# Petition for Writ of Certiorari — Mastropaolo v. Mastropaolo

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1011

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1003%3A1. Public record. Not legal advice.