Petition — Cose v. Cose

“ae 19 1980 _

TG HR CLE

IN THE

Supreme Court vf the United States

*

OCTOBER TERM, 1979

—_——————

29-1469

No

JOANNE ERSKINE COSE, Petitioner,

LEROY EDWARD CosE, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALASKA

ee

Max F. GRUENBERG, JR.

GRUENBERG & FRENZ

909 West Ninth Ave., #230

Anchorage, Alaska 99501

Counsel for Petitioner

March 12, 1980

$s

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

PAGE

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QUESTION PRESENTED ........ 0 eee eee ee ee eeees 2

STATUTUE TRVOENED i ace bk ce esc eaters tier veces 3

STATEMENT OF THR CARR 6. 6c ce is ee ei etia eee saves 3

REASONS FoR GRANTING THE WRIT ........+-++00> 4

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CITATIONS

CASES:

Bodenhorn v. Bodenhorn, 567 F.2d 629 (Sth Cir.

BUTE) ov cvicea scncied owen saeeeeeie eee 5

Busby v. Busby, 457 S.W. 2d 551 (1970) .......... 4

Chisnell v. Chisnell, 82 Mich. App. 699, 267 N.W.

2d 155, appeal denied, Mich. ,

Bese} ee (1978), cert. denied,

U.S. ee 2 '

L.Ed.2d EPOTER: «sa vadstaeenene ane 5, 6

ii

Table of Authorities Continued

PAGE

Czarnecki v. Czarnecki, 123 Ariz. 466, 600 P.2d

dee ak a ens & kc hdd Ce 4,5,9

Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976)... 5

Fenney v. Fenney, 259 Ark. 858, 537 S.W.2d 367

ea ail a 6a be bw dae he bees ed 5

Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8

SE PMID, cw kc escherdevscccdecsces 3

Gorman v. Gorman, 9% Cal.App.3d 454, :

Soo Sae.. 479, 462-63 (1STS) .. ww ccc cee Q

Henn v. Henn, Cal.3d dil

, 161 Cal.R. 502 (January ; 29, 1980) . -

Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct.

eg ee Ge 1 CISTS) i)... cece cece passim

In re Marriage of Brown, 15 Cal.3d 838, 544 P.2d

Sy a is GIS CEDTO) on. oc ccc cc ccc ees 7

In re Marriage of Musser, 70 Ill.App.3d, 706, 27

Ill. Dec. 240, 388 N.Ed.2d 1289 (1979)........ 5

In re Fithian, 10 Cal.3d 592, 517 P.2d 449, 111

Cal.R. 369, cert.denied, 419 U.S. 829, 95 S.Ct.

WE, Se 0.0.20 4B (1974)... . ww cee cccccvces 4, 6

Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659 (1977) 4

LeClert v. LeClert, 80 N.Mex. 253, 453 P.2d 755

SE a 4

Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736

EN a ees GW gt cd's bcc ecccevccecesse 4

Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53

aa Eb s o64 os cdc svccespeccescece 4

Starren v. Starren, Cal.3d :

p.2d Cal.R. (January

17, 1979), cert. denied, U.S. ,

ar L.Ed. , 5

F.L.R. 2938 (week of September 5, 1979) ..... 6

iil

Table of Authorities Continued

PAGE

Swope v. Mitchell, 324 So.2d 461 (La.App.1975)... §

United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500,

pee fs | ere eee een 7-8

Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49

me OAS ORO UE, Perea we tie ne 7

Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94

tees SU RD osc ss 54k ok ho ew eee aw aliens 3

STATUTES:

a rsa ce can aee’ 1a56eed ben ean —

St eee Es Bi Pes bags veoh css badablecawey oe 10

ty a A _ SRS R Oe 10

Pe a eno ss hao he We oe ie's baka bo keoee 10

es I oe oo ond ke oe cake ees 2

ee ee I a ike on aah eka ne eek Se 8, 9

MISCELLANEOUS:

Goldberg, ‘‘Is Armed Services Retired Pay Really

Community Property?’’ 48 Cal.St.Bar.J. 12

ROAD nk 6eenk sewer Lees eee & 9

IN THE

Supreme Court of the Gnited States

OCTOBER. TERM, 1979

No.

JOANNE ERSKINE COsSE, Petitioner,

LEROY EDWARD CosE, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALASKA

Petitioner Joanne Erskine Cose petitions for a writ

of certiorari to review the judgment of the Supreme

Court of Alaska.

OPINION BELOW

The divorce decree of the Anchorage superior court

is unreported. (App. A, infra). The opinion of the

Alaska Supreme Court is reported at 592 P.2d 1230

(1979). (App. B, infra). The original mandate of June

19, 1979, is unreported. (App. C, infra). The order de-

nying the first petition for reconsideration is unreported.

(App. D, infra). The order granting the second petition

for reconsideration and affirming the original Alaska

Supreme Court opinion is unreported. (App. E, infra).

The supplemental mandate is unreported. (App. F, in-

fra). The Alaska Supreme Court’s December Activity

Report discussing the purpose of the order granting the

second petition for reconsideration is unreported. (Rele-

vant pages are App. G, infra).

JURISDICTION

The judgment of the Alaska Supreme Court was

entered June 19, 1979. The second petition for recon-

sideration was granted and the supplemental mandate

affirming the original opinion issued December 20,

1979, specifically to extend the time for filing this peti-

tion for certiorari until March 19, 1980. (App.’s E, F,

and G).' This Court’s jurisdiction is invoked under 28,

U.S.C. §1257(3).

QUESTION PRESENTED

Whether federal law prohibits the division of

military retired pay in a divorce.

' Petitioner originally requested from this Court an extension of

time to file a petition for certiorari. That request was denied. Peti-

tioner then requested the Alaska Supreme Court to grant the se-

cond petition for reconsideration and issue a supplemental mandate

extending the time for filing this petition for certiorari. In an order

that may be virtually unique since statehood, the Alaska Supreme

Court granted the second petition and issued a supplemental man-

date, thus extending the time for filing this petition for certiorari.

STATUTES INVOLVED

See Appendix H.

STATEMENT OF THE CASE

The parties were married on November 14, 1954,

five months after Respondent commenced active duty

with the U.S. Army. They filed for divorce September

16, 1974. Respondent retired as a lieutenant colonel July

1, 1975 after twenty-one years of active duty. The par-

ties were divorced October 29, 1976.

The Anchorage superior court held Respondent’s

retired pay was divisible and awarded Petitioner one-

half the $1,100 monthly payments, terminable upon

either party’s death.? App. B at 1-2, 592 P.2d at

1230-31.

Respondent appealed to the Alaska Supreme Court,

asserting the retired pay was income and not divisible

property. Citing Wissner v. Wissner, 338 U.S. 655, 70

S.Ct. 398, 94 L.Ed. 424 (1950), and Free v. Bland, 369

U.S. 663, 82 S.Ct. 1089, 8 L.Ed. 2d 180 (1962), he also

argued that treating the retired pay as property in-

terfered with the Congressional intent and was barred by

Article VI, clause 2, the supremacy clause of the United

States Constitution.

Finding no evidence that Congress intended retired

pay to be divisible, the Alaska Supreme Court applied a

presumption against divisibility. Relying on what it

perceived to be the reasoning of Hisquierdo v. Hisquier-

* The other property, relatively minor in value, was settled as per

agreement between the parties. Respondent was awarded custody of

the parties’ two minor children and Petitioner was ordered to pay

child support to be deducted from the military retired pay awarded

to her.

4

do, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the

court held military retired pay could not be divided in a

divorce.

REASONS FOR GRANTING THE WRIT

The writ should be granted for four reasons.

1. The Decision Below Conflicts With The Deci-

sions Of The Highest Courts Of Other States

And With The Only Reported Decision Of A

Court of Appeals.

The highest courts of the following states have rul-

ed that military retired pay is divisible in a divorce:

Arizona: Czarnecki v. Czarnecki, 123 Ariz. 466,

600 P.2d 1098 (1979).

California: Henn v. Henn, Cal.3d .

P.2d , 161 Cal.R. 502

(January 29, 1980), In re Fithian, 10

Cal. 3d 592, 517 P.2d 449, 111 Cal.R.

369, cert. denied, 419 U.S. 825, 95

S.Ct. 41, 42 L.Ed.2d 48 (1974).

Idaho: Ramsey v. Ramsey, 96 Idaho 672, 535

P.2d 53 (1975). °

New Jersey: Kruger v. Kruger, 73 N.J. 464, 375

A.2d 659 (1977).

New Mexico: LeClert v. LeClert, 80 N.Mex. 253,

453 P.2d 755 (1969).

Texas: Busby v. Busby, 457 S.W. 2d 551 (1970).

Washington: Payne v. Payne, 82 Wash.2d 573,

512 P.2d 736 (1973).

5

The only reported decision of a court of appeals

also holds that military retired pay is divisible.

Bodenhorn v. Bodenhorn, 567 F.2d 629 (Sth Cir.

1978) (applying Canal Zone law).

Intermediate courts of appeals in the following

states have permitted division:

Illinois: Jn re Marriage of Musser, 70 Ill.App.3d

706, 27 Ill.Dec.240, 388 N.E.2d 1289,

(1979).

Louisiana: Swope v. Mitchell, 324 So.2d 461

(La.App.1975).

Michigan: Chisnell v. Chisnell, 82 Mich.App. 699,

267 N.W.2d 155, appeal denied,

Mich. 7 N.W.2d

(1978), cert. denied U.S.

, S.Ct. :

L.Ed. 2d (1979).

The highest courts of the following states have pro-

hibited division of retired pay.

Alaska: Cose v. Cose, supra.

Arkansas: Fenney v. Fenney, 259 Ark. 858, 537

S.W.2d 367 (1976).

Colorado: Ellis v. Ellis, 191 Colo. 317, 552 P.2d

506 (1976).

Since Hisquierdo was issued, a unanimous Supreme

Court of Arizona and the Illinois Court of Appeals have

distinguished it and permitted division of military retired

pay. Czarnecki v. Czarnecki, supra, In re Marriage of

Musser, supra, 388 N.E.2d at 1291-92. In January 1980

a unaminous California Supreme Court did likewise.

Henn v. Henn, supra, 161 Cal.R. at 503-04. The conflict

6

between the case at bar and these cases is square and ir-

reconcilable. Each case held Hisquierdo was not con-

trolling and each permitted division of the military

retired pay. Hisquierdo, if controlling, would have man-

dated the opposite result and, as in ihe case at bar,

prevented division of the retired pay.

This court has denied certiorari in three cases

holding retired pay is divisible. Jn re Fithian, supra,

Starren v. Starren, Cal.3d ‘ P.2d

: Cal. R. (January 17, 1979), (ap-

parently unreported), cert. denied, U.S. ,

S.Ct., L.Ed. , 5 F.L.R. 2938

(week of September 25, 1979), and Chisnell v. Chisnell,

supra. The case at bar is the first case to come before

this Court holding military retired pay is not divisible.

This split among the states is particularly important

because of the regularity with which military personnel

are transferred. The dichotomy encourages forum shop-

ping. Normally such a split is a matter of state law.

However here there is a strong federal interest in

uniform interpretation of the federal military statutes.

2. The Issue Presented Is Important And Recurr-

ing, Affecting Thousands Of Divorces Annually

Across the Country.

As the above decisions reflect, this is an important

federal question, arising almost exclusively in state

courts. With the increasing number of divorces nation-

wide and the large number of retired servicemen, the

issue arises with great frequency in all states.

In most cases, the ex-serviceman’s retired pay is the

largest single asset of the marriage (perhaps equalled

only by the family residence). Moreover, retired pay

>

may provide the most ready source of cash for division

at divorce. For these reasons the issue assumes para-

mount importance in many miliary divorces.

The issue is important even in divorces in which the

serviceman is still on active duty. In some cases the ser-

viceman already has over twenty years on active duty

‘and his pension has already vested. In other cases,

although the pension has not vested, state law permits

division of the unvested retired pay. See e.g. Jn re Mar-

riage of Brown, 15 Cal.3d 838, 544 P.2d 561, 125

Cal.R. 633 (1976).

Because of the thousands of divorces that will con-

tinue to be affected annually, the issue is of sufficient

importance to warrant certiorari.

3. The Issue Presents Important Questions Con-

cerning The Accomodation Of State and

Federal Interests Under The Constitution.

The divisibility of federal retired pay presents im-

portant issues involving divorce law, an area almost en-

tirely regulated by the states, and the distribution of

federal remuneration, an area in which the federal

government and Congress have important concern. Cf.

Hisquierdo v. Hisquierdo, supra, 439 U.S. at 581 et seq.

In that case this Court reaffirmed the rule that state law

remains paramount in this field unless ‘‘Congress has

‘positively required by direct enactment’ that state law

be pre-empted.’’ 439 U.S. at 581.

The Alaska decision, by finding such pre-emption

from Congressional silence, creates a new rule and, in

effect, overrules Hisquierdo and the previous cases on

which the rule was based. See Wetmore v. Markoe, 196

U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904), United

8

States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d

404 (1966). The Alaska decision presages increasing en-

croachment of federal law into this area. If the

presumption is reversed and, as the Alaska court held,

Congress is presumed to pre-empt unless the statute and

history indicate to the contrary, this Court’s rulings

dating back nearly eighty years, plus much modern Con-

gressional legislation will be reversed. Equally impor-

tantly the virtually unbroken policy of federal abstention

in the domestic relations field will be overturned.

4. The Alaska Supreme Court Improperly Applied

Hisquierdo v. Hisquierdo To Bar The Divisibil-

ity Of Military Retired Pay.

Hisquierdo focused on the Railroad Retirement Act

of 1974, particulary 45 U.S.C. §23lm, which provides:

‘notwithstanding any other law of the United

States, or of any State, territory, or the District of

Columbia, no annuity or supplemental annuity shall

be assignable or be subject to any tax or to garnish-

ment, attachment, or other legal process under any

circumstances whatsoever, nor shall the payment

thereof be anticipated ™

This section was held to bar division of railroad

retirement benefits and anticipation of them in the divi-

sion of other marital assets.

Cose recognized there is no equivalent military

retired pay statute when the court stated

“The statutes are silent as to the rights of

dependents of the retiree. . .

“One searches the statutes in vain for any indica-

tion that Congress has ever treated retired pay as

property or has intended retired pay to be divisible

upon divorce.’’ 592 P.2d 1232.

From the absence of a statute and from the absence

of an affirmative congressional intent permitting divi-

sion, the Alaska court implied a Congressional intent to

prohibit division of the retired pay. The authority for

this conclusion was not Hisquierdo itself (th case was

not cited for this proposition), bui a 1973 pre-

Hisquierdo \aw review article by a Sacramento superior

court judge, Goldberg, ‘‘Is Armed Services Retired Pay

Really Community’ Property?’’ 48~-Cal.St.Bar J. 12

(1973).

Judge Goldberg’s article proceeded from the

premise that the supremacy clause will not permit divi-

sion of federal military retirement benefits in a divorce

unless the federal statute specifically allows it. In his ex-

amination of the federal military retired pay statutes,

Judge Goldberg was unable to find any statute address-

ing the property division issue. He thus concluded

retired pay is not divisible. The issue then is the conse-

quence of federal silence.

Hisquierdo directly rejected the Goldberg-Cose ap-

proach, holding retirement pay is divisible unless the

federal statute expressly prohibits division and such divi-

sion is ‘‘sufficiently injurious’’ to the federal program to

require non-recognition of the wife’s asserted claim. 439 .

U.S. at 583.

There is no military retired pay statute similar to 45

U.S.C. §23l1m. The military testamentary annunity pro-

visions cited by the Alaska court (10 U.S.C. §§1434(c),

1447-1455) have nothing to do with the retired pay

itself, which belongs to the serviceman and terminates

on his death. Czarnecki v. Czarnecki, supra. Nor is the

military annunity anti-assignment clause (10 U.S.C.

§1440) similar to 45 U.S.C. §231m. Gorman v. Gorman,

90 Cal.App.3d 454, , 153 Cal.R. 479, 482-83

(1979).

10

The army retired pay statutes under which Respon-

dent received his benefits, 10 U.S.C. §§3911, 3929 and

3991, are silent on the divisibility issue, as is the

legislative history. There was no basis therefore to

presume Congress intended to prohibit divisibility.

The Alaska Supreme Court granted Petitioner’s se-

cond petition for reconsideration (which was itself out

of time) to extend the time to file this petition for cer-

tiorari. That was a most unusual order, possibly unique

since statehood, enabling this Court to take the case and

decide the issue. It is submitted that the Alaska court

also thought the case is sufficient important to warrant

review.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Supreme

Court of Alaska.

Respectfully submitted.

MAX F. GRUENBERG, JR.

GRUENBERG & FRENZ

909 West Ninth Ave., #230

Anchorage, Alaska 99501

Counsel for Petitioner

APPENDIX

la

APPENDIX A

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

JOANNE ERSKINE Cose, Plaintiff

v.

LEROY EDWARD Cose, Defendent.

Case No. 74-5894

Decree

THIS MATTER having come before ti*s court, and Fin-

dings of Fact and Conclusions of Law having been entered,

Now, THEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED:

1. That the bonds of matrimony heretofore and now ex-

isting between the plaintiff and the defendant are hereby

dissolved and held for naught.

2. That the plaintiff shall be awarded one-half (2) of

the military retirement received by the defendant, payable as

follows:

FivE HUNDRED FiFTy DoLLars ($550.00) per month, less

OnE HunprepD Firty Do.tars ($150.00) representing this

Court’s assessment of her contribution to the support of the

two minor children, to commence August 1, 1975. At the

time the minor child Warren, reaches the age of nineteen (19)

years the plaintiff’s assessment for child support shall be

reduced to ONE HUNDRED Do tars ($100.00) per month and

that sum will be deducted from her monthly share of Five

HUNDRED Firty DoLiars ($550.00). When Kevin reaches the

age of nineteen (19) years the plaintiff will be entitled to

receive from the Defendant her full fifty (50%) share of that

monthly retirement income at the rate of Five HUNDRED FiFty

Do Lars ($550.00) per month until her death or the death of

the defendant.

2a

3. That the defendant shall be awarded the sole, care,

custody and control of the two minor children remaining at

home with reasonable and liberal visitation rights in the plain-

tiff.

4. That the plaintiff shall receive $0 toward her costs and

attorney fees incurred in the prosecution of this action.

5. That the division of the remaining property, both real

and personal, acquired during the course of the marriage,

orally entered upon the record herein shall be adopted by this

court as a full and equitable division of said property.

6. That the plaintiff shall have her maiden name of Er-

skine returned to her.

Datep At Anchorage, Alaska this 20th day of October,

1976.

ELEN H. Lewis

Judge of the Superior Court

3a

APPENDIX B

SUPREME COURT OF ALASKA

LEROY EDWARD Cose, Appellant,

JOANNE ERSKINE CosE, Appellee.

JOANNE ERSKINE CosE, Cross-Appellant,

Vv.

LEROY EDWARD Cose, Cross-Appelle.

Nos. 3243, 3244

March 30, 1979

Allen L. Jewell, Hahn, Jewell and Stanfill, Anchorage,

for appellant and cross-appellee.

Timothy M. Lynch, Abbott, Lynch, Farney and Rodey,

Anchorage, for appellee and cross-appellant.

Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR,

BurKE and MATTHEWS, J.J.

Opinion

CONNOR, Justice.

The major issue in this appeal and cross appeal is

whether in divorce proceedings military retirement pay is to

be considered future income to the retiree or property divisi-

ble between the parties. Appellant Leroy Cose challenges the

superior court’s determination that his retirement pay was

property acquired during his marriage to appellee and

therefore divisible under AS09.55.210(6).

Appellant entered the United States Army in June of

1954 and on November 14, 1954 he and appellee Joanne Cose

were married. After a marriage of twenty years, during which

time appellant remained in military service as an officer, ap-

pellee filed a complaint for divorce on September 16,1974. On

July 1, 1975, while the divorce was still pending, appellant

was Officially separated from the Army, having elected to

4a

retire from active service. Thereafter, on October 29, 1976,

the superior court entered a final decree of divorce. At the

time, the court held that appellant’s military retirement pay

of $1,100 per month was divisible property and it awarded ap-

pellee one-half of the monthly payments until her death or

that of appellant.' The court further ordered that their re-

maining property be divided in accordance with an agreement

between them. Appellant was awarded custody of the

couple’s two minor children and appellee’s request for at-

torney’s fees was denied. In a cross-appeal, appellee asserts

that the superior court abused its discretion in denying her at-

torney’s fees.

Appellant Cose receives military retirement benefits pur-

suant to 10 U.S.C. §§3911, 3929, and 3991. Under these

statutes, a regular or reserve commissioned officer in the Ar-

my may request retirement after 20 years of service and upon

such retirement he is entitled to retirement benefits, or in the

words of the statutes, ‘‘retired pay.’’ Benefits are received

monthly and are computed on the basis of the officer’s years

of service and his retired grade pay level. Under 26 U.S.C.

§61(a)(11), they are taxable as ordinary income when receiv-

ed. Benefits terminate on the death of the retiree. The officer

does not contribute to a retirement fund during the course of

his service.

A number of courts have held that military retirement

pay is property divisible upon divorce rather than income to

the recipient. E. g. Ramsey v. Ramsey, 96 Idaho 672, 535

P.2d 53 (1975): In Re Marriage of Fithian, 10 Cal.3d 592, 111

Cal. Rptr. 369 517 P.2d 449 (1974), cert. denied, 419 U.S.

825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974); Payne v. Payne, 82

Wash.2d 573, 512 P.2d 736 (1973); LeClert v. LeClert, 80

' The court also ordered that appellee contribute $150 per month

toward support of the two minor children in appellant’s custody.

These support payments were to be deducted from appellee’s share

of the military retirement pay with a reduction to $100 per month

when the first child reached age 19.

Sa

N.M. 235, 453 P.2d 755 (N.M. 1969); Kruger v. Kruger, 139

N.J.Super. 413, 354 A.2d 340 (1976), modified on appeal, 73

N.J. 464, 375 A.2d 659 (1977); Mora v. Mora, 429 S.W.2d

660 (Tex.Civ.App.1968). Those courts have reasoned that

military retirement pay is neither a payment for present ser-

vices nor a gratuity bestowed upon the employee by a benefi-

cent employer. Rather, the pay constitutes compensation for

past services and is part of the consideration earned by the

serviceman. Thus retirement pay is considered an earned

property right which accrues by reason of and in the course

of the individual’s years of military service. Therefore, to the

extent that such benefits were earned during marriage, they

are treated as property of the marriage and are divisible as

such.

Other courts have rejected this reasoning and have held

that military retirement pay is income to the recipient and not

divisible property. Ellis v. Ellis, 552 P.2d 506 (Colo. 1976);

Fenney v. Fenney, 259 Ark. 858, 537 S.W.2d 367 (1976). The

Ellis court has emphasized that under 42 U.S.C.A. §659 such

benefits cannot be garnished or attached except for alimony

or child support payments; and that generally military retire-

ment pay has no lump sum value, cash surrender value, loan

value, redemption value or value realizable after death.

Appellant contends that the treatment of federal military

retirement pay as divisible property interferes with the pur-

pose of Congress in enacting the military retirement pay

system and that such treatment therefore is prohibited by the

supremacy clause of the United States Constitution.? He bases

this argument in part on the United States Supreme Court’s

decisions in Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398,

? Article VI, clause 2 of the United States Constitution states in

pertinent part:

‘*This Constitution, and the Laws of the Unted States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the Untied States,

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.’’

6a

94 L.Ed. 424 (1950) and Free v. Bland, 369 U.S. 663, 82

S.Ct. 1089, 8 L.Ed.2d 180 (1962).

In Wissner, a state court ordered the named beneficiary

of life insurance proceeds under the National Service Life In-

surance Act (38 U.S.C. §§801 ef seq.) to pay half of the pro-

ceeds, aS community property, to the deceased soldier’s

widow. The Supreme Court held that under the supremacy

clause, the state order was invalid because the specific

language of the Act, when read in light of congressional in-

tent, gave the insured serviceman the absolute right to select

the beneficiary of his choice. Therefore, state community pro-

perty law could not be applied in conflict with this federal

right. Free v. Bland dealt with a similar situation. There, peti-

tioner Free had purchased United States Savings Bonds which

were issued to ‘‘Mr. or Mrs.’’ Free. Treasury regulations pro-

vided that when either co-owner of such bonds died, the sur-

vivor would become sole and absolute owner. Mrs. Free died,

and despite the survivorship provision, the state court held

that the principal beneficiary under her will was entitled to

one-half of the bonds under community property principles.

The Supreme Court reversed, holding that the supremacy

clause invalidated state law which violated Mr. Free’s federal-

ly created right of survivorship in the bonds.

Of major significance is the recent opinion in Hisquierdo

v. Hisquierdo, U.S. , 99 S.Ct. 802, 59 L.Ed. 1

(1979), which relates to benefits under the Railroad Retire-

ment Act. In that case, the Supreme Court of California held

that a railroad worker’s anticipated benefits could be divided

as cOmmunity property, even though under the act the

benefits for an employee’s spouse terminate upon divorce,

and the benefits are not assignable or subject to legal process

except for paying child support or alimony obligations. The

United States Supreme Court reversed, holding that to order

the worker to pay a portion of his benefits would contravene

the intention of Congress. It is the ascertainment of legislative

intent that provides the solution to the problem.

7a

Some clues as to Congressional intent can be gathered

from the statutes and pertinent background materials.

Although the statutes are silent as to rights of dependents of

the retiree, they do include a method by which the serviceman

can use a portion of his retired pay to purchase an annuity

for his widow. 10 U.S.C. §§1447-1455. Under this plan only a

widow, not a surviving ex-wife, is eligible for benefits.

Moreover, when the wife can no longer be a beneficiary

because of divorce, deductions from retired pay cease. 10

U.S.C. §1434(c). In the passage of the law setting up this

plan, provisions which would have protected ex-wives were

stricken from the law before its passage. 118 Cong.Rec.S.

29810-12 (1972). In this respect Congress purposefully exclud-

ed ex-wives from benefitting under the plan. One searches the

statutes in vain for any indication that Congress has ever

treated retired pay as property or has intended retired pay to

be divisible upon divorce.’

In view of the legislative treatment of military retired pay

and the decision in Hisquierdo v. Hisquierdo, supra we hold

that armed forces retired pay is not property which is divisible

upon divorce. Given the federal legislative treatment of

military retired pay and the decision in Hisquierdo, we find it

unnecessary to classify retired pay as income or property

under state law. The federal Supremacy Clause prohibits ap-

plication of state property settlement concepts relating to

divorce proceedings to such military benefits regardless of our

holding on this matter. Thus, we must reverse and remand

for further proceedings consistent with this opinion.

REVERSED and REMANDED.

MATTHEWS, Justice, concurring

I believe that this case is controlled by Hisquierdo v. His-

quierdo, U.S. , 99 S.Ct. 802, 59 L.Ed. 1 (1979),

and therefore agree that the decision of the superior court

* See Goldberg, ‘‘Is Armed Services Retired Pay Really Com-

munity Property?’’ 48 Cal. State Bar J. 12 (1973).

8a

must be reversed. Except for that decision I would have

found no federal pre-emption, in accord with such decisions

as Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), and

In Re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369,

517 P.2d 449 (1974).

As a matter of state law it is clear that retirement pay

must be considered in dividing marital property. AS

09.55.210(6) requires that property acquired during marriage

be divided ‘‘in the manner as may be just’’ and in so deciding

we have consistently required consideration of the financial

circumstances of each party. E. g. Merrill v. Merrill, 368 P.2d

546, 547-48 n. 4 (Alaska 1962); Malone v. Malone, 587 p.2d

1167 (Alaska 1978). Often the major asset of a retired

military family is the husband’s retirement pay. To award

that to the husband and divide the remaining assets between

husband and wife as if the retirement benefit did not exist is

to ignore the husband’s financial circumstances. It is also

plainly unfair to the wife.

9a

APPENDIX C

THE SUPREME COURT OF THE STATE OF ALASKA

File No. 3243/3244

Leroy Epwarp Coss, Appellant and Cross-Appellee,

Vv.

JOANNE ERSKINE Cose, Appellee and Cross-Appellant.

TO: Superior Court of the State of Alaska, Third

Judicial District at Anchorage.

Leroy Edward Cose filed an appeal from an order of the

Superior Court, Third Judicial District at Anchorage, in Civil

Action No. 74-5894 entitled, ‘‘ JOANNE ERSKINE Cose, Plaintiff,

vs. Leroy Epwarp Coser, Defendant.’’ Joanne Erskine Cose

filed a cross-appeal from the same order. The cases were con-

sidered on the briefs submitted. On March 30, 1979, the court

filed its written opinion. Appellees’ and Cross-Appellants’

petition for rehearing and amended petition for rehearing was

denied on June 18, 1979.

It Is ORDERED:

1. The order of the Superior Court, entered October 29,

197€, is reversed and the case is remanded to the Superior

Court for further proceedings consistent with the opinion fil-

ed March 30, 1979.

2. Apppellant/Cross-Appellee shall recover from

Appellee/Cross-Appellant costs and attorney’s fees as shown

below:

Costs and Attorney’s Fees

NE EE $ 50.00

Duplicating Appellant’s Brief ............. 83.80

Duplicating Reply Brief .................. 110.00

ga 200.00

10a

WItTNEss the Honorable Jay A. Rabinowitz, Chief Justice

of the Supreme Court, State of Alaska, this 19th day of

June, 1979.

Clerk of the Supreme Court

Robert D. Bacon

/s/ CONNIE STASKA

By: Connie Staska,

Chief Deputy Clerk

lla

APPENDIX D

THE SUPREME COURT OF THE STATE OF ALASKA

File Nos. 3243/3244

Leroy Epwarp Cos, Appellant and Cross-Appellee

Vv.

JOANNE ERSKINE Cos, Appellee and Cross-Appellant

Order

(filed June 21, 1979)

On consideration of the petition for rehearing, filed

April 3, 1979, and the amended petition for rehearing, filed

April 5, 1979, and the notice of supplemental authority, sub-

mitted May 10, 1979,

It Is ORDERED:

The petition for rehearing is denied.

Entered by direction of the court at Juneau, Alaska, on

June 18, 1979.

Clerk of the Supreme Court

/s/ ROBERT D. BACON

Robert D. Bacon

Justice Boochever dissents in part from this order for the

reasons stated in the attached memorandum.

cc: Justices

Counsel

12a

BoocHEVER, Chief Justice, dissenting in part from denial of

petition for rehearing.

The petition for rehearing requests that we address the

question of whether the court on remand may consider the

right to retirement payments as a factor for determination of

alimony. I do not construe Hisquierdo v. Hisquierdo,

U.S. , 59 L. Ed. 2d 1 (1979), as preventing considera-

tion of the right to vested military retirement payments in

determining whether alimony should be awarded to a spouse,

and, if so, the amount of alimony. I, therefore, believe that

the trial court is not foreclosed from such considerations

upon remand. 42 U.S.C.A. §659(a) (Supp. 1979) expressly

provides that moneys due from the United States to any in-

dividual including members of the armed services are subject

to legal process for the enforcement of payments for alimony.

The petition for rehearing also refers to the fact that our

opinion does not deal with the matter of attorney’s fees

raised in the cross-appeal. I would expressly indicate that

upon remand, the question of attorney’s fees should again be

considered by the trial court.

13a

APPENDIX E

THE SUPREME COURT OF THE STATE OF ALASKA

File No. 3243/3244

LEROY EDWARD Cose, Appellant and Cross-Appellee,

V<

JOANNE ERSKINE CosE, Appellee and Cross-Appellant.

Order

Before: Rabinowitz, Chief Justice, Connor Boochever

and Matthews, Justices. [Burke, Justice, not participating.]

On consideration of the request for reconsideration by

the full court, filed October 24, 1979, and the request for oral

argument, filed October 8, 1979,

It Is ORDERED:

1. The request for full court reconsideration is granted.

The clerk is directed to file the untimely second petition for

reconsideration dated October 5, 1979.

2. The second petition for reconsideration is granted.

3. The request for oral argument on reconsideration is

denied.

4. On reconsideration, the decision of the Superior

Court is reversed and the case is remanded for the reasons

stated in the opinion filed March 30, 1979, 592 P.2d 1230.

5. The clerk shall issue a supplemental mandate on the

next business day in accordance with Appellate Rule 28.

l4a

Entered by direction of the court at Juneau, Alaska, on

December 19, 1979.

Clerk of the Supreme Court

/s/ ROBERT D. BACON

Robert D. Bacon

Distribution:

Justices

Counsel

Linda Reser (Superior Ct. No. 74-5894 CIV)

15a

APPENDIX F

THE SUPREME COURT OF THE STATE OF ALASKA

File No. 3243/3244

LEROY EDWARD Cos, Appellant and Cross-Appellee,

Ve

JOANNE ERSKINE CosE, Appellee and Cross-Appellant.

SUPPLEMENTAL MANDATE

TO: The Superior Court of the State of Alaska, Third

Judicial District at Anchorage.

Leroy Edward Cose filed an appeal from an order of the

Superior Court, Third Judicial District at Anchorage, in Civil

Action No. 74-5894 entitled, ‘‘ JOANNE ERSKINE Cose, Plaintiff,

vs. LEROY EDWARD Cosg, Defendant.’’ Joanne Erskine Cose

filed a cross-appeal from the same order. The cases were con-

sidered on the briefs submitted. On March 30, 1979, the court

filed its written opinion. Appellee and Cross-Appellant’s peti-

tion for rehearing and amended petition for rehearing were

denied on June 18, 1979. Appellee and Cross-Appellant was

granted leave to file a second petition for rehearing on

December 19, 1979, the second petition for rehearing was

granted, and the written opinion of March 30, 1979, was reaf-

firmed on December 19, 1979.

It Is ORDERED:

The order of the Superior Court, entered October 29,

1976, is reversed and the case is remanded to the Superior

Court for further proceedings consistent with the opinion fil-

ed March 30, 1979.

WitngEss the Honorable Jay A.Rabinowitz, Chief Justice

of the Supreme Court, State of Alaska, this 20th day of

December, 1979.

Clerk of the Supreme Court

/s/ ROBERT D. BACON

Robert D. Bacon

l6a

APPENDIX G

ALASKA SUPREME COURT

Activity Report—December, 1979

During December, 1979, the Alaska Supreme Court

determined the matters listed below:

* * *

VI. Petitions For Rehearing

3243/3244 Cose v. Cose. Motion to file untimely petition

for rehearing granted, petition granted, and opinion (592

P.2d 1230) reaffirmed December 19. Procedure was requested

by new counsel for the appellee to enable filing of timely peti-

tion for certiorari in the United States Supreme Court.

* * *

17a

APPENDIX H

10 U.S.C. §3911 mads in relevant part:

**§3911. Twenty years or more: regular or reserve commis-

sioned officers

**The Secretary of the Army may, upon the officer’s request,

retire a regular or reserve commissioned officer of the Army

who has at least 20 years of service computed under section

3926 of this title, at least 10 years of which have been active

service as a commissioned officer.’’

10 U.S.C. §3928 reads in relevant part:

**§3939. Computation of retired pay: law applicable.

*‘A member of the Army retired under this chapter is entitled

to retired pay computed under chapter 371 of this title.’’

10 §3991

Chapter 371.—Computation of retired pay.

The monthly retired pay of a person entitled thereto

under this subtitle is computed according to the following

table. For each case covered by a section of this title named

in the column headed ‘‘For sections’’, retired pay is com-

puted by taking, in order, the steps prescribed opposite it in

columns 1, 2, 3, and 4, as modified by the applicable foot-

notes. However, if a person would otherwise be entitled to

retired pay computed under more than one pay formula of

this table or the table in section 1401 of this title, he is entitl-

ed to be paid under the applicable formula that is most

favorable to him. Section references below are to sections of

this title.

18a

For Column 1 Column 2 Column 3 Column 4

For- sec-

mula tions Take Multiply by Add Subtract

A 3883 | Monthly basic] 24% of years of Amount neces-| Excess over 75%

3884 pay’ of mem-| service credited] sary to increase} of pay upon

3885 ber’s retired} to him under! product of col-| which compu-

3886 grade. ' section 3888 or} umns | and 2] tation is based.

3913 3927(b). which-| to 50% of pay

3915 ever is appli-| upon which

3916 cable.‘ computation is

3919 based.

3921

3922

3923

B 3911 | Monthly basic] 2%% of years of Excess over 75%

3918 pay’? of mem-| service credited of pay upon

3920 ber’s retired} to him under which compu-

3924 grade.' section 1405 of tation is based.

this title.‘

[ 3914 | Monthly basic] 2¥%.% of years of | 10% of product | Excess over 75%

pay’ to which! service credited| of columns 1 of pay upon

member was| to him under| and 2 for ex-| which compu-

entitled on day} section 3925.‘ traordinary| tation is based.

before he re- heroism in line

tired. of duty.’

D 3917 | Monthly basic | 242% of years of Excess over 75%

pay’ to which] _ service credited of pay upon

member was] to him under which compu-

entitled on day| section 3925.‘ tation is based.

before he re-

tired.

' For the purposes of this section, determine member’s retired

grade as if section 3962(c) did not apply and, for an officer who

has served as Chief of Staff, compute at the highest rates of basic

pay applicable to him while he served in that office.

? Compute at rates applicable on date of retirement.

* Compute at rates applicable on date of retirement, or if the

member has served as sergeant major of the Army, compute at the

highest basic pay applicable to him while he so served, if such

basic pay is greater.

* Before applying percentage factor, credit a part of a year that is

six months or more as a whole year, and disregard a part of a

year that is less than six months.

* The Secretary of the Army’s determination as to extraordinary

heroism is conclusive for all purposes.