Petition for Writ of Certiorari — Farley v. Roberts
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
@ 5 3 o V Su yeme Court, U.S. “4
lk em
AUG 16 1985
JOSEPH F. SPANIOL, JR.
CLERK
NO. anil
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
4%
JOHN WALRAVEN FARLEY, Ill, PETITIONER
Vv
LENA FARLEY ROBERTS, RESPONDENT.
*
PETITION FOR WRIT OF CERTIORARI
TO SUPREME COURT OF TEXAS
David W. Anderson
P.O. Box 270
Marlin, Texas 76661
817-883-5529
QUESTIONS PRESENTED
In this case the Petitioner is in receipt of compensation from the
Veterans’ Administration and disability pay from the United States
Air Force. Respondent has asserted a community property right in
these benefits. As such the questions presented are as follows:
1. Does the community property right asserted by Respondent
in payments received by Petitioner from the Veterans’ Administra-
tion conflict with terms of the federal statutes governing Veterans’
Benefits sufficiently to injure the objectives of the federal program,
and, therefore, require nonrecognition?
2. Does the community property right asserted by Respondent
in payments received by Petitioner because of military disability con-
flict with the terms of the federal statutes governing military disability
sufficiently to injure the objectives of the federal program, and,
therefore, require nonrecognition?
Page
CE IE nic 65. bs euch caw ba tie otk b oak bee eeee l
PEE v4 3 505.5 be 045 64 0S KURTA CG CE aRA Oke 2
Constitution and Statute Involved .................... 2
STN SER one ceo cack ot chs ws dea tbasiee 2
een ieee ti... hed, ORE ee ee ee rere 4
WEE hus bse keaOAG Re eG E a ECTOD ie bona ees 13
Appendix A:
Opinion of Court of Appeals, Sixth District,
Texarkana, Texas, of December 28, 1984. ........... 1,2
Appendix B:
Ie eae: PN ED oa ee ee ae l
Ie Rees BIE 6 05. 0s cd's be Se een banker 1
Pee errr re 2
38 U.S.C. Section 331...... CEE REE Rea ea ake 3
SO Sa Ih 6 oon he CARN ek ROR es 4
AR fe, Pree pee ee ee 4
Se ac EE ES 5 dss dsc ce wwrede beew es aieek 5
RE Fe See ere ae yer eee 6
Pe Ses IE IE 5-5 0 5s 2 occ de eke aeoeebe venka 7
ee Fe Pee See re ey rer 8
ee oe | Tr rN bee 10
Appendix C:
Judgment of Supreme Court of Texas dated April
WO, ROO 6b gnsn ee sad kaa cee oe hsv xs l
Order of Supreme Court of Texas overruling Motion
for Rehearing dated May 22, 1985............... 1,2
Judgment and order on Motion for Rehearing of Court
of Appeals for the Sixth Supreme Judicial District
of Texas dated December 28, 1984 .............. 3,4
Order of 22nd Judicial District Court Comal County,
Texas dated March 17, 1982 .................. 5,6,7
TABLE OF CASES
Bradley v. U.S., C.C.A. Okl (1944) 143 F.2d 573......... 9
Kaufman v. Kaufman, 1949 210 P.2d 29, 93 Cal. App. 2d
HOD = cs scan nhs seeeup ed eae en a eeee eee 8
Kimball v. U.S., C.A. Ohio 1962, 304 F2d 864........... 9
TABLE OF CASES (cont'd)
Page
Klein v. Lee, 1959, 79 S. Ct. 536, 358 U.S. 645,
eC OES gk 20 cis brah Bigs Caneeei ba neden 6
McCarty v. McCarty, 1981, 453 U.S. 210, 101 S. Ct. 2728,
ee ea ak awind bas es ae eb n.s vin nis 4,11,12
Milliken v. Gleason, C. A. R. I. 1964, 332 F. 2d. 122..... 5
North Texas National Bank v. Thompson, 23 S.W. 2d 494
eM eC AES Teds caus ase sas waecaess 7
Ridgway v. Ridgway, (1981), 454 U.S. 46, 102 S. Ct. 49,
tans bh keene saecesos es o
Robertson v. McSpadden, D.C. Ark. 1931, 46 F2d 702 .... 8
Steinmasel v. U.S., D. C. S. D. 1962, 202 F. Supp. 335... 5
Wissner v. Wissner, 1950, 338 U.S. 655, 70 S. Ct. 619 .. 7,12
STATUTES
UNITED STATES CODE
Title 10:
ie ce ev awh sah w ken Ke 10
ee a sen oak 4.8 b8 6 KR OWA ORES WSO 10
Cee ute bee be ele en 11,12
Title 38:
EE a ea ae ee ae 5
eS ee eles a kak eee ke’ MAReae wes 6
NOL, FOG <4 Ga ba bo AK Ad 064 SUAS Caw 5
ec eee ay ane eK Rae CR WARS 6
ates ia 5's 4 SAR EADS ASK E ROKR O AOS 5
ee es ie Cl Ad kel ae kane sk 5
es ig doko ob 3 5 EO 6
EE ee Ey ee eee 6
ES SE re na 6,7
United States Public Law:
Servicemen’s Group Life Insurance Act of 1965,
ae, Serres a
Uniformed Services Former Spouses
Protection Act, Pub. L. No. 97-252 ............ 11
ill
TABLE OF CASES (cont’d)
Page
MISCELLANEOUS
S. Rep. No. 97-502, 97th Cong., 2nd Sess. 15, (1982),
reprinted in 1982 U.S. Code Cong. and Ad. News
Se BEE 42460 dh eee ahe ei cesenakeebe saben ess
State Profiles of the Veteran Population — Statistical
Portraits from the 1980 Census, Published by
Veterans’ Administration Office of Information,
ge. PET ETT eee
Geographic Distribution of Veterans’ Administration
Expenditures — Fiscal Year 1983 — County and
SE SS es oot dned ce baek sas
4
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
ee
JOHN WALRAVEN FARLEY, III, PETITIONER
Vv
LENA FARLEY ROBERTS, RESPONDENT.
OK
PETITION FOR WRIT OF CERTIORARI
TO SUPREME COURT OF TEXAS
To the Honorable, the Chief Justice and Associate Justices of the
Supreme Court of Texas:
John Walraven Farley, III, the petitioner herein, prays that a
writ of certiorari issue to review the judgment of the Supreme Court
of Texas denying Petitioner’s Application for Writ of Error entered
on April 10, 1985.
CITATION TO OPINIONS BELOW
The Supreme Court of Texas did not issue an opinion in this
case. The judgment of the Supreme Court of Texas denying Peti-
tioner’s Application for Writ of Error appears in Appendix C to this
petition at page 1. The Court of Appeals for the Sixth Supreme Judicial
District of Texas issued an unreported opinion which appears in Ap-
pendix A to this petition, at page 1. A copy of the judgment of the
Court of Appeals appears in Appendix C to tais petition at page 3-4.
A copy of the judgment of the 22nd District Court of Comal Coun-
ty, Texas, appears in Appendix C to this petition at page 5-7.
GROUNDS FOR INVOKING THE
JURISDICTION OF THIS COURT
The judgment of the Supreme Court of Texas denying Petitioner’s
Application for Writ of Error to that court was entered on April 10, |
1985. A timely motion for rehearing was overruled on May 22, 1985.
(Appendix C, infra, page 1). The jurisdiction of the Supreme Court
is invoked under 28 USC §1257 (3).
CONSTITUTION AND STATUTE INVOLVED
This case involves Article VI. Clause 2. of the United States
Constitution which reads as follows:
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary
notwithstanding.
This case also involves sections 101(13), 211, 315, 331, 334,
335, 3012, 3101 from Title 38 U.S.C. concerning Veteraiis’ Benefits,
and Sections 1201, 1210, 1408 from Title 10 U.S.C. concerning
Armed Forces. The pertinent parts of these sections are r produced
in Appendix B.
STATEMENT OF THE CASE
On July 14, 1978, a decree of divorce was entered in Cause
Number 272,919 in the 147 Judicial District Court of Travis Coun-
ty, Texas. (TR, page 9) By reference in the decree, the court ap-
proved and incorporated a community property agreement previously
entered into by the parties. (SF, page 5)
In pertinent part the property settlement as executed on July 13,
1978 reads as follows:
... It is therefore agreed that the wife shall own, possess
and enjoy, free and clear from any claim of the husband,
the property listed below:
i amen en
K. One-half of the monthly gross retirement pay receiv-
ed by husband as a result of his service with the United
States Air Force, such retirement pay to be remitted to
wife on a monthly basis, within 10 days of its receipt by
husband; ... (TR, pages 2-5)
On June 19, 1980, in Cause Number 272,919, in Travis Coun-
ty, Texas Respondent Roberts filed a Motion to Enforce Judgment,
which was denied after a hearing before the divorce court.
Subsequently, on July 1, 1981, in Cause Number C-81-260 in
the 22nd District Court of Comal County, Texas, Respondent Roberts
filed suit seeking to reform the Property Settlement Agreement and
to obtain a money judgment against Petitioner Farley. (TR, pages
2-5) Respondent asserted that the property settlement should be
reformed because it **. . . contains a misdescription of the property
sought to be divided.’ (TR, page 3)
The case was tried on September 23, 1981. (TR, page 18) On
March 17, 1982, the Court entered an order reforming the Com-
munity Property Agreement and awarding Respondent Roberts a judg-
ment against Petitioner Farley in the Principal amount of ten thou-
sand five hundred and twenty-five dollars and ninety-seven cents
($10,525.97). (TR, pages 18-20)
The trial court found that Section K. should be reformed to read:
In an amount equal to one-haif of the gross amount
of the monthly benefits or annuity payments received by
husband, where husband became entitled to such monthly
benefit or annuity payments pursuant to his service in the
United States Air Force. The amount shall be paid to wife
. whether such payments received by husband repre-
sent retirement or disability retirement pay. (TR, page 20)
The trial court further made a specific finding that payments made
to Petitioner by the Veterans’ Administration ‘‘are to be included
in calculation of the amount to be paid to wife pursuant to the pro-
perty settlement agreement executed on July 13, 1978.’’ (TR, page |
20) Therefore, the benefits received by Mr. Farley are being |
characterized and treated as ‘‘property’’ which the wife shall own |
and possess subject to and controlled by normal contract principals.
In closing argument before the triai court Petitioner’s attorney
contended that Federal law prohibited division of the federal benefits
3
eT
in question for community property purposes. The trial court was
specifically referred to Ex Parte Johnson, 591 S.W. 2d 453 (Tex.
1979) and McCarty v. McCarty, 1981, 453 U.S. 210, 101 S. Ct.
2728, 69 L. Ed. 2d. 589. (SF, pages 66-68) These contentions were
presented in Petitioner’s brief and oral argument before the Court
of Appeals, Sixth District Texarkana, Texas. The Court of Appeals
denied Petitioner relief in a two to one decision. The majority and
dissenting opinions appear in Appendix A at pages | and 2 of this
Petition. The majority opinion makes no direct reference to the federal
benefits in question. The dissenting opinion noted that Petitioner con-
tends veterans’ benefits are not subject to division upon divorce and
accepted the rationale expressed in McCerty, supra. These contentions
were also presented to the Texas Sumi’ ~ xe Court in Petitioner’s Ap-
plication for Writ of Error and in Petition.zr’s Motion for Rehearing.
REASONS FOR GRANTING THE WRIT
l.
This case concerns the rights of disabled American Veterans to
receive and keep benefits paid to them by federal government.
On entering the military, a citizen surrenders personal privacy,
certain constitutional rights, and part of his or her individual freedom.
And, leaving out all other considerations, the citizen must be prepared
to give up his life instantly, on orders of a superior, or at perceived
threat to the security of his unit. Veterans’ benefits are one way the
government recognizes that the citizeu’s duty to respond and serve
carries with it an equal obligation on the governments part to pro-
vide for the well being of that defender.
To meet this obligation, Congress created a number of benefits
for veterans, created a Veterans’ Administration to determine who
is entitled to the benefits, and created a mechanism to insure that
the benefits actually reach the veteran. Statistical data indicates there
are over 1.7 million veterans in the State of Texas, and approximately
1.375 million of them are married.' In FY 1983 Veteran’s Acministra-
tion expenditures in Texas were $1,629,664, 137.00. Of this figure,
$924,514,311.00 was utilized for Compensation and pension
‘Source: State Profiles of the Veteran Population — Statistical Portraits from
the 1980 Census, Published by Veterans’ Administration Office of In-
formation Management and Statistics.
4
benefits.' Coupled with similar information from other community
property states, such statistics show that the outcome of this case will
have far reaching ramifications for many, many veterans, and presents
questions which should be decided by this court.
The principal question before the state courts was whether
Respondent’s claim based on the property settlement agreement in-
corporated in the divorce decree, was exempt from the strong language
of the anti-attachment provision protecting veteraiis’ benefits. As con-
strued by the courts of Texas in this case, these benefits are govern-
ed by the basic principles of contract law allowing them to be treated
as community property subject to the ordinary rules of property divi-
sion upon divorce. Petitioner respectfully submits that this construction
is in flat conflict with federal statutory law and with prior decisions
of this court. A veterans’ basic entitlement to disability compensa-
tion from the Veterans’ Administration for service-connected
disabilities resulting from personal injury or disease, in either war-
time or peacetime is set forth in 38 U.S.C. Section 310 and Section
331. The term ‘‘compensation”’ as defined in Title 38 Section 101(13)
means ‘‘a monthly payment made by the Administrator to a veteran
because of service-connected disability.’’ The basic rates of com-
pensation depend upon the percentage of disability and whether it
was incurred during wartime or peacetime. 38 U.S.C. Sections 314,
334.
It has been held that these benefits are gratuities and establish
no vested rights in recipients. They may be withdrawn at any time
and under any conditions Congress may choose. Milliken v. Gleason,
C.A.R. I. 1964, 332 F 2d 122. Certiorari denied 85 S. Ct. 723, 379
U.S. 1002, 13 L. L. Ed. 2d 703; Steinmasel v. U.S., D. C. S. D.
1962, 202 F. Supp. 335. Therefore the veteran cannot acquire any
property rights in the compensation paid to him. However, even as
reformed, the judgment of the courts of Texas continue to declare
that the wife shall own as her separate property one-half of the benefits
received by the husband.
In addition, excepting certain questions related to veterans’ in-
surance and to home, farm and business loans, Congress provided:
(T)he decisions of the Administrator on any question of
law or fact under any law administered by the Veterans’
‘Source: Geographic Distribution of Veterans’ Administration Expenditures —
Fiscal Year 1983 — County and Congressional District.
Administration providing benefits for veterans and their
dependents or survivors shall be final and conclusive and
no other official or any court of the United States shall
have power or jurisdiction to review any such decision
by an action in the natur- of mandamus or otherwise. 38
U.S.C. 211
Under this section, there is no review allowed of the Ad-
ministrator’s decision. This court has held that Congress, in gran-
ting disability benefits to veterans, was within its rights in making
decisions of the Administrator final, and in denying to beneficiaries
any right to contest such decision in the courts. Klein v. Lee, 1959,
79 s. Ct. 536, 358 U.S. 645, 3 L. Ed. 568. Therefore, it is the sole
responsibility of the Administrator, acting pursuant to congressional
directives, to designate the individuals entitled to receive veterans’
compensation.
Congress did provide a limited community concept in these
benefits even though the spouse did not serve in the armed forces.
A veteran can be entitled to an additional amount of compensation
for a spouse, child and/or dependent parent where the veteran is en-
titled to compensation based on a disability evaluation. 38 U.S.C.
315, 335. However, upon divorce this amount of additional com-
pensation is reduced on the last day of the month in which the divorce
occurs. 38 U.S.C. 3012(b)(2); as amended Pub. L. 97-253, Title
IV, §402(a), September 8, 1982, 96 Stat 802.
Therefore, as recently as 1982, Congress continued to make ab-
solutely no provision for payments to a divorced spouse. In fact the
1982 amendment changed the reduction date from the end of the calen-
dar year to the end of the month. Surely a rational argument cannot
be made that Congress expected the disabled veteran to continue to
provide for the family as he did prior to the divorce and then reduce
the funds made available for him to do so.
However, in this case, the decision of the trial court and the ap-
pellate courts of Texas in effect substitutes the Respondent as the
beneficiary for one-half the proceeds. This action clearly nullifies
the decision of the Administrator, and ignores the deliberate action
of Congress excluding the divorced spouse as a beneficiary.
the beneficiary named by the Administrator is 38 U.S.C. 3101, which
deais with nonassignability and the exempt status of benefits. As to
nonassignability, Section 3101 provides: ‘‘Payments of benefits . . .
6
shall not be assignable except to the extent specifically authorized
by law.”’ The word ‘‘assign’’ has been defined as meaning ‘‘to make
over or set over to another.’’ North Texas National Bank v. Thompson
23 S.W. 2d 494, 499. The word ‘‘assignment’’ as defined in bi-k’s
Law Dictionary means:
A transfer or making over to another of the whole of any
property real or personal, in possession or in action or
of any estate or right therein.
But, by the money judgment entered and the reformation granted,
the courts of Texas have held a portion of these benefits can be set
over or assigned to someone other than the disabled veteran.
Concerning the exempt status of benefits, Section 3101 provides
that:
Such payments made to, or on account of, a
beneficiary shall be exempt from the claim of creditors, and
shall not be liable to attachment, levy or seizure by or under
any legal or equitable process, whatever, either before or
after receipt by the beneficiary.
The exemption p. vision of Section 3101 as pertaining to this
case has remained virtually unchanged since 1935.
The provisions of the statutory predecessor of Section 3101 were
interpreted b this court in Wissner v. Wissner, 1950, 338 U.S. 655,
70 S. Ct. 619 to preclude a division for community property pur-
poses. In Wissner, this court distinguished those cases dealing with
community property divisions from cases which held that payments
received as pension, disability insurance, or veterans’ compensation
are not exempted from claims for alimony or family support by ex-
emption statutes in the pattern of Section 3101. This court noted that
the California judgment was deficient because it worked to “‘seize”’
the payments received under the policy which ‘‘... is in flat con-
flict with the exemption provision ...’’ The court further held:
whether directed at the very moncy received from Govern-
ment or an equivalent amount, the judgment below nullifies
the soldier’s choice and frustrates the deliberate purpose
of Congress. IT CANNOT STAND
Therefore, in Wissner, this court has already spoker concerning
the exempt status of veterans’ benefits from community property
7
claims, and in so doing, state courts have been denied the power or
jurisdiction to make community property divisions of veterans’
benefits.
Nonetheless, the Respondent takes the position that the above
statutory and case law does not apply because in this case there is
a Property Settlement Agreement whereby the veteran by contract
agreed to set his benefits over to another person.
However, in 1949, the California Supreme Court was faced with
a case involving a property settlement agreement. Kaufman v.
Kaufman, 1949 210 P.2d 29, 93 Cal. App. 2d 808. In part, the agree-
ment read as follows:
It is agreed between the parties hereto that Husband
has caused to be issued in his name a $5,000.00 U.S. War
Risk Insurance Policy . . . It is understood and agreed that
so long as said policy remains in full force and effect, the
Wife shall be named as beneficiary under said policy; pro-
vided however, that if a final decree of divorce should
be granted to either party hereto then and in that event
(wife) ... and ... the children of the parties hereto, shall
be named as beneficiary of said policy.
Subsequently there was a divorce between the couple. The
beneficiaries were initially changed according to the agreement.
However, the husband eventually remarried and named his second
wife as the sole beneficiary of the policy. After his death, the govern-
ment began making payments under the policy to the second wife.
Suit was filed contesting this and seeking to enforce the proper-
ty settlement agreement. The California court concluded that the pro-
perty settlement agreement was an assignment of the proceeds of the
policy and that such assignment was prohibited by Federal law.
On several occasions federal courts have dealt with the effect
of an agreement concerning veterans’ insurance benefits. In 1931,
a widow and family of a deceased veteran contested the proceeds
of the veterans’ life insurance policy. Robertson v. McSpadden,
D.C. Ark. 1931, 46 F2d 702. During the case, an agreement to set-
tle the claims was reached and a consent decree was entered.
However, the appeals court held that this agreement, if carried out,
would defeat the purpose and intent of the Federal statute. Robertson
v. McSpadden, supra.
In 1944, the validity of an agreement to compromise the payments
8
being made «« ler an insurance policy was presented. Bradley v. U.S.,
C.C.A. Okl (1944) 143 F.2d 573, certiorari denied 65 S. Ct. 429,
323 U.S. 793; 89 L. Ed. 632. The court held that an agreement to
divide the proceeds of policy would be an assignment and ‘‘that such
assignment is specifically prohibited ...’’
In 1962 the Sixth Circuit was presented the question of
** . .whether an insured veteran ... can effectively contract away
his right to change the beneficiary of his policy.’’ Kimball vs. U.S.,
C.A.. Ohio 1962, 304 F2d 864. That court held that the veteran could
not effectively contract away rights granted under Title 38.
These cases clearly show that under long-standing statutory and
case law, individuals cannot alter the nature or characteristics of
veterans’ benefits by agreement. This court has also recently dealt
with the enforceability of such a property settlement agreement. In
Ridgway v. Ridgway (1981), 454 U.S. 46, 102 S. Ct. 49, 70 L. Ed.
2d. 39, the court was concerned with a benefit issued pursuant to
the Servicemen’s Group Life Insurance Act of 1965, Pub. L. 89-214,
79 Stat. 880. In Ridgway, the state divorce judgment followed
property settlement negotiations about which this court stated:
We find nothing to indicate that Congress intended
to exempt claims based on property settlement agreements
from the strong language of the anti-attachment provision.
In footnote eleven following this statement the court said:
We see no significant difference between the com-
munity property interest at issue in Wissner and the pro-
perty settlement giving rise to the instant action.
Petitioner respectfully suggests that the Texas courts have decided
an important question related to federal benefits in a manner con-
trary to prior rulings of this court. The Federal government surely
would not give the power to alter these benefits to individuals while
refusing the state courts any power or jurisdiction over them. To allow
private agreements to determine that these benefits are ‘‘property,’’
and that someone other than the named beneficiary is actually entitl-
ed to them, would mean the legislative policy of the government could
be entirely subverted or destroyed by an agreement or series of
agreements. Thus, it is the Petitioner’s position that the community
property right asserted by Respondent to a portion of these funds
9
conflicts with the express terms of federal law.
Petitioner also contends that the objectives of the federal pro-
gram are sufficiently injured so as to require nonrecognition. Con-
gress has the power to create and maintain military forces and pur-
suant to this grant of authority, Congress has enacted a military
disability system to provide for the needs of military personnel who
become disabled while serving their country. Obviously, knowing
that the country will provide for his basic needs in the event of disabili-
ty might well directly enhance the morale of servicemen. Throughout
the spring and summer of 1985, we have seen constant reminders
of the cost of military service to our Vietnam era veterans. Ten to
fifteen years after their service many Vietnam veterans are still dealing
with mental and physicai problems related to their service.
In some cases the plight of the ex-spouse can be a serious one.
However, in many cases the plight of the disabled serviceman can
be just as serious. Certainly, the recent budget problems emphasize
that Congress is dealing with finite funds. In this situation, it is even
more clear that the decision of Congress as to who should receive
those funds availab’e must be honored.
Therefore, Petitioner contends the federal scheme of veterans’
benefits pre-empts state community property laws which under the
Supremacy Clause, U.S. Constitution, Article VI, Clause 2, precludes
the trial court from awarding Respondent a portion of these benefits.
8
The trial court’s order also states Petitioner shall pay one-half
the monthly benefits or annuity payment he receives ‘‘pursuant to
his service in the United States Air Force . . .whether such payments
received by husband represent retirement or disability retirement pay
or disability benefits.’’
The Petitioner is in receipt of disability compensation under 10
U.S.C. Chapter 61. Petitioner is not entitled to longevity compen-
sation; rather Petitioner was retired under the provisions of 10 U.S.C.
§1201 and §1210.
The question thus presented is whether federal law precludes
a state court from dividing military disability pay pursuant to state
community property laws upon dissolution of the marriage. Certainly
the net result of this case as it now stands is that Texas courts can
divide these benefits.
This court dealt with nondisability military retirement in McCarty
10
Oe ag pen ERI wk
iia
v. McCarty, supra. The court quoted and relied upon its 1950 decision
in Wissner in holding that Federal law concerning military retirement
benefits precludes state courts from dividing military retired pay pur-
suant to state community property laws. While not directly faced with
the question of disability retirement in McCarty, there is nothing in the
court’s analysis which would indicate that it would have held dif-
ferently concerning disability retirement.
Subsequent to McCarty, Congress enacted the Uniformed Ser-
vices Former Spouses Protection Act (Pub. L. No. 97-252) authoriz-
ing state courts to divide ‘‘disposable’’ retired or retainer pay upon
divorce. The criticial question for this case becomes whether this
act also authorizes state courts to divide disability retirement pay
received pursuant to Chapter 61.
In part the legislative history to the act states:
The purpose of this provision is to place the courts
in the same position that they were in on June 26, 1981,
the date of the McCarty decision, with respect to treat-
ment of nondisability military retired or retainer pay. The
provision is intended to remove the 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 divisible. .. .S.
Rep. No. 97-502, 97th Cong., 2nd Sess. 15, (1982),
reprinted in 1982 U.S. Code Cong. and Ad. News 1596,
1611.
This legislative history seems to clearly state that the act only
applies, ‘‘with respect to treatment of nondisability military retired
or retainer pay.”’
The act itself provides:
Subject to the limitations of this section, a court may
treat disposable retired or retainer pay . . . , either as pro-
perty solely of the member or as property of the member
and his spouse in accordance with the law of the jurisdic-
tion of such court. 10 U.S.C. §1408(c)(1).
Clearly without this provision, the McCarty decision would still
be controlling on the matter of nondisability retirement pay. However,
a plain reading of §1408 shows that Congress did not give the states
an unlimited right to treat military retirement pay in accordance with
11
Sn
general community property law, but rather made it clear that the |
grant was subject to the limitations imposed by §1408. |
One of the limitations on the grant comes in the form of the defini-
tion of disposable retired or retainer pay which states: |
(4) Disposable retired or retainer pay means the total mon-
thly retired or retainer pay to which a member is en-
titled (other than the retired pay of a member retired
for disability under Chapter 61 of this title less amounts
which:
(A) ...
(B) are required by law to be and are deducted from
the retired or retainer pay of such member, in-
cluding ..., and amounts waived in order to
receive compensation under title 5 or title 38. 10
U.S.C. 1408(a)(4)
By this definition Congress specifically excluded from state con-
sideration both types of pay received by Petitioner. It is Petitioner’s
position that the state court award clearly conflicts with the federal
statutes in question.
For the reasons stated by this court in Wissner, supra. and
McCarty, supra., Petitioner would also contend that the consequences
of this conflict sufficiently injure the objectives of the federal pro-
gram so as to require nonrecognition. In addition, as noted by this
court in McCarty, federal disability pensions have been provided since
the Revolutionary War. Necessarily then these benefits have to be
among the oldest continuously provided federal programs. The very
length of their existence demonstrates their peculiar importance to
the federal government. Obviously from our very beginning Con-
gress has recognized that care for veterans disabled in the nation’s
military service is of the highest national concern and that failure
to so care could gravely affect the morale of our military forces.
Therefore the decision as to the treatment of the federal benefits
for disabled veterans should be for Congress alone. In Section 1408,
Congress has clearly and straight forwardly excluded military disabili-
ty pay from treatment by state courts.
As such, Petitioner contends that the federal scheme of military
disability benefits pre-empts state community property laws; therefore,
the Supremacy Clause, U.S. Const., Art. VI, Cl. 2, precludes the
12
trial court from awarding Respondent a portion of these benefits.
CONCLUSION
For the foregoing reasons this Petition for a Writ of Certiorari
should be granted.
13
Respectfully submitted,
ANDERSON & JOHNSON
Attorneys at Law
P.O. Box 270
Marlin, Texas 76661
By:
DAVID W. ANDERSON
State Bar No. 01174300
Attorney for Petitioner
eT
APPENDIX A
Court of Appeals
Sixth District
Texarkana, Texas
John Walraven Farley, IlI--------Appellant ) Appealed from the 22nd
No. 9188 v. ) Judicial District Court
Lena Farley Roberts Appellee ) of Comal County, Texas
John Walraven Farley, III appeals from a Comal County trial
court judgment construing and enforcing the parties’ contractual pro-
perty settlement agreement incorporated into their July 14, 1978,
divorce decree which was granted in Travis County. He contends |
the trial court did not have jurisdiction to render the judgment. We |
affirm the trial court’s judgment.
A property settlement agreement is a contract and is governed
according to basic principles of contract law. Day v. Day, 603 S.W.
2d 213 (Tex. 1980); Deen v. Deen, 631 S.W. 2d 215 (Tex. App.
Amarillo 1982, no writ); Underhill v. Underhill, 614 S.W. 2d 178
(Tex. Civ. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.);
Mikeska v. Mikeska, 584 S.W. 2d 565 (Tex. Civ. App.-Houston
[14th Dist.] 1979, no writ). A property settlement agreement does
not lose its status as a contract because it is incorporated into the
divorce decree. McCray v. McCray, 584 S.W. 2d 279 (Tex. 1979).
An action for enforcement of such an agreement is not a proceeding
under the Texas Family Code. The trial court had jurisdiction to in-
terpret and enforce the parties’ agreement. Day v. Day, supra;
Deen v. Deen, supra; Underhill v. Underhill, supra; Carson v. Korus,
575 S.W. 2d 326 (Tex. Civ. App.-San Antonio 1978. no writ); Adwan
v. Adwan, 538 S.W. 2d 192 (Tex. Civ. App.-Dallas 1976, no writ). |
We affirm the trial court’s judgment.
Bun L. Hutchinson |
Associate Justice
December 28, 1984
Filed December 28, 1984
(Not to be Published — Rule 452, Tex. R. Civ. P.)
l
oar we me
APPENDIX A
No. 9188
DISSENT
John Farley contends that the trial court did not have jurisdic-
tion to reform the property settlement agreement which was incor-
porated into the divorce decree between the parties entered in 1978.
He relies on Ex parte Johnson, 591 S.W. 2d 453 (Tex. 1979) for
the proposition that Veterans Administration benefits are not sub-
ject to division upon divorce as property and the rationale expressed
in McCarty v. McCarty, 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct.
2728 (1981). I would hold that the trial court fundamentally erred
in allowing Lena Farley Roberts to prevail on her collateral attack
on a final and valid judgment.
In July of 1978, the 147th Judicial District Court of Travis Coun-
ty, entered a valid and final judgment granting a divorce to the par-
ties and incorporated therein the parties’ property settlement agree-
ment. Later, in June, 1980, Lena Farley Roberts sought to enforce
terms of the decree of the divorce. After failing, she filed this case
in the 22nd District Court of Comal County. This appeal is by John
Farley from the unfavorable judgment in the 22nd District Court.
The divorce decree is the final disposition of all matters between
the parties concerning their properties. The judgment should be ac-
corded the same degree of finality and be final and binding. McCray
v. McCray, 584 S.W.2d 279 (Tex. 1979). This final judgment was
res judicata and therefore should bar any attempt to relitigate the
divorce property division and subsequent suit. Day v. Day, 603
S.W.2d 213 (Tex. 1980).
I would hold that the triaL court lacked jurisdiction to grant the
judgment and reverse, rendering judgment that Lena Farley Roberts
take nothing by her suit.
Charles Bleil
Associate Justice
December 28, 1984
Filed December 28, 1984
(Not to be Published — Rule 452, Tex. R. Civ. P.)
APPENDIX B — TITLE 38 VETERANS BENEFITS
PART 1 GENERAL PROVISIONS
CHAPTER 1 GENERAL
§101 Definitions
(13) The term ‘‘compensation’’ means a monthly payment made
by the Administrator to a veteran because of service-connected
disability, or to a surviving spouse, child, or parent of a veteran
because of the service-connected death of the veteran occurring before
January 1, 1957.
CHAPTER 3 — VETERANS’ ADMINISTRATION;
OFFICERS AND EMPLOYEES
SUBCHAPTER II — ADMINISTRATION OF
VETERANS’ AFFAIRS
§211. Decisions by Administrator; opinions of Attorney General
(a) On and after October 17, 1940, except as provided in sec-
tions 775, 784, and as to matters arising under chapter 37 of this
title, the decisions of the Administrator on any question of law or
fact under any law administered by the Veterans’ Administration pro-
viding benefits for veterans and their dependents or survivors shall
be final and conclusive and no other official or any court of the United
States shall have power or jurisdiction to review any such decision
by an action in the nature of mandamus or otherwise.
(b) The Administrator may require the opinion of the Attorney |
General on any question of law arising in the administration of the
Veterans’ Administration.
As amended Publ. L. 89-214, §1(b), Sept. 29, 1965, 79 Stat. 886;
Pub. L. 89-358; §4(h), Mar. 3, 1966, 80 Stat. 24; Pub. L. 91-376,
§8(a), Aug. 12, 1970, 84 Stat. 790.
l
ceneheianeneatinaseianaaiaiaasiaietiaaiiaiiiaaainl
APPENDIX B — TITLE 38 VETERANS BENEFITS
PART II — GENERAL BENEFITS
CHAPTER 11 — COMPENSATION FOR SERVICE
CONNECTED DISABILITY OR DEATH
SUBCHAPTER II — WARTIME DISABILITY COMPENSATION
§315. Additional Compensation for Dependents
Any veteran entitled to compensation at the rates provided in
section 314 of this title, and whose disability is rated not less than
30 percent shall be entitled to additional compensation for dependents
in the following monthly amounts:
(1) If and while rated totally disabled and —
(A) has a spouse but no child, $79;
(B) has a spouse and one or more children, $132 plus $42
for each child in excess of one;
(C) has no spouse but one or more children, $54 plus $42
for each child in excess of one;
(D) has a parent dependent upon such veteran for sup-
port, then, in addition to the above amounts, $64 for each
parent so dependent;
(E) notwithstanding the other provisions of this paragraph,
the monthly payable amount on account of a spouse who is
(i) a patient in a nursing home or (ii) helpless or blind, or
so nearly helpless or blind as to need or require the regular
aid and attendance of another person, shall be $143 for a
totally disabled veteran and proportionate amounts for par-
tially disabled veterans in accordance with paragraph (2) of
this section; and
(F) notwithstanding the other provisions of this paragraph,
the monthly amount payable on account of each child who
has attained the age of eighteen years and who is pursuing
a course of instruction at an approved educational institu-
tion shall be $120 for a totally disabled veteran and propor-
tionate amounts for partially disabled veterans in accordance
with paragraph (2) of this section.
(2) If and while rated partially disabled, but not less than 30
percent in an amount having the same ratio to the amount specified
2
a
APPENDIX B — TITLE 38 VETERANS BENEFITS
in paragraph (1) of this section as the degree of disability bears to
total disability. The amounts payable under this paragraph, if not
a multiple of $1, shall be rounded down to the nearest dollar.
(As amended Pub.L. 96-128, Title I, §102, Nov. 28, 1979, 93 Stat. R
983; Pub.L. 96-385, Title I, §102, Oct. 7, 1980, 94 Stat. 1529; |
Pub.L. 97-66, Title I, $102, Oct. 17, 1981, 95 Stat. 1027; Pub.L.
97-253, Title IV,§§404(b), 405(c), Sept. 8, 1982, 96 Stat. 803, 804;
Pub.L. 97-306, Title I, §§102, 107, Oct. 14, 1982, 96 Stat. 1430,
1431; Pub.L. 98-223, Title I, §102, Mar. 2, 1984, 98 Stat. 38; Pub.L.
98-543, Title I, §102, Oct. 24, 1984, 98 Stat. 2736.)
SUB CHAPTER IV —
PEACETIME DISABILITY COMPENSATION
4
§331. Basic Entitlement
For disability resulting from personal injury suffered or disease
contracted in line of duty, or for aggravation of a’preexisting injury
suffered or disease contracted in line of duty, in the active military,
naval or air service, during other than a period of war, the United
States will pay to any veteran thus disabled and who was discharged
or released under conditions other than dishonorable from the period
of service in which said injury or disease was incurred, or preex-
isting injury or disease was aggravated, compensation as provided
in this subchapter, but no compensation shall be paid if the disabili-
ty is the result of the veteran’s own willful misconduct.
Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1122.
APPENDIX B — TITLE 38 VETERANS BENEFITS
§334. Rates of peacetime disability compensation
For the purposes of section 331 of this title, the compensation
payable for the disability shall be that specified in section 314 of this
title.
Pub.L. 85-857, Sept. 2, 1958, 72 Stat. 1123; Pub.L. 92-328, Title
I, §108(a), June 30, 1972, 86 Stat. 396.
SUBCHAPTER IV —
PEACETIME DISABILITY COMPENSATION
§335. Additional Compensation for Dependents
Any veteran entitled to compensation at the rates provided in
section 334 of this title, and whose disability is rated not !ess than
30 percent, shall be eatitled to additional monthly compensation for
dependents as provided in section 315 of this title.
(As amended Pub. L. 98-543, Title I, §112(a), Oct. 24, 1984, 98
Stat. 2740.)
1984 Amendment. Pub. L. 98-543 substituted ‘‘30 percent’’ for ‘*5O
percent’’.
Effective Date of 1984 Amendment. Section 112 of Pub. L. 98-543
provided that: ‘*The amendment made by subsection (a) [amending
this section] shall take effect as of Oct. 1, 1978.
Legislative History. For legislative history and purpose of Pub. L.
98-543, see 1984 U.S. Code Cong. and Adm. News, p. 4479.
APPENDIX B — TITLE 38 VETERANS BENEFITS
PART IV — GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 51 — APPLICATIONS,
EFFECTIVE DATES, AND PAYMENTS
SUBCHAPTER II — EFFECTIVE DATES
§3012 Effective dates of reductions and discontinuances.
(a) Except as otherwise specified in this section, the effective
date of reduction or discontinuance of compensation, dependency and
indemnity compensation, or pension shall be fixed in accordance with
the facts found.
(b) The effective date of a reduction or discontinuance of com-
pensation, dependency and indemnity compensation, or pension.
(2) By reason of marriage, annulment, divorce, or death of a
dependent of a payee shall be the last day of the month in which such
marriage, annulment, divorce, or death occurs.
(as amended Pub. L. 97-253, Title IV, §402(a), September 8,
1982, 96 Stat. 802.)
Leg Hist 1982 U.S. Code Cong & Adm News P 1641 C.F.R. 3.500
APPENDIX B — TITLE 38 VETERANS BENEFITS
PART IV — GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 53. — SPECIAL PROVISIONS
RELATING TO BENEFITS
§3101. Nonassignability and exempt status of benefits
(a) Payments of benefits due or to become due under any law
administered by the Veterans’ Administration shall not be assignable
except to the extent specifically authorized by law, and such payments
made to or on account of, a beneficiary shall be exempt from taxa-
tion, shall be exempt from the claim of creditors, and shall not be
liable to attachment, levy, or seizure by or under any legal or equitable
process whatever, either before or after receipt by the beneficiary.
The preceding sentence shall not apply to claims of the United States
arising under such laws nor shall the exemption therein contained
as to taxation extend to any property purchased in part or wholly
out of such payments. The provisions of this section shall not be con-
strued to prohibit the assignment of insurance otherwise authorized
under chapter 19 of this title, or of servicemen’s indemnity. For the
purposes of this subsection, in any case where a payee of an educa-
tional assistance allowance has designated the adress of an attorney-
in-fact as the payee’s address for the purpose of receiving his or her
benefit check and has also executed a power of attorney giving the
attorney-in-fact authority to negotiate such benefit check, such ac-
tion shall be deemed to be an assignment and is prohibited.
As amended Pub.L. 94-502, Title VII, §701, Oct. 15, 1976, 90 Stat.
2405.
APPENDIX B — TITLE 10 ARMED FORCES
SUBTITLE A -- GENERAL MILITARY LAW
PART II — PERSONNEL
CHAPTER 61 — RETIREMENT OR SEPARATION
FOR PHYSICAL DISABILITY
$1201. Regulars and members on active duty for more than 30 days:
retirement
Upon a determination by the Secretary concerned that a member
of a regular component of the armed forces entitled to basic pay,
or any other member of the armed forces entitied to basic pay who
has been called or ordered to active duty (other than for training under
section 270(b) of this title) for a period of more than 30 days, is un-
fit to perform the duties of his office, grade, rank, or rating because
of physical disability incurred while entitled to basic pay, the Secretary
may retire the member, with retired pay computed under section 1401
of this title, if the Secretary also determines that —
(1) based upon accepted medical principles, the disability is of
a permanent nature;
(2) the disability is not the result of the member’s intentional
misconduct or willful neglect, and was not incurred during a period
of unauthorized absence; and
(3) either—
(A) The member has at least 20 years of service computed
under section 1208 of this title; or
(B) the disability is at least 30 percent under the standard
schedule of rating disabilities in use by the Veterans’ Administra-
tion at the time of th determination: and either—
(i) the member has at least eight years of service com-
puted under section 1208 of this title; |
(ii) the disability is the proximate result of performing
active duty;
(iii) the disability was incurred in line of duty in time
of war or national emergency; or
(iv) the disability was incurred in line of duty after
7
APPENDIX B — TITLE 10 ARMED FORCES
September 14, 1978.
(Aug. 10, 1956, c. 1041, 70A Stat. 91; Sept. 2, 1958, Pub.L. 85-861,
§1(28)(A), 72 Stat. 1451; Sept. 7, 1962, Pub.L. 87-651, Title I,
§107(a), 76 Stat. 508; Sept. 19, 1978, Pub.L. 95-377, §3(1), 92 Stat.
719; Sept. 8, 1980, Pub.L. 96-343, §10(c)(1), 94 Stat. 1129; Dec.
12, 1980, Pub.L. 96-513, Title I, §117, 94 Stat. 2878.)
CHAPTER 61 RETIREMENT — PHYSICAL DISABILITY
§1210. Members on temporary disability retired list: periodic
physical examination; final determination of status
(a) A physical examination shall be given at least once every
18 months to each member of the armed forces whose name is on
the temporary disability retired list to determine whether there has
been a change in the disability for which he was temporarily retired.
He may be required to submit to those examinations while his name
is carried on that list. If a member fails to report for an examination
under this subsection, after receipt of proper notification, his disability
retired pay may be terminated. However, payments to him shall be
resumed if there was just cause for his failure to report. If payments
are so resumed, they may be made retroactive for not more than one
year.
(b) The Secretary concerned shall make a final determination
of the case of each member whose name is on the temporary disability
retired list upon the expiration of five years after the date when the
member’s name was placed on that list. If, at the time of that deter-
mination, the physical disability for which the member’s name was
carried on the temporary disability retired list still exists, it shall be
considered to be of a permanent nature.
(c) If, as a result of a periodic examination under subsection
(a), or upon a final determination under subsection (b), it is deter-
mined that the member’s physical disability is of a permanent nature
and is at least 30 percent under the standard schedule of rating
disabilities in use by the Veterans’ Administration at the time of the
determination, his name shall be removed from the temporary disabili-
APPENDIX B — TITLE 10 ARMED FORCES
ty retired list and he shall be retired under section 1201 or 1204 of
this title, whichever applies.
(d) If, as a result of a periodic examination under subsection
(a), or upon a final determination under subsection (b), it is deter-
mined the .e member’s physical disability is of a permanent nature
and is less than 30 percent under the standard schedule of rating
disabilities in use by the Veterans’ Administration at the time of deter-
mination, and if he has at least 20 years of service computed under
section 1208 of this title, his name shall be removed from the tem-
porary disability retired list and he shall be retired under section 1201
or 1204 of this title, whichever applies, with retired pay computed
under section 1401 of this title.
(e) If, as a result of a periodic examination under subsection
(a), or upon a final determination under subsection (b), it is deter-
mined that the member’s physical disability is less than 30 percent
under the standard schedule of rating disabilities in use by the
Veterans’ Administration at the time of the determination, and if he
has less than 20 years of service computed under section 1208 of
this title, his name shall be removed from the temporary disability
retired list and he may be separated under section 1203 or 1206 of
this title, whichever applies.
(f) If, as a result of a periodic examination under subsection (a),
or upon a final determination under subsection (b), it is determined
that the member is physically fit to perform the duties of his office,
grade, rank, and rating, the Secretary shall treat him as provided
in section 1211 of this title.
(g) Any member of the armed forces whose name is on the tem-
porary disability retired list, and who is required to travel to submit
to a physical examination under subsection (a), is entitled to the travel
and transportation allowances authorized for members in his retired
grade traveling in connection with temporary duty while on active
duty.
(h) If his name is not sooner removed, the disability retired pay
of a member whose name is on the temporary disability retired list
terminates upon the expiration of five years after the date when his
name was placed on that list.
(Aug. 10, 1956, c. 1041, 70A Stat. 95.)
9
APPENDIX B — TITLE 10 ARMED FORCES
SUBTITLE A — GENERAL MILITARY LAW
PART II — PERSONNEL
CHAPTER 71 — COMPUTATION OF RETIRED PAY
$1408. Payment of retired or retainer pay in compliance with
court orders
(a) In this section:
(1) ‘Court’ means—
(A) any court of competent jurisdiction of any State,
the District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the Birgin Islands, the Northern
Mariana Islands, and the Trust Territory of the Pacific
Islands’
(B) any court of the United States (as defined in sec-
tion 451 of title 28) having competent jurisdiction; and
(C) any court of competent jurisdiction of a foreign
country with which the United States has an agreement re-
quiring the United States to honor any court order of such
country.
(2) ‘Court order’’ means a final decree of divorce, dissolu-
tion, annulment, or legal separation issued by a court, or a court
ordered, ratifie?, 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 separation, or a court ordered, ratified, or approved pro-
perty settlement incident to such previously issued decree),
which—
(A) is issued in accordance with the laws of the jurisdic-
tion of that court:
(B) provides for—
(i) payment of child support (as defined in section
462(b) of the Social Security Act (42 U.S.C. 662(b)));
(ii) payment of alimony (as defined in section 462(c)
of the Social Security Act (42 U.S.C. 662(c))); or
(iii) division of property (including a division of com-
munity property); and
10
APPENDIX B — TITLE 10 ARMED FORCES
(C) in the case of a division of property, specifically pro-
vides for the payment of an amount, expressed in dollars or as
a percentage of disposable retired or retainer pay, from the
disposable retired or retainer pay of a member to the spouse or
former spouse of that member.
(3) ‘Final decree’ means a decree from which no appeal may
be taken or from which no appeal has been taken within the time
allowed for taking such appeals under the laws applicable 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.
(4) ‘Disposable retired or retainer pay’ means the total mon-
thly retired or retainer pay to which a member is entitled (ther than
the retired pay of a member retired for disability under chapter 61
of this title) less amounts which—
(A) are owned by that member to the United States;
(B) are required by law to be and are deducted from the
retired or retainer pay of such member, including fines and
forfeitures ordered by courts-martial, Federal employment taxes,
and amounts waived in order to receive compensation under ti-
ile 5 or title 38;
(C) are properly withheld for Federal, State, or local in-
come tax purposes, if the withholding of such amounts is authoriz-
ed or returied by law and to the extent such amounts withheld
are i,t greater than would be authorized if such member claim-
ed al! dependents to which he was entitled:
(L) are withheld under section 3402(i) of the Internal
Revenue Code of 1954 (26 U.S.C. 3402(i)) if such member
presents evidence of a tax obligation which supports such
withholding;
(E) are deducted as Government life insurance premiums
(not including amounts deducted for supplemental coverage); or
(F) are deducted because of an election under chapter 73
of this title to provide an annuity to a spouse or former spouse
to whom payment of a portion of such member’s retired or re-
tainer pay is being made pursuant to a court order under this
section.
(5) ‘Member’ includes a former member.
(6) ‘Spouse or former spouse’ means the husband or wife, or
11
APPENDIX B — TITLE 10 ARMED FORCES
former husband or wife, respectively, of a member who, on or before
the date of a court order, was married to that member.
(b) For the purposes of this section—
(1) service of a court order is effective if—
(A) an appropriate agent of the Secretary concerned
designated for receipt of service of court orders under regula-
tions, prescribed pursuant to subsection (h) or, if no agent
has been so designated, the Secretary concerned, is personal-
ly served or is served by certified or registered mail, return
receipt requested;
(B) the court order is regular on its face;
(C) the court order or other documents served with the
court order identify the member concerned and include, if
possible, the social security number of such member; and
‘(D) the court order or other documents served with the
court order certify that the rights of the member under the
Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C.
App. 501 et seq.) were observed; and
(2) a court order is reguiar on its face if the order—
(A) is issued by a court of competent jurisdiction;
(B) is legal in form; and
(C) includes nothing on its face that provides reasonable
notice that it is issued without authority of law.
(c)(1) 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 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.
(2) Nothwithstanding any other provision of law, this sec-
tion does not create any right, title, or interest which can be sold,
assigned, transferred, or otherwise disposed of (including by in-
heritance) by a spouse or former spouse.
(3) This section does not authorize any court to order a
member to apply for retirement or retire at a particular time in
order to effectuate any payment under this section.
(4) A court may not treat the disposable retired or retainer
pay of a member in the manner described in paragraph (1) unless
the court has jurisdiction over the member by reason of (A) his
12
APPENDIX B — TITLE 10 ARMED FORCES
residence, other than because of military assignraent, in the ter-
ritorial jurisdiction of the court, (B) his domicile in the territorial
jurisdiction of the court, or (C) his consent to the jurisdiction
of the court.
(d)(1) After effective service on the Secretary concerned of a
court order providing for the payment of child support or alimony
or, with respect to a division of property, specifically providing for
the payment of an amount of the disposable retired or retainer pay
from a member to the spouse or a former spouse of the member,
the Secretary shall make payments (subject to the limitations of this
section) from the disposable retired or retainer pay of the member
to the spouse or former spouse in an amount sufficient to satisfy the
amount of child support and alimony set forth in the court order and,
with respect to a division of property, in the amount of disposable
retired or retainer pay specifically provided for in the court order.
In the case of a member entitled to receive retired or retainer pay
on the date of the effective service of the court order, such payments
shall begin not later than 90 days after the date of effective service.
In the case of a member not entitled to receive retired or retainer
pay on the date of the effective service of the court order, such
payments shall begin not later than 90 days after the date on which
_ the member first becomes entitled to receive retired or retainer pay.
(2) If the spouse or former spouse to whom payments are
to be made under this section was not married to the member
for a period of 10 years or more during which the member per-
formed at least 10 years of service creditable in determining the
member’s eligibility for retired or retainer pay, payments may
not be made under this section to the extent that they include
an amount resulting from the treatment by the court unde subsec-
tion (c) of disposable retired or retainer pay of the member as
property of the member or property of the member and his
spouse.
(3) Payments under this section shall not be made more fre-
quently than once each month, and the Secretary concerned shall
not be required to vary normal pay and disbursement cycles for
retized or retainer pay in order to comply with a court order.
(4) Payments from the disposable retired or retainer pay of
13
APPENDIX B — TITLE 10 ARMED FORCES
a member pursuant to this section shall terminate in accordance
with the terms of the applicable court order, but not later than
the date of the death of the member or the date of the death of
the spouse or former spouse to whom payments are being made,
whichever occurs first.
(5) If a court order described in paragraph (1) provides for
a division of property (including a division of community pro-
perty) in addition to an amount of child support or alimony or
the payment of an amount of disposable retired or retainer pay
as the result of the court’s treatment of such pay under subsec-
tion (c) as property of the member and his spouse, the Secretary
concerned shall pay (subject to the limitations of this section)
from the disposable retired or retainer pay of the member to the
spouse or former spouse of the member, any part of the amount
payable to the spouse or former spouse under the division of
property upon effective service of a final court order of garnish-
ment of such amount from such retired or retainer pay.
(e)(1) The total amount of the disposable retired or retainer pay
of a member payable under subsection (d) may not exceed 50 per-
cent of such disposable reti:. 4 or retainer pay.
(2) In the event of effective service of more than one court
order which provide for payment to a spouse and one or more
former spouses or to more than one former spouse, the disposable
retired or retainer pay of the member shall be used to satisfy
(subject to the limitations of paragraph (1)) such court orders
on a first-come, first-served basis. Such court orders shall be
satisfied (subject to the limitations of paragraph (1)) our of that
amount of disposable retired or retainer pay which remains after
the satisfaction of all court orders which have been previously
served.
(3)(A) In the vent of effective service of conflicting court
orders under this section which assert to direct that different
amounts be paid during a month to the same spouse or former
spouse of the same member, the Secretary concerned shall—
(i) pay to that spouse from the member’s disposable
retired or retainer pay the least amount directed to
be paid during that month by any such conflicting
14
APPENDIX B — TITLE 10 ARMED FORCES
court order, but not more than the amount of
disposable retired, or retainer pay which remains
available for payment of such court orders based
on when such court orders were effectively served
and the limitations of paragraph (1) and sub-
paragraph (B) of paragraph (4);
(ii) retain an amount of disposable retired or
retainer pay that is equal to the lesser of—
(I) the difference between the largest
amount required by any conflicting court order
to be paid to the spouse or former spouse and
the amount payable to the spouse or former
spouse under clause (i); and
(I) the amount of disposable retired or re-
tainer pay which remains available for payment |
of any conflicting court order based on when |
such court order was effectively served and the
limitations of paragraph (1) and subparagraph
(B) of paragraph (4); and
(iii) pay to that member the amount which is |
equal to the amount of that member’s disposable
retired or retainer pay (less any amount paid dur- |
ing such month pursuant to legal process served
under section 459 of the Social SEcurity Act (42
U.S.C. 659) and any amount paid during such |
month pursuant to court orders effectively served |
under this section, other than such conflicting court
(I) the amount of disposable retired or re- ;
tainer pay paid under clause (i); and |
(II) the amount of disposable retired or re- |
tainer pay retained under clause (ii).
(B) The Secretary concerned shall hold the amount retain-
ed under clause (ii) of subparagraph (A) until such time as that
Secretary is provided with a court order which has been cer-
tified by the member and the spouse or former spouse to be valid
and applicable to the retained amount. Upon being provided with
15
APPENDIX B — TITLE 10 ARMED FORCES
such an order, the Secretary shall pay the retained amount in
accordance with the order.
(4)(A) In the event of effective service of a court order under
this section and the service of legal process pursuant to section 459
of the Social Security Act (42 U.S.C. 659), both of which provide
for payments during a month from the same member, satisfaction
of such court orders and legal process from the retired or retainer
pay of the member shall be on a first-come, first-serve basis. Such
court orders and legal process shall be satisfied out of moneys which
are subject to such orders and legal process and which remain available
in accordance with the limitations of paragraph (1) and subparagraph
(B) of this paragraph during wuch month after the satisfaction of all
court orders or legal process which have been previously served.
(B) Nothwithstanding any other provision of law, the total
amount of the disposable retired or retainer pay of a member
payable by the Secretary concerned under all court orders pur-
suant to this section and all legal processes pursuant to section
549 of the Social Security Act (42 U.S.C. 659) with respect to
a member may not exceed 65 percent of the disposable retired
or retainer pay payable to such member.
(5) A court order which itself or because of previously served
court orders provides for the payment of an amount which exceeds
the amount of disposable retired or retainer pay available for pay-
ment because of the limit set forth in paragraph (1), or which, because
of previously served court orders or legal process previously served
under section 459 of the Social SEcurity Act (42 U.S.C. 659), pro-
vides for payment of an amount that exceeds the maximum amount
permitted under paragraph (1) or subparagraph (B) of paragraph (4),
shall not be considered to be irregular on its face solely for that reason.
However, such order shall be considered to be fully satisfied for pur-
poses of this section by the payment to the spouse or former spouse
of the maximum amount of disposable retired or retainer pay per-
mitted under paragraph (1) and subparagraph (B) of paragraph (4).
(6) Nothing in this section shall be construed to relieve a member
of liability for the payment of alimony, child support, or other
payments required by a court order on the grounds that payments
made out of disposable retired or retainer pay under this section have
16
APPENDIX B — TITLE 10 ARMED FORCES
been made in the maximum amount permitted under paragraph (1)
or subparagraph (B) of paragraph (4). Any such unsatisfied obliga-
tion of a member may be enforced by any means available under
law other than the means provided under this section in any case in
which the maximum amount permitted under paragraph (1) has been
paid and under section 459 of the Social Security Act (42 U.S.C.
659) in any case in which the maximum amount permitted under sub-
paragraph (B) of paragraph (4) has been paid.
(f)(1) The United States and any officer or employee of the
United States shall not be liable with respect to any payment made
from retired or retainer pay to any member, spouse, or former spouse
pursuant to a court order that is regular on its face if such payment
is made in accordance with this section and the regulations prescrib-
ed pursuant to subsection (h).
(2) An officer or employee of the United States who, under
regulations prescribed pursuant to subsection (h), has the duty to res-
pond to interrogatories shall not be subject under any law to any
disciplinary action or civil or criminal liability or penalty for, or
because of, any disclosure of information made by him in carrying
out any of his duties which directly or indirectly pertain to answer-
ing such interrogatories.
(g) A person receiving effective service of a court order under
this section shall, as soon as possible, but not later than 30 days after
the date on which effective service is made, send a written notice
of such court order (together with a copy of such order) to the member
affected by the court order at his last known address.
(h) The Secretaries concerned shall prescribe uniform regula-
tions for the administration of this section.
(b) The table of sections at the beginning of such chapter is
amended by adding at the end thercof the following new item:
‘*1408. Payment of retired or retainer pay in compliance with court
orders.”’.
(As amended Pub.L. 98-525, Title VI, §643(a)-(d), Oct. 19, 1984,
98 Stat. 2547,°2548.)
17
i ial |
APPENDIX C
IN THE SUPREME COURT OF TEXAS
ret
No. C-3961 April 10, 1985
JOHN WALRAVEN FARLEY, III From Comal County,
)
)
Vs. ) Sixth District
)
LENA FARLEY ROBERTS )
Application of petitioner for writ of error to the Court of Apeals
for the Sixth Supreme Judicial District having been duly considered,
and the Court having determined that the application presents no er-
ror requiring reversal of the judgment of the Court of Appeals, it
is ordered that said application be, and hereby is, refused.
It is further ordered that applicant, John Walraven Farley, II,
pay all costs incurred on this application
a
No. C-3961 May 22, 1985
JOHN WALRAVEN FARLEY, III From Comal County,
)
)
vs. ) Sixth District
)
LENA FARLEY ROBERTS )
Petitioner’s motion for rehearing of application for writ of er-
ror having been duly considered, it is ordered that said motion be,
and hereby is, overrulled.
* RK KK
* I MARY M. WAKEFIELD, Clcrk of the Supreme Court of
Texas, do hereby certify that the above and foregoing is a true and
correct copy of the orders of the Supreme Court of Texas in the case
numbered and styled as above, as the same appears of record in the
APPENDIX C
minutes of said Court under the dates shown.
WITNESS my hand and seal of the Supreme Court of Texas,
at the City of Austin, this, the 22nd day of May, 1985.
MARY M. WAKEFIELD, Clerk
By , Deputy
Courtland Crocker
APPENDIX C
JUDGMENT
BE IT REMEMBERED that on Friday, the 28th day of
December, A.D. 1984, the Court of Appeals for the Sixth Supreme
Judicial District of Texas met in the City of Texarkana. Present
William J. Cornelius, Chief Justice, Ben L. Hutchinson, Associate
Justice, Charles Bleil, Associate Justice, and Louise Waldrop Lohse,
Clerk, when the following proceedings, among others, were had,
to-wit: ,
John Walraven Farley, II - Appellant ) Appealed from the 22nd
No. 9188 Vv. ) Judicial District Court
Lena Farley Roberts----------- Appellee ) of Comal County,
Texas
THIS CAUSE came on to be considered on the transcript of the
record, the statement of facts, and upon the briefs and oral argu-
ment of the parties; and the Court, after considering the same, is
of the opinion and finds there was no error requiring reversal in the
judgment of the court below.
It is accordingly CONSIDERED, ORDERED AND ADJUDG-
ED that the judgment of the trial court of March 17, 1982, be, and
hereby is, in all things AFFIRMED, in conformity with the written
opinion of this Court of even date on file herein; that appellant John
Walraven Farley, III, shall pay all costs expended in behalf of this
appeal, whether in this Court or in the court below, for which let
execution issue; and the Court, noting that appellant has deposited
cash in to the Registry of the court below in lieu of appeal bond,
hereby directs the Clerk of the court below to pay out of such deposit
all costs of this appeal; and that this judgment be certified to the court
below for observance.
APPENDIX C
BE IT REMEMBERED that on Tuesday the 22nd day of January
A.D. 1985 the Court of Appeals for the Sixth Supreme Judicial
District of Texas met in the City of Texarkana, Texas. Present William
J. Cornelius, Chief Justice, Bun L. Hutchinson, Associate Justice,
Charles Bleil, Associate Justice, and Louise Waldrop Lohse, Clerk.
When the following proceedings, among others, were had to-wit:
John Walraven Farley, Ill Appealed from District Court
No. 84-013:9188 v. of Comal County.
Lena Farley Roberts
This cause came on to be heard on Appellant’s Motion for
Rehearing and the Court having inspected and duly considered said
motion is of the opinion that the said motion should be and the same
is hereby OVERRULED.
THE STATE OF TEXAS
COUNTY OF BOWIE
I, LOUISE WALDROP LOHSE, Clerk of the Court of Appeals
for the Sixth Supreme Judicial District of Texas, do hereby certify
that the above and foregoing contains a true and correct copy of all
orders on Motions for Rehearing and Judgments rendered by said
Court in Cause No. 9188, styled John Walraven Farley, III v. Lena
Farley Roberts as the same appear of record in the Minutes of this
Court.
IN TESTIMONY WHEREOF, witness my hand and official seal
of office in the City of Texarkana, Texas, this the 8th day of March
A.D., 1985.
Louise Waldrop Lohse, Cierk of
the Court of Appeals for the
Sixth Supreme Judicial District
of Texas at Texarkana
Lynda Poore,
Deputy Clerk
APPENDIX C
NO. C-81-260
Lena Farley Roberts In the 22nd Judicial
VS District Court of
eee ee”
John Walraven Farley, II Comal County, TX
ORDER
On the 23rd day of September, 1981, came on to be heard the
Petition of Lena Farley Roberts, Plaintiff, for reformation of a ‘‘Pro-
perty Settlement Agreement’’ executed by Plaintiff, Lena Farley
Roberts, and Defendant, John Walravewn Farley, III, on July 13,
1978, and presented to the 147th District Court, Travis County, Texas
on July 14, 1978 in cause number 272,919.
The Court finds that the Defendant is a resident of Comal County,
Texas, and that venue is properly before this Court and that this Court
has jurisdiction over the property settlement agreement, the subject
matter of this suit.
Plaintiff appeared in person and by attorney and announced ready
for trial. Defendant appeared in person and by attorney and announced
ready for trial.
No jury was demanded and all matters in controversy, including
questions of fact and law, were submitted to the Court. All persons
entitled to citation were properly cited.
The Court finds that Plaintiff and Defendant entered into a ‘‘Pro-
perty Settlement Agreement’’ on July 13, 1978, in which Defendant
agreed to pay to Plaintiff ‘‘one half of the monthly gross retirement
pay received by husband (Defendant herein) as a result of his ser-
vice with the United States Air Force, such retirement pay to be remit-
ted to wife on a monthly basis, within ten (10) days of its receipt
by husband.”’
The Court finds that upon the terms of the property settlement
agreement, Defendant was to pay to Petitioner an amount of money
each month. Payment of the money was contingent on Defendant’s
receipt of a sum from the United States Government pursuant to
Defendant’s service as a member of the United States Air Force during
the existence of the marriage between the Plaintiff and Defendant.
APPENDIX C
The amount of money to be paid to Plaintiff was to be an amount
equal to one-half of the gross monthly benefit or annuity payments
regularly received by the Defendant.
The Court finds further that a. tual mistake was made and the
amount upon which the monthly payment to the Plaintiff was to be
calculated was incorrectly characterized in the property settlement
agreement and that the property settlement agreement should read
‘‘in an amount equal to one-half of the gross amount of the monthly
benefits or annuity payments received by husband, where husband
became entitled to such monthly benefit or annuity payments pur-
suant to his service in the United States Air Force. The amount shall
be paid to wife on a monthly basis, within ten (10) days of receipt
of the monthly benefits or annuity by husband, at her home or office
or mailing address in Travis County, Texas, whether such payments
received by husband represent retirement or disability retirement
pay.”’
The Court finds that Defendant may elect to receive a portion
of his annuity or benefits through programs administered by the
Veterans’ Administration and that Defendant’s Air Force disability
retirement annuity benefit will be reduced by an amount equal to his
Veterans’ Administration monthly benefit. The Court finds further
that benefits paid to Defendant pursuant to the Veteran’s Administra-
tion program are paid to Defendant as a result of his service with
the United States Air Force and that the amount of such benefits are
to be included in calculation of the amount to be paid to wife (Plain-
tiff hercin) pursuant to the property settlement agreement executed
‘on July 13, 1978.
The Court finds further that the amounts payable by husband
to wife under the Section K total ten thousand five hundred and twenty-
five dollars and ninety-seven cents ($10,525.97) for the months of
March 1980 through December 1981, inclusive.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Section K of the property settlement agreement ex-
ecuted July 13, 1978, in cause number 272,919 before the 147th
District Court of Travis County, Texas shall be reformed and hereafter
shall read as follows: ‘‘in an amount equal to one-half of the gross
amount of the monthly benefits or annuity payment received by hus-
band, where husband became entitled to such monthly benefit or an-
APPENDIX C
nuity payments pursuant to his service in the United States Air Force.
The amount shall be paid to wife on a monthly basis, within ten (10)
days of receipt of the monthly benefits or annuity by husband, at
her home or office or mailing address in Travis County, Texas,
whether such payments received by husband represent retirement or
disability retirement pay or disability benefits.”’
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that amounts received by Defendant on a monthly basis
through a program administered by the Veterans’ Administration shall
be included in calculation of the amount to be paid to Plaintiff pur-
suant to Section K of the Property Settlement agreement executed
by Defendant and Plaintiff on July 13, 1978.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that Plaintiff LENA FARLEY ROBERTS have judg-
ment against Defendant JOHN WALRAVEN FARLEY, III, in the
amount of ten thousand five hundred and twenty five dollars and
ninety-seven cents ($10,525.97) with interest from the date of this
decree.
IT IS SO ORDERED.
SIGNED AND ENTERED THIS 17th day of March, 1982.
Charles Ramsey,
Judge Presiding
APPROVED AS TO FORM:
Anthoney Tomblin,
Attorney for Defendant
John Barrett,
Attorney for Plaintiff
RECORDED
Vol. Y-2, Page 654-656
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.