Petition for Writ of Certiorari — Hadley v. Hadley

Supreme Court brief1989

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NO:

In the

Supreme Court, U.S.

FILED

AUG 7 1889

JOSEPH F. SPANIOL, JR.

CLERK

Supreme Court

af the

United States

October Term, 1989

EDGAR H. HADLEY,

Petitioner,

Vs.

HELEN C. HADLEY,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

GARY H. BENJAMIN

Attorney at Law

BENJAMIN & PERREY, P.S.

N. 2702 Argonne,

Spokane, Wa 992

(509) 922-5345

Suite E

: *t i

| POEIPIDIISISSS SS SS SSG SCG CCG CSCO C TOOT TU

(a)

QUESTIONS PRESENTED FOR REVIEW

is Whether the Uniformed Services

Former Spouse Protection Act (10 U.S.C.

1408) [FSPA] is an impermissible

delegation ‘of exclusive Congressional

authority and responsibility, in

violation of the United States

Constitution, Article 1, Section 8, and

as such is therefore unconstitutional?

2. Whether the FSPA, if

constitutionally valid on its face,

permits the Washington state courts to

recharacterize the nature of Military

Retired/Retainer pay as a property

interest, contrary to section (c) (2) of

that Act and decisions of this Court?

3. Whether the FSPA, if

constitutionally valid on its face, is

unconstitutionally interpreted and

applied hy the Washington state courts,

in violation of the due process clause,

the contractural impairments clause and

the Thirteenth Amendment of the United

States Constitution?

(b)

TABLE OF CONTENTS

(a) Question Presented for Review ..i

(>) Table of Contents . .« « «-s © ss ae

(d) Orders, Judgments and Opinions

Delivered Gelow ..s « «$s = sok

(e€) Grounds Upon which Jurisdiction

A6 Invoneeg 4s 6 sk 4 See

(£) Constitutional, Statutory and

Regulatory Provisions Involved. . 5

(g) Statement of the Case ......7

(h) Argument .<« ss « %*% s 6 sae

(1) The Former Spouse Protection

Act is Unconstitutional as an

Imperinissible Delegation of

Exclusive Congressional

Authority . .« s « « + 6 6 * 8

(2) The FSPA, if Constitutional,

does not Permit the State of

Washington to Recharacterize

a Retirees Current Wages as

Deferred Compensation ... 17

(3) The FSPA, if Constitutional

is Unconstitutionally Applied

by Washington Courts, and

Discriminates Against

Petitioner ..+s« +s 6. * 8 -@s

Conciusion « « + « s »s «6 =) 920

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Appendix

Interlocutory Judgment of

Dissolution of Marriage

Final Judgment of Dissolution

of Marriage

Memorandum Opinion of Trial

Court Below Upon Respondent's

Motion to Reopen the Issue in

the State of Washington, and

Court's Memorandum Opinion on

the Applicability of RCW

26.16.200

Judgment of the Trial Court,

and Addendum to Judgment of the

Trial Court

Opinion of the Court of Appeals

of the State of Washington,

Division III

Order Denying Petition for

Review by the Washington State

Supreme Court

10 U.S.C. 101

10 U.S.C. 267

10 U.S.C. 276

10 U.S.C. 672

10 U.S.C. 688

10 U.S.C. 1408

29 U.S.C. 1002(32)

a> U«S.C. 1003

Wash.Rev.Code Ann. 6.15.020

Wash.Rev.Code Ann. 26.16.140

Wash.Rev.Code Ann. 26.16.200

*ilii-

Constitution of the United

States, Article I, section

8; Article I, section 9;

Article I, section 10;

Article VI, clause 2: and

the Fifth, Thirteenth and

Fourteenth Amendments

aiye

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(c)

TABLE OF AUTHORITIES

SUPREME COURT CASES

Bell v. United States, 366 U.S.

393 (i962) « « « 6 © 6&4 Se 8S es

Cary v. Curtis, 44 U.S. 236 (1845) . 27

Caterpillar v. Williams, 482 U.S.

, 96 L.Ed.2d 318 (1987) ... 19

Florida Lime & Avacado Growers,

Inc., V. Paul, 373 U.S. 132

(1963) . . . + . . o . . . = ° . . 22

Free v. Bland, 369 U.S. 663

$4. ¥ 3 ee ee ee ee er ee ee ee ee ee ee

Kahn v. Anderson, 255 U.S. 1

(1920) ° . . . . e . . . . . . . 2 15

Knickerbocker Ice Company v.

Stewart, 253 U.S. 149 (1920) . 10,12

Leonard v. United States, 279 U.S.

40 (1928) ey ee ee ee

Lorillard v. Pons, 434 U.S. 575

St): | Se ee ee ee ee

McCarty v. McCarty, 453 U.S. 210

(A493) « «6 ow © sh te et ee ehh) 6S

Mansell v. Mansell, No: 87-201,

decided May 30, 1989 .... . 5,8,17

Reconstruction Finance Corporation

v. Beaver County, 328 U.S. 204

(1946) e e. . . 7 © . © . e . + . 7 2/

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 {1947) < * s «© & oe ee

United States v. Larionoff, 431

0 .Ss 864 (1977) & 7 7 . - ° . . 5,i4

-V=—

United States v. Mills, 197 U.S.

Dee Fe@OG) & 4 6 eo eo ee 6 le lk ll CU

United States v. Morton, 112 U.S.1

(1884) 7 . . . . . . - * ” . . . . 15

United States v. Standard Oil,

332 U.S. 301 (1947) Se oe ae ae a ae

United States v. Tarble, 80 U.S.

Deeeeaeen) x 6 6 6 3 8 «© © 6 6 « 6 GS

United States v. Tyler,

105 U.S. 244 (1881) . 5,15,17,18,22

Wissner v. Wissner, 338 U.S. 655

er. «¢ 6 6 6 es 6 6 0 ee 4) UHR EEE

OTHER FEDERAL CASES

Andrews v. United States, 175 Ct.Cl.

Beeriee@GGi' 4 « 6 % 6 5s «8 oso 0 &6

Chambers v. Russel, 192 F.Supp. 425

(N.D. Cal. 1961) . . o . . . . . . 16

Costello v. United States, 587 F.2d

424 (9th Cir., 1978) cert.

den.,442 U.S. 929

>, ) reer re rer. rr ary f

Goodley v. United States, 441 F.2d

ewe e0eecis 2971) 6. <5 ec & sw 28

Hooper v. Hartman, 163 F.Supp. 437,

(S.D. Cal. 1958), aff'd 274 F.2d

eae. 09th Cir... 1959) «ss + « « « 26

Hostinsky v. United States, 292

Suse $08 1Ct.Cl. 1962) << « « 34,96

Lemly v. United States, 75 F.Supp.

248, 109 Ct.Cl. 760 (1948) . ... 17

Lockhart v. Mittlemann, 123 F.2d

703 (2nd Cir. 1941) <_* & © & & © BO

-Vl1l-

Walal all all al al al of a) ok OF oF OF OF OF OF OF OF ORO 20.

ee ee eee

NDNANAADDDDANDADDADDANECOECOHOHNEN.

Puglisi Vv. United

403 (Ct.Cl. 1977).

(1978)

435 U.S. 968

Watson v. Watson,

(1976) .« « »

States,

cert.

424 F.Supp.

. ° .

WASHINGTON STATE CASES

564 F.2d

den.

866

» 16

Marriage of Parks, 48 Wash.App. 166,

737 P.2d 1316

Moore v. Moore,

515 p.2da 1309

(1987)

9 Wash.

(1973)

App .

951,

\ UNITED STATES CONSTITUTION

Article I, section 8 .

Article I, section 8,

12, 13, 14, and 16.

Article I, section 9,

Article VI, clause 2

Fifth Amendment

Thirteenth Amendment .

Fourteenth Amendment .

FEDERAL

Title 5 U.S.C.

S§ U.S.C. $532

§ u.8.C. 8311

5 u.8.C. 8322

Title 10 U.S.C.

10 U.S.C. 101(27) .

10 U.S.C. 672

-vii-

STATUTES

er}

. 26

.-' 2

7,211,12,28

clause 8

7,14

7,11

3,7

3,7,23,28

3,7,23

- 14

» aa

- 14

18,20,21,25

7,18,28

7,15

29 U.S.C. GOB 2. 1 0 6 tt 8 tk lt M88

10 U.S.C. 801 et seq (UCMJ). . . . 15

10 U.S.C. 1408 (FSPA) .... pasim

Oe WebeGs BOL & we est etnias

SS UWebsGs FOGCCTR) 1 2 ss ce ws OS

oe. wiwees SPOe 8 6 en ws és) oe ek ee

ge Oe . a ea ee 20,21

26 U.S.C. 61(a) (11) <4. 6. 2~e.« 20

Title 28 U.S.C

28 U.S.C. 1257(a) 2. 2... . we SS

28 U.S.C. 2403 (a) ee ek ee ee or er

dpnhdnsdannmmnnneillll

Title 29 U.S.C.

29 0.8.C. 1002 (32) ...... 7,21

29 U.S.C. 1003 . . 2. 2. 2 so tw Pell

Title 37 U.S.C.

37 U.S.C. 801 (1) 2. 2... 18

STATE STATUTES

Wash.Rev.Code Ann. (R.C.W.)

R.C.W. 6.15.020 ...... 3

R.C.W. 26.16.140 . . . 2. 2 e2 20,25,27

R.C.W. 26.16.2000 . . . 1. 2. ce 1,3,8

20,21,27

OTHER AUTHORITY

37 Comp.Gen. 207 ....... os « « IS

41 Comp.Gen. 715 .....4.~., e « e 4S

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NO:

In the

Supreme Court

of the

United States

October Term, 1989

EDGAR H. HADLEY,

Petitioner,

vs.

HELEN C. HADLEY,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF WASHINGTON _

PETITION FOR WRIT OF CERTIORARI

GARY H. BENJAMIN

Attorney at Law

BENJAMIN & PERREY, P.S.

N. 2702 Argonne, Suite E

Spokane, Wa 99212

(509) 922-5345

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(d)

ORDERS, JUDGMENTS AND

OPINIONS DELIVERED BELOW

"Stipulated Interlocutory Judgment

of Dissolution of Marriage", July 30,

1979 (Appendix A), "Final Judgment of

Dissolution of Marriage", February 27,

1980 (Appendix B), “Memorandum Opinion"

of trial court below upon Respondent's

motion to reopen the issue in the State

of Washington, April 1, 1987, and

"Court's Memorandum Opinion of the

Applicability of RCW 26.16.200 to the

Issue of Whether Judgment Against

Defendant Edgar H. Hadley,

Individually, is Appropriate", upon

Respondent's motion for

reconsideration, May 18, 1987,

(Appendix C), "Findings of Fact,

Conclusions of Law and Judgment" of the

trial court, August 20, 1987, and

"Addendum to Findings of Fact,

Conclusions of Law and Judgment" of the

trial court, August 20, 1987 (Appendix

D), Opinion of the Court of Appeals of

the State of Washington, Division III,

January 31, 1989, 53 Wash.App. 1044,

(Appendix E), “Order Granting Motion

for Extension of Time to File Petition

for Review and Denying Petition for

Review" of the Washington State Supreme

Court, May 9, 1989, 112 Wash. 2d 1022,

(Appendix F).

None of the decisions of the

courts below are officially published.

(e)

GROUNDS UPON WHICH JURISDICTION

IS INVOKED

(1)

Proceedings Belcw

Petitioner argued below’ through

the trial court and appellate courts

that the Uniformed Serivces Former

Spouse Protection Act, 10 U.S.C. 1408,

hereinafter FSPA, is unconstitutional

both on its face and as applied.

Petitioner argued, inter alia,

OUVOOOOOCCOCOOCOCOOCOCUOUCOCUUOLLUUULULULLUUUULLLOFCOUUUUY

that the FSPA is an impermissible

delegation of exclusive congressional

authority and responsibility, in

violation of the Constitution of the

United States, Article I, section 8.

Petitioner argued that even if the FSPA

were constitutional on its face, the

State of Washington was not free to

recharacterize the nature of military

retired/retainer pay as a "property"

right in contravention of this Court's

holdings, as specifically prohibited by

the plain language of the FSPA itself,

and as violative of the Fifth,

Thirteenth and Fourteenth Amendments,

as well as the supremacy clause and

contract impairment clause of the

Constitution of the United States.

Petitioner argued that the courts

of the State of Washington were

violating state statutes, specifically

the Revised Code of Washington,

(R.C.W.) 26.16.200 and/or 6.15.020.

The Washington State courts have

summarily rejected and denied each

argument.

(ii)

Judgment Sought to be Reviewed

The Supreme Court of the State

Summarily denied review of the decision

of the Court of Appeals, Division III,

which was filed on January 31, 1989,

which remains the last definitive

ruling in this case. The judgment of

the Washington State Supreme Court was

entered on May 9, 1989. Notice of

Petition for Writ of Certiorari to this

Court was filed in the Supreme Court of

the State of Washington, the court

possessed of -the record herein, on

August 1, 1989.

This Petition is docketed within

ninety days of the entry of the order

denying review by the Supreme Court of

the State. As this action involves a

direct constitutional challenge to an

Act of Congress, 28 U.S.C. 2403 (a) may

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apply, and this Petition is being

served on the Solicitor General of the

United States.

(iii)

Statutory and Case Authority

Sustaining Jurisdiction

This action involves a challenge

to the constitutionality of 10 U.S.C.

1408. This Court has jurisdiction

pursuant to 28 U.S.C. 1257(a), and this

Court's decisions in United States v.

Tyler, 105 U.S. 244 (1881); Free v.

Bland, 369 U.S. 663 (1962); Wissner v.

Wissner, 338 U.S. 655 (1950); Bell v.

United States, 366 U.S. 393 (1961);

McCarty Vv. McCarty, 453 U.S. 210

(1981); United States v. Larionoff, 431

0.8. -86¢4 (1977); Costello v. United

States, 442 0.8. 929 (1979), and

Mansell v. Mansell, No: 87-201,

0.8. , May 30, 1989.

(f)

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

This case involves a challenge to

the constitutionality of, and/or an

interpretation of the Uniformed

Services Former Spouse Protesction Act,

Pub. L. 97-252, codified as 10 U.S.C.

1408, which is set forth in full in

Appendix I. In particular, the case

involves subsections (c)(1) and (c) (2),

which are set out below. . Subsection

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

a payable to a member...

either as property solely of the

member or as property of the

member and his spouse in

accordance with the law of the

jurisdiction of such court.

(Emphasis added).

Subsection (c) (2) provides:

Notwithstanding any other

provision of law, this section

does not create any right,

title, or interest which can be

sold, assigned, transferred, or

otherwise disposed of (including

by inheritance) by a spouse or

former spouse.

Several other federal statutes are

involved to the extent that they

peripherally support Petitioner's

contentions. These are set forth in

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pertinent part in the Appendices. These

statutes are i090 U.S.C. 101(27), 10

U.S.C. 267 and 10 U.S.C. 276 (Appendix

G); 10 U.S.C. 672 and .10 U.S.C. 688

(Appendix H); and 29 U.S.C. 1002(32)

and 29 U.S.C. 1003 (Appendix J). State

statutes in apparent conflict are set

out in Appendix K. The Constitutional

provisions involved are Article I,

sections 8, 9, and 10; Article VI,

clause 2; and the Fifth, Thirteenth and

Fourteenth Ammendments to the

Constitution (Appendix L).

(g)

STATEMENT OF THE CASE

Petitioner, a retired member of

the uniformed military services,

responded to an action in the Superior

Court, County of Spokane, State of

Washington, attempting to clarify a

Decree of Dissolution entered in the

State of California some 7 years

earlier. The action alleged, inter

lia, that Petitioner owed some past

due indebtedness, sought division of

Petitioner's veterans disability

compensation, division of his’' gross

retired pay, and a recharacterization

of the original Decree from "property"

to spousal support. After trial,

Petitioner prevailed on all claims.

Upon timely motion for reconsideration,

the trial court did find that

Washington Revised Code (R.C.W.) 26.16

-200 did not bar one of the claims, and

awarded a judgment against Petitioner

in his individual capacity on that

Claim only.

Respondent timely appealed to the

Court of Appeals, Division III, which

court reversed the trial court on all

issues that were favorable to the

Petitioner, except for the division of

Petitioner's disability compensation,

per. se. The Court of Appeals did,

however, the very act prohibited by

Mansell v. Mansell, No: 87-201, decided

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by this Court on May 30, 1989, and

awarded Respondent a division of

Petitioner's gross military retired

pay, which includes those amounts

waived from retired pay for disability

compensation.

Petitioner timely appealed to the

Washington State Supreme Court, which

court summarily denied the appeal, and

affirmed the Court of Appeals by

inaction. Petitioner hereby timely

Petitions this Court to. resolve this

important question.

(h)

ARGUMENT

(1) The Former Spouse Protection

Act 1s Unconstitutional as an

Impermissible Delegation of —

Exclusive Congressional Authority

Clearly, the raising and

maintaining of the military is

exclusively a function reserved by the

United States Constitution to

Congress. By virtue of the

Constitutional reservation of authority

to Congress, likewise, Congress may not

delegate its authority. A similar

question was decided in Knickerbocker

Ice Company v. Stewart, 253 U.S. 149

(1920). Congress is exclusively

authorized by the Constitution to fix

and address remedies for seamen injured

at sea. Congress enacted legislation

which provided an election of remedies

for the seamen under the various laws

of the various states. This Court held

that the delegation of power to the

States which would control. ar affect

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the congressional schema was an

unconstitutional Aeieeation of

authority by Congress.

State courts will be preempted

upon a_ showing of (1) an expression of

congressional purpose or intent to

preempt the field, (2) pervasiveness of

the schema, (3) nature of the field as

federal in character, and (4) the

inherent need for nationwide

uniformity. Congress has preempted the

field and has_ established a pervasive

schema by exercising its authority

pursuant to the United States

Constitution, Article I, section 8,

Cle. 12, 13, 14, and 16; Article VI,

clause 2. Accordingly, the field is

,exclusively federal in character,

United States v. Tarble, 80 U.S. 397

(1872).

Given similar circumstances in the

case of military pay, Petitioner urges

this Court to find that FSPA is

likewise unconstitutional. The FSPA

specifically purports to delegate to

each state the authority to "treat" the

pay "in accordance with the laws of the

State". This is precisely the issue

laid to rest by this Court in

Knickerbocker. Where the delegation

abdicates to the states a power or

authority granted exclusively by the

Constitution to Congress, the Act is an

impermissible delegation of

non-deJegable power.

Congress alone has’ the power and

authority to regulate pay for military

service and to determine what

constitutes military service for which

compensation is required or payable.

United States Constitution, Article I,

section 8, Clauses 12, 13, 14, and 16;

United States v. Standard Oil, 332 U.S.

301 (1947) [holding personnel

affairs/pay subject exclusively to U.S.

regulations); Free v. Bland, 369 U.S.

663 (1962) {holding that federal law

and congressional enactments control

‘a

€

“

€

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the determination of the character of

retired pay as present earnings];

McCarty v. McCarty, 453 U.S. 210 at 232

1981). State courts may not redefine

/ military retired pay. Wissner Vv.

Wissner, 338 U.S. 655 (1950).

Petitioner is under contract for

services and is, therefore, an employee

of the United States Armed Forces,

continuing to serve the United States

Air Force as a non-commissioned officer

on retired reserve status. 5 U.S.C.

8311 (1) (c). His right to receive pay

or retired pay is estabtltshed by

federal statute. It is “pay" for

"employees", 5 U.S.C. 8311 (3), not an

annuity or deferred compensation, 5

U.S.C. 8311 (2). Bell v. United

States, 366 U.S. 393 (1961) [holding

that a soldier's entitlement to pay is

dependent upon a federal statutory

right]; Goodley v. United States, 441

F.2d 1175 (ay PS ap 1971); Costello v.

United States, 442 U.S. 929 (1979)

[stating "the contract seems to mean

that Stevens will receive the pay

authorized by statute from time to time

as he performs his service"], and is a

yearly appropriation by Congress in

consideration for his continuing

service and observance of restrictions.

United States v. Larionoff, 431 U.S.

864 (1977). Petitioner is under

numerous restrictions as a requisite of

receiving that pay, such as forfeiture

of pay upon employment subject to

"Supervision and control" of foreign

government; Hostinsky v. United States,

292 F.2d 508 (Ct.Cl. 1961). Other

restrictions include: (a) reductions in

pay if certain employment accepted (5

U.S.C. 5532); (b) forfeiture of pay for

certain crimes (5 U.S.C. 8312); (c)

forfeiture if employed by a= foreign

government (0.8. Const. Art. I, see. §

Ci. 8); (d) forfeiture of pay for

employment with defense work for

private firms within three years of

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retirement (37 U.S.C. BG} (id? (e)

recall involuntarily (10 U.S.C. 672,

688, 3504(a); (f) forfeiture if foreign

citizenship is, acquired (37 Comp.Gen.

207; 41 Comp.Gen. 715); (g) subject to

UCMJ.

Congress has determined that while

the military member is on an indefinite

service contract with this nation, he

will continue in the capacity of his

"retiring" rank unless he violates the

terms and conditions of his employment

contract with the United States Armed

Forces. Congress has expressly

retained the inactive duty member and

makes monthly (periodic) payments’ to

him in consideration for his continuing

(but reduced) service to the United

States Armed Forces. United States v.

Tyler, 105 U.S. 244 (1881);United

States _v. Morton, 112 U.S. 1 (1884);

United States v. Mills, i397 O.8Ss«.-223

(1904); Kahn v. Anderson, 255 U.S. 1

(1920); Leonard v. United States, 279

v.58. 40 (1928); Costello v. United

States, 587 F.2d 424 (9th Cir., 1978)

cert. den., 442 u.S. 929 (1979);

McCarty v. McCarty, supra; Lockhart

v. Mittlemann, 123) Pez) 703." tame Cie.

1941); Hooper v. Hartman, 163 F.Supp.

437, (S.D. Cals. 419586). aft*d- 274 ?.20

429 (9th Cir., 1959); Chambers vv.

Russel, 192 F.Supp. 425 (N.D. Cal.

1961); Hostinsky v. United States, 292

F.2d 508, 154 Ce.ci. 443 (1961);

Andrews v. United States, k?Ts GEsCl a

561 (1966); Watson v. Watson, 424

F.Supp. 866 (1976); Puglisi v. United

States, 564 F.2d 403 [StuCi« ae

cert. den. 435 U.S. 968 (1978). For

over one hundred years, the federal

courts have recognized and held that in

the absence of a retainer paid to the

military member on inactive duty

status, the United States would be

without right to subject the member to

(1) continuing obligations and

restrictions, or (2) recall to active

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duty, United States v. Tyler, supra.

This Court recently addressed a

corollary issue in Mansell v. Mansell,

No: 87-201, decided May 30, i989.

While the Court did not have the

opportunity to address the pivotal

issue of the very unconstitutionality

of the act itself, it did reiterate in

that decision that the courts of the

states may not go beyond the language

of the statute.

(2) The FSPA, if Constitutional

does not Permit the State of

washington to Recharacterize

a Retiree‘s Current Wages

as Deferred Compensation

Military retired pay is paid to

the military member as a "personal

entitlement" for personal services

rendered to the United States Armed

Forces. Lemly v. United States, 75

F.Supp. 248, 109 Ct.Cl. 760 (1948);

Wissner Vv. Wissner, supra, at 657

(1950); 10 U.S.C. 27713; McCarty v.

McCarty, Supra.

Petitioner herein states a federal

question, specifically, the definition

of federal payments made to _ federal

employees pursuant to federal

statutes. Title 10 of the United

States Code states that “pay” includes

basic pay, special pay, retainer pay,

incentive pay, retired pay and

equivalent pay. i0 U.S.C. 101(2?}).

The United States Internal Revenue Code

defines "pay" as "wages", and

specifically retired or retainer pay at

26 U.S.C. 61(a) (11). The FSPA, 10

U.S.C. 1408, does not redefine that

pay.

The question yet remains: is that

pay current compensation, as this Court

and the lower federal courts’ have

consistently held in the past, United

States v. Tyler, supra, and subsequent

cases previously cited, on. in. it

deferred compensation as the courts of

the State of Washington hold? In the

McCarty decision which precipitated the

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FSPA, this Court expressly declined to

rule whether a state could characterize

retired pay as deferred compensation.

Id. at 223.

Once an area of state law has been

completely preempted, any claim

purportedly based on that preempted

state law is considered, from its

inception, a federal claim, and

therefore arises under federal law.

Caterpillar v. Williams, 482 U.S. ’

96 L.Ed.2d 318 (1987)

Petitioner alleges that the FSPA,

should this Court determine that it is

Constitutional on its face, permits the

state courts to do one and only one

thing, specifically:

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

a payable to a member...

either as property solely of

the member or as_ property of

the member and his’~ spouse in

accordance with the law of the

urisdiction of such court. 10

‘ SC 1408 = [(c) (1) (Emphasis

added.)

State courts thus may apply state law

to the "thing" (retired/retainer pay),

as defined by federal law, not redefine

the "thing" in contravention of federal

law. Petitioner alleges that 10 U.S.C.

1408 purported to allow the states no

other latitudes.

Neither the Ninth Circuit nor this

Court has revised or amplified the

holding of the Ninth Circuit in

Costello, supra, that "retirement pay

does not differ from active duty pay in

its character as pav for continuing

military service". Id at 427. That

very definition is as alleged by

Peititioner, and is ignored by the

courts of the State of Washington.

The courts of the State of

Washington ignore Title 10 and Title 26

of the U.S.C., their own statutes,

Wash.Rev.Code Ann. 26.16.140 and

Wash.Rev.Code Ann. 6.15.020, (Appendix

K), and established and extensively

cited federal case law, by defining

military retired/retainer pay as a

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"pension", as "deferred" compensation.

See for example Marriage of Parks, 48

Wash.App. 166, 737 P.2d 1316 (1987).

This erroneous classification then

"Dermits" the courts of the State of

Washington, albeit in violation of

R.c.W. 6.15.020 and 29 U.S.C. 1003, and

29 U.S.C. 1002 (32) (Appendix J), to

divide this purported "property" in

dissolution of marriage actions.

The preemptive force of Title 10

and Title 26 of the United States Code

are so powerful as to displace entirely

any state action redefining the nature

or character of a federally originated,

defined and administered subject as the

United Stated Armed Forces or the pay,

entitlement or other regulation

thereof.

As this Court so correctly stated,

"{the] statutory language is straight-

forward: ‘A member of the Army [or Air

Force, or Marines, or Navy, under

corresponding statutes] retired under

this chapter is entitled to retired

pay...’ 10 U.S.C. 3929". McCarty,

supra, at 223. This Court went on

to say that:

At the least, then, the

ossibility that Congress

intended military retired pay

to be in part current

compensation for those risks

and restrictions suggests that

states must tread with caution

in this area, lest they disrupt

the federal scheme. (Citations

omitted) Id. at 223, €.nm. 16.

Thus, the sustaining of retainer

pay asa “personal entitlement" and the

"Current earnings" characterization is

crucial to federal goals and

objectives, United States v. Tyler,

supra; Costello Vv. United States,

Supra; ; McCarty v. McCarty, supra, 10

U.S.C. section 2771. Consequently,

state courts are preempted from

recharacterizing the pay as_ deferred

compensation, Florida Lime & Avocado

Growers, inGss: Vs Ble 373 BVsBs 132

(1963); Rice _v. Santa Fe _ Elevator

Corp., 331 U.S. 218 (1947).

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The State of Washington is thus

discriminating against military

retirees and Petitioner by this

classification, and thereby placing him

in involuntary servitude for the rest

of his lifetime, in repugnance to the

Thirteenth Amendment of the

Constitution of the United States.

(3) The FSPA, if Constitutional

is Unconstitutionally Applied

by Washington Courts, and

Discriminates against Petitioner

It is imperative to maintaining

the stability of the armed forces that

the consideration a member receives for

his service is uniform and does not

vary from state to state. The

unconstitutional effect is very

Simple. The Fourteenth Amendment of

the United States Constitution provides

and guarantees to Petitioner that "[n]lo

State... shall deprive any person of

life, liberty, or property, without due

process of law;...".

There is no property right in

military retired/retainer pay not: yet

earned. 10 U.S.C. 1408 is an

unconstitutional delegation of

authority by Congress to the states.

Even so, it states:

Notwithstanding any other

provision of law, this section

does not create any right,

title, or interest which can be

sold, assigned, transferred, or

otherwise disposed of (including

by inheritance) by a spouse or

former spouse. 10 U.S.C. 1408

Indeed, the enabling provision of that

statute is extremely limited in scope.

It states:

Subject to the limitations of

this section, a court may treat

disposable retired or retainer

pay payable to a member...

either as the property of the

member or aS property of the

member and his spouse in

accordance with the § law of the

urisdiction of such court. 10

Osc 1408 = =(c) (1) (Emphasis

added).

That section only purports to allow the

state courts to consider disposable

income, not the gross’ income. It

further defines it as pay, and only

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allows the state courts to consider

that pay payable. It further only

allows the state courts to consider

that pay payable as property of the

member or his spouse. It further only

allows the state courts to so consider

such disposable pay payable to a member

and/or his spouse in accordance with

the laws of the state. Disposable is

defined as the gross income, less taxes

required to be withheld, less’ FICA,

less union dues, if any, by Washington

law, and is’ further defined within 10

U.S.C. Pay is defined as _ wages,

remuneration for services. Payable is

defined as that which is due and owing,

which can be demanded. Spouse is

defined as one's marital partner, not

one's former marital partner.

The laws of the State of

Washington prohibit the division of

one's future wages. R.C.W. 26.16.140.

Even though the courts may consider and

divide all "property", whether

community or separate, and "while under

certain circumstances {a court may]

award part or all of one spouse's

separate property to the other, the

situations which warrant such action

are exceptional". Moore v. Moore, 9

Wash. App. 951, 515 P.2d 1309 (1973).

Unearned future income is not, however,

property. 10 U.S.C. 1408 purports to

permit the courts to treat that pay

payable at the time of dissolution, and

nothing more. 10 U.S.C. 1408 was

enacted in an attempt to overcome the

federal preemption, albeit,

unconstitutional, and nothing more, and

by its own terms made no redefinition,

nor created any rights that did not

already exist.

The FSPA (i190 ¥8.8.C. 1408 (c) (1))

states that the state courts may

consider retired/retainer pay payable

either as property of the member or

member and his/her spouse, in

accordance with the laws of that state.

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It does not say that the state courts

shall divide military pensions,

regardless of when payable, in spite of

the laws of the state. It does not say

that because the Petitioner is a

military retiree, the State can ignore

the plain language of the federal law

and case law, and nevertheless,

arbitrarily reclassify this "pay" to

"deferred compensation", so to do an

end run around one statute, R.C.W.

26.16.140, and then ignore R.C.W.

6.15.020.

Federal statutes are to be

construed to achieve uniform result

throughout the nation. Reconstruction

Finance Corporation v. Beaver County,

328 U.S. 204, 209 (1946). Congress

legislates with full awareness of the

cannons of statutory construction.

LOrillard v. Pons, 434 U.S. 575, 580

(1978); Cary v. Curtis, 44 U.S. 236,

240 (1845). The case at bar is ripe

for review. The issue is an important

one. This Court is empowered with

authority to issue declaratory relief,

to give a definition to allow for

uniform results. If this Court finds

that the FSPA is Constitutional on its

face, the uniformity sought iS a

declaration as to the character of

military retired/retainer pay, either

aS pay, as Petitioner contends, or as a

pension, as the State of Washington

contends, to permit all states then to

apply that same characterization under

the law of the jurisdiction.

CONCLUSION

Congress alone has the power to

provide and maintain the armed forces

and to make rules and regulations

therefore. U.S. Constitution, Article

I, sec. S, Ciss id, 13 and 14.

Congress has defined military

retired/retainer pay. 10 U.S.C.

101(27). Congress' enactment of the

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FSPA, 10 U.S.C. 1408, is

unconstitutional as an impermissible

delegation of exclusive congressional

authority and responsibility. Even

should this Court find it to be

constitutional on its face, it is

unconstitutionally applied to

Petitioner herein.

The FSPA did not redefine military

retired/retainer pay. The State of

Washington has done so. 8y so doing,

the courts of the State of Washington

discriminate against the Petitioner

herein by placing him in a state of

involuntary servitude, repugnant to the

Thirteenth Amendment to the

Constitution of the United States.

Petitioner respectfully prays that

a Writ of Certiorari issue to _ the

Supreme Court of the State of

Washington, anda ruling that 10 U.S.C.

1408 is unconstitutional, or in the

alternative, that the courts of the

State of Washington are _ bound by the

clear language of the statute, and are

not now, and have never been free to

redefine or recharacterize the nature

of the compensation paid to employees

of the United States Armed Forces on

the retired reserve rolls.

Respectfully submitted this 1st

day of August, 1989.

BENJAMIN & PERREY, P,S.

Attoriuey for Petitioner

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APPENDIX A

REED, SAMUEL, REMY & BRODIE

Attorneys at Law

717 K Street, Suite 405

Sacramento, California 95814

(916) 446-5266

Attorney(s) for Petitioner

ENDORSED: July 30, 1979

J.A. SIMPSON, CLERK

By L. STEPHENS, Deputy

SUPERIOR COURT OF CALIFORNIA,

“COUNTY OF SACRAMENTO

In re the marriage of

Petitioner: HELEN C. HADLEY

and

Respondent: EDGAR H. HADLEY

STIPULATED INTERLOCUTORY JUDGMENT

OF DISSOLUTION OF MARRIAGE

Fresno County No. 278267-0

CASE NUMBER 728307

This proceeding was on 7-12-79

(Date)

before the Honorable HORACE E.

CECCHETTINI

Department No. i °

The court acquired jurisdicition

of the respondent on August 10, 1977

by:

Service of process on that date,

respondent not having appeared within

the time permitted by law.

__X_ Service of process on that date and

respondent having appeared.

Respondent on that date having

appeared.

The court orders that an

interlocutory judgment be entered

declaring that the parties are entitled

to have their marriage dissolved. This

interlocutory judgment does not

constitute a final dissolution of

marriage and the parties are still

married and will be, and neither party

may remarry, until a final judgment of

dissolution is entered.

The court also orders that, unless

both parties file their consent to a

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dismissal of this proceeding, a final

judgment of dissolution be entered upon

proper application of either party or

on the court's own motion after the

expiration of at least six months from

the date the court acquired

_jurisdiction of the respondent. The

final judgment shall include such other

an further relief as may be necessary

to a complete disposition of this

proceeding. but entry of the final

judgment shall not deprive this court

of its jurisdiction over any matter

expressly reserved to it in this or the

final judgment until a final

disposition is made of each such

matter.

THE CCURT ALSO ORDERS:

(See Attached)

Form Adopted by Rule 1287 of Judicial

Veer of California Effective January

i, 1376

INTERLOCUTORY JUDGMENT OF DISSOLUTION

OF MARRIAGE

STIPULATED INTERLOCUTORY JUDGMENT

Page Two

(Irrelevant Sections Excluded)

DIVISION OF COMMUNITY PROPERTY

Respondent shall pay to

Petitioner the sum of $3,500.00

as and for her community interest

in the residence of the parties.

Petitioner shall execute a Quit

Claim Deed to such a premises to

Respondent upon receipt of such

payment. If such payment is not

made to Petitioner within 60 days

of notice to Respondent of the

entry of this judgment,

Petitioner may apply and the

Court shall order a sale of the

premises and payment to

Petitioner.

(1) Respondent shall pay to

Petitioner a sum equal to

three-sevenths (3/7) of all

amounts he receives monthly as

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and for his military retirement

pay. Such fraction shall remain

constant so that Petitioner will

receive the benefit of any

increases in retirement benefits

payable to Respondent.

Respondent shall notify

Petitioner the amount of any

future increases in military

retirement benefits within thirty

(30) days from his notification

of such increases. Such payments

shal] commence the month next

following entry of this judgment

and shall be mailed or otherwise

made by the fifteenth day of each

month. Petitioner shall pay

taxes on the monies received by

her pursuant to this paragraph.

(2) In full payment of her share

of military retirement benefits

received by Respondent since the

date of separation, Petitioner

agrees to accept, and Respondent

agrees to pay to Petitioner the

Sum of two thousand seven hundred

dollars ($2,700.00). Such sum

Shall be payable upon notice to

Respondent of entry of this

judgment.

(3) The parties shall retain as

their sole and separate property

any other property not mentioned

herein which is currently in the

possession or under’ the control

of either of them.

The parties hereby acknowledge

that the foregoing division of

community property is

substantially equal.

SPOUSAL SUPPORT

The court reserves jurisdiction

in the matter of spousal support

for Petitioner, Helen C. Hadley,

for a period of two years from

the date of this judgment, with

€

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the understanding and provision

that no charge or granting of

spousal Support will be made

unless Petitioner, Helen C.

Hadley, can show a change in

circumstances necessitating

spousal support and can prove

that she has attempted to become

self-supporting, has worked

whenever possible, or has

education or training to provide

her with minimum skills with

which to become gainfully

employed. Petitioner

acknowledges that after said two

year period she may not at any

time receive spousal support from

Respondent.

ATTORNEY FEES AND COURT COSTS

Each party shall be responsible

for and shall pay his or her own

attorney fees and costs of court.

6. WAIVER; REQUEST

A. Each party hereto waives findings

of fact, conclusions of law and

right to appeal herein.

B. The parties agre that Petitioner

may proceed to judgment herein as

if by default.

/s/ /s/

HELEN C. HADLEY EDGAR H. HADLEY

Petitioner ~- Respondent

/s/ /s/ =

JAMES S. REED GARY J. GAINER

Attorney for Attorney for

Petitioner Respondent

DATE:

IT IS SO ORDERED:

DATE: July 20, 1979

HORACE E. CECCHETTINI

JUDGE OF THE SUPERIOR

COURT

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APPENDIX B

ATTORNEY OR PARTY TELEPHONE NO.

WITHOUT ATTORNEY

(NAME AND ADDRESS: )

JAMES S. REED (916) 446-5266

REED, SAMUEL & REMY

717 K Street, Suite 405

Sacramento, California 95814

ATTORNEY FOR (NAME) :

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SACRAMENTO

STREET ADDRESS: 720 Ninth Street

MAILING ADDRESS: same

CITY AND ZIP CODE: Sacramento,

California 95814

BRANCH NAME:

MARRIAGE OF HADLEY

PETITIONER: HELEN C. HADLEY

RESPONDENT: EDGAR H. HADLEY

FINAL JUDGMENT OF

XX DISSOLUTION OF MARRIAGE

__ LEGAL SEPARATION

NULLITY

FOR COURT USE ONLY

FILED February 27, 1980

J.A. Simpson, Clerk

By G. Shackelford, Deputy

Case Number: 728307

B-1

The court acquired jurisdiction

of the respondent on (date):

8-10-77

THE COURT ORDERS

Re XX A final judgment of

disolution be entered, and the

parties are restored to the

status of unmarried persons.

b. A judgment of legal

separation be entered.

Cc. _— A judgment of nullity be

entered on the ground of

(specify):

and the parties are declared to

be unmarried persons.

_ THE COURT FURTHER ORDERS

a. This jugment be enterd

nunc pro tunc as of (date):

b. Wife's former name be

restored (specify):

es Other:

Total number of pages attached:

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ATTEST:

J.-A. SIMPSON, CLERK

By: G. SHACKELFORD, CLERK

APR 05 1983

No attachment permitted on less than a

full page. Cal Rules of Ct 201(b)

Form Adopted by Rule 1289

Judicial Council of California

Revised January 1, 1980

FINAL JUDGMENT

(FAMILY LAW)

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APPENDIX C

IN THE SUPERIOR COURT OF THE STATE

OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

HELEN C. HADLEY

Plaintiff,

MEMORANDUM OPINION

VS e

EDGAR H. HADLEY, 82-2-01660-2

and EDGAR H.

HADLEY and MARY

HADLEY, as hus-

band and wife,

)

individually; ) 87-2-00245-9

)

Defendants. )

)

Defendant Edgar Hadley and

Plaintiff Helen Hadley were married in

October of 1950. Mr. Hadley was then

in the Air Force. The married couple

had children who are now grown. In

1974, the couple became Washington

residents. They separated in 1976, and

plaintiff moved to California, where

she has resided ever since. She began

divorce proceedings there in 1977.

Also in 1977, the defendant’ retired

from the Air Force and has been drawing

military retirement since that time.

The defendant, who still resided

in Washington, ultimately agreed to a

stipulated Interlocutory Decree of

Divorce in Sacramento, California, on

July 30, 1979, which provided for child

custody, a division of community

property, no spousal maintenance

support, and a requirement that each

pay his or her own debts and attorney's

fees. This interim decree, with

respect to the division of community

property, specified:

"2. DIVISION OF COMMUNITY

PROPERTY >

B. (1) Respondent (Defendant)

shall pay to Petitioner

(Plaintiff) a sum equal to

three-sevenths (3/7) of all

amounts he receives monthly as

and for his military

retirement pay. Such fraction

shall remain constant so that

Petitioner (Plaintiff) will

receive the benefit of any

increases in retirement

benefits payable to Respondent

(Defendant). Respondent

(Defendant) shall notify

Petitioner (Plaintiff) the

amount of any future increases

in military retirement

benefits within thirty (30)

days from his notification of

such increases. Such payments

shall commence the month

sas ae eas

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next following entry of this

judgment and shall be mailed

or otherwise made by the

fifteenth day of each month.

Petitioner (Plaintiff) shall

pay taxes on the monies

received by her pursuant to

this paragraph." (parentheses

supplied.)

Defendant did not pay these

three-sevenths portion of retirement

payments immediately, and apparently

the plaintiff inquired of him with

respect to this, and he responded that

he did not think that the obligation

began until the final decree was

entered, although he did send _ some

child support during this time. The

final judgment of dissolution was

entered February 27, 1980, and this

judgment incorporated all the

provisions of the Interlocutory Decree.

The defendant then began paying

the three-sevenths of his military

retirement pay as it was received.

This amount excluded withholding for

income tax.

In April 1980, the defendant

remarried his present wife, Mary

Hadley. In August 1981, after the

United States Supreme Court decision in

McCarty v. McCarty, 453 US 210 (1981),

and after conferring with his attorney,

the defendant ceased paying any of the

retirement to his former wife, the

plaintiff, as required by the decree.

He did not seek any court authorization

for this action. The defendant

continually resided here in the state

of Washington. In 1982, the defendant

and his present wife moved to the state

of Mississippi.

Plaintiff attempted to sue the

defendant in Fresno County, California,

for the failure to pay the retirement

pursuant to the divorce decree and also

attempted to have some action taken in

the state of Washington. She

apparently learned of the defendant's

whereabouts in Mississippi sometime

later, but none of this action was

successful. She testifies she simply

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did not have the money.

In June 1983, the plaintiff was

able to have the retirement payments

resumed by contacting the Air Force

Financial and Accounting Center in

Colorado directly, pursuant to the

provisions of the Federal Uniformed

Services Former Spouse's Protection Act

(10 USC Sec. 1408). The defendant had

nothing to do with this procedure.

In September of 1984, the

defendant and his present wife returned

to the state of Washington and have

resided here in Spokane ever since.

In December of 1984, the defendant

apparently made claim with the Veterans

Administration for a hearing loss and

was granted a disability pension,

effective January 1985, in the amount

Of $122 per month. This has reduced

his military retirement in the same

amount; thus plaintiff has received a

proportionately less sum as her share

of the military retirement.

‘?)

In addition, the evidence’ shows

over the years’ that the defendant has

adjusted the amount of exemptions

Claimed for income tax purposes, and

this likewise has affected the total

amount of withholding and the resulting

retirement that both he and his former

wife, the plaintiff, have received.

The defendant has collected income tax

refunds partly as a result of this

utilization of varying claims of

exemptions. The plaintiff herself has

tried to adjust her tax returns with

respect to what apparently the

defendant had been receiving as

military retirement pay, to the best of

her information, and likewise has

apparently received income tax refunds

On occasions.

In June 1986, the plaintiff filed

a certified copy of the Stipulated

Interlocutory Judgment here in the

Spokane County Superior Court, and in

consolidated actions, asks this court

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for a clarification as well as

modification of this California decree,

with respect to retirement as well as

disability pay, for damages, for

specific performance, for contempt, for

a writ of assistance, and attorney's

fees.

Recovery is requested against both

the defendant, individually, and

against the marital community of the

defendant and Mrs. Mary Hadley.

The defendants assert laches and

the provisions of RCW 26.16.200.

With respect to laches, the Court

finds that the evidence simply does not

justify its application in this case.

The evidence shows’ that the plaintiff

has exercised diligent effort to locate

her former husband and to try to

enforce the provisions of this divorce

decree, but without success. She seems

to have done all that was required of

her in this regard, and thus there is

no laches.

Oo?

The defendants argue that

provisions of RCW 26.16.200 bars

plaintiff's claims. With respect to

this statute, by its title, the law

deals with both antenuptial as well as

separate debts, and the basic thrust of

the law is that neither spouse is

liable for the separate debts of

either, whether they be antenuptial or

during the marriage, nor is the

community property liable therefor. By

an amendment in 1969, the earnings and

accumulations of a spouse are available

for the satisfaction of debts incurred

prior to marriage, but no separate

debt, except one for child support or

maintenance obligation, may be enforced

against the earnings and accumulations

of either spouse unless’' reduced to

judgment within three years of the new

marriage.

Plaintiff argues that the statute

has no application because the failure

of the defendant to pay the plaintiff

‘

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her share of the military retirement

tort, committed during

the course of the present mar

his wife, citing authority. The

argument is not persuasive.

The essence of plaintiff's claim

is for recovery of unpaid installments

ordered by the divorce decree and is

not in the nature of a tort. [It is to

enforce the provisions of the

California judgment. In Porter v.

MacLeod, 15 Wn.App. 650, 553 P.2d 117

(1976), the court dealt with the claim

of a present wife to an _ ownership

interest in an insurance policy on her

husband's life, the premiums for which

were required to be paid pursuant to an

earlier divorce decree, for the benefit

of a’ minor child. The husband made

such payments during the current

marriage. In denying the present

wife's claim, the court characterized

the husband's’ obligation as that of an

"encumbered spouse" when he entered the

cl ele el eel el el el el el el el el el ee ee el el el ee ee et ot tt

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present marriage, Porter 653, and that

the monies from the present marriage

used to pay the premiums on the policy

were used,

". . . to pay an antenuptial

debt which her husband brought

into the marriage. RCW

26.16.200. . ."

Porter 654. The failure to pay the

plaintiff's three-sevenths of the

military retirement gives rise to no

more than a right to collect on a debt,

not a tort, and this suit is

essentially one to collect that debt.

Such an analogy applies here.

Plaintiff argues that the law of

the state of California, not

Washington, should apply and that under

California law, the defendant,

individually, and the defendant's

community as well are liable and that

no statute of limitations, such as RCW

26.16.200, would apply. Plaintiff

cites Gamble Robinson Company v. Lapp,

95 Wn.2d 341 (1980), and Pacific States

'?)

aA of

isn es fe fe fe fe eeestesessshs.h:sh:shmelhUmeh hc he ce cS ee ee ee ee ee eee ee ee

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Oe Oa Ua Ur Uk Ge Ge Ge Ge Ge Ge Ge Oe Oe Oe Oe Oe Oe OO Oe Oe On OE Oe OF 08 On U8 Oe On OBER OBOE RE Re Ree eee,

Cutstone Company v. Goble, 70 Wn.2d 7

(1967). These cases are inapplicable.

At all times in this case, the

defendant and his wife had no residence

in California, but were either

residents of Washington or Mississippi.

The defendant Edgar Hadley never went

to California personally nor _ resided

there during the times in question, and

his only connection with the state of

California was simply to stipulate to a

divorce decree there through his

attorney while he was a Washington

resident. The defendant community had

absolutely no connection with the state

of California under the evidence in

this case. All of the payments in

question here were contemplated as

coming from the defendant as a

Washington resident.

In cases such as this, in which

the creditor is seeking to enforce a

foreign judgment, the law of the fcrcum

applies with respect to the remedy and

such things as_ the application of a

statute of limitations or other similar

bar to the claim. As stated in

Colorado National Bank _v. Merlino, 35

Wn.App. 610, 668 P.2d 1304 (1983), at

621, it reads:

"The (foreign) default

judgment is entitled to full

faith and credit, and is

endorceable to the extent

allowed under Washington law."

(parentheses supplied.)

RCW 6.36.025, as pertinent here,

provides:

"A judgment so-_ filed has the

same effect and is subject to

the same procedures, defenses,

set-offs, counterclaims,

cross-complaints, and

proceedings for reopening,

vacating, Or staying aS a

judgment of a superior court

of this state and may be

enforced or satisfied in like

manner."

16 Am Jur 2d 185, Conflict of Laws,

Sec. 118, reads:

"Matters of procedure, Or, as

sometimes stated, remedies or

remedial rights, are governed

by the law of the forum, that

is, the law of the place where

relief is sought, without

regard to domicile of either

the plaintiff Or the

defendant, or of the _ law of

the state or country in which

the wrong was committed or the

C-12

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contract was made or breached."

47 Am Jur 2d 60, Judgments, Sec. 953,

reads:

"AS a general rule, a plea of

the statute of limitations in

an action on a foreign

judgment is regarded as one

pertaining to the remedy, so

that in the absence of a

statutory provision to the

contrary, the law of the

forum, rather than that of the

place where the judgment was

rendered, will govern in this

respect."

The result is that plaintiff's

Claim for recovery here must be denied.

As regards any amounts) allegedly not

paid during the interim from August

1979, the date of the Interlocutory

Decree, to February 1980, the date of

the final judgment, the evidence showed

that this failure to pay was apparently

the result of the intent of the parties

that the plaintiff was to obtain the

final judgment immediately and the

defendant was then to begin his

payments from that time on.

Additionally, any such delinquency has

long since been barred by the

C=-i2

applicable statute of limitations.

As regards the failure to pay

during this basic period from August

1981 to June 1983, the provisions of

RCW 26.16.200 apply, and plaintiff's

claims as to these amounts must _ be

denied.

The Court declines the request of

the plaintiff to clarify or modify the

California divorce decree with respect

to the subject of gross distributable

amount versus disposable amount of

retirement pay as well as the apparent

claim that this Court should divide the

disability pay being received by the

defendant.

It is to be noted that the

language of the California decree was

negotiated by plaintiff through her

attorney, and no request has ever been

made of the California court to take

this type of action. The Washington

court seems very definitely to be an

inappropriate forum for the purpose of

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Clarifying or modifying in any way the

provision of such a California decree,

and this Court is not disposed to enter

this thicket.

Each party will be responsible for

his or her own attorney's fees.

Findings of fact, conclusions of

law, and judgment may be entered in

accordance with this opinion.

DATED at Spokane this ist-day of

April, 1987.

WILLIAM J. GRANT _

J UD E

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

In Re the Marriage of: .

HELEN C. HADLEY, ‘

Petiticner, COURT'S me

MEMORANDUM

OPINION ON

THE APPLICA-

BILITY OF RCW

26.16.200 TO

THE ISSUE OF

)

and )

)

) WHETHER JUDG-

)

EDGAR H. HADLEY,

Respondent,

HELEN C. HADLEY,

Plaintiff,

MENT AGAINST

DEFENDANT

EDGAR H. HAD-

and LEY, INDIVID-

UALLY, IS

EDGAR H. HADLEY and APPROPRIATE

MARY HADLEY, individ-

ually, and as husband NO.

and wife, 82-2-01660-2

Defendants.

After reading and rereading the

language of this statute, it is the

opinion of the Court that the statute

is generally directed toward a

limitation of the right to recover ona

separate debt against the community

earnings and accumulations of either

the husband and wife. Though the

language of the statute is susceptible

row aWatTatarTarTarTaTaTaTaTaTaTaTaTaTaT:sT.TaA Ta TA Ta TaTaTeaTaTaATATaATA TA Ta Te 2a wa ve we va Te we we we ne we

I SST IST SSS IF

of more than one interpretation, it

does not Clearly appear to be an

absolute bar to recovery against the

husband in this case in his separate

capacity.

The Court therefore concludes that

plaintiff is entitled to judgment

against the defendant, Edgar Hadley, in

his separate capacity but not against

him or the existing marital community,

nor against iis earnings or

accumulations.

The judgment should be for the

amount of unpaid retirement due the

plaintiff during the period when the

defendant, husband, ceased making

payments, namely, from 1981 to 1983,

plus statutory interest.

If Mr. Benjamin has objection to

this decision, he shall have a period

of two working days following receipt

of this opinion within which to file

any written response. The Court will

consider any such written response and

; Ci?

notify counsel if there is any change

in the conclusions reached herein. If

there is no change, Mr. Stier may

submit an appropriate revision to the

conclusions of law and judgment to be

incorporated with the currently

proposed findings, etcetera, for

signature by the Court. Should the

court conclude that there is no basis

for the entry of judgment against the

defendant, Edgar Hadley, individually,

Mr. Benjamin's proposed findings of

fact, conclusions of law, and judgment

will be signed and entered as they are

now proposed.

DATED at Spokane this 18th day of

May, 1987.

WILLIAM J. GRANT

JUDGE

‘)

BRR ERR RRR REE

YEOUUOUOUUVUUYUNUUVUYNOEUGCUUOOUYUOUUYUYUUUYYONON

APPENDIX D

IN THE SUPERIOR COURT OF THE STATE

OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

HELEN C. HADLEY

Plaintiff,

82-2-01660-2 and

vs. 87-2-00245-9

EDGAR H. HADLEY,

and EDGAR H. CONCLUSIONS OF LAW

HADLEY and MARY AND JUDGMENT

HADLEY, as hus-

band and wife,

)

individually; ) FINDINGS OF FACT,

)

Defendants. )

)

THIS MATTER having come on before

this Court for trial on March 26, 1987,

and being subject to a decision upon

reconsideration rendered May 13, 1987;

the Defendant/Respondent being

represented by GARY H. BENJAMIN of

BENJAMIN & PERREY, P.S.; the Plaintiff/

Petitioner being represented by JEFFREY

D. STIER of TAFT, RIELLY & MACKIN,

P.S.; said actions by order of the

Court dated March 9, 1987; the Court

having heard the testimony of all the

parties and argument of counsel, and

being otherwise fully advised in the

premises, does make the following:

FINDINGS OF FACT

That the Court has jurisdiction

over all parties to this action.

; Il.

That EDGAR H. HADLEY and HELEN C.

HADLEY were married in October, 1950,

while Mr. Hadley was in the United

States Air Force. They became

residents of the State of Washington in

1974. In 1976, a Separation occurred

and HELEN C. HADLEY did move to the

State of California where she _ has

resided continually ever since. HELEN

C. HADLEY ultimately commenced divorce

proceedings in California in 1977 and

EDGAR H. HADLEY did voluntarily submit

himself to the jurisdiction of the

California court. An interlocutory

decree was entered in California on

July 30, 1979, which became a final

judgment of divorce by action of the

Soy

oh heh ababale

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court on February 27, 1980. Both

parties were represented by counsel

during the negotiation of the final

settlement of the divorce proceedings

and the interlocutory decree was

stipulated to by both parties.

iy ee

EDGAR H. HADLEY did remain a

resident of the State of Washington

from 1974 until the Spring of 1982,

when he moved to the State of

iississippi with his new wife, MARY

HADLEY. EDGAR H. HADLEY and MARY

HADLEY were married in April, 1980, and

have been so married ever since. EDGAR

H. HADLEY and MARY HADLEY did remain in

the State of Mississippi until they

moved back to the State of Washington

in the Spring of 1984. EDGAR H. HADLEY

and MARY HADLEY have remained

continuously in the State of Washington

ever since. EDGAR H. HADLEY was a

resident of the State of Mississippi

with the intent to remain a resident

thereof during the period of time that

he remained in that state.

IV.

That the interlocutory decree

between EDGAR H. HADLEY and HELEN C.

HADLEY provided for child support and

custody, a division of community

property, spousal maintenance, division

of debts and attorney's fees. The

final decree incorporated all

provisions of the interlocutory decree,

and provided in pertinent part:

2. DIVISION OF COMMUNITY

PROPERTY.

B. (1). Respondent

(Defendant) shall pay to

Petitioner (Plaintiff) a

sum equal to

three-sevenths (3/7) of

all amounts he receives

monthly as and for his

military retirement pay.

Such fraction shal]

remain constant so that

Petitioner (Plaintiff)

will receive the benefit

of of [sic] any increases

in retirement benefits

payable to Respondent

(Defendant)... Such

payments shall commence

the month next following

the entry of this

judgment and shall be

mailed or otherwise made

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by by [sic] the 15th day

each month.

Petitioner (Plaintiff)

shall pay taxes on the

monies received by her

pursuant to this

paragraph. (Bracketed

material added).

That Mr. Hadley did not pay the

portion of the military retirement

to HELEN C. HADLEY immediately and

failed to do so until the month

following entry of the final decree.

Court finds by the testimony that

was the intent of the parties that

HELEN C. HADLEY was to obtain a final

judgment immediately and that EDGAR H.

HADLEY was to commence payments

thereafter; that HELEN C. HADLEY did

in fact, immediately enter the

judgment and that once _ final

judgment was entered, EDGAR H. HADLEY

begin payment in compliance with

decree, excluding those sums

withheld for Federal income tax.

VI.

EDGAR H. HADLEY did cease paying

any portion of his military retirement

pay to HELEN C. HADLEY commencing

August, 1981, after conferring with

counsel regarding the effect of the

United States Supreme Court decision in

McCarty v. McCarty, 553 [sic] U.S. 210

(1981). EDGAR H. HADLEY did not seek

any Court authorization to cease his

payments of the military retirement

pay.

Vil.

In June, 1983, HELEN C. HADLEY was

able to obtain resumption of payment of

the Fe portion of the retirement

monies pursuant to the provisions of

the newly enacted Federal Uniform

Services Former Spouses Protection Act

(10 U.S.C. 1408), and has received such

payments continually since. EDGAR H.

HADLEY had nothing to do with the

resumption of payments. The payments

from June, 1983, and thereafter, were

‘

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in the amount of 3/7 of the net

disposable retirement portion of EDGAR

H. HADLEY after deduction of taxes

withheld from the same.

VIII.

That in 1984, EDGAR H. HADLEY did

seek medical attention through the

Veterans Administration which resulted

in the award of a disability pension

effective with payments beginning in

January, 1985. Such payments) did

reduce the amount of military retired

pay dollar-for-dollar, resulting ina

reduction in HELEN C. HADLEY's

allocation of 3/7 of the military

retirement pay.

IX.

HELEN C. HADLEY did unsuccessfully

attempt to bring contempt of court

proceedings against EDGAR H. HADLEY in

Fresno County, California in 1982.

HELEN C. HADLEY did also bring an

action in Washington in 1982, but was

unable to obtain service upon EDGAR H.

HADLEY in either proceeding. HELEN C.

HADLEY was aware of EDGAR H. HADLEY's

whereabouts in the State of Mississippi

while he resided there, but she did not

attempt to pursue the matter there,

apparently for lack of funds.

The total military retirement

monies from August 1981 through June,

1983, were used by EDGAR H. HADLEY for

the purposes of his present community.

EDGAR H. HADLEY has not brought

evidence before this Court

satisfactorily tracing the use of those

monies to any separate expenses or

enterprises.

XI.

EDGAR H. HADLEY has readjusted the

amount of withholding by claiming less

exemptions on several occasions over

the years, which has resulted in some

fluctuation of the corresponding

amounts paid to HELEN C. HADLEY. This

Court makes no finding as to _ the

—

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appropriateness of either party's tax

filings.

XII.

That in June, 1986, HELEN C.

HADLEY did file a certified copy of the

Stipulated interlocutory judgment and

the final judgment of divorce as

obtained as hereinbefore mentioned in

Spokane County, seeking clarification

and modification as to the military

retired pay and disability pay, and

seeking damages, specific performance,

contempt, a writ of assistance, and

attorney's fees therein.

BASED UPON the foregoing FINDINGS

OF FACT, this Court does hereby enter

the following

CONCLUSIONS OF LAW

The Court has jurisdiction over

the parties and the subject matter of

this action.

II.

That this action does not sound in

tort, but is in the nature of the

collection of an alleged debt in the

enforcement of a foreign judgment.

III.

The McCarty decision did not

relieve EDGAR H. HADLEY from his

prospective obligation to pay the

monthly 3/7 portion of his military

retirement pay to the Plaintiff without

any attempt to modify or amend the

Decree of Dissolution of Marriage.

IV.

That Washington law applies to

this enforcement proceeding as the law

of the forum where an enforcement is

sought pursuant to RCW 6.36.025; 47

Am.Jur. 2d 60, Judgments, Paragraph

953; 47 Am.Jur. 2d 185, Conflicts of

Law, Section 118; Colorado National

Bank _v. Merlino, 35 WA App. 610, 621

(1983).

That RCW 26.16.200 and the intent

of the party's original contract and

D- 10

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the stipulated interlocutory decree

bars Plaintiff's claim against the

community of EDGAR H. HADLEY and MARY

HADLEY for the period of non-payment of

military retirement pay to the

Plaintiff by EDGAR H. HADLEY.

VI.

That EDGAR H. HADLEY entered into

his present marriage to MARY HADLEY as

an encumbered spouse as defined in

Porter v. MacLeod, 15 WA App. 650

(1976), and that the claims herein sued

for are antenupital debts brought into

the present marriage of Mr. Hadley and

that the present community of the

Defendants has absolutely no liability

in this action.

Vil.

That RCW 26.16.200 and the intent

of- the party's original contract and

the stipulated interlocutory decree

bars Plaintiff's claim for the period

of August 1979 to February 1980.

VIII.

rar ar a ak oh otal

That the separate estate of EDGAR

H. HADLEY should be liable for judgment

in the amount of $11,452.00 in behalf

of Plaintiff, representing unpaid

installments of military retirement pay

accruing from April, 1981, through May,

1983. Said judgment should bear

interest at the statutory rate against

each unpaid installment of the

obligation.

IX.

Plaintiff/Petitioner should have

her claim for damages caused alleging

manipulation of the amount of

disposable pay denied.

That, as the decree as originally

entered, is not ambiguous and reflects

the intent of the parties, said decree

should not be modified or otherwise

altered by this court. Specifically,

the Court should not clarify said

decree to delineate the number of

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exemptions Respondent should claim as

affecting his disposable retirement

pay, nor should the Court consider

Slairifying or amending the decree to

vest Plaintiff/Petitioner with a 3/7

share of Respondent's disability pay.

XI.

That Plaintiff's claim was brought

in good faith and is thereby not

frivolous.

XII.

That Defendant's acts and actions

were done in good faith and he is

thereby not in contempt of court.

RAahs

That the bar of Plaintiff's claim

for clarification or modification

renders specific performance or writ of

assistance moot and they thereby are

denied.

XIV.

That the Plaintiff's claim for

unjust enrichment against the community

of EDGAR H. HADLEY and MARY HADLEY is

barred by the three year. statute of

limitations.

XV.

That each party should bear their

own attorney's fees and costs in the

present action.

DATED this 20 day of August, 1987.

WILLIAM J. GRANT

JUDGE

JUDGMENT

THIS COURT, having entered its

Findings of Fact and Conclusions of Law

herein and being otherwise fully

advised in the premises, does hereby

ORDER, ADJUDGE AND DECREE as follows:

1. All of Petitioner/Plaintiff's

claims against the community of EDGAR

H. HADLEY and MARY HADLEY hereby are

denied in all respects and she should

take nothing thereby;

Re Plaintiff/Petitioner is hereby

granted a judgment against EDGAR H.

HADLEY, individually, in the amount of

$11,452.00 and interest accrued upon

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that sum at the statutory rate from the

date of each unpaid installment accrued

between August, 1981 and May, 1983;

3. All other claims of

Petitioner/Plaintiff against EDGAR H.

HADLEY are hereby denied in all

respects and she. should take nothing

thereby;

4. Respondent's/Defendant's

counterclaim herein are denied and he

should take nothing thereby;

5. Each party should bear their

own costs and attorney's fees in this

matter.

DONE IN OPEN COURT this 20 day

of August, 1987. ene

WILLIAM J. GRANT

William J. Grant, Judge

Presented by:

/s/

Jetfrey D. Stier

Attorney for Petitioner/Plaintiff

Copy received; Notice of

Presentment waived:

By:/s/

° MI

Attorney for Respondent/Defendant

IN THE SUPERIOR COURT OF THE STATE

OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

HELEN C. HADLEY )

Plaintiff, )

) 82-2-01660-2 and

vs. ) 87-2-00245-9

EDGAR H. HADLEY, )

individually; ) ADDENDUM TO

and EDGAR H. ) FINDINGS OF FACT,

HADLEY and MARY ) CONCLUSIONS OF LAW

HADLEY, as hus- ) AND JUDGMENT

band and wife, )

Defendants. )

)

THIS MATTER having come regularly

before this Court for trial on March

26, 1987, and being subject to a

decision upon reconsideration rendered

May 13, 1987, the Petitioner/Plaintiff

being represented by JEFFREY D. STIER

of TAFT, REILLY & MACKIN, P.S., and

Respondent/Defendants being represent

by GARY H. BENJAMIN of BENJAMIN &

PERREY, P.S., said actions being heard

together after consolidation of those

actions by order of the Court dated

March 9, 1987, the Court having heard

the testimony of all parties and the

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argument of counsel, and being

otherwise fully advised in the

premises, makes the following

ammendment [sic] to the FINDINGS OF

FACT, CONCLUSIONS OF LAW AND JUDGMENT

entered herein.

CONCLUSION OF LAW VIII

Conclusion of Law VIII -. as

delineated on page seven (7) of said

Findings of Fact, Conclusions of Law

and Judgment, is ammended [sic] to read

as follows:

That the separate estate of

EDGAR H. HADLEY, as it existed

prior to his current marriage, or

as it may thereafter be separately

obtained, but excluding any and

all community earnings or

community property of EDGAR H.

HADLEY'S current marriage to MARY

HADLEY, should be liable for

judgment in the amount of

$11,452.00 in behalf of

Petitioner/Plaintiff, such sum

representing unpaid installments

of military retirement pay

accruing from April, 1981, through

Mat, [sic] 1983. Said judgment

should bear interest at the

Statutory rate against each unpaid

installment of the obligation.

II.

JUDGMENT 2

Judgment 2 as delineated on page

nine (9) of said Findings of Fact,

Conclusions of Law and Judgment, is

ammended [sic] to read as follows:

Plaintiff/Petitioner is

hereby granted a judgment against

EDGAR H. HADLEY, individually and

as limited in the foregoing

Conclusions of Law at paragraph

VIII thereof as ammended [sic]

above, in the amount of $11,452.00

and interest accured upon that sum

at the statutory rate from the

date of each unpaid installment

accrued between August, 1981 and

May, 1983;

DONE IN OPEN COURT this _ 20 day

of August, 1987.

WILLIAM J. GRANT a

Presented by:

/s/

Attorney for Respondent/Defendants

Approved as to form and content,

notice of presentment waived:

/s/

Attorney for Petitioner/Plaintiff

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APPENDIX E

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

In Re the Marriage of: No. 8849-9-III

HELEN C. HADLEY,

Appellant,

and Panel Two

Filed

JAN 31 1989

EDGAR H. HADLEY,

Respondent.

)

) Division Three

)

Sacramento, California, Helen Hadley

obtained a Stipulated interlocutory

judgment dissolving her marriage to

Edgar Hadley, a Washington resident.

On February 27, 1980, a final judgment

was entered. In June 1982, Mrs. Hadley

filed certified copies of these

documents in Spokane County and then

initiated this action to recover

amounts due and unpaid under’ the

judgment and to clarify one of its

provisions. The trial court allowed a

recovery of part of the claimed amounts

due, but declined to clarify the

decree. She appeals.

Since no error has been assigned

to- the court's findings of facts, they

become verities. In re Marriage of

Babbitt, 50 Wn. App. 190, 192, 747 P.2a

507 (1987). Those findings show that

Mr. and Mrs. Hadley were married in

1950 while Mr. Hadley was in the United

States Air Force. They became

residents of this state in 1974. In

1976, they separated and Mrs. Hadley

moved to California where she continues

to reside. In 1977, she instituted

divorce proceedings in that state. Mr.

Hadley voluntarily submitted to

jurisdiction. Thereafter, the

interlocutory and final judgments

dissolving the Hadleys' marriage were

entered.

The stipulated interlocutory

judgment contained the following

provision which was affirmed by the

final judgment:

2. DIVISION OF

COMMUNITY PROPERTY

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B. (1) Respondent’ shall ow to

Petitioner a sum equa

three-sevenths (3/7) "ae ant

amounts he receives monthly as and

for his military retirement pay.

Such fraction shall remain

constant so that Petitioner wil]

receive the benefit of any

increases in retirement benefits

payable to Respondent. Respondent

shall notify Petitioner the amount

of any future increases in

military retirement benefits

within thirty (30) days from his

notification of such increases

Such payments’ shall commence the

month next following entry of this

judgment and shall be mailed or

otherwise made by the fifteenth

day of each month. Petitioner

shall pay taxes on the monies

received by her pursuant to this

paragraph.

The court found that the parties

intended Mrs. Hadley would immediately

obtain a final judgment, triggering

payment by Mr. Hadley. She did not do

so, however, until February 27, 1980.

One month after the final judgment of

dissolution was entered, Mr. Hadley

began making payments of three-sevenths

of the net retirement after deducting

his withholding tax.

After the decision in McCarty v.

McCarty, 453 U.S. 210, 69 L. Ed. 24

589, 101 S$. Ct. 2728 (1981), Mr.

Hadley, without authorization of the

court, ceased making his payment. In

June 1983, Mrs. Hadley, without’ the

assistance of Mr. Hadley, obtained a

resumption of those payments pursuant

to the federal Uniform Services Former

Spouses'. Protection Act (10 U.S.C. Sec.

1408). The payments were for

three-sevenths of the net retirement

after deducting Mr. Hadley's

withholding tax. Over the years, Mr.

Hadley "re-adjusted his exemptions"

which affected the amount of the

withholding tax and caused a

fluctuation in the amounts paid to Mrs.

Hadley. The court declined to rule on

the appropriateness of either party's

tax filings.

In 1984, Mr. Hadley sought medical

attention through the Veterans

Administration which resulted in a

disability pension. The amount of the

pension reduced the amount of his

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military retirement and in turn reduced

the payment to Mrs. Hadley.

On these facts, the court

concluded the McCarty decision did not

relieve Mr. Hadley of his obligation to

pay Mrs. Hadley three-sevenths of his

military retirement. According to the

court, she was entitled to recover

$11,452 for payments accruing during

the period April 1981 through May i983.

However, the court concluded Mrs.

Hadley could only recover this judgment

from Mr. Hadley's separate estate. Any

recovery from his one-half of the

community property of his second

marriage was barred by the provisions

Of RCW 26.16.200. The court concluded

this statute, the intent of the parties

and the interlocutory decree barred any

claim for the period between August

1979 and February 1980--the period

between the interlocutory and final

judgments. =

Pirvet, « Bre. Hadley contends’ the

E=5

court erred in concluding she was

barred by reason of RCW 26.16.200 from

recovering her judgment against Mr.

Hadley's one-half of the community

property of his second marriage. We

agree.

RCW 26.16.2000 provides in part:

Neither husband or wife is

liable for the debts or

liabilities of the other incurred

before marriage, nor for. the

separate debts of each other, nor

is the rent or income of the

separate property of either liable

for the separate debis- of the

other: Provided, That the earnings

and accumulations of the husband

Shall be available to the legal

rocess of creditors for the

Satisfaction of debts incurred b

him prior to marriage, and the

earnings and accumulations of the

wife shall be available to the

legal process of creditors fer the

satisfaction of debts incurred by

her prior to marriage. For the

purpose of this section, neither

the husband nor the wife shalII be

construed to have any interest in

the e€arnings of the other:

Provided further, That no separate

debt, except a child support or

Maintenance obligation, may be the

basis Of a Claim against the

e€arnings and and accumulations of

either a husband or wife unless

the Same is reduced to judgment

within three years of the marriage

of the parties.

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(Italics ours.) The question is

whether “Mrs. Hadley's claim was reduced

to judgment within 3 years of Mr.

Hadley's remarriage.

The record shows the final

judgment dissolving the Hadleys'

marriage was entered in California on

February 27, 1980. Mr. Hadley

remarried in April 1980. A certified

copy of the California interlocutory

and final judgments were filed in

Spokane County on June 4, 1982, in

compliance with the Uniform Enforcement

of Foreign Judgments Act, RCW 6.36.

RCW 6.36.025 provides:

A copy of any foreign

judgment authenticated in

accordance with the act of

congress or the statutes of any

Superior court of any county of

this state. The clerk shall treat

the foreign judgment in the same

manner aS a peegpent of the

Superior court o -his state. A

judgment so filed has the same

effect and is subject to the same

procedures, defenses, set-offs,

counterclaims, cross-complaints,

and proceedings for reopening,

vacating, or staying as a judgment

of a superior court of this state

and may be enforced or satisfied

in like manner.

(Italics ours.) Thus, the California

judgment between Mr. and Mrs. Hadley

was entitled to full faith and credit

in this state absent any showing

California did not have jurisdiction

over the parties or the subject matter.

State v. Vestal, 43 Wn.App. 663, 667,

719 P.2d 163 (1986); see 15 L. Orland &

K. Tegland, Wash. Prac., Trial Practice

Sec. 392 (4th ed. 1986). Here, no such

showing was made. In light of this

record, it is clear the California

judgment became a valid Washington

judgment within 3 years of Mr. Hadley's

remarriage.

We do not accept the position the

statute barred recovery because Mr.

Hadley's defaults nad not been reduced

to judgment within 3 years. The award

of three-sevenths of Mr. Hadley's

retirement pay was a property division

that was fully adjudicated in the

California judgments which were

"reduced to judgment" in this’ state

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upon their filing in Spokane County.

This filing occurred well within 3

years of Mr. Hadley's remarriage. Mrs.

Hadley's action was brought to enforce

the provisions of that judgment. Thus,

the court erred in holding RCW

26.16.200 barred any recovery by Mrs.

Hadley against Mr. Hadley's one-half of

the community property of his second

marriage.

Mr. Hadley's reference to the

6-year general statute of limitation,

RCW 4.16.040, as it applies to bar

recovery of alimony and support, is not

applicable here. The California court

divided property —< Mr. Hadley's

retirement proceeds -- on February 27,

1980 in California. That division

became a judgment entitled to full

faith and credit when it was filed in

Spokane County on June 4, 1982 and was

enforceable by the courts of this

State.

Second, Mrs. Hadley contends the

E-9

court erred when it declined to

construe the provision of the

interlocutory decree dividing Mr.

Hadley's military pay. That provision

provided:

[Mr. Hadleyj shall pay -to

[Mrs. Hadley] a sum equal to

three-sevenths (3/7) of all

amounts he receives monthly as and

for his military retirement pay. .

. i {[Mrs. Hadley] shall pay taxes

on the monies received by her

pursuant to this paragraph.

The provision also stated Mrs. Hadley

_would receive the benefit of any

increases in retirement benefits

payabie to Mr. Hadley.

With respect to Mrs. Hadley'‘s

request for clarification, the trial

court concluded:

That, as the decree as

originally entered, is not

ambiguous and reflects the intent

of the parties, said decree should

not be modified or otherwise

altered by this court.

Specifically, the Court should not

clarify said decree to delineate

the number of exemptions ([Mr.

Hadley] should claim as affecting

his disposable retirement pay, nor

should the Court consider

Clarifying or amending the decree

to vest [Mrs. Hadley] with a 3/7

share of [Mr. Hadley's] disability

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pay.

In so doing, we find the court erred.

Although each party held contrary views

of the intent of the provision, it is

evident Mrs. Hadley eae to receive

three-sevenths of the gross amount of

Mr. Hadley's retirement. To rule

otherwise permits Mr. Hadiey to

unilaterally control the amount Mrs.

Hadley receives and to ignore the

California court's division of

property.

The record indicates Mr. Hadley

subsequently reduced his claimed

exemptions and thus increased the

amount of taxes to be withheld from his

retirement benefit. While this action

by Mr. Hadley had a direct effect of

reducing the amount’ received by Mrs.

Hadley, the record shows he in turn

received a tax refund. It is apparent

from a reading of the entire provision

that each party was to pay their

respective income taxes on the portion

each received. To carry out’ the

parties' intent, the three-sevenths

share awarded to Mrs. Hadley must be

computed on the gross amount of Mr.

Hadley's retirement pay.

Third, Mrs. Hadley contends the

court erred in not clarifying the

effect of the disability award received

by Mr. Hadley on her share of his

retirement pay. The record reflects

Mr. Hadley's disability award of $122

per month reduced his military pay by

that amount. Thus, the tota] amount he

received remained the same, although a

portion of the pay was disignated for

disability. Mrs. Hadley contends she

is entitled to three-sevenths of the

total retirement and disability pay.

The - stipulated interlocutory

judgment and the final judgment do not

address the question of disability

payments. They refer only to the

amount to be received by Mr. Hadley as

retirement pay. Clearly, a disability

E-i2

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award is not retirement pay. Adding

such a term would require us to write a

new agreement for the parties. We are

not permitted to do so. In re Marriage

of Mudgett, 41 Wn.App. 337, 341, 704

P.2d 169 (1985). Consequently,

notwithstanding that the total “sum

received by Mr. Hadley remains’ the

same, by the terms of the judgment Mrs.

Hadley is only entitled to recover

three-sevenths of his "military

retirement pay."

Mrs. Hadley also contends’ the

court erred in refusing to allow her a

recovery for military retirement pay

between the interlocutory and the final

decree. We agree. With respect to the

payment of three-sevenths of his

military retirement pay, the stipulated

interlocutory judgment signed by both

parties provided that "[s]uch payments

shall commence the month next following

entry of this judgment ..." (Italics

ours.) While ordinarily payments under

E-1i3

an interlocutory decree would not be

effective until the expiration of the

interlocutory period and the entry of a

final judgment or decree, In re

Williams’ Estate, 36 Cal.2d 289, 22

P.2d 248, 251, 22 A.L.R.2d 716 (1950),

when the parties agree to commence

payments at a prior date, that

agreement is effective and controlling.

Consequently, Mrs. Hadley is entitled

to recover her three-sevenths share of

the gross military retirement pay that

should have been paid commencing within

1 month following entry of the

interlocutory decree from Mr. Hadley's

share of the community property of the

new marriage. RCW 26.16.200.

Fach party _shall bear their own

attorney fees and costs on appeal.

Reversed and remanded fo~ revision

of the judament in accordance with this

opinion.

A majority of the panel hada

determined that this opinion will not

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be printed in the Washington Appellate

Reports but it will be filed for public

record pursuant to RCW 2.06.040.

/s/

WE CONCUR:

/s/

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APPENDIX F

THE SUPREME COURT OF WASHINGTON

In Re the Marriage of: No. 55994-5

ORDER GRANTING

MOTION FOR EX-

TENSION OF

)

HELEN C. HADLEY,

)

) TIME TO FILE

)

Respondent,

PETITION FOR

REVIEW AND DE-

NYING PETITION

FOR REVIEW

and

EDGAR H. HADLEY,

Petitioner.

oe ——-

This matter come on before the

Court on its May 9, 1989, Motion

Calendar on Petitioner's Motion for

Extension of Time to File Petition for

Review. The Court having considered

the motion and the files herein;

Now, therefore, it is hereby

ORDERED:

That Petitioner's Motion for

Extension of Time to File Petition for

Review is granted and the Petition for

Review is denied on the merits.

DATED at Olympia, Washington this

9th day of May, 1989.

/s/

= CHIEF JUSTICE

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APPENDIX G

TITLE 10 U.S.C.

Sec. 101. Definitions

In addition to the definitions in

section 1-5 of title 1[{1 USC sub.sec.

1-5], the following definitions apply

in this title [10 USC sub.sec. 101 et

Seq.j: « « «

(27) "Pay" includes basic pay,

special pay, retainer pay, incentive

pay, retired pay, and equivalent pay,

but does not include allowances.

Sec. 267. Ready Reserve; Standby

Reserve; Retired Reserve: placement and

status of members

(a) There are in each armed force a

Ready Reserve, a Standby Reserve, and a

Retired Reserve. Each Reserve ‘shall be

placed in one of those categories.

(b) Reserves who are on the inactive

status list of a reserve component, or

who are assigned to the inactive Army

National Guard or the inactive Air

National Guard, are in an inactive

status. Members in the Retired Reserve

are in a retired status. All other

Reserves are in an active status.

(Aug. 10, 1956, ch 1041, sec. 1, 70A

Stat. i2.)

Sec. 276. Mobilization forces:

maintenance

(a) Whenever units or members of the

reserve components are ordered to

active duty (other than for training)

during a period of partial

mobilization, the Secretary concerned

shall continue to maintain mobilization

forces by planning and budgeting for

the continued organization and training

of the reserve components not

mobilized, and make the fullest

practicable use of the Federal

facilities vacated by mobilized units,

consistent with approved joint

mobilization plans.

(b) In this section "partial

mobilization" means the mobilization

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resulting from action by Congress or

the President, under any law, to bring

units of any reserve component, and

members not assigned to units organized

to serve as units, to active duty for a

limited expansion of the active armed

forces.

(Aug. 10, 1956, ch 1041, sec. 1, 70A

Stat. i136)

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APPENDIX H

Sec. 672. Reserve components

generally

(a) In time of war or of national

emergency declared by Congress, or when

otherwise authorized by law, an

authority designated by the Secretary

concerned may, without the consent of

the persons affected, order any unit,

and any member not assigned to a unit

organized to serve as a eunit, of a

reserve component under the

jurisdiction of that Secretary to

active duty (other than for training)

for the duration of the war or

emergency and for six months

thereafter. However-

(1) a member’ on an inactive

status list or in a retired status

may not be ordered to active duty

under this subsection unless the

Secretary concerned, with the

approval of the Secretary of

Defense in the case of the

H-1

Secretary of a military

department, determines that there

are not enough qualified Reserves

in an active status or in the

inactive National Guard in the

required category who are readily

available; and

(2) a member of the Standby

Reserve may not be ordered to

active duty under this subsection

unless the Director of Selective

Service determines that the member

is available for active duty.

expansion of the active armed forces

that requires that units and members of

the reserve components be ordered to

active duty (other than for training),

members of units organized and trained

to serve as units who are ordered to

that duty without their consent shall

be sO ordered with their units.

However, members of those units may be

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reassigned after being ordered to

active duty (other than for training).

Sec. 688. Retired members

(a) Under regulations prescribed by the

Secretary of Defense, a retired member

of the Regular Army, Regular Navy,

Regular Air Force, or Regular Marine

Corps, a member of the Retired Reserve

who has completed at least 20 years of

active service, or a member of the

Fleet Reserve or Fleet Marine Corps

Reserve may be ordered to active duty

by the Secretary of the military

department concerned at any time. The

secretary concerned may, to the extent

consistent with other provisions of

law, assign a member ordered to active

duty under this section to such duties

as the Secretary considers necessary in

the interests of national defense.

H-3

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Sec.

APPENDIX I

TITLE 10 U.S.C.

1408. Payment of retired or

retainer pay in compliance with court

orders

(a) In

(1)

this section:

"Court" means-

(A) any court of competent

jurisdiction of any State, the

District of Columbia, the

Commonwealth of Puerto Rico,

Guam, American Samoa, the Virgin

Islands, the Northern Mariana

Islands, and the Trust’ Territory

of the Pacific Islands;

(B) any court of the United

States (as defined in section

451 of title 28 [28 USCS sec.

451)) having competent

jurisdiction; and

jurisdiction of a foreign

country with which the United

States has an. agreement

requiring the United States to

honor any court order of such

country.

(2) "Court order" means a final

decree of divorce, dissolution,

annulment, or legal separation

issued by a court, or aecourt

ordered, ratified, Or approved

property settlement incident to

such a decree (including a final

decree modifying the terms of a

previously issued decree of

divorce, dissolution, annulment, or

legal separation, or a court

ordered, ratified, or approved

property settlement incident to

such previously issued decree),

which-

(A) is issued in accordance with

the laws of the jurisdiction of

that court;

(B) provides for-

(1) payment of child support

(as defined in section 462 (b)

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qaecceece ued

of the Social Security Act

(42 U.S.C. 662(b)) [42 USCS

sec. 662(b)]);

(ii) payment of alimony (as

defined in section 462(c) of

the Social Security Act (42

U.S.C. 662(¢)) [42 uscs sec.

662(c)])# or

(i111) division of property

(including a division of

community property); and

property, specifically provides

for the payment of an amount,

expressed in dollars or as a

percentage of disposable retired

or retainer pay, from the

disposable retired or retainer

pay of a member to the spouse or

former spouse of that member.

(3) “Pinal decree" means a decree

from which no appeal may be taken

or from which no appeal has been

taken within the time allowed. for

taking such appeals under the laws

applicable to such appeals, or a

decree from which timely appeal has

been taken and such appeal has been

finally decided under the laws

applicable to such appeals.

(4) "Disposable retired or retaine:

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

itle [10 USCS sub.sec. 1201 et

seq.}j]) less amounts which-

(A) are owed by that member to

the United States;

(B) are required by law to be

and are deducted from the

retired oy retainer pay of such

member, including fines and

forfeitures ordered by

courts-martial, Federal]

employment taxes, and amounts

waived in order , t recej

I-4

HAHANANNDANNNNDNNANANNAANMANDAARAARAAAANRAAA VAMDAANANAN CAE

ee ee ee eS ee ee ON Oe, ee Oe a a a a SS eee

@¥Peve0u_»0v_»_—ooc_eceo_—cococeeucoeulcewvcrcevurceeuuvvueT vee V“VvVVTUVUVUVUU

compensation under title 5 or

title 38 [5 USCS sub.sec. 101 et

seq.; 38 USCS sub.sec. 101 et

seq.];

Federal, State, or local income

tax purposes, if the withholding

of such amounts is authorized or

required by law and to _ the

extent such amounts withheld are

not greater than would be

authorized if such member

Claimed all dependents to which

he was entitled;

(D) are withheld under section

3402(i) of the Internal Revenue

Code of 1954 (26 U.S.C. 3402(i))

[26 USCS sec. 3402(i)] if such

member presents evidence of a

tax obligation which’ supports

such withholding;

(E) are deducted as Government

life insurance premiums § (not

including amounts deducted fo:

supplemental]

(FE) are deducte

election under

this title (10

143] et seq. ]

annuity to a S

spouse to whom

Or retainer pay

coverage); Or

ad because of an

chapter 73 of

USCS sub.sec.

to provide an

pouse or former

payment of a

member's retired

is being made

pursuant to a court order under

(5) "Member" includes 4 former

member.

ms MCW AN11ICe ae ner c aAijce"™ 1Qz r

6 ) Spouse or former spousé means

che husband or wife, or former

husband or wife, respectively, of a

member who, on or before the date

f a court order, was married to

that member.

For the purposs of

(1) service 0! 4

effective :~

(A) appropr

ret ry n¢

I-06

can

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i On ee Oe Ge Ge Gn Gn Gn Gn Gn Gn Gn Un Gn UE Un Ur Un Un Un Cn Un Un Cn Un Un UE Un Un Un Un Un Un Un On Un UE UR UR URURURS |

for receipt of service court

orders under regulations

prescribed pursuant to

Subsection (h) or, if no agent

has been SO designated, the

Secretary concerned, is

personally served or is served

by certified or registered mail,

return receipt requested;

(B) the court order is regular

On its face;

documents served with the court

order identify the member

concerned and include, Gy

possible, the social security

number of such member; and

(D) the court order or other

documents served with the court

Order certify that the rights of

the member under the Soldiers'

and Sailors' Civil Relief Act of

1940 (S50 U.S.C. App. 501 et

seq.) [50 USCS appx sub.sec. 501

[-7

et seq.] were observed; and

(2) a court order is regular on its

face if the order-

(A) is issued by a court of

competent jurisdiction;

(B) is legal in form; and

that provides reasonable notice

that it is issued without

authority of law.

this section, a court may treat

disposable retired or retainer pay

payable to a member for pay periods

beginning after June 25, 1981,

either as property solely of the

member or as property of the member

and his spouse in accordance with

the law of the jurisdiction of such

court.

(2) Notwithstanding any other

provision of law, this section does

not create any right, title, or

interest which can be sold,

I-8

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€

‘él

€

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assigned, transferred, or otherwise

disposed of (including by

inheritance) by a spouse or former

spouse,

(3) This section does not authorize

any court to order a member to

apply for retirement or retire at a

particular time in order to

effectuate any payment under this

section.

(4) A court may not treat the

disposal retired or retainer pay of

a member in the manner described in

paragraph (1) unless the court has

jurisdiction Over the member by

reason of (A) his residence, other

than because of military

assignment, in the territorial

jurisdiction of the court, (B) his

domicile in the territorial

jurisdiction of the court, or (C)

his consent to the jurisdiction of

the court.

(d) (1) After effective service on

the Secretary concerned of a court

order providing for the

payment of child support or alimony

or, with respect to a division of

property, specifically providing

for the payment of an amount of the

disposable retired or retainer pay

from a member to the spouse or a

former spouse of the member, the

Secretary shall make payments

(subject to the limitations of this

section) from the disposable

retired or retainer pay of the

member to the spouse or former

spouse in an amount sufficient to

satisfy the amount of child support

and alimony set forth in the court

order and, with respect to a

division of property, in the amount

of disposable retired or retainer

pay specifically provided for in

the court order. In the case of a

member entitled to receive retired

or retainer pay on the date of the

RC ee OC OOCEEECOCOCOOLUUULUUULECLCULULCULUCLCULCUUULOVUNVN)VNY

effective service of the court

order, such payments” shall begin

not later than 90 days after the

date of effective service. In the

case of a member not entitled to

receive retired or retainer pay on

the date of the effective service

of the court order, such payments

shall begin not later than 90 days

after the date on which the member

first becomes entitled to retired

Or retainer pay.

(2) If the spouse or former spouse

to whom payments are to be made

under this section was not married

to the member for a period of 10

years Or more during which the

member performed at least 10 years

of service creditable in

determining the member's eligiblity

for retired or retainer pay,

payments may not be made under this

section to the extent that’ they

include an amount resulting from

the treatment by the court under

subsection (c) of disposable

retired or retainer pay of the

member as property of the member or

property of the member and his

spouse.

(3) Payments under this section

shall not be made more frequently

than once each month, and the

Secretary concerned shall not _ be

required to vary normal pay and

disbursement cycles for retired or

retainer pay in order to comply

with a court order.

(4) Payments from the disposable

retired or retainer pay of a member

pursuant to this section. shall

terminate in accordance with the

terms of the applicable court

order, but not later than the date

of the death of the member or the

date of the death of the spouse oOo!

former spouse to whom payments are

being made, whichever occurs first.

COOQOHOHOEEOOOHOEE EEE EOQOQHQQQQEOEOEGKQOOQEEECCOQOQOQ QAO EG AQOAOM

RE OHEOOOCEOCOOHOCOULKCCULCELCOCOCOCHEOHCUUUYULVYVNS)A

(5) If a court order described in

paragraph (1) provides for a

division of property (including a

division of community property) in

addition to an amount of child

Support or alimony or the payment

of an amount of disposable retired

or retainer pay as_ the result of

the court's treatment of such pay

under subsection (c) as property of

the member and his’ spouse, the

Secretary concerned shal] pay

(subject to the limitations of this

section) from the disposable

retired Or retainer pay of the

member to the spouse or _ former

Spouse of the member, any part of

the amount payable to the spouse or

former spouse under the division of

property upon effective service of

a final court order of garnishment

of such amount from such retired or

retainer pay.

(e) (1) The total amount of the

disposable retired or retainer pay

of a member payable under

subsection (d) may not exceed 50

percent of such disposable retired

or retainer pay.

(2) In the event of effective

service of more than one court

order which provide for payment to

a spouse and one or more former

spouses or to more than one former

spouse the disposable retired or

retainer pay of the member shall be

used to satisfy (subject tc the

limitations of paragraph (1)) such

court orders on a first-come,

first-served basis. Such court

ora@ers skall be satisfied (subject

to the limitations of paragraph

(1) ) out of that amount of

disposable retired or retainer pay

which remains after the

satisfaction of all court orders

which have been previously served.

(3) (A) In the event of effective

I-14

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—

“

PECOCOCOOCOUUUECULUUCELEULCLCUCCECECOUUUHLUN)NIDY

acceacoaoaeqedye

service of conflicting court

orders under this section which

assert to direct that different

amounts be paid during a month

to the same spouse or former

spouse of the same member, the

Secretary concerned shall-

(i) pay to that spouse from

the member's disposable

retired or retainer pay the

least amount directed to be

paid during that month by any

such conflicting court order,

but not more than the amount

of disposable retired or

retainer pay which’ remains

available for payment of such

courts orders based on when

such court orders were

effectively served and _ the

limitations of paragraph (1)

and subparagraph (B) of

paragraph (4);

(ii) retain an amount of

disposabie retired or

retainer pay that is equal to

the lesser of-

(I) the difference between

the largest amount

required by any

conflicting court order to

be paid to the spouse or

former spouse and the

amount payable to the

spouse or former spouse

under clause (i); and

(II) the amount of

disposable retired or

retainer pay which remains

available for payment of

any conflicting court

order based on when such

court order was

effectively served and the

limitations Cf paragraph

(1) and subparagraph (B)

of paragraph (4); and

(li1) pay to that member the

I-16

—

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(B)

amount which is equal to the

amount of that member's

disposable retired or

retainer pay (less any amount

paid during such month

pursuant to legal process

served under section 459 of

the Social Security Act (42

U.S.C 659) [42 USCS, sec.

659] and any amount paid

during such month pursuant to

court orders effectively

served under this section,

other than such conflicting

court orders) minus-

(I) the amount of

disposable retired or

retainer pay paid under

Clause (i); and

(II) the amount of

disposable retired or

retainer pay retained

under clause (ii).

The secretary concerned

—

} . al

nald O l< che amount retained

index lause (11) of P

ubparagraph (A) until such time i

that ecretary n¢ provided e

W Cl < yur orde} which has al

been certified by the member and

b 2 ~ - ™

he Spouse or rormer spouse ti

b > vs ] ’ y 2 ~

be valid and applicable t the

retained amount. Upon being

provided with such an order, the

—

Secretary shall pay the retained

a unt Ln a ¢ yrdance witli tne

O] er.

‘ A ) ] ) ‘ r) + + f tis

? tA in ne € eae xk Wi Ss 2 es 1Ve

service of a court order under

{ ] f t } and the service I

ega] process pursuant to

ec I 459 Oo! the So al

curity Act (4 U.S.C. 659) [4

Ss . ; both of whicli

provid f payment during |

nti r } tne same member,

t I Clo! I uc h ur |

[I-18

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7 : v rc ‘ . TT ~~

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‘ , . = 9 ~ - + = -

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, oF i > F a

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‘ 4 .

~ — + r a - ¢ . ) 4 Pre?

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- ~ 4 - a 4 4 -

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, = - - ”~ hd 4 : :

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Ly 4 2 -

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= . a - 4 4 ’ ’

DOA AAA AAD ADD ADD ADD DDD DADA ADGAAAVDVVAXVVVVVVDVBIWAN

section

Security

Act (42

USCS sec. 659] with

member may not exces

of the disposable

because of

orders

pay

mount

provides

pay payab

previously

ror tn

respect to

d 65 percen

served aour

e payment oO

which exceeds the amoun

disposable reti

available for

previously

7 ia 7

Legal

the

pal

Co) Ft

red

pay

or retaline

ment becaus

he limit set forth in paragrap

Or which, because

served court order

process previously serv:

sectior 459 of the

t Act (42 »9.C. 659)

OC. 659], provides f

\t O] an amount tnat exceed

maximum amount permitted unde

raph Ll) 01 Subparagrapl!

paradrapl (4), shal] not

I-20

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considered to be irregular on its

face solely for that reason.

However, such order shall be

considered to be fully satisfied

for purposes of this section by the

payment to the spouse or former

spouse of the maximum amount of

disposable retired or retainer pay

permitted under paragraph fl) and

Subparagraph (B) of paragraph (4).

(6) Nothing in this section shal]

be construed to reiieve a member of

liability for the payment of

alimony, child support, or other

payments required by a court order

on the grounds that payments made

out of disposable retired or

retainer pay under this’ section

have been made in the maximum

amount permitted under paragraph

(1) or subparagraph (B) of

paragraph (4). Any such

unsatisfied obligation of a member

may be enforced by any means

available under law other than the

means provided under this section

in any case in which the maximum

amount permitted under paragraph

(1) has been paid and under section

459 of the Social Security Act (42

U.S.C. 659) [42 USCS sec. 649] in

any case in which the maximum

amount permitted under subparagraph

(B) of paragraph (4) has been paid.

(£) (1) The United States and any

officer or employee of the United

States shall not be liable with

respect to any payment made from

retired Or retainer pay to any

member, spouse, or former spouse

pursuant to a court order that is

regular on its face if such payment

is made in accordance with this

section and the regulations

prescribed pursuant to subsection

(h).

(2) An officer or employee of the

United States who, under

—

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CEE OOOOOUOLCOCOOLUCOCLCULULUCLUUTCLECLUCEOLOLCOUUULLUUVUYNYN

regulations prescribed pursuant to

subsection (h), has the. duty to

respond to interrogatories’~ shall

not be subject under any law to any

disciplinary action or civil or

criminal liability or penalty for,

Or because of, any disclosure of

information made by him in carrying

out any of his duties which

directly or indirectly pertain to

answering such interrogatories.

(g) A person receiving effective

service of a court order under this

section shall, as soon as possible, but

not later than 30 days after the date

On which effective service is_ made,

send a written notice of such court

order (together with a copy of such

order) to the member affected by the

court order at his last known address.

(h) The Secretaries concerned. shall

prescribe uniform regulations for the

administration of this section.

(Added pepee 8, L962, P.L. 97-252,

Title xX, Sec. 1002(a), 96 Stat. 730;

sae ZStie VE,

)

is 3

Part E, Sec. 643 (a) 98 Stat.

Loom

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7 i

EN E

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APPENDIX J

Title 29 U.S.C.

Ch. 18 RETIREMENT INCOME SECURITY

Section 1003. Coverage

(a) Except “as provided in

subsection (b) of this section and in

sections 1051, 1081, and 1101 of this

title, this subchapter shall apply to

any employee benefit plan if it is

established or maintained-

(1) by any employer engaged

in commerce or in any industry or

activity affecting commerce; or

(2) by any employee

Organization or Organizations

representing employees engaged in

commerce or in any industry or

activity affecting commerce; or

(3) by both.

(b) The provisions of this

subchapter shall not apply to any

employee benefit plan if-

(1) such plan is a

governmental plan (as defined in

J~-1

section 1002(32) of this title);

(2) such plan is a_- church

plan (as defined in section

1002 (33) of this title) with

respect to which no election has

been made under section 410(d) of

Title 26;

(3) such plan is maintained

solely for the purpose of

complying with applicable

workman's compensation lawS Or

unemployment compensation or

disability insurance laws;

Section 1002.

(32) The term “governmental plan"

means a plan established or maintained

for its employees by the Government of

the United States, by the government of

any State or political subdivision

thereof, or by any agency or

instrumentality of any of the

foregoing. The term "governmental

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Plan" also includes any plan to which

the Railroad Retirement Act of 1935 or

applies, and which is’ financed by

contributions required under that Act

and any plan of an international

organization which is exempt from

taxation under the provisions of the

International Organizations Immunities

Act [22 U.S.C.A. Sec. 288 et seg.].

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UUEOOUYUYUUYUYUYUYUYVYUYVUVUUUUUULUUVUUUUUUUVUUUULUVUIQIULONY UU

APPENDIX K

REVISED CODE OF WASHINGTON

6.15.020. Pension money exempt

(1) Unless otherwise provided by

federal law, any money received by any

citizen of the state of Washington as a

pension from the government of the

United States, whether the same be in

the actual possession of such person or

be deposited or loaned, shall be exempt

from execution, attachment,

garnishment, or seizure by or under any

legal process whatever, and when a

debtor dies, or absconds, and leaves

his or her family any money exempted by

this section, the same shall be exempt

to the family as provied in this

section.

(2) The right of a person to a

pension, annuity, or retirement

allowance or disability allowance, or

death benefits, or any optional

benefit, or any other right accrued or

accruing to any citizen of the state of

Washington under any employee benefit

plan, and any fund created by such a

plan or arrangement, shall be exempt

from execution, attachment, or seizure

by or under any leal process whatever:

Provided, That this subsection shall

permit benefits under any such plan or

arrangement to be payable to a spouse,

former spouse, child, or other

dependent of a participant in such plan

to the extent expressly provided for in

a qualified domestic relations order

(as such term is defined in section

296 (d) of the federal employee

retirement income security act of 1974,

as amended, 29 U.S.C. Sec. 1056(d) or

in section 401i(a) (13) of the internal

revenue code of 1954, as amended).

(3) For the purposes of this

section, the term “employee benefit

plan" means any plan or arrangement

that is subject to the provisions of

the federal employee retirement income

security act of 1974, as amended, 29

OQOQKDQAQCGHHEOGQQQADEGKGQQGQQNHKHDANADANOG OOOO OO OOOODONONOOOOAAD

Un Un Ua Un Un Sn Un Un UE UE UE UE UE UE UE UN UN UN ON ON OE OE UE Un ON ON Un Un Um Un Un Un Ul UE UE Ui Ui UE UE NE NEN ES EN

ee a a eo ee ee ee ee ee ee ee ee ee ee ee ee eee ee ee

y.S.C. Secs. 1001 throvgh 1461 or that

is described in sections 401(a),

403(a), 403(b), 408, or 409 (as in

effect before January 1, 1984) of the

internal revenue code of 1954, as

amended, or both: Provided, That the

term “employee benefit plan" shall not

include any employee benefit plan that

is excluded from the application of the

federal employee retirement income

security act of 1974, as amended,

pursuant to section 4(b)(1) of that

act, 29 U.S.C. Sec. 1003(b) (1).

Formerly Sec. 6.16.030, amended by Laws

1987, ch. 64, Sec. 1. Recodified as

Sec. 6.15.020 and amended by Laws 1987,

ch. 442, Sub.Sec. 302, 1121. Reenacted

and amended by Laws 1988, ch. 231, Sec.

6, eff. March 23, 1988.

26.16.140. Earnings and accumulations

of husband and wife living apart, minor

children

When a husband and wife are living

separate and apart, their respective

earnings and accumulations shall be the

separate property of each. The

K-3

earnings and accumulations of minor

children shall be the separate property

of the spouse who has their custody or,

if no custody award has been made, then

the separate property of the spouse

with whom said children are living.

Enacted by Code 1881, Sec. 2413.

Amended by Laws’ 1972, Ex.Sess., ch.

108, Sec. 5.

26.16.200. Antenuptial and separate

debts, liability for - Child support

Obligation, liability for

Neither husband or wife is liable

for the debts or liabilities of the

other incurred before marriage, nor for

the separate debts of each other, nor

is the rent or income of the separate

propert of either liable for the

separate debts of the other:

Provided, That the earnings and

accumulations of the husband shall be

available to the legal process of

creditors for the satisfaction of debts

incurred by him prior to marriage, and

the earnings and accumulations of the

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VEU EUV UU VG VVIIVVUIVVVVVVVVVVVIVVVVVIVVVUVUVVIVU 30

fe,

wife shall be available to the legal

process of creditors for the

satisfaction of debts incurred by her

prior to marriage. For the purpose of

this section, neither the husband nor

the wife shall be construed to have any

interest in the earnings of the other:

Provided further, That no separate

debt, except a child Support or

maintenance obligation, may be the

basis of a claim against the earnings

and accumulations of either a husband

Or wife unless’ the same is reduced to

judgment within three years of the

marriage of the parties. The

obligation of a parent or stepparent to

Support a child may be collected out of

the parent's or stepparent's separate

property, the parent's or stepparent's

earnings and accumulations, and the

parent's or stepparent's share of

community personal and real property.

Funds in a community bank account which

carn be identified as the earnings of

the nonobligated spouse are exempt from

satisfaction of the child support

obligation of the debtor spouse.

881, Sec. 2405.

P Ex.Sess., Chi «

83, 1st Ex.Sess.,

Enacted by ; ]

Amended by Laws’ 1969

121, sec. 1; Laws 19

ch. 41, Sec. 2.

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APPENDIX L

CONSTITUTIONAL PROVISIONS

CONSTITUTION OF THE UNITED STATES

ARTICLE I

Section 8. Powers of Congress

The Congress shall have Power To

lay and collect Taxes, Duties, Imposts

and Excises, to pay the Debts’ and

provide for the common Defence and

general Welfare of the United States;

but all Duties, Imposts and Excises

shall be uniform throughout the United

States;

To borrow Money on the credit of

the United States;

To regulate Commerce with foreign

Nations, and among the several States,

and with the Indian Tribes;

To establish an uniform Rule of

Naturalization, and uniform Laws on the

subject of Bankruptcies throughout the

United States;

To coin Money, regulate the Value

thereof, and of foreign Coin, and fix

the Standard of Weights and Measures;

To provide for the Punishment of

counterfeiting the Securities and

current Coin of the United States;

To establish Post Offices and post

Roads;

To promote the Progrss of Science

and useful Arts, by securing for

limited Times to Authors and Inventors

the exclusive Right to their respective

Writings and Discoveries;

To constitute Tribunals inferior

to the supreme Court;

To define and punish Piracies and

Felonies committed on the high Seas,

and Offences against the Law of

Nations;

To declare War, grant Letters of

Marque and Reprisal, and make Rules

concerning Captures on Land and Water;

To raise and support Armies, but

no Appropriation of Money to that Use

shall be for a longer Term than two

Years;

COQQDQQQQQQQQQQQQQKQOQQHQQDOEE CCE €E€€€€€OQGQQQGQEOANNIOD

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To provide and maintain a Navy;

To make Rules’ for the Government

and Regulation of the land and naval

Forces;

To provide for calling forth the

Militia to execute the Laws of the

Union, suppress Insurrections and repel

Invasions;

To provide for organizing, arming,

and disciplining, the Militia, and for

governing such Part of them as may be

employed in the Service of the United

States, reserving to the States

respectively, the Appointment of the

Officers, and the Authority of training

the Militia according to the discipline

prescribed by Congress;

To exercise exclusive Legislation

in all Cases whatsoever, over such

District (not exceeding ten Miles

square) as may, by Cession of

particular States, and the Acceptance

of Congress, become the Seat of the

Government of the United States, and to

exercise like Authority over all Places

purchased by the Consent of the

Legislature of the State in which the

Same shall be, for the Erection of

Forts, Magazines, Arsenals, dock-Yards,

and other needful Buildings; - And

To make all Laws- which shall be

necessary and proper for carrying into

Execution the foregoing Powers, and all

other Powers vested by this

Constitution in the Government of the

United States, or in any Department or

Oificer thereof.

Section 9. Limitations upon powers of

Congress

The Migration or Importation of

such Persons as any of the States now

existing shall think proper to admit,

shall not be prohibited by the Congress

prior to the Year one thousand eight

hundred and eight, but a Tax or duty

may be imposed on such Importation, not

exceeding ten dollars for each Person.

The Privilege of the Writ of

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Habeas Corpus’ shall not be suspended,

unless when in Cases of Rebellion or

Invasion the public Safety may require

st.

No Bill of Attainder or ex post

facto Law shall be passed.

No Capitation, or cther direct,

Tax shall be laid, unless in Proportion

to the Census or Enumeration herein

before directed to be taken.

No Tax or Duty shall be laid on

Articles exported from any State.

No Preference shall be given by

any Regulation of Commerce or Revenue

to the Ports of one State over those of

another: nor shall Vessels bound to, or

from, one State, be obliged to enter,

Clear, or pay Duties in another.

No money’ shall be drawn from the

Treasury, but in Consequence of

Appropriations made by Law; and a

regular Statement and Account of the

Receipts and Expenditures of all public

Money shall be published from time to

time.

No Title of Nobility shall be

granted by the United States: And no

Person holding any Office cf Profit or

Trust under them, shall, without the

Consent of Congress, accept of any

present, Emolument, Office, or Title,

of any kind whatever, from any King,

Prince, or foreign State.

Section 10. Restrictions upon powers

of states

No State shall enter into any

Treaty, Alliance, or Confederation;

grant Letters of Marque and Reprisal;

coin Money; emit Bills of Credit; make

any Thing but gold and silver Coin a

Tender in Payment of Debts; pass any

Bill of Attainder, ex post facto Law,

or Law impairing the Obligation of

Contracts, Or grant any Title of

Nobility.

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ARTICLE VI

Debts; supremacy; oath

Al] Debts contracted and

Engagements entered into, before’ the

Adoption of this Constitution, shall be

as valid against the United States

under this Constitution, as under the

Confederation.

This Constitution, and the Laws of

the United States which shall be made

in Purstance thereof; and all Treaties

made, or which shall be made, under the

Authority of the United States, shall

be the supreme J.aw of the Land; and the

Judges in every State shall be bound

thereby, any Thing in the Constitution

Or Laws of any State to the Contrary

notwithstanding.

AMENDMENTS

Amendment [V.] Capital crimes; double

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jeopardy; self-incrimination; due

process; just compensation for

property

No person shall be held to answe!

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for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or public

danger; nor shall any person be subject

for the same offence to be twice put in

jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public

use, without just compensation.

AMENDMENT XIII.

Section 1. Slavery abolished

Neither Slavery nor involuntary

servitude, except as a punishment for

Crime whereof the party shall have been

Guly convicted, shall exist within the

United States, or any place subject to

their jurisdiction.

Section 2. Enforcement

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Congress shall have power to

enforce this article by appropriate

legislation.

AMENDMENT XIV.

Section 1. Citizenship rights not to

be abridged by states

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall

make or enforce any law _ which shal]

abridge the privileges or immunities of

citizens of the United States; nor

Shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

Section 4. What public debts are

The validity of the public debt of

the United States, authorized by law,

including debts incurred for payment of

pensions and bounties for services in

Suppressing insurrection or rebellion,

shall not be questioned. But neither

the United States nor any State shall

assume or pay any debt or obligaticn

incurred in aid of insurrection or

rebellion against the United States, or

any claim for the loss or emancipation

of any slave; but all such debts,

obligations and claims’ shall be held

illegal and void.

Section 5. Power to enforce article

The Congress’ shall have power to

enforce, by appropriate legislaticn,

the provisions of this article.

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