federal interest created
by this statute. [Rose, 481 US at 627-628,
quoting Hisquierdo v Hisquierdo, 439 US 572,
581; 99 S Ct 802; 59 L Ed 2d 1 (1979).][11]
11 The Court further described the purpose of the federal statutes
as follows:
The interest in uniform administration of veterans’
benefits focuses, instead, on the technical interpretations
of the statutes granting entitlements, particularly on the
definitions and degrees of recognized disabilities and the
application of the graduated benefit schedules. These are
the issues Congress deemed especially well-suited for
administrative determination insulated from judicial
review. Thus, even assuming that [38 USC] 211(a) covers
a contempt proceeding brought in state court against a
20D
Although the Court in Rose found that the state
child support statute was not preempted by federal
law, its analysis is still helpful in determining
whether Congress has established an exclusive forum
for dividing military disability benefits in a divorce
action. Defendant here contends that the Secretary
of Veterans Affairs has exclusive jurisdiction over all
issues concerning veteran’s benefits, including the
division of those benefits in a state court divorce
action. Defendant correctly notes that appellate
jurisdiction from a decision by the Secretary is limited
to the federal courts.12 38 USC 511(a) establishes 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” and generally precludes review of the
Secretary’s decision “as to any such question” “by any
other official or by any court,” with a limited number
of exceptions. And 38 USC 5307 provides for a process
of requesting apportionment of a veteran’s benefits.
But just as the Court in Rose was “not reviewing the
Administrator’s decision finding the veteran eligible
disabled veteran to enforce an order of child support, that
court is not reviewing the Administrator’s decision
finding the veteran eligible for specific disability benefits.
[Rose, 481 US at 629 (cleaned up; emphasis added).]
12 Specifically, 38 USC 7104(a) provides for an appeal from the
Secretary’s decision under 38 USC 511(a) to the Board of
Veterans’ Appeals. In turn, the United States Court of Appeals
for Veterans Claims has exclusive jurisdiction to review decisions
of the Board of Veterans’ Appeals, 38 USC 7252(a), and the
United States Court of Appeals for the Federal Circuit has
jurisdiction to review a decision of the Court of Appeals for
Veterans Claims, 38 USC 7292.
21D
for specific disability benefits,” Rose, 481 US at 629,
the trial court in this case was not reviewing a
decision of the Secretary of Veterans Affairs under 38
USC 511(a). Therefore, contrary to defendant’s
assertion, there is no exclusive federal forum for
dividing military disability benefits in divorce actions.
We agree with plaintiff that 38 USC 511—just like 38
USC 211(a), which was at issue in Rose—does not
refer to, restrict, or displace state court jurisdiction.
In sum, we hold that federal preemption under 10
USC 1408 and 38 USC 5301 does not deprive our state
courts of subject-matter jurisdiction over a divorce
action involving the division of marital property.
Therefore, while the offset provision in the parties’
consent judgment of divorce was “a mistake in the
exercise of undoubted jurisdiction,” Jackson City
Bank, 271 Mich at 544, that judgment is not subject
to collateral attack.13
13 We believe the law in this area is correctly described in Turner,
§ 6:6, p 50:
Initial division of military benefits must be made under
federal substantive law, which requires that the benefits
be awarded only to the service member and not to the
former spouse. If the service member requests that the
state court apply federal substantive law, and the state
court instead applies state substantive law, McCarty
requires that the state court decision be reversed. But if
the service member never raises the issue—if he or she
allows the state court to enter an erroneous order
dividing military benefits under state substantive law, as
happened in most of the pre-McCarty cases—Sheldon
recognizes that McCarty does not support reversal of the
state court judgment. Federal substantive law controls
the issue, but under either federal or state procedural
rules, a decision which is based upon the wrong
22D
IV. CONCLUSION
Because the Court of Appeals erroneously concluded
that the type of federal preemption at issue in this
case deprives state courts of subject-matter
jurisdiction, and because there is no other
justification for a collateral attack on the consent
judgment in this case, we reverse the judgment of the
Court of Appeals and remand this case to the
Dickinson Circuit Court for further proceedings not
inconsistent with this opinion.
David F. Viviano
Bridget M. McCormack
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
substantive law cannot be collaterally attacked after it
becomes final.
23D
STATE OF MICHIGAN
SUPREME COURT
ORDER
May 27, 2022
DEBORAH LYNN FOSTER,
Plaintiff/Counterdefendant- Appellant,
v
SC: 161892
COA: 324853
DickinsonCC:07-015064-DM
RAY JAMES FOSTER,
Defendant/Counterplaintiff- Appellee.
On order of the Court, the motion for rehearing of the
Court’s April 5, 2022 opinion is considered and, in lieu
of granting rehearing, we AMEND the opinion of the
Court by replacing the sentence in section I stating,
“In February 2010, defendant became eligible for, and
elected to receive, increased disability benefits, which
included Combat- Related Special Compensation
(CRSC)” with the following: “In February 2010,
defendant began receiving increased disability
benefits, which included Combat-Related Special
Compensation (CRSC).” In all other respects, the
motion for rehearing is DENIED. MCR 7.311(F).
24D
STATE OF MICHIGAN
COURT OF APPEALS
DEBORAH LYNN FOSTER,
Plaintiff/Counterdefendant-Appellee,
v
UNPUBLISHED July 30, 2020
No. 324853
Dickinson Circuit Court
LC No. 07-015064-DM
RAY JAMES FOSTER,
Defendant/Counterplaintiff-Appellant.
ON SECOND REMAND
Before: MARKEY, P.J., and BORRELLO
RONAYNE KRAUSE, JJ. PER CURIAM.
and
Our Supreme Court has again remanded this case
to us to “address the effect of [its] holdings on
defendant’s ability to challenge the terms of the
consent judgment.” Foster v Foster,
Mich
,
;
NW2d
(2020); slip op at 3. We reverse the trial
court’s order requiring defendant, under the offset
provision in the consent judgment, to make payments
to plaintiff to cover the reduction in his retirement
pay.
The following introductory paragraphs of the
Michigan Supreme Court’s opinion provide a concise
setup for our analysis:
This case involves a dispute between former
spouses who entered into a consent judgment of
25D
divorce (the consent judgment), which provided
that defendant would pay plaintiff 50% of his
military retirement benefits. Beyond that, the
parties agreed that if defendant waived a
portion of his military retirement benefits in
order to receive military disability benefits, he
would continue to pay plaintiff an amount
equal to what she would have received had
defendant not elected to receive such
supplemental disability benefits. Defendant
elected to increase his disability benefits when
he applied for Combat-Related Special
Compensation (CRSC), a form of military
disability benefits, pursuant to 10 USC 1413a.
He started receiving CRSC shortly after the
divorce. As a result, defendant’s retirement
benefits decreased, which in turn decreased the
share of the retirement benefits payable to
plaintiff. When defendant failed to reimburse
plaintiff for the reduced payment she received
in connection with defendant’s lowered military
retirement benefits, plaintiff sought relief in
the Dickinson Circuit Court, asking that the
consent judgment be enforced. The trial court
and the Court of Appeals enforced the plain
terms of the consent judgment and required
defendant to reimburse plaintiff for the
reduction in her interest in defendant’s
retirement benefits. Defendant argues that
federal law preempts state law in regard to the
division of veteran benefits and, thus, the
consent judgment is unenforceable.
We conclude that federal law preempts state
law such that the consent judgment is
26D
unenforceable to the extent that it required
defendant to reimburse plaintiff for the
reduction in the amount payable to her due to
his election to receive CRSC. Although the
Court of Appeals indicated its agreement with
plaintiff’s assertion that defendant was
engaging in an improper collateral attack
against the consent judgment, the panel did not
discuss the effect of federal preemption on the
trial court’s subject-matter jurisdiction or
defendant’s ability to challenge the terms of the
consent judgment outside of direct appeal.
Because these questions remain important, we
vacate that portion of the Court of Appeals’
opinion agreeing with plaintiff that defendant
was engaging in an improper collateral attack
and reverse the balance of the Court of Appeals’
opinion in this case This case is remanded to
the Court of Appeals so that the panel may
address the effect of our holdings on
defendant’s ability to challenge the terms of the
consent judgment. [Foster,
Mich at
; slip
op at 1-3,]
State courts are deprived of subject-matter
jurisdiction when principles of federal preemption are
applicable. Ryan v Brunswick Corp, 454 Mich 20, 27;
557 NW2d 541 (1997), abrogated in part on other
grounds in Sprietsma v Mercury Marine, 537 US 51,
63-64; 123 S Ct 518; 154 L Ed 2d 466 (2002); People v
Kanaan, 278 Mich App 594, 602; 751 NW2d 57 (2008);
Konynenbelt v Flagstar Bank, FSB, 242 Mich App 21,
25; 617 NW2d 706 (2000). And an error in the exercise
of a court’s subject-matter jurisdiction can be
collaterally attacked. Bowie v Arder, 441 Mich 23, 56;
27D
490 NW2d 568 (1992); Workers’ Compensation Agency
Dir v MacDonald’s Indus Prod, Inc (On
Reconsideration), 305 Mich App 460, 477; 853 NW2d
467 (2014) (a collateral attack is allowed if the court
never acquired jurisdiction over the subject matter).
Moreover, “[s]ubject-matter jurisdiction cannot be
granted by implied or express stipulation of the
litigants.” Harris v Vernier, 242 Mich App 306, 316;
617 NW2d 306 (2000); see also Teddy 23, LLC v Mich
Film Office, 313 Mich App 557, 564; 884 NW2d 799
(2015) (“Nor can subject-matter jurisdiction be
conferred by the consent of the parties”). Accordingly,
in the instant case, defendant did not engage in an
improper collateral attack on the consent judgment
and the trial court lacked subject- matter jurisdiction
to enforce the consent judgment with respect to the
offset provision due to the principle of federal
preemption.
We reverse and remand for further proceedings or
actions, if any, as the trial court may deem necessary.
We do not retain jurisdiction. We decline to award
taxable costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
28D
FILED April 29, 2020
STATE OF MICHIGAN
SUPREME COURT
DEBORAH LYNN FOSTER,
Plaintiff/Counterdefendant- Appellee,
v
No. 157705
RAY JAMES FOSTER,
Defendant/Counterplaintiff- Appellant.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
This case involves a dispute between former
spouses who entered into a consent judgment of
divorce (the consent judgment), which provided that
defendant would pay plaintiff 50% of his military
retirement benefits. Beyond that, the parties agreed
that if defendant waived a portion of his military
retirement benefits in order to receive military
disability benefits, he would continue to pay plaintiff
an amount equal to what she would have received had
defendant not elected to receive such supplemental
disability benefits.
Defendant elected to increase his disability
benefits when he applied for Combat-Related Special
Compensation (CRSC), a form of military disability
benefits, pursuant to 10 USC 1413a. He started
receiving CRSC shortly after the divorce. As a result,
defendant’s retirement benefits decreased, which in
29D
turn decreased the share of the retirement benefits
payable to plaintiff. When defendant failed to
reimburse plaintiff for the reduced payment she
received in connection with defendant’s lowered
military retirement benefits, plaintiff sought relief in
the Dickinson Circuit Court, asking that the consent
judgment be enforced. The trial court and the Court
of Appeals enforced the plain terms of the consent
judgment and required defendant to reimburse
plaintiff for the reduction in her interest in
defendant’s retirement benefits. Defendant argues
that federal law preempts state law in regard to the
division of veteran benefits and, thus, the consent
judgment is unenforceable.
We conclude that federal law preempts state law
such that the consent judgment is unenforceable to
the extent that it required defendant to reimburse
plaintiff for the reduction in the amount payable to
her due to his election to receive CRSC. Although the
Court of Appeals indicated its agreement with
plaintiff’s assertion that defendant was engaging in
an improper collateral attack against the consent
judgment, the panel did not discuss the effect of
federal preemption on the trial court’s subject-matter
jurisdiction or defendant’s ability to challenge the
terms of the consent judgment outside of direct
appeal. Because these questions remain important,
we vacate that portion of the Court of Appeals’ opinion
agreeing with plaintiff that defendant was engaging
in an improper collateral attack and reverse the
balance of the Court of Appeals’ opinion in this case.
Moreover, we overrule the Court of Appeals’ opinion
in Megee v Carmine, which held that a veteran is
obligated to compensate a former spouse in an
30D
amount equal to the share of retirement pay that the
nonveteran spouse would have received, pursuant to
a divorce judgment, had the veteran not elected to
waive military retirement pay in favor of CRSC.1 This
case is remanded to the Court of Appeals so that the
panel may address the effect of our holdings on
defendant’s ability to challenge the terms of the
consent judgment.
I. FACTS AND PROCEDURAL HISTORY
Defendant, Ray Foster, commenced service in the
United States Army in 1985, prior to his marriage to
plaintiff, Deborah Foster. During the marriage,
defendant was deployed in the Iraq war and suffered
serious and permanently disabling combat injuries.
Thereafter, defendant continued his military career
and, after more than 22 years of service, he retired in
September 2007. Because defendant was injured
during combat, he was eligible for CRSC under 10
USC 1413a, and defendant applied for CRSC around
the time of his retirement. In February 2008,
defendant received notice that he was eligible for
CRSC retroactive to October 2007.
Plaintiff filed for divorce in November 2007, and a
final consent judgment of divorce was entered in
December 2008. Before entering that judgment, the
trial court conducted a hearing regarding the
proposed consent judgment. Defendant testified that
he was receiving both military retirement pay and
military disability benefits based on his combat1 Megee v Carmine, 290 Mich App 551, 574-575; 802 NW2d 669
(2010).
31D
related injuries. The litigants, through counsel,
agreed that defendant’s disability benefits were not
subject to division by the court because they were not
marital property under federal law. At the time of the
divorce, plaintiff was gainfully employed as a
registered nurse.
The proposed property settlement awarded
plaintiff 100% of any interest she acquired in
retirement and pension benefits as a result of her
employment during the marriage. Additionally,
plaintiff was to receive 50% of defendant’s disposable
retirement pay that accrued during the marriage.2
The parties also agreed to the inclusion of the
following provision (the offset provision) in the
proposed consent judgment:
If Defendant should ever become disabled,
either partially or in whole, then Plaintiff’s
share of Defendant’s entitlement shall be
calculated as if Defendant had not become
disabled. Defendant shall be responsible to
pay, directly to Plaintiff, the sum to which she
would be entitled if Defendant had not
become disabled. Defendant shall pay this
sum to Plaintiff out of his own pocket and
earnings, whether he is paying that sum from
his disability pay or otherwise, even if the
military refuses to pay those sums directly to
2 The consent judgment provided that plaintiff would receive 50%
of defendant’s disposable retirement pay based on that portion of
the retirement that accrued during the course of the marriage.
Plaintiff understood that this meant she would receive
something slightly less than a 50/50 split because defendant was
employed in the military before the marriage.
32D
Plaintiff. If the military merely reduces, but
does not entirely stop, direct payment to
Plaintiff, Defendant shall be responsible to
pay directly to Plaintiff any decrease in pay
that Plaintiff should have been awarded had
Defendant not become disabled, together with
any Cost of Living increases that Plaintiff
would have received had Defendant not
become disabled. Failure of Defendant to pay
these amounts is punishable through all
contempt powers of the Court.
At the divorce hearing, the trial court inquired as to
why the language of this provision suggested that
defendant was not currently receiving any disability
benefits when, in fact, he was. Counsel explained that
it was intended to apply in the event that defendant
was offered an increase in disability benefits because
such an increase would diminish the retirement
benefits owed to plaintiff under the proposed
settlement. The trial court inquired into defendant’s
understanding of this provision:
The Court: . . . Mr. Foster, you do acknowledge
that if you were to defer any of your current
military retirement pay or convert it to
disability pay, or if your military retirement
pay were reduced because the level of your
disability
pay
was
increased,
you
acknowledge this Court’s ability to enforce
payment to Ms. Foster [of] the level of benefits
that she would be entitled [to] presently from
your retirement pay?
[Defendant]: Yes.
33D
No specific amounts were mentioned at the hearing or
in the actual consent judgment. Suffice it to say,
however, that plaintiff received slightly more than
$800 per month until February 2010. When
defendant began receiving CRSC,3 his disposable
retirement benefit amount was reduced, and
plaintiff’s monthly payment was reduced to a little
more than $200.4
Defendant nonetheless failed to pay plaintiff the
difference between the reduced amount of retirement
pay she received beginning in February 2010 and the
amount that she had received shortly after entry of
the consent judgment. Consequently, numerous
hearings took place in the trial court over several
years, all of which were designed to compel defendant
to pay plaintiff the difference between the amount
plaintiff would have been entitled to under the
consent judgment had defendant not received CRSC
and the amount plaintiff actually received after the
3 Retirement pay is taxable, whereas disability benefits are not,
and so defendant was economically incentivized to waive
retirement pay in favor of disability benefits. See Howell v
,
; 137 S Ct 1400, 1403; 197 L Ed 2d 781
Howell, 581 US
(2017), citing McCarty v McCarty, 453 US 210, 211-215; 101 S Ct
2728; 69 L Ed 2d 589 (1981).
4 The Court of Appeals concluded that defendant became eligible
to receive CRSC after entry of the consent judgment. This is
contrary to defendant’s testimony, and we have found nothing in
the record to support this conclusion. Defendant testified at the
September 30, 2010 show-cause hearing that he applied for
CRSC when he applied to retire and that he received
correspondence from the Veteran’s Administration that he was
approved to receive those benefits retroactive to October 2007.
Defendant claimed that he shared this correspondence with his
lawyer.
34D
government commenced paying defendant CRSC.
These proceedings culminated in the order from
which defendant appeals that found him in contempt
of court for failure to pay plaintiff in compliance with
the consent judgment. The court ordered him to pay
plaintiff $1,000 per month, with $812 credited as
current payments due under the consent judgment
and $188 to be credited against the arrearage of
$34,398 until the arrearage was paid in full.
Defendant has been paying plaintiff in monthly
installments since the contempt order was entered.
Payments were guaranteed by an “appearance bond”
in the amount of $9,500 and secured with a lien on his
mother’s home.
Defendant appealed in the Court of Appeals,
arguing that the trial court erred by not finding
plaintiff’s attempts to enforce the consent judgment
preempted by federal law. The Court of Appeals
concluded that the matter was not preempted by
federal law and affirmed the trial court’s contempt
order.5 Defendant sought leave to appeal in this
Court. In lieu of granting leave to appeal, we vacated
the judgment of the Court of Appeals and remanded
the case to that Court for reconsideration in light of
the opinion of the Supreme Court of the United States
in Howell v Howell.6 On remand, the Court of Appeals
again affirmed the trial court’s finding of contempt,
concluding that Howell did not overrule the Court of
5 Foster v Foster, unpublished per curiam opinion of the Court of
Appeals, issued October 13, 2016 (Docket No. 324853), pp 1, 5
(Foster I), vacated 501 Mich 917 (2017).
6 Foster v Foster, 501 Mich 917 (2017), citing Howell, 581 US
137 S Ct 1400.
;
35D
Appeals’ decision in Megee.7 The panel reasoned that
Howell was distinguishable because it involved
general service-connected disability benefits and
because the Howell opinion rested squarely on the
language in former 10 USC 1408(a)(4)(B), which
provided—and
still
provides
in
10
USC
1408(a)(4)(A)(ii)—that “disposable retired pay” means
a member’s total monthly retired pay less amounts
that “are deducted from the retired pay . . . as a result
of . . . a waiver of retired pay required by law in order
to receive compensation under title 5 or title 38[.]”8
The Court of Appeals also observed that the Megee
decision distinguished CRSC from general serviceconnected disability pay found in Title 38 on the basis
of CRSC’s status as Title 10 compensation.9 Given
that CRSC is at issue in the instant case, and that
Howell did not concern or analyze a waiver of
retirement pay in favor of CRSC, the Court of Appeals
concluded that Megee was on point and remained
binding precedent.10 Defendant again sought relief in
this Court, and we granted his application for leave to
appeal to consider the federal-preemption question,
the continuing viability of Megee, and the propriety of
the contempt order entered against defendant.11
7 Foster v Foster (On Remand), unpublished per curiam opinion
of the Court of Appeals, issued March 22, 2018 (Docket No.
324853) (Foster II), pp 1, 7.
8 Id. at 7, citing Howell, 581 US at
; 137 S Ct at 1402-1404.
9 Foster II, unpub op at 7.
10 Id., citing MCR 7.215(J)(1).
11 Foster v Foster, 503 Mich 892 (2018).
36D
II. ANALYSIS
Defendant argues that under federal law as outlined
in Howell, veterans’ disability benefits are – and
always have been – nondisposable, indivisible
benefits that constitute a personal entitlement free
from state legal process. He contends that CRSC is
categorically precluded from being considered
disposable retired pay under the Uniformed Services
Former Spouses’ Protection Act (USFSPA) and that
federal law thus preempts the states from an exercise
of authority that would result in the division of such
benefits. This remains true, defendant asserts, even
when a consent judgment of divorce uses language
effectively “indemnifying” or “reimbursing” a
nonveteran spouse for payments that would have
been received if retirement pay had not been waived
in order to receive disability benefits, as opposed to
language dividing received disability benefits
outright.
A. LEGAL BACKGROUND
Background information on the framework
providing for military retired pay and military
disability benefits, including CRSC, is useful to
review before assessing the merits of the parties’
arguments. “Members of the Armed Forces who serve
for a specified period, generally at least 20 years, may
retire with retired pay.”12 Retirement pay is
12 Mansell v Mansell, 490 US 581, 583; 109 S Ct 2023; 104 L Ed
2d 675 (1989) (citations omitted).
37D
calculated on the basis of the years served and the
rank attained by the retiring veteran.13
In McCarty v McCarty, the Supreme Court of the
United States held that federal law precludes state
courts from treating military retirement pay as
divisible marital property in divorce proceedings.14
Specifically, the Supreme Court interpreted federal
statutes governing retirement benefits and concluded
that it was the intent of Congress that military retired
pay “actually reach the beneficiary.”15 Thus, under
McCarty, “[r]etired pay [could not] be attached to
satisfy a property settlement incident to the
dissolution of a marriage.”16
Congress responded with the enactment of the
USFSPA.17 Under the new statutory scheme, state
courts were authorized to treat “disposable retired
pay” as divisible community property in a divorce.18
The pertinent statutory text reads:
13 Id. Additional retired pay may be warranted when a service
member is recalled to active duty. McCarty, 453 US at 223 n 16,
citing 10 USC 1402.
14 McCarty, 453 US at 223-232.
15 Id.
16 Id. at 228.
17 10 USC 1408 et seq. See also Mansell, 490 US at 584; King v
King, 149 Mich App 495, 498; 386 NW2d 562 (1986).
18 10 USC 1408(c)(1). See also Mansell, 490 US at 584.
38D
Subject to the limitations of this section, a court
may treat disposable retired pay payable to a
member for pay periods beginning after June
25, 1981, either as property solely of the
member or as property of the member and his
spouse in accordance with the law of the
jurisdiction of such court.[19]
The Act defines “disposable retired pay” as follows:
[T] he 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 name was placed on the temporary
disability retired list); or
19 10 USC 1408(c)(1).
39D
(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.[20]
Nearly eight years after the USFSPA was enacted,
the Supreme Court of the United States in Mansell v
Mansell confirmed that the USFSPA “does not grant
state courts the power to treat as property divisible
upon divorce military retirement pay that has been
waived to receive veterans’ disability benefits.”21
Mansell concluded that McCarty had not been
abrogated by the USFSPA, leaving in place the
general rule that state-court authority over veterans’
benefits is preempted by federal law.22
“Veterans who became disabled as a result of
military service are eligible for disability benefits.”23
Nonetheless, in order to prevent veterans from
receiving double payment in the form of retirement
pay and disability benefits, “federal law typically
insists that, to receive disability benefits, a retired
veteran must give up an equivalent amount of
retirement pay. And, since retirement pay is taxable
while disability benefits are not, the veteran often
20 10 USC 1408(a)(4)(A).
21 Mansell, 490 US at 594-595.
22 Id. at 588-594
23 Id. at 583.
40D
elects to waive retirement pay in order to receive
disability benefits.”24
An exception to the typical bar against receipt of
both retirement pay and disability benefits—and the
one most relevant to the instant matter—is CRSC,
which is separate from standard VA disability
benefits.25 “To be eligible for CRSC, a person must be
a member of the uniformed services who is entitled to
retired pay and who has a combat-related
disability.”26 CRSC is calculated as the amount of
monthly retirement pay the veteran would be entitled
to under Title 38, “determined without regard to any
disability of the retiree that is not a combat-related
disability.”27 The maximum amount of allowable
CRSC is “the reduction in retired pay that is
applicable to the retiree for that month under sections
5304 and 5305 of title 38.”28
B. FEDERAL PREEMPTION
We now turn to defendant’s contention that the
offset provision of the consent judgment was
preempted by federal law. Whether federal law
preempts state action is a question of law that this
24 Howell, 581 US at
US at 211-215.
25 10 USC 1413a.
26 10 USC 1413a(c).
27 10 USC 1413a(b)(1).
28 10 USC 1413a(b)(2).
; 137 S Ct at 1403, citing McCarty, 453
41D
Court reviews de novo.29 Likewise, the interpretation
of a statute is a question of law that we review de
novo.30 A court’s refusal to enter a stay is reviewed for
an abuse of discretion,31 as is the decision to impose a
security bond.32 A court abuses its discretion when its
decision falls outside the range of reasonable and
principled outcomes.33
The Supremacy Clause of the United States
Constitution provides:
This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the
Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary
notwithstanding.[34]
Federal law may preempt state law in multiple ways,
one of which has come to be known as “field
29 Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531
(2014).
30 Walters v Nadell, 481 Mich 377, 381; 751 NW2d 431 (2008).
Larion v Detroit, 149 Mich App 402, 410; 386 NW2d 199
(1986).
31
32 In re Surety Bonds for Costs, 226
Mich App 321, 331; 573
NW2d 300 (1997).
33 Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d
809 (2006).
34 US Const, art VI, cl 2.
42D
preemption.”35 This type of preemption recognizes
that “Congress may have intended ‘to foreclose any
state regulation in the area,’ irrespective of whether
state law is consistent or inconsistent with ‘federal
standards.’”36 Where applicable, the duly enacted
laws passed by Congress effectively forbid the states
from taking action in the field preempted.37 In
assessing defendant’s claims, we are mindful of
guidance provided by the Supreme Court of the
United States, which stated that “‘[t]he purpose of
Congress is the ultimate touchstone’ in every
preemption case”38 and that “Congress may indicate
its preemptive intent in two ways: ‘explicitly . . . in a
statute’s language’ or, by implication, through a
statute’s ‘structure and purpose.’”39 In determining
whether field preemption functions as a bar to state
law, we must examine whether the trial court’s order
in this case obstructs “the accomplishment and
35 Oneok, Inc v Learjet, Inc, 575 US 373, 377; 135 S Ct 1591; 191
L Ed 2d 511 (2015). See also Mich Canners & Freezers Ass’n, Inc
v Agricultural Mktg & Bargaining Bd, 467 US 461, 469; 104 S
Ct 2518; 81 L Ed 2d 399 (1984).
36 Oneok, Inc, 575 US at 377, quoting Arizona v United States,
567 US 387, 401; 132 S Ct 2492; 183 L Ed 2d 351 (2012).
37 Oneok, Inc, 575 US at 377.
38 Arbuckle v Gen Motors LLC, 499 Mich 521, 532; 885 NW2d 232
(2016), quoting Retail Clerks Int’l Ass’n v Schermerhorn, 375 US
96, 103; 84 S Ct 219; 11 L Ed 2d 179 (1963).
39 Arbuckle, 499 Mich at 532, quoting Jones v Rath Packing Co,
430 US 519, 525; 97 S Ct 1305; 51 L Ed 2d 604 (1977).
43D
execution of the full purposes and objectives of
Congress.”40
In Howell v Howell, the Supreme Court of the
United States reiterated its conclusion from Mansell,
stating that “federal law completely pre-empts the
States from treating waived military retirement pay
as divisible community property.”41 From this, the
Howell Court broadly held that a state court may not
order a veteran to indemnify a former spouse for any
loss in a former spouse’s share of the veteran’s
retirement pay caused by the veteran’s waiver of
retirement pay to receive service-related disability
benefits.42 Further, it makes no difference whether a
military veteran waives retirement pay postjudgment
or prejudgment as part of an overall divorce
settlement.43 Disability pay cannot become divisible
marital property through the use of an order
requiring the veteran to “reimburse” or “indemnify”
the spouse, rather than an order dividing a portion of
waived retirement pay outright.44
40 See Hines v Davidowitz, 312 US 52, 67; 61 S Ct 399; 85 L Ed
581 (1941).
41 Howell, 581 US at
42 Id. at
43 Id. at
44 Id. at
; 137 S Ct at 1405.
; 137 S Ct at 1402, 1406.
; 137 S Ct at 1405.
; 137 S Ct at 1406. The Howell Court was not ignorant
of the hardship that this holding might work on divorcing
spouses. Id. at
; 137 S Ct at 1406. Indeed, the Court noted
that state courts remained free to account for the waiver of
military retirement pay when calculating or recalculating the
need for spousal support. Id. at
; 137 S Ct at1406, citing
44D
To the extent that Howell was not concerned with
CRSC specifically, the Supreme Court has signaled
that Howell is nevertheless applicable to such
benefits. For example, in Merrill v Merrill, the
Supreme Court of Arizona addressed the application
of a state law to a divorce involving a veteran and a
nonveteran former spouse.45 The statute stated that
in dividing property in a proceeding for the
dissolution of a marriage, Arizona state courts could
not:
1. Consider any federal disability benefits
awarded to a veteran for service-connected
disabilities pursuant to 10 United States Code
§ 1413a or 38 United States Code chapter 11.
2. Indemnify the veteran’s spouse or former
spouse for any prejudgment or postjudgment
waiver or reduction in military retired or
retainer pay related to receipt of the disability
benefits.
3. Award any other income or property of the
veteran to the veteran’s spouse or former
spouse for any prejudgment or postjudgment
waiver or reduction in military retired or
retainer pay related to receipt of the disability
benefits.[46]
Rose v Rose, 481 US 619, 630-634, 632 n 6; 107 S Ct 2029; 95 L
Ed 2d 599 (1987); 10 USC 1408(e)(6).
45 Merill v Merill, 238 Ariz 467, 468; 362 P3d 1034 (2015), vacated
581 US
; 137 S Ct 2156 (2017).
46 Ariz Rev Stat Ann 25-318.01.
45D
In cases of postdecree reductions of military
retirement pay caused by the veteran spouse’s
election to receive CRSC, however, the Arizona
Supreme Court held that, so long as the decree was
entered before the statute’s effective date, the statute
did not preclude entry of an order indemnifying the
nonveteran spouse to compensate for the lesser
payments that resulted from the reduction.47
Similarly, in In re Marriage of Cassinelli, the
California Court of Appeals upheld an order forcing a
retired and disabled veteran to reimburse his former
spouse for the reduction of her share of his retirement
pay in a community property settlement resulting
from his waiver of retirement pay to receive disability
pay that included CRSC.48 Specifically, the California
Court of Appeals held that a state court “could
properly order [the veteran spouse] to reimburse [the
nonveteran spouse] for her lost community property
interest” without violating “either federal law or
finality principles.”49
In both cases, the Supreme Court of the United
States granted certiorari and vacated the judgments
of the state courts before remanding for
47 Merrill, 238 Ariz at 470.
48 In re Marriage of Cassinelli, 4 Cal App 5th 1285, 1291, 1297;
210 Cal Rptr 3d 311 (2016), vacated sub nom Cassinelli v
Cassinelli, 583 US
; 138 S Ct 69 (2017).
49 Cassinelli, 4 Cal App 5th at 1291. See also Id. at 1299 (“[A]
state court can order a military spouse who has waived retired
pay to reimburse a civilian spouse for the latter’s loss of a
community property interest in the retired pay without violating
Mansell.”).
46D
reconsideration in light of Howell.50 That is, on the
basis of its decision in Howell, the Supreme Court
vacated state court decisions ruling that veterans
could be forced to reimburse former nonveteran
spouses in divorce proceedings if they had waived
retirement pay in order to receive CRSC under 10
USC 1413a. Such benefits are of the very same kind
at issue in this case.
Applying these principles to the matter at hand,
we conclude that Howell and Mansell preclude any
provision of a divorce judgment requiring that a
nonveteran former spouse receive payments in an
amount equal to what he or she would have received
if the veteran former spouse had not waived his or her
retirement pay in order to obtain CRSC.51 The Howell
Court broadly stated that, in the wake of Mansell,
“federal law completely pre- empts the States from
treating waived military retirement pay as divisible
community property.”52 A “reimbursement” or
“indemnification” to compensate for the reduction of
50 Merrill, 581 US
; 137 S Ct 2156; Cassinelli, 583 US
; 138
S Ct 69.
51 Plaintiff does not appear to argue that Howell is inapplicable
to the instant case simply because it was decided more than
eight years after the parties entered into the consent judgment
at issue. To assuage any doubt as to the applicability of Howell
to this matter for this reason, however, it is important to note
that Howell is merely a clarification of Mansell. See Howell, 581
US at ; 137 S Ct at 1405 (“This Court’s decision in Mansell
determines the outcome here.”). Because Mansell was decided
in 1989—long before the parties were divorced—the date of the
Howell opinion’s issuance is of no matter.
52 Howell, 581 US at
; 137 S Ct at 1405 (emphasis added).
47D
payments resulting from the nonveteran spouse’s
share of partially waived military retirement pay is
effectively no different than a direct division of the
disability benefits themselves.53
Plaintiff asserts that, under the plain language of
10 USC 1408(a)(4)(A)(ii), only those reductions in
retired pay stemming from waivers required in order
to receive compensation under Title 5 or Title 38 are
excluded from “disposable retired pay.” This implies
that reductions in funds resulting from waivers to
receive benefits under Title 10, like CRSC, may not be
excluded from “disposable retired pay.” Therefore,
maintains plaintiff, the reduction can be accounted
for in a marital-asset division under 10 USC
1408(c)(1). The Court of Appeals was apparently
persuaded by this logic.54 But plaintiff and the panel
below ignored the language of 10 USC 1413a(g)
stating that “[p]ayments under this section[, which
provides for CRSC payments,] are not retired pay.”
Pursuant to 10 USC 1408(a)(4)(A), disposable retired
pay is calculated, prior to accounting for reductions
(including those resulting from waivers of retired
pay), by totaling the amount of “monthly retired pay”
to which a veteran is entitled. Because CRSC is not
“retired pay” under Title 10, it would not be subject to
division as a marital asset under 10 USC 1408(c). Any
amounts waived that lead to the receipt of CRSC
would likewise not be divisible in this manner.55
53 Id. at
; 137 S Ct at 1405-1406.
54 See Foster II, unpub op at 7.
55 The
Court of Appeals misunderstood the nature of CRSC
benefits in this regard. See Id. (distinguishing the case from
48D
This analysis is not undone by plaintiff’s
insistence that this case is distinguishable from
Howell because the parties consented to plaintiff’s
continued receipt of funds equal to those she would
have received had defendant not elected to receive
CRSC. Under 38 USC 5301(a)(1):
Payments of benefits due or to become due
under any law administered by the Secretary
shall not be assignable except to the extent
specifically authorized by law, and such
payments made to, or on account of, a
beneficiary shall be exempt from taxation, shall
Howell because Howell “did not concern or analyze a waiver of
retirement pay in favor of CRSC disability pay”); Megee, 290
Mich App at 565 (distinguishing the case from Mansell because
the “plaintiff here did not waive his right to retirement pay in
order to receive compensation under title 5 or title 38, but to
receive title 10 compensation”). Defendant’s election of CRSC did
not directly require a waiver of retired pay. Rather, defendant’s
election to receive CRSC benefits would have been contingent on
receiving disability benefits, 10 USC 1413a(b), and the increase
in disability benefits was what would have legally triggered the
decrease in retirement pay. See 38 USC 5304; 38 USC 5305. A
letter dated April 14, 2010, from the Defense Finance and
Accounting Service to plaintiff confirms that the reduction in the
amount paid to plaintiff “was due to the increase in [defendant’s]
Va Disability” benefits.
Moreover, it makes sense that 10 USC 1408(a)(4)(A)(ii)
would not include language allowing for the deduction of
amounts waived to receive CRSC under Title 10 because the
limitation to consideration of amounts waived in order to receive
compensation under Title 5 or Title 38 was enacted in 1982. PL
97-252, § 1002; 96 Stat 718. The provision in Title 10 allowing
for CRSC, 10 USC 1413a, was not enacted until 20 years later,
in 2002. PL 107-314, § 636; 116 Stat 2458.
49D
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. The preceding sentence shall not
apply to claims of the United States arising
under such laws nor shall the exemption
therein contained as to taxation extend to any
property purchased in part or wholly out of
such payments. The provisions of this section
shall not be construed to prohibit the
assignment of insurance otherwise authorized
under chapter 19 of this title [38 USC 1901 et
seq.], or of servicemen’s indemnity.
Subsection (a)(3)(A) further states that
in any case where a beneficiary entitled to
compensation . . . enters into an agreement
with another person under which agreement
such other person acquires for consideration
the right to receive such benefit by payment of
such compensation, pension, or dependency
and indemnity compensation, as the case may
be, . . . such agreement shall be deemed to be an
assignment and is prohibited.
“A consent judgment is in the nature of a contract,
and is to be construed and applied as such.”56 Among
the key elements of any contract in Michigan is
consideration.57 Thus, the consent judgment in this
56 Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008).
57 McInerney v Detroit Trust Co, 279 Mich 42, 46; 271 NW 545
50D
case effectively amounted to “an agreement . . . under
which agreement . . . [plaintiff] acquire[d] for
consideration the right to receive” an amount
equivalent to what she would have received had
defendant not waived retirement pay to receive
CRSC.58 This is, under federal statute, an
impermissible “assignment.”59
C. EFFECT ON MEGEE v CARMINE
With the preceding analysis in mind, it is
appropriate to conclude that Howell overruled the
Michigan Court of Appeals’ judgment in Megee v
Carmine. In Megee, the veteran spouse (the plaintiff)
elected to receive CRSC, which resulted in a
diminution of his retirement pay and the nonveteran
spouse’s (the defendant’s) 50% award stemming from
that amount.60 The Megee panel held:
[A] military spouse remains financially
responsible to compensate his or her former
spouse in an amount equal to the share of
retirement pay ordered to be distributed to the
former spouse as part of a divorce judgment’s
property division when the military spouse
makes
a
unilateral
and
voluntary
postjudgment election to waive the retirement
pay in favor of disability benefits contrary to
(1937).
58 See 38 USC 5301(a)(3)(A).
59 See Id.
60 Megee, 290 Mich App at 561.
51D
the terms of the divorce judgment.
Conceptually, and consistently with extensive
caselaw from other jurisdictions, we are
dividing waived retirement pay in order to
honor the terms and intent of the divorce
judgment. Importantly, we are not ruling that
a state court has the authority to divide a
military spouse’s CRSC, nor that the military
spouse can be ordered by a court to pay the
former spouse using CRSC funds. Rather, the
compensation to be paid the former spouse as
his or her share of the property division in lieu
of the waived retirement pay can come from any
source the military spouse chooses, but it must
be paid to avoid contempt of court. To be clear,
nothing in this opinion should be construed as
precluding a military spouse from using CRSC
funds to satisfy the spouse’s obligation if
desired.[61]
This is, however, exactly the conduct that Howell and
Mansell endeavored to preclude. Regardless of the
voluntary nature of the waiver or the temporal
relation of the waiver to the consent judgment, the
Megee panel ultimately held that the portion of
retirement pay that the plaintiff waived to receive
CRSC was compensable to the defendant in the
division of assets pursuant to divorce proceedings. We
therefore overrule Megee.
61 Id. at 566-567, 574-575.
52D
D. PROCEEDINGS ON REMAND
Plaintiff argues that the instant appeal
constitutes an impermissible collateral attack on the
consent judgment. The panel below agreed with her
in this regard (before ruling on the merits of the
parties’ contentions), but did so in a conclusory
fashion, stating that “defendant is engaging in an
improper collateral attack on the divorce judgment”
and citing Kosch v Kosch, a 1999 decision of the Court
of Appeals.62 But Kosch merely held that the
defendant’s failure in that case to file an appeal from
the original judgment of divorce categorically
precluded a collateral attack on the merits of that
decision.63 This is ordinarily true except in cases
concerning jurisdictional error.64 The Kosch opinion
did not discuss this particular nuance. With this in
mind, we leave it to the Court of Appeals on remand
to address the effect of our holdings today on the trial
court’s subject-matter jurisdiction to enter the
consent judgment of divorce containing the offset
provision at issue and to address defendant’s ability
to challenge the consent judgment on collateral
review.
62 Foster II, unpub op at 2, 6, citing Kosch v Kosch, 233 Mich
App 346, 353; 592 NW2d 434 (1999) (quotation marks and
citation omitted).
63 Kosch, 233 Mich App at 353.
64 See Pettiford v Zoellner, 45 Mich 358, 361; 8 NW 57 (1881);
Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 544;
260 NW 908 (1935); Couyoumjian v Anspach, 360 Mich 371, 386;
103 NW2d 587 (1960).
53D
III. CONCLUSION
The trial court was preempted under federal law
from including in the consent judgment the offset
provision on which plaintiff relies. The broad
language of Howell precludes a provision requiring
that
plaintiff
receive
reimbursement
or
indemnification payments to compensate for
reductions in defendant’s military retirement pay
resulting from his election to receive any disability
benefits, including CRSC as provided for under Title
10.
Nevertheless, we express no opinion on the effect
our holdings have on defendant’s ability to challenge,
on collateral review, the consent judgment. The Court
of Appeals did not substantively review this point or
the effect of federal preemption on the trial court’s
subject-matter jurisdiction. We therefore vacate that
portion of the March 22, 2018 opinion and judgment
of the Court of Appeals concluding that defendant’s
contentions amounted to an improper collateral
attack on the consent judgment, and we reverse the
balance of the panel’s opinion. We remand the case to
the Court of Appeals so that the panel may address
the effect of our holdings on defendant’s ability to
challenge the terms of the consent judgment.
Brian K. Zahra
Bridget M. McCormack
Stephen J. Markman
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
54D
STATE OF MICHIGAN
SUPREME COURT
DEBORAH LYNN FOSTER,
Plaintiff/Counterdefendant- Appellee,
v
No. 157705
RAY JAMES FOSTER,
Defendant/Counterplaintiff- Appellant.
VIVIANO, J. (concurring).
I concur fully in the reasoning of the majority opinion
and its holding that the trial court was preempted
under federal law from including the offset provision
on which plaintiff relies in the consent judgment of
divorce.1 I also agree with the majority’s decision to
remand this case to the Court of Appeals so that it
may consider whether defendant may challenge this
provision of the consent judgment on collateral
review. I write separately to more fully address
questions that will arise on remand and that are, in
my view, inadequately developed by the parties’
briefs.
I. THE PARTIES’ DIVORCE JUDGMENT IS FINAL
AND MAY NOT BE MODIFIED UNLESS THE
FAMILY COURT DID NOT HAVE SUBJECT1 I believe a more precise way to state the Court’s holding is that
MCL 552.18, the statute that provides the trial court’s authority
to divide pension, annuity, or retirement benefits as part of the
marital estate in a divorce judgment, is preempted by federal law
to the extent it otherwise permits division of the type of veterans’
and military disability benefits at issue in this case.
55D
MATTER JURISDICTION OVER THE PARTIES’
DIVORCE ACTION
Although some portions of a divorce judgment are
subject to modification, such as alimony or child
support, the property-settlement provisions of a
divorce judgment “are final and, as a general rule,
cannot be modified.” Colestock v Colestock, 135 Mich
App 393, 397; 354 NW2d 354 (1984), citing Boucher v
Boucher, 34 Mich App 213; 191 NW2d 85 (1971).
Thus, “[a] judgment of divorce dividing marital
property is res judicata and not subject to collateral
attack, even if the judgment may have been wrong or
rested on a subsequently overruled legal principle.”
Colestock, 135 Mich App at 397-398, citing McGinn v
McGinn, 126 Mich App 689; 337 NW2d 632 (1983).
In Buczkowski v Buczkowski, 351 Mich 216, 222223; 88 NW2d 416 (1958), this Court examined
whether a spouse could move to vacate a separatemaintenance decree when the moving spouse did not
appeal the decree, had already accepted money under
the settlement, and waited four years after entry of
the decree to assert defects with it. The sole challenge
to the decree was that the court lacked jurisdiction to
enter it because it contained a legally invalid
provision. Id. at 220-221. The Court declined to vacate
the decree, explaining as follows:
We are cited to no authority to support this
contention and it is manifestly in error. The
court had jurisdiction of the parties and it had
jurisdiction of the subject matter of the suit,
that is, support and maintenance. Having such
56D
jurisdiction it also had jurisdiction to make an
error if, indeed, it did. . . .
The failure to distinguish between “the
erroneous exercise of jurisdiction” and “the
want of jurisdiction” is a fruitful source of
confusion and errancy of decision. In the first
case the errors of the trial court can only be
corrected by appeal or writ of error. In the last
case its judgments are void, and may be
assailed by indirect as well as direct attack.***
The judgment of a court of general jurisdiction,
with the parties before it, and with power to
grant or refuse relief in the case presented,
though (the judgment is) contrary to law as
expressed in the decisions of the supreme court
or the terms of a statute, is at most only an
erroneous exercise of jurisdiction, and as such
is impregnable to an assault in a collateral
proceeding.
The loose practice has grown up, even in
some opinions, of saying that a court had no
“jurisdiction” to take certain legal action when
what is actually meant is that the court had no
legal “right” to take the action, that it was in
error. If the loose meaning were correct it would
reduce the doctrine of res judicata to a
shambles and provoke endless litigation, since
any decree or judgment of an erring tribunal
would be a mere nullity. It must constantly be
borne in mind, as we have pointed out in
Jackson City Bank & Trust Co v Fredrick, 271
Mich 538, 544[; 260 NW 908 (1935)], that:
57D
There is a wide difference between a
want of jurisdiction, in which case the
court has no power to adjudicate at all,
and a mistake in the exercise of
undoubted jurisdiction, in which case the
action of the trial court is not void
although it may be subject to direct
attack on appeal. This fundamental
distinction runs through all the cases.
[Buczkowski, 351 Mich at 221-222 (cleaned
up).]
We have often cited Jackson City Bank for this
proposition, including most recently last term in In re
Ferranti, 504 Mich 1, 22; 934 NW2d 610 (2019), in
which we quoted the very next paragraph from that
case:
“[W]hen there is a want of jurisdiction over
the parties, or the subject-matter, no matter
what formalities may have been taken by the
trial court, the action thereof is void because
of its want of jurisdiction, and consequently
its proceedings may be questioned collaterally
as well as directly. They are of no more value
than as though they did not exist. But in cases
where the court has undoubted jurisdiction of
the subject matter, and of the parties, the
action of the trial court, though involving an
erroneous exercise of jurisdiction, which
might be taken advantage of by direct appeal,
or by direct attack, yet the judgment or decree
is not void though it might be set aside for the
irregular or erroneous exercise of jurisdiction
58D
if appealed from. It may not be called in
question collaterally.” [Ferranti, 504 Mich at
22, quoting Jackson City Bank, 271 Mich at
544-545.]
In McGinn, a case also involving military
pensions, the Court of Appeals explained the
importance of finality in the context of divorce
judgments:
Public policy demands finality of litigation
in the area of family law to preserve surviving
family structure. To permit divorce judgments
which have long since become final to be
reopened so as to award military pensions to
the husband as his separate property would
flaunt the rule of res judicata and upset settled
property distributions upon which parties have
planned their lives. The consequences would be
devastating, not only from the standpoint of the
litigants, but also in terms of the work load of
the courts. [McGinn, 126 Mich App at 693
(citation omitted).]
As defendant appears to concede, these finality
concerns are certainly implicated in this case because
defendant’s assertion of federal preemption as a
defense to a contempt proceeding brought to enforce
the offset provision in the parties’ divorce judgment is
a collateral attack on a final judgment. See generally
Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23,
40; 585 NW2d 290 (1998) (noting that “[a] party must
obey an order entered by a court with proper
jurisdiction, even if the order is clearly incorrect, or
59D
the party must face the risk of being held in
contempt”).
Therefore, in order to modify his divorce judgment
in this collateral proceeding, defendant must
establish that the type of federal preemption at issue
deprives state courts of subject-matter jurisdiction.
See Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494
Mich 46, 51 n 3; 832 NW2d 728 (2013) (“[T]he [l]ack
of jurisdiction of the subject matter may be raised at
any time and the parties to an action cannot confer
jurisdiction by their conduct or action nor can they
waive the defense by not raising it.”) (quotation marks
and citation omitted). But instead of focusing his
analysis on whether the federal statutes governing
veterans’ and military disability benefits deprive the
state courts of subject-matter jurisdiction, defendant
makes the sweeping assertion that all types of federal
preemption deprive state courts of subject-matter
jurisdiction.2 Although I believe defendant’s assertion
2 See Defendant’s Brief on Appeal (February 27, 2019) at 2 (“As
a prima facie jurisdictional matter, this Court has long held
where federal law preempts state law, as it absolutely does in
this case, the courts of this state lack subject matter jurisdiction
to enter an order contrary to the prevailing federal rule.”); Id.
(“Where subject-matter jurisdiction is lacking due to federal
preemption, any judgments and orders entered in contravention
of the prevailing federal law are void and subject to collateral
attack, notwithstanding consent of the parties or the length of
time that has passed since such judgments or orders were
entered.”); Id. at 33 (“Where federal pre-emption applies to bar a
state court’s actions, a reviewing court must address the
preemptive effect of the federal law on the lower court’s
jurisdiction because state courts do not have subject matter
jurisdiction to enter orders contrary to the federal mandate.”); Id.
(“A state court that rules incorrectly on a matter preempted by
federal law acts in excess of its jurisdiction. Such rulings, and the
60D
is demonstrably incorrect, some of our precedents do
appear at first glance to support it. And, as defendant
acknowledges, the issue could also have implications
far beyond this case if the entire spectrum of federalpreemption claims could potentially be raised to
mount collateral attacks on final judgments in myriad
types of cases. See Defendant’s Brief on Appeal
(February 27, 2019) at 6 (“There should be no doubt
that an order . . . preempted by federal law is void and
may be attacked, challenged, and nullified at any
time, even on appeal, indeed, even after the time for
appeal has passed.”). Therefore, before addressing the
precise legal issue in this case, I will first explain why
defendant’s assertion that all types of federal
preemption deprive state courts of subject-matter
jurisdiction is wrong as a matter of law.
II. CONTRARY TO DEFENDANT’S SWEEPING
ASSERTION, NOT ALL TYPES OF FEDERAL
PREEMPTION DEPRIVE STATE COURTS OF
SUBJECT-MATTER JURISDICTION
The law in this area has been aptly summarized as
follows:
State
courts
have
subject-matter
jurisdiction over federal preemption defenses.
The preemption doctrine does not deprive state
courts of subject matter jurisdiction over claims
involving federal preemption unless Congress
has given exclusive jurisdiction to a federal
forum.
judgments they spring from, are void ab initio and exposed to
collateral attack.”).
61D
Accordingly, where state and federal courts
have concurrent jurisdiction over a federal
cause of action, and a state proceeding on such
cause of action presents a federal preemption
issue, the proper course is to seek resolution of
that issue by the state court. Similarly, there
are some cases in which a state law cause of
action is preempted by federal law, but only a
state court has jurisdiction to so rule. A finding
of preemption will generally not remove the
case from the jurisdiction of the state court but
will only alter the law applied by that court. [21
CJS Courts, § 272 (emphasis added; citations
omitted).]
It is well settled that “[s]tate courts are adequate
forums for the vindication of federal rights.” See Burt
v Titlow, 571 US 12, 19; 134 S Ct 10; 187 L Ed 2d 348
(2013). See Id. (“The States possess sovereignty
concurrent with that of the Federal Government,
subject only to limitations imposed by the Supremacy
Clause. Under this system of dual sovereignty, we
have consistently held that state courts have inherent
authority, and are thus presumptively competent, to
adjudicate claims arising under the laws of the United
States.”) (cleaned up). See also Office Planning
Group, Inc v Baraga-Houghton- Keweenaw Child Dev
Bd, 472 Mich 479, 493; 697 NW2d 871 (2005) (“It has
long been established that, so long as Congress has
not provided for exclusive federal-court jurisdiction,
state courts may exercise subject-matter jurisdiction
over federal-law claims whenever, by their own
constitution, they are competent to take it. State
courts possess sovereignty concurrent with that of the
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federal government, subject only to limitations
imposed by the Supremacy Clause. Thus, state courts
are presumptively competent to assume jurisdiction
over a cause of action arising under federal law. If
concurrent jurisdiction otherwise exists, subjectmatter jurisdiction over a federal-law claim is
governed by state law.”) (cleaned up).
Notably, these same principles apply when federal
courts are analyzing whether a preemption claim
deprives the federal courts of subject-matter
jurisdiction. In Violette v Smith & Nephew Dyonics,
Inc, 62 F3d 8, 11 (CA 1, 1995), cert den 517 US 1167
(1996), the defendant argued for the first time on
appeal that the plaintiff’s state-law products- liability
claims were preempted by certain provisions of a
federal statute. Relying upon Int’l Longshoremen’s
Ass’n, AFL-CIO v Davis, 476 US 380; 106 S Ct 1904;
90 L Ed 2d 389 (1986), the defendant argued that
“preemption is a jurisdictional matter which cannot
be waived and may be raised at any time.” Violette, 62
F3d at 11. Distinguishing between “choice-of-forum”
and “choice-of-law” preemption, the federal court
explained:
[W]here Congress has designated another
forum for the resolution of a certain class of
disputes, such as the National Labor Relations
Board in Davis, such designation deprives the
courts of jurisdiction to decide those cases.
Where, however, the question is whether state
tort or federal statutory law controls,
preemption is not jurisdictional and is subject
to the ordinary rules of appellate adjudication,
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including timely presentment and waiver. [Id.
at 11-12 (citation omitted).]
Since the type of preemption at issue in Violette
presented a “choice-of-law” question, it was “not . . .
jurisdictional, and was waived when not presented in
the district court.” Id. at 12.
Our Court of Appeals correctly explained the two-part
preemption inquiry as follows:
Where preemption exists, . . . state courts will
not always be prevented from acting. A litigant
may still enforce rights pursuant to the Federal
law in state courts unless the Constitution or
Congress has, expressly or impliedly, given a
Federal court exclusive jurisdiction over the
subject matter. Mondou v New York, N H & H
R Co, 223 US 1; 32 S Ct 169; 56 L Ed 327 (1912);
Claflin v Houseman, 93 US 130; 23 L Ed 833
(1876). See Hart and Wechsler, The Federal
Courts and The Federal System (2d ed), pp 427438. Thus, we must determine whether
Congress has preempted states from legislating
or regulating the subject matter of the instant
case, and, if it has, whether it has also vested
exclusive jurisdiction of that subject matter in
the Federal court system. [Marshall v
Consumers Power Co, 65 Mich App 237, 244245; 237 NW2d 266 (1976).]
Defendant cites Henry v Laborers’ Local 1191, 495
Mich 260; 848 NW2d 130 (2014), for the proposition
that federal preemption deprives state courts of
subject-matter jurisdiction. In Henry, after observing
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that the defendants first raised the issue of
preemption in the Court of Appeals, we stated that
“preemption is a question of subject- matter
jurisdiction” and that, “[a]s such, this Court must
consider it.” Id. at 287 n 82. Although our statement
that “preemption is a question of subject-matter
jurisdiction” was made without qualification, the
above statements were supported by the following
quotation from Davis, 476 US at 393: “A claim of
Garmon pre-emption is a claim that the state court
has no power to adjudicate the subject matter of the
case, and when a claim of Garmon pre-emption is
raised, it must be considered and resolved by the state
court.” Thus, our assertion was made in the context of
Garmon preemption and was indisputably correct in
that context since Congress has established an
exclusive federal forum, the National Labor Relations
Board, to adjudicate certain claims under the
National Labor Relations Act (NLRA).3 And, even if
3 The term “Garmon preemption” was coined after the United
States Supreme Court’s decision in San Diego Bldg Trades
Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775
(1959). See Id. at 245 (“When an activity is arguably subject to §
7 or § 8 of the [NLRA], the States as well as the federal courts
must defer to the exclusive competence of the National Labor
Relations Board if the danger of state interference with national
policy is to be averted.”). Our Court and the Court of Appeals
have found preemption under Garmon in a number of cases. See,
e.g., Henry, 495 Mich 260; Bebensee v Ross Pierce Electric Corp,
400 Mich 233; 253 NW2d 633 (1977); Calabrese v Tendercare of
Mich, Inc, 262 Mich App 256, 266; 685 NW2d 313 (2004); Sargent
v Browning-Ferris Indus, 167 Mich App 29, 33-36; 421 NW2d
563 (1988); Bescoe v Laborers’ Union Local No 334, 98 Mich App
389, 395-409; 295 NW2d 892 (1980). See also Town & Country
Motors, Inc v Local Union No 328, 355 Mich 26; 94 NW2d 442
(1959) (holding before Garmon was decided that the circuit court
had no jurisdiction over the case because the NLRA preempted
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the Court purported to make such a broad holding, it
would be dicta since it was “not necessarily involved
nor essential to determination of the case.” See Wold
Architects & Engineers v Strat, 474 Mich 223, 232 n
3; 713 NW2d 750 (2006) (quotation marks and
citation omitted). For these reasons, I do not believe
that Henry may properly be read as supporting
defendant’s sweeping assertion that all types of
preemption deprive the state courts of subject-matter
jurisdiction.4
Defendant also cites Ryan v Brunswick Corp, 454
Mich 20, 40; 557 NW2d 541 (1997), in which after
finding that plaintiff’s common-law products-liability
claims were preempted under the Federal Boat Safety
Act (FBSA), 46 USC 4301 et seq., this Court held that
the area of labor law at issue).
4 The same analysis applies to other “choice-of-forum” federalpreemption cases. In Ass’n of Businesses Advocating Tariff
Equity v Pub Serv Comm, 192 Mich App 19, 24; 480 NW2d 585
(1992), the Court of Appeals held that “the issue of federal
preemption is one of jurisdiction, and questions of subject-matter
jurisdiction can be raised at any time, even if not raised before
the appeal is taken.” (Citation omitted.) However, as in Henry,
this broad assertion was made in the context of a choice-of-forum
preemption question, i.e., whether the Public Service
Commission lacked jurisdiction to disallow recovery of costs
approved by the Federal Energy Regulatory Commission (FERC)
under the Natural Gas Act, 15 USC 717 et seq., which gives
exclusive authority to FERC to set interstate natural gas rates.
See also Mississippi Power & Light Co v Mississippi ex rel Moore,
487 US 354, 377; 108 S Ct 2428; 101 L Ed 2d 322 (1988) (Scalia,
J., concurring) (“It is common ground that if FERC has
jurisdiction over a subject, the States cannot have jurisdiction
over the same subject.”).
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“summary disposition pursuant to MCR 2.116(C)(4)
and (C)(8) was proper.”5 In reciting the applicable
legal principles, the Court stated that “[w]here the
principles of federal preemption apply, state courts
are deprived of subject matter jurisdiction.” Id. at 27.
5 After finding that the plaintiff’s tort claim was preempted by
federal law, the trial court explained its ruling as follows:
[T]he Court necessarily lacks jurisdiction to hear this
matter and, accordingly, partial summary disposition is
appropriate under (C)(4) for the lack of subject matter
jurisdiction, and also as I think correctly argued by the
defendant, it fails to state a claim upon which relief can
be granted because the failure to equip its product with
a propeller guard or to warn of its absence is something
that the manufacturer of an outboard or inboard outdrive
boat propulsion unit cannot be held liable for. Since that
is the case, I grant the defendant’s motion for partial
summary disposition under both (C)(4) and (C)(8) for
those reasons I’ve indicated. [Id. at 22 n 3 (quotation
marks omitted).]
The Court of Appeals affirmed on both grounds, Ryan v
Brunswick Corp, 209 Mich App 519, 526; 531 NW2d 793 (1995),
and, as mentioned above, so did this Court. Since the referenced
court rules provide alternate grounds for summary disposition
(under (C)(4) for lack of subject-matter jurisdiction and under
(C)(8) for failure to state a claim on which relief can be granted),
it is unclear which of these holdings is precedentially binding.
The ambiguity in the Court’s holding can perhaps best be
explained by the fact that the Court did not need to focus on
whether the preemption at issue was jurisdictional—for
example, to decide if preemption could be raised for the first time
on appeal or in a collateral attack on a final judgment. Thus, to
the extent that the Court erred by affirming summary
disposition under (C)(4)—which, in the absence of an exclusive
federal forum for resolution of claims under the FBSA, seems
apparent—it was only a labeling error since dismissal under
(C)(8) was the proper way to dispose of the case after finding the
type of preemption at issue.
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However, the Court did not cite any authority
whatsoever for this assertion. Nor did we address
whether Congress had designated a federal forum for
resolution of these types of disputes. And, in any
event, our preemption holding in Ryan was abrogated
by Sprietsma v Mercury Marine, 537 US 51; 123 S Ct
518; 154 L Ed 2d 466 (2002), which held that the
FBSA does not expressly or implicitly preempt state
common-law claims. In light of the ambiguous nature
of our holding (noted above), the lack of authority f
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