# Petition — Powell v. Powell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1050

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2576%3A1. Public record. Not legal advice.