Petition for Writ of Certiorari — Goad v. Goad

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No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

ROLAND LEE GOAD

Petitioner

MARY BETH GOAD

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE 272ND JUDICIAL DISTRICT COURF,

TEXAS

Court of Aptwars oH Faxtl AavarasiraA Supers

IUO/< thik Non . ?

ROLAND LEE GOAD (pro se)

Route 1, Box 646

Hunts~ ithe, Texas 77340

(499) 295-2205

May 1, 1984

Of Counsel:

J. ANDREW ROLLINS

QUESTIONS PRESENTED

1. Whether a 1980 divorce decree partitioning future

Air Force retirement benefits as community property conflicts

with the Texas ‘‘Bill of Rights’’ provision declaring that ‘‘no

man, or set of men, is entitled to exclusive separate public

emoluments or privileges, but in consideration of public ser-

° 7?

vice.

2. Whether a 1980 divorce decree partitioning future

Air Force retirement benefits as community property conflicts

with the Texas Constitution provision that states that ‘‘No cur-

rent wages for personal services shall ever be subject to gar-

nishment, except for the enforcement of court-ordered child

support payments.”

3. Whether the language of 15 U.S.C. 1673c that “‘No

court of the United States or any State, and no State (or officer

or agency thereof) may make, execute, or enforce any order or

process in violation of this section.’’ is broad enough to

preclude trustee process that would negate the statutory ex-

emptions from garnishment provided in the Consumer Credit

Protection Act (15 U.S.C. 1671 et seq).

4. Whether military non-disability retired pay is cur-

rent or deferred compensation; and, whether the unearned

prospective emoluments affixed to a public office are a species

of personal property subject to partition in divorce pro-

ceedings.

5. Whether a declaratory or interpretive legislative act

may apply retroactively to annul a prior decision of a review-

ing court of last resort or remove a pending case from review

in the courts of justice; whether 10 U.S.C. 1408(cX1) is con-

stitutionally infirm.

INDEX

Opinions Below

Jurisdiction

The United States as a Third Party

Constitutional Provisions and Statutes Involved

The Uniformed Services Former Spouses’ Protection Act

Statement of the Case

Federal Questions Presented ll

Reasons for Allowance of the Writ 15

Conclusion

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix I

Appendix J

Appendix K

Appendix L

age

Jurisdiction in the Court Below 3

)

“Order Denying Motion’’, 272nd District

Court, February 10, 1983 la

Judgement, Court of Appeals, Oct. 13,1983 2a

Opinion, Court of Appeals, Oct. 13, 1983 3a

Constitutional Provisions and Statutes that

the Case Involves Sa

Decree of Divorce 10a

The Court’s Memorandum Brief

for Attorneys 15a

Orders of Dismissal, 272nd District Court,

February 18, 1982 19a

Respondent’s Motion to Vacate or Set Aside

Portion of Judgement that is Void, 272nd

District Court, July 23, 1982 20a

Attack on Judgement - Constitutional

Grounds, 272nd Dist. Court, Jan. 6, 1983 22a

Appellant’s Brief in Court of Appeals,

No. B14-83-206-CV, March 28, 1983 24a

Appellant’s Motion for Rehearing, Court

of Appeals, B14-83-206-CV, Oct. 20,1983 30a

Petitioner’s Application for Writ of Error,

Texas Supreme Court, November 18,1983 33a

iii

TABLE OF CASES

Page

McCarty v. McCarty, 453 U.S. 210 (1981) 4,9

Segrest v. Segrest, 649 S.W.2d 610 (Tex. 1983) 4,7

STATUTES

10 U.S.C. 1408(cX1) 4, 6,13

15 U.S.C. 1673c 12

28 U.S.C. 1257(3) 2

28 U.S.C. 2403(a) 4

The Uniformed Services Former Spouses’

Protection Act passim

The Consumer Credit Protection Act 2, 12,15

TEXTBOOKS

Restatement (Second) of Judgements (1982) 3

ARTICLES

McKnight, Family Law; Husband and Wife, 37 Sw.L.J.

100 (1983) 16

Newton & Trail, Uniformed Services Former Spouses’

Protection Act - A Legislative Answer to the McCarty

Problem, 46 Tex.B.J. 291 (1983) 7

Reppy, Reconsidering the Rules for Military Benefits,

5 Fam. Advocate 30 (Spring 1983) 8

Schroeder, Analyzing the Act and its Ambiguities,

5 Fam. Advocate 34 (Spring 1983) 8

MISCELLANEOUS

1982 U.S. Code Cong. & Admin. News 6

128 Cong. Rec. H5999 (Aug. 16, 1982) 7

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No.

ROLAND LEE GOAD

Petitioner,

MARY BETH GOAD

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE 272ND JUDICIAL DISTRICT COURT,

BRAZOS COUNTY, TEXAS

Roland Lee Goad petitions this Court for a writ of

certiorari to the 272nd Judicial District Court, Brazos County,

Bryan, Texas 77801.

OPINIONS BELOW

The 272nd District Court’s order of February 10, 1983

(App. A, la infra) denying Petitioner’s pest-judgement motion

seeking to vacate the portion of a divorce decree ordering a

division of Air Force retirement benefits as community pro-

perty is the basis for this petition for writ of certiorari.

On October 13, 1983 the Court of Appeals, Fourteenth

Supreme Judicial District of Texas at Houston, in an un-

published opinion and order (App. B & C, p. 2a-4a, infra)

dismissed Petitioner’s appeal for want of jurisdiction.

On February 22, 1984 the Texas Supreme Court refused

Petitioner’s application for writ of error with the notation ‘‘No

Reversible Error’’. “‘Goad v. Goad, C-2591, 27 Tex.Sup.CtJ.

244 (Feb. 25, 1984). Petitioner’s motion for rehearing was

overruled on March 21, 1984. 27 Tex.Sup.Ct.J. 280 (Mar. 24,

1984).

JURISDICTION

The 272nd Judicial District order (App. A, p. la infra) was

signed on February 10, 1983. Petitioner has timely perfected

his appeal in the immediate appellate courts and his applica-

tion for writ of certiorari in this Court.

The jurisdiction of this Court to review this case is invok-

ed under 28 U.S.C., section 1257(3).

The 272nd Judicial District Court, Brazos County, Texas

has decided an important question of federal law which has

not been, but should be, settled by this Court. The decision of

the 272nd District Court disposed of a federal question in a

way that conflicts with applicable decisions of this Court.

Two important federal legislative acts are presented for

plenary review in this Court, neither act has previously come

under review by this Court. These Acts are:

1. The Uniformed Services Former Spouses’ Protection

Act (10 U.S.C. 1408), and

2. The Consumer Credit Protection Act (15 U.S.C. 1671

et seq.).

JURISDICTION IN THE COURT BULOW

Petitioner's action in the 272nd District Court was

brought in conformance with the practice and procedure

outlined in the Restatement (Second) of Judgements, section

78 (1982) where it is stated:

Relief from a judgement must be obtained by means of a

motion for that purpose in the court that rendered the

judgement unless relief may be obtained more fully, con-

veniently, or appropriately by some other procedure ...

The motion is to be distinguished from a separate action,

traditionally one in equity, to set aside a judgement, and

from attack on a judgement made defensively when the

judgement in question is relied upon by an opposing party

in the course of a subsequent action ... The motion is

made in the court that rendered the judgement and may

be used to assert mosi of the grounds upon which relief

from a judgement may be obtained. p. 228.

Further authority to support the procedure selected is

found in the Restatement (Second) of Judgements, section 80,

Reporter’s Note, Comment a. beginning on page 247:

Comment a. As defined by many authorities and the first

Restatement, a “‘collateral attack’’ is ome thai is made

through some other procedural medium than motion for

new trial, appeal, postjudgement motion, or independent

suit in equity to set aside the judgement, all of which were

classified as ‘“‘direct attack’’ **** Id. at 247-8. With the

merger of law and equity, grounds for avoiding a judge-

ment not only can be but also are required to be asserted ™

in the action in which the judgement is invoked as a basis

for claim or defense ... See generally, Comment, The

Value of the Distinction Between Direct and Collateral

Attacks on Judgement, 66 Yale L.J. 526 (1957). Id. at 249.

This leaves open the question of which avenue of relief

shouid be preferred. Under merged procedure, the

judgement can be contested in the subsequent action

itself. It can also be litigated in any court of general

jurisdiction that could obtain jurisdiction over the par-

ties. Furthermore, given the widespread adoption of

Rule 60(b) of the Federal Rules of Civil Procedure and

analogous provisions, relief on at least some grounds,

other than “‘voidness’’ can be obtained by the motion

procedure in the original action. Id. at 249-50.

Petitioner has brought a direct attack in the same court

and in the same action as the original proceedings; and that

action has been removed to this Court, through intermediate

appellate courts, for direct review. This action comports with

the Texas Supreme Court’s dictum in Segrest v. Segrest, 649

S.W.2d 610, 611 (Tex. 1983) that:

It is well established that a voidable judgement is not

open to collateral attack, but can only be corrected by

direct review.

THE UNITED STATES AS A THIRD PARTY

Questions presented in this case draw into question the

constitutionality of an Act of Congress, therefore 28 U.S.C.,

section 2403(a) may be applicable. Accompanying this peti-

tion is an affidavit of service showing that three (3) copies of

this petition have been served upon the Solicitor General,

Department of Justice, Washington, D.C. 20530.

The Act drawn in question is the Uniformed Services

Former Spouses’ Protection Act (10 U.S.C. 1408), specifically

the retrospective application of the Act to judgements,

decrees, and orders entered before the effective date of the

Act and the Act’s retrospective abrogation of this Court's deci-

sion in McCarty v. McCarty, 453 U.S. 210 (1981).

ee ae

ON ee ee ee ee ee ee

CONSTITUTIONAL PROVISIONS AND STATUTES

THAT THE CASE INVOLVES

The following constitutional and statutory provisions are

involved in this case. The texts are reprinted in Appendix D

beginning at p. Sa infra.

United States Constitution

Article I, section 9, clause 7

Amendment V

Amendment X

Amendment XIV, section |

United States Statutes

10 U.S.C., sec. 1408(cX1) (96 Stat. 731)

10 U.S.C., sec. 1408 note (96 Stat. 737)

15 U.S.C., sec. 1672(a)

15 U.S.C., sec. 1672(b)

15 U.S.C., sec. 1672(c)

15 U.S.C., sec. 1673(a)

15 U.S.C., sec. 1673(bX1)

15 U.S.C., sec. 1673(bX2)

15 U.LS.C., sec. 1673(c)

15 U.S.C., sec. 1677

31 U.S.C., sec. 1301a

37 U.S.C., sec. 701(c)

Texas Constitution

Article I, Section 3

Article I, Section 13

Article I, Section lo

Article 1, Section 29

Article XVI, Section 28

THE UNIFORMED SERVICES FORMER SPOUSES’

PROTECTION ACT

The Act is found in Public Law No. 97-252 (Sept. 8, 1982)

(96 Stat. 730). Section 1002, subdivisior <<} of the Act added

section 1408 to Title 10 of the United States Code. Subsection

(c)(1) provides:

(cX1) Subject to the limitations of this section, a court may

treat disposable retired or retainer pay payable to a member

for pay periods beginning after June 25, 1981, either as pro-

perty solely of the member or as property of the member

and his spouse in accordance with the law of the jurisdiction

of such court.

The committee report accompanying the measure explains

the purpose of subsection (cX1) as follows:

The purpose of this provision is to place the courts in the

same position that they were in on June 26, 198] the date of

the McCarty decision, with respect tc treatment of non-

disability military retired or retainer pay. The provision is

intended to remove federal pre-emption found to exist by

the United States Supreme Court and permit State and

other courts of competent jurisdiction to apply pertinent

State or other laws in determining whether military retired

or retainer pay should be divisable. Nothing in this provi-

sion requires any division; it leaves that issue up to the

courts applying community property, equitable distribution

or other principles of marital property determination and

distribution. The power is returned to the courts retroac-

tive to June 26, 1981. This retroactive application will at

least afford individuals who were divorced ( or had decrees

modified) during the interim period between June 26, 1981

and the effective date of this legislation the opportunity to

return to courts to take advantage of this provision. 1982

U.S. Code Cong. & Admin. News, p. 1611, legislative

history, Senate Report No. 97-502.

RQ Tete ea

The conference report discussed the effective date sec-

tion of the act and the effect of 1408(cX1) as follows:

The conferees adopted the provision contained in the

House amendment, related to the application of the new

Title X to court orders finalized before the McCarty deci-

sion. Although the conference report contains no pro-

hibition against courts reopening decisions before that

date, the conferees agreed that changes to court orders

finalized before the McCarty decision should not be

recognized if those changes were effected after the

McCarty decision (and before the effective date of the

new title X) to implement the holding in that decision (for

example a modification setting aside a pre-McCarty divi-

sion of military retired pay). 128 Cong. Rec. H5999-6000

(daily ed. August 16, 1982, conference explanation).

In the March 1983 issue of the Texas Bar Journal, two law

professors teamed up to construe the Act:

Modifications based on McCarty should not be given ef-

fect by courts. **** It is true that Section (cX1) uses per-

missive language. It is also true that the language in the

direct enforcement section is in prospective form.

Nonetheless, the intent of Congress is clear. All effects of

McCarty are to be removed. Newton & Trail, Uniformed

Services Former Spouses’ Protection Act - A Legislative

Answer to the McCarty Problem, 46 Tex. B.J. 291, 295-6

(1983).

On April 13, 1983 the Texas Supreme Court recited its

opinion in Segrest v. Segrest, 649 S.W.2d 610 (Tex. 1983)

where the Court stated:

Title 10, section 1408 of the Department of Defense

Authorization Act of 1983 makes McCarty nugatory with

respect 1v its application to judgements rendered after

the date of the decision. 649 S.W.2d at 613, note 2.

At about the same time the Texas Supreme Court releas-

ed its opinion in Segrest, Professor William A. Reppy, Jr. in

one of his lucid moments was writing:

USFSPA purports to breathe new life into a pre-McCarty

decree calling for direct payments to the ex-spouse. But

the act’s apparent attempt to eliminate the member’s

rights under a final judgement applying McCarty retroac-

tively probably is an unconstitutional taking of property

in violation of the Fifth Amendment due process clause.

Reppy, Reconsidering the Rules for Military Benefits, 5

Fam. Advocate 30, 33 (Spring 1983).

In the same issue of Family Advocate, Representative

Patricia Schroeder (who was the floor manager of the Bill in

the House) wrote:

But the recently enacted Uniformed Services Former

Spouses’ Protection Act (USFSPA) allows the division of

military pensions under certain circumstances. With

divorce decrees finalized on or after February 1, 1983,

the legislation authorizes state courts to treat military

pensions as marital or non-marital property (to be divided

or not to be divided) in the ~me manner that they treat

non-military pensions. Schroeder, Analyzing the Act and

its Ambiguities, 5 Fam. Advocate 34 (1983).

Under the “‘plain meaning”’ rule of statutory construc-

tion, courts usually will not look outside the statutory

language when interpreting a nonambiguous statute.

There are exceptions, however, and the act’s complex

language further complicates the matter. Thus addi-

tional legislative or judicial action may be needed to

determine whether decrees finalized before June 26 can

or cannot be modified. Id. at 35.

STATEMENT OF THE CASE

The parties were divorced in 1980. The decree of divorce

was signed on September 19, 1980, Cause 23,862-A, 272nd

District Court, Brazos County, Texas. (App. E, pp 10a-14a

infra).

At trial on August 18, 1980, Petitioner raised the question of

federal pre-emption of state case law dividing military retired

pay as community property. The trial judge overruled Peti-

tioner’s point and in ‘“The Court’s Memorandum Brief for At-

torneys’’ (App. F, pp 15a-18a infra) explained his reasoning for

overruling Petitioner’s point.

Neither party appealed.

On October 20, 1980 this Court noted probable jurisdiction

in McCarty ». McCarty, No. 80-5, 449 U.S. 917 (1980).

On December 18, 1980, Petitioner, relying on federal pre-

emption, filed his first post-judgement motion in the 272nd

District Court seeking to have the portion of the divorce parti-

tioning Air Force retirement benefits vacated or set aside as void.

On June 26, 1981 this Court recited its opinion in McCarty

v. McCarty, 453 U.S. 210 (1981).

On July 13, 1981, relying on McCarty as dispositive of the

question, Petitioner filed an amended motion in the 272nd

District Court seeking to have the void portion of the divorce

decree vacated or set aside.

On February 18, 1982, Petitioner’s amended motion was

dismissed for ‘‘lack of jurisdiction’’. (App. G, p. 19a infra).

On March 11, 1982, Petitioner sought by mandamus in the

Texas Supreme Court, to have the dismissed actions restored to

the docket of the 272nd District Court and heard on the merits.

Motion for leave to file the application for a writ of mandamus

was overruled. Goad v. Smith, C-1098, 25 Tex.Sup.Ct.J. 224

(March 20, 1982).

On July 23, 1982 the Petitioner filed his second post-

judgement motion in the 272nd District Court seeking to have

the portion of the divorce decree partitioning Air Force retire-

ment benefits vacated or set aside as void. (App. H, pp

20a-21a infra).

On January 6, 1983 Petitioner filed a special pleading

denominated ‘‘Attack on Judgement -- Constitutional

Grounds’”’ also seeking to have the portion of the divorce

decree partitioning Air Force retiremeat benefits vacated or

set aside as void. (App. I, pp 22a-23a infra).

On February 1, 1983 the Uniformed Services Former

Spouses’ Protection Act became ‘“‘law’’.

On February 10, 1983 the court order was signed that

denied Petitioner motion and pending actions in the 272nd

District Court. (App. A, p. la infra).

On March 28, 1983 Petitioner filed his ‘‘Appeilant’s

Brief’’ in the Court of Appeals, Fourteenth Supreme Judicial

District of Texas at Houston, Cause B14-83-206-CV. (App. J,

pp 24a-29a infra).

On October 13, 1983, Cause B14-83-206-CV was dismiss-

ed for want of jurisdiction. (App. B & C, pp 2a-4a infra).

On October 20, 1983 Petitioner’s motion for rehearing

was filed in Cause B14-83-206-CV (App. K, pp 30a-32a infra).

Motion was overruled on October 27, 1983, no order or opinion.

On November 18, 1983 Petitioner’s Application for Writ of

Error was filed in the Texas Supreme Court, No. C-2591. (App. L,

pp 33a-34a infra). Application was dismissed on February 22, 1984

with notation ‘‘No Reversible Error’’, Goad v. Goad, C-2591,

27 Tex.Sup.Ct.J. 244 (Feb. 25, 1984). Petitioner’s motion for

rehearing was overruled on March 21, 1984, 27 Tex.Sup.Ct.J.

280 (March 24, 1984).

Petitioner now brings Application for Writ of Certiorari

in this Court seeking to review the order of the 272nd District

Court denying Petitioner’s post-judgement motion filed in

that court on July 23, 1982.

FEDERAL QUESTIONS PRESENTED

1. Whether a 1980 divorce decree partitioning future Air

Force retirement benefits as community property conflicts

with the Texas “‘Bill of Rights’’ provision declaring that “‘no

man, or set of men, is entitled to exclusive separate public

emoluments or privileges, but in consideration of public ser-

vices.””

This point was initially raised in the 272nd District Court

on January 6, 1983 by a special pleading denominated as ‘“‘At-

tack on Judgement - Constitutional Grounds’’ (App. I, pp

22a-23a infra). Point was denied per order of the court signed

February 10, 1983 (App. A, p. la infra).

This point was raised in the Fourteenth Supreme Judicial

District of Texas at Houston in Cause B14-83-206-CV, by point

of error number one in “‘Appellant’s Brief’’ filed on March 28,

1983. (App. J, p.25a infra). Action was dismissed for want of

jurisdiction. (App. B, p. 2a infra).

This point was raised in Petitioner’s Application for Writ

of Error in the Texas Supreme Court, No. C-2591, filed on

November 18, 1983, Point of error number one/B. (App. L, p.

34a infra). Action was dismissed on February 22, 1984 Goad v.

Goad, C-2591, 27 Tex.Sup.Ct.J. 244 (Feb. 25, 1984).

2. Whether a 1980 divorce decree partitioning future Air

Force retirement benefits as community property conflicts

with the Texas Constitution provision that states that ‘No cur-

rent wages for personal services shall ever be subject to gar-

nishment, except for the enforcement of court-ordered child

support payments.”

This point was raised in the 272nd District Court as point

of error number three in Petitioner’s post-judgement motion

filed on July 23, 1982. (App. H, p-2la infra). Point was denied

in court order signed February 10, 1983. (App. A, p. la infra).

This point was raised as point of error number IV in the

Fourteenth Supreme Judicial District of Texas at Houston,

Cause B-14-83-206-CV. (App. J, p, 25a infra). Dismissed per

order of court, App. B, p 2a infra.

Raised in the Texas Supreme Court per Point of error

number One/E, in Petitioner’s Application for Writ of Error,

C-2591, filed November 18, 1983. Action dismissed on

February 22, 1984. Goad v. Goad, 27 Tex.Sup.Ct.J. 244 (Feb.

25, 1984).

3. Whether the language of 15 U.S.C. 1673c that “‘No

court of the United States or any State, and no State (or officer

or agency thereof) may make, execute, or enforce any order or

process in violation of this section.’’ is broad enough to

preclude trustee process that would negate the statutory ex-

emptions from garnishment provided in the Consumer Credit

Protection Act (15 U.S.C. 1671 et seq).

Point of error number three in the 272nd District Court

in Petitioner’s post-judgement motion filed on July 23, 1982.

(App. H, p 2la infra). Denied per court’s order signed

February 10, 1983. (App. A, p. la infra).

Point of error number IV in the Court of Appeals. No.

B-14-83-206-CV, filed March 28, 1983. Dismissed on October

13, 1983 per order of court (App. B, p. 2a infra).

Point of error number one/E, in Petitioner’s Application

for writ of error in Texas Supreme Court, C-2591, filed

November 18, 1983. Action dismissed February 22, 1984.

Goad v. Goad, 27 Tex.Sup.Ct.J. 244 (Feb. 25, 1984).

4. Whether military non-disability retired pay is current

or deferred compensation; and, whether the unearned pro-

spective emoluments affixed to a public office are a species of

personal property subject to partition in divorce proceedings.

Point of error ‘‘First’’ in Petitioner’s post-judgement mo-

tion filed in 272nd District Court on July 23, 1982. (App. H, p,

21a infra). Denied per order of court signed on February 10,

1983. (App. A, p. la infra).

Point of error II in the Court of Appeals, B14-83-206-CV,

filed March 28, 1983. (App. J, p 25a infra). Dismissed per

order of court on October 13, 1983. (App. B, p. 2a infra).

Point of error One/C in Petitioner’s Application for writ

of error in the Texas Supreme Court, filed November 18, 1983.

(App. L, p 34a infra). Dismissed on February 22, 1984, Goad v.

Goad, C-2591, 27 Tex.Sup.Ct.J. 244 (Feb. 25, 1984).

5. Whether a declaratory or interpretive legislative act

may apply retroactively to annul a prior decision of a review-

ing court of last resort or remove a pending case from review

in the courts of justice; whether 10 U.S.C. 1408(c)(1) is con-

stitutionally infirm.

This point was not formally raised in the 272nd District

Court. On July 23, 1982 the Uniformed Services Former

Spouses’ Protection Act existed only in that capacious limbo

known as the “‘iegislative process’’. At the hearings in the

272nd District Court on January 3, 1983 and on January 28,

1983, the Act was orally briefed to the court but no transcrip-

tion of the proceedings was preserved.

The point was extensively briefed in the Court of Appeals,

Point of error III (App. J, p.25a infra). The text of Petitioner’s

position concerning the Act, as presented to the Court of Ap-

peals is summarized in App. J, pp 26a-29a infra. Action was

dismissed for want of jurisdiction. (App. B, p. la infra).

This point is implicitly included in point of error One/D

raised in the Texas Supreme Court. (App. L, p.34a infra). Fil-

ed November 18, 1983. Dismissed on February 23, 1984.

Goad v. Goad, C-2591, 27 Tex.Sup.Ct.J. 244 (Feb. 25, 1984).

6. Whether a public disbursing officer, in his official

capacity, and in the public funds in his custody, has any goods,

moneys, credits, or effects of any private person in his custody

and whether he owes a debt from the public treasury to

anyone; whether a public disbursing officer of the federal

government is amenable to attachment or garnishee process

from any court because of having such funds in his possession

or control.

This question is implicit in this entire case. If it may pro-

perly be decided that there is no private property, funds,

credits, or goods in the public treasury then the entire range

of questions presented here and the efforts to determine

“‘ownership”’ of military retired pay become moot.

NOTE: At first blush, it may appear that questions

number 1, 2, and 4 do not present a significant federal ques-

tion. Petitioner respectfully posits that the federal govern-

ment does have a special interest in ensuring that the states

exercise their police and regulatory powers without infringing

upon fundamental rights reserved to the people in the Bill of

Rights of the State constitution.

REASONS FOR ALLOWANCE OF THE WRIT

This case warrants review by this Court to resolve ap-

parant conflicting provisions of the Consumer Credit Protec-

tion Act (15 U.S.C. 1671 et seq) providing restrictions on gar-

nishment of disposable earnings and the provisions of the

Uniformed Services Former Spouses’ Protection Act (10

U.S.C. 1408) allowing garnishment of disposable retired or re-

tainer pay.

This case also presents for review several fundamental

questions of critical importance in intragovernmental rela-

tions between the co-ordinate branches of the federal govern-

ment and intergovernmental relations between the federal and

state governments.

Also presented for resolution are several questions con-

cerning constitutional law - courts open to all litigants - right

to a hearing when constitutional questions are raised - protec-

tion from retroactive legislation - separation of powers

-nondelegation doctrine - constitutional supremacy over con-

flicting statutes, etc.

Also two important federal legislative acts are presented

for plenary review in this Court.

The Consumer Credit Protection Act (15 U.S.C. 1671 et

seq) as amended in 1977 has potential application to perhaps

half the population of this country, however it has been totally

ignored by the courts in Texas. Petitioner can find no in-

stance where the Act has been recognized or applied by a

Texas court.

The Uniformed Services Former Spouses’ Protection Act

(10 U.S.C. 1408) presents a situation too gross to be believed.

Representative Patricia Schroeder, the floor manager cf

the Bill in the House, admits that additional legislative or

judicial action may be needed to determine whether decrees

finalized before June 26, 1981 can or cannot be modified (see

page 8 supra). In the same article she states that the Act applies

to divorce decrees finalized on or after February 1, 1983.

Professor Joseph McKnight wrote:

Finally, on September 8, 1982, the President signed the

Uniformed Services Former Spouses’ Protection Act, effec-

tive February 1, 1983. A new era of confusion has begun.

McKnight, Family Law: Husband and Wife, 37 Sw.LJ. 100

(1983).

By refusing to even entertain a challenge to the validity of

the Act, Texas courts have compounded their confusion with a

case of self-inflicted blindness.

CONCLUSION

If there was ever a single case crying out for this Court’s at-

tention, it is this one.

The outcome of this case would directly affect most of the

1.25 million military personnel now in receipt of retired or

disability pay as well as a large portion of the 2.1 million military

personnel now serving on active duty.

The Consumer Credit Protection Act has possible applica-

tion to well over 100 million Americans.

For the foregoing reasons this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

ROLAND LEE GOAD (pro se)

Rt. 1, Box 646

Huntsville, Texas 77340

App. A la

NO. 23,862-A

In Tue Matter OF Tue ° In Tue District Court Or

Marriace Or °

° Brazos County, Texas

Mary Betu Goap °

° 272np Jupicia District

AND .

Roanpb Lee Goap

ORDER DENYING MOTION

On the 28th day of January, 1983, came on to be finally

heard the ““RESPONDENT’S MOTION TO VACATE OR

SET ASIDE PORTION OF JUDGEMENT THAT IS VOID”’,

filed in this Court on July 23, 1982, by Roland Lee Goad.

ROLAND LEE GOAD appeared in person, pro se.

MARY BETH GOAD appeared by her attorney of record,

J. ANDREW ROLLINS

The Court, after hearing the evidence and argument of

ROLAND LEE GOAD, pro se, and of J. ANDREW ROLLINS,

Attorney of Record for MARY BETH GOAD, does order the

““RESPONDENT’S MOTION TO VACATE OR SET ASIDE

PORTION OF JUDGEMENT THAT IS VOID”’, filed in this

Court on July 23, 1982 by ROLAND LEE GOAD, pro se, be,

and is hereby, in all things, DENIED.

SIGNED: February 10th, 1983.

ERWIN G. ERNST, Judge Presiding

272nd Judicial District Court

Brazos County, Texas

App. B 2a

Judgement of the Court of Appeals, October 13, 1983.

B14-83-206-CV

IN THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

ROLAND LEE GOAD Appellant

MARY BETH GOAD Appellee

Appeal from the 272nd District Court

of Brazos County

Cause No. 23,862-A

JUDGEMENT

“‘On this day came on to be heard the Court's own motion

to dismiss the appeal from the order denying a motion to

vacate a portion of a divorce decree signed and entered by the

court below on February 10, 1983.

It is ordered and adjudged that the appeal be and is

dismissed. It is further ordered that all costs incurred by

reason of this appeal be paid by the appellant, Roland Lee

Goad. It is further ordered that this decision be certified

below for observance.”

Dismissed and opinion filed October 13, 1983.

App. C 3a

Unpublished opinion of the Court of Appeals for the Four-

teenth Supreme Judicial District of Texas at Houston, October

13, 1983.

B14-83-206-CV

IN THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

ROLAND LEE GOAD Appellant

MARY BETH GOAD Appellee

Appeal from the 272nd District Court

of Brazos County

Cause No. 23,862-A

OPINION

This is an appeal from an order denying a motion to vacate

a portion of a divorce decree.

The parties were divorced and their properties were divided

by a divorce judgement signed September 19, 1980. No appeal

was perfected from that judgement.

On July 23, 1982, appellant filed a motion to vacate the por-

tion of the divorce decree which ordered division of air force

retirement benefits as community property. The motion was

denied February 10, 1983, and appellant appealed.

On June 26, 1981, the United States Supreme Court held

that military retirement benefits were not divisible as community

App. C (Cont'd) 4a

property in a state court, McCarty v. McCarty, 453 U.S. 210

(1981). A final, pre-1981 divorce decree treating military retire-

ment pay as community property is not void, however, but mere-

ly voidable. Segrest v. Segrest, 649 S.W.2d 610 (Tex. 1983).

After 30 days elapse following rendition of a voidable judge-

ment, a court is without jurisdiction to set aside that judgement

by a motion to vacate. Glenn W. Casey Construction, Inc. v.

Citizen’s National Bank, 611 S.W.2d 695 (Tex.Civ.App. - Tyler

1980); see Krause v. White, 612 S.W.2d 639 (Tex.Civ.App.

-Houston (14th Dist.) 1981). Since the trial court had no jurisdic-

tion to entertain the motion to vacate, its denial of that motion is

not appealable. Consequently this Court has no jurisdiction of

the purported appeal. Eubanks v. Hand, 578 S.W.2d 515

(Tex.Civ.App. - Corpus Christi 1979, writ ref’d n.r.e.)

On September 29, 1983, notification was transmitted to all

parties of the Court’s intent to dismiss the appeal for want of

jurisdiction. Appellant’s response advances no argument to sup-

port a finding of jurisdiction.

Accordingly the appeal is dismissed for want of jurisdiction.

PER CURIAM

Judgement rendered and Opinion filed October 13, 1983.

No Publication - TEX. R. CIV. P. 452.

Panel consists of Associate Justices Pressler, Robertson and

Cannon.

App. D da

CONSTITUTIONAL PROVISIONS AND STATUTES

THAT THE CASE INVOLVES

UNITED STATES CONSTITUTION:

Article I, section 9, clause 7: No money shall be drawn from

the Treasury, but in Consequence of Appropriations made by

Law; and a regular Statement and Account of the Receipts and

Expenditures of all public Money shall be published from time

to time.

Amendment V: No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken

for public use, without just compensation.

Amendment X: The powers not delegated to the United States

by the Constitution, nor prohibited by the States, are reserved

to the States respectively, or to the people.

Amendment XIV, Section 1: All persons born or naturalized

in the United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the laws.

UNITED STATES STATUTES:

10 U.S.C., section 1408(c)(1) (96 Stat. 731): Subject to the

App. D (Cont'd) 6a

limitations of this section, a court may treat disposable retired

or retainer pay payable to a member for pay periods begin-

ning after June 25, 1981, either as property solely of the

member or as property of the member and his spouse in

accordance with the law of the jurisdiction of such court.

10 U.S.C., section 1408, note (96 Stat. 737): Subsection (d) of

section 1408 of title 10, United States Code, as added by sec-

tion 1002(a), shall apply only with respect to payments of

retired or retainer pay for periods beginning on or after the ef-

fective date of this title, but without regard to the date of any

court order. However, in the case of a court order that became

final before June 26, 1981, payments under this subsection

may only be made in accordance with such order as in effect

on such date and without regard to any subsequent modifica-

tions.

15 U.S.C., section 1672(a): The term “‘earnings’’ means com-

pensation paid or payable for personal services, whether

denominated as wages, salary, commission, bonus, or other-

wise and includes periodic payments pursuant to a pension or

retirement program.

15 U.S.C., section 1672(b): The term “disposable earnings”’

means the part of the earnings of any individual remaining

after the deduction from those earnings of any amounts re-

quired by law to be withheld.

15 U.S.C., section 1672(c): The term “‘garnishment’’ means

any legal or equitable procedure through which earnings of

any individual are required to be withheld for payment of any

debt.

15 U.S.C., section 1673(a): Except as provided in subsection

(b) of this section and in section 1675 of this title, the max-

imum part of the aggregate disposable earnings of an in-

dividual for any workweek which is subjected to garnishment

may not exceed

ae a See ee ee eee eee

App. D (Cont'd) 7a

(1) 25 per centum of his disposable earnings for that

week, or

(2) the amount by which his disposable earnings for that

week exceed thirty times the Federa! minimum hourly

wage prescribed by section 206(a)(1) of Title 29 in effect

at the time the earnings are payable,

whichever is less. In the case of earnings for any pay period

other than a week, the Secretary of Labor shall by regulation

prescribe a multiple of the Federal minimum hourly wage

equivalent in effect to that set forth in paragraph (2).

15 U.S.C., section 1673(b)(1): The restrictions of subsection (a)

of this section do not apply in the case of

(A) any order for the support of any person issued by a

court of competent jurisdiction or in accordance with an

administrative procedure, which is established by State

law, which affords substantial due process, and which is

subject to judicial review.

(B) any order of any court of the United States having

jurisdiction over cases under chapter 13, of Title 11.

15 U.S.C., section 1673(b)(2): The maximum part of the ag-

gregate disposable earnings of an individual for any workweek

which is subject to garnishment to enforce any order for the

support of any person shall not exceed -

(A) where such individual is supporting his spouse or

dependent cnild (other than a spouse or child with respect

to whose support such order is used), 50 per centum of

such individual’s disposable earnings for that week; and

(B) where such individual is not supporting such a spouse

App. D (Cont’d) 8a

or dependent child described in clause (A), 60 per centum

of such individual’s disposable earnings for that week;

except that, with respect to the disposable earnings of any in-

dividual for any workweek, the 50 per centum specified in

clause (A) shall be deemed to be 55 per centum and the 60 per

centum specified in clause (B) shall be deemed to be 65 per

centum, if and to the extent that such earnings are subject to

garnishment to enforce a support order with respect to a

period which is prior to the twelve-week period which ends

with the beginning of such workweek.

15 U.S.C., section 1673(c): No court of the United States or

any State, and no State (or officer or agency thereof), may

make, execute, or enforce any order or process in violation of

this section.

15 U.S.C., section 1677: This subchapter does not annul,

alter, or affect, or exempt any person from complying with, the

laws of any State

(1) prohibiting garnishments or providing for more

limited garnishments than are allowed under this sub-

chapter, or

(2) prohibiting the discharge of an employee by reason of

the fact that his earnings have been subjected to garnish-

ment for more than one indebtedness.

31 U.S.C., 1301a (formerly 628): Except as otherwise provided

by law, sums appropriated for the various branches of expen-

diture in the public service shall be applied solely to the ob-

jects for which they are respectively made, and for no others.

37 U.S.C., section 701(c): An enlisted member of the Army or

the Air Force may not assign his pay, and if he does so, the

assignment is void.

App. D (Cont’d) 9a

TEXAS CONSTITUTION

Article 1, BILL OF RIGHTS: That the general, great and

essential principles of liberty and free government may be

recognized and established, we declare:

Article I, section 3. All free men, when they form a social com-

pact, have equal rights, and no man, or set of men, is entitled

to exclusive separate public emoluments, or privileges, but in

consideration of public services.

Article I, section 13. Excessive bail shall not be required, nor

excessive fines imposed, nor cruel or unusual punishment in-

flicted. All courts shall be open, and every person for an in-

jury done him, in his lands, goods, person or reputation, shall

have remedy by due course of law.

Article I, section 16. No bill of attainder, ex post acto law,

retroactive law, or any law impairing the obligation of con-

tracts, shall be made.

Article I, section 29. To guard against transgressions of the

high powers herein delegated, we declare that everything in

this ‘“Bill of Rights’’ is excepted out of the general powers of

government, and shall forever remain inviolate, and all laws

contrary thereto, or to the following provisions, shall be void.

Article XVI, section 28. No current wages for personal service

shall ever be subject to garnishment, except for the enforce-

ment of court-ordered child support payments.

App. E 10a

Decree of Divorce, signed by presiding judge, 272nd District

Court, Brazos County, Texas on September 19, 1980.

NO. 23,862-A

In Tue Matter Or Tue In Tue District Court Or

MarriaGE OF

Brazos County, Texas

Mary Betu Goap

AND 272np JupiciaL District

Rotanp Lee Goap

DECREE OF DIVORCE

On the 18th day of August, 1980, Petitioner, MARY BETH

GOAD, appeared in person and by attorney and announced

ready for trial.

Respondent, ROLAND LEE GOAD, appeared in person

and announced ready for trial.

The Court, having examined the pleadings and heard the

evidence and argument of counsel, finds that all necessary

residence qualifications and prerequisites of law have been legal-

ly satisfied, that this Court has jurisdiction of all the parties and

subject matter of this cause, and that the material allegations

contained in Petitioner’s pleadings are true. A jury was waived,

and ali matters in controversy, including questions of fact and

law, were submitted to the Court. All persons entitled to citation

were properly cited.

The Court did decree on August 18, 1980, that MARY

BETH GOAD and ROLAND LEE GOAD be divorced, but that

the cause be continued until August 25, 1980 to allow briefs to be

filed regarding the division of the estate of the parties.

On August 25, 1980, Petitioner appeared by attorney,

Respondent appeared in person and the Court announced its

judgement.

——_—

App. E (Cont’d) lla

IT IS DECREED that MARY BETH GOAD, Petitioner,

and ROLAND LEE GOAD, Respondent, be and they are hereby

divorced.

The Court finds that there is no child of the marriage of

Petitioner and Respondent now under 18 years of age and that

none are expected.

The Court finds that the following is just and right having

due regard for the rights of each party;

IT IS DECREED that the estate of the parties be divided as

follows:

A. The real property, residence and improvements thereon

located at Antoine Circle, in College Station, Brazos County,

Texas is the sole and separate property of Petitioner’s and

Respondent is hereby divested of all right, title and interest in

and to such property, including all escrow funds held by First

Federal Savings and Loan for payment of insurance, taxes, and

maintenance charges on 1418 Antoine Circle, College Station,

Texas, as described above, provided that Petitioner pays to

Respondent the sum of $14,625.00 by November 25, 1980.

If said payment is not made by Petitioner by November 25,

1980 then Respondent may pay to Petitioner the sum of

$14,625.00 for all rights, title and interest in and to such pro-

perty.

If neither party pays to the other the sum of $14,625.00 by

said date, then the parties shall remain equal tenants in common

of said property with the Petitioner and Respondent each owning

an undivided fifty percent (50%) interest in 1418 Antoine Circle,

College Station, Brazos County, Texas.

B. Beginning November 25, 1980, the party who purchases

said residence from the other with the payment of the $14,625.00

shall pay the mortgage on said residence as it comes due, with

App. E (Cont'd) 12a

First Federal Savings and Loan of Bryan, Brazos County,

Texas, and shall indemnify and hold the other harmless from

any failure to so discharge such debt.

From August 25, 1980 to November 25, 1980, Respondent

shall pay the monthly obligations of said mortgage with First

Federal Savings and Loan as they come due.

If no purchase of said residence is made between the par-

ties, then the unpaid balance due and owing on the mortgage

with First Federal Savings and Loan for the residence at 1418

Antoine Circle, College Station, Texas, shall remain a joint

obligation of the parties.

Petitioner is awarded the following as Petitioner’s sole

and separate property, and Respondent is hereby divested of

all right, title and interest in and to such property.

1. All household furnishings, appliances, fixtures, wear-

ing apparel, jewelry, and other personal property in Peti-

tioner’s possession or subject to Petitioner’s control.

2. Any and all sums of cash in the possession of or subject

to the control of Petitioner, including money on account in

banks, savings institutions, or other financial institutions,

which accounts stand in Petitioner’s name or from which Peti-

tioner has the right to withdraw funds which are subject to

Petitioner’s control.

3. 1976 V.W. Sedan

4. Any and all insurance, pensions, retirement benefits,

and other benefits arising out of Petitioner’s employment.

5. All right, title and interest in and to twelve/twenty-

sevenths (12/27) of the United States Air Force Retirement

benefits of ROLAND LEE GOAD AF# - 462368682.

ee ee a ee ee ee ee

App. E (Cont'd) 13a

IT IS FURTHER ORDERED, that ROLAND LEE GOAD

shall, upon receipt of all United States Air Force Retirement

benefits, immediately deliver twelve/twenty-sevenths (12/27) of

said retirement benefit, by United States mail to MARY

BETH GOAD at her current place of residence.

Respondent is awarded the following as Respondent’s

sole and separate property, and Petitioner is hereby divested

of all right, title and interest in and to such property.

1. All wearing apparel, jewelry, and other personal pro-

perty in Respondent’s possession or subject to Respondent’s

control.

3. Any and all sums of cash in the possession of or subject

to the control of Respondent, including money on account in

banks, savings institutions, or other financial institutions

which accounts stand in Respondent’s name or from which

Respondent has the right to withdraw funds or which are sub-

ject to Respondent’s control.

All right, title, and interest in and to fifteen/twenty-

sevenths (15/27) of the United States Air Force Retirement

benefits of ROLAND LEE GOAD, AF# - 462368682.

IT 's DECREED that Respondent shall pay, as a part of

the division of the estate of the parties, the following debts

and obligations and shall hold Petitioner harmless from any

failure to do so discharge such debts and obligations:

1. Loan from Brazos County Federal Employees

Credit Union $708.00

2. Loan from Alfred Goad $650.00

3. Loan from Dale Goad $500.00

IT IS DECREED that each party shall bear his or her

App. E (Cont'd) l4a

own liability for taxes on income earned for the year 1980.

IT IS DECREED that Petitioner and Respondent shall

execute all instruments necessary to effect this decree,

specifically that ROLAND LEE GOAD execute to MARY

BETH GOAD a General Warranty Deed conveying all his in-

terest in and to the real property, residence and improvements

thereon located at 1418 Antoine Circle in College Station,

Texas, Brazos County, upon Mrs. Goad’s payment to him of

$14,625.00 for said interest, and that Petitioner and Respon-

dent have all appropriate and necessary writs, execution, and

process, as many and as often as is necessary to accomplish the

execution and final disposition of this judgement.

All costs of court expended in this cause are adjudged

against the party by whom incurred.

IT IS DECREED that all relief requested in this cause

and not expressly granted herein be and is hereby denied.

SIGNED this 19th day of September 1980.

W.T. McDONALD, SR.

JUDGE PRESIDING

COURT OF CRIMINAL APPEALS

OF TEXAS, SITTING FOR THE

272ND DISTRICT COURT

App. F 15a

Findings and decision of the 272nd District Court, Cause

23,862-A, filed by presiding judge on August 25, 1980.

NO. 23,862-A

In Tue Matter OF Tue In Tue Districr Court Or

Marriace Or

Brazos County, Texas

Mary Betu Goap

AND 272nd Jupiciat District

Rotanp Lee Goap

THE COURT’S MEMORANDUM BRIEF FOR ATTORNEYS

The issue for determination of this cause by this Court is

actually the status of the Respondent’s military retirement pay

from the air force. The record reflects that the parties were

married on April 8, 1950, and at the time of their marriage the

Respondent was a member of the military service and had

been since 1947. The record reflects that the Respondent

retired in the year 1974 after 27 years military service. The

record further reflects that the Respondent received as gross

military pay for the year 1979 the sum of $15,471.76 and after

deductions he received net pay of $13,467.96 from military

retirement for the year 1979.

This Court has carefully read the authorities submitted

by counsel in this case. The Respondent relies upon the deci-

sion of the United Siates Supreme Court in the case of His-

quierdo vs. Hisquierdo reported in 99 S. Ct. 802, 59 LED 2d

pg. 1, recited on January 22, 1979. In this case the Supreme

Court of California has awarded the wife an interest in the

husband’s expected retired benefits under the Railroad

Retirement Act of 1974, but the Supreme Court of the United

States reversed the judgement of the Supreme Court of

California and in effect the Court he!d that the wife was not

entitled to any of these benefits and held that such an award to

compensate the wife in the husband’s expected retirement

App. F (vont’d) l6a

benefits payable under the Railroad Retirement Act was im-

proper.

The Respondent also cites Cose vs. Cose cited by the

Supreme Court of Alaska on March 30, 1979. The Supreme

Court of Alaska followed the Hisquierdo case and held that

armed forces retirement pay is not property which is divisible

upon divorce. The Court observes that Alaska is not a com-

munity property state and furthermore, the Supreme Court of

Texas has arrived at a different position in which it has

distinguished the Railroad Retirement Act and a retirement

thereunder from military retired pay. It is this Court’s belief

that the Hisquierdo decision does not apply because no issue

concerning Railroad Retirement Act benefits are involved in

the instant case. Post-Hisquierdo decisions have been uniform

in restricting Hisquierdo to the narrow subject matter of

Railroad Retirement Act benefits. The Arizona Supreme

Court rejected the attempt to extend Hisquierdo to military

retired pay. See the case of Czarnecki v. Czarnecki, 5 Family

Law Reporter 2645 (decision rendered April 4, 1979). Similarly,a

California Appeals Court has held that Hisquierdo does not

apply to military retirement benefits. See Gorman vs. Gor-

man, 5 Family Law Reporter 2441 (California Court of Ap-

peals - 4th District, decision rendered March 14, 1979).

The Supreme Court of Texas held in Taggart v. Taggart

592 SW2d 422 (1977) and Cearley vs. Cearley 554 SW2d 661

(1976) and Busby vs. Busby 467 SW2d 551 (1970), that military

retirement pay was community property and divisible upon

divorce. Perhaps the latest case decided is that of Spencer vs.

Spencer cited by the Court of Civil Appeals of El Paso on Oc-

tober 17, 1979, in which the wife was held to have an interest

in husband’s military retirement benefits after her divorce

from him.

For the above reasons stated, the Court finds that Mary

Beth Goad does have an interest in the retirement benefits of

the Respondent and that said benefits constitute community

Pe eR Fe ee eee a ee

App. F (Cont'd) 17a

property of the parties. Since three years of the 27-year

military service was served by the Respondent prior to his

marriage to the Petitioner, there remains 24/27 as the frac-

tional part of said pay constituting community property which

means that the Petitioner is entitled to receive one-half of

24/27 or an interest of 12/27 in and to all future military retire-

ment benefiis paid to the Respondent and the Respondent is

in turn the owner of the remaining one-half of the community

interest constituting 12/27 plus his separate interest therein of

3/27 so that Respondent’s total interest amounts to 15/27.

The Court further finds that the parties own as communi-

ty property their home situated at Antoine in College Station,

Texas, where the Petitioner currently resides. The testimony

of both parties reflect that they value the property at $50,000

and further, the testimony reflects that the approximate in-

debtedness owing on the home to First Federal Savings and

Loan Association of Bryan, Texas is $20,750, and that said

loan on said property is being retired in monthly installments

of approximately $210 per month, and that there are no cur-

rent delinquent payments on said property. This Court does

not feel that it would be fair and equitable to set aside this pro-

perty to the Petitioner as she seeks to have the Court do.

However, the Court does hereby set aside the home to the Peti-

tioner conditioned that she will pay the Respondent one-half

of his net equity in said property which said sum is arrived at

by deducting from the value of the home of $50,000 the sum of

$20,750 owing on the property, which leaves as the net com-

munity equity belonging to both parties the sum of $29,250,

and dividing one-half of this sum, it amounts to $14,625. If

the Petitioner pays to the Respondent the sum of $14,625 for

his undivided community interest in the net proceeds of said

home, then the title to said property is entirely divested out of

the Respondent and fully vested in the Petitioner. This Order

is predicated upon performance by the Petitioner within 90

days from this date, which means by November 25, 1980. Dur-

ing said 90-day period, the Petitioner is to occupy said home

and the Respondent is required to keep the payments currently

App. F (Cont’d) 18a

paid on said home out of his own funds, but if at the end of

said 90-day period on November 25, 1980, the Petitioner has

not come forward and paid the Respondent the said sum of

$14,625, at that time the Respondent is free to attempt to buy

the interest of the Petitioner, or both parties are free to sell

said property to a third party, and in the absence of any per-

formance by November 25, 1980, then said properiy velongs

to the Petitioner and Respondent equally as tenants in com-

mon and, of course, either party shall be free to file a petition

of partition of said premises.

There has been a wide variation in the valuation placed

by the parties hereto as to the household furniture and per-

sonal effects in this home. The Petitioner has placed a very

modest value of approximately $1500 on the entire contents of

said house but the Respondent has placed a very liberal vaiue

of $25,000 on said furniture and household goods. The

evidence reflects that the current insurance policy carried on

said premises covering the household goods and furniture is

approximately $18,000; so there is a wide divergence of not

less than $16,500 between what the Petitioner valued the pro-

perty at and with it’s insured for. This Court expresses a hope

that the parties hereto will be able to resolve the differences of

this furniture and household goods without intervention by

this Court because this Court well knows, and the parties

hereto should know that there is litte demand and little money

paid for secondhand furniture. For that reason, the Court

makes no effort to dispose of these household goods and fur-

niture but leaves it to the parties to continue their joint owner-

ship as tenants in common. If they cannot reach a settlement,

either of them, of course, may petition the Court to appoint or

partition said household items for them.

App. G 19a

Cause No. 23,862-A

In Toe Matter OF Tue In Tue District Court OF

Marriace Or

Brazos County, Texas

Mary Betu Goap

AND 272nvd Jupiciat District

Roxanp Lee Goap

ORDERS OF DISMISSAL

On the 19th day of October, 1981, came on to be heard for

hearing the Amended Motion to Set Aside Part of Judgement

That is Void for Lack of Jurisdiction Over Subject Matter, as fil-

ed by Roland Lee Goad, and Petition to Recover Amount Paid

on Judgement Afterwards Found to be Void, as filed by Roland

Lee Goad.

Roland Lee Goad appeared in person, pro se.

Mary Beth Goad appeared by attorney, J. Andrew Rollins.

The Court, after review of the record, and hearing the

evidence and argument presented on behalf of the parties, finds

that it has no jurisdiction to hear these matters presented to it.

IT IS THEREFORE ORDERED that the Amended Motion

to Set Aside Part of Judgement That is Void for Lack of Jurisdic-

tion Over Subject Matter and the Petition to Recover Amount

Paid on Judgement Afterwards Found to be Void BE AND

THEY ARE HEREBY DISMISSED for lack of jurisdiction.

Costs of Court are assessed against Roland Lee Goad.

SIGNED: February 18, 1982.

J. BRAD. SMITH

Judge Presiding

272nd Judicial District

Brazos County, Texas

App. H 20a

Motion filed in 272nd District Court on July 23, 1982. Motion

denied per court order signed February 10, 1983 (App. A, p. la

supra).

No. 23,862-A

In Tue Matter OF Tue In Tue District Court Or

MarriaGe Or

Brazos County, Texas

Mary Betu Goap

AND 272npd Jupiciat District

Rotanp Lee Goap

RESPONDENT’S MOTION TO VACATE OR SET ASIDE

PORTION OF JUDGEMENT THAT IS VOID

ROLAND LEE GOAD, Respondent herein, respectfully

moves the Court to issue an order vacating or setting aside so

much of the Decree of Divorce as “‘awarded’’ MARY BETH

GOAD as her separate property ‘‘All right, title and interest in

and to twelve twenty-sevenths (12/27) of the United States Air

Force Retirement benefits of ROLAND LEE GOAD

AF 462368682; such judgement appearing of record in

Volume 35, pages 636-639 of the minutes of this Court. A

copy of subject Decree of Divorce is attached hereto and in-

corporated by reference the same as if fully copied and sei

forth and made a part hereof for all purposes.

This motion is premised upon the assertion (now made by

both parties) that the purported division of the military retired

pay as part of the estate of the parties was outside the jurisdic-

tional power of the Court and is therefore void. Respondent’s

motion relies on five separate and distinct elements, any one

of which is sufficient to support the conclusion that the part of

the decree dividing the retired pay is void.

App. H (Cont’d) 21a

FIRST:

SECOND:

THIRD:

FOURTH:

FIFTH:

The award constitutes post-divorce court awarded

permanent alimony and is therefore void under

State law.

The award contravenes the specific non-

assignment provisions of 37 U.S. Code, Section

701(c) as well as the general non-assignment pro-

visions of 31 U.S. Code, Section 203, and is

therefore preempted by operation of the

Supremacy Clause of the United States Constitu-

tion.

The requirement that directs the Respondent to

forward a fractional portion of his retired pay to

the Petitioner each month constitutes a pro-

hibited garnishment action ihat contravenes

Texas constitutional and statutory provisions as

well as federal statutes. Such action is expressly

preempted by 15 U.S. Code, Section 1673.

Insofar as the Decree of Divorce purports to im-

pose a constructive trust upon a portion of

Respondent’s military retired pay, subject con-

structive trust operates as a forbidden seizure

that contravenes the non-assignment provisions of

federal law and federal case law going back to

1846.

By the Petitioner’s own voluntary act, she has re-

nounced any claim that the purported division of

retired pay was either valid or enforceable, and

thus by application of the doctrine of judicial

estoppel, she is barred from ever making a con-

trary assertion in this, or any other court.

(omitted are 10 pages of written argument)

App. I 22a

Special pleadings filed in 272nd District Court on January 6,

1983. Denied per court order signed February 10, 1983 (App.

A, p. la supra)

No. 23,862-A

In Tue Matter Or Tue In Tue District Court Or

MarriaGe OF

Brazos County, Texas

Mary Betu Goap

AND 272np JupiciaL District

Rotanp Lee Goap

ATTACK ON JUDGEMENT - CONSTITUTIONAL GROUNDS

TO THE HONORABLE JUDGE:

The Respondent reasonably believes that he has already ad-

vanced a sufficient number of proper reasons for the Court to

conclude that the purported division of retired pay was and is

void. However, because it appears that regardless of the Court’s

disposition of this question, the case will proceed to appellate

level, the Respondent feels compelled to present one more valid

and fundamental reason for concluding that the division of

retired pay is and was void.

Article I, Section 3 of the Texas Constitution provides:

‘*(N)o man... is entitled to exclusive separate public emoluments,

or privileges, but in consideration of public services.” See

Glasgow v. Terrell, 100 Tex. 581, 102 S.W. 98 (1907).

And in Article I, Section 29 of the Texas Constitution it is

stated: ‘‘(W)e declare that everything in this ‘‘Bill of Rights”’ is

excepted out of the general powers of government, and shall

forever remain inviolate, and all! laws contrary thereto ... shall be

void.”’

App. I (Cont'd) 23a

By the 10th Amendment of the Constitution all rights are

retained by the States or the people except those delegated to

the Federal Government.

From the foregoing it is clear that if military retired pay

is properly found to be an exclusive separate public emolu-

ment or privilege, then the rights, if any, to such pay inure ex-

clusively to the military member. Any award, however made,

of exclusive public emoluments or privileges to the divorced

former spouses of military personnel, except in consideration

of public services, is excepted out of the general powers of

government and are therefore void.

iil

Military retired pay is not a pension, but rather is pay-

ment for a status held by the retiree. For example, in Hooper

v. Hartman, 163 F.Supp. 437 (D.C. Cal. 1958) it was held that

the pay was not a pension or annuity, but was an emolument

of, and dependent upon, the office so held. Similarly the

Court of Claims in Lemley v. United States, 75 F.Supp. 248

(1948), recognized the distinction between a military pension

and military retired pay, with the latter being dependent

upon, and in recognition of, an existing status. See also

Badeau v. United States, 130 U.S. 439 (1888); Hooper v.

United States, 326 F.2d 982 (Ct.Cl. 1964); Bland v. Hartman,

245 F.2d 311 (9th Cir. 1957); Allen v. United States, 91 F.Supp.

933 (Ct.Cl. 1950); Marriage of Butler, 543 S.W.2d 147

(Tex.Civ.App. - Texarkana 1976, writ dism’d) and 6 C.J.S.

(Armed Services) Section 114 at p. 706.

***

App. J 24a

Appellant’s Brief in the Court of Appeals, Fourteenth

Supreme Judicial District of Texas at Houston, filed on March

28, 1983 and dismissed on October 13, 1983 with order and

opinion. (App. B & C, pp. 2a-4a supra)

B14-83-206-CV

IN THE

COURT OF APPEALS

FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

ROLAND LEE GOAD Appellant

MARY BETH GOAD Appellee

On Appeal from the District Court of Brazos County, Texas

272nd Judicial District

APPELLANT'S BRIEF

TO THE HONORABLE COURT OF APPEALS:

NATURE OF THE CASE

The parties were divorced in 1980 and neither party appeal-

ed the Decree of Divorce. The matter in controversy is the part

of the Decree that awards the Appellee a fraction of Appellant’s

Air Force retirement benefits. The Appellant contends that, in

dividing the Air Force retirement benefits, the trial court acted

beyond its jurisdiction and therefore the portion of the Decree

ordering such division was and is void ab initio and should be

vacated or set aside.

On January 28, 1983 at a hearing on Appellant’s motion to

vacate a portion of the decree, judgement was rendered for Ap-

pellee to the effect that the division of retirement benefits was

App. J (Cont'd) 25a

and is valid. The Appellant seeks reversal of the holdings that

the ordered division of Air Force retirement benefits was

valid, and to have an order entered vacating or setting aside

that portion of the Decree of Divorce.

STATEMENT OF POINTS OF ERROR

The District Court erred in dismissing Appellant’s motion

to vacate or set aside portion of judgement entered in 1980 that

awarded the Appellee a fraction of Appellant’s Air Force retire-

ment benefits. The ordered division of Air Force retirement

benefits is void:

POINT I

POINT II

POINT III

POINT IV

POINT V

because if enforced, it is in contravention of the

Texas Constitutional provision that prohibits the

granting of public emoluments except in considera-

tion of public services.

because it is an award of permanent alimony,

military retired pay being current compensation for

a status presently held by the military member.

because the award, when made, violated the anti-

assignment statutes in federal law and was therefore

preempted by operation of the Supremacy Clause of

the United States Constitution.

because it operates as both a garnishment of cur-

rent wages for personal services and a forbidden

seizure of such wages.

because it has been rendered a nullity and unen-

forceable by the Appellee’s own voluntary actions

that constitute a waiver of any claim she may have

had and also, by application of judicial estoppel,

presenting an insurmountable barrier to any

recovery by Appellee.

App. J (Cont'd) 26a

*exe eee eke HE Ke

POINT OF ERROR III RESTATED

The ordered division of Air Force retirement benefits is

void because the award, when made, violated the anti-

assignment statutes in federal law and was therefore preemp-

ted by operation of the Supremacy Clause of the United States

Constitution.

**x *e eK KKK

It is noteworthy to observe that when enacting the Uniformed

Services Former Spouses’ Protection Act (96 Stat. 730), the

Congress has failed to either amend or repeal Title 37, U.S.

Code, Section 701, consequently the Act only operates as a

declaratory enactment which does not affect the judicial con-

struction made by the Supreme Court in McCarty, 453 U.S.

228 n. 22. °°

The Defense Authorization Act was signed by the President on

September 8, 1982. Title X of the Act is known as the

Uniformed Services Former Spouses’ Protection Act and is

found in P. L. 97-252 (96 Stat. 730) which became effective

February 1, 1983. The Act authorizes a state court to order a

division of military retired pay as part of the property division

in divorce proceedings. The Act also, for the first time, -

authorizes the Secretaries of the Uniformed Services to honor

a court order awarding military retired pay to a former spouse

of a military member. We believe that the application of the

Act in any manner that deprives a military member of any of

the pay or entitlements to retired pay earned as a result of

military service performed prior to the effective date of the

Act is precluded by the Contract Clause (Articie I, Section 10,

Clause 1) of the United States Constitution. Retroactive

regulation that would impair the obligation of contrcts is not

permitted. We also believe that Section 1906(b) of the Act (96

Stat. 737) insofar as it attempts to ratify or confirm any pur-

ported award or retired pay te former spouses made in judge-

App. J (Cont’d) 27a

ments entered prior to the effective date of the Act is unconstitu-

tional and void, both because it is retrospective and because it is

repugnant to the Taking Clause of the Fifth Amendment of the

United States Constitution. Retrospective legislation is pro-

hibited under the Fifth and Fourteenth Amendments when it

divests any private vested rights or interest. See 16A Am. Jur.2d

Constitutional Law Sectio 664 (1979). ***

By the Tenth Amendment to the United States Constitution all

rights are retained by the States or the people except those

delegated to the Federal Government. While the Contract

Clause of the Constitution is directed at the states alone, it never-

theless states the policy of the founders of the Government on

the question of impairing the obligation of contracts and that

any Act of Congress that does impair the obligation of contracts

is contrary to that policy and not within the powers delegated to

the Federal Government, except in specific cases, such as

bankruptcy. Even in those fields where from the grant of power,

there is to be implied the power to impair the obligation of con-

tracts, the power must nevertheless be exercised subject to the

limitations of the Fifth Amendment of the Constitution. ***

We also believe that Title 10, U.S. Code, Section 1408(c)(1)

(96 Stat. 731) insofar as these provisions of the Act attempt to

give validity to judgements rendered before the effective date of

the Act are unconstitutional under the Separation of Powers pro-

visions of the United States Constitution. Congress does not

possess and may not assume the exercise of judicial powers. Con-

gress cannot annul, vacate, set aside, reverse, modify, or impair

the final judgement of a court of competent jurisdiction. The

United States Supreme Court remains such a court of competent

jurisdiction. Furthermore statutes will not be applied retorac-

tively to validate or invalidate judgements rendered before their

passage. A statute should not be construed to impair the force or

validity of a judgement previously obtained, to give validity to a

judgement theretofore rendered without authority (as in this case

now before this Court), or to authorize a judgement in a pending

proceeding to which the party was not entitled at the time the ac-

tion commenced. Statutory phrases have been construed to app-

ly only to judgements obtained after the statute takes effect. ***

App. J (Cont'd) 28a

The rule is based on the well established principle of public

law that the three great powers of government should be

preserved as distinct from and independent of each other. ***

In Title 10, U.S. Code, Section 1408(c)(1) (96 Stat. 731) the

Congress had delegated to the courts authority to authorize

and order payments out of the United States Treasury to the

former spouses of military personnel, as their exclusive pro-

perty right, specific amounts or percentage amounts of

disposable retired pay, that would otherwise be the property of

the military member. Under the statute, the award becomes a

property right, within certain restrictions, owned by the

former spouse during the remainder of his/her lifetime; the

award, once made, becomes non-reviewable, non-cancellable

and continues until the death of either party. Although no

specific appropriation has been made for the purpose, the Act

directs the Secretaries of the Uniformed Services to pay the

awarded amounts, within certain limitations, out of funds ap-

propriated for military pay. We believe that this delegation of

authority to the courts is an unconstitutional delegation of

legislative power by Congress. We also believe, if accepted by

the courts, this is an unconstitutional assumption of legislative

power by the courts. Section I, article I of the United States

Constitution prescribes that ‘‘All legislative powers herein

granted shall be vested in a Congress of the United States ...”’;

and in clause 7, section 9 of this article I of the Constitution it

is prescribed that ‘‘No Money shall be drawn from the

Treasury, but in consequence of Appropriations made by law

** From these provisions of article I, it is clear that the

authorization for the payment of public moneys must come

from Congress. The Congress is without constitutional power

to redelegate this power to any court, least of all a state court

or a court in a foreign jurisdiction. We have long celebrated

an ancient maxim of Roman law, potestas delegata non posest

delegari, - a delegated power must not be redelegated. Our

political theory regards the lawmaking power of Congress as a

delegation of power to it by the people, it follows that delega-

tion by Congress is redelegation. In human affairs it is at all

App. J (Cont'd) 29a

times important to have it clear where authority and respun-

sibility rest. The United States Government has many obliga-

tions calling for the payment of money. Some of these obliga-

tions arise from contract, others from statute, or treaty, and

still others from the Constitution itself. The obligation for

disbursement of military pay arises by statute. Generally

speaking, it is within the province of the courts to determine

what obligations exist and the extent thereof, but the payment

of these obligations is not a function of the courts. Rather,

under the Constitution, the power to pay or to authorize pay-

ment of any moneys resides solely in the Congress. Further-

more, no officer of the Federal Government is authorized to

pay a debt due from the United States, whether reduced to

judgement or not, without an appropriation for that purpose.

A serious constitutional question arises whether any court,

especially a state court, or a court in a foreign jurisdiction, can

direct payments of public money from the Treasury when

there is no appropriation made by law for that purpose. ***

A conclusive pronouncement by the United States

Supreme Court cannot be disregarded, otherwise it allows the

Congress, by subsequent interpretive legislation, to direct a

construction of a previously passed statute. It in effect, makes

the Congress the court of last resort in this Nation. Such an

unacceptable result is further aggravated when, as in the pre-

sent case, the Congress attempts to reverse a decision of the

highest court as to a statutory provision enacted by a previous

Congress. The Congress in its attempt to direct construction

of those statutes already in effect and to make its construction

retroactive is clearly unconstitutional as violative of the

separation of powers. Even if the construction directed by

Congress is found to be the correct one, such holdings must be

given only prospective application. ***

App. K 30a

Appellant’s motion for rehearing filed in the Court of Appeals

Fourteenth Supreme Judicial District of Texas at Houston, on

October 20, 1983. Motion overruled on October 27, 1983. No

order OF Opinion.

B14-83-206-CV

IN THE

FOURTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

ROLAND LEE GOAD Appellant

MARY BETH GOAD Appellee

On Appeal From The District Court of Brazos County, Texas

272nd Judicial District

APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE COURT OF APPEALS:

ROLAND LEE GOAD, Appellant in this cause, makes this

motion for a rehearing of the decision of this Court rendered on

October 13, 1983 whereby, on its own motion, this Court dismiss-

ed the appeal in this cause and respectfully shows:

POINT OF ERROR I

The Court of Appeals erred in dismissing this action to.

want of jurisdiction in this Court and in the trial court because

the ordered division of Air Force retirement benefits contained

in the Decree of Divorce signed on September 19, 1980 has been

made void and unenforceable by an Act of Congress codified in

Title 10, U.S. Code, section 1408 (96 Stat. 730, 1982) effective

February 1, 1983.

App. K (Cont'd) 3la

(argument omitted)

POINT OF ERROR II

The Court of Appeals erred in dismissing this action for

want of ivrisdiction in this Court and in the trial court because

the ordered division of Air Force retirement benefits contain-

ed in the Decree of Divorce signed on September 19, 1980 is

void because it violates the Texas constitutiona! provision that

no one is entitled to exclusive separate public emoluments, or

privileges, but in consideration of public service.

(argument omitted)

POINT OF ERROR III

The Court of Appeals erred in dismissing this action for

want of jurisdiction in this Court and in the trial court because

the ordered division of Air Force retirement benefits contain-

ed in the Decree of Divorce signed on September 19, 1980 is

void because such award is permanent alimony, military

retired pay being current compensation for a current status.

(argument omitted)

POINT OF ERROR IV

The Court of Appeals erred in dismissing this action for

want of jurisdiction in this Court and in the trial court because

the ordered division of Air Force retirement benefits contain-

ed in the Decree of Divorce signed on September 19, 1980 is

void because subject decree violates the provisions of Title 37,

U.S. Code 701(c) which provides that “‘An enlisted member of

the Army or Air Force may not assign his pay, and if he does

-so, the assignment is void.”

(argument omitted)

POINT OF ERRCR V

The Court of Appeals erred in dismissing this action for

App. K (Cont'd) 32a

want of jurisdiction in this Court and in the trial court because

the ordered division of Air Force retirement benefits contain-

ed in the Decree of Divorce signed on September 19, 1980 is

void because subject decree operates as a prohibited garnish-

ment and seizure of current wages for personal services and

deprives Appellant of statutory exemptions contained in Texas

constitutional and statutory provisions and in federal statutes.

(argument omitted)

POINT OF ERROR VI

The Court of Appeals erred in dismissing this action for

want of jurisdiction in this Court and in this trial court

because the ordered division of Air Force retirement benefits

contained in the Decree of Divorce signed on September 19,

1980 is void and unenforceable because Appellee has knowing-

ly and voluntarily waived any right, title, or interest she may

have had in the Air Force retirement benefits. (argument

omitted)

PRAYER

WHEREFORE Appellant respectfully moves that the

Court grant this motion for rehearing and that this cause be

heard cn the merits.

Respectfully submitted,

ROLAND LEE GOAD

App. L 33a

Application for Writ of Error filed in the Texas Supreme

Court on November 18, 1983. Application dismissed on

February 22, 1984 with notation ‘‘No Reversible Error.’’

Goad v. Goad C-2591, 27 Tex. Sup. Ct. J. 244 (Feb. 25, 1984).

NO. C-2591

IN THE

SUPREME COURT OF TEXAS

ROLAND LEE GOAD

Petitioner,

MARY BETH GOAD

Respondent.

PETITIONER’S APPLICATION FOR WRIT OF ERROR

TO THE HONORABLE SUPREME COURT OF TEXAS:

Petitioner, ROLAND LEE GOAD, Appellant in Cause No.

14-83-206 CV in the Court of Appeals for the Fourteenth

Supreme Judicial District of Texas, at Houston, Texas, and

Respondent in the district court, respectfully submits this ap-

plication for writ of error to correct an error of law committed

by the Court of Appeals in refusing to hear Petitioner’s appeal

filed in that court.

(Statement of the Case omitted)

STATEMENT OF JURISDICTION

The Supreme Court has jurisdiction of this suit under

Subdivision 6 of Article 1728 of the Revised Civil Statutes.

POINT ONE

The Court of Appeals erred in dismissing Petitioner’s ac-

tion in the Court of Appeals for want of jurisdiction in that

Court.

App. L (Cont’d) 34a

POINT ONE/B

The ordered division of Air Force retirement benefits is

void because the order violates the Texas constitutional provi-

sions that no one is entitled to exclusive separate public

emoluments or privileges but in consideration of public ser-

vice.

POINT ONE/C

The ordered division of Air Force retirement benefits is

void because such award to Respondent constitutes an award

of permanent alimony, military retired pay being current com-

pensation for personal services.

POINT ONE/D

The ordered division of Air Force retirement benefits is

void because such award to Respondent violates the provisions

of Title 37, U.S. Code, section 701(c) which provides that “‘An

enlisted member of the Army or Air Force may not assign his

pay, and if he does so, the assignment is void.”’

POINT ONE/E

The ordered division of Air Force retirement benefits is

void because such award to Respondent operates as a pro-

hibited seizure of current wages for personal services and

deprives Petitioner of:

1. exemptions contained in the Texas Constitution

2. exemptions contained in the Texas statutes

3. and exemptions provided in federal statutes.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.