Petition — Powell v. Powell

Office -Suoreme Court, U.S

FiLEw»

81-134 JUL 16 198!

TE

No.

In Tue

Supreme Court of

Che United States

WILLIE POWELL,

Petitioner

vs.

ELIZABETH POWELL,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CAI IFORNIA

AND TO THE THIRD DISTRICT COURT OF APPEAL

CARL M. STEIN

(counsel of record)

JENNINGS & JENKS

3435 American River

Drive, Suite C

Sacramento, CA 95825

(916) 482-4910

i

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER THE CALIFORNIA SUPERIOR COURT IN

AND FOR THE COUNTY OF SACRAMENTO, THE

CALIFORNIA THIRD DISTRICT COURT OF APPEAL

AND THE CALIFORNIA SUPREME COURT ERRED IN

RULING THAT THE SUPREMACY CLAUSE OF THE

UNITED STATES CONSTITUTION DID NOT PRE-

CLUDE THE CALIFORNIA STATE COURTS FROM

DIVIDING MILITARY RETIREMENT PAY PURSUANT

TO STATE COMMUNITY PROPERTY LAWS.

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

(1) Petitioner, WILLIE POWELL, repre-

sented by Cari M. Stein and the Law Offices

of Jennings & Jenks, 3435 American River

Drive, Suite C, Sacramento, California

95825; and (2) Respondent, ELIZABETH

POWELL, represented by Attorney Peter

Smurr, P. O. Box 505, Carmichael,

California 95608.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .

PARTIES TO PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REFERENCE TO OPINIONS BELOW

JURISDICTION . ....s.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED .

STATEMENT OF CASE...

FACTS RELEVANT TO QUESTION I .

REASONS FOR GRANTING THE WRIT

PRAYER . . «+ « -

APPENDIX A. ..+ « « «

APPENDIX B....s. «

APPENDIX C..... +

APPENDIX D.... -

TABLE OF AUTHORITIES

Cases

McCarty v. McCarty (decision June

26, 1981 = S.€t. 80-5)

Hisquierdo v. Hisquierdo, 439 U.S.

581; 59 L.Ed. 2d 10; S.Ct. 802

Constitut

Article 6, Section 2...

ion

Statutes

10 2u.8.¢.8. 1331 co 1336,

1406, 1431-1455, 3929,

1404,

2771 .

1405,

~

Ke F- OS Ul Sf WwW ND ND

wo

1,2

1

REFERENCK TO OPINIONS BELOW

The opinion of the California Su-

perior Court, the California Court of

Appeals for the Third District of the

State of California and the order of the

California Supreme Court. The opinion of

the California Court of Appeals is

appended hereto as Appendix A. Peti-~

tioner's motion for hearing in the Supreme

Court of the State of California was

denied and is appended hereto as Appendix

B. The Superior Court judgment is ap-

pended hereto as Appendix C€ and Findings

of Fact are Appendix D.

JURISDICTION

The opinion of the California Third

District Court of Appeals was delivered on

February 24, 1981. On April 3, 1981,

petitioner timely filed a motion for hear-

ing in the California Supreme Court. On

April 22, 1981, (see Appendix B) the

California Supreme Court denied the peti-

tion for hearing. The jurisdiction for

this court is invoked pursuant to the

United States Constitution and pursuant

to 10 U.S.C.S. 1331 - 1336, 1404, 1405,

1406, 1431 - 1455, and other relevant

2

sections dealing therewith, including 10

U.5.C.8. 3929 and 10 U.S.C.S. 2771

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

In addition to those statutes enum-

erated under jurisdiction, the Constitu-

tional provision which is involved in this

writ of Certiorari is Article 6, Section 2,

otherwise known as the Supremacy Clause

which reads as follows:

"This constitution, and the laws

of the United States which shail

be made in pursuance thereof; and

all treaties made, or which shall

be mace, under the authority of

the United States, shall be the

supreme law of the land; and the

judges in every state shall be

bound thereby, anything in the

constitution of laws of any

state to the contrary notwith-

standing."

STATEMENT OF THE CASE

The within case deals with one

issue; to wit, whether or not the State

of California can impose its community

property laws upon a retired military per-

son's pension and retirement pay and

3

whether or not in doing so, the State of

California and its courts are violating

the Supremacy Clause of the United Statcs

Constitution. This federal question was

raised during trial in Superior Court on

the issue of whether the military reti’ vo»

ment pay was community property. The

trial court initially reserved jurisdic-

tion over whether Willie Powell's military

retirement pay was community property sub-

ject to division by the state court. On

September 28, 1980, trial was held at

which time through trial brief and through

oral arguments as reflected in the repor-

ter's transcript of the proceeding on

September 28, 1979, the Supremacy Clause

argument was raised and argued. (R.T., pg.

11)

FACTS RELFVANT TO QUESTION I

All factual questions have been

handled by stipulation in this matter.

Essentially, this is a domestic re-

lations matter arising under the Family

Law Act of the State of California. An

initial Interlocutory Judgment of Dissolu-

tion was granted and the Final Judgment

of Dissolution was subsequently granted.

In the Interlocutory Judgment of Dissolu-

4

tion, the court reserved jurisdiction

over the issue of whether or not the mili-

tary retirement pay of Willie Powell was

in fact the communtiy property of the

parties. It was stipulated that if in

fact the State of California had juris-

diction to divide petitioner's military

retirement pay, then respondent herein,

Elizabeth Powell, would be entitled to

credit for 20.5 years of the 23 years of

military service. The issue before the

court, therefore, was whether California

had jurisdiction to divide the said

retirement pay.

REASONS FOR GRANTING THE WRIT

The question of whether or not e

state's community property laws may be

imposed in such a manner to divide the

retiremen pay of an individual who has

become entitled to said retirement pay

because of his services in the United

States Armed Forces has not been decided

by the United States Supreme Court. How-

ever, the United States Supreme Court, in

Hiscuierdo v. Hisquierdo, 439 U.S. 581;

59 L.Fd. 2d 10; 99 S.Ct. 802, has ruled

railroad retirement pay is not subject to

the community property laws of an individua’

state.

Petitioner herein finds himself in

a position of having to keep the law of the

case alive in order to have the benefit of

any Supreme Court cases dealing with the

issue of military retirement pay. Unless

the court grants this Writ of Certiorari,

petitioner Willie Powell, will have no re-

course and will be bound by the decisions

of the State of California. Moreover, the

United States Supreme Court in McCarty v.

McCarty (decision June 26, 1981, S.Ct. 80-

5) has just ruled that military retirement

pay is not subject to division by a state

court.

PRAYER

WHEREFORI., PREMISES CONSIDERED,

Petitioner respectfully pravs that this

Honorable Court issue a \/rit of Certiorari

to the Supreme Court of the State of

California to review this cause for the

reason:; stated above, and that this Court

reverse the holdings of the California

Superior Court, the California Third Dis-

trict Court of Appeal and the California

Supreme Court.

6

Respectfully spbmitted,

JENNINCS & JENKS

>

; yy bbe . f .

se Ee a ae ae: ) 7)

CERTIFICATE OF SERVICE

I, Carl If. Stein, a member of the Bar of

this court and counsel of record for

petitioner, hereby certify that on this

20 day of July, 1981, I served copies

of the foregoing "Petition For Writ Of

Certiorari To The Supreme Court Of The

State Of California And To The Third

District Court Of Appeal" upon the

California Supreme Court, the Third

District Court of Appeal, and the

Honorable Joseph A. DeCristoforo, Judge

IT, Carl M. Stein, do hereby say

as follows:

1. That on July 20, 1981, I

deposited in a United States Post Office

with first class postaye prepaid, and

properly addressed to the United States

Supreme Court, I mailed this Writ of

Certiorari. Said mailing was done at

the Federal Post Offices, 2801 Arden

Way, Sacramento, California.

Dated:

Sworn to and subscribed before me

on the above written date.

Vig LX FL) A~L A?

Sharon Ford-Lamb

SHARON FORD

NOTARY PUBLIC. CALIFOUNTA

PRINCIPAL OFFICE IN

SACRAMENTO COUNTY

A My Commission Expires October 21, 1983

7

APPENDIX A

OPINION OF ORIGINAL SUBMISSION

In re the Marriage of ELIZABETH

POWELL and WILLIE POWELL,

ELIZABETH POWELL,

7 Respondent,

vs.

WILLIE POWELL,

Appellant.

No. 3 Civil 19762

Third District Court of Appeals

Eastern District of California

February 24, 1981

#

Appeal from the Third District Court of

Appeal for the Eastern District of

California.

Betore PARAS, EVANS and BI.EASE,

Circuit Judges.

PARAS, Acting P.J.

"The sole issue in this case is the

validity of our Supreme Court's ruling in

In Pe Marriage of Milhan (1980) 27 Cal.3d

765, to the cffect that the military retire-

ment benefits of a husband can be community

property. We do not question the holdings

of the Supreme Court; we follow them.

The judgment is affirmed.:

Best Copy Available

9

APPENDIX RB

~-ERK'S OFFICE, SUPREME COUR

4250 STATE BUILDING

San Francisco, Cauirornnia 94102

——— ier

I have this day filed Order °

<a e ee-

— —— ee = re

In re: _._3_ Civ, No... 19762.

_.... Marriage of Powell...

Best Copy Avaslabte

10

APPENDIX ©

In re the Marriage of

Petitioner: ELIZABETH POWLLI.

anc

Respondent: WILLLF POWELL

No. 737055

Superior Court of the State of California

In and For the County of Sacramento

May 2%, 1980.

ll

Judgment In Re Pension Plan

Superior Court For The State Of

California, In And For The County

Of Sacramento

Before JOSEPH J. DeCRISTOFORO

"The above-entitled action came

regularly for hearing in Department20 of

the above-entitled Court, before the

Honorable Judge JOSPEH A. DeCRISTOFORO,

without jury. Petitioner, ELIZABETH

POWELL, appeared and was represented by

the Law Offices of Peter H. Smurr;

respondent, WILLIE POWELL, appeared per-

sonally and was represented by the I.aw

Offices of Jennings & Jenks. Oral and

documentary evidence was introduced

during the trial of the case, including

points and authorities and memorandum

briefs previously submitted which were

deemed to be trial briefs by agreement

of the parties and made part of the

Court's record.

Findings of fact and conclusions

of law having been duly entered by the

Court, IT IS HEREBY ORDERED, ADJUDGED AND

DECREED AS FOLLOWS:

1. ‘that the retirement fund to

the United States Air Force of respondent

Best Copy Available

12

WILLIE POWELI., is hereby declared to be,

in part, the community property of the

partiecs. Petitioner's share of said

retirement is one-half of 20.5 / 234.0.

2. That respondent husband is to

receive credit for $600.00 of the first

retirement funds to be paid, said retire-

ment benefits commencing on May of ‘979.

3. That said retirement benfits

owed to respondent by petitioner shall

be paid on the 15th of each month based

on che same ratio being one-half of

20.5 / 23.0 of any payment made until

the death of WILLIE POWELL.

Best Copy Available

13

APPENDIX DPD

In re the Marriage of

Petitioner: ELIZABETH POWELL

and

Respondent: WILLIE POWELL

No. 737055

Superior Court of the State of California

In and For the County of Sacramento

January 25, 1980

14

Findings of Fact and Conclusions

of Law

Superior Court For The State Of

Culifornia, In And For ‘the County

Of Sacramento

Before JOSEPH A. DeCKRISTOFORO

"The above entitled action came

regularly for hearing in Department 20

of the above entitled Court, before the

Honorable JOSEPH A. DeCRISTOFORO, Judge

Presiding, without jury. Pctitioner,

ELIZABETH POWELL, appeared and was rep-

resented by theLaw Offices of Peter H.

Smurr; respondent, WILIIE POWELL,

appeared personally and was represented

by the law Offices of Jennings & Jenks

by C. Breck JOnes.

Oral and documentary evidence was

introduced during the trial of this cause,

including points and authorities and

memorandum briefs previously submitted

which were deemed to be trial briefs by

agreement of the parties and made a part

of the Court's record.

On December 28, 1979, in Department

10, of the above entitled Court, before

the Honorable JOSEPH A. DeCRISTOFORO,

Judqe Presiding, a hearing on findings of

15

fact and conclusions of law was hel«'. Pur-

suant to the trial of the within matter

and said hearing on objections to findings

of facts and conclusions of law, the court

amkes the following findings of fact and

conclusions of law:

FINDINGS OF FACT

1) That as per testimony of peti-

tioner wife, she and her husband were

married and were legally unseparated man

and wife during 20.5 years of her hus-

bard's service time.

2) That as per testimony of

respondent husband, he retired after 23

years of federal service with retirement

pay of $538.91 awarded. He had cntcred

the service on August 20, 1956, and

retired on May l, 1979.

3) That this payment of $538.91

was for retirement only and was not based

on disability.

4) That respondent has made no

contribution in money to said pension plan

were accruing.

CONCLUSIONS OF LAW

1) Pursuant to Gorman v. Gorman, 98

C A 3d 454, said retirement is communtity

It

propecty.

2) That by agreement between the

purties, the fractional ownership ratio is

ayreed to be 20.5 (for wife) over 23 (for

husband) years of service, i.e. 20.5/23.0.

3) That petitioner wife's share of

retirement thercfore is one-half of 20.5

ot 23 of the retirement amount received by

respondent husband.

4) That respondent husband on his

retirement received the sum of $538.91 per

month.

5) That therefore petitioner is to

receive currently the sum of $239.85

based on the total retirement of $518.91

monthly.

6) That pursuant to the stipulated

interlocutory decree, respondent husband

is to receive credit for $600.00 of first

retirement funds to be paid, said retire-

ment benefits commencing on May of 1979.

7) That petitioner wife should

therefore not receive any payment for May

or June 1979, but should receive the sum

of $121.30 for the month of July 1979 and

$239.00, more or less, dcpending on in-

creases and dec: cases puici by said military

retirenent thereafter, on the 15th of cach

17

month based on the same ratio being one-

half of 20.5/23.0 of any payment made

until the death of said WILLIE POWELL.

LET JUDGMENT HEREBY ORDERED BE

ENTERED ACCORDINGLY.