# Petition for Writ of Certiorari — Hadley v. Hadley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0130%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 892 ## Text la tae i td dl nd ad de de a ee eT TAS AS RSE AC ACS ASAT AS AS RESERE SESE RUSE EERE RE SU AR RE RE OE Ree oe ’ ~ .) é é U > is 2 38 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 12 : *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 (c) Table of Authorities ..... iv (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 -jli- Ae “ ANA VD PFDPADADADADADADIDINADANDANDADAANANDNNANANADANHAADAAHADAGCOAN Th nh EE EO ieee a ee ae ae a ae ae ae ae a a a a ee ee ee eT —_— Appendix A. B. S* 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 COOCCOCOCCCOCCOCOCOCCOCOCOCOCOCECOCORAAN oe OF OF OF On an @ i Bee ee Eee eS 8 8 8 ee es ee PNADANAADAAQAA . (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 » 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 ww PIPADVIVDIPDIDANIADADDANAD -Vviiie oe a er eV OVE VU VU UU UO OUD Dow > 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 EEE ETE! ee EEE Ee TE = = = aS as sa VVVISDIIIIIIII III IVI IVI VI VVVV PIIIIVVVVVVUVVGVUVUVNYU ee eee ee ee a er PPP PO Oo OO OG Dd “— aa i ~ (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, > rs - - > o o = ys - y - - - - = o ~ - a - a a - 2 oa - m ~ - a 2 a - a a a a ad > a = = - = OUVOOOOOCCOCOOCOCOOCOCUOUCOCUUOLLUUULULULLUUUULLLOFCOUUUUY vu 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 NONNNNNNDDHNNNNNHKHOKECCHODHQKHDHHANHOHOOHOCECOHEOCOOCECOCHKOCANADAN t YVYUYUYYUYUUUUUYUEYUYUYUUVYUYVYUUUYYUYVYUYUUENVMUVYUYVUUUUUYUUYDYUYD'D | 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 (c) (1) provides: 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 CVEVEVEDE DEDEDE DEDEDE DEDEDE DEDEDE ED ED ED ED ED ED ED ED ED ED EM EDM EM ED EH ED ED EM EM EM EDM ED EV ED EH EDEDG ~~ = ra ee oes CP rm™ fF i Oe | 14 Pe Pe et es Pet iia A cee UYU OOLUOLUUUUUUUUUUUUEUULUOUUYUUUUUUL YU, ra 4 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 7 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 HRANNKHANANKNCOANKAKAKHHKHHKHECCECOCECCECQQQQCHECECECCEECEEEOCOECOHNDN ra a] VE UVUVU VOM VV VUVYUYVYVVVV UV VV VV VV VV VV VV VUVVUYUVUVVIIS 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 10 OVO OE GO NOONAN HNOONOHHOHOHHOH GE QOAOGOnANAY VO Ov evan Over ave, VEU UUUVUEEUUEYUVUUYUYUVUUUUUVYUUUUYUYUUUYUUUUUUUUUUNUYUYSA \ 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 11 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 12 - - e a e - - - - Cc ¢ e - - , - ‘a = 6 e = . Cc € e “ C - - - - - - - - - e e a a a a € 2 * CUVEE UUUEUUYVYUYUYUUYEUEUUUUUYUUYUUUUUYUUUYUUUYUYUYV' 4 y J 4 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) 13 [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 14 DEV EDD DED DEVVEVIVVVDVAAAAO ADA AVDA DANA DAN AANA AA AMO MAAM ad (sr be I I ce re ee i i ee Un Cn Ge en Cn Un en ©) ee a Se i ee ee ee ee ee es es es ee es es ee 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 16 e ¢ ¢ c C - . C - C C C C C C C C C C C ¢C ¢C C C C ¢ ¢ , , c ¢ ¢ ¢ c ¢ ¢ f WMO CO EEO COO UYUUUYUUYUYUULOCLECOCULUUUUUUUVUY U 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. 17 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 18 4 thy eh a "OOOO OEE EE EEOC EO CEO EC ECC CCE COECC CE CEC QOACORN Veo ceveeeeqeeeeeeoujouuevveovvvvveocecucuueonouvwunoweeuvurvdds)s 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 19 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 20 INONAANNDADKHAHAAHKHHHOCOCEOCORHOOCCOCE CECE OCOCOCOCEEEOCOECOAY PERCE ECEECUEUECUUEUUUUOUUUUCECUULLCLCECULULCULULCULULUUUNUYVYND "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 21 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). CH CH CER COD LOW CRCH OD OB CE CY CRMCE FU CO CE COCR CECE CH CE CEO Cle CPCREV*DR OVER CA ‘y 1) PIV IVIPCVeeys (wevid i es CE ce te a: Me es MI I i i i i i rr er re i a BB. Bake se. Ue Un on on en Cn Um On On Un Cn Un Un Un Un UE Un Un Cn OE UN UN ON UN UN UN URURURUEUEE) a j VYVeceaeqceaqdceoqgedcse F / Fd 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;...". 23 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 (c) (2). 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 24 Ve HOON DONNNNOHQOHEEOEOQOQOOKEKECECEECEOHOOHO OEE OFC OOOOH ONNANAHESE MID D GIGI VV VOU OVO VV IIIIVIIIGVIVIVIVIVIGIIGIIGFIIIIIIIIID. _e 8 2 8 8B 8 OS 8 Ue he. Ue UD. Ue. UL Ue 8 8 8 eee eee ee eee 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 25 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. 26 cPe De Dede Dec Dec Dc De Ve Ve de de VEDI DCDCDC DIDI Dd CD CO CO CO CO CO CD FD CD CD DW BVA MMWWMMWP a a - ~~ — - UR OE OE Oe On On OF G8 Of OF OF OF GF OF OF UF UE URURURURUEUE UEULUEUEULULULULULULERULULULULUrUrene rene 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 27 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 28 DNNNNNNNANNNANNNNNNANNNNNANNANNNANAHAHHANNANANAANAAKDAKARAKDRDAR WEUEUEUEUUEULYUUEUEEUEEEEUEVUUUEUYUYEYUEUUUUUUUUUUYUVUUYUULUUYUYUDY! 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 29 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. Pa Attoriuey for Petitioner 30 Qaeae [Hf EOEOQOOKECECEEECCOQOQOCECE ECE CO CECCCECQEQEOQOQEEOEECQECCORM APPENDICES PTNHAOHONARAANNANANNANANNANANAAKRHARABAAKDRKHAABAAAAAAABAAAARAAAAAA ttt .t.thik:.h6!th6+:.h:.h:.h:sh:khshkhGkhGSkhlG:khGkthcehG;khGkhGskhlh:keh:h:kh:shG:skhm:skh:shs:shsehlsesehs:sh: ksh: 0 TO OT i i i VM EE eS ee eae LS SS ES SS SS SS SS Le r. . TY Te ee ee ee ee ee ee a ee a ee a a, ae ee ee ee Oe Oe Oe Oe Oe Om Cn Un Cn Un Un Un Un UE UE UE Un UE Un UE OE UE UE Un Gn UE Un UE © VUUUUUOULEUUEULUULUUUELUULUELOLULULLLLLLLLUUULLUUUUL ‘4 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 NOMAO AA AA ADA AAA AANA ANA ANA NAAN NAA AKAN AAA AAAAAAAAAMAAAAA AA ee eee Se a ee a ee ee ee ee ee ee ee ee aL RS. SS mC ET me eee hrm te ee eh ’ ’ JUUUVVUVVUUU UU UU UUUUUUVUUUUUUUUVUVUUUVUUUUNNUUE 7 UU 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) as 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 an On OF OF OF OF OF OF On On On On On On On On On On On OF OF On Oe Oe Oe On On Oe Oe Oe Oe On On On On Oe Oe Oe Oe Oe ee oe oe eee | 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 - e = - - - - , - - , s - - - , - - - , , c c S - € € € ‘a e e e . € e e e * * ¢e ¢€ C - COOOOOOOOOOOOOOOOMOUUOLLHLOULULLLLOEOCLOOHUUULUUYUYVUYNU 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 HOQQQCCECCECCEOCOCECOCOCCCQOQOCECECOOCOCOEE OOOOQODQOOMNADNE a) bi eR ee ee eee) OOUVWUVUVUVUVUVUUUVVUVIIVIIIIVUUVVUIVIVIIIVIIY 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: > >. _- em > tlm a so To We Wao Ba 2a Ba Ca Pa ta Qa Ca ta Wa ata Ca tata i.e... et. ¢.. 2. .. 2.2. oS. eS eS eee ee U BRR RRR RR ERR RRR GOECKCKHEKCOKCKKEHEHHEHOHHOOHHHOHUCKCECECECCECECECLCEUELCEULUULLUUYUYU 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) » neti: hlhlUMstlUCU UOclC( (ti Dt ( iTrtltc(‘ Ht (‘ Om kT SU Ca aSmlLlUcrc eUmUlUlUC LcCOClClU rLTCOCllCODllCTO lr Tr TO TO eR UR kU TC MR DTD. eT m= Cl LN SSS SS SS a SESS SS SS SS SS OS le VIIIIIIIIITII DI VIIIIIIIVIIVII II VI VI vo vvvVveVVVGVNY ¢ RCRA LA OOOO YC LLCEECOOOLOUVYUVVUVYVVIVIUD ir fe Oe eS ee SS ese ee ee a a ee ae ee ee ee ee ee eee te ee a ee eS ee ee y weeeeed 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 ew as sas ae eas .—ChVCOCUCOOCOCC TRC CCURlCUCRhlULT CU CU CU CU ie CeeUuCeeoeUUUOUUUUUYUUVNINUY rr, Perr rrr rrr ee SS SS SS See Eee UEC Ee eee eS eS ee Al on J UCeurdccecuduuuucuue 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 Ax 4 ~ DVAVAAVOADNNNDNDANNDHDOHOHOHOADCDADADDADDADADDADDADAADADADAADHRDAHOKOHOAEAH £ a Jc Bi covclccdsslddadllcalcelduucelchlehtccee nn iin PEEVE eeee eee uvvvveeuvvvvvVvVvuVvVVUVUVVVUNUINS 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. ‘?) | nn 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 OOOOOOEEEEEOCOOEE EEE ECE CEEEECOECCCEEEOD COOOOOE | 4 Ce j meiriy y yy yy YT YT Ty UP CUT UT TCT UT eee TC CC CLEeTeCTTeCTeCT TT Se eee HeewvwvuvovovvovveyvusyuvvvovvuvVTeeouoeeeeeu_0njq4qvgoevuvuuVVVvVIJ 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 ‘ U COOCCCECCCOCOCOCOCECECCCCEOCECOCOCEOECECOCOCEOCEECE CE : SK her share of the military retirement a 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 PGeevvevueeeeee eee vyuvuvevevvceeeceeece;eeeeeeuueouvuvsvevudss © 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 '?) ! ~ © ac aA of Ay a) isn es fe fe fe fe eeestesessshs.h:sh:shmelhUmeh hc he ce cS ee ee ee ee ee eee ee ee DIDADAIADANAANADAINANANAAAAAAAAAAAAAANAANANDANAIAANAAA 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, v 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 DA AAD ANAA AAA ADD ADAAADAADAADAADAAVADADAVVVAVAIAVIVBIAIANNOAMOAWY EYURENE ERENT REDURURURU HUNG HU HU HU HU HU HU TU HU DU LU RU DU LULU ULULULULULURURUEUEULUD UrURC RU HU KU 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 CLAD DADA AQO QA AAA ADA QOD OOOO NNN ANNAN NNNANANDNADANANANAANNANNYNM. RRR RRR RRR RRR RARRER RRR RERRREREEEEEEEEEREESES PUES EVE VUVUYVYVVYVYECEVEUVEVEEVEYEVVEYEVUEYVEUEYVNdS: 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 oO 2) ! wn 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 18 ‘) I | BRR ERR RRR REE YEOUUOUOUUVUUYUNUUVUYNOEUGCUUOOUYUOUUYUYUUUYYONON ya 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 I. 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 YVIYIVVY i i ee BURR ERR ERE RRR BRR ERR RRR RRR VUUUVUVUUEEUUEUUUUVVUYVYVYVYUEEUUUUUUUUYUYUYUY —l Fl RRR A Re RRR aR RS. RRR ee eee eee. ee ee 8) Oe oe ee ee oe Oe oe ee, 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 DANANDANDNNDDANDAIDNDIADDNDNDANANAANANNAANNDARDANANRDRAAADAAAAAAAAAA eee ee PE EERE E EEE ESR EERE RER ER ERER EERE EEE Vee uuee eee UUEUUVUUUHUCULTCeCee_e ee UUUUUVUUUVUVUVI be by by [sic] the 15th day of each month. Petitioner (Plaintiff) shall pay taxes on the monies received by her pursuant to this paragraph. (Bracketed material added). V. 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 C C C C C C C C C C C C ¢ C C C C C . < « ¢ C ¢ < ¢ . ‘ ‘ . ¢ ¢ ¢ ¢ : plabelaleleloleelplolebenotoletotetetecstebetotelel lctotelel etal rlrtetebet at CEO EUUUUUUEEEUEUUEUEUUUUUUUUUUUYY fF 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. X. 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 Cc G G G w oe w w w w we w w w w ~ ~ a wa w w w Sd w w w w ed Ld ww ww ww - ~ - — . - SC C CG e ~ o al lel i CECE EEE EHS EUUUEUUUUEEUUULEELLCELCLEUUUUUUVUID 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 I. The Court has jurisdiction over the parties and the subject matter of this action. II. That this action does not sound in s) 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). V. That RCW 26.16.200 and the intent of the party's original contract and D- 10 COOOOOCEOOCOEOCEOCOCOECCOEEE EC OCOCOCCOECCCOE EC EE ECCOCOOR 4 r,rr,rrYrr",,rPrrerrrrPPerrrereer eee SSPE EP EEE ERP EEE EEE EEE VF, VCeeeeUOee eee EE UEUVUEUUHeUeeHeUEUUeeeeUUUUVUUUVUOUVIS 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. Oo ! 11 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. X. 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 COACOCCCCOCCOCO OC COC OEC CCE EC ECC EC €€€€ CECE CECE a * ot ‘ vevvvd PRRRRRARRREERRRRRRRERRRR REE R EERE EERE EES S Ee eeE! rn Un On Un Un Oh Uh On On Ox ON OE ON OE OR OR ON OE ER EE 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 oO 1 13 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. a 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 itt iidieenennannn Mia a Ae ee diene eee APA reel ee ee oo UR UE Ua Ux Ux UE UN x Ux Ux Ux x Ux Ux UX UX CRUX UL UN UN On Ux Un UN UN Un UN Ux Ux UL UL UL UL UL UE ULE TTR TIT IC Kt 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 Bivins thik bb bi Li hai hah hh RR RRA RS ~~ i FF _ ia a. a ee eleheurlbeleletetslebeleiebelnletelbeleleletelebetalletallatrbebalbetahstal ata VER HHOOLCOOEEUEEUUVUEOUYUUHeHUELULUCeUUUUUUUUUUNUUN 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. ke 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 CERRO OCOOCCOOCOC ECE OCOOCOOCOCOCEOOOCOCOE EOC OCOEE OOEECOEOA SPPRPSSSS SESS ERR ERE EERE EERE REERER REE RRR RERR ERR REESE PERCE OUSOOO OOOO YUVOOVVOKOOOOECELOUUUULUUUYUNUN, | 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. ) ) ) a ) 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 _o) of ob of ad of af of af af af al al al all all all al of ol at ot ol ot at yy ee ae a ae ee ee en ee PRRRERRRRRRRRE RRR RRR RRR RRR RRR RRR RRR PEEVE VOLOUOEVUVVVV VV VEC UUUUUUUUUUUUUNNUNNNY. 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 a Pa - ~ - ~ i | . wUUUU On On Un Un Un Un Gn Gn Gn Gn On On Gn Un On Un Un Un On Un Om On Om em wn Un Wr Wan Ga Ga Ga Ga Wa Ge Oe Se Se Se oe © 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. VOAVPVPVPVAVVVVVVAVAVVVVFVVVVVVVVVVVVIVIDIIDIVIAADAIAA kW We We es ee ee es es ee es es es ee ee ee ee Oe Oe (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 E-8 = G Cc Cc Cc Cc Cc Cc ’ % q % a 5 g ® ¥ 4 t + § a 2 & & 4 3 = 8 ® gz e & 2 a & LJ 8 é & * f a & ' = & e * a b | [THON NNNNGCNDANNKHHOHNDDNDADADADKRAADADAADBARADAADADAYAD . Va Umenenene seme Ee | eS a: q ’ @qaeaeaeaaqeeaeseae @ €@ OE Oe OOOO YOU O® 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 BAOAQAADODBD OOD DAA AAV AV VDDD AV VV VV ViVVWWBWwieVeviedveVor ore Un Gn Gn Gn Gn Gn Gn Gn Gn Un on Un on Un Un Un Un Un wa Un Un UE Un Ua Ua Uk Uk Uk UR Uk Ue Uk VE UR UR Ua UE UR UE UE CET E UE UR 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 PQA VVVVVVNVAGANAVNVANAAANAVDAVAVVDAVVVVVVVVAVAIAAVGVAAVAAADAIA OE ECREEELEEELEREREWEEREREREREREEREBRERELEBREMEBROBRERR ES SO errs, BOA @24€44 eee A OOP OPPO eee eeereverevwvwewoeouvrvevvvvvYvvv”*”*”,”~” 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 AHAAAAANBAANAHABDAHABHAANAAABRAAA AR AAA AA AAAAIAAIAADAADADAAR Ur Ue Gn Gn on Gn Gn Gn Gn Gn Gn CE Un UE Un UE UE UE UE UE UE UE OE UE UE UE UE UE UE UN UE UE UE UE UE UE URUEUE OF CRU EUS ES) 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/ /s/ QEeeqju_oeeeqj0q«»_c¢ooooo_«oo_¢_©o_©¢ooooveovuvvvveuvevevuvvvvVovrvcwvcrverv 4246466464666 6€6666466666466466€464604666646466666464 64 4 EE RHE OU UYUYVUY 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 BEE EEE A ES LEG RBE':=SCO ESE EER ENE EE Se eS eS eS eS lca lca lUCUceEerChlUCcererlUCUrmeerlUCUceEerE hlUceerClUCcraererClUCUrcaererhlUCUaererlUcrcaerrlUCUreaererlUCUcaererlUCUcaererlUCUcaererUlUmraermrlUmracarerlUmraeerlUcraerlUaeellUe ee ee WYUVUUERUUEOEHEUEUUEUUUUUUEUUUUUUUUUUYUULUUUUULULULUYU ' Mite Tat ee iat ae eee ee ee oe ee | Oe ee Ue Se Oe Ue Ue Ca Ua Ua Ua Un Un Un Un Un on Un Un Un Un U) Geveee_eeeeaeeeeecee_eeceuceuecece 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 ANNANKDADKDHADAHDHAKDRADAHADNAAANAAAAAAAAAAADADADADAAAANANAADANY YT enwsartetitftifeofofnatfcfonunaitanftonrfositaatrutitataau'.ten£'’tnaun2fi"'”'i.:.»«.we8ne#eeewen#ffeef°f . Pun Un Un Un Un Un Un Un Un Un Un Un UE Un UN UN UE UN UN UE UE UE UN UE UN UN UN UE UN UN UN UN UN UN UN UH UR URUR UN CReRCRO Re 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) eS & eee SE EE EE OE OS EU UL UU Ue Ue Ue. US. Ue UB US. 8 8 8 ee ee ees Pun Un Un Un On On Un On On On On OF On OF OF OE On OE OF OF OF OF OF UF GF OF OF OE OF OR OR OR OR GEOR UR OBOE UB OBOE Os CR eae qaecee ee Oaoaaoeaoaoeceaoeoeoooeooc@edaedcecdced¢4e eee eee encaouTeuvvds 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. (c) So far as practicable, during any 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 H-2 COQQQ QQ OQGHOHOHDE GHOHQ QDOQGAANDADANAADOHAAAAGAOAGOGAGAAAAAAOOAA OM MD “ EOS OSSOSSOSOOOOOOVOULOULUULLCLUUUCUCUULEUUUUUUUYUY aeaacaceaae 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 _=_sS se BB BBB ERE RREEREEEEREEREREREREEEREREERERE REE | ~UUC tt ek On UR EL ULUL UL UL ULULULULey ey ereren’. YVUEUee_eeew oe ugyvyVUVVV VUVYUUYVYVUUUYUYUUYUUUVUUUVUUUUUUUUVUIVUY JUD 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 (C) any court of competent 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) on on on oF OF OF OF of of of of af af of of of off afl of of af of oF of of oF of oF oF OF OF OF OF OF OF OE OF OF OF OF OE OE OR a ka. a eee ENE PEN Ur Un Ur Ul UN Ul UN Ul UN UN UN UN UN UR UN UX UR UX ON ON UN UE UE UE UN UE OR UR UR CRORO EEE 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 (C) in the case of a division of 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.]; (C) are properly withheld for 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¢ rc I-06 a can a ~ ww - ~~ ~~ w QVOVENOINQINONONONOOONONONONOON OY ON ON ON OV ON GY OY ©) © “QO OQOHNO QOH OO OOOO OOO) OOO) &) 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; (C) the court order or _ other 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 (C) includes nothing on its face that provides reasonable notice that it is issued without authority of law. (c) (1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. (2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, I-8 ¢e c Cc a € < € a % € 2 . so € 5 € - ‘él 2 € e - - p p - - - - - - pm > - p , - , - , > Cc C ~ Se ae ee ee We es ee ee es rr rr er rr re rr Or Or Oe On Oe Ge On Oe Gn Ot On Gren @ 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 © - - - - - ww - - - - - = « ~ < w@ - - w < - - - - - - - w ~ ~ - - - w - - . ad - - a we RC ee OC OOCEEECOCOCOOLUUULUUULECLCULULCULUCLCULCUUULOVUNVN)VNY a 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 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 m4 | 13 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 € ot c = 2 ww - ~ ~- - - ww ww ww = = = ~ ~ - = ~ = C C C S = ~ ~ ~ oe — “ ~ ~- ~ ~ ~ © G ~ . * 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 = S G C C @ ww ~ - ~ - - ~~ ~ ~ ~ ow — — C ~ C ~ w - - - - a ~ ~ - a we ~ ~ ~ - - - - ' Oe Se Se Ge Ss es es es es es es es es es es oe Oe Oe ee Cn Cn Cn Cn Cn Cn Cn on Cn Gn Un Gn Un Gn Gn UE Un CE UE UE UE CEUES ES | (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 A S a - — } . al nald O l< che amount retained - index lause (11) of P -_ ubparagraph (A) until such time i that ecretary n¢ provided e a 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 - - — - - - — ~ ~ ~ ~ < - GC . ww - a ~ - — - = - - - a w w w - = - 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 J : m - J oa > « 4 + 4 } 1 1 . es ‘ ‘ 7 : v rc ‘ . TT ~~ . re ™ — - > ae J L . e4 ¢ ~~ ‘ , . = 9 ~ - + = - pa 4 _ - a > - ae — . - - ; ’ . on L = by 7 = + , oF i > F a ~ - Ly ‘ 4 . ~ — + r a - ¢ . ) 4 Pre? at aa - 7 . + , ; , ; 4 S . ; - ~ 4 - a 4 4 - a a a , > s » : ~ - 0 ben { - oa ‘ : 4 1 ‘ “Yr : ‘ ’ : - . > ad a nd > r , = - - ”~ hd 4 : : ; . , ys » ~ c- = / z ‘ > 1 , Ly 4 2 - ~— . <4 > > >» or . -— ap ; - ~ — . - i 1 ‘ oil = O 1 ; ‘ ” c- by Ly 4 . : t : : : 7 » 4 + = . 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 an of pay a mount provides pay payab previously ror tn respect to d 65 percen served aour e payment oO which exceeds the amoun disposable reti t 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 ~~ | ‘oe Wawra tava a = _- aw eawanwT at @ ‘ ‘owawtawvTtawvtawvavavT «a: eouvnoececvrvedeeuqcedcacqcecececueq_eowourdcevsvvdYV €eeocqceeonovoaooocqg