Petition for Writ of Certiorari — Mastropaolo v. Mastropaolo

$ PbN ee eae

Coe Nee ato

4 CIVIL 33142

JOSEPH F. SPANIOL, JR.

Supreme Court, U.S,

FILED

CCT g 1985

CLERK

| _ (E000608) | te

IN THE SUPREME COURT OF THE

UNITED STATES

October Term = 1985

No.

STEVEN MASTROPAOLO, Petitioner

vs.

HENRIETTE JULIENNE MASTROPAOLO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

UNITED STATES

a oe By ee. See eR ty BRS 4 bot oe ve 2p ket cae & te B- «8 dee |

May eR See gen i Mal LEMS Mees Cr aD OR nD “ 1a Z .

re a a0 i f « 6 b

JOHN P. WADE

(714) 888-6551

Attorney for Petitioner

2 On Appeal From the Supreme Court of

a | California

370 West Sixth Street, #100

San Bernardino, CA 92401

we

QUESTION PRESENTED

Whether the disability retirement

benefits of a member of the United States

armed services who was retired pursuant

to 10 U.S.C. 1210 and 1201 with one

hundred (100%) percent disability may be

treated as community property of the

marriage by the States, and, thus, made

subject to division and distribution

between spouses during proceedings in

State courts for dissolution of marriage.

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Question Presented

Statute Involved

Statement of Case

Reasons for Granting Writ

Conclusion

Appendix A:

Appendix

Appendix

Appendix

Appendix

Appendix

Decision of the

Fourth Appellate

District, State of

California

Decision of the

California Supreme

Court

Copy of Petitioner's

DD Form 214

Copy of Retirement

Order dated April 1,

1971

Copy of Retirement

Order dated

December 4, 1972

Decision of the

Trial Court

- ii -

21

4y

42

43

84

45

TABLE OF AUTHORITIES

CASES

Hisquierdo vs. Hisquierdo,

we 9

L.Ed.2d 1, 99 S. Ct. 802) 9,14,15,17

Mastropaolo vs. Mastropaolo,

. App.3d 953 aE

Cal. Rptr. 26) 2

McCarty vs. McCarty,

. 2 10, 69

L.ED.2d 589, 101 S. Ct.

2718 9,10,15,16,17

Ridgway vs. Ridgway,

LED a5q U r 6, 53-55

(70 L.ED.2d 39, 46-48, 102

S.Ct. 49, 54-55) 9,15

STATUTES

10 U.S.C. 1201 46,11, 12,13

10 U.S.C. 1202 5,12

10 U.S.C. 1210 446,11, 12,13

10 U.S.C. 1408 5,9,10,13,15,17

Chapter 61 of 10

G86. 5,11,13

- iii -

TABLE OF AUTHORITIES (Continued)

S. Rep. No. 1480, 90th

Congress, Second

Session 6 (1968)

Title 10 of the United

States Code

Title 28 of the United

States Code, Section 1251

(1), Rules 17(c)

United States Constitution,

Article 6, Clause 2

- iv -

Page

15

14

IN THE SUPREME COURT OF THE

UNITED STATES

October Term - 1985

No.

STEVEN MASTROPAOLO, Petitioner

vs.

HENRIETTE JULIENNE MASTROPAOLO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

UNITED STATES

To The Honorable Chief Justice and

Associate Justices of the

Supreme Court of the United States

STEVEN MASTROPAOLO, the

Petitioner herein, prays that a writ of

certiorari issue to review the judgment

of the Supreme Court of the State of

. California entered in the above-entitled

case on July 11, 1985. On that date the

California Supreme Court denied

Petitioner's Petition for Review of the

April 15, 1985, Decision of the Court of

Appeals of California, Fourth Appellant

District, Division Two.

OPINIONS BELOW

The opinion of the Court of

Appeals of California, Fourth Appellant

District, Division Two, is reported at

166 Cal. App.3d 953 (213 Cal. Rptr. 26)

and is printed in Appendix A hereto,

Page 18. The Judgment of the California

‘Supreme Court is printed in Appendix A

hereto, infra, Page 18. The Judgment of

the Supreme Court of California, In and

for the County of San Bernardino, is

printed in Appendix F hereto, infra,

Page 42.

JURISDICTION

The Judgment of the Fourth

District Court of Appeals of the State of

California, Division Two, was entered on

April 15, 1985. (Appendix A, infra,

Page 18). A timely Petition for Review

to the California Supreme Court was

denied on July 11, 1985. (Appendix B,

infra, Page 39). The jurisdiction of the

Supreme Court is involved under Title 28

of the United States Code, Section 1254

(1), Rule 17(c), in that the courts of

the State of California have decided an

important question of Federal law which

has not been, but should be, settled by

the United States Supreme Court, in that

the settlement of the questions involved

herein reach constitutional dimensions.

QUESTICYS PRESENTED

Whether che disability

retirement benefits of a member of the

United States armed services who was

retired pursuant to 10 U.S.C. 1210 and

1201 with one hundred (100%) percent

disability may be treated as community

property of the marriage by the States,

and, thus, made subject to division and

distribution between spouses during

proceedings in State courts for

dissolution of marriage.

STATUTE INVOLVED

This case involves 10 U.S.C.

1408 (c) (1) as follows:

"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

MO we meme

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 (a)

(4), provides:

"*Disposable retired or

retainer pay' means the total

monthly retired or retainer pay

to which a member is entitled

(other than the retired pay of a

member retired for disability

under Chapter 61 of this title

STATEMENT OF CASE

Petitioner entered the United

States Army Air Force on active duty in

March, 1951. In October, 1953, he

married HENRIETTE MASTROPAOLO, Respondent

herein, while on active duty in France.

In April 1971, Petitioner was placed on

the temporary disability retired list in

grade of Major pursuant to 10 U.S.C.

1202. On December 4, 1972, Petitioner

was removed from the temporary disability

list in the grade of Major, pursuant to

10 U.S.C. 1210 and 1201.

Petitioner and his former

Spouse, HENRIETTE MASTROPAOLO, separated

in September, 1972, and in February,

1983, a trial was had in the Superior

Court of the State of California, County

of San Bernardino, for a dissolution of

the marriage, characterization and

distribution of the community property.

Petitioner testified during

trial and presented documents in evidence

that he was one hundred (100%) percent

disabled and had been retired pursuant to

10 U.S.C. 1210 and 1201. (Clerk's

Transcript, Page 229; Exhibit 10 in

Evidence). Copies of his retirement

orders are attached hereto, infra, and

marked Appendixes "C", "D", and "E",

Pages 40, 41, and 42, respectively.

— 2

The trial court treated the

disability retirement benefits as

community property and ordered Petitioner

to pay his former Spouse 43.65 percent of

all his disability retirement benefits

paid in the future, as well as 43.65

percent of the benefits Petitioner had

previously received, a sum totalling over

$48,694.00.

In July, 1984, Petitioner

appealed the trial court's decision

specifically stating in his Opening Brief

that the trial court's decision was

erroneous in that "Federal law precludes

the state courts from dividing disability

pay and this decision is in conflict with

the provisions of Title 10 of the United

States Code ...". (Petitioner's

Opening Brief, Page 7).

In April, 1985, this Fourth

District Court of Appeals for California

issued its Opinion (which is printed in

Appendix A, infra, Page 18), which

affirmed the trial court's decision.

In May, 1985, Petitioner filed a

petition for Review with the Supreme

Court of California in which he once

again argued that the Supremacy Clause

and the express language of the Federal

statute had deprived the State courts of

jurisdiction to determine the individual

or community character of disability

retirement pay in family law proceedings.

The Petition for Review was

denied by the California Supreme Court on

July 11, 1985, without comment.

REASONS FOR GRANTING WRIT

The State courts of California

have decided that Federal law does not

a oe

prohibit the treatment of military

disability benefits as community

property.

Such a decision is: 1) contrary

to the express language of the Uniformed

Services Former Spouses Protection Act

(10 U.S.C. 1408), and 2) is contrary to

the decisions as expressed in such cases

as McCarty vs. McCarty, (1981) 453 U.S.

210, 69 L.ED.2d 589, 101 S. Ct. 2718;

Ridgway vs. Ridgway, (1981) 454 U.S. 46,

53-55 (70 L.ED.2d 39, 46-48, 102 S.Ct.

49, 54-55); and Hisquierdo vs.

Hisquierdo, (1979) 439 U.S. 572, (59

L./ed.2d 1,-99 S. Ct. 802).

This Court, in McCarty vs.

McCarty, supra, stated that it is clear

that Federal statutes on this issue pre-

empt the State's right to characterize

retirement benefits as community

property.

~~

In response to McCarty, the

Congress passed Public Law No. 97-252 (10

U.S.C. 1408).

10 U.S.C. 1408 provides at

Subdivision (c)(1):

"Subject to the limitations

of the 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 jurisdiction of such court."

The key words in that Section

are "Subject to the limitations of this

section" and "disposable retired or

retainer pay... .".

Congress granted to the States a

limited right to divide disposable

retired pay.

=—

wth bre Ste

"Disposable retired or retainer

pay" is defined by Section (9)(4) of 10

U.S.C. 1408 as the total monthly retired

or retainer pay to which a member is

entitled other than the retired pay of a

member retired for disability under

Chapter 61 of 10 U.S.C. The Court will

note that Petitioner was retired from

active duly pursuant to 10 U.S.C. 1210

and 1201 with one hundred (100%) percent

disability.

The State Court hinged most of

its reasoning on the presumed fact that

Petitioner somehow "elected" disability

retirement instead of longevity

retirement, or that such an election

constructively resulted from his ability

to have received either longevity or

retirement benefits.

- 11 =

Petitioner has affixed to this

Petition as Appendix "C", a copy of

Department of Defense Form 214, which

shows that Petitioner was retired

effective April 16, 1971, and his date of

entry was October 24, 1952. Clearly,

Petitioner did not serve twenty (20)

years and was not eligible for longevity

retirement. Also attached hereto as

Appendixes "D" and "E" are Petitioner's

Retirement Orders dated April 1, 1971,

and December 4, 1972, respectively.

These documents show that Petitioner was

just placed on the temporary disability

list and relieved from active duty

pursuant to 10 U.S.C. 1202; and, then, in

December, 1972, permanently retired

pursuant to 10 U.S.C. 1210 and 1201, with

one hundred (100%) percent disability.

» 2 ~

It is clear from the language of

10 U.S.C. 1408 that compensation paid for

Chapter 61, 10 U.S.C. 1210 and 1201,

disabilities are specifically not

permitted to be treated as community

property by the States.

Congress has drafted and enacted

the Uniform Services Former Spouses'

Protection Act so that disabled Veterans

are allowed to retain all of the benefits

attributable to their disabilities. Had

Congress not intended to limit the right

of the States to treat disability

benefits as community property, it would

not have specifically excluded such

benefits from the protection of the Act.

This case should be reviewed by

this Court because it deals with a

conflict between Federal and State rules

e 13 «

for the allocation of a Federal

entitlement. The Decision by the

California courts that military

disability benefits are divisable as

community property does "major damage" to

a "clear and substantial" Federal

interest, such that the Supremacy Clause

demands that state law be overridden on

this matter. Notwithstanding the limited

application of Federal law in the field

of domestic relations, (Hisquierdo, supra

99 S.Ct. 802), generally, a state divorce

decree, like any other law governing the

economic aspects of domestic relations,

must give way to clearly conflicting

Federal enactwents. That principle is

the necessary consequence of the

Supremacy Clause. (U.S.C.A.

Constitution, Article 6, Clause 2).

- 14 «

Ridgway vs. Ridgway, supra, 102 S.Ct. 49,

at Pages 54-55.

In a situation wherein the

language of a valid Federal statute is

straight forward and specifically

excludes certain disability pay from

being treated as community property by

the States, then the States are forbidden

from denying to the retired serviceman

his personal entitlement to such

benefits. [S. Rep. No. 1480, 90th

Congress, Second Session 6 (1968)].

Congress has spoken with "force and

clarity" on this issue. There is no

dispute that Congress enacted

10 U.S.C. 1408 in response to this

Court's decision in McCarty vs. McCarty,

supra. At that time, they allowed the

States to treat longevity retirement pay

in accordance with the laws of the State,

o =

but specifically denied to the States the

power to so treat disability retirement

pay. It is clear that Congress intended

that military disability pay "actually

reach the beneficiary".

As is explained by this Court in

McCarty, supra, the application of

community property principles to military

disability retired pay threatens grave

harm to "clear and substantial" Federal

interests. "Congress has enacted a

military retirement system designed to

accomplish two major goals: to provide

for the [disabled] service member, and to

meet the personnel management needs of

the active military forces." "The

community property division of

(disability) pay has the potential to

frustrate each of these objectives."

McCarty vs. McCarty, 453 U.S. 233.

- 16 -

CONCLUSION

} The decisions of the California

Courts are in direct conflict with the

express language of 10 U.S.C. 1408

concerning persons who are retired from

active military duty for disabilities.

Such conflict denies to

Petitioner and other similarly situated

Veterans their personal entitlement to

disability retirement benefits. Such a

decision by the California Courts

threatens grave harm to the substantial

Federal interest in maintaining proper

incentives and rewards for the service of

military personnel, especially those

disabled as a result of that service.

"Congress has weighed the matter

and it is not the province of the State

Courts to strike a balance different from

the one Congress has struck." McCarty

» We

vs. McCarty, 453 U.S. 208, at Page 36,

quoting Hisquierdo.

Respectfully submitted,

Attorney for Petitioner

» * »

PROOF OF SERVICE BY MAIL

I, CAROL L. WORTHINGTON,

declare:

I am employed in the County of

San Bernardino, State of California. I

am over the age of eighteen years and not

a party to the within action. My

business address is 370 West Sixth

Street, Suite 100, San Bernardino,

California 92401.

On September sa, 1985, I served

the foregoing Petition for Writ of

Certiorari on the following parties in

this action by placing a true copy

thereof enclosed in a sealed envelope

: with postage thereon fully prepaid in the

United States mail at San Bernardino,

California:

e 7 «

PROOF OF SERVICE BY MAIL (Continued)

Mark C. Schnitzer, Esq.

Hanover & Schnitzer

Attorneys at Law

665 North Arrowhead Avenue

San Bernardino, CA 92401

Chase, Rotchford, Drukker & Bogust

Attorneys at Law

334 West Third Street, #300

San Bernardino, CA 92401

I declare under penalty of

perjury under the laws of the State of

California that the foregoing is true and

correct.

Executed this 2 day of

September, 1985.

s

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE .

DISTRICT, DIVISION TWO

STATE OF CALIFORNIA

In re the Marriage

of HENRIETTE

JULIENE MASTROPAOLO

and STEVEN

MASTROPAOLO.

HENRIETTE JULIENNE

MASTROPAOLO,

Petitioner and

Respondent, 4 Civil 33142

[E000608]

and

STEVEN MASTROPAOLO, (Super.Ct.No.

FL 2854)

Appellant.

OPINION

ee ee ee 8 ee 8 ee 8 8 Oe

APPEAL from a judgment of the

Superior Court of San Bernardino County,

Duke D. Rouse, Judge, Affirmed in part;

conditionally reversed in part with

directions.

John P. Wade for Appellant.

Chase, Rotchford, Durkker & Bogust,

Mark C. Schnitzer and Pamela K. Harer for

Petitioner and Respondent.

Steven Mastropaolo (husband) appeals

form a judgment on reserved issues, .

attacking awards to his former spouse,

Henriette Julienne Mastropaolo (wife), of

a 43.65 percent community property

interest in that part of his military

disability retirement pension that would

have been paid to him as longevity

retirement benefits had he so elected and

$700 per month in spousal support.

Husband contends the award to his former

wife of a community interest in his

military disability retirement pension is

contrary to law and the award of $700 per

month spousal support constitutes an

abuse of discretion.

Background Facts

The parties were married on October

21, 1953, and separated on September 26,

1972, after more than 19 years of

marriage. There is one child of the

marriage but the child has reached

majority. Husband entered the United

States Air Force on March 9, 1951. He

retired from the Air Force on

December 22, 1972, as 100 percent

disabled pursuant to chapter 61, title

10, U.S.C. 1210 and 1201. At the time of

nis retirement husband had served more

than 20 years, was eligible for longevity

J retirement and could have elected to

receive longevity retirement benefits

rather than disability retirement

benefits. However, the monthly payments

under disability retirement exceeded

those under longevity retirement by

approximately $200 per month, so, of

Su

course, husband did not elect longevity

retirement.

The issue of marital status and the

property eed support issues were

bifurcated and on about December 15,

1981, an interlocutory judgment was

entered dissolving the marriage. Trial

on the reserved issues ensued in February

1983.

The parties stipulated that had

husband elected to receive longevity

retirement benefits the amount of the

monthly payment he would have been

receiving at the time of trial was

$1549.71. It was further stipulated that

Since the separation of the parties

husband had received $117,825.56 that

would have been paid as longevity

retirement benefits attributable to the

period of the marriage had husband so

elected, and further, that husband had

not paid any part of that over to wife.

The trial court determined that

portion of the retirement benefits

husband could have received as longevity

retirement pay was community property

except for the part attributable to the

period before marriage. Accordingly, the

court awarded to wife as her community

> property share of the retirement benefits

a 43.65 percent interest in that part of

each future monthly payment that would

have been received under a longevity

retirement had husband so elected (43.65

peréent of $1,549.71 or $676.45 per month

at the time of trial). To equalize the

division of the community property,

including the $117,825.56 in pension

benefits received by husband after

Separation, husband was ordered to pay to

wife the sum of $77,590.28. In addition,

atin

the court determined husband had

improperly disposed of wife's separately

owned personal property valued at $26,000

and husband was ordered either to return

that property to wife or to pay her its

value.

Husband was awarded as his sole and

separate property 56.35 percent of what

would have been the longevity retirement

benefits, all of the retirement benefits

attributable to service before marriage

and all of the retirement benefits

attributable to husband's disability,

that is, all retirement benefits over and

above what would have been the longevity

retirement benefits.

Other facts relevant to a particular

issue will be set forth in connection

with the discussion of that issue.

Military Retirement Benefits

Preliminarily, husband asserts that

inasmuch as his is 100 percent disabled

for purposes of military service, his

military disability retirement is

compensation for personal pain and

suffering and constitutes separate

property. (Cf. In re Marriage of Jones

(1975) 13 Cal.3d 457, 464; disapproved on

other grounds in In re Marriage of Brown

(1976) 15 Cal.3d 838, 851, fn. 14.) Not

So.

As husband concedes, the amount of

his disability retirement pension

depended on the length of his service and

the rank he attained. As explained by

the California Supreme Court in In re

Marriage of Stenquist (Stenquist I)

(1978) 21 Cal.3d 779, 786-787: "*({OJnly

portion of husband's pension benefit

ayments, though termed "disability

ofa

payments," is properly allocable to

disability. It would be unjust to

deprive wife of a valuable property right

Simply because a misleading label has

been affixed to husband's pension fund

benefits.' (In re Marriage of Cavnar

(1976) 62 Cal.App.3d 660, 665 [133

Cal.Rptr. 267]; see Pattiz, In a Divorce

or Dissolution Who Gets the Pension

Rights: Domestic Relations Law and

Retirement Plans (1978) 5 Pepperdine

L.Rev. 191, 198 and cases there cited.)

(Fn. omitted.] [Paragraph Symbol] The

purpose of disability benefits, as we

explained in Jones, is primarily to

compensate the disabled veteran for ‘tne

loss of earnings resulting from his

compelled premature military retirement

and from diminished ability to compete in

the job market' (13 Cal.3d at p. 459) and

secondarily to compensate him for the

wile

personal suffering caused by the

disability. Military retired pay based

on disability, however, does not serve.

those purposes exclusively. Because it

replaces a “retirement' pension, and is

computed in part on the basis of

longevity of service and rank at

retirement, it also serves the objective

of providing support for the serviceman

yand his spouse after he leaves the

service. Moreover, as the veteran

approaches normal retirement age, this

latter purpose may become the predominate

function served by the ‘disability'

pension."

The case at bench would clearly be

governed by the California Supreme

Court's decision in Stenquist I and the

decision of this court in In re Marriage

f Mueller (1977) 70 Cal.App.3d 66. In

oth those decision it was held that

~ =

although generally speaking disability

retirement pensions are the separate

property of the employee spouse, when the

employee spouse was also eligible to

receive regular longevity retirement

benefits at the time he or she retired

for disability, "(i]t would be

inconsistent with community property

principles ‘to permit [the employee]

spouse to transmute what would otherwise

be community property into his or her

separate property.' [Citation

omitted.]" (In re Marriage of Stenquist,

supra, 21 Cal.3d 779, 786, fn. omitted;

In re Marriage of Mueller, supra, 70

Cal.App.3d 66, 71-72.)

Husband contends, however, these

decisions are no longer good law because

federal law governs the characterization

and disposition of military retirement

benefits and forbids the characterization

atts

and disposition of military disability

retirement pensions as community

property. Whatever may be the required

result with respect to military

disability retirement pension otherwise,

we conclude that federal law does not

prohibit the disposition ordered by the

trial court in the circumstances of this

case: where the military spouse retired

before disswlution of the marriage and at

the time he retired was eligible both for

longevity and disability retirement and

could have elected to receive longevity

retirement benefits. In these

circumstances the nonmilitary spouse had

an interest in the retirement benefits

recognized under both federal and state

law which the military spouse could not

destroy by his election to receive

atte

disability retirement benefits.3/

Husband first contends Stenquist I

and Mueller were in effect overruled by

the decision in McCarty v. McCarty (1981)

453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct.

2728]. In that case the United States

Supreme Court held the military longevity

retirement pensions were subject to

exclusive federal control and state

courts were precluded from dividing them

in accordance with state laws on

dissolution of marriage. The McCarty

court suggested that providing additional

protection for former spouses of service

3/ Several times in the opinion we

shall refer to these circumstances. They

are circumstances that exist in this case

and necessarily limit our holding.

However, by referring to the circumstance

that, here, the retirement occurred

before dissolution of the marriage we do

not mean to suggest that the absence of

the circumstance would make a decisive

difference.

ate

i

persons was more appropriately left to

Congress than the judiciary.

It must be admitted that the McCarty

decision was inconsistent in principle

with the Stenquist I and Mueller

decisions. However, technically McCarty

did not involve and was not addressed to

disability retirement pensions but rather

longevity pensions.

More importantly, within months after

the McCarty decision and presumably in

response to the court's invitation in

McCarty, Congress enacted the Federal

Uniform Services Former Spouse's

Protection Act (FUSFSPA) (Pub. L.

No. 97-252, 10 U.S.C. Section 1408). In

section 1408(c)(1) FUSFSPA provides:

"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

-13-

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 [the]

court." (Emphasis added.) The manifest

purpose of FUSFSPA was to nullify the

McCarty decision. (See Aloy v. Mash

(1985) ___—s- Cal.3d ; *, fn. 7; In re

Marriage of Buikema (1983) 139 Cal.App.3d

689, 691; see also In re Marriage of

Cullen (1983) 145 Cal.App.3d 424, 427.)

So we do not believe McCarty may fairly

be said to have invalidated Stenquist I

and Mueller.

Next, husband asserts that by

expressly excluding payments due under

military disability retirement pensions

*California Supreme Court, Civ. S.F.

24639, filed March 28, 1985, slip opn. at

p. 5.

=the

for the definition of "disposable retired

or retainer" pay which may be disposed of

"in accordance with the law of the

jurisdiction of [the] court," FUSFSPA

signifies a congressional intention to

preempt state law and disallow

disposition of military disability

retirement pay by state courts in

accordance with state law. The question

is not an easy one.

FUSFSPA at section 1408(a)(4) defines

disposable retired or retainer pay as

meaning "the total monthly retired or

retainer pay to which a member is

entitled (other than the retired pay of a

member retired for disability under

chapter 61 of this title) less amounts

which [Paragraph Symbol] .. . (B) are

required by law to be and are deducted

from the retired or retainer pay of such

member, including + « e« amounts waived in

ote

order to receive compensation under title

5S or title 38; .. .™" (Emphasis added.)

The argument is that the italicized

language indicates that disability

retirement pay is not to be disposed of

by the court upon dissolution of marriage

"in accordance with the law of the

jurisdiction of such court" as is.

provided in respect to regular longevity

retirement pay in section 1408(c)(1)

quoted earlier.

We are not the first to confront this

problem. The First Division of this

court recently rejected the very

contention made by husband in deciding

the companion cases of In re Marriage of

Cullen, supra, 145 Cal.App.3d 424 and In

re Marriage of Stenquist) (Stenquist II)

(1983) 145 Cal.App.3d 430. In Cullen the

court explained: "[{IJn defining

“disposable retired or retainer pay,'

ve ftliiin

Congress specifically excluded ‘the

retired pay of a member retired for

disability under chapter 61 of this

title.' (Tit. 10 U.S.C. Section

1408(a)(4).) Thus, it is argued,

Congress has not accorded the states

power to apply state community property

laws to military disability pay as was

done in Stenquist I. it is further

argued, any attempt by the California

Legislature or judicial authorities to

exercise’ power over the husband's

disability pay and to whom it may be

given is void as an unconstitutional

infringement upon the powers of Sedaress

a protected by the supremacy clause of the

United States Constitution, article VI,

Clause 2. Under the supremacy clause,

the rights and expectancies established

by federal law are protected against the

operation of state law which might

-17-

otherwise frustrate ind erode federal

congressional policy. (See Ridgway v.

Ridgway (1981) 454 U.S. 46, 53-55 [70

L.Ed.2d 39, 46-48, 102 S.Ct. 49, 54-55].)

"This argument relies upon the Act's

failure to address whether disability

retirement pay may or may not be treated

by state courts as property of the member

and his or her spouse. This omission is

read to prohibit the State of California

from treating disability retirement pay

as community property. Nothing in the

Act nor in case law warrants a conclusion

that Congress merely by failing to

include disability pay in the definition

of “disposable retired or retainer pay'

intended to deprive the state courts of

jurisdiction to determine the individual

or community character of disability

retirement pay in family law proceedings.

The correct standard for review under the

othe

supremacy clause was stated by the United

States Supreme Court recently in

Hisquierdo v. Hisquierdo (1979) 439 U.S.

572, at page 581 [59 L.Ed.2d 1, at page

11, 99 S.Ct. 802]: ~On the rare occasion

when state family law has come into

conflict with a federal statute, this

'Court has limited review under the

Supremacy Clause to a determination

whether Congress has "positively required

by direct enactment" that state law be

preempted. {Citation.]' Hisquierdo also

said: *[S]tate interests "should be

overriden (sic) by the federal courts

only where clear and substantial

interests of the National Government,

which cannot be served consistently with

respect for such state interests, will

suffer major damage if the state law is

applied."' (Id., at p. 595[59 L.Ed.2d at

p. 19], Corig. emphasis.]

-19-

It should be further noted that

California law generally treats

disability retirement pay as separate

property of the Armed Forces. (In re

Marriage of Jones [1975] 13 Cal.3d 457.)

However, here, as in Steinquist I, the

judgment awards only a portion of the

husband's disability retirement pay to

his former spouse because he was eligible

to receive either disability or

nondisability retirement pay. After

having received nondisability retirement

pay, the husband then waive it and

elected to receive the disability pension

of a higher amount. The trial court

here, as in Stenquist I, treated the

excess due to the disability retirement

as additional compensation attributable

to the husband's disability. There is no

positive indication of congressional

intent to preempt the basic state policy

a2De

preventing a marital partner from

depriving the other spouse of a vested

community property right by a unilateral

decision based upon the well-recognized

rule that disability payments are the

separate property of the spouse. The

compromise and rule adopted by our

Supreme Court in Stenquist I appears to

give full recognition to the character of

the disability payment, but at the same

time recognizes the basic right of a

spouse not to be deprived of a community

asset by the voluntary act of another."

(In re Marriage of Cullen, supra, 145

Cal.App.3d at pp.428-429; accord In re

Marriage of Stenquist, supra, 145

Cal.App.3d 430, 433-435.)

The reasoning of the court in Cullen

@and the dicta to the same effect in

BStenquist II were criticized in In re

arriage of Costo (1984) 156 Cal.App.3d

-21-

781, 787-788, including footnote 11./

Costo, however, was a case in which the

military spouse was granted disability

benefits under title 38 of the United

States Code and was required to waive a

like portion of his longevity retirement

pay to receive those benefits. The

portion of FUSFSPA previously quoted

expressly provides that amounts waived in

4 Footnote 11 of the Costo decision

reads in pertinent part: "Even though

the instant case may be distinguished

from In re Marriage of Cullen, supra, 145

Cal.App.3d 424 and In re Marriage of

Stenquist (Stenquist II), supra, 145

Cal.App.3d 430, which involved disability

payments under chapter 61 of title 10

» « «, we question the reasoning of those

decisions. . . . [Paragraph Symbol] As

we read section 1408(a)(4) of title 10

- - « Gisability retirement pay under

chapter 61 is specifically excluded,

thereby depriving state courts of

jurisdiction, bv the following language:

“other than the retired pay of a member

retired for disability under chapter 61

of this title." The Fourth district

seems to be setting up a straw man,

=22s

order to receive compensation under title

38 are excluded from division by the

court upon dissolution of marriage.

(Tit. 10, U.S.C. Section 1408(a)(4).) As

the Costo court recognized, therefore,

its criticism of Cullen.and Stenquist II

was dicta.

We cannot say the Costo court's

conclusion is totally illogical. Given

the McCarty decision, FUSFSPA's express

exclusion of disability retirement pay

from the effects of the act can hardly be

regarded as insignificant. However, in

view of the general reluctance of both

federal and state courts to imply a

47 (Contifiuea)

namely, the fact that the act fails to

include disability pay in the definition

of “disposable retired or retainer pay,'

to defeat federal preemption. In our

opinion, the argument for federal Costro,

Supra, 156 Cal.App.3d 781, 787, fn. TT,

arte. emphasis. )

=23-

federal preemption of state law unless it

is clearly required, we are inclined to

agree with Cullen and Stenquist II.

In Hisquierdo vs. Hisquierdo (1979)

439 U.S. 572, 581 [59 L.Ed.2d 1, 11, 99

S.Ct. 802] the United States Supreme

Court stated that preemption will be

found only where it is determined that

"Congress has ‘positively required by

direct enactment' that state law be

preempted." The express exclusion of

disability retirement pay from FUSFSPA's

coverage would appear to be a

manifestation of Congress' failure to act

rather than a "‘direct enactment' that

State law be preempted." Moreover, as

observed in Stenquist II, "in order to

find congressional preemption of a state

rule or statute, it is essential to find

Congress actually considered and reached

some decision concerning the issue

24.

involved. (See United States v. Bass

(1971) 404 U.S. 336, 349, 350 [30 L.Ed.2d

488, 497, 498, 92 S.Ct. 515.])" (In re

Marriage of Stenquist, supra, 145

Cal.App.3d 430, 434.)

However, even if we were to conclude

that the Costo court's dicta is correct,

that would not resolve this case. In the

circumstances of this case, namely where

the retirement occurred before the |

dissolution of the marriage (see fn. 3,

ante) and at a time when the military

Spouse was eligible for both longevity

and disability retirement and could have

elected to receive longevity retirement

benefits, under both federal law (tit.

10, U.S.C. Section 1408(c)(1) and

California law (In re Marriage of

Gillmore (181) 29 Cal.3d 418, 422,

including fn. 2; In re Marriage of

Fithian (1974) 10 Cal.3d 592, 596

o23

{overruled insofar as it indicated only

vested rights were subject to division by

In re Marriage of Brown 91976) a5 Cal.3d

838, 851 fn. 14]) wife would have been

entitled to a community property share of

the longevity retirement pension for

which husband was eligible had he elected

to receive longevity retirement

benefits. Under California law, in

accordance with which the division of

longevity retirement benefits would have

been made under FUSFSPA, wife's rights

were vested. (E.g., In re Marriage of

Gillmore, supra.) The question is, then,

whether preemptive federal law permits a

military spouse in the situation of

husband to destroy the other spouse's

federal statutory right and concomitant

State law right by simply accepting a

disability retirement and opting not to

<@e

elect a longevity retirement. We believe

not.

In a somewhat analogous situation, -

although it did not involve the question

of federal preemption, this court

recently relied on the resulting trust

doctrine to effectuate, in effect, a

division of state employee death benefits

between a former spouse and a surviving

Spouse even though the benefits were

statutorily payable only to the surviving

spouse. (In re Marriage of Becker (1984)

161 Cal.App.3d 65, 74-75.) Our decision

in Becker was based on the same principle

of law as underlay Stenquist I and

Mueller, that one spouse may not be

permitted by exercise of a power wholly

within that spceuse's control to transmute

what would otherwise be the community

property of both spouses into his or her

Separate property. (In re Marriage of

-27-

Stenquist, supra, 21 Cal.3d 779, 786; In

re Marriage of Mueller, supra, 29 Cal.3d

418, 423, and cases there cited.)

As we explained in Becker: "It is

true that in this case the surviving

spouse is to receive a monthly allowance

rather than repayment of the accumulated

contributions to the retirement system.

However, aS we snall explain, she was

entitled to receive the accumulated

retirement contributions if she so

elected, and the fact that she is to

receive a monthly allowance rather than

the accumulated contributions is a

product of her own choice. In essence,

the surviving spouse has traded her right

to receive the accumulated retirement

contributions, out of which former wife

would have been entitled to reimbursement

of her community share under Chirmside

{[Chirmside v. Board of Administration

~28-

(1983) 143 Cal.App.3d 205], for a monthly

allowance. (Emphasis added.)

"While the surviving spouse was

® statutorily entitled to make the choice

she did and committed no wrong in so

@ doing, she has effectively utilized

®@ former wife's right to reimbursement to

acquire, in part, her monthly allowance.

The situation presented is a classic one

for the imposition of a resulting trust.

When one person furnishes the money or

j other thing of value with which property

| is acquired and title to the property is

taken in the name of another, absent the

intention of the one to confer a gift

upon the other, the titleholder is a

trustee upon a resulting trust of the

property for the benefit of the person

m@who furnished the money or other thing of

Wvalue by which the property was

acquired. (Civ. Code, Section 853; Keene

a@-

v. Keene (1962) 57 Cal.2d 657, 665 {21

Cal.Rptr. 593, 371 P.2d 329]; Viner v.

Untrecht (1945) 26 Cal.2d 261, 269 [158

P.2d 3]; Martin v. Kehl (1983) 145

Cal.App.3d 228, 238-239 [193 Cal.Rptr.

312]; see Rest.2d Trusts, Sections 440,

455; 7 Witkin, Summary of Cal. Law (8th

ed. 1974) Sections 126-128,

pp. 5484-5486.) Where only a portion of

the acquisition price has been furnished,

a resulting trust may be established in a

fractional interest in the property on a

pro tanto basis. (Keene v. Keene, supra,

57 Cal.2d 657, 665; Watson v. Poore

(1941) 18 Cal.2d 302, 317 [115 P.2d 478];

Juranek v. Juranek (1938) 29 Cal.App.2d

276, 281 [84 P.2d 195]; see Rest.2d

Trusts, Section 454.)" (In re Marriage

of Becker, supra, 161 Cal.App.3d 65,

74-75, fn. omitted, emphasis added.)

-30-

The same logic should apply here. So

far aS we are aware the federal courts

recognize the rcculting trust doctrine in

appropriate circumstances, and we are

confident they would find it appropriate

here to further the congressional intent

to protect spouses of service personnel

that is manifest in FUSFSPA.

We conclude that the order awarding

wife her share of the community property

interest in the military retirement

benefits is not contrary to law.

Disposition

Insofar as the judgment awards wife a

community property interest in the.

military retirement pension of husband it

is affirmed. Upon condition that the

foregoing judgment of affirmance becomes

final, that part of the judgment awarding

wife $700 per month spousal support is

o3ts

reversed for further proceedings

consistent with this opinion. If for any

cause the foregoing affirmance should not

become final, that part of the trial

court judgment awarding wife $700 per

month spousal support is affirmed. If

pursuant to this appellate judgment the

portion of the judgment awarding wife

$700 per month spousal support stands

reversed and it appears husband has paid

spousal support is excess of the amount

eventually set, the trial court is

directed to credit any such excess amount

against the equalizing payment of

$77,590.28 specified in the judgment.

CERTIFIED FOR PUBLICATION.

KAUFMAN

Acting P.J.

a2De

We concur:

MCDANIEL

RICKLES

-33-

MARK C. SCHNITZER, A LAW CORPORATION

141 N. Arrowhead Avenue, Suite 5

San Bernardino, CA. 92408-1092

Telephone: (714) 884-2147

Attorney for Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

In re the Marriage of CASE NO. FL 2854

HENRIETTE JULIENNE

MASTROPAOLO

JUDGMENT ON

RESERVED ISSUES

)

)

)

)

)

Petitioner )

and )

)

STEVEN MASTROPAOLO by )

and through his )

guardian ad litem )

)

)

Paul Mastropaolo,

Respondent

The above entitled matter came on

regularly for Court trial on February 16,

1983 in Department 8 of the

mtn

above-entitled Court, the Honorable

Duke D. Rouse Superior Court Judge

presiding. Petitioner appeared by and.

through her attorneys Mark C. Schnitzer,

a Member of Mark C. Schnitzer, A Law

Corportion and Chase, Rotchford, Drukker

& Bogust, by Pamela K. Harer; respondent

and his guardian ad litem Paul

Mastropaolo appeared through their

attorney Max E. Henry and evidence both

oral and documentary having been

submitted and considered, the Court made

the following findings:

1. That the parties were married on

October 21, 1952, and that they separated

on September 26, 1972.

2. That the period of time from the

date of marriage to date of separation is

19 years and 11 months.

3. That the Petitioner had been a

continuous resident of this state for at

wfie

least six month (sic) and of this county

for at least three months immediately

preceding the filing of the Petition on

October 16, 1970.

4. That the Court acquired

jurisdiction in the matter on

December 16, 1970, by reason of service.

5. That irreconcilable differences

have unfortunately arisen between the

parties which have caused an irremediable

breakdown of this marriage, and that

there appears to be no possibility of

reconciliation of the parties.

6. That there are no minor children

of this marriage.

7. That the parties made the

following oral stipulation in open court:

(a) That the current fair market

value of the Baccarat crystal is $61.68

per piece.

(b) That Respondent has received

since separation $117,825.56 (87.3% of

Military Retirement Benefits received),

which was community property.

(c) That Respondent's longevity

retirement benefits were $1,549.71 per

month as of February 16, 1983.

8. That the community property of

the parties and the valuation thereof is

as follows:

(a) 1969 MG Princess

automobile $ 2,000.00

(b) Household furniture

and furnishings 4,000.00

(ec) Antiques, objects of

art, and items of

special value ~ 20,000.00

(d) Library of several

thousand books $ 5,000.00

Ce)

(f)

(g)

(h)

(i)

(j)

(k)

(1)

(m)

(n)

(o)

(p)

Cosmetic manufactur-

ing equipment and

laboratory equipment

Machine shop and tools

Artist supplies and

equipment

Jacuzzi

Sewing machine

Two suitcases

Guitar

Adding machine

Vapozone machine

(broken)

Cosmetic supplies

Bronze tray from

Africa

1964 Thunderbird

automobile

3,500.00

600.00

200.00

300.00

300.00

30.00

15.00

75.00

125.00

200.00

500.00

3,000.00

(q) Military Retirement

Benefits - from date of

separation to

February 1, 1983.

(87.3%) $117,825.56

(r) Future Military

Retirement Benefits of

$1,549.71 per month

representing the

longevity portion of

respondent's Military

Retirement benefits as

of February 16, 1983,

subject to increase

according to applicable

Federal Law.

9. That the following items are the

Separate property of Petitioner:

(a) One 17th Century Turkish

table - octagonal with inlaid ivory and

wood.

oie

(ob) One 17th Century Rineland

Sterling silver tea service, platter.

(ec) Six sterling silver dishes -

17th and 19th Century.

(d) One 18th Century sterling

Silver flatware service for 12.

(e) One watercolor painting by

Wateau.

(f) One Roman Amphora, cira

500 B.C.

(g) One bronze statue by Ertza

von Lambrech.

(h) Two hand-embroidered linen

tablecloths, each with 12 napkins.

(i) Limoges "Classic Blue"

porcelain dinnerware, service for 8.

(j) Books, including an extensive

medical library, a first edition of

Tennyson, an autographed first edition of

The Little Prince by Saint Exupery, a

17th Century first edition in French of

the Talmud, and many out-of-print books.

The value of items 9 [a

through j]) is $26,000.00.

10. That the following items are the

separate property of Respondent:

(a) All of his retirement

apportioned to his disability.

(b) 56.35% of his longevity

retirement benefits.

THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED AS FOLLOWS:

1. The Respondent is ordered to pay

to the Petitioner for her support the sum

of $700.00 per month for spousal support,

payable one-half on the first and

one-half on the 15th days of each month,

commencing March 1, 1983 and continuing

until the death of either party,

remarriage of Petitioner, or until

further order of Court.

alin

2. The community property of the

parties shall be divided as follows:

(a) To the Petitioner as her sole

and separate property: Items (i) through

and including (0) and 43.65% of (r) as

set forth in paragraph 8 above of the

findings.

(b) To the Respondent as his

sole and separate property: Items (a)

through (h) and item (p) in paragraph 8

of the findings.

3. To equalize the division of the

community property, Respondent shall pay

to Petitioner the sum of $77,590.28.

4. Respondent shall deliver to

Petitioner forthwith the items set forth

in paragraph 9 (a through j) as set forth

in the findings foregoing, or in the

alternative, Petitioner shall have

judgment against Respondent for the sum

of $26,900.00.

5. Respondent shall pay to

Petitioner's attorneys, as his

contribution toward Petitioner's

attorneys fee, the sum of $3,500.00

APPROVED AS CONFORMING TO THE

COURT'S AMENDED MEMORANDUM OF

INTENDED DECISION ON RESERVED

ISSUES.

BY: /s/ MAX E. HENRY

Attorney for Respondent and

his Guardian ad Litem, Paul

Mastropaolo

Dated: 8-8-83

/s/ DUKE D. ROUSE

DUKE D. ROUSE

Judge of the Superior Court

at@e