Appendix — Shaff v. United States

> oy o Office-Supreme Court, U.S.

S<-j94y FILED

JUN 2 1983

NO.

ALEXANDER L. STEVAS,

CLE

SUPREME COURT OF THE UNITED kesages—~

OCTOBER TERM, 1982

LOIS EVELYNE SHAFF,

Petitioner,

Vv.

UNITED STATES OF AMERICA, VERNE

ORR, Secretary of the Air Force,

and LUZ ZORAIDA VELANDIA SHAFF,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY K. CIMMET

Civic Center Building

507 Polk Street, Suite 250

San Francisco, California 94102

Counsel of Record for Petitioner

LOIS EVELYNE SHAFF

INDEX TO APPENDIX

* Appendix

Appended Materiais Designation

OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

CIRCUIT (January 4, 1983) A

ORDER OF THE COURT OF APPEALS

DENYING PETITION FOR REHEARING

(February 28, 1983) B

OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA (October

30, 1981) *

JUDGMENT OF THE DISTRICT COURT

(November 25, 1981) D

SURVIVOR BENEFIT PLAN, 10 USC

1447-1455

tr

UNIFORMED SERVICES FORMER SPOUSES’

PROTECTION ACT - PUBLIC LAW 97-252,

Title X, 96 STAT. 730 ET SEQ. F

oij-

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

(January 4, 1983)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOIS EVELYNE SHAFF,

Plaintiff,

vs.

UNITED STATES OF AMERICA; DR.

MARK HANS, Secretary of the

Air Force; and MAX CLEAND,

Administrator of Veterans

Affairs,

Defendant.

LUZ ZORAIDA VELANDIA SHAFF,

Plaintiff-in Interven-

ticn-Appellant,

vs.

LOIS EVELYNE SHAFF, UNITED

STATES OF AMERICA; DR. MARK

HANS, Secretary of the Air

Force; and MAX CLEAND, Admi-

nistrator of Veteran Affairs,

Defendants-in-Interven-

tion-Appellees.

FILED

JAN 4 1983

PHILLIP B.

WINBERRY

Clerk, U.S.

COURT OF

APPEALS

No. 82-4041

-C. No. Co-

0-0977 RPA

co UV

OPINION

ttle de de de a ee oe

Appeal from the United States

District Court

for the Northern District

of California

Robert P. Aguilar

District Judge, Presiding

Argued and Submitted September 16, 1982

Before: Wallace, Kennedy and Nelson,

Circuit Judges

NELSON, Circuit Judge:

This case concerns a dispute be-

tween two women, Lois Shaff and Luz Shaff,

each of whom claims to be the proper bene-

ficiary of an annuity under the military

Survivor Benefit Plan, 10 U.S.C. §§ 1447-

1455 (SBP). SBP provides annuity benefits

to designated survivors upon the death of

a participating military retiree. The

District Court found Lois Shaff, the de-

ceased retiree's first wife, to be the

"eligible widow" entitled to the annuity

under 10 U.S.C. §1450(a)(1). Accordingly,

the District Court granted summary judg-

ment in favor of Lois Shaff and against

Luz Shaff, the retiree's second wife. We

agree that Lois Shaff is Major Shaff's

legal widow, hut for the reasons set forth

below, we reverse the summary judgment in

her favor and remand.

-2-

I. FACTS

Major Donald Shaff married Lois

Shaff in 1947. In 1953, Donald and Lois

moved to California, where Lois ‘still

lives. From 1959-1962, Shaff was sta-

tioned in Colombia, where he lived with-

out Lois except for occasional visits.

Major Shaff met Luz Zoraida Velan-

dia while in Colombia, and had a child by

her in December 1962. Major Shaff return-

ed to live with Lois in California in 1962,

and retired from the Air Force in 1964.

In 1967, Major Shaff went back to Luz in

Colombia. He never saw nor spoke to Lois

again, and kept his whereabouts secret

from her the rest of his life.

In March 1973, Major Shaff obtained

an ex parte divorce from Lois in the Do-

minican Republic. Notice of the divorce

was published only in a Dominican news-

paper. Lois first learned of the divorce

in a cryptic letter from Major Shaff in

-3<-

1974.

Major Shaff married Luz Shaff

one month after the divorce in 1973. One

month after that, he elected to participa-

te in the SBP, naming as beneficiaries his

"wife and children." On the election cer-

tificate, Major Shaff identified his wife

as Luz Shaff. Major Shaff's children are

Donald, Jr., born 1962, and Leo, born1974.

He had no children by Lois.

Major Shaff died in 1978. Luz

claimed benefits under the SBP. Donald,

Jr., and Leo were named on the claim ap-

plication form. The Air Force paid annuity

benefits to Luz under the SBP until Lois

made a claim for benefits as Shaff's law-

ful widow. Payments have been suspended

pending the resolution of this dispute.

II. PROCEDURAL BACKGROUND

Lois sued to compel the Air Force

to pay the annuity benefits to her as Major

Shaff's legal widow. Luz intervened. On

o4-

cross-motions for summary judgment, the

District Court found that Lois was Major

Shaff's lawful widow and entitled to the

annuity benefits under the SBP. ‘The court

denied Luz's motion for summary judgment,

and granted summary judgment to Lois and

the Federal parties as defendants-in-inter-

vention and dismissed Luz's complaint-in-

intervention. The court granted summary

judgment in favor of Lois as plaintiff and

against the Federal parties as defendants.

Luz appeals.2/

III. ISSUES AND STANDARD OF REVIEW

The issues in this case are:

1. Whether the District Court

was clearly erroneous in concluding that

Lois is Major Shaff's legal widow; and

2. Who is entitled to the an-

nuity benefit.

Because this is an appeal froma

summary judgment, we engage in an indepen-

dent review to determine whether summary

judgment is proper. Gaines v. Haughton,

-5-

645 F.2d 761, 769 (9th Cir. 1981). However,

we accept on review the District Court's a

interpretation of the state family law un-

less it is clearly erroneous. Id. at770.

IV. DISCUSSION

Under the SBP, annuity benefits

are paid to the survivors of a participa-

ting military retiree pursuant to 10 U.S.C.

§1450, which provides:

(a) Effective as of the

first day after the death of a

[participating retiree] th

a monthly annuity . . . shall be

paid to--

(1) the eligible widow

or widower;

(2) the surviving de-

pendent children in equal

shares, if the eligible widow

or widower is dead, dies, or

otherwise becomes ineligible

under this section;

(3) the dependent chil-

dren in equal shares if the

[participating serviceperson]

- « « elected to provide an an-

nuity for dependent children

but not for the spouse; or

(4) the natural person

designated ... if there is

no eligible beneficiary under

clause (1) or (2).

In order to be entitled to the

-6#-

annuity, Luz must qualify as an "eligible

widow." 10 U.S.C. §1450(a)(1). The sta-

tute defines the term "widow" to mean the

"Surviving wife" of the retiree, 10 U.S.C.

§1447(3), but does not define "wife." That

definition must be found in the state fa-

mily law, since domestic relations are a

matter of state law. See Hisquierdo v.

Hisguierdo, 439 U.S. 572, 581, 99 S. Ct.

802, 808, 59 L. Ed. 2d 1, 10-11 (1979).

.The District Court found that

California law would not recognize Major

Shaff's Dominican Republic divorce, and

therefore that Major Shaff's marriage to

Luz would be illegal and void as a bigamous

subsequent marriage under California Civil

Code §4401. The District Court reasoned

that the divorce would be invalid in Cali-

fornia as against public policy because:

1) Lois had no notice of the proceedings,

Mullane v. Central Hanover Trust Co., 339

U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed.

=F=

865, 873 (1950), In re La Opinion, 10 Cal.

App. 3d 1012, 1019 n.3, 89 Cal. Rptr 404,

409 n.3 (1970); and 2) the Dominican Re-

bublic had no legitimate interest in the

Marriage since neither Donald nor Lois re-

Sided there, Crouch v. Crouch, 28 Cal. 2d

243, 249, 169 P.2d 897 (1946). The Dis-

trict Court was not clearly erroneous in

its application of the California family

law, and we accept its conclusion that Lois,

not Luz, is Major Shaff's legal widow. Ac-

cordingly, we affirm the District Court's

summary judgment against Luz.

However, we cannot agree with the

District Court that Lois is entitled tothe

annuity. For existing retirees as of 1972,

the SBP is a voluntary plan, in which exis-

ting retirees must affirmatively elect to

participate. 2/ Act of September 21, 1972,

Pub. L. No. 92-425 §3(b), 86 Stat. 706, 711-

712, as amended by Department of Defense

Appropriation Authorization Act of 1974,

-g-

Pub. L. No. 93-155, Title VIII $804, 87

Stat. 605, 615 (1973); Dept. of Defense

Directive No. 1332.27, §§60l1(a), 601(b)

(1974). Under the SBP, a portion of the

participant's retired pay is deducted to

provide an annuity to survivors after the

retiree's death. A participating retiree

may designate as beneficiary either the

spouse, the spouse and children, or the

children only.3/

In this case, while Major Shaff

elected to participate, it is clear that

his election was based on a desire to pro-

vide the annuity for Luz and their children.

He elected to participate in the SBP one

month after marrying Luz, and identified

her on the election certificate as his

spouse. Major Shaff did not elect to par-

ticipate for Lois's benefit. He elected

to provide benefits to his "wife and child-

ren" in the mistaken belief that Luz was

his spouse.

-

Since the election was voluntary,

we find that the mistake invalidates Major

Shaff's election to provide an annuity for

his spouse. Accordingly, Lois is not en-

titled to the annuity, and the summary judg-

ment in her favor is reversed. Furthermore,

the surviving dependent children become the

sole designated beneficiaries; the annuity

should be paid under 10 U.S.C. 1450(a)(3).

We therefore remand the case for appropriate

proceedings not inconsistent with this opinion.

REVERSED IN PART AND REMANDED.

-10-

FOOTNOTES

1. The Federal Defendants did not appeal

the summary judgment against them in favor

of Lois. No disposition of this ‘appeal

could adversely affect their interests

since their position is analogous to that

of an interpleader. The summary judgment

between Lois and the Air Force does not

directly affect Luz's interest because we

affirm summary judgment against Luz as in-

tervenor; as a general rule, Luz as inter-

venor would not have standing to appeal

that part of the judgment because it does

not affect her interests. 7A C. Wright and

A. Miller, Federal Practice and Procedure

§1923, at 632-33 (1972); See Boston Tow

Boat Co. v. United States, 321 U.S. 632,

64 S. Ct. 776, 88 L. Ed. 975 (1944); Smuck

v. Hobson, 408 F.2d 175 (5th Circ. 1969)

cited in Spangler v. Pasadena City Board of

Education, 427 F.2d 1352 (9th Cir. 1970).

Nonetheless, we have jurisdiction to review

a} }-

that part of the judgment, because the part

of the judgment from which Luz is entitled

to appeal is so closely interwoven with the

summary judgment between Lois and the Air

Force that its consideration is necessary

to determine Luz's rights. See Moitie v.

Federated Department Stores, Inc., 61l F.2d

1267 (9th Cir. 1980), rev'd on other grounds

452 U.S. 394, 101 S. Ct. 2424, 69 L. Ed. 2d

103 (1981); see also Kicklighter v. Nails

by Jannee, Inc., 616 F. 2d 734 (5th Cir.

1980), and Inre Estate of McDill, 14 Cal.

3d 831, 840, 122 Cal. Rptr. 754, 759 (1975).

To do otherwise would be to favor form at

the expense of substance, Bryant v. Tech-

nical Research Co., 654 F.2d 1337 (9th Cir.

1981), and permit an unjust result in this

case.

2. For those retirees initially entitled

to retired pay-on or after September 21,

1972, participation in the plan is automa-

tic, unless the person elects not to parti-

-12-

Cipate. 10 U.S.C. §1448(a)(2)(A).

3. An unmarried retiree who has no depen-

dent children may designate as a benefi-

ciary a natural person with an insurable

interest in the retiree, 10 U.S.C. §1448

(b), but that beneficiary will only be paid

the annuity if there is no eligible spouse

or child upon the retiree's death. 10 U.

S.C. §1450(a) (4).

-13-

APPENDIX B

ORDER OF THE COURT OF APPEALS DENYING

PETITION FOR REHEARING (February 28,

1983)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOIS EVELYNE SHAFF, et al.,

Defendants in Interven-

tion-Appellees.

LOIS EVELYNE SHAFF, ) FILED

) FEB 28 1983

Plaintiff, ) PHILLIP B.

) WINBERRY

Vv. ) Clerk, U.S.

) COURT OF

UNITED STATES OF AMERICA, ) APPEALS

et al., )

) No. 82-4041

Defendants. )

)D.C. No. CV-

LUZ ZORAIDA VELANDIA SHAFF, ) 80-977

)

Plaintiff in Interven- y*- i Bn pl

tion-Appellant, )

)

™ ORDER

)

)

)

)

)

Before: WALLACE, KENNEDY, and NELSON,

Circuit Judges.

The panel as constituted in the above

case has voted to deny the petition for re-

hearing and to reject the suggestion for a

rehearing en banc.

The full court has been advised of

the suggestion for an en banc hearing, and

no active judge of the court has requested

a vote on the suggestion for rehearing en

banc. Fed. R. App. P. 35(b).

The petition for rehearing tis denied

and the suggestion for a rehearing en banc

is rejected.

APPENDIX C

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA (October 30, 1981)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LOIS EVELYNE SHAFF, ) FILED

) OCT 30 1981

Plaintiff, ) WILLIAM L.

) WHITTAKER

vs. ) Clerk, U.S.

)DISTRICT COURT

UNITED STATES OF AMERICA, )NORTHERN DIS-

et al., ) TRICT OF CA-

) LIFORNIA

Defendants.

No. C-80-

LUZ ZORAIDA VELANDIA SHAFF, 977 RPA

Plaintiff in

Intervention, OPINION

vs.

LOIS EVELYNE SHAFF, et al.,

Defendants in

Intervention.

ee eee ee ee ee

There is no genuine dispute as to the

material facts of this case. Major Donald

E. Shaff [hereinafter "Donald" or "Major

Shaff"] retired from the United States

Air Force on March 3l, 1964. In 1967 he

left his wife, Lois Evelyne Shaff [herein-

after "Lois"], to whom he had been married

ENTERED IN CIVIL DOCKET Nov. 2, 1981

since 1947, and moved to Bogota, Columbia

without informing her as to his whereabouts.

During his residence in Columbia, on March

2, 1973, Major Shaff obtained an ex parte

divorce from Lois in San Cristobal, Domi-

nican Republic. Constructive service of

the divorce proceedings on Lois was ef-

fected through publication in a Dominican

newspaper, the "Ultima Hora." Major Shaff

was in Bogota at the time of the divorce

proceedings. On April 5, 1973, he mar-

ried a Columbian citizen, Luz Zoraida

Velandia [hereinafter "Luz"], in a cere-

mony in Bogota.

Pursuant to 10 U.S.C. §1447, et seg.,

Major Shaff chose to participate in the

Survivor Benefit Plan of the Armed Forces

[hereinafter "SBP"] on May 8, 1973, and

elected coverage for "My spouse and child-

ren," naming buz and his son by Luz, Don-

ald Eduardo, as beneficiaries. Major Shaff

2

returned to the United States in early

1978 for medical purposes and died at the

Veteran's Administration Hospital in Bata-

via, New York, on March 28, 1978.

Luz applied for and received arrearages

of Air Force retired pay in the amount of

$1,118.19. Luz also applied for and be-

gan to receive benefits under the SBP. At

the time of Luz' application, Major Shaff's

Air Force file contained no suggestion

that Lois was or had been his wife. In

October 1978, Lois, who had not known her

husband's whereabouts since his departure

in 1967, finally learned of his remarriage

to Luz and of his subsequent death. Lois

also applied for survivor benefits in Oc-

tober 1978, whereupon payments to Luz were

stopped pending a resolution of the dispute.

Luz had received $829.96 under the SBP

prior to that-time.

The Air Force requested instruction

regarding the conflicting claims fromthe

3

office of the Comptroller General of the

United States. On January 23, 1980, the

Comptroller General's office filed its

decision on the matter, declining to de-

termine which of the claimants was the

rightful widow of Major Shaff and refer-

ring the parties to a court of competent

jurisdiction. This action followed. All

parties have filed cross-motions for sum-

mary judgment.

The Survivor Benefit Plan, 10 U.S.C.

§1447 et seg., is a voluntary program en-

acted by Congress in 1972 to enable mili-

tary retirees to continue supporting cer-

tain spouses, dependent children, and

others beyond the retiree's date of death.

Since portions of the retiree's retired

pay are deducted in order to provide the

coverage selected, SBP is a contractual,

partially self-financed plan. 10 U.S.C.

§1450(a), providing for the payment of

annuities, states:

Effective as of the first day after

the death of a person to whom section

1448 of this title applies..., a

monthly annuity under section 1451

of this title shall be paid to--

(1) the eligible widow or widower;

(2) the surviving dependent children

in equal shares, if the eligible

widow or widower is dead, dies,

or otherwise becomes ineligible

under this section;

(3) the dependent children in equal

shares if the person to whom sec-

tion 1448 of this title applies

elected to provide an annuity

for dependent children but not

for the spouse; or

(4) the natural person designated

under section 1448(b) of this

title...if there is no eligible

beneficiary under clause (1) or

(2).

It is clear from the language of the sta-

tute that no outside beneficiary may be

designated if there is either an eligible

widow or surviving dependent children as

defined by the statute. Thus, the fact

that Luz was named as Donald's "wife" on

his SBP application is net controlling if

she is not in fact the "eligible widow"

under 10 U.S.C. §1450(a)(1).

10 U.S.C. §1447(3) provides:

5

"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.

No definition of the term "wife" is pro-

vided by the statute. Nor could federal

law otherwise provide such a definition,

for, as federal courts have long recog-

nized, "[t]he whole subject of the domes-

tic relations of husband and wife ... be-

longs to the laws of the States and not

to the laws of the United States." His-

quierdo v. Hisquierdo, 439 U.S. 572, 581

(1979), quoting In re Burrus, 136 U.S.

586, 593-94 (1890). Questions bearing on

family property and the protection of mar-

ried women involve "intensely local in-

terests," United States v. Yazell, 382

U.S. 341, 349-(1966), and therefore de-

volve to State regulations. The Court

thus turns to California law for the de-

6

termination of the identity of Major Shaff's

legitimate wife.

The validity of the marriage of Donald

and Lois in 1947 in Kentucky is not chal-

lenged here and is recognized as valid un-

der California law since it is valid in

Kentucky. Cal. Civ. Code §4104. Donald's

marriage to Luz, however, is equally valid

since it is valid under Columbian law,

"unless it collides with some strong pu-

blic policy of the state of residence."

Barrons v. United States, 191 F.2d 92, 95

(9th Cir. 1951); cf. Restatement of Con-

flicts of Laws 2d §283. Thus, in the ab-

sence of some strong public policy of the

State of California, both marriages are

valid, since they are valid under the laws

of the jurisdiction where they were entered

into.

A public policy against recognizing

the validity of both marriages is readily

found in the provisions of Cal. Civ. Code

7

§4401, which states:

A subsequent marriage contracted

by any person during the life of

a former husband or wife of such

person, with any person other

than such former husband or wife,

is illegal and void from the be-

ginning, unless:

(1) The former marriage has

been dissolved or de-

clared a nullity prior

to the date of the sub-

sequent marriage.

The strong public policies for the

protection of spouses and against bigamy

are inherent in the statute. So greatly

do multiple marriages impinge on these

important interests that

as a matter of public policy the

court should, at the first oppor-

tunity, enter its decree annulling

such a marriage, to the end that

the public be protected so far as

possible from the evils of such

unlawful acts and to prevent the

innocent from suffering therefrom.

Sullivan v. Sullivan, 219 Cal. 734, 736

(1934). Furthermore, the invalidity of

-

such marriages may be shown at any time.

Parmann v. Parmann, 56 Cal. App. 2d 67,

69 (1942).

Therefore, whether Donald's second

marriage to Luz is void depends on the

relatively simple question whetHer the

ex parte Dominican Republic divorce is

valid and whether therefore the marriage

of Donald and Lois was legally dissolved.

If the divorce was valid, the requirements

of Cal. Civ. Code §4401 are met and Luz

is the "eligible widow” under 10 U.S.C.

§1450(a). If the divorce was invalid,

Lois is the eligible widow.

Nothing in the record of this case

suggests that the divorce undertaken in

San Cristobal, Dominican Republic on March

2, 1973, was not valid under Dominican law.

As a general rule, American courts recog-

nize the validity of the laws and judg-

ments of foreign jurisdictions under the

doctrine of comity. 47 Am. Jr. 2d 222;

Restatement of Foreign Relations Law 2d

§41. The doctrine of comity is recognized

9

under California law. Blythe v. Ayres,

96 Cal. 532, 561 (1892). the doctrine,

however, is not without its limits. Courts

“will never give effect to a foreign law

when to do so would prejudice the state's

own rights or the rights of its citizens,

or when the enforcement of the foreign law

would contravene the positive policy of

the law of the forum ..." Thome v. Macken,

58 Cal. App. 2d 76, 79 (1943). Thus,

[the] rule of comity is subject to

the principle that foreign laws will

not be given effect when contrary to

the settled public policy of the

forum, but that it must be clear

that the enforcement of the right

obtained under the laws of another

state would be prejudicial to recog-

nized standards of morality and to

the general interest of the citizens

in the state of the forum.

Id. at 118, explaining Biewend v. Biewend,

17 Cal. 24 108 (1941). The standard for

refusing to recognize the divorce decree

of a foreign nation is lower than that

which must be accorded to sister states

under the Full Faith and Credit Clause of

10

the Constitution (Art. IV, §1l).

{U]nder the comity -- as contrasted

with full faith and credit -- our

courts have power to deny even

prima facie validity to the judg-

ments of foreign countries for

policy reasons, despite whatever

allegations of jurisdiction may

appear on the face of such foreign

judgments.

Rosenbaum v. Rosenbaum, 309 N.Y. 371, 375

(1955), quoted with approval in Montemurro

v. Immigration and Naturalization Service,

409 F.2d 832, 833 (9th Cir. 1969). Thus,

if recognition of the Dominican divorce

decree would clearly prejudice the rights

of Lois or offend the public policy of the

State of California or of the United States,

this Court must deny the validity of the

decree.

The Court finds that the Dominican

divorce decree wholly fails to protect

the interests of Lois and offends the pu-

blic policy of this forum in two ways.

First, the forum in which the decree was

issued, the Dominican Republic, had no

11

legitimate interest in the marital status

of Donald and Lois, since neither of them

resided there.

It is a well established rule that

jurisdiction to grant a divorce

rests upon bona fide domicil. Where

neither party is domiciled within

the state, no divorce can validly

be granted and all proceedings, as

well as the judgment, are void.

Stated another way, a decree of

divorce rendered in one state may

be impeached and denied recogni-

tion in another upon the ground

that neither of the parties had

domicil at the divorce forum, and

this is true notwithstanding the

recital in the decree from the

other state of the jurisdictional

fact of domicil or residence.

Crouch v. Crouch, 28 Cal. 2d 243, 249 (1946).

Jurisdiction of the divorce forum based on

domicil has repeatedly been required by

California courts, see, e.g., Sohnleir v.

Winchell, 230 Cal. App. 2d 508, 511 (1964),

Aldabe v. Aldabe, 209 Cal. App. 2d 453,

464 (1962), as indeed it has been required

by all courts -in the English-speaking world.

Williams v. North Carolina, 325 U.S. 226,

230 (1945). As stated by Justice Frank-

12

furter in Williams, supra, "Domicil implies

a nexus between person and place of such

permanence as to control the creation of

legal relations and responsibilities of

the utmost significance." Id. Although

this rule in its absolute form has occasion-

ally been criticized, see concurring opinion

of Justice Traynor in Scott v. Scott, 51

Cal. 2d 249, 254-55, cf. Restatement of

Conflict of Laws 2d §72., all authorities

agree that the divorce forum must possess

an identifiable legitimate interest inthe

marital status of the parties.

The Dominican Republic has no such in-

terest in the marital status of Donald and

Lois, whether grounded in domicil or other-

wise. The divorce decree itself lists

Bogota, Columbia as the domicil of Donald.

As stated above, it appears that Donald

never even traveled to San Cristobal to

take part in the proceedings. None of the

parties had contacts with the Dominican

13

Republic which in any way could confer a

legitimate interest on the part of the

Republic in their marital status. On

this ground alone this Court would be jus-

tified in invalidating the divorce decree.

There is, however, an additional reason

for refusing to recognize the decree's va-

lidity. Lois at no time received notice

of the pending divorce proceedings, al-

though Donald could easily have provided

her with such notice had he chosen to do

so. A long line of United States Supreme

Court cases has recognized tre necessity

of "notice reasonably calculated, under

all the circumstances, to apprise in-

terested parties of the pendency of the

action and afford them an opportunity to

present their objections." Mullane v.

Central Hanover Trust Co., 339 U.S. 306,

314 (1950); and see Schroeder v. City of

New York, 371 U.S. 208 (1962); Walker v.

Hutchinson City, 352 U.S. 112 (1956). Ca-

14

lifornia courts have recognized that pu-

blished notice alone is inadequate where

some method of actual notice is feasible.

In re La Opinion, 10 Cal. App. 3d 1012,

1019, fn. 3 (1970).

Constructive notice, appaxently suf-

ficient under Dominican law, was effected

by publication in the Dominican paper "La

Ultima Hora," to which, needless to say,

Lois had no subscription. Lois has lived

continuously at the same address from the

time that Donald departed in 1967 until

the present. The fact that Donald was

aware of Lois' location is clearly shown

by a letter he wrote to her at that ad-

dress in 1974 informing her (in two sen-

tences) of their "divorce" the preceding

year. These facts make abundantly clear

that Donald never intended to give Lois

an opportunity to voice her objections to

the divorce until it was a fait accompli.

Although Dominican courts are of course

15

not bound by the notice requirements bound

up in the Due Process Clause of the United

States Constitution, the notice given Lois

here is so defective as to seriously pre-

judice her interests andto offend the pu-

blic policy of this forum. Thus, under

the principles of comity discussed above,

the divorce decree is not entitled to re-

eieeivion by this Court.

Since the Dominican divorce is inva-

lid, pursuant to Cal. Civ. Code §4401,

Lois is the legitimate widow of Major

Donald Shaff. Lois is therefore the party

entitled to benefits under 10 U.S.C.

§1450(a). Two matters remain to be re-

solved, however.

The first is the question of whether

Lois is entitled to recover from the Air

Force those payments already made by the

Air Force to Luz before becoming aware of

Lois' claim to the same benefits. Since

the statutes do not indicate otherwise,

16

review of the payments made by the Air

Force is conducted under the standards

contained in the Administrative Procedure

Act. 5 U.S.C. §706 provides in relevant

part:

The reviewing court shall ... (2)

hold unlawful and set aside agency

action, findings, and conclusions

found to be --

(A) arbitrary, capricious, an

abuse of discretion, or

otherwise not in accordance

with law; ... [or]

(F) unwarranted by the facts ...

The United States Supreme Court has stated:

Under the "arbitrary and capricious"

standard the scope of review is a

narrow one. A reviewing court must

consider whether the decision was

based on a consideration of the

relevant factors and whether there

has been a clear error of judgment.

Although this inquiry into the facts

is to be searching and careful, the

ultimate standard of review is a

marrow one. The court is not em-

powered to substitute its judgment

for that of the agency.

Bowman Transportation v. Arkansas-Best

Freight System, 419 U.S. 281, 285 (1974)

(citation and some punctuation omitted for

clarity). Under this standard it is im-

17

possible to conclude either that the Air

Force did not consider the relevant fac-

tors in making the payments or that its

judgment in doing so was clearly’in error.

On the contrary, a review of the Air Force

file on Major Shaff at the time of his

death indicates no suggestion that Lois

Shaff had ever been Donald's wife. Rather,

the information contained in that file

shows that Luz had been named by Major

Shaff as his "wife" some five years prior

to his death. The Air Force was justified

in relying on the uncontradicted claim of

Luz to benefits payable to the widow of

Donald Shaff. the record shows that the

Air Force immediately withheld further

payments to Luz -at the time that it re-

ceived the conflicting benefit claim of

Lois in October 1978.

The cases cited by Lois Shaff for the

proposition that the Government made pay-

ments to Luz "at its peril” are clearly

18

distinguishable from the present facts.

In both Dorothy Mae Howell v. U.S., 141

Ct. Cl. 699 (1958) and Concetta F. Stamer

v. U.S., 148 Ct. Cl. 482 (1960) the Govern-

ment had notice of a possible conflicting

claims prior to making improper payments.

Howell, supra, 141 Ct. Cl. at 706, Stamer,

Supra, 148 Ct. Cl. at 496. As stated above,

the Air Force had no such notice here. Thus,

Lois is not entitled to recover from the

Air Force the payments made to Luz.

The second remaining matter relates to

the proper distribution of SBP payments

due under the plan elected by Major Shaff.

In his SBP application of May 8, 1973, Ma-

jor Shaff selected coverage for "my spouse

and children." 10 U.S.C. §1447(5) defines

"dependent child" as, "the child of a per-

son to whom the Plan applies, including ...

[a] recognized natural child who lived with

that person in a regular parent-child re-

lationship." This definition, for the

19

present purposes, is in harmony with Ca-

lifornia law. See Cal. Civ. Code §4453.

Donald's children by Luz are thus his child-

ren within the meaning of the SBP statuto-

ry scheme.

At present, it is clear that the SBP

pension must be paid to Lois pursuant to

10 U.S.C. §1450(a)(1). However, should

Lois die, or otherwise become ineligible

for the SBP pension, Major Shaff's two sons

by Luz, Donald Eduardo and Leo Anthony,

will share the SBP benefits equally pur-

suant to 10 U.S.C. §1450(a)(2).

For the reasons stated, the Dominican

divorce decree of Donald E. Shaff and Lois

Evelyne Shaff is declared invalid and the

Air Force is directed to pay SBP benefits

dating from November 1978 to Lois Shaff.

IT IS SO ORDERED.

DATED: October 29, 1981.

/s/ ROBERT P. AGUILAR

ROBERT P. AGUILAR

United States District

Judge

20

APPENDIX D

JUDGMENT OF THE DISTRICT COURT

(November 25, 1981)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LOIS EVELYNE SHAFF, ) ORIGINAL

) FILED

Plaintiff, ) NOV 25 1981

) WILLIAM L.

vs. ) WHITTAKER

) Clerk, U.S.

UNITES STATES OF AMERICA, DISTRICT COURT

et al., ) NORTHERN

\ ) DISTRICT OF

Defendants. ) CALIFORNIA

)

) No. C-80-

LUZ ZORAIDA VELANDIA SHAFF, ) 977 RPA

)

Plaintiff in ) JUDGMENT

Intervention, )

)

vs. )

)

LOIS EVELYNE SHAFF, et al., )

)

Defendants in )

Intervention. )

)

This matter came regularly on before

the Court on motions for summary judgment

by plaintiff Lois Evelyne Shaff and plain-

tive in intervention, Luz Zoraida Velandia

Shaff, motion for partial summary judgment

by defendant, Secretary of the Air Force,

and motion to dismiss by defendant, Adminis-

trator of Veterans Affairs.

All parties appeared at the hearing

on the motions on August 20, 1981, through

their respective attorneys. F

The motions were fully briefed, ar-

gued, and submitted. Plaintiff in inter-

vention filed no opposition to dismissal

of the action against the Administrator of

Veterans Affairs, and plaintiff did not op-

pose dismissal without prejudice against

the Administrator under certain conditions.

On October 30, 1981, the Court filed

its opinion and determined that there was

no genuine issue as to any material fact

and that plaintiff Lois Evelyne Shaff was

entitled to a judgment as a matter of law

against the defendants United States of

America and Secretary of the Air Force with

respect to benefits due and owing under the

air Force Survivors Benefit Plan from the

date such payments were suspended in October

-2-

1978, and is entitled to receive future

benefits under the Plan during her life-

time so long as she remains eligible under

the Plan. In reaching its decision, the

Court determined that the purported divorce

decree obtained by Donald E. Shaff in the

Dominican Republic was invalid. The Court

further determined that the defendant Se-

cretary of the Air Force acted within his

discretion in paying benefits under the

Plan to plaintiff in intervention until

such time as notice of plaintiff's claim

of status as Donald E. Shaff's widow was

received in October 1978. Thus, plaintiff

is not entitled to recover from the United

States of America or the Secretary benefits

paid to plaintiff in intervention up to the

date payment was suspended, to wit: $1,118.19

in arrearages of Air Force retired pay and

$829.96 in payments under the Survivor Be-

nefit Plan.

ACCORDINGLY, IT IS ORDERED, ADJUDGED

-3-

AND DECREED that:

1. The motion for summary judgment

of plaintiff in intervention, Luz Zoraida

Velandia Shaff, be, and the same ‘is, DENIED;

plaintiff in intervention take nothing by

her complaint in intervention and that the

same be, and hereby is, DISMISSED; and jud-

ment be entered in favor of defendants in

intervention, Lois Evelyne shaff, United

States of America, Secretary of the Air

Force, and against plaintiff in interven-

tion Luz Zoraida Velandia Shaff;

2. The motion for summary judgment

of plaintiff Lois Evelyne shaff be, and the

same is, GRANTED IN PART and DENIED IN PART,

and judgment be entered thereon as follows:

a. The purported divorce obtained by

Donald E. Shaff from Lois Evelyne Shaff in

the Dominican Republic on March 2, 1973, is

declared invalid.

b. Plaintiff Lois Evelyne Shaff is

declared to be the surviving spouse and eli-

~4-

gible widow of Donald E. Shaff, SSAN 121-

: 09-9338, a deceased retired member of the

United States Air Force, and as such is en-

titled to benefits under the Survivor Bene-

fit Plan from November 1978, during her

lifetime so long as she remains eligible

for said benefits but is not entitled to

benefits paid by the Air Force to Luz

ZOraida Velandia Shaff prior to November

1978; thus the defendants United States of

America and Secretary of the Air Force are

directed to determine the amount of Survi-

vor Benefit Plan benefits due to plaintiff

beginning November 1978, to pay her said

sum, and to continue to pay benefits under

the Plan during her lifetime unless she be-

comes ineligible for said benefits;

3. The motion for partial summary

judgment of defendant Secretary of the Air

Force be, and the same is, GRANTED, and

judgment be entered thereon;

4. The complaint and complaint in

-5-

intervention be, and the same are, DISMIS-

SED WITHOUT PREJUDICE as against the de-

fendant Administrator of Veterans Affairs;

and :

5. Each party shall bear its own

costs.

DATED: November 23, 1981.

/s/ ROBERT P. AGUILAR

ROBERT P. AGUILAR

United States District

Judge

APPENDIX E

SURVIVOR BENEFIT PLAN, 10 USC 1447-1454

TITLE 10, UNITED STATES CODE

‘ SUBCHAPTER II - SURVIVOR BENEFIT PLAN

§1447. Definitions

In this subchapter:

(1) “Plan” means the Survivor Benefit

Plan established by this subchapter.

(2) "Base amount" means-

(A) in the case of a person who dies

after becoming entitled to retired or

retainer pay, the amount of monthly re-

tired or retainer pay to which the per-

son-

(i) was entitled when he became eligi-

ble for that pay; or

(ii) later became entitled by being ad-

vanced on the retired list, performing

active duty or being transferred from

the temporary disability retired list

to the permanent disability retired

list;

(B) in the case of a person who would

have become eligible for retired pay un-

der chapter 67 of this title but forthe

fact that he died before becoming 60 years

of age, the amount of monthly retired

pay for which the person would*have been

eligible-

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

the date of his death, for purposes of

an annuity to become effective on the

day after his death in accordance with

a designation made under section 1448

(e) of this title; or

(ii) upon becoming 60 years of age (if

he had lived to that age), for purposes

of an annuity to become effective on

the 60th anniversary of his birth in

accordance with a designation made un-

der 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 but which is not

less than $300 and which is designated by

2

the person providing the annuity on or

before (i) the first day for which he be-

comes eligible for retired or retainer

pay, in the case of a person providing

an annuity by virtue of eligibility un-

der section 1448(a)(1)(A) of this title,

or (ii) the end of the 90-day period be-

ginning on the date on which he receives

the notification required by section

1331(d) of this title that he has com-

pleted 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 eligi-

bility under section 1448(a)(1)(B) of

this title.

(3) "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

3

(B) is the mother of issue by that mar-

riage.

(4) "Widower" means the surviving husband

of a person who, if not married to the per-

son at the time she became eligible for re-

tired or retainer pay-

(A) was married to her for at least one

year immediately before her death; or

(B) is the father of issue by that mar-

riage.

(5) "Dependent child" means a person who

is-

(A) unmarried;

(B)(i) under 18 years of age; (ii) at

least 18, but under 22 years of age and

pursuing a full-time course of study or

training in a high school, trade school,

technical or vocational institute, junior

college, university, or comparable recog-

nized educational institution; or (iii)

incapable of supporting himself because

of a mental or physical incapacity exist-

*

ing before his eighteenth birthday or

incurred on or after that birthday, but

before his twenty-second birthday, while

pursuing such a full-time course of study

or training; and

(C) the child of a person to whom the

Plan applies, including (i) an adopted

child, and (ii) a stepchild, foster child,

or recognized natural child who lived

with that person in a regular parent-

child relationship.

For the purpose of this clause, a child

whose twenty-second birthday occurs before

July 1 or after August 31 of a calendar

year, and while he is regularly pursuing

such a course of study or training, is con-

sidered to have become 22 years of age on

the first day of July after that birthday.

A child who is a student is considered not

to have ceased to be a student during an

interim between school years if the interim

is not more than 150 days and if he shows

5

to the satisfaction of the Secvetars of

Defense that he has a bona fide intention

of continuing to pursue a course of study

or training in the same or a different

school during the school semester (or other

period into which the school year is divi-

ded immediately after the interim. Under

this clause, a foster child, to qualify as

the dependent child of a person to whom the

Plan applies, must, at the time of the death

of that person, also reside with, and re-

ceive over one half of his support from,

that person, and not be cared for under a

social agency contract. The temporary ab-

sence of a foster child from the residence

of that person, while he is a student as

described in this clause, will not be con-

sidered to affect the residence of such a

foster child.

§1448. Application of Plan

(a)(1) The program established by this

subchapter shall be known as the Survivor

6

Benefit Plan. The following persons are

eligible to participate in the Plan:

(A) persons entitled to retired or

retainer pay. r

(B) Persons who would be eligible for

retired 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 par-

ticipate in the Plan under paragraph

(1)(A) and who is married or has a de-

pendent child when he becomes entitied

to retired or retainer pay, unless he

elects not to participate in the Plan

before the first day for which he is

eligible for that pay; and |

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

participate in the Plan under paragraph

(1)(B), (ii) is married or has a depen-

dent child when he is notified under

section 1331(d) of this title that he

7--

has completed the years of service re-

quired 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 beginning on the date he re-

ceives such notification.

A person described in subclauses (i) and

(ii) of clause (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 para-

graph (1)(A).

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

paragraph (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

8

but not his spouse, that person's spouse

shall be notified of that election.

(B) If a person who is eligible under

paragraph (1)(B) to participate in the

Plan and who is married does not elect

to participate in the Plan at the maxi-

mum level, or elects to provide an an-

nuity for a dependent child but not for

his spouse, that person's spouse shall be

notified of that action.

(4)(A) An election under paragraph (2)

(A) not to participate in the Plan is ir-

revocable if not revoked before the date

on which the person first becomes entitled

to retired or retainer pay.

(B) An election under paragraph (2) (B)

to participate in the Plan is irrevocable

if not revoked before the end of the 90-

day period referred to in such paragraph.

(5) A person who is not married when he

becomes eligible to participate in the

Plan but who later marries or acquiresa

9

dependent child may elect to participate

in the Plan, but his election must be

written, signed by him, and received by

the Secretary concerned within‘one year

after he marries or acquires that depen-

dent child. Such an election may not be

revoked. His election is effective as

of the first day of the first calendar

month following the month in which his

election is received by the Secretary

concerned. In the case of a person pro-

viding an annuity by virtue of eligibility

under paragraph (1)(B), such an election

shall include a designation under sub-

section (e).

(b) A person who is not married and does

not have a dependent child when he becomes

eligible to participate in the Plan may

elect to provide an annuity to a natural

person with an insurable interest in that

person. In the case of a person provi-

ding an annuity under this subsection by

10

virtue of eligibility under subsection

(a)(1)(B), such an election shall include

a designation under subsection (e).

(c) The application of the Plan to a per-

son whose name is on the temporary dis-

ability retired list terminates when his

name is removed from that list and he is

no longer entitled to retired pay.

(d) If a member of an armed force dies

on active duty after he has become en-

titled to retired or retainer pay, or

after he has qualified for that pay ex-

cept that he has not applied for or been

granted that pay, and his spouse is eli-

gible for dependency and indemnity com-

pensation under section 41ll(a) of title

38 in an amount that is less than the an-

nuity the spouse would have received un-

der this subchapter if it had applied to

the member when he died, the Secretary

concerned shall pay to the spouse an an-

nuity equal to the difference between

11

that amount of compensation and 55 per-

cent of the retired or retainer pay to

which the otherwise eligible spouse de-

scribed in section 1450(a)(1) of this

title would have been entitled if the

member had been entitled to that pay

based upon his years of active service

when he died.

(e) In any case in which a person elec-

ting to participate in the Plan is re-

quired to make a designation under this

subsection, the person making such elec-

tion shall designate whether, in the

event he dies before becoming 60 years

of age, the annuity provided shall become

effective on the day after the date of

his death or on the 60th anniversary of

his birth.

§1449. Mental incompetency of member

If a person to whom section 1448 of this

title applies is determined to be mentally

incompetent by medical officers of the

12

armed force concerned or of the Veterans'

Administration, or by a court of competent

jurisdiction, any election described in

subsection (a)(2) or (b) of section 1448

of this title may be made on behalf of that

person by the Secretary concerned. If the

person for whom the Secretary had made an

election is later determined to be mentally

competent by an authority named in the first

sentence, he may, within 180 days after that

determination revoke that election. Any

deductions made from retired or retainer

pay by reason of such an election will not

be refunded.

§1450. Payment of annuity: beneficiaries

(a) Effective as of the first day after

the death of a person to whom section 1448

of this title applies (or on such other day

as he may provide under subsection (j)), a

monthly annuity under section 1451 of this

title shall be paid to-

(1) the eligible widow or widower;

13

(2) the surviving dependent children

in equal shares, if the eligible widow

Or widower is dead, dies, or otherwise

becomes ineligible under this section;

(3) the dependent children in equal

shares if the person to whom section

1448 of this title applies elected to

provide an annuity for dependent child-

ren but not for the spouse; or

(4) the natural person designated un-

der section 1448(b) of this title at

the time the person to whom section

1448 applies became entitled to retired

or retainer pay, if there is no eli-

gible beneficiary under clause (1) or

(2).

(b) An annuity payable to the beneficiary

terminates effective as of the first dayof

the month in which eligibility is lost. An

annuity for a widow or widower shall be

paid to the widow or widower while the wi-

dow or widower is living or, if the widow

14

Or widower remarries before reaching age

60, until the widow or widower remarries.

If the widow or widower remarries before

reaching age 60 and that marriage is ter-

minated by death, annulment, or divorce, pay-

ment of the annuity will be resumed effec-

tive as of the first day of the month in

which the marriage is so terminated. How-

ever, if the widow or widower is also en-

titled to an annuity under this section

based upon the marriage so terminated, the

widow or widower may not receive both an-

nuities but must elect which to receive.

(c) If, upon the death of a person to

whom section 1448 of this title applies,

the widow or widower of that person is al-

so entitled to compensation under section

4ll(a) of title 38, the widow or widower

may be paid an annuity under this section,

but only in the amount that the annuity

otherwise payable under this section would

exceed that compensation.

15

(d) If, upon the death of a person to

whom section 1448 of this title applies,

that person had in effect a waiver of his

retired or retainer pay for the purpose of

subchapter III of chapter 83 of title 5,

an annuity under this section shall not be

payable unless, in accordance with section

8339(j) of title 5, he notified the Civil

Service Commission that he did not desire

any spouse surviving him to receive an an-

nuity under section 8341(b) of that title.

(e) If no annuity under this section is

payable because of subsection (c), any

amounts deducted from the retired or re-

tainer pay of the deceased under section

1452 of this title shall be refunded to

the widow or widower. If, because of sub-

section (c), the annuity payable is less

than the amount established under section

1451 of this title, the annuity payable

shall be recalculated under that section.

The amount of the reduction in the retired

16

Or retainer pay required to provide

that recalculated annuity shall be computed

under section 1452 of this title, and the

difference between the amount deducted

prior to the computation of the recalcula-

ted annuity and the amount that would have

been deducted on the basis of that recal-

culated annuity shall be refunded to the

widow or widower.

(f) An unmarried person who elects to

provide an annuity to a person designated

by him under subsection (a)(4), but who

later marries or acquires a dependent child,

may change that election and provide an an-

nuity to his spouse or dependent child. A

change of election under this subsection

is subject to the rules with respect to

execution, revocation, and effectiveness

set forth in section 1448(a)(5) of this

title.

(g) Except as provided in section 1449

of this title or in subsection (f) of this

17

section, an election under this section

may not be changed or revoked.

(h) Except as provided in section 1451]

of this title, an annuity under this sec-

tion is in addition to any other payment

to which a person is entitled under any

other provision of law. Such annuity shall

be considered as income under laws adminis-

tered by the Veterans' Administration.

(i) An annuity under this section is not

assignable or subject to execution, levy,

attachment, garnishment, or other legal

process.

(j) An annuity elected by any person pro-

viding an annuity by virtue of eligibility

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

shall be effective in accordance with the

designation made by such person under sec-

tion 1448(e) of this title.

(k) If a widow or widower whose annuity

has been adjusted under subsection (c) sub-

sequently loses entitlement to compensation

18

under section 4ll(a) of title 38 because

of the remarriage of such widow or widower,

and if at the time of such remarriage such

widow or widower is 60 years of age ormore,

the amount of the annuity of such widow or

widower shall be readjusted, effective on

the effective date of such loss of compen-

sation, to the amount of the annuity which

would be in effect with respect to such

widow or widower if the adjustment under

subsection (c) had never been made, but

such readjustment may not be made until the

widow or widower repays any amount refunded

under subsection (e) by reason of the ad-

justment under subsection (c).

§1451. Amount of annuity

(a)(1) The monthly annuity payable to a

widow, widower, or dependent child who is

entitled under section 1450(a) of this

title to an annuity shall be-

(A) 55 percent of the base amount, as

adjusted from time to time under section

19

140la of this title, if the annuity is

provided by virtue of eligibility under

section 1448(a)(1)(A) of this title; or

(B) a lesser percentage (detérmined by

the Secretary of Defense in accordance

with subsection (d) of the base amount,

as adjusted from time to time under sec-

tion 140la of this title oon or after

the date the person becomes entitled to

retired pay under chapter 67 of this

title, if the annuity is provided by

virtue of eligibility under section

1448(a)(1)(B) of this title.

(2) In the case of a widow who has one

dependent child, the monthly annuity shall

be reduced by the lesser of (A) an amount

equal to the amount of the mother's bene-

fit, if any, to which the widow would be

entitled under title II of the Social Se-

curity Act (42 U.S.C. 401 et seq.) based

solely upon service by the person concerned

as described in section 210(1)(1) of such

20

Act (42 U.S.C. 410(1)(1)) and calculated

assuming that the person concerned lived

to age 65, or (B) an amount equal to 40

percent of the amount of the monthly an-

nuity as determined under paragraph (1).

(3) When the widow or widower reaches

age 62, or there is no longer a dependent

child, whichever occurs later, the monthly

annuity shall be reduced by the lesser of

(A) an amount equal to the amount of the

survivor benefit, if any, to which the

widow or widower would be entitled under

title II of the Social Security Act (42

U.S.C. 401 et seq.) based solely upon ser-

vice by the person concerned as described

in section 210(1)(1) of such Act (42 U.S.C.

410(1)(1)) and calculated assuming that

the person concerned lives to age 65, or

(B) an amount equal to 40 percent of the

amount of the monthly annuity as deter-

mined under paragraph (1). For the purpose

of the preceding sentence, a widow or wi-

21

dower shall not be considered as entitled

to a benefit under title II of the Social

Security Act (42 U.S.C. 401 et seq.) to

the extent that such benefit has been off-

set by deductions under section 203 of

such Act (42 U.S.C. 403) on account of

work.

(4) In the computation of any reduction

made under paragraph (2) or (3), there

shall be excluded any period of service

described in section 210 (1)(1) of the

Social Security Act (42 U.S.C. 410(1)(1))

which was performed after the effective

date of the Uniformed Services Survivor

Benefits Amendments of 1980 and which in-

volved periods of service of less than 30

continuous days for which the person con-

cerned is entitled to receive a refund un-

der section 6413(c) of the Internal Revenue

Code of 1954 of the social security tax

which he had paid.

(b) The monthly annuity payable under

22

section 1450(a)(4) of this title shall be-

(1) 55 percent of the retired or re-

tainer pay of the person who elected to

provide that annuity after the ‘reduction

in such pay in accordance with section

1452(c) of this title, if the annuityis

provided by virtue of eligibility under

section 1448(a)(1)(A) of this title; or

(2) a lesser percentage (determined by

the Secretary of Defense in accordance

with subsection (d)) of the retired pay

of the person who elected to provide

that annuity after the reduction in such

pay in accordance with section 1452(c)

of this title, if the annuity is provi-

ded by virtue of eligibility under sec-

tion 1448(a)(1)(B) of this title.

A person who provides an annuity which is

determined in accordance with clause (2)

and who dies before becoming 60 years of

age and is otherwise entitled to retired

pay shall be considered to have been en-

23

titled to retired pay, for the purpose of

such clause, at the time of his death, and

the retired pay of such person for the pur-

pose of such clause shall be computed on

the basis of the rates of basic pay in ef-

fect on the date on which the annuity is

to become effective in accordance with the

designation of such person under section

1448(e) of this title.

(c) Whenever retired or retainer pay is

increased under section 140la of this

title, each annuity that is payable under

this section or under section 1448(d) of

this title shall be increased at the same

time by the same total percent. The amount

of the increase shall be based on the

monthly annuity payable before any re-

duction under section 1448(d) or 1450(c)

of this title or under subsection (a) of

this section.

(d) The percentage to be applied by

the Secretary of Defense in determining

24

the amount of an annuity under subsection

(a)(1)(B) or (b)(2) shall be 55 percent

reduced by such amount as the Secretary

shall by regulation prescribe, taking into

consideration the age of the person elec-

ting to provide the annuity at the time

of such election, the difference in age

between such person and the beneficiary of

the annuity, whether such person provi-

ded for the annuity to become etfective

(in the event he died before becoming 60

years of age) on the day after his death

or on the 60th anniversary of his birth,

appropriate group annuity tables, and such

other factors as the Secretary considers

relevant.

§1452. Reduction in retired or retainer pay

(a) Except as provided in subsection (b),

the retired or retainer pay of a personto

whom section 1448 of this title applies

who has a spouse, or who has a spouse and

a dependent child, and who has not elected

25

to provide an annuity to a person designa-

ted by him under section 1450(a)(4) of

this title, or who had elected to provide

such an annuity to such a person.but has

changed his election in favor of his

spouse under section 1450(f) of thistitle,

shall be reduced each month-

(1) by an amount equal to 2% percent

of the first $300 of the base amount

plus 10 percent of the remainder of the

base amount, if the person is providing

an annuity by virtue of eligibility un-

der section 1448(a)(1)(A) of this title;

or

(2) by an amount prescribed under re-

gulations of the Secretary of Defense,

if the person is providing an annuity by

virtue of eligibility under section 1448

(a)(1)(B).

As long as there is an eligible spouse and

a dependent child, that amount shall be in-

creased by an amount prescribed under re-

26

gulations of the Secretary of Defense.

The reduction in retired or retainer pay

prescribed by the first sentence of this

subsection shall not be applicabie during

any month in which there is no eligible

spouse beneficiary.

(b) The retired or retainer pay of a

person to whom section 1448 of this title

applies who has a dependent child but does

not have an eligible spouse, or who has a

spouse but has elected to provide an an-

nuity for dependent children only, shall,

as long as he has an eligible dependent

child, be reduced by an amount prescribed

under regulations of the Secretary of De-

fense.

(c) The retired or retainer pay of a

person who has elected to provide an an-

nuity to a person designated by him under

section 1450(a)(4) of this title shall be

reduced-

(1) in the case of a person providing

27

the annuity by virtue of eligibility

under section 1448(a)(1)(A) of this

title, by 10 percent plus 5 percent for

each full five years the individual de-

Signated is younger than that person; or

(2) in the case of a person providing

the annuity by virtue of eligibility un-

der section 1448(a)(1)(B) of this title,

by an amount prescribed under regulations

of the Secretary of Defense.

However, the total reduction under clause

(1) may not exceed 40 percent. The reduc-

tion in retired or retainer pay prescribed

by this section shall continue during the

lifetime of the person designated under

section 1450(a)(4) of this title or until

the person receiving retired or retainer

pay changes his election under section

1450(f) of this title.

(d) If a person who has elected to par-

ticipate in the Plan has been awarded re-

tired or retainer pay and is not entitled

28

to that pay for any period, he must depo-

sit in the Treasury the amount that would

otherwise have been deducted from his pay

for that period, except when he is called

Or ordered to active duty for a period of

more than 30 days.

(e) When a person who has elected to

participate in the Plan waives his retired

or retainer pay for the purposes of sub-

chapter III of chapter 83 of title 5, he

shall not be required to make the deposit

otherwise required by subsection (d) as

long as that waiver is in effect unless,

in accordance with section 8339(i) of

title 5, he has notified the Civil Service

Commission that he does not desire any

spouse surviving him to receive an annuity

under section 8341(b) of title 5.

(f) Except as provided in section 1450

(e) of this title, a person is not entitled

to any refunds of amounts deducted from re-

tired or retainer pay under this section

29

unless the amounts were deducted through

administrative error.

(g){1) Notwithstanding any other pro-

vision of this subchapter but subject to

paragraph (2) and (3), any person who has

elected to participate in the Plan and who

is suffering from a service-connected dis-

ability rated by the Veterans' Administra-

tion as totally disabling and has suffered

from such disability while so rated for a

continuous period of 10 or more years (or,

if so rated for a lesser period, has suf-

fered from such disability while so rated

for a continuous period of not less than

5 years from the date of such person's

last discharge or release from active duty)

may discontinue participation in the Plan

by submitting to the Secretary concerned

a request to discontinue participation in

the Plan. Any such person's participation

in the Plan shall be discontinued effec-

tive on the first day of the first month

30

following the month in which a request un-

der this paragraph is received by the Se-

cretary concerned. Effective on such

date, the Secretary concerned shall dis-

continue the reduction being made in such

person's retired or retainer pay on ac-

count of participation in the Plan or, in

the case of a person who has been required

to make deposits in the Treasury on ac-

count of participation in the Plan, such

person may discontinue making such depo-

Sits effective on such date. Any request

under this paragraph to discontinue par-

ticipation in the Plan shall be in such

form and shali contain such information

as the Secretary concerned may require by

regulation.

(2) A person described in paragraph (1)

may not discontinue participation in the

Plan under such paragraph without the writ-

ten consent of the beneficiary or benefi-

ciaries of such person under the Plan.

31

(3) The Secretary concerned shall fur-

nish promptly to each person who files a

request under paragraph (1) to discontinue

participation in the Plan a written state-

ment of the advantages of participating in

the Plan and the possible disadvantages of

discontinuing participation. A personmay

withdraw a request made under paragraph

(1) if it is withdrawn within 30 days af-

ter having been submitted to the Secretary

concerned.

(4) Upon the death of any person des-

cribed in paragraph (1) who has disconti-

nued participation in the Plan in accor-

dance with this subsection, any amounts

deducted from the retired or retainer pay

of the deceased under section 1452 of this

title shall be refunded to the widow or

widower.

(5) Any person described in paragraph

(1) who has discontinued participation in

the Plan may again elect to participate in

32

the Plan if (A) at any time after having

discontinued participation in the Plan the

Veterans' Administration reduces such per-

son's service-connected disability rating

to less than total, and (B) such person

applies to the Secretary concerned, with-

in such period of time after the reduction

in such person's service-connected dis-

ability rating has been made as the Se-

cretary concerned may prescribe, to again

participate in the Plan and includes in

such application such information as the

Secretary concerned may require. Such per-

son's participation in the Plan under this

paragraph is effective beginning on the

first day of the month after the month in

which the Secretary concerned receives the

application for resumption of participa-

tion in the Plan, and the Secretary con-

cerned shall begin making reductions in

such person's retired or retainer pay, or

require such person to make deposits in

33

the Treasury under subsection (d), as ap-

propriate, effective on such day.

(h) Whenever retired and retainer pay

is increased under section 140la’of this

title, the amount of the reduction to be

made under subsection (a) or (b) in the

retired or retainer pay of any person shall

be increased at the same time and by the

same percentage as such retired or retain-

er pay is increased under section 140la

of this title.

§1453. Recovery of annuity erroneously paid

In addition to other methods of recovery

provided by law, the Secretary concerned

may authorize the recovery, by deduction

from later payments to a person, of any

amount erroneously paid to him under this

subchapter. However, recovery is not re-

quired if, in the judgment of the Secre-

tary concerned and the Comptroller General,

there has been no fault by the person to

whom the amount was erroneously paid and

34

recovery would be contrary to the purposes

of this subchapter or against equity and

good conscience.

§1454. Correction of Administrative De-

ficiencies

The Secretary concerned may, under re-

gulations prescribed under section 1455

of this title, correct or revoke any elec-

tion under this subchapter when he consi-

ders it necessary to correct an adminis-

trative error. Except when procured by

fraud, a correction or revocation under

this section is final and conclusive on

all officers of the United States.

§1455. Regulations

The President shall prescribe regula-

tions to carry out this subchapter. Those

regulations shall, so far as practicable,

be uniform for the armed forces, the Na-

tional Oceanic and Atmospheric Adminis-

tration, and the Public Health Service.

Those regulations shall-

35

(1) provide that, when the notifica-

tion referred to in section 1448(a) of

this title is required, the member and

his spouse shall, before the date the

member becomes entitled to retired or

retainer pay, be informed of the elec-

tions available and the effects of such

elections; and

(2) establish procedures for deposit-

ing the amounts referred to in section

1452(d) of this title.

36

APPENDIX F

UNIFORMED SERVICES FORMER SPOUSES‘

PROTECTION ACT - PUBLIC LAW 97-252,

Title X, 96 STAT. 730 ET SEQ.

UNIFORMED SERVICES FORMER

SPOUSES' PROTECTION ACT -

PUBLIC LAW 97-252, Title X,

96 STAT. 730 ET SEQ.

SEC. 1002.(a) Chapter 71 of title 10,

United States Code is amended by adding

at the end thereof the following new

section:

"§1408. Payment of retired or retainer

pay in compliance with court orders.

* * *

"(c)(1) Subject to the limitations of

this section, a court may treat disposable

retired or retainer pay payable toa

member for pay periods beginning after

June 25, 1981, either as property solely

of the member or as property of the mem-

ber or as property of the member and his

spouse in accordance with the law of the

jurisdict.on of such court."

* * *

96 Stat. 731

Sec. 1003. (a) Section 1447 of title

10, United States Code, is amended by

adding at the end thereof the following

new paragraphs:

"(6) 'Former spouse' means the sur-

viving former husband or wife of a

person who is eligible to partici-

pate in the Plan.

"(7) ‘Court order’ means a court's

final decree of divorce, dissolution,

annulment, or legal separation,

or a court ordered, ratified, or

approved property settlement incident

to such a decree (including a final

decree modifying the terms of a

previously issued decree of divorce,

dissolution, annulment, or legal

settlement agreement incident to

such previously issued decree).

"(9) 'Final decree' means a decree

from which no appeal may be taken or

-2@

. from which no appeal has been taken

within the time allowed for the taking

of such appeals under the laws appli-

cable to such appeals, or a decree

from which timely appeal has been

taken and such appeal has been finally

decided under the laws applicable to

such appeals.

"(10) ‘Regular on its face', when

used in connection with a court order,

means a court order that meets the

conditions prescribed in section

1408(b)(2) of this title.”.

(b)(1) Section 1448(a) of such title is

amended-

(A) in paragraph (3)(A) by insert-

ing “or elects to provide an annuity

n under subsection (b)(2) of this sec-

tion,” after "for his spouse,"; and

(B) in paragraph (3)(B( by insert-

ing “or elects to provide an annuity

under subsection (b)(2) of this

-3-

section,” after "for his spouse,”".

(2) Section 1448(b) of such title is

amended to read as follows; "(b)(1) A per-

son who is not married and does not have

a dependent child when he becomes eligible |

to participate in the Plan may elect to

provide an annuity to a natural person with

an insurable interest in that person or to

provide an annuity to a former spouse.

"(2) A person who is married or has a

dependent child may elect to provide an

annuity to a former spouse instead of pro-

viding an annuity to a spouse or dependent

child if the election is made in order to

carry out the terms of a written agreement

entered into voluntarily with the former

spouse (without regard to whether such

agreement is included in or approved by

a court order). .

"(3) In the case of a person electing to

provide an annuity under paragraph (1) or

(2) of this subsection by virtue of eligi-

-4-

bility under subsection (a)({1)(B), the elec-

tion shall include a designation under sub-

section (e).

"(4) Any person who elects under paragraph

(1) or (2) to provide an annuity to a former

spouse shall, at the time of making such

election, provide the Secretary concerned

with a written statement, in a form to be

prescribed by that Secretary, signed by such

person and the former spouse setting forth

whether the election is being made pursuant

to a voluntary written agreement previously

entered into by such person as a part of or

incident to a proceeding of divorce, dis-

solution, annulment, or legal separation,

and if so, whether such voluntary written

agreement has been incorporated in or rati-

fied or approved by a court order.".

(c) Section 1450(a)(4) of such title is

amended-

(1) by inserting “former spouse or

other” before "natural person"; and

-5-

(2) by striking out "if there is no

eligible bnenficiary under clause (1)

or clause (2)" and inserting in lieu

thereor "unless the election to provide

an annuity to the former spouse or other

natural person has been changed as pro-

vided in subsection (f)".

(d) Seetion 1450(f) of such title is

amended to read as follows:

"f£)(1) A person who elects to provide an

annuity to a person designated by him under

section 1448(b) of this title may, subject

to paragraph (2) of this subsection, change

that election and provide an annuity to

his spouse or dependent child. The Secre-

tary concerned shall notify the former

spouse or other natural person previously

designated under section 1448(b) of this

title of any change of election under the

first sentence of this paragraph. Any such

change of election is subject to the same

rules with respect to execution, revocation

-6-

and effectiveness as are set forth in sec-

tion 1448(a)(5) of this title.

"(2) A person who, incident to a pro-

ceeding of divorce, dissolution, annulment,

or legal separation, enters into a volun-

tary written agreement to elect under sec-

tion 1448(b) of this title to provide an

annuity to a former spouse and who makes

an election pursuant to such agreement may

not change such election under paragraph

(1) unless-

"(A) in a case in which such agreement

has been incorporated in or ratified or

approved by a court order, the person-

"(i) furnished to the Secretary con-

cerned a certified copy of a court

order which is regular on its face

and modifies the provisions of all

previous court orders relating to the

agreement to make such election so

as to permit the person to change the

election; and

"(ii) certifies to the Secretary con-

cerned that the court order is valid

and in effect; or

"(B) in a case in which such agree-

ment has not been incorporated or rati-

fied or approved by a court order, the

person-

"(i) furnishes to the Secretary con-

cerned a statement, in such form as

the Secretary concerned may prescribe,

Signed by the former spouse and evi-

dencing the former spouse's agreement

to a change in the election under

paragraph (1); and

"(ii) certifies to the Secretary

concerned that the statement is curent

and in effect.

"(3) Nothing in this chapter authorizes

any court to order any person to elect under

section 1448(b) of this title to provide an

annuity to a former spouse unless such per-

son has voluntarily agreed in writing to

-8-

make such election.".

96 Stat. 736, 737

* * *

Sec. 1006. (a) The amendments made by

this title shall take effect on the first

day of the first month which begins more

than one hundred and twenty days after the

date of the enactment of this title.

* * *

(c) The amendments made by section 1003

of this title shall apply to persons who

become eligible to participate in the Sur-

vivor Benefit Plan provided for in sub-

chapter II of chapter 73 of title 10, United

States Code, before, on, or after the effec-

tive date of such amendments.

96 Stat. 737

* * *