Petition — Miller v. Miller

80-291 | ‘Frre>

} quga2 1980

No. , mR. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

RONALD C. MILLER,

Petitioner.

v.

JANET C. MILLER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

ROBERT J. EMMONS, Esq.

608 Strain Building

Great Falls, Montana 59401

(406) 761-7150

THOMAS E. BOLAND, Esq.

600 Central Plaza

Suite 312 ;

Great Falls, Montana 59401

(406) 453-3369

Counsel for Petitioner

Washington, 0.C. © THIEL PRESS «© (202) 638-4521

QUESTIONS PRESENTED FOR REVIEW

The over-all question presented is:

MAY STATE COURTS IN DIVORCE ACTIONS

TREAT OR REGARD MILITARY PAY BENE-

FITS OF ONE SPOUSE AS ‘‘PROPERTY"’ OF

THAT SPOUSE SO AS TO BE THE SUBJECT OF

A DIVISION OF MARITAL ASSETS OF THE

PARTIES IN AN ACTION TO DISSOLVE THE

MARRIAGE?

_ Embraced within the general question are a number of

subsidiary questions:

.

HAS THE UNITED STATES PREEMPTED

THE FIELD AS TO THE CLASSIFICATION

OF SUCH BENEFITS BY VIRTUE OF

LEGISLATION OF THE CONGRESS OF THE

UNITED STATES, SO THAT THE STATES

ARE PRECLUDED BY VIRTUE OF ARTICLE

VI, PARAGRAH 2, FROM TREATING SUCH

BENEFITS AS ‘‘PROPERTY?"’

UNDER APPLICABLE FEDERAL LAWS,

MAY A TRIAL COURT PROVIDE THAT IN

THE EVENT OF THE DEATH OF THE

“CIVILIAN” EX-SPOUSE BEFORE THE

“MILITARY” EX-SPOUSE, THE SURVIVING

“MILITARY” EX-SPOUSE SHALL REMAIN

OBLIGATED TO PAY ON SAID BENEFITS

TO THE ESTATE OR HEIRS OF THE

DECEASED EX-SPOUSE?

ARE THE TAX CONSEQUENCES OF SUCH A

DECISION, DIVIDING SUCH BENEFITS AS

“PROPERTY” SUCH AS TO RESULT IN A

DENIAL OF EQUAL PROTECTION OF THE

LAWS?

‘hie. AK

TABLE OF CONTENTS

ITEM Page

ee ey Rs ee iii- Vv

PETITION FOR WRIT OF CERTORARI........

onl fg i 8 | SEAR COs ih, re

pg” BICEPS SSB SRRR SRR DRG LAS a

QUESTION PRESENTED FOR REVIEW........

APPLICABLE CONSTITUTIONAL AND

STATUTORY PROVISIONS...............

1. Constitutional Provisions.............

DSS oc wos OU Fd Wii's dio o's b oe bie ee

STATEMENT OF THE CASE............006.

1. Where Issues Raised................

2. Statement of the Facts...............

ARGU iss 5 CES els eb ed ER ie wien

1. Reasons for the Granting of the Petition.

a. Conflicting Opinions...............

1) Federal Authorities..............

2) Community Property States.......

3) Non-Community Property States....

b. Change in Nature of both Military and

Domestic Status of men and Women. . 11

c. Tax Consequences............006. 11

ee ee ie 12

CONCLUSION AND RELIEF REQUESTED...... 16

APPENDIX A

Findings of Fact, Conclusions of Law and

Judgment of Trial Court, October 31, 1978....... la

FE: hn i'n GE ei ee wi we enn. Baie Was oe 14a

Amended Findings of Fact, Conclusions of

Law and Judgment of Trial Court, November

29, 1978

EWI Rig Kick ok coc OU CUO bees o's Love 16a

Opinion of the Montana Supreme Court,

March 27, 1980

Wn NY

—

COON NNN GO GGA hf }

APPENDIX D....... tach til’ g a. Be 4 den Wie: ela weal 23a

Order Denying Petition for Rehearing, and

Remittitur, May 14, 1980

APIS WD eWa biaeWs b's ans's 40s awehe eae 25a

Rules 34 and 35, Montana Rules of Appellate

Civil Procedure (,

APP RIO Cif cc tie oie 0 Pe ah o'nlas Cees oa 26a

Applicable Federal Statutes

PPR. 65 oh 4 4 ein Miah Daleree he CPt Abe 4la

Petitioner’s Proposed Findings of Fact, Conclusions

of Law and Judgment (Applicable

Excerpts)

APPR SEs be Fie AE aa As 0 c's dle w ees oNR 43a

Petitioner's Post Trial Motions (Applicable

Excerpts)

PTET, SGA vn Riko 6 oS aoa Cb Cee MN RE Blokes 53a

Specification of Errors in Petitioner's Brief

to the Montana Supreme Court

PET a 6 Ro ik od 0 aIew dste oO ee ba Pde 54a

Excerpts from ‘‘Army Echoes,'’ May/June, 1980

iii

INDEX OF AUTHORITIES

CASES: Page

Cook v. Cook, 495 P. 2d 591 (Mont. 1972).......... 10

Cose v. Cose, 592 P. 2d 1230 (Alaska, 1979)..... 11,15

Ellis v. Ellis, 538 P. 2d 1347 (Colo. App., 1975),

aff. 522 P. 2d 506 (Colo., 1976)...........00% 10

Ex Parte Johnson, 591 S.W. 2d 453 (Tex., 1980)..... 10

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

802, 59 L. Ed. 2d 1(1979)...... 8, 9, 10, 13-14, 15,

Hostinsky v. United States, 292 F, 2d 508

IEE ORG SEES = ROR aa 10

In re Marriage of Fithian, 111 Cal. Rep. 369

SU sci bins co Shain diary GG be ws 10, 13

In re Marriage of Nizenkoff, 135 Cal. Rep. 189

oe ee a ee etnies i W's. We )

Kruger v. Kruger, 373 A. 2d 659 (N.J., 1977).... 11,13

Lambros v. C.I.R., 459 F. 2d 69 (6th Cir.,1972...... 12

Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840,

oo e's aces ave cans 8

Milhan v. Milhan, 158 Cal. Rep. 523

ST Me Wal seb bisdacecscsedeceeeee fr)

Savage v. Savage, 374 N.E. 2d 536

EI Sigs 3 odd gid 's'g 0 b.a'e'ei a oh. 10

United States v. Smith, 393 F. 2d 318 ,

be es be uwe wk 8

United States v. Williams, 594 F. 2d 314

CSE ARAL a 8

United States v. Williams, 370 A. 2d 1134

as BUN Ean bs be kbd pig hehe G84 6 0.0 0 0 00 10

Watson v. Watson, 424 F. Supp. 866

Leica bac e 8-9

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

Dae UTI aye A cee tn ck ndbeanias 14

Wright v. C.1.R., 543 F. 2d 593 (7th Cir., 1976)...... 12

7+

:

iv.

Page

CONSTITUTION FOR THE UNITED STATES:

Ee aa ea ct cvdadbetvetes 15

Astions Vi, PRPGBTOOR 8... ccc ccccccaccvcvncs 4

SE Eo 0's 0 hoa ddan bse nabee teens 4

STATUTES:

United States Code:

EE, RR OE... 's 0:4 « on.0b aaa wee 4,6

SG ace os oo pedewee eae 4

UI IED Ls cia ona sé cndged epee 4

Sj ili, ~ "CS wee rae 4

Oe iat nay we ee 4,14

i NEE nn’ aids s nc'c sins wee 4,6, 13,14

I RO pS a wi ec sndsedeveed come 4

I PN Se eC Cues 3 iat cuales 4, 12

ee eS cde 4, 12

Sy a I COD ik vos c'd's oc ede odb ewan 2

Se Sik ove cha den oo eee 9

Oe aes I oo ks Ka ceeds Makai eae 4, 15

es ND 2 ns ohn oc oe Dhek Bowed 4,15

Montana Code Annotated, 1979:

SAREE GAO Site cate tear oe Fn yor ape 11

Sa 5 is '0oa base es aap ate as 11

RULES OF THE UNITED STATES SUPREME COURT

ee MN os KS ce 2

Page “

MONTANA RULES OF APPELLATE CIVIL PROCEDURE: ;

Ps a iielyie FGe Ra Care's 6 Ma On ac taie ae ame

ST REET ge Wise ea 6 Xie detain We ha Oeatare ae che

i SECONDARY AUTHORITY: ) 4

'¢ ‘Army Echoes” May/June, 1980..............9 i

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“Ne

IN THE

° Supreme Court of the United States

October Terms, 1980

ra

»

‘ ; No.——

ad

Ronald C. Miller, Petitioner, ’

—

*

Janet C. Miller, Respondent.

® PETITION FOR A WRIT OF CERTIORARI TO THE

f SUPREME COURT OF MONTANA

| sai

COMES NOW, RONALD C. MILLER, and petitions

. the Honorable, the Supreme Court of the United States,

for a Writ of Certiorari to review the judgment of the

® Supreme Court of Montena in the cause of Ronald C.

Miller vs. Janet C. Miller, Cause Nos. 14636 and 14726,

upon the Issues hereinafter set forth.

] ’

-

-

2

OPINION BELOW

The Findings of Fact, Conclusions of Law, and

' Judgment of the District Court of the Eighth Judicial

District of the State of Montana, in and for the County

of Cascade, were made and entered on or about the

31st day of October, 1978, and are not reported. A

copy thereof is printed in Appendix A hereto, starting

at Page 1a. Thereafter the Trail Court, on or about

November 29, 1978, made and entered Amended Find-

ings of Fact, Conclusions of Law, and Judgment.

which are not reported. A copy thereof is printed in

Appendix B hereto, starting at Page 12a. Thereafter

timely appeal was taken to the Supreme Court of the

State of Montana. The Opinion of the Montana

Supreme Court was made and filec Aarch 27, 1980.

This Opinion is not yet officially reported, but is found

at 609 P. 2d 1185 (Mont. 1980). A copy thereof is

printed in Appendix C hereto, starting at Page 14a.

Timely Motion for Rehearing was made pursuant to

Rules 34 and 35, Montana Rules of Appellate Civil Pro-

cedure (printed as Appendix E hereto, starting at Page

23a. The Petition for Rehearing was denied, and Remit-

titur issued on May 14, 1980. A copy of the Order Deny-

ing Petition for Rehearing and Remittitur is printed as

Appendix D hereto, starting at Page 21a.

JURISDICTION

The Order Denying Petition for Rehearing in the

Montana Supreme Court of the Opinion entered March

27, 1980, which is the Opinion sought to be reviewed.

was entered on May 14, 1980, whereupon said Opinion

became final. This Petition will be filed within 90 days

of that date. Jurisdiction of this Court is invoked under

28 USC § 1257 (3), and, further, under Rule 19 (a) (1) of

3

the Rules of the United States Supreme Court, the Mont-

ana Supreme Court having decided a federal question

of substance not theretofore determined by the

Supreme Court of the United States, or has decided

such question is a way not in accord with the ap-

plicable decisions of this Court.

QUESTIONS PRESENTED FOR REVIEW

The over-all question presented is:

MAY STATE COURTS IN DIVORCE ACTIONS

TREAT OR REGARD MILITARY PAY BENE-

FITS OF ONE SPOUSE AS ‘PROPERTY’ OF

THAT SPOUSE SO AS TO BE THE SUBJECT OF

A DIVISION OF MARITAL ASSETS OF THE

PARTIES IN AN ACTION TO DISSOLVE THE

MARRIAGE? |

Embraced within the general question are a number of

subsidiary questions:

1.

HAS THE UNITED STATES PREEMPTED

THE FIELD AS TO THE CLASSIFICATION

OF SUCH BENEFITS BY VIRTUE OF

LEGISLATION OF THE CONGRESS OF THE

UNITED STATES, SO THAT THE STATES

ARE PRECLUDED BY VIRTUE OF ARTICLE

VI, PARAGRAH 2, FROM TREATING SUCH

BENEFITS. AS *“*PROPERTY?”’

UNDER APPLICABLE FEDERAL LAWS,

MAY A TRIAL COURT PROVIDE THAT IN

THE EVENT OF THE DEATH OF THE

“CIVILIAN” EX-SPOUSE BEFORE THE

“MILITARY” EX-SPOUSE, THE SURVIVING

“MILITARY” EX-SPOUSE SHALL REMAIN

OBLIGATED TO PAY ON SAID BENEFITS

TO THE ESTATE OR HEIRS OF THE

4

DECEASED EX-SPOUSE?

3. ARE THE TAX CONSEQUENCES OF SUCH A

DECISION, DIVIDING SUCH BENEFITS AS

‘““PROPERTY’’ SUCH AS TO RESULT IN.A

DENIAL OF EQUAL PROTECTION OF THE

LAWS?

APPLICABLE CONSTITUTIONAL

AND STATUTORY PROVISIONS

1. Constitutional Provisions:

Constitution for the United States:

“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 of

every state shall be bound thereby...’

(Articcle VI, Paragraph 2).

“*1....No state shall... deny to any person within

its jurisdiction the equal protection of the laws.”

(Amendment Fourteen).

2. Statutes:

The Statutes here cited are quoted in Appendix F,

printed hereafter, starting at Page 24a.

10 U.S.C. §1401

10 U.S.C. §1402

10 U.S.C. §1431

10 U.S.C. §1434

10 U.S.C. §1440

10 U.S.C. §1447

10 U.S.C. §1448

26 U.S.C. §61

26 U.S.C. §71

42 U.S.C. §659

42 U.S.C. §662

ro rem e Ao oD

5

STATEMENT OF THE CASE

1. Where Issues Raised:

This action arose on a Petition for Dissolution of

Marriage, and for Division of Property. The pleadings

in the action did not detail the property. At the several

hearings on the matter, the question was presented as

to the status of Petitioner’s Military Retirement

Benefits. Petitioner at that time asserted that these

Benefits were not property and could not be con-

sidered as such. The issues was raised in the Trial

Court by Petitioner as follows:

a. By his Proposed Findings of Fact, Conclu-

sions of Law, and Judgment dated September

25, 1978. Pertinent portions of the Proposed

Findings are printed herewith as Appendix

G, starting at Page 41a.

b. _ By the Briefs of Counsel in the Trial Court.

c. By Post Trial Motions, dated November 13,

1978. Pertinent portions of these Motions are

_ printed herewith as Appendix H, starting at

Page 43a.

And on Appeal by Specification of Error and Argu-

ment thereon in Petitioner’s Brief to the Supreme Court

of the State of Montana, and a copy of the pertinent

Specifications are printed herewith as Appendix I,

starting at Page 53a.

2. Statement of the Facts:

This Petition arises out of the Petitioner’s Petition

in the Trial Court for a dissolution of marriage and for

other relief. Issue was joined, and a dissolution of

marriage was ordered, from which neither party took

any appeal. By stipulation, hearing was deferred on

the questions of maintenance of Mrs. Miller, property

division, and attorney fees. Hearing was had on these

issues in September, 1978, and on October 31, 1978, a

judgment was entered, which included a division of Mr.

Miller’s Military Retirement Benefits, giving Mrs.

Miller, as her “‘property’’ 38.5% thereof, the Court

declaring that the award was “‘of a property interest to

which Defendant (Mrs. Miller) is entitled, and not as

spousal maintenance.” The Conclusion of Law in ques-

tion, October 31, 1978 Judgment (Appendix A) con-

tinued:

‘*.. . However, the Court concluded that upon

the death of Plaintiff (Mr. Miller), the

availability of the pension, insofar as Defend-

ant is concerned, will terminate and Plain-

tiff's obligation to pay 38.5 percent of his

military pension to Defendant will terminate

at that time. In the event of Defendant's death

before Plaintiff's death, the Plaintiff shall re-

main obligated to pay 38.5 percent to Defen-

dant’s estate or her heirs. (Conclusion No. 4;

emphasis added).

This present Petition arises from the division so

made of Mr. Miller’s Military Benefits.

The parties were married May 8, 1959, at a time

when Mr. Miller was in the United States Air Force.

Prior to his retirement in 1974, Mr. Miller had reached

the rank of Lieutenant Colonel. Upon retirement he

received benefits under 10 U.S.C. §1401 et seq., and he

participated in the Survivor Benefit Plan of 10 U.S.C.

§1447 et seq. Of the two children of the marriage, the

daughter had reached 18, and the son was placed, by

agreement, with Mr. Miller. Mr. Miller was at the time

45, Mrs. Miller, 42. Both had substantial education,

=U

7

with Mrs. Miller being a qualified teacher who had

returned to school to study sociology. Mr. Miller was

a career pilot, flying some 100 reconnaissance mis-

sions in North Vietnam, and receiving numerous

decorations. After his retirerfient, he was employed by

a local bank, with a then current gross salary of

$12,000.00. He has remarried since the dissolution

decree became final.

The Transcript of the Evidence in the Trial Court

will be filed herewith. At page 552 thereof, the Court,

in answer to Mr. Miller's arguments on the issue of

Federal Preemption, again iterated that he regarded

the benefits as a ‘‘property interest,’’ and, at page 558

of the Transcript said: . :

‘‘Well, I was going to say here that I ruled on

this thing as being a marital asset, and, of

course, 4s a property interest, but I am well

aware that there will probably be a tax conse-

quence.”

However, neither the Trial Court, nor the Montana

Supreme Court, gave any practical consideration to the

tax questions.

ARGUMENT

The question may be considered together, we

believe. We submit that a State Court has no power or

authority to award any portion of a Military Benefit

earned by one spouse to the other spouse as a ‘‘proper-

ty. interest.”’

1. Reasons for the Granting of the Petition for

Certiorari:

a. Conflicting Opinions:

1) Federal Authorities:

For reasons to be discussed hereafter, we believe

Hisquierdo vs. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802.

59 L. Ed. 2d 1 (1979), is controlling. However, we

believe that the conflict in the decisions, without

regard to Hisquierdo, is such that the time is ripe for

the Supreme Court to resolve the question.

If the matter is to be controlled by the Federal

decisions as to the nature of a military ‘‘pension,’’ it is

clear that such military benefits are not ‘‘earned pro-

perty rights" at all, but an emolument of office, derived

from an act of Congress, and is in part based upon the

military member's obligation to remain subject to

recall to the service.

Watson vs. Watson, 424 F. Supp. 866, 868-869

(D.C.N.C. 1976). Justice Brandeis in Lynch vs. United

States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434, 1439

(1934) said:

‘**... Pensions ... are gratuities. They involve

no agreement of the parties; and the grant of

them creates no vested right. The benefits

conferred by gratuities may be redistributed

or withdrawn at any time in the discretion of

Congress.”

We believe that all of the federal cases are to the same

effect: a military pension does not vest; it is not proper-

ty; it is wages.

United States vs. Williams, 594 F. 2d 314 (2d Cir..

1979). :

Thus we have a conflict between the States and

the Federal Government and, as held in United States

vs. Smith, 393 F. 2d 318 (5th Cir. 1968), when the State

Court says that half of retirement pay is to go to the

wife, there is a conflict between the Federal and State

laws, the United States is not bound by the State ruling.

The Federal laws, there the anti-assignment provisions

.9

of 37 U.S.C., §701, preempted the field.

The conflict, then, between States which allow a

‘‘property division’’ here, and the apparently

unanimous Federal cases which say that retirement

benefits are not property.

The Montana Supreme Court did not seem to feel

that the fact that Mr. Miller could be recalled to active

service should be given much weight, in spite of the rul-

ing of Watson: vs. Watson, 424 F. Supp. 866 (D.C.N.C.

1976), and Hostinsky vs. United States, 292 F. 2d 508

(Ct. Cl. 1961). But such recall which the Montana Court

thought could only result from ‘‘an extraordinary chain

of events,’’ is becoming quite probable. There is attach-

ed as Appendix J, Page 54a, an excerpt from ‘‘Army

Echoes,”’ for May/June, 1980, indicating a test program

for recall of army retirees. Increased concern over

world tensions has led to revival of registration. The

“extraordinary chain’’ may well be tightening.

Moreover, the fact remains, that Mr. Miller receives

his benefits, in part, because he remains liable to

recall.

2. Community Property States:

While, before the Hisquierdo decision, community

property states generally felt they could treat the

‘“‘benefits’’ as a property interest, some, at least, are

now taking a second look. A California Court of Ap-

peals decided Milhan v. Milhan, 158 Cal. Reptr. 523

(Cal. App. 1979), looking at the Social Security Act pro-

visions to which Mr. Miller directed the Montana

Court’s attention, that Federal law did preempt the

field. The case is now before the California Supreme

Court, and we are informed that it was to be argued on

June 12, 1980.

The correct view, even in community property

10

states, is that stated in In re Marriage of Nizenkoff, 135

Cal. Rep. 189, 190 (Cal. App. 1976), in which the Court,

citing other California authority, including In re Mar-

riage of Fithian, 111 Cal. Rep. 369 (Cal. 1974), said:

“It is now well settled in this state that in

order to qualify as a divisible community

asset, an interest must be a contractual right

or property interest. A pension right becomes

a property interest when the employer cannot

unilaterally repudiate the right.”’

But, by that definition, military retirement benefits are

clearly not ‘“‘property interests.”’

Texas, te». appears to be having second thoughts.

Ex Parte Johnson, 591 S.W. 2d 453, 456 (Tex.

1980), where the Texas Supreme Court held that His-

quierdo governed because, as with Railroad Retire-

ment, Congress could at any time eliminate veterans’

disability benefits.

However, it is generally true that community pro-

perty states have treated retirement benefits as ‘‘pro-

perty.””

3) Non-Community Property States:

Here the cases are in conflict, although we believe

that the majority follow the Federal rule. Montana is

not a community property state.

Cook vs. Cook, 495 P 2d 591, 159 Mont. 98

(1972).

United States vs. Williams, 370 A, 2d 1134, 1136-1137

(Md. App. 1977) (and cases cited),

Savage vs, Savage, 374 N.E. 2d 536, 538-539 (Ind. App,

1978).

Ellis vs. Ellis, 538 P. 2d 1347 (Colo. App, 1978), aff, 552

P, 2d 506 (Colo. 1976).

tl

ea

‘i ~

11

Cose vs. Cose, 592 P. 2d 1230 (Alaska, 1979), petition

for cert. pending.

We submit that all of the considerations which led

this Honorable Court to assume jurisdiction and to

decide Hisquierdo apply here.

b. Change in Nature of both Military and Domestic

Status of Men and Women:

Attitudes toward the entire realm of alimony,

property rights, and—importantly—military status of

both men and women are rapidly changing. No longer

is alimony (or a share in marital property) a right mere-

ly to be asserted by the wife against the husband.

Under Montana's statutes, for example, given the pro-

per showing, maintenance may be granted “either

spouse.”

Section 40-4-203, M.C.A., 1979.

And the property righis of both spouses must be deter-

mined.

Section 40-4-202, M.C.A., 1979.

Gone, too, are the days when women in the

military consisted of nurses and a few members of the

Auxiliary Corps of the various services. Now women

officers are being produced by the military service

must include both men and women. The determination

of the status of retirement benefits is of interest to both

- men and women as direct recipients of the benefits.

With the fact that women out-live men, women should

be even more concerned than their masculine military

counterparts with the effect of the Montana decision,

which would result in a woman retiree perhaps paying

her ex (and now deceased) husband's second wife and

children totally unrelated to her.

c. Tax Consequences:

In another of Mrs. Miller's cases, also relied upon

by the Montana Supreme Court in another aspect.

Kruger vs. Kruger, 373 A. 2d 659 (N.J. 1977), held that

i.

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12

the Trial Court must consider the tax aspects of the

property division. While this matter was presented to

the Montana Supreme Court herein, that Court simply

ignored the question; the Trial Court was aware of it,

but also did not deal with it. ,

At the heart of this question is the status of the

award to Mrs. Miller. Is it income to her under 26

U.S.C. §61, or does it fall under the property settlement

provisions of 26 U.S.C. §71? If the latter, it is not deduc-

tible by the husband nor included as income to the

wife.

Lambros vs. C.I.R., 459 F. 2d 69, 71-71 (6th Cir.

1972).

cf. Wright vs. C.I.R., 543 F. 2d 593, 597 (7th Cir.

1976). So, the husband may deduct payments only if

they are by way of maintenance, and not if they are for

property settlement, and here the Court made it very

clear the distribution was a division of property.

Mrs. Miller, then, receives ‘‘property.’’ In the or-

dinary course of events had Mrs. Miller received real

or personal property upon which taxes must be paid,

she would be obligated to pay her share of such taxes.

But here, the entire burden falls upon Mr. Miller. The

tax is withheld at the source, and, under the Federal

cases already cited, the Federal Courts will not

recognize his right to recover back any of that

withholding. There has been a denial of equal protec-

tion of the laws.

2. On the Law:

We believe the cases already cited indicate that

the Federal authorities have preempted the field. The

statutory aspects of the case will be mentioned shortly.

But we must mention one aspect of the case here that is

| different from the other cases, and in which even the

13

community property states recognize that the field is

preempted.

In the present case, Mr. Miller must continue the

payments, should he survive his ex-wife, to her estate

and her heirs. Thus she is placed in a position in which

she can arrange for payments to total strangers.

Although under the provisions of 10 U.S.C., §1447 et

seq., the benefits in any event would cease upon Mrs.

Miller's death, the Montana court merely said that it

could find no basis to distinguish the wife’s interests

‘from other marital assets.’’ The Court cited Kruger

vs. Kruger, 373 A. 2d 659 (N.J., 1977), which did not

even consider Sections 1401 or 1447 and following.

However, one of the major cases upon which Mrs.

Miller relied in the Montana courts, In re Marriage of

Fithian, 111 Cal. Rep. 369 (Cal. 1974), does, and says:

that there was no conflict between California and

Federal law because ‘‘the pension terminates with the

death of the husband, and wife's share also terminates

if she predeceases the husband.”’ (111 Cal. Rep. at 374;

emphasis added).

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

802, 59 L. Ed. 2d1 (1979), not only sets forth the reasons

why certiorari should be granted here, it also

establishes that the Montana Supreme Court should be

reversed.

While there the Railroad Retirement Act was at

issue, the California Courts therein had based their

decisions upon State cases involving military pensions,

showing that State’s awareness of the similarity of the

laws and questions involved. Hisquierdo is based upon

principles of law which had already been applied by

the Federal courts to military pensions and to ‘‘non-

vested"’ rights in general. In addition to the cases

14

already cited, a controlling decision is Wissner vs.

Wissner, 338 U.S. 655, 70 S. Ct. 398, 94 L. Ed. 424

(1950).

The retirement benefits under the Railroad Retire-

ment Act are of the same order as those here involved;

as said in Hisquierdo: ‘‘Like Social Security and unlike

most private pension plans, railroad retirement

benefits are not contractual. Congress may alter, and

even eliminate them at any time.”

This is precisely true of military pensions. There is

also an interesting question: what would happen

should Mr. Miller be recalled? During his new tour of

duty, the retirement benefits would cease. What, then,

of Mrs. Miller's ‘‘property?’’ It would have ceased to

exist.

In Hisquierdo the Court referred to the anti-

garnishment‘and assignment provisions of the Railroad

Retirement Act. 10 U.S.C. §1440 also militates against

levies, garnishments, attachments and the like. 10

U.S.C. §1450 is to the same effect. The Hisquierdo

Court then referred to the Social Security Act, and this

Act should dispose of the whole question of Congres-

sional intent. The military retirement statutes are,

essentially, silent on the question of the rights of a

divorced spouse. As pointed out in Cose vs. Cose, 592 P.

2d 1230, 1231-1232 (Alaska, 1979), so.ne indications of

Congressional intent can be gathered from the fact that

under 10 U.S.C, §1447 et seq., only a widow, not an ex-

spouse is eligible, and when the bill was before Con-

gress, provisions which would have protected the ex-

spouse were stricken.

At 59 L. Ed. 2d 11, the Hisquierdo Court points out

that the Railroad Retirement Act has ‘‘federal over-

tones.’ In view of the Constitutional Provisions that

15

Congress has the power to raise and support armies

and co make rules for the government and regulations

thereof (Article I, Section 8), certainly military retire-

ment has ‘federal overtones."’ Further, all the money

for such benefits is paid by Federal tax revenues.

In the Montana Courts we called attention to pro-

visions of the Social Security Act, also relied upon in

Hisquierdo. The Alaska Court in Cose, also relied upon

the same provisions. So 42 U.S.C. §659 would permit

garnishment for an obligation by a military retiree to

pay child support or alimony, but alimony is expressly

limited:

‘*.,. Such term does not include any payment

or transfer of property or its value by an in-

dividual to his spouse or former spouse in

compliance with any community property set-

tlement, equitable division of property, or

other division of property between spouses or

former spouses."

42 U.S.C., §662 (c).

Thus, there is a clear Congressional statement that

‘property divisions’’ are excluded. 42 U.S.C., §662 (f)

(2) defines ‘‘remuneration for employment’ as in-

cluding any pension or retirement plan created by

“any ... system or fund established by the United

States,’’ which, therefore, includes military benefits.

And, as to taxes, 42 U.S.C., §662 (g) provides that taxes

are first to be deducted.

Hisquierdo is not distinguishable from the present

case. The Montana Supreme Court simply chose to ig-

nore the expressly applicable provisions of the Social

Security Act when discussing Hisquierdo.

It is evident that the question of the status of

military retirement benefits is more and more involving

:.

16

the Courts. It is presently in the interest of the Courts

and prospective litigants, that the the Supreme Court

resolve the issues with a definitive ruling.

CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, Petitioner, RONALD C.

MILLER, respectfully requests that the Court grant this

Petition for a Writ of Certiorari to review the Montana

Supreme Court decision in this cause.

Respectfully submitted,

ROBRISINAEMM

By Rebert-4. ao

Attorney for Petitioner

608 Strain Building

Great Falls, Montana 59401

(406) 761-7150

DATED thaecll day of August, 1980.

a

ane

STATE OF MONTANA )

, 5°: OB.

CountyofCascade )

ROBERT J. EMMONS, being first duly sworn upon

his oath, deposes and says:

That he is the attorney for the Petitioner, RONALD

C. MILLER, in the above eptitled matter.

That on August , 1980, affiant personally

served Mr. David Hopkins of the Firm of MARRA,

WENZ, IWEN, JOHNSON & HOKPINS, counsel for the

Respondent, JANET C. MILLER, three (3) correct and

true copies of the ‘Petition for a Writ of Certiorari to

the Supreme Court of Montana’ as counsel for

RONALD C. MILLER, Petitioner.

This Proof of Service is made pursuant to Rule 33

(3) (c) of the Rules of the United States Supreme Court.

ORIGINAL signed b

Robert J. Emmone- :

‘ROBERT J. EMMONS x

SUBSCRIBED AND SWORN to before me this ——

day of August, 1980.

ar 4/ [Ye for Maxg~ of

) (NOTARIAL SEAL) Soman Residing at Great Falls,

Montana. My Commission expires:

Ll 198-2-

la

APPENDIX A

IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL

DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF CASCADE

IN RE THE MARRIAGE OF:

RONALD C. MILLER, No. 84025 A

Petitioner,

and CONCLUSIONS OF LAW,

JANET C. MILLER, AND JUDGMENT.

Respondent. 3

The above-entitled matter came on for hearing be-

fore this Court during three separate sessions conducted

on September 13, 1976, September 14, 1978, and Sep-

tember 15, 1978. The Petitioner, Ronald C. Miller, ap-

peared in person and by his attorney, Robert J. Emmons.

The Respondent, Janet C. Miller, appeared in person and

by her attorneys, Warren C. Wenz and David A. Hopkins.

Upon the presentation of the evidence presented by both

parties, this Court has been fully advised in the premises

and hereby makes the following:

FINDINGS OF FACT

1. Plaintiff and Defendent were married May 8,

1959, in Goose Bay, Province of Labrador, Canada: Said

marriage was terminated by a Decree of Dissolution

entered by the above.Court on February 8, 1978. The

issues of spousal maintenance, child custody, child

support, division of property, and attorneys fees were

unresolved at the time of the dissolution subject to sub-

sequent hearings which have now been held.

* Prk

2a

2. By stipulation of the Plaintiff and Defendant,

through their respective attorneys, at the hearing on

September 13, 1978, the issues of child custody and child

support had been resolved. Pursuant to said stipulation

the Court finds that the daughter of the parties, Susan L.

Miller, became 18 years of age on September 17, 1978,

and that Plaintiff paid child support for her up to he:

18th birthday and consequently there is no necessity to

award custody or support with regard to Susan.

The only other child of Plaintiff and defendant is

Ronald R. Miller, born March 15, 1963, now 16 years of

age. Pursuant to the stipulation of the parties, the Court

finds that the best interests of Ronald would be served by

awarding the care, custody, and control of him to Plain-

tiff, with Plaintiff to provide for his support, and with the

right of reasonable visitation granted to Defendant.

3. Plaintiff was born November 18, 1932, and is

now 45 years of age. He was born and raised in Penn-

sylvania, earned a college scholarship in athletics,

worked part time while in college, and graduated from

college in June, 1954. Upon graduation from college,

Plaintiff entered the United States Air Force, became a

pilot, and served on active duty for 20 years, retiring in

October, 1974, as a Lieutenant Colonel. At the time of

his marriage to Defendant on May 8, 1959, Plaintiff

was a First Lieutenant. He way promoted to Captain in

1960, to Major in 1966, and to Lieutenant Colonel in

1971,

4. During the 20 years of active uuty, Plaintiff was

stationed at Goose Bay, Labrador; in Florida; in New

York; in Vietnam; in Glasgow, Montana; and at Malm-

strom Air Force Base in Great Falls, Montana from

where he retired. During the years of the military

marriage, i.e., from May 1959, until retirement in 1974.

the Plaintiff and Defendant moved 12 times. Plaintiff

3a

was awarded several medals during his military

career, and flew 100 missions in an unarmed recon-

naissance plane over North Vietnam from 1967 to

1968. His accomplishments as a career air force of-

ficer are evidenced by his progressive promotions to

higher rank.

5. Heaeriatoty upon retirement from the Air Force,

i.e., in Noyember 1974, Plaintiff was employed by

the Northw tern Bank in Great Falls, Montana, in the

mare spi and is presently so employed. His

salary at the time of his employment was

$8, $8,700.00, H He has received approximately four salary

increases since November, 1974, so that his present

annual ross salary is approximately $12,000.00.

6. Jaintiff remarried on March 24, 1978, and is

presently residing in Great Falls with his present wife

and his son Ronald. Plaintiff is an intelligent person,

strong. vigorous, and in good health.

Defendant was born February 20, 1936, and is

now ‘“ years of age. She was born and raised in

Canada, attended and graduated from college in

Canada and obtained a teaching certificate there. She

was teaching school in Goose Bay, Labrador, when

Plaintiff and Defendant were married in May, 1959.

Daughter Susan was born in September, 1960, and son

Ronald was born in March, 1962.

8. During the marriage years, i.e. from May,

1959, until February, 1978, the Defendant was em-

ployed as a substitute teacher in England during 1967

to 1971, tea approximately two days per month at

the school on the Air Base; she was a substitute

teacher in Great Falls, Montana during 1971 to 1974,

called more frequently during the 1973 to 1974 school

year; she taught full time during the 1974 to 1975

school year at the longfellow School (6th grade) in

4a

Great Falls; she did little substitute teaching after 1975

and her Montana teaching certificate lapsed in June,

1978. She worked part time as a clerk for Montgomery

Wards about the time of the separation of the parties

in September 1977 for a few months earning less than

$50.00 per week. On November 9, 1977, she was em-

ployed by the Urban 4-H University Extension Service,

earning a gross of $361.00 and a net of $293.00 per

month until September 8, 1978, when she terminated

that employment to enter the University of Montana.

Defendant’s income during the marriage and up until

the separation was used for family expenses.

9. defendant is presently enrolled at the Universiy

of Montana studying for a sociology degree which may

take two years or longer to complete. Defendant and

her daughter, Susan, are living together in Missoula,

both attending the University of Montana. Defendant is

an intelligent person, very articulate, and in good

health.

10. During the years of marriage, Plaintiff and

Defendant and their two children resided together at

whatever air force base they were assigned, except for

relatively brief periods when Defendant and the

children resided with her parents in Canada when

Plaintiff was in a combat zone and dependents were

not allowed.

11. There was conflicting evidence presented

relating to the parenting, housekeeping, cooking, wifely

and career enhancing abilities of Defendant during the

marriage. The Court finds from all the evidence

presented on these matters that the Defendant was a

good and faithful wife, a good mother to the two

children, and maintained the various residences of the

parties in a clean and well kept condition, prepared

meals and washed clothes satisfactorily, and perfor-

Ponies

“@ wr

5a

med her duties as an officer's wife in entertaining at

many and various social activities during Plaintiff's ac-

tive duty career in addition to helping in organizing

partiés, tours, and classes and writing for a wives

newsletter at the various air force bases, all said ac-

tivities contributing favorably to Plaintiff's military

career. The Court finds that Defendant's non-financial

contribution as a homemaker and to the family unit

was équal to the financial contribution made by the

Plaintiff. |

12. When Plaintiff and Defendant were married

in 1959, Piaintiff owned an Oldsmobile car valued at

about $2,000.00 and 16 acres of Pennsylvania unim-

proved mountain land which he had received from his

grandfather of relatively insignificant value. Defen-

dant contributed $1,500.00 cash from savings from. her

teaching income to the marriage. Either before or

during the marriage, Defendant's father made a gift of

some Canadian stock to Defendant which presently has

a value of about $3,000.00 The Court finds that the

original contribution of the parties to the marriage off-

set each other and that Plaintiff should be awarded

the Pennsylvania land as his sole property and Defen-

dant should be awarded the Canadian stock as her sole

property.

13. During the nearly 19 year marriage (18 years

and 9 months) the Plaintiff and defendant acquired the

following assets which are subject to being divided by

the Court:

*%

6a

Description Value

a) Jointly owned residence at

513 52nd Street South, Great

Falls, MT. Appraised market

value as of August 31, 1978. $64,500.00 $38,988.00

Less Balance due on mortgage 25,512.00 $38,988.00

b) Savings Bonds 2,600.00

c) Household furniture, furn-

ishings and appliances. 8,400.00

d) 1975 Chevrolet truck 3,550.00

e) 1971 Oldsmobile car 600.00

f) 1970 Hornet car 500.00

g) 1968 12’ aluminum boat,

9 h.p. motor, trailer 350.00

h) 1967 Golden Falcon trailer 1,000.00

i) 3 life insurance policies

(children are beneficiaries)

j) Northwestern Bank Pension

and Profit Sharing Plan -

balance on December 31,

1977 3,611.00

k) Coin collection no value given

l) Life time military pension of Plaintiff

14. Since retiring from active duty, Plaintiff is en-

titled to receive a life time military retirement which is

paid monthly. At the time of the marriage dissolution,

in February 1978, Plaintiff was receiving $1,190.70

gross per month as his military retirement pension. At

the time of the hearing on the remaining issues, in Sep-

tember 1978, Plaintiff was receiving $1,219.28 gross

per month. As of October 1, 1978, the Plaintiff's gross

7a

monthly military pension is $1, 279. 02. Plaintiff's

y pension increases periodically pursuant to the

cost of i g factor. Plaintiff has chosen an option un-

der his 1 ry retirement plan to allow his surviving

spouse to collect a reduced amount of his military pen-

sion in the event of his death. However, Plaintiff's

present wife and Plaintiff must be married for one year

or longer in order for that option to become effective.

Since the dissolution of Plaintiff and Defendant's

marriage, and up to one year after the marriage of

Plaintiff and his present wife, if Plaintiff dies, no one

will thereafter receive any of Plaintiff's military pen-

sion.

15. The Court finds that the Plaintiff and Defen-

dant were married for 185 months of the 240 months

during which Plaintiff was on active duty with the air

force.

CONCLUSIONS OF LAW

1. Plaintiff should be awarded the care, custody,

and control of Ronald R. Miller with the right of

reasonable visitation granted to Defendant.

2. That all the items listed in paragraph 12 of the

Findings of Fact are marital assets subject to being

divided, as well as the Canadian stock and the Penn-

sylvania land described in Finding of Fact #11.

3. In disposing of property acquired during the

marriage, Section 48-321, R.C.M., 1947, requires and

the Court. has considered these factors, to-wit:

(a) Duration of the marriage: Eighteen years and nine

a

(b) Prior marriage: None by either party.

(c) Antenuptial Agreement: None by either party.

(d) Age: He is 45 and she is 42.

7%

8a

(e) Health: Both enjoy good health.

(f) Station and Occupation: She is a college graduate

as is he; she is a teacher by profession and Mr.

Miller also has a teacher's certificate; he is a public

relations man for a bank and she has decided to be-

come a student for another two years to get a degree

in sociology.

(g) Amount and source of income: His income has been

set forth above. She has abandoned any efforts to

obtain an income which she could derive from a

‘teaching position in favor of returning to school.

(h) Vocational Skills: She can teach and he can also.

Both have college degrees.

(i) Employability: He is employed. She could easily be

employed as a teacher but has chosen not to do so.

There is nothing standing in her way to obtain a job.

However she elected to return to college to earn a

degree in sociology.

(j) Estate: Neither one has any estate of their own.

(k) Liabilities: Both parties are liable on the note for

the family residence. Mrs. Miller has no debts. Mr.

Miller owes Ft. Sam Houston $450.00 and a small

bill to MasterCharge. Debt-wise, they are in excellent

condition.

(1) Needs of the parties: Mr. Miller has his regular ex-

penses. He has paid the monthly mortgage payment

while separated and with Janet Miller and the child-

ren living in the home. His monthly expenses now are:

(1) Mortgage payment _ $ 309.00

(2) Utilities 90.00

(3) Insurance (policies for children) 93.00

(4) Clothing-hisandhisson's - 60.00

(5) Car insurance, gas & upkeep (Ins.

9a

averaged for the year & applied

pace er ar Youthful driver raises

150.00

(6) a 15.00

(7) Allowance to Son , 40.00

(8) Entertainment - his ard his son's 20.00

(9) Food - his and Ronnie's 300.00

$1,077.70

The food of $300.00 includes this expense for the

present Mrs. Miller. With the exception of the food, the

present Mrs. Miller pays for her own expenses from

her income.

Mrs. Miller’s expenses for herself while going to

college are as follows:

(a) Rent per month $127.00

(b) Utilities per month 30.00

(c) Food per month 75.00

(d) Clothing per month 40.00

(e) Laundry and dry cleaning per month 10.00

(f) Transportation per month 40.00

(g) Medical and dental per month : 20.00

(h) Insurance per month 20.00

(i) Recreation - eating out 20.00

$382.00

Her tuition per quarter is $204.50 or $818.00 for

four quarters. She estimates her books cost per quar-

ter at $100.00 or $400.00 for four quarters. Then quar-

terly expenses average $100.00 per month per year.

7” ee" Pe

(m)

(0)

(p)

10a

Custodial provisions: Susan Miller is now an

adult so her custody is not an issue. Ronald

lives with his father and that is not an issue.

Mr. Miller will have the food, clothing, allow-

ance, gas for car operation, and insurance

costs for a young driver to be paid by him.

Opportunity for future capital acquisitions:

With the exception of the bank pension plan,

it does not appear Mr. Miller will acquire

capital assets in the future. Nor does it ap-

pear Mrs. Miller will acquire future capital

assets. His future income is tied to the bank

income and his military pension. The latter

has a cost of living increase each year. Her

future income will depend on whether she

teaches or is employed as a sociologist. The

income for the latter occupation is unknown

and there was no evidence as to what that

occupation pays.

Contribution to the Estates: Mr. Miller has

made the principal financial contributions for

the acquisition of the present assets. Mrs.

Miller has contributed little financially to the

assets now owned by them. There does not

appear to be any dissipation of the estate by

either party. They obviously lived within their

means but expended the income.

Wife's Contribution as a Homemaker or to the

Family Unit: There was conflicting evidence

presented relating to the parenting, house-

keeping, cooking, wifely and career enhanc-

ing abilities of Defendant during the mar-

riage. The Court finds from all the evidence

presented on these matters that the Defendant

fe

@)

i

ivision 0

follows:

(a)

(b)

(c)

(d)

(e)

(f)

lia

was a and faithful wife, a good mother to

the two childrer par huh the ue :

es ; eS fe parties in a clean and w

A ronditior ae meals and iabar

clathes satisfact and performed her

uties af A a Au $ wife | in entertaining at

many and yarious social activities during

laintiff's active duty career in addition to

elping ba ing parties, tours, and classes

and writing for a wives newsletter at the

various air force bases, all said activities

| favorably to Plaintiff's military

TI ¢ Court Hnds that Defenniant's ao

ia SoRErNtiOR Ge & homembaber and to

nN was the financial con-

on made by the Plaintiff.

| er the Pennsylvania land given to

inti

before the marriage, and the stocks

given to Defendant by her father, there is no

property acquired by gift, bequest, or devise.

he Court concludes that a fair and equitable

the marital assets of the parties would be as

_ ‘BO.PETITIONER

One-half the net equity in the family residence.

The color television set, refrigerator, and lawn

mower.

"One-half of the Savings Bonds

1975 Chevrolet truck and 1970 Hornet car —

1968 12° aluminum boat, 9 h.p. motor, and

trailer

1967 Golden Falcon trailer

a

(h)

(i)

(i)

(k)

(a)

(b)

—(¢)

(d)

(e)

(f)

12a

Northwestern Bank Pension Plan

Coin collection

Life insurance policies to be maintained by

Plaintiff with the children of the parties to re-

main as beneficiaries.

Pennsylvania land

That portion of Petitioner's military pension

not awarded to Respondent.

TO RESPONDENT

One-half the net equity in the family residence

or a judgment in the amount of $19,494.00.

All items of household furniture, furnishings,

and appliances except the color television set,

refrigerator, and lawn mower.

One-half of the Savings Bonds.

1971 Oldsmobile car

Canadian stock

One-half of 185/240th or 38.5 percent of Plain-

tiff's monthly military pension, including any

future increases in said pension, to be paid to

Defendant as and when said monthly pension

is received by Plaintiff for as long as Plaintiff

lives. The Court considers this award to be of a

property interest to which Defendent is entitled

and not as spousal maintenance. However, the

Court concludes that upon the death of Plain-

tiff, the availability of the pension, insofar as

Defendant is concerned, will terminate and

Plaintiff's obligation to pay 38.5 percent of his

military pension to Defendant will terminate at

that time. In the event of Defendant's death be-

13a

fore Plaintiff's death, the Defendant shall re-

main obligated to pay said 38.5 percent to De-

fendant’s estate or her heirs.

5. That Defendant is awarded sufficient property

herein so that she can provide for her reasonable needs

and furthermore Defendant has the ability to support

herself through appropriate employment and consequen-

tly Defendant is not entitled to spousal maintenance.

6. Each party should pay his/her own attorneys’

fees and costs herein.

Based upon the foregoing Findings of Fact and Con-

clusions of Law, the Court enters the following Judgment.

JUDGMENT

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED as follows:

1. Plaintiff is awarded the care, custody and con-

trol of Ronald R. Miller, the minor son of the parties, with

the right of reasonable visitation granted to Defendant.

2. That the Plaintiff and Defendant are each

awarded those items of property as set forth in Conclu-

sion of Law #4.

3. Each party to pay his/her own attorney's fees

and costs herein.

DATED this 31st day of October, 1978.

Joel G. Roth

District Judge

cc: David Hopkins

Robert Emmons

i a

14a

APPENDIX B

IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL

DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF CASCADE

IN RE THE MARRIAGE OF

Ronald C. Miller, Cause No. 84025A

Petitioner,/ AMENDED FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND

and JUDGMENT

JANET C. MILLER,

Respondent.

On November 22, 1978, a hearing in the above-

entitled matter was held in reference to the

Petitioner’s Motions to Amend Findings, to make ad-

ditional Findings, to Amend the Judgment, to Alter the

Judgment, and for a new trial. During the hearing, the

Petitioner was represented by his attorney, Robert J.

Emmons, the Respondent was represented by her at-

torney, David A. Hopkins.

Upon consideration of the various memorandums

submitted by the respective parties and upon the oral

arguments before this Court, it is hereby

ORDERED, ADJUDGED AND DECREED:

1. That Paragraph 2 of the Conclusions of Law

shall be amended, nunc pro tunc to read as follows:

‘That all the items listed in Paragraph 13 of the

Findings of Fact are marital assets subject to being

divided, as well as the Canadian stock and the

Pennsylvania land described in Finding of Fact 12."’

15a

2. That Paragraph 4 (a) of the Court's Conclusions

of Law is hereby amended to read the following:

‘‘That Petitioner shall be allowed a period of thirty

days from November 22, 1978 within which to pur-

chase the Respondent's net equity in the family

residence in the amount of $19,494.00. In the event

that Petitioner does not purchase Respondent's in-

terest within said time period, said residence shall

be sold within sixty days subsequent to November

22, 1978 and the Respondent shall be awarded the

sum of $19,494.00 from the sale of the residence or

one-half of the actual net equity in the family

residence.

3. That except for the changes made in the pre-

ceding two paragraphs, the remainder of the

Petitioner’s Combined Motions are hereby denied.

DATED this 29th day of November, 1978.

District Judge

cc: David Hopkins

Robert Emmons

Sot is is

16a

APPENDIX C _

Nos. 14636 & 14726

IN THE

Supreme Court of the State of Montana

1979

IN RE THE MARRIAGE OR:

RONALD D. MILLER,

Petitioner and Appellant,

vs.

JANET C. MILLER,

Respondent and Respondent.

Appeal from: District Court of the Eighth Judicial

District, Honorable Joel G. Roth, Judge

presiding.

Counsel of Record:

- For Appellant:

Smith, Emmons, Baillie and Walsh, Great Falls,

Montana

Robert J. Emmons “ant Great Falls, Montana

For Respondent:

Marra, Wenz, Iwen and Johnson, Great Falls,

Montana

David Hopkins argued, Great Falls, Montana

Submitted: November 5, 1979

Decided: March 27, 1980

Thomas J.Kearney Clerk

Filed: March 27, 1980

=

17a

Mr. Justice Daniel J. Shea delivered the Opinion of the

Court.

Husband, Ronald C. Miller, appeals the orders of

the Cascade County District Court which granted the

wife a 38.5 percent share in the husband’s military

pension and temporary maintenance during the pen-

dency of this appval.

The husband asserts that his military retirement

pay is not a marital asset under Montana's Uniform

Marriage and Divorce Act and in any event, that 10

U.S.C.A. §1401, et seq., which would permit distribution

of a property interest in military retirement pay to the

retiree’s spouse.

The primary issue in this appeal concerns the

husband's military retirement pay. A United States

Code provision provides that an officer of the armed

forces who completes 20 years of service is entitled to

retirement pay based upon the number of years he serves

in the armed forces, and his rank at retirement. See

10 U.S.C.A. §1401, et seq. See also Cose v. Cose

(Alaska 1979), 592 P.2d 1230; In Re Marriage of Fithian

(Cal. 1974), 111 Cal. Rptr. 369, 517 P.2d 449. Benefits

are paid monthly and terminate upon the serviceman's

death. As of October 1, 1978, the husband here

received $1,279.02 monthly retirement pay. The

amount of his retirement pay is adjusted for changes in

the cost of living. :

The husband commenced this action on November

22, 1977 by filing a petition for divorce. The trial court

granted the parties a divorce on February 8, 1978 and

the following November entered its judgment granting

custody of the parties’ minor child to the husband, and

distributing their property. The court's order further

provided that neither party was entitled to maintenance

18a

or attorney fees. The court amended its judgment on

November 29, 1978 to allow the husband thirty days to

purchase the wife’s interest in their home. The

husband filed his notice of appeal of the amended

judgment on December 28, 1978. The husband also ap-

pealed the court’s order of February 26, 1979 which

granted the wife’s motion for temporary maintenance

pending the husband's appeal.

The husband and wife were married in 1959 and

now are both in their middle to late forties. The

husband served for 20 years in the United States Air

Force and retired in 1974 with the rank of lieutenant

colonel. Since his retirement, he has worked at North-

western Bank: in Great Falls, Montana, where he

presently earns approximately $12,000 per year. The

wife worked intermittently as a teacher during their

marriage. Immediately prior to her divorce she was

employed by the University Extension Service where

she earned a gross of $361 a month. Presently she is a

full time student at the University of Montana where

she is completing courses toward a sociology degree.

The parties at the time of the divorce decree had one

minor child but custody and support are not at issue.

The primary issues involve the disposition of the

husband's military pension.

The pension is by far the greatest asset of the par-

ties. According to evidence submitted by’ the wife, it

has a present worth of $442,307. The trial court valued

the parties net equity in the family home at $38,988

and the remainder of their real and personal property

at approximately $20,000.

The court's order distributed half of the net equity

of the home to each of the parties, divided the remain-

der of their real and personal property, and provided

that the wife should have a 38.5 percent share in the

19a

husbend's military pension. The decree provided that

the wi.9’s share in the pension should be paid monthly

as it was received by the husband. Furthermore, it

provided that in the event the wife predeceased her

husband, that the pension should pass to her estate. At

the time of this appeal, the wife’s share in the husband's

pension amounted to $492 per month.

The husband contends that his right to receive the

pension is not a vested right and therefore the wife has

no right to receive a share of his pension as part of a

marital property division. Courts cannot reach

agreement as to whether a military pension is income

or, on the other hand, a vested property right. See Cose

v. Cose, supra. Courts finding that a military pension is

income have analogized retirement payments to salary

because retirement payments are paid monthly and

are earned in the sense that the retiree remains a

member of the armed forces and is subject to recall to

active duty. In Re Marriage of Ellis (Colo. C.A. 1975), 36

Colo. App. 234, 538 P.2d 1347, affd. 191 Colo. 317, 552

P.2d 506; Watson v. Watson (E.D:; N.C. 1976), 424 F.

Supp. 866. Viewed realistically, however, the better

view is that the retiree has ‘‘earned” his pension by his

years of active duty in the service. See In Re Marriage

-of Musser (Ill. C.A. 1979), 70 Ill. App.3d 706, 388 N.E.

2d 1289; Kruger v. Kruger (N.J. 1977); 73 N.J. 463, 375 ©

A.2d 659; In Re Marriage of Ellis (dissenting opinion),

supra; In Re Marriage of Fithian (Cal. 1974), 517 P.2d

449, Ill Cal. Rptr. 369. After 20 years of active duty a

person desiring to retire from the military is entitled to

a pension, Under normal circumstances, a retiree does

not have to perform any significant duties as a con-

dition to receiving his monthly retirement check.

In the present case, at his retirement in 1974, the

husband had the opportunity to enjoy a leisurely

20a

retirement or assume a second career. He chose to

become a full time employee at Northwestern Bank of

Great Falls. He therefore, has two sources of income,

one from his retirement pay, and another from his

salary as a bank employee. Unless an extraordinary

chain of events should arise, the husband will not be

recalled to active duty. The husband's military

retirement pay resembles an ordinary private pension,

and just as a private pension, it should be treated as a

vested property right which can be distributed as part

of a court’s property division.

The husband’s second contention is that 10

U.S.C.A. §1401, et seq. preempts Montana's Uniform

Marriage and Divorce Act insofar as it permits

distribution of a property interest in his retirement

pay. He relies on Hisquierdo v. Hisquierdo (1979), 439

U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1. There, the United

States Supreme Court held that treatment of a railroad

pension receivable under the Railroad Retirement Act,

45 U.S.C. §231, et seg, as community property, violated

the purpose of the Act and was prohibited by the

supremacy clause. See also Knudson v. Knudson

(1980), _.=——-—s Moon. ; P.2d

, 37 St.Rep. 147. The husband argues that the

relevant portions of 10 U.S.C.A. §1401, et seq. fovern-

ing military pensions are analogous to the Railroad

Retirement Act and therefore that the rationale of the

Supreme Court’s decision in Hisquierdo applies to the

present case. The Railroad Retirement Act is however,

explicit as to what happens to a railroad pension upon

an absolute divorce.

The Hisquierdo decision was based on the broad

language of §231 of the Railroad Retirement Act which

protects the pensioner’s benefits from “‘legal process

7%

21a

under any circumstances whatsoever.’’ The Court

noted that Congress had carefully targeted its benefits

towards the working spouse by providing that the non-

working spouse's ‘‘entitlement ... to an annuity...

shall end on the last day of the month preceding the

month in which . . . the spouse and the individual are

absolutely divorced."’ 45 U.S.C. §231d (d) (3). The Court

stated that its decision might well have been different

if Congress had not explicitly terminated a spouse's

benefits upon absolute divorce. On the other hand,

Chapter 71, 10 U.S.C.A. §1401, et seq., which governs

the husband's military pension does not contain any

section similar to the provisions deemed controlling in

the Hisquierdo decision. Chapter 71 does not protect a

pensioner from attachment or other legal process, nor

does it expressly provide that a wife’s interest in her

husband's pension shall terminate upon divorce. We

cannot say that federal statutes directly or indirectly

prevent the distribution made here. Czarnecki v. Czar-

necki (Ariz. 1979), 600 P.2d 1098. Furthermore, we do

not believe that the trial court's distribution to the wife

goes contrary to the intent of Congress to promote con-

tinued service in the armed services by means of its

military retirement plan. See In Re Marriage of

Musser, supra; see also Gorman v. Gorman (Cal. C.A.

1979), 90 Cal.App.3d 454, 153 Cal.Rptr. 479. Congress

must certainly have contemplated that the service

people of this country would get married and therefore

assume the duties and obligations of marriage.

Finally, the husband argues that it was error for

the trial court to rule that heirs of the wife could

inherit her interest in the military pension. We find no

basis to distinguish the wife's interest from other

marital assets which may be distributed by a trial

court. See Kruger v. Kruger, supra. The court order

22a

provides the wife’s share in the husband's retirement

will be taken out of his monthly payments as he

receives them. The husband's obligation lasts only so

long as he continues to receive government retirement

benefits. Thus the heirs of the wife can share in these

benefits only while the husband is living. We affirm the

trial court's order in this respect.

We note here that the trial court awarded the wife

$500 per month as temporary maintenance pending the

husband's appeal. The amount of temporary main-

tenance order by the court is almost equal to the wife's

share in the pension which she would have received

had there been no appeal here. Since we affirmed the

amended judgment, the wife will receive payment for

her share of the pension which has accrued since the

date of the amended judgment. In order to avoid a

double payment to the wife, the trial court's award of

temporary maintenance is vacated.

As modified, the amended judgment of the District

- Court is affirmed.

_ Daniel J. Shea

Justice

We Concur:

‘Frank I. Haswell

Chief Justice

Gene B. Daly

John C, Harrison

John F. Sheehy

Justices

en

23a

APPENDIX D

STATE of MONTANA

OFFICE OF THE

CLERK

SUPREME COURT

Helena, Montana

May 15, 1980

THOMAS J. KEARNEY, Clerk

Florence McGiboney

Clerk of District Court

Great Falls, Montana 59401

RE: No 14636 and 14726, D.C. No 84025-A, MILLER vs.

MILLER

Dear Mrs. McGiboney:

Enclosed piease find remittitur and a copy of the

Opinion in the above-entitled cause.

Best personal regards.

Very truly yours,

Thomas J. Kearney

Clerk of Supreme Court

cc: Smith, Emmons, Baillie and Walsh

Marra, Wenz, Iwen and Johnson

ry

ae

‘

°

24a

IN THE SUPREME COURT OF THE

STATE OF MONTANA

No. 14636 &

14726

IN RE THE MARRIAGE OF:

RONALD C. MILLER,

Petitioner and Appellant,

and

JANET C. MILLER,

Respondent and Respondent.

ORDER

PER CURIAM:

Appellant's petition for rehearing is denied.

DATED THIS 14th day of May, 1980.

Frank I. Haswell

Chief Justice

John Conway Harrison

John C. Sheehy

Justices

.

ty

bint? 5 Hs

_~

25a

APPENDIX E

APPLICABLE PORTION OF RULE 34, MONTANA

RULES OF APPELLATE CIVIL PROCEDURE.

‘‘When in appeals or special proceedings, it is or-

dewred that remittitur . . . or judgment issue forthwith,

no petition for rehearing will be entertained. In all

other cases a petition for rehearing may be filed within

10 days after the decision of the Supreme Court has

been rendered, unless the time is shortened or

enlarged by order. .. ."’

APPLICABLE PORTION OF RULE 35, MONTANA

RULES OF APPELLATE CIVIL PROCEDURE

‘(b) Remittitur may, in cases where it is deemed

proper, be ordered forthwith; otherwise the same shall

be issued promptly upon expiration of time for filing

petition for rehearing, or, if such petition is filed, then

upon denial thereof. . ."’

26a

APPENDIX F

APPLICABLE FEDERAL STATUTES

10 U.S.C., §1401:

‘Computation of retired pay: The monthly

retired pay of a person entitled thereto under

this subtitle (10 USCS §§101 et seq.) is com-

puted according to the following table. For

each case Covered by a section of this title

(10 USCS §§1 et seq.) named in the column

headed ‘For sections’, retired pay is comput- .

ed by taking, in order, the steps prescribed

opposite it in columns 1, 2, 3 and 4, as mod-

ified by the applicable footnotes. However, if

_@ person would otherwise be entitled to re-

tired pay computed under more than one pay

formula of this table or of any other provision

_ of law, he is entitled to be paid under the ap-

plicable formula that is most favorable to

him. Section references below are to sections

of this title (10 U.S.C.S. §§1 et seq.). (Tables

omitted).’’

10 U.S.C.§1402:

“‘Recomyutation of retired or retainer pay

to reflect later active duty. (a) A member of

an armed force who has become entitled to

retired pay or retainer pay, and who there-

after serves on active duty (other than for

training), is entitled to recompute’ his retired

pay or retainer pay upon his release from

that duty as follows: (Tables and notes omit-

ted). However, an officer who was ordered to

active duty (other than for training) in the

grade that he holds on the retired list under

sta

*Y

27a

former section 6150 of this title (former 10

USCS §6150), or under any other law that

authorized advancement on the retired list

based upon a special commendation for the

performance of duty in actual combat, may

have his retired pay recomputed under this

subsection on the basis of the rate of basic

pay applicable to that grade upon his release

. from that active duty only if he has been en-

titled, for a continuous period of at least three

years, to basic pay at that rate. If, upon his re-

lease from that active duty, he has been en-

titled to the basic pay of that grade for a con-

tinuous period of at least three years, but he

may have his retired pay recomputed under

this subsection on the basis of the rate of

basic pay replaced by those in effect upon

his release from that duty.’

10 U.S.C, §1431:

“Election of annuity: members of armed

forces. (a) This section applies to all members

of the armed forces except — (1) members

whose names are on a retired list other than

a list maintained under section 1376 (a) of

this title (10 USCS §1376(a\; (2) cadets at the

United States Military Academy, the United

the United States Air Force Academy, or the

Coast Guard Academy; and (3) midshipmen.

‘(b) To provide an annuity under section

. 1434 of this title (10 USCS§1434), a person

covered by subsection (a) may elect to receive

a reduced amount of the retired pay or retain-_.

_., @r pay to which he may become entitled asa

: result of service in his armed force: Except ©:

Se

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as otherwise provided in this section, unless

it is made before he completes nineteen years

of service for which he is entitled to credit in

the computation of his basic pay, the election

must be made at least two years before the

first day for which retired pay or retainer pay

is granted. However, if, because of military op-

erations, a member is assigned to an isolated

station or is missing, interned in a neutral

country, captured by a hostile force, or be-

leaguered or beseiged, and for that reason is

unable to make an election before completing

nineteen years of that service, he may make

the election, to become effective immediately,

within one year after he ceases to be assigned

to that station or returns to the jurisdiction of

his armed force, as the case may be. A mem-

ber to whom retired pay or retainer pay is

granted retroactively, and who is otherwise

eligible to make an election, may make the

. election within ninety days after receiving

notice that such pay has been granted to him.

An election made after the date of enactment

of this amendment (enacted Aug. 13, 1968) is

not effective if—

(1) the elector dies during the first thirty-

day period he is entitled to retired pay as a

result of a physical condition which led fo

hisbeing granted retired pay under chap-

ter 61 of title 10 (10 USCS§§1201 et seq.)

with a disability of 100 per centum under

the standard schedule of rating disabilities

in use by the Veterans’ Administration at

the time of the determination of the per cen-

tum of his disability;

29a

(2) the disability was not the result of injury

or disease received in line of duty as a direct

result of armed conflict; and

‘(3) his widow or children are entitled to de-

pendency and indemnity compensation un-

der chapter 13 of title 38 (38 USCS§§401 et

seq.) based upon his death.

“(c) An election may he changed or revoked

by the elector before the first day for which

retired or retainer ray is granted. Unless it is

made on the basis of restored mental comp-

petency under section 1433 of this title (10

USCS§1433), or unless it is made before the

elector completes nineteen years of service

for which he is entitled to credit in the compu-

tation of his basic pay (in which case only the

latest change or revocation shall be effective),

the change or revocation is not effective if it is

made less than twu years before the first day

for which retired or retainer pay is granted.

The elector may, however, before the first day

for which retired or retainer pay is granted,

change or revoke his election (provided the

change does not increase the amount of the

annuity elected) to reflect a change in the

marital or dependency status of the member

or his family that is caused by death, divorce,

annulment, remarriage, or acquisition of a

child, if such change or revocation of election

is made within two years of such change in

marital or dependency status.

‘‘(d) If an election made under this section

is found to be void for any reason except fraud

or willful intent of the member making the

30a

election, he may make a corrected election at

any time within 90 days after he is notified in

writing that the election is void. A corrected

election made under this subsection is effect-

ive as of the date of the voided election it

replaces.”’

10 U.S.C., §1434:

“Kinds of annuities that may be elected. (a)

The annuity that a person is entitled to elect

under section 1431 or 1432 of this title shall,

in conformance with actuarial tables selected

by the Board of Actuaries under section 1436

(a) of this title, be the amount specified by the

elector at the time of the election, but not more

than 50 per centum nor less than 12% per cen-

tum of his retired or retainer pay, in no case

less than $25. He may make the annuity

payable—

(1) to, or on behalf of, the surviving spouse,

ending when the spouse dies or, if the

spouse remarries before age 60, when the

spouse remarries;

(2) in equal shares to, or on behalf of, the

surviving children eligible for the annuity

at the time each payment is due, ending

when there is-no surviving eligible child; or

_ (2) to, or on behalf of, the surviving spouse,

and after the death of that spouse or the

remarriage of that spouse before age 60, in

equal shares to, or on behalf of, the sur-

viving eligible children, ending when there

is no surviving eligible child. .. ."’

3ia

e. 100U.S.C.,§1440:

‘Annuities not subject to legal process. No

annuity payable under this subchapter is as-

signable or subject to execution, levy, attach-

ment, garnishment, or other legal process.”’

f. 10U.S.C.,§1447:

“Definitions. In this chapter: (1) ‘Plan’ means

the Survivor Benefit Plan established by this :

subchapter.

(2) ‘Base amount’ means—

(A) in the case of a person whe dies after

becoming entitled to retired or retainer

pay, the amount of monthly retired or re-

tainer pay to which the person—

‘(i) was entitled when he became eligible

for that pay; or

‘{ii) later became entitled by being ad-

vanced on the retired list, performing active

duty, or being transferred from the tempor-

ary disability retired list to the permanent

disability retired list;

‘(B) in the case of a person who would have

become eligible for retired pay under chap-

ter 67 of this title but for the fact that he

died before becoming 60 years of age, the

amount of monthly retired pay for which the. t

person would have been eligible— a

(i) if he had been 60 years of age on the

date of his death, for purposes of an annuity ,

gs to become effective on the day after his

Aes death in accordance with a designation ‘

“F made under section 1448(e) of this title; or :

(ii) upon becoming 60 years of age (if he is

had lived to that age), for purposes of an :

(3)

32a

annuity to become effective on the 60th. an-

_ niversary of his birth in accordance with a

designation made under section 1448/e) of

this title; or

‘(C) any amount which is less than the

amount otherwise applicable under clause

(A) or (B) with respect to an annuity provided

under the Plan and which is designated by

the person providing the annuitv on or before

(i) the first day for which he becomes eligible

for retired or retainer pay, in the case of a

person providing an annuity by virtue of eli-

gibility under Section 1448(a) (1) (A) of this

title, or (ii) the end of the 90-day period begin-

ning on the date on which he receives the

notification required by section 1331(d) of

this title that he has completed the years of

service required for eligibility for retired pay

under chapter 67 of this title, in the case of a

person providing an annuity by virtue of eli-

gibility under section 1448 (a) (1) (B) of this

title, but not less than $300; as increased from

time to time under section 1401a of this title.

‘Widow’ means the surviving wife of a person

who, if not married to the person at the time he

became eligible for retired or retainer pay—

“(A) was married to him for at least one

year immediately before his death; or

“(B) is the mother of issue by that marriage...”

10 U.S. ’ §1448:

‘Application of plan. (a) (1) The program

established by this subchapter shall be known

as the Survivor Benefit Plan. The following

ade i

33a

persons are eligible to participate in the Plan:

‘(A) Persons entitled to retired or retainer

pay. .

‘(B) Persons who would be eligible for re-

tired pay under chapter 67 of this title but for

the fact that they are under 60 years of age.

(2) The plan applies—

(A) to a person who is eligible to participate

in the Plan under paragraph (1) (A) and who is

married or has a dependent child when he be-

came entitled to retired or retainer pay, unless

he elects not to participate in the Plan before

the first day for which he is eligitile for that

pay; and oe

(B) to a person who (i) is eligible to partici-

pate in the Plan under paragraph (1) (B), (ii) is

married or has a dependent child when he is

notified under secticn 1331(d) of this title that

he has completed the years of service required

for eligibility for retired pay under chapter 67

of this title, and (iii) elects to participate in the

Plan (and makes a designation under subsec-

tion (e) before the end of the 90-day period be-

ginning on the date he receives such notifi-

cation.

A person described in subclauses (i) and (ii)

of cluase (B) who does not elect to participate

in the Plan before the.end of the 90-day period

referred to in such clause shall remain eligible

upon reaching 60 years of age and otherwise

becoming entitled to retired pay, to participate

in the Plan in accordance with eligibility under

paragraph (1) (A).

34a

(3) (A) If a person who is eligible under para-

graph (1) (A) to participate in the Plan and who

is married elects not to participate in the Plan

at the maximum level, or elects to provide an

annuity for a dependent child but not for his

spouse, that person's spouse shall be notified

of that election.

‘(B) If a person who is eligible under para-

graph (1) (B) to participate in the Plan and who

is married does not elect to participate in the

Plan at the maximum level, or elects to provide

an annuity for a dependent child but not for his

spouse, that person's spouse shall be notified

of that action...’

26 U.S.C., §61:

“Gross income defined. (a) General Defini-

tion—Except as otherwise provided in this

subtitle, gross income means all income from

whatever source derived, including (but not

limited to) the following items:

(1) Compensation for services, including

fees, commissions, and similar items;

(2) Gross income derived from business;

(3) Gains derived from dealings in property;

(4) Interest;

(5) Rents;

(6) Royalties;

(7) Dividends;

(8) Alimony and separate maintenance

payments;

(9) Annuities;

(10) Income from life insurance and endow-

ment contracts;

(11) Pensions;

35a

(12)Income from discharge of indebtedness;

(13) Distributive share of partnership gross

income;

(14) Income in respect of a decedent; and

(15) Income from an interest in an estate or

' trust.”

26 U.S.C., §71:

“Alimony and separate maintenance pay-

ments. (a)

General rule.—

(1) Decree of divorce or separate mainte-

nance. —If a wife is divorced or legally separ-

ated from her husband under a decree of

divorce or of separate rnaintenance, the wife's

gross income includes periodic payments

(whether or not made at regular intervals) re-

ceived after such decree in discharge of (or

attributable to property transferred, in trust

or otherwise, in discharge of) a legal obliga-

tion which, because of the marital or family

relationship, is imposed on or incurred by the

husband under the decree _r under a written

instrument incident to such divorce or

separation.

* * * * *

‘*(3). Decree of support. —If a wife is separa-

ted from her husband, the wife's gross income

includes periodic payments (whether or not

made at regular intervels) received by her

after the date of the enactment of this title

from her husband under a decree entered

after March 1, 1954, requiring the husband

to make the payments for her support or

*(c)

“(d)

36a

maintenance. This paregraph shall not apply

if the husband and wife make a single return

jointly.

+ * * * a

Principal sum paid in installments.—

(1) General rule. —For purposes of subsection

(a), installment payments discharging a part of

an obligation the principal sum of which is,

either in terms of money or property, specified

in the decree, instrument, or agreement shall

not be treated as periodic payments.

(2) Where period for payment is more than 10

years. —If, by the terms of the decree, instru-

ment, or agreement, the principal sum refer-

red to in paragraph (1) is to be paid or may be

paid over a period ending more than 10 years

from the date of such decree, instrument, or

agreement, then (notwithstanding paragraph

(1) the installment payments shall be treated

as periodic payments for purposes of subsec-

tion (a) ), but (in the case of any one taxable

year of the wife) only to the extent of 10 per-

cent of the principal sum. For purposes of the

preceding sentence, the part of any principal

sum which is allocable to a period after the

taxable year of the wife in which it is received

shall be treated as an installment payment for

the taxable year in which it is received.

Rule for husband in case of transferred pro-

perty. —The husband's gross income does not

include amounts received which, under sub-

section (a), are (1) includible in the gross in-

come of the wife, and (2) attributable to trans-

ferred property."’

37a

42 U.S.C., §659:

“Enforcement of individual's legal obligations

to provide child support or make alimony pay-

ments — United States and District of Colum-

bia to be subject to legal process.

(a) Notwithstanding any other provision of law,

effective January 1, 1975, moneys (the entitle-

ment to which is based upon renumeration for

employment) due from, or payable by, the

United States or the District of Columbia (in-

cluding any agency, subdivision, or instru-

mentality thereof) to any individual, including

members of the armed services, shall be sub-

ject, in like manner and to the same extent as

if the United States or the District of Columbia

were a private person, to legal process brought

for the enforcement, against such individual of

his legal obligations to heey child support or

make alimony payments. .

42 U.S.C., §662:

“Definitions. For purposes of section 659 of

this title—

* * * * *

(c) The term ‘alimony’, when used in reference

to the legal obligations.of an individual to pro-

vide the same, means periodic payments of

funds for the support and maintenance of the

‘spouse (or former spouse) of such individual,

and (subject to and in accordance with State

law) includes but is not limited to, separate

maintenance, alimony pendente lite, mainte-

nance, and spousal! support; such term also in-

th

‘a

ie

“(6

38a

cludes: attorney's fees, interest, and court

costs when and to the extent that the same are

expressly made recoverable as such pursuant

to a decree, order, or judgment issued in ac-

cordance with applicable State law by a court

of competent jurisdiction. Such term does not

include any payment or transfer of property or

its value by an individual to his spouse or

former spouse in compliance with any com-

munity property settlement, equitable distri-

bution of property, or other division of proper-

ty between spouses or former spouses.

x &* & kk &

Entitlement of an individual to any money shall

be deemed to be ‘based upon remuneration for

employment’, if such money consists of’ —

(1) compensation paid or payable for personal

services of such individual, whether such com-

pensation is denominated as wages, salary,

commission, bonus, pay, or otherwise, and in-

cludes but is not limited to, severance pay, sick

pay. and incentive pay, but does not include

awards for making suggestions, or

(2) periodic benefits (including a periodic ee.

fit as defined in section 428(h) (3) of this title)

or other payments to such individual under the

insurance system established by subchapter II

of this chapter or any other system or fund

. established by the United States (as defined in

subsection (a) of this section) which provides

for payment of pensions, retirement or retired

pay, annuities, dependents or survivors’ bene-

fits, or similar amounts payable on account of

personal services performed by himself or any

a

“(g)

39a

other individual (not including any payment as

compensation for death under any Federal

program, any payment under any Federal pro-

gram established to provide ‘black lung’ bene-

fits, any payment by the Veterans’ Administra-

tion as compensation for a service-connected

disability or death, except any compensation

paid by the Veterans’ Administration to a~

former member of the Armed Forces who is in

receipt of retired or retainer pay if such

former member has waived a portion of his

retired pay in order to receive such compensa-

tion), and does not consist of amounts paid, by

way of reimbursement or otherwise, to such in-

curred by such individual in carrying out

duties associated with his employment.

In determining the amount of any moneys due

from, or payable by the United States to any in-

dividual, there shall be excluded amounts

which—

(1) are owed by such individual to the United

States,

(2) are required by law to be, and are, de-

ducted from the remuneration or other

payment involved, including but not limit-

ed to, Federal employment taxes, and —

fines and forfeitures ordered by court-

martial,

(3) are properly withheld for Federal, State,

or local income tax purposes, if the with-

holding of such amounts is authorized or

required by law and if amounts withheld

are not greater than would be the case if

such individual claimed all dependents to

40a

which he was entitled (the withholding of

additional amounts pursuant to section

3402 (i) of Title 26 may be permitted only

when such individual presents evidence

of a tax obligation which supports the

additional withholding),

(4) are deducted as health insurance

premiums,

(5) are deducted as normal retirement con-

tributions (not including amounts de-

ducted for supplementary coverage), or

(6) are deducted as normal life insurance

premiums from salary or other remun-

eration for employment (not including

amounts deducted for supplementary

coverage).”

4la

APPENDIX G

PETITIONER'S PROPOSED FINDINGS OF FACT, CON-

CLUSIONS OF LAW AND JUDGMENT—EXCERPTS

IN THE DISTRICT COURT OF THE EIGHTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF CASCADE

IN RE THE MARRIAGE OF

RONALD C. MILLER,

Petitioner,

and

JANET C. MILLER,

Respondent.

PETITIONER'S, RONALD C. MILLER,

PROPOSED FINDINGS OF FACT,

CONCLUSIONS OF LAW AND JUDGMENT |

CAUSE NO. 84025-A

i i i I

FINDINGS OF FACT

x*eke&ekeeeene ee Ke Ke KKK Kh Kaa kK

As of February 8, 1978, Mr. Miller's monthly

military pension paid $1,190.70 gross. From this is

deducted $92.15 per month which is paid to have the

benefits payable to his wife on his death. The tax is

$98:64 per month. With these two deductions, the mon-

thly net military pay is $1,000.11 per month.

As stated above, Mr. Miller was in the service

four and one-half years before he married Mrs. Miller.

He had thus earned 22.5% of his future military pen-

42a

sion before they were married.

Mr. Miller remarried March 24, 1978. Under the

applicable federal law, his former wife, JANET C.

MILLER, is not entitled to any benefits under the

military pension plan once she was divorced from Mr.

Miller. Mr. Miller's present wife will become eligible to

receive the military pension upon his death after they

have been married one year. Thus, insofar as any

future benefits that accrue on the death of Mr. Miller

relating to his military pension, JANET C. MILLER has

no legal rights.

i i i

The military pension of Mr. Miller was earned

solely by his efforts. He jeopardized his life for 100 mis-

sions in Vietnam as part of his efforts to earn this pen-

sion. He incurred daily risks whenever he flew during

his military career. He could become ill or disabled and

unable to earn an additional income and his military

retirement would be his only source of income. This

would exclude any social security benefits if he were

eligible if such an event occurred. Mrs. Miller has no

right, title or interest in the military pension of Mr.

Miller. No award should be made to her of any of this

fund. If he were to die before he has been married a

year, his present wife would get no part of this pension.

If he died any time after they had been married a year.

the present Mrs. Miller would get the pension. On his

death, the only asset would be the military pension. But

this would be the property of the present Mrs. Miller

and not an asset of his estate.

+s

43a

APPENDIX H

PETITIONER'S POST TRIAL MOTIONS—EXCERPTS

IN THE DISTRICT COURT OF THE EIGHTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF CASCADE

IN RE THE MARRIAGE OF:

RONALD C. MILLER,

Petitioner,

and

JANET C. MILLER,

Respondent.

CAUSE NO. 84025-A

(1) MOTION TO AMMEND FINDINGS PURSUANT

TO RULE 52 (b), M.R. Civ. P.; |

(2) MOTION TO MAKE ADDITIONAL FINDINGS

PURSUANT TO RULE 52 (b), M.R. Civ. P.;

(3) MOTION TO AMEND THE JUDGEMENT PUR-

SUANT TO RULE 52 (b), M.R. Civ. P.; and

(4) MOTION TO ALTER OR AMEND THE JUDG-

MENT PURSUANT TO RULE:59 (g), M.R. Civ. P.

The Petitioner, RONALD C. MILLER, moves the

Court for its Order as follows:

re eerereeneee eee KeKRHEKeRKe Kea

To make as an additional Finding of Fact that the

sum of NINETY-EIGHT AND 64/100 DOLLARS ($98.64)

ie Se ia

44a

per month is deducted in Federal tax from Mr. Miller's

monthly pension of $1,190.70. In addition, there are

State taxes that have to De paid on the income derived

from the military pension by Mr. Miller.

i el

To make as an additional Finding of Fact

Paragraphs 31 and 32 of Petitioner's Proposed Find-

, ings, in toto, which appear on Page 19, lines 25 to

Page 22, line 5, to-wit:

— > -— _~

Sg

‘Respondent's Exhibit H purports to show the pre-

sent value of the military pension. The combined

totals show $442,307.00 for Mr. Miller's life ex-

pectancy and JANET C. MILLER'’S life expectancy

after the death of Mr. Miller. This ASSUMES the

parties who are now divorced, would have remain-

ed married until the death of Mr. Miller at which

point Mrs. Miller would receive potentially

$54,356.00. Obviously this ASSUMPTION is

unreasonable because they are now divorced.

‘‘Exhibit-‘H’ also refers to Mrs. Millers receiving

$654.89 per month for 36.5 years, her life expec-

tancy, if she were to get the sum each month from

the date of their divorce on February 8; 1978. This

would total $286,842.00. This is one-half of the

military pension. Mrs. Miller also sought $600 per

month pending a decision in this matter. This

figure is meaningless because it is based on

several erroneous assumptions:

(a) The first erroneous assumption is that Mrs.

Miller is the ‘surviving’ party and entitled

to that sum on the death of Mr. Miller. Mrs.

Miller, now divorced, is ‘not a ‘‘surviving™

party.

» : * \ * ; " be y

ke SS =. rej Cone. + er oe 7

@

= -

45a

(b) The second erroneous assumption is the

$286,842.00 is not presently existent. This is

ihe sum generated over her life expectancy

of 36.5 years. The only present monthly sum

is the gross amount of $1,092.82. Mr. Miller

does not have, cash in hand $286,842.00.

(c) The third erroneous assumption is that this

sum would be paid regardless of the death of

Mr. Miller. With the divorce, JANET C.

MILLER has no claim to the pension on the

death of Mr. Miller. An award of this sum

would be meaningless because future

military pension payments would go to the

present Mrs. Miller if he died at any time

after they had been married one year.

“The reduction to present value assumes a cons-

tant factor of 6%. That the discount rate and infla-

tion will always total 6%. It simplifies matters to

say the discount rate and inflation will total 6%.

But this is pure speculation. There are lower total

figures when the discount is 6% and inflation is

zero, i.e., $181,357.00 but these figures are again

speculation and there are presently no such sums

available to Mr. Miller.

‘The principal fallacy of this exhibit is that there

are no present funds on hand to generate the

$387,591.00, $292,651.00, $227,243.00, or

$181,357.00, when various discounts are used.

This formula is presented in damage award litiga-

tion when the jury or court must arrive at the pre-

sent value of the damages before an award is a

lump sum due now. It is a total money judgment

that can be collected now by the injured litigant.

However, in this case there is and cannot be an

46a

award of $286,842.00 or $116,233.00 to Mrs.

Miller because there is no assurance Mr. Miller

will live 355 months, his life expectancy. Further,

there is no assurance Mrs. Miller will live 36.5

years to collect that sum. Since Mrs. Miller has no

legal survivor's benefits due to the divorce, the

death of Mr. Miller at any time would eliminate

her claim to one-half of the pension funds.

‘Exhibit ‘‘H"’ is meaningless when applied to the

military pension. It is simply a multiplication of the

pension times the life expectancy of the parties. It

is totally unrelated to the practical aspects of the

case which is that there is only a monthly income

involved, not a lump sum. If a lump sum were

awarded, this would be a judgment lien on Mr.

Miller's house. It would subject his salary to be

levied upon to satisfy the judgment. It would

forever disable him from borrowing any funds due

to the judgment.

‘In this day and age of social program, govern-

ment aid, high taxes, an individual with initiative

is continually penalized. The less one works the

more one expects for nothing. Why should Mr.

Miller continue to work at the bank when his

former wife decided to go to college for another <ol-

lege degree? Why shouldn't Mr. Miller quit the

bank and live on his military pension? If he con-

tinues to work at the bank, his former wife will

say he has two incomes and I have none - because

he has two incomes he can pay me one-half or

$600.00 a month, regardless of whether it comes

from the bank or his military pay. The short

answer to this is let Mrs. Miller go out an earn a

living like the rest of the people who produce in-

A a” | “~

47a

comes. Fancy figures of $286,842.00 or

$116,233.00 support only the fantasy of those who

are idle and prefer two more years of college life

rather than to produce a taxable income.”

i i s

To make the following as an additional Finding of

Fact:

The military pension of Mr. Miller is not marital

property subject to division by the Court. A military

pension has no true property characteristics in that it

cannot be sold, transferred, conveyed, or pledged and

it terminates on the death of the retired party. Since it

is not property, it is not a divisible asset that can be ap-

portioned between parties. A division of a military pen-

sion as marital property would not be alimony. An at-

tempted division of a military pension as marital pro-

perty cannot be enforced by legal process under 42

U.S.C., Sec. 659. A military pension is only a resource

that may be considered by the Court on the issue of

maintenance. The military pension was not acquired

by the joint or team efforts of the parties but was solely

attributable to the efforts and ability of Mr. Miller. The

wife’s contribution of a homemaker, regardless of

what value was to be assigned to it, was not a contribu-

tion to Mr. Miller being able to acquire the military

pension.

i i

To make the following as an additional CONCLU-

SION Of LAW: |

Mr. Miller was an R.O.T.C. Officer who retired

after twenty years (10 U.S.C., Sec. 8911) with his

eae

= Sas

48a

retirement pay computed under 10 U.S.C., Sec.

1401-1406. A widow of a retired military person is not

entitled to benefits unless her husband has elected to

pay a specific sum each month for his eligible survivors

to benefit from the retirement pay. 10 U.S.C., Sec.

1447-1455 provides for a Survivor Benefit Plan. Mr.

Miller pays into this plan. A ‘‘widow"’ is eligible under

this plan and includes a wife married at least one year

to him immediately prior to his death. Children under

18 years are eligible or those between 18-22 attending

college (Sec. i447). The annuity is payable to the

widow while she is living. If she remarries before age

60, the annuity is cut off. The Annuity also ceases with

her death. The monthly annuity to the widow is 55% of

the reiired pay including periodic raises (Sec. 1451 (b)).

The Congress has made absolutely no provision for

an ex-wife to participate in her husband's military pen-

sion. 42 U.S.C. 659 subjects monies owed by the

Federal government to individuals to be subject to ex-

ecution for alimony and child support. The 1977 Enact-

ment of Public Law 95-30, Section 501 (d) , 91 Stat. 160,

adding Sec. 462 (c), to be codified as 42 U.S.C., §662 (c)

provided that alimony ‘‘does not include any payments

or transfer of property or its value by an individual to

his spouse or former spouse in compliance with any

community property settlement, equitable distribution

of property, or other division of property between

spouses or former spouses.”’

In 1972 the Congress refused to allow the attach-

ment of a retired military person's pay to **. .. comply

with the order of a court of competent jurisdiction in

favor of a spouse, former spouse or children. . .”

(Cong. Rec. Senate, September 8, 1972, p. 29805-29812.

at Page 29809. The House concurred, Cong. Rec.

oF Sere: Prin

49a

House, Sepiember 12, 1972, p. 30148-30151).

Congress has pre-empted the field of retired

military pay. Article VI, Clause Two of the United

States Constitution is the supremacy clause which

gives Congress the preemption right where it has

acted. For a State Court to award a percentage of the

military pay as “marital property"’ would be an intru-

sion into a preemptive Federal law on military pen-

sions. (See the dissent in Ramsey v. Ramsey, 535 P. 2d

53 (Idaho); Wissner v. Wissner, 338 U.S. 655; Free v.

Blond, 369 U.S. 663; Yiatchos v. Yiatchos, 376 U.S.

306).

The right to receive retirement pay from the arm-

ed forces is not personal property. Retirement pay is

not a fixed or tangible asset. It has no cash surrender,

loan, redemption or lump sum value. It terminates upon

death. (In re Marriage of Ellis, 538 P. 2d 1347 (Colo.

1975), and 552 P. 2d 506 (1976) apd.; Finney v. Finney,

537 S.W. 2d 367 (Ark. 1976).).

Prior to and subsequent to the Uniform Marriage

and Divorce Act, Montana was not and is not now a

community property State (Cook v. Cook, 159 Mont. 98,

103-104, 495 P. 2d 591 (1972).). A community property

state treats property acquired during the marriage as

the property of husband and wife as partners (5 Pep-

perdine Law Review 191, 205, Note 48).

In California, a community property state, the

heirs of the ex-wife are not ertitled to the portion of the

retirement benefits the ex-wife would have received

had she lived (Fithian v. Fithian, 517 P. 2d 449, 455).

If a district Court in Montana were to regard a

military pension as marital property and award the ex-

wife a percentage of the pension, e.g., 38.5 percent,

'e

50a

and require that percentage to be paid to the ex-wife,

and upon her death to the heirs, and then her heirs

could bequeath the percentage as they saw fit, with the

percentage of 38.5 to continue as long as the ex-

husband were alive, the benefits would:

(a) be payable to a person not authorized by Con-

gress to receive the benefits, e.g., an ex-wife, cr

any of her heirs or any of her heirs’ heirs. This

could result in the percentages taking on the ap-

pearance of an oil royalty divivion, e.g., 1/10th,

1/8th, etc.

(b) allow benefits to be received by an ex-wife

even though she remarries because being

marital property, her remarriage would not af-

fect the property division by state law because it

is not alimony. This would oppose the Congres-

sional limitation that benefits are cut off to a

widow who remarried before age 60.

(c) allow benefits to be received by the heirs of

the ex-wife, the heirs’ heirs ad infinitum, until

the death of the ex-husband. This would oppose

the Congressional limitation that benefits to a

widow cease on her death and do not extend to

her heirs, exclusive of her children past 18 who

attend school.

The military pension of Mr. Miller is not marital

property subject to division by this Court. The military

pension was not acquired by the joint efforts of the par-

ties. Even if the pension were regarded as being ac-

quired by the joint efforts of the parties, the pension is

not marital property subject to division by the Court.

The military pension belongs exclusively to Mr. Miller.

The military pension can be considered as a resource

only on the issue of maintenance. Eschenburg v.

5la

Eschenburg, 33 St. Rep. 1198. did not consider whether

a military pension was marital property but only con-

cluded it was a resource to be considered on the issue

of maintenance.

The Respondent cannot be awarded a percentage

of the military pension of the Petitioner in that it is not

marital property subject to division by a State Court.

The Congress having pre-empted the fieid of military

retirement pay, and made no provision for an ex-wife

to share in that pay, a State Court has no authority to

make a division of the military pay.

i ed

In the event the Court declines to amend its Fin-

dings of Fact and Conclusions of Law on the military

pension, without waiving all of the proposed deletions

and amendments, the Petitioner submits the Court

amend its Conclusion of Law 4 (k) and 4 (f) which relate

to the Petitioner's aid Respondent's interest in the

military pension by making the following amendment:

“The Respondent shall pay 38.5 percent of the

State and Federal Tax assessed to the Petitioner

on his military pension from and after the date of

this judgment. The State and Federal taxes that

are to be paid on the Respondent's 38.5 share shall

be deducting by reducing the gross amount by the

amount of State and Federal taxes which the Peti-

tioner would have to pay if the retirement pay

were his only income and he claimed two exemp-

tions. If the Petitioner is ruled exempt from

Federal and State Income taxes on the portion of

retirement payments awarded to the Respondent,

or if the Respondent can be taxed directly on the

52a

same, then the reduction will not. be allowed. If

this reduction were not provided for in some man-

ner, then the Petitioner would be paying tax on the

38.5 percent awarded to the Respondent.”

a

53a

APPENDIX I

SPECIFICATION OF ERRORS IN PETITIONER'S BRIEF

TO THE MONTANA SUPREME COURT—EXCERPTS

The questions presented by Appellant herein may

be subsumed under two main headings. .

1. Did the Trial Court err in awarding to Respon-

dent 38.5 percent of Petitioner's monthly military pen-

sion?

Under this general issue may be grouped certain

questions:

A. Is such a pension a ‘‘property interest’’ which

is the subject of a division of marital assets?

B. Does the Court have the power to make such

"an award?

_C. Does the doctrine of Federal Preemption of the

Field apply? (Article VI of the Constitution for

the United States of America).

D. Are the provisions of paragraph 4 of the Trial

Court's Conclusions of Law (Findings, etc., p.

11, lines 11-20) in error?

2

&

:

oe

pO

.

»

54a

APPENDIX J

May—June 1980 — Volume XXIV, Issue 3

ARMY ECHOES

Test program begins for recall to active duty

Approval for a retiree mobilization test program has

been granted. Beginning in May, 1980 about 865

Re.ular Army retirees will receive preassignment let-

ters and orders directing them to report to the in-

stallation commander for active duty in the event of a

national emergency. They will be slated for assignment

to garrisons and hospitals as follows:

© 351 positions at Ft. Benning, Georgia

© 148 positions at Ft. Carson, Colorado,

© 88 positions at Ft. Riley, Kansas, and

© 278 positions at Ft. Lewis, Washington.

A voluntary recall program will be conducted\at

Forts Carson and Riley shortly after the mandatiey

program begins. Two lists will be sent to the in-

stallations having both programs. Preassigned retirees

will be one list and unassigned retirees living within

300 miles of the installation on the other. Those not

earmarked for preassignment can be contacted by the

installation to see if they desire to volunteer.

Expanded program

After evaluation and modification of the pilot phase,

the program will be expanded to include all Army in-

stallations in the contiguous 48 states. This will begin in

early 1981. A technical difficulty has prevented the

retirees in Alaska and Hawaii from being included in

the data base, however, they will be added as soon as

possible.

55a

About 82,000 Regular Army retirees have been iden-

tified and placed in Category I. The data base will

eventually include an additional 130,000 Regular Army

personnel in Category II.

About 70% of those participating in the pilot

program will come from within 300 miles of the in-

stallations mentioned above. However, some recalled

may reside anywhere in the 48 contiguous states if they

are selected to fill requirements at the pilot program

installations because there are no unfilled require-

ments closer to their homes which they could meet. At the

present time only positions at installations in the con-

tinental United States are being reviewed to determine

possible requirements for retirees.

Purpose of program

The recall program, under development for two

years, is designed to be used for military assignment

during full mobilization. It will allow the Army to

deploy younger soldiers, and staff the resultant vacant

positions with retirees. Although the Army has so far

been able to keep the active Army components at or

near authorized strength, significant shortages of per-

sonnel have developed in the Reserve Components.

There are not enough trained people to meet

mobilization and war-fighting needs. The Army had to

make plans to alleviate the possible impact this short-

age may have, and retired personnel provide a large

number of skilled military personnel who could be of

great value, if required.

In case you missed the last issue of Army Echoes, the

age and grade criteria and category definitions are

reprinted here. The limits being used for age are: age

64 for general officer; 62 for warrant officers; 60 for

all others. It should be mentioned that recall of retired

4

aI. am

oe

56a

General Officers will be managed on a personal case

by case basis by the Army Chief of Staff. Age limits are

of comparatively lesser significance for general of-

ficers than for other categories of potential recalls.

Category I Regular Army retirees are those who

meet the age and grade criteria, were not retired for

permanent disability, have a CONUS address and have

been retired for les than five years. Category II Regular

Army retirees meet the same qualification as above,

but they have been retired for more than five years.

Category III includes all other retirees, including those

who were retired for a permanently disqualifying

disability or who became disabled after retirement.

Total personnel available in Categories I and II are

estimated over 200,000. There are no plans to develop

mobilization data on Category III personnel at this

time.