# Petition for Writ of Certiorari — Dominey v. Dominey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1028

## Text

b SEP § 1972
rs
Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-406

JOSEPH BARNETT DOMINEY, JR.,
Petitioner,

LOUISE ELLEN DOMINEY,
Respondent.

PETITION FOR WRIT OF CERTIORARI

To The Court Of Civil Appeals For The Eighth Supreme
Judicial District of Texas, Sitting At El Paso

Wm. Monroe Kerr
111 Midland Tower Building
Midland, Texas 79701

Counsel of Record
For Petitioner

KERR, FITZ-GERALD & KERR
111 Midland Tower Building
Midland, Texas 79701

Of Counsel

Le

eee

INDEX
Page
SUBJECT INDEX:
I. Opinions of the Courts Below ............ 1-2
II. Jurisdictional Statement ................ 2
III. Question Presented for Review .......... 2

Whether Texas law, which would in-
clude entitlement to Navy disability
retirement pay.as marital property
subject to division between spouses on
divorce, conflicts with United States
law, and, because of the Supremacy
Clause in the Constitution, must yield

thereto.
IV. Constitutional Provisions and Statutes
Which the Case Involves ................ 3
V. Statement of the Case .................. 4
VI. Reasons for Granting the Writ .......... 5-6
oe oe es ons wees 6-12

A State may not now lawfully redes-
ignate the objects of the bounty which
the United States chooses to afford its
retired servicemen and certain of
their spouses and dependents.

ik ER ne ge a

—

ii

INDEX (Continued)
Page
APPENDIX

“A”, Opinion of the Court of Civil Ap-
POE. 2. OA ES RR la
“B”, Opinion on Motion for Rehearing .... 5a
I a ORO es Sea oe Ta

“D”, From the Motion for New Trial in
the Court of Domestic Relations ...... 25a

Order Overruling Motion for New

Trial in the Court of Domestic
Ge sitar use v0 KR S 26a

From the “Statement of the Points
of Error Upon Which the Appeal
is Predicated”, in Petitioner’s
Brief in the Court of Civil Appeals . . 28a
TABLE OF CASES:

Busby vs. Busby (Tex. S. Ct., 1970), 457 SW
RE are Wer sens ta ce oie Bo ei Dae 6

Free vs. Bland (1962), 369 U.S. 663, 8 L. ed. 2d
MO, OR Ce ......................... 6, 10

Wissner vs. Wissner (1950), 338 U.S. 655, 94
ee ef eee eee 7, 11

CONSTITUTIONAL PROVISIONS AND STATUTES
CITED:

Constitution of the United States, Supremacy
Clause, Article 6, Clause 2

iii

STATUTES (Continued)

Page

Constitution of the United States, Article 1,
Section 8, Clauses 12 and 13 ..............-- 7

Article 1821, Revised Civil Statutes of Texas,
co cE atu ae EAMERR ASA ARE e SOPH 2
Texas Family Code, Section 3.63 ..........-. 3, 10
10 United States Code, Section 1201 .......... 3, 7
10 United States Code, Section 1202 ............ 3, 7
10 United States Code, Section 140la(b) .... 3, 7, 8
10 United States Code, Section 1403 ...... 3, 7, 8, 9
10 United States Code, Section 1431 ........ 3, 8, 9
10 United States Code, Section 1434 ........ 3, 8, 9
10 United States Code, Section 1435 .......... 3, 8
10 United States Code, Section 1440 ........ 3, 8, 9
26 United States Code, Section 104 ........ 3, 7, 9
28 United States Code, Section 1257(3) .......... 2
38 United States Code, Section 3101 ........ 3, 8, 9
38 United States Code, Section 3105 ........ 3, 8, 9

38 United States Code, Section 3107 .......... 3, 8

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1972

No.

JOSEPH BARNETT DOMINEY, JR.,
Petitioner,
versus

LOUISE ELLEN DOMINEY,
Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Court of Civil Appeals for the Eighth Supreme
Judicial District of Texas, Sitting at El Paso

TO THE HONORABLE WARREN E. BURGER,
CHIEF JUSTICE OF THE UNITED STATES,
AND THE ASSOCIATE JUSTICES OF THE SU-
PREME COURT OF THE UNITED STATES:

By this Petition, Joseph Barnett Dominey, Jr., re-
spectfully seeks a writ of certiorari to review the judg-
ment and opinions in this case of the Texas Court of
Civil Appeals at El Paso.

I. OPINIONS OF THE COURTS BELOW.

The trial court, the Court of Domestic Relations for
Midland County, Texas, did not render an opinion. A

2

copy of the judgment and opinion of the Court of Ciyi]
Appeals on original submission is appended hereto as
Appendix “A”, and a copy of its order and opinion
on motion for rehearing is appended hereto as Appen-
dix “B”. Both are reported in 481 SW 2d 473.

II. JURISDICTIONAL STATEMENT.

The Court of Civil Appeals rendered its original judg-
ment and opinion on April 19, 1972. It modified it on
June 14, 1972, when it entered its order overruling Pe-
titioner’s motion for rehearing. The statutory provision
believed to confer jurisdiction on this Court to review
the judgment in question is 28 U.S.C., Section 1257(3).

The judgment of the Court of Civil Appeals is a final
judgment. Because this is a divorce case, under Ar-
ticle 1821, Revised Civil Statutes of Texas, 1925, the
Court of Civil Appeals is the highest court of the State
of Texas in which a decision in this case could be ob-
tained. In the courts below, Petitioner specially set
up and claimed the right, title, privilege and immuni-
ty in controversy under the Constitution and statutes
of the United States.

III. QUESTION PRESENTED FOR REVIEW.

Whether Texas law, which would include entitlement
to Navy disability retirement pay as marital property sub-
ject to division between spouses on divorce, conflicts with
United States law, and, because of the Supremacy Clause
in the Constitution, must yield thereto.

3

IV. CONSTITUTIONAL PROVISIONS AND
STATUTES WHICH THE CASE INVOLV-
ES.

The Constitutional provision involved in this case is
the Supremacy Clause of the Constitution of the United
States, Article 6, Clause 2, reading:

“This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, o. which shall
be made, under the Authority of the United
States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”

The statutes involved in this case, all of which are
set forth verbatim, together with the official citations
thereof, in Appendix “C” appended hereto, are:

Texas Family Code, Section 3.63
10 United States Code, Section 1201
Section 1202
Section 1401la(b)
Section 1403
Section 1431 ye
. Section 1434
' Section 1435
- Section 1440
26 United States Code, Section 104
38 United States Code, Section 3101
Section 3105
Section 3107

4

Vv. STATEMENT OF THE CASE.

By this suit, Louise Ellen Dominey obtained a dj-
vorce from Petitioner, and a division of property which
included, as though it were property subject to divi-
sion, amounts which may be paid to Petitioner after
the divorce, either as Navy disability retirement pay
or Navy retirement pay (Judgment, TR 39-43).

The parties married in 1937 (SF 5). Thereafter, Dr.
Dominey went to the University of Texas Medical
School, from which he graduated in 1942 (SF 6). He
then went into the Navy as a commissioned medical
officer (SF 6) and served as such until] about October
1, 1966, when he retired (SF 7).

On October 1, 1966, Petitioner was eligible to receive
retirement pay for voluntary retirement based on
longevity of 24 years. On that date, however, he was
involuntarily retired from the Navy with disability re-
tirement on account of a heart condition and other
health problems, none of which are ascribed to any
accident or other specific event. (Stipulation of Facts
filed in Court of Civil Appeals).

At the time of trial, Petitioner was receiving disabili-
ty retirement pay from the United States and he has
continued at all times since to receive disability retire-
ment pay (Stipulation of Facts filed in Court of Civil
Appeals). At the time of trial (TR 39), Dr. Dominey
was receiving $936.00 per month as tax free Navy dis-
ability retirement pay, the amount of which becomes
adjusted from time to time with changes in the cost
of living (SF 16-17).

The trial court treated whatever payments Dr. Dom-
iney might receive in the future either as Navy dis-

the trial court enjoined Dr. Dominey to insure that
Mrs. Dominey would in fact, ive a 50% share of
the retirement payments the United States might pay
in the future to Dr. Dominey (Judgment TR 41-43).
The trial court also made division between the parties
of monies and properties on hand (Judgment, TR 40-

41).

Petitioner first raised the federal question sought
to be reviewed in the trial court in his Motion for New
Trial (TR 47-51) which he presented to, and which was
expressly overruled by, the trial judge (TR 53). He
raised it again in the Court of Civil Appeals in his
“Statement of Points of Error Upon Which the Appeal
is Predicated”. The Court of Civil Appeals met the
issue and concluded that the Texas law does not con-
flict with federal law. The pertinent portions of the
Motion for New Trial filed in the trial court, the order
overruling the same, and Petitioner’s “Statement of
the Points of Error Upon Which the Appeal is Predi-
cated” are included in Appendix “D” appended hereto.

VI. REASONS FOR GRANTING THE WRIT.

The Texas Court of Civil Appeals has decided a fed-
eral question of substance which has not been passed
upon by this Court.

The problem arises again and again, as marriages
of active and retired servicemen are terminated, eith
er by death or divorce. Whether former spouses of
active or retired servicemen, their heirs, legatees, per-
sonal representatives, assignees or creditors, may
have State created vested property rights in that
which, under present Congressional enactments, the
United States may hereafter pay its retired service.
men, needs deciding by the highest authority. Such
a decision is important not only to present and pros
pective servicemen and retired servicemen, but as
well to the components of the Armed Forces of the
United States and the Congress which is charged with
devising the means of raising and supporting Armies
and providing and maintaining a Navy.

Vill. ARGUMENT.

A State may not now lawfully redesignate the
objects of the bounty which the United States
chooses to afford its retired servicemen and cer-
tain of their spouses and dependents.

Under Texas law, declared in Busby vs. Busby
(Tex. S. Ct., 1970), 457 SW 2d 551, followed in this case,
future retirement payments which the United States
may make to its servicemen are considered property
in which the servicemen’s spouse may have a vested
property right which may be divided on the occasion
of divorce of the spouses, and, presumably, the death
of one of the spouses. This fails to reckon, however,
with the Supremacy Clause of the Constitution of the
United States, Article 6, Clause 2, as enforced in such
cases as Free vs. Bland (1962), 369 U.S. 663, 8 L. ed

7

24 180, 82 S. Ct. 1089, reversing a Texas Supreme Court
decision which gave effect to the Texas law limiting
the right of survivorship in Government Series E Bond
situations, and Wissner vs. Wissner (1950), 338 US
655, 94 L. ed. 424, 70 S Ct. 398, dealing with the inef-
fectiveness of state property law on National Service

1, Section 8, Clauses 12 and 13.

Chapter 61 of Title 10, United States Code (particu-
larly Sections 1201 and 1202), provides for retirement
of members of the Armed Forces for physical disabili-
ty, Chapter 63 of Title 10, United States Code, pertains
to retirement for age, and Chapter 65 of Title 10, United
States Code. talks of retirement for length of Service.
Chapter 71 of Title 10, United States Code (see particu-
larly Sections 1401a(b) and 1403), deals with computa-
tions of amounts of retirement pay. 10 United States

*
ae
8

Code, Section 1403, and 26 United States Code, Section
104, makes disability retirement pay tax free. Chapter
73 of Title 10, United States Code (particularly Sec.
tions 1431, 1434, 1435 and 1440), treats of servicemen’s
optional family retirement payments and annuity elec-
tions based on retirement pay, who may be eligible
to receive the same, and the times for elections to
be made if an annuity is chosen Under 38 United States
Code, Section 3105, retired members of the regular
components of the Armed Forces are entitled to elect
to take disability benefits administered by the Vet-
erans Administration in lieu of retirement pay. Chap-
ter 53 of Title 38, United States Code, and particularly
Section 3101 thereof, provides that Veterans Adminis-
tration payments are not assignable except as specific-
ally authorized by law, and are exempt from claims
of creditors, attachments, levy and seizure under legal
or equitable process. Section 3107 of Title 38, United
States Code, directs how Veterans Administration pay-
ments are to be apportioned among wives, children
and dependent parents under certain circumstances.

By its current enactments, as of the first of the year,
1971, Congress ordered that persons like Petitioner
would be paid by the United States, $993.35 per month.
It said that amount shall be adjusted from time to
time in accordance with the Consumer Price Index
published by the Bureau of Labor Statistics, 10 United
States Code, Section 140la(b). To the extent such pay-
‘ments are based on percentage of disability, and in
this case, all, (SF 16-17), Congress says such are to
be treated as an allowance for personal injury or sick-
ness, resulting from active service in the Armed

Forces, under Section 104 of Title 26, United States
Code, ie., tax free. United States Code, Section 1403.
If desired, Congress said that those with disabilities
instead may elect to take like amounts of Veterans
Administration benefits that are exempt from attach-
ment, levy and seizure under legal or equitable proc-
ess. 38 United States Code, Sections 3105 and 3101. Con-
gress said that those like Dr. Dominey can affirma-
tively elect to receive an annuity (10 United States
Code, Section 1431) of certain specified types and a-
mounts in favor of his surviving spouse, until death
or remarriage, or surviving eligible children, or his
surviving spouse, until death or remarriage, and sur-
viving eligible children, as the retiree might select (10
United States Code, Section 1434). These annuities are
not assignable or subject to execution, levy, attach-
ment, garnishment or other legal process (10 United
States Code, Section 1440). To the extent that Veterans
Administration payments might have been elected by
Dr. Dominey, Congress said the pension amount may
be apportioned among wife, children and dependent
parents, according to regulations of the Veterans Ad-
ministration, if the veteran is being furnished hospital
treatment, or institutional or domiciliary care by the
United States, or by any political subdivision thereof.

The State of Texas, on the other hand, says that if
there is a Texas divorce of a member of the Armed
Forces, such types of payments made in the future
by the United States will be paid over to the divorced
wife in such portions and amounts, up to 100% as the
divorce court deems just and right, having due regard
for the rights of each party and any children of the

10

marriage (Section 3.63, Texas Family Code). If the
occasion is death instead of divorce, and if all or any
part of the entitlement to future payments from the
United States is deemed community property of the
spouses, then one-half of the community property por-
tion of such entitlement would pass the heirs and
legatees of the deceased spouse, to be subject to as-
signment by them, and, presumably, to attachment,
levy and seizure under legal or equitable process. It
fs not too farfetched under legal or equitable process.
It is not too farfetched to conceive that in the case
of either death or divorce, all or part of the service-
man’s pension would become payable to the retiree’s
mother-in-law or brother-in-law, their assigns, or
their creditors, and that Dr. Dominey, and others simi-
larly situated, his surviving spouse, if any, and/or his
eligible children, if any, might be unable to have or
to keep the same.

In an effort to avoid the confict between state and
federal law, the trial court, recognizing that Dr. Domi-
ney’s wife has no right to receive from the United
States any part of Dr. Dominey’s future Navy pay,
proceeded to impress a trust on one-half of such pay-
ments for the use and benefit of Mrs. Dominey, and
enjoined Dr. Dominey to act accordingly. This tech-
nique was used at least once before by Texas courts
to avoid conflict of federal law with state law, involving
the validity of joint tenancies with right of survivorship
fn United States Series E Bond. This technique this
Court saw through and condemned, as it would any
mere subterfuge, in Free vs. Bland (1962), 369 US.
663, 8 L. ed. 180, 82 S. Ct. 1089.

ll

In Wissner vs. Wissner (1950), 338 U.S. 655, 94 L.
ed. 424, 70 S. Ct. 398, the Supreme Court had before
it questions about the effect of state law on ownership
and benefits of National Service Life Insurance, a crea-
ture of federal law. State law would have treated a
National Service Life Insurance policy as community
property in which a serviceman’s spouse had vested
rights. This Court held that Congress had created Na-
tional Service Life Insurance and had specified who
was to have the same, the amount, limits, costs, ob-
jects of the bounty, etc., and that conflicting state law
had to yield to the federal law by virtue of the Su-
premacy Clause of the Constitution, Article 6, Clause
2 In this case, we have the corresponding situation
in the area of other servicemen’s benefits, namely
Navy Disability Retirement Pay and Navy Retirement

Pay, annuity elections thereunder, and perhaps elect-
ed benefits payable by the Veterans Administration.

Congress has afforded no one, not even retired serv-
icemen themselves, property rights in payments which
Congress from time to time chooses to pay. Texas law
says there are such property rights, that they are vest-
ed and that spouses and those claiming through and
under them may also have vested property rights
therein. This is a conflict which needs to be resolved.
Congress has allowed a serviceman and retired serv-
icemen to make various elections for the benefit of
themselves and specified persons which Texas law
would abrogate if they were not in the best interest
of the retiree’s spouse and those claiming under him.
This is another conflict that needs attention. The most
far reaching conflict, however, is in the fact that Con-

12

gress has specified with particularity who the objects
of the bounty of the United States shall be, while the —
State of Texas has said that the object of such bounty, |
at least in part, may be others. While Congress might _
someday want to take care of divorced spouses of sery-
icemen and those claiming by and through them, it
has so far declined to do so, and it is not for the State
of Texas to direct that which the Congress has so far
declined to do.

CONCLUSION

For the reasons stated, this Petition for Writ of Cer-
tiorari should be granted.

Respectfully submitted,
Wm. Monroe Kerr

111 Midland Tower Building
Midland, Texas 79701

‘Counsel of Record
For Petitioner

KERR, FITZ-GERALD & KERR
111 Midland Tower Building
Midland, Texas 79701

Of Counsel

CERTIFICATE

I certify that a copy of the foregoing brief has been
served upon opposing counsel of record by placing the
same properly addressed in the United States Mail
with adequate postage affixed thereto this “)/“day

Le a a

of September, 1972.

la

APPENDIX

APPENDIX “A”

Court of Civil Appeals for the Eighth Supreme Judicial
District of Texas, at El Paso

JOSEPH BARNETT DOMINEY, JR.,

Appellant,
versus No. 6209
LOUISE ELLEN DOMINEY,
Appellee.

Appeal from the Domestic Relations Court of
Midland County, Texas
Date of Entry: 4-19-72

OPINION

This was a suit for divorce brought by Plaintiff-Ap-
pellee, Louise Ellen Dominey, against Defendant-Ap-
pellant, Joseph Barnett Dominey, Jr. The jury found
that Appellee had grounds for divorce, and both parties:
agreed to allow the trial Court to decide all issues per-
taining to the character and division of property within.
the marital estate. Appellant has appealed only that
part of the judgment giving Appellee one-half interest
in all future retirement benefits accruing to Appellant.
by virtue of service in the U. S. Armed Forces.

The record reflects Appellant and Appellee were hus-
band and wife during the entire period of Appellant’s

2a

~ mmilitary service, and they were residents of Texas dur.
ing such period of time; that Appellant entered the
U. S. Navy in 1942; and that Appellant retired from
the U. S. Navy in 1966. Thereafter, Appellee filed this
suit for divorce.

Appellant contends that Texas law which would in-
clude entitlements to Navy Disability Retirement Pay
and Navy Retirement Pay as marital property subject
to division between spouses on death or divorce, and
which would treat periodic payments thereof as outside
the Texas ban on permanent alimony, conflicts with
United States law, and must yield thereto under the
Supremacy Clause of the Constitution of the United
States, Article 6, Caluse 2. As this issue has been pre-
viously disposed of by the Texas Supreme Court, we
hold in accordance with the decision of Busby v. Busby,
457 S.W.2d 551 (Tex. 1970). In that case the Supreme
Court discussed and approved the cases of Kirkham
v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App. 1960, n. w.
h.): Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.
1969, n. w. h.); and Mora v. Mora, 429 S.W.2d 660 (Tex.
Civ. App. 1968, writ dism’d), holding that an interest
in a military retirement plan was an earned property
right which accrued by reason of the husband’s mili-
tary service, and that the portion earned during mar-
Tiage constitutes community property under Article
4619, Vernon’s Ann.Tex.Civ.St. Appellant urges that
this ruling of the Supreme Court was made without
‘consideration of its conflict with Federal] law and thus
is not controlling here. We do not agree with that con-
tention, and accept the cited cases as controlling here.
We are of the further opinion that there is not a clear-

3a

cut case of conflict in the record before us; that the
nature of the retirements is not so spelled out as to
dictate who is to receive them and to remove them
from Court control. This case thus differs from Free
y, Bland (1962), 369 U.S. 663, 82 S. Ct. 1089, 8 LEd2d
180, and Wissner v. Wissner (1950), 338 U.S. 655, 70
S.Ct. 398, 94 L.Ed. 424, relied on by Appellant. Appel-
lant also cites Ramsey v. Ramsey (Tex. Civ.App. —
Eastland, 474 S.W.2d 939, writ applied for Feb. 1972),
holding that disability payments of the husband paid
to him by the Veterans Administration after the di-
yorce for service-connected disabilities were his sep-
arate property. The Court distinguished the case from
Busby v. Busby, supra, saying:

“In the instant case the payment to Ramsey
was not an earned property right which ac-
crued to him by reason of his years of service
in military service, but was for personal injury
or disease to him for service-connected disa-
bility. There was no obligation or promise by
the Veterans’ Administration to remunerate
Ramsey for his service-connected disabili-
ties.”

In the case before us, the husband and wife, con-
tributed to his earning of the promised retirement
throughout the years of his service as a career mili-
tary man. The payment was earned by the husband’s
service and was not payment for a disabling eee
injury. The judgment recites:

4a

“Tt further appears, and the Court so finds, ~—
that, on account of the defendant’s service in ~
the United States Navy, all of which service
occurred while the defendant was domiciled in
Texas, the defendant is entitled to receive from
the United States government U. S. Navy re-
tired, and/or disability retired, pay benefits,
(hereinafter called “Navy retired pay”,
whether referring to regular or non-disability,
retired pay benefits or to disability retired pay
benefits.)”

The judgment speaks of “disability,” but there ts
no contention that the Appellant was disabled, and the
evidence simply is that when he got out of the Navy
he began receiving retirement pay.

All points of error have been considered, and all are
overruled. The judgment of the trial Court is affirmed.

/s/ STEPHEN F. PRESLAR
STEPHEN F. PRESLAR,
Associate Justice.

APPENDIX “B”

Court of Civil Appeals for the Eighth Supreme Judicial
District of Texas, at El Paso

JOSEPH BARNETT DOMINEY, JR.,

Appellant,
versus No. 6209

LOUISE ELLEN DOMINEY,
Appellee.

Appeal from the Domestic Relations Court of
Midland County, Texas
Date of entry: 6-14-72

ON MOTION FOR REHEARING

With remarkable candor and commendable brevity,
the parties submitted this case on an agreed statement
of facts. In their zeal to present the controlling ques-
tions with only the pertinent facts, no information was
supplied concerning the disability of the appellant.
With leave of court, a further stipulation of facts has
been filed for consideration with the appellant’s mo-
tion for rehearing. We now have before us the follow-

ing:

“On October 1, 1966, appellant, Joseph Bar-
nett Dominey, Jr., was eligible to receive re-
tirement pay for voluntary retirement based
on longevity of 24 years. On that date he was
involuntarily retired from the Navy with dis-

ability retirement on account of a heart condi-
tion and other health problems, none of which
are ascribed to any accident or other specific
event.

“Upon retirement, appellant was entitled,
solely at his option, to elect either to receive
ordinary retirement pay with his longevity and
his active-duty base pay at time of retirement
being the only determining factors, or to re-
ceive disability retirement pay to be deter-
mined by a formula that multiplies the per-
centage of disability times the amount of his
active-duty base pay at time of retirement.
When the appellant computed his prospective
retirement pay by each of these methods, he
elected to accept disability retirement pay, be-
cause he would thereby receive more retire-
ment pay.

“At the time of trial, appellant was receiving
disability retirement pay from the United
States Navy, and he has continued at all times
since then to receive disability retirement pay
from the Navy.”

Considering these additional facts, we adhere to our
original opinion. The payments though labeled “dis-
ability,” still fit into the mould of an earned property
right. They did not come to him as payment for dam-
ages suffered by an injury, but were a part of the bun-
dle of benefits — pay, quarters, travel allowances, etc.

7a

_ earned by service. As such, they flowed into the
community.

The motion for rehearing is overruled.

/s/ STEPHEN F. PRESLAR
STEPHEN F. PRESLAR,
Associate Justice

EXHIBIT “C”

Statutes:
Texas Family Code, Section 3.63. Division of Property

In a decree of divorce or annulment the court
shall order a division of the estate of the par-
ties in a manner that the court deems just and
right, having due regard for the rights of each
party and any children of the marriage.

10 United States Code, Section 1201. Regulars and
members on active duty for more than 30 days: re-
tirement

Upon a determination by the Secretary con-
cerned that a member of a regular component
of the armed forces entitled to basic pay, or
any other member of the armed forces entitled
to basic pay who has been called or ordered to

active duty (other than for training under sec-
tion 270(b) of this title) for a period of more

8a -

than 30 days, is unfit to perform the duties of —
soe See eete eis te ating See
physical disability incurred while entitled to
basic pay, the Secretary may retire the mem-
ber, with retired pay computed under section
1401 of this title, if the Secretary also deter-
mines that —

(1) based upon accepted medical princi-
ples, the disability is of a permanent nature;

(2) the disability is not the result of the
member’s intentiona] misconduct or willful
neglect, and was not incurred during a pe-
riod of unauthorized absence; and

(3) either —

(A) the member has at least 20 years
of service computed under section 1208 of
this title; or

(B) the disability is at least 30 percent
under the standard schedule of rating dis-
abilities in use by the Veterans’ Adminis-
tration at the time of the determination;
and either —

(i) the member has at least eight
years of service computed under section
1208 of this ‘ile;

(ii) the disability is the proximate re-
sult of performing active duty; or

(iii) the disability was incurred in
line of duty in time of war or national
emergency. Aug. 10, 1966, c. 1041, 70A
Stat. 91, amended Sept. 2, 1958, Pub.L.
85-861, § 1(28) (A), 72 Stat. 1451; Sept.
7, 1962, Pub.L. 87-651, Title I, § 107(a),
76 Stat. 508.

10 United States Code, Section 1202. Regulars and
members on active duty for more than 30 days: tem-
porary disability retired list

Upon a determination by the Secretary con-
cerned that a member of a regular component
of the armed forces entitled to basic pay, or
any other member of the armed forces entitled
to basic pay who has been called or ordered to
active duty (other than for training under sec-
tion 270(b) of this title) for a period of more
than 30 days, would be qualified for retirement
under section 1201 of this title but for the fact
that his disability is not determined to be of a
permanent nature the Secretary shall, if he
also determines that accepted medical princi-
ples indicate that the disability may be of a
permanent nature, place the member’s name
on the temporary disability retired list, with
retired pay computed under section 1401 of this
title. Aug. 10, 1956, c. 1041, 70A Stat. 92, amend-
ed Sept. 2, 1958, Pub.L. 85-861, § 1(28) (A), 72

10a

Stat. 1451; Sept. 7, 1962, Pub.L. 87-651. Title I,
§ 107(a), 76 Stat. 508.

10 United States Code, Section 140la(b). Adjustment
of retired pay to reflect changes in Consumer Price
Index

(b) The Secretary of Defense shall deter-
mine monthly the percent by which the index
has increased over that used as the basis (base
index) for the most recent adjustment of re-
tired pay and retainer pay under this subsec-
tion. If the Secretary determines that, for three
consecutive months, the amount of the in-
crease is at least 3 per centum over the base
index, the retired pay and retainer pay of
members and former members of the armed
forces who become entitled to that pay before
the first day of the third calendar month be-
ginning after the end of those three months
shall, except as provided in subsection (c), be
increased, effective on that day, by the per
centum obtained by adding 1 per centum and
the highest per centum of increase in the index
during those months, adjusted to the nearest
one tenth of 1 per centum.

Pub.L. 88-132, § 5(g) (1), Oct. 2, 1963, 77 Stat.
213, and amended Pub.L. 39-132, § 5(b), Aug.
21, 1965, 79 Stat. 547; Pub.L. 90-207, § 2(a) (1),
Dec. 16, 1967, 81 Stat. 652; Pub.L. 91-179, $1,
Dec. 30, 1969, 83 Stat. 837.

lle

40 United States Code, Section 1403. Disability retired
pay: treatment under title 26

That part of the retired pay of a member of
an armed force, computed under formula No.
1 or 2 of section 1401, or under section 1402(d),
of this title on the basis of years of service,
which exceeds the retired pay that he would
receive if it were computed on the basis of per-
centage of disability is not considered as @ pen-
sion, annuity, or similar allowance for person-
al injury, or sickness, resulting from active
service in the armed forces, under section 104
(a) of title 26. Aug. 10, 1956, c. 1041, 70A Stat.
108.

10 United States Code, Section 1431. Election of an-
nuity: members of armed forces

(a) This section applies to all members of
the armed forces except —

(1) members whose names are on a re-
tired list other than a list maintained under
section 1376(a) of this title;

(2) cadets at the United States Military
Academy, the United States Air Force Acad-
emy, or the Coast Guard Academy; and

(3) midshipmen.

12a

(b) To provide an annuity under section *
1434 of this title, a person covered by subsec- .
tion (a) may elect to receive a reduced amount
of the retired pay or retainer pay to which he
may become entitled as a result of service in
his armed force. Except as otherwise provided
in this section, unless it is made before he com-
pletes nineteen years of service for which he
is entitled to credit in the computation of his
basic pay, the election must be made at least
two years before the first day for which re-
tired pay or retainer pay is granted. However,
if, because of military operations, a member
is assigned to an isolated station or is missing,
interned in a neutra] country, captured by a
hostile force, or beleaguered or besieged, and
for that reason is unable to make an election
before completing nineteen years of that serv-
ice, he may make the election, to become ef-
fective immediately, within one year after he
ceases to be assigned to that station or returns
to the jurisdiction of his armed force, as the
case may be. A member of whom retired pay
or retainer pay is granted retroactively, and
who is otherwise eligible to make an election,
may make the election within ninety days af-
ter receiving notice that such pay has been
granted to him. An election made after the
date of enactment of this amendment is not ef-
fective if —

(1) the elector dies during the first thirty-
day period he is entitled to retired pay as a

13a

result of a physical condition which led to his
being granted retired pay under chapter 61
of title 10 with a disability of 100 per centum
under the standard schedule of rating dis-
abilities in use by the Veterans’ Administra-
tion at the time of the determination of the
per centum of his disability;

(2) the disability was not the result of in-
jury or disease received in line of duty as a
direct result of armed conflict; and

(3) his widow or children are entitled to
dependency and indemnity compensation
under chapter 13 of title 38 based upon his
death.

(c) An election may be changed or revoked
by the elector before the first day for which
retired or retainer pay is granted, Unless it is
made on the basis of restored mental compe-
tency under section 1433 of this title, or unless
it is made before the elector completes nine-
teen years of service for which he is entitled to
credit in the computation of his basic pay (in
which case only the latest change or revoca-
tion shall be effective). the change or revoca-
tion is not effective if it is made less than two
years before the first day for which retired or
retainer pay is granted. The elector may, how-
ever, before the first day for which retired or
retainer pay is granted, change or revoke his
election (provided the change does not in-

14a

crease the amount of the annuity elected) to
reflect a change in the marital or dependency
status of the member or his family that is
caused by death, divorce, annulment, remar-
riage, or acquisition of a child, if such change
or revocation of election is made within two
years of such change in marital or dependency
status.

(d) If an election made under this section is
found to be void for any reason except fraud
or willful intent of the member making the e-
lection, he may make a corrected election at
any time within 90 days after he is notified in
writing that the election is void. A corrected
election made under this subsection is effec-
tive as of the date of the voided election it re-
places. Aug. 10, 1956, c. 1041, 70A Stat. 108;
Sept. 2, 1958, Pub.L. 85-861, § 33(a) (11), 72
Stat. 1565. As amended Oct., 4, 1961, Pub.L.
87-381, § 2, 75 Stat. 810; Aug. 13, 1968, Pub.L.
90-485, § 1(1), (2), 82 Stat. 761.

10 United States Code, Section 1434. Kinds of annuities
that may be elected

(a) The annuity that a person is entitled to
elect under section 1431 or 1432 of this title
shall, in conformance with actuarial tables se-
lected by the Board of Actuaries under section
1436(a) « this title, be the amount specified by
the elector at the time of the election, but not
more than 50 per centum nor less-than 1214 per

15a

centum of his retired or retainer pay, in no
case less than $25. He may make the annuity
payable —

(1) to, or on behalf of, the surviving
spouse, ending when the spouse dies or re-
marries;

(2) in equal shares to, or on behalf of, the
surviving children eligible for the annuity at
the time each payment is due ending when
there is no surviving eligible child; or

(3) to, or on behalf of, the surviving
spouse, and after the death or remarriage of
that spouse, in equal shares to, or on behalf
of, the surviving eligible children, ending
when there is no surviving eligible child.

(b) A person may elect to provide both the
annuity provided in clause (1) of subsec-
tion (a) and that provided in clause (2) of sub-
section (a), but the combined amount of the
annuities may not be more than 50 per centum
nor less than 12% per centum of his retired or
retainer pay but in no case less than $25.

(c) An election of any annuity under clause
(1) or (2) of subsection (a), or any combina-
tion of annuities under subsection (b), shall
provide that no deduction may be made from
the elector’s retired or retainer pay after the
last day of the month in which there is no bene-

16a

ficiary who would be eligible for the annuity if —
the elector died. For the purposes of the pre -
ceding sentence, a child (other than a child
who is incapable of supporting himself because
of a mental defect or physical incapacity ex-
isting before his eighteenth birthday) who is at
least eighteen, but under twenty-three years
of age, and who is not pursuing a course of
study or training defined in section 1435, of this
title, shall be considered an eligible bene-
ficiary unless the Secretary concerned ap-
proves an application submitted by the mem-
ber under section 1436(b) (4) of this title. An
election of an annuity under clause (3) of sub-
section (a) shall provide that no deduction may
be made from the elector’s retired or retainer
pay after the last day of the month in which
there is no eligible spouse because of death or
divorce.

(d) Under regulations prescribed under
section 1444(a) of this title, a person may, be-
fore or after the first day for which retired or
retainer pay is granted, provide for allocating,
during the period of the surviving spouse's eli-
gibility, a part of the annuity under subsection
(a) (3) for payment to those of his surviving
children who are not children of that spouse.
Aug. 10, 1956, c. 1041, 70A Stat. 109.

As amended Oct. 4, 1961, Pub.L. 87-381, § 3, 75
Stat. 811; Aug. 13, 1968, Pub.L. 90-485, § 1(3),
82 Stat. 751.

l7a

3 United States Code, Section 1435. Eligible benefici-
aries

Only the following persons are eligible to be
made the beneficiaries of, or to receive pay-
ments under, an annuity elected under this
chapter by a member of the armed forces:

(1) The spouse of the member on the date
when the member is retired or becomes en-
titled to retired or retainer pay or, if the
member was already retired or entitled to
retired or retainer pay on November 1, 1953,
the spouse on that date

(2) The children of the member who
are — ‘

(A) unmarried;

(B) under eighteen years of age, or in-
capable of supporting themselves because
of a mental defect or physica] incapacity
existing before their eighteenth birthday,
or at least eighteen, but under twenty-
three, years of age and pursuing a full-
time course of study or training in a high
school, trade school, technical or vocation-
al institute, junior college, college, univer-
sity, or comparable recognized education-
al institution;

(C) legitimate or adopted children of, ~
or stepchildren in fact dependent for their —
support upon, the member,

(D) living on the date when the mem-
ber is retired or becomes entitled to re-
tired or retainer pay or if the member was
already retired or entitled to retired or re-
tainer pay on November 1, 1953, living on
that date; and

(E) born on or before the date pre-
scribed in clause (D).

For the purposes of clause (2) (B), a child is
considered to be pursuing a full-time course of
study or training during an interval between
school years that does not exceed one hundred
and fifty days if he has demonstrated to the
satisfaction of the Secretary concerned that he
has a bona fide intention of commencing, re-
suming, or continuing to pursue a full-time
course of study or training in a recognized ed-
ucational institution immediately after that in-
terval. Aug. 10, 1956, c. 1041, 70A Stat. 110. As
amended Aug. 13, 1968, Pub.L. 90-485, § 1(4),
(5), 82 Stat. 752.

10 United States Code, Section 1440. Annuities not sub
ject to legal process

No annuity payable under this chapter is as-
signable or subject to execution, levy, attach-

ment, garnishment, or other legal process.
Aug. 10, 1956, c. 1041, 70A Stat. 111.

38 United States Code, Section 104. Compensation for
injuries or sickness

(a) In general — Except in the case of a-
mounts attributable to (and not in excess of)
deductions allowed under section 213 (relating
to medical, etc., expenses) for any prior tax-
able year, gross income does not include —

(1) amounts received under workmen's
compensation acts as compensation for per-
sonal injuries or sickness;

(2) the amount of any damages received
(whether by suit or agreement) on account
of personal injuries or sickness;

(3) amounts received through accident
or health insurance for personal injuries or
sickness (other than amounts received by an
employee, to the extent such amounts (A)
are attributable to contributions by the em-
ployer which were not includible in the gross
income of the employee, or (B) are paid by
the employer); and

(4) amounts received as a pension, an-
nuity, or similar allowance for personal in-
juries or sickness resulting from active serv-
ice in the armed forces of any country or in

the Coast and Geodetic Survey or the Public
Health Service, or as a disability annuity
payable under the provisions of section 83]
of the Foreign Service Act of 1946, as amend-
ed (22 U.S.C. 1081; 60 Stat. 1021).

For purposes of paragraph (3), in the case of
an individual] who is, or has been, an employee
within the meaning of section 401(c) (1) (relat-
ing to self-employed individuals), contribu-
tions made on behalf of such individual while
he was such an employee to a trust described
in section 401(a) which is exempt from tax un-
der section 501(a), or under a plan described in
section 403(a), shall, to the extent allowed as
deductions under section 404, be treated as con-
tributions by the employer which were not in-
cludible in the gross income of the employee.

(b) Cross references. —

(1) For exclusion from employee’s gross
income of employer contributions to acci-
dent and health plans, see section 106.

(2) For exclusion of part of disability re-
tirement pay from the application of subsec-
tion (a) (4) of this section, see section 402
(h) of the Career Compensation Act of 1949
(37 U.S.C. 272 (h) ).

Zila

Aug. 16, 1954, c. 736, 63A Stat. 30; Sept. 8, 1960,
Pub.L. 86-723, § 51, 74 Stat. 847; Oct. 10, 1962,
Pub.L. 87-792, § 7(d), 76 Stat. 829.

38 United States Code, Section 3101. Nonassignability
and exempt status of benefits

(a) Payments of benefits due or to become
due under any law administered by the Vet-
erans’ Administration shall not be assignable
except to the extent specifically authorized by
law, and such payments made to, or on account
of, a beneficiary shall be exempt from taxa-
tion, shall be exempt from the claim of credi-
tors, and shall not be liable to attachment,
levy, or seizure by or under any legal or equit-
able process whatever, either before or after
receipt by the beneficiary. The preceding sen-
tence shall not apply to claims of the United
States arising under such laws nor shall the ex-
emption therein contained as to taxation ex-
tend to any property purchased in part or
wholly out of such payments. The provisions
of this section shall not be construed to prohib-
it the assignment of insurance otherwise au-
thorized under chapter 19 of this title, or of
servicemen’s indemnity.

(b) This section shall prohibit the collec-
tion by setoff or otherwise out of any benefits
payable pursuant to any law administered by
the Veterans’ Administration and relating to
veterans, their estates, or their dependents, of

any claim of the United States or any agency
thereof against (1) any person other than the
indebted beneficiary or his estate; or (2) any
beneficiary or his estate except amounts due
the United States by such beneficiary or his
estate by reason of overpayments or illegal
payments made under such laws to such bene-
ficiary or his estate or to his dependents as
such. If the benefits referred to in the preced-
ing sentence are insurance payable by reason
of yearly renewable term insurance, United
States Government life insurance, or National
Service Life Insurance issued by the United
States, the exemption provided in this section
shal] not apply to indebtedness existing against
the particular insurance contract upon the ma-
turity of which the claim is based, whether
such indebtedness is in the form of liens to se-
cure unpaid premiums or loans, or interest on
such premiums or loans, or indebtedness aris-
ing from overpayments of dividends, refunds,
loans, or other insurance benefits.

(c) Notwithstanding subsection (a), pzy-
ments of benefits under laws administered by
the Veterans’ Administration shall not be ex-
empt from levy under subchapter D of chapter
64 of the Internal Revenue Code of 1954 (relat-
ing to seizure of property for collection of tax-
es). Pub.L. 85-857, Sept. 2, 1958, 72 Stat. 1229.

38 United States Code, Section 3105. Waiver of retired
pay

Any person Who is receiving pay pursuant
to any provision of law providing retired or re-
tirement pay to persons in the Armed Forces,
or as a commissioned officer of the National
Oceanic and Atmospheric Administration or of
the Public Health Service, and who would be
eligible to receive pension or compensation un-
der the laws administered by the Veterans’ Ad-
ministration if he were not receiving such re-
tired or retirement pay, shall be entitled to re-
ceive such pension or compensation upon the
filing by such person with the department by
which such retired or retirement pay is paid of
a waiver of so much of his retired or retire-
ment pay as is equal in amount to such pension
or compensation. To prevent duplication of
payments, the department with which any
such waiver is filed shal] notify the Veterans’
Administration of the receipt of such waiver,
the amount waived, and the effective date of
the reduction in retired or retirement pay.
Pub.L. 85-857, Sept. 2, 1958, 72 Stat. 1231. As
amended Pub.L. 91-621, § 6(a) (3), Dec. 31,
1970, 84 Stat. 1864.

38 United States Code, Section 3107. Apportionment of
benefits

(a) All or any part of the compensation,
pension, or emergency officers’ retirement
pay payable on account of any veteran may —

24a

(1) if the veteran is being furnished hos-
pital treatment, institutional, or domiciliary
care by the United States, or any political
subdivision thereof, be apportioned on behalf
of his wife, children, or dependent parents;
and

’ (2) if the veteran is not living with his
wife, or if his children are not in his custody,
be apportioned as may be prescribed by the
Administrator.

(b) Where any of the children of a deceased
veteran are not in the custody of the veteran’s
widow, the pension, compensation, or depend-
ency and indemnity compensation otherwise
payable to the widow may be apportioned as
prescribed by the Administrator.

(c) If a veteran is not living with his wife,
or if any of his children are not in his custody,
any subsistence allowance payable to him un-
der chapter 31 of this title may be apportioned
as may be prescribed by the Administrator.
Pub.L. 85-857, Sept. 2, 1958, 72 Stat. 1231.

25a
APPENDIX “D”

IN THE COURT OF DOMESTIC RELATIONS OF
MIDLAND COUNTY, TEXAS

No, DR-1985

LOUISE ELLEN DOMINEY
versus
JOSEPH BARNETT DOMINEY, JR.
DEFENDANT'S MOTION FOR NEW TRIAL

JOSEPH BARNETT DOMINEY, JR., the Defend-
ant in the above entitled and numbered cause, makes
and files this his Motion for New Trial, moving the
Court to set aside the Judgment heretofore rendered,
signed and entered, and to grant a new trial herein
on the following grounds, to-wit:

2.

The Court has erred in treating as property, which
may be the subject of present division between hus-
band and wife on the occasion of divorce, whatever
the Defendant might hope to expect to receive in the
future from the United States of America because of
the Defendant’s service in the United States Navy,
whether such payments might be deemed disability
_ payments, retirement payments, or disability retire-
ment payments.

’

26a

4.

The Court has erred in failing to hold and to recog-
nize that it is the law of the United States of America,
and not the law of the State of Texas, which governs
entitlements, rights and privileges in and with respect
to payments which might be made in the future to
the Defendant by the United States of America because
of his service in the United States Navy, whether such
payments might be deemed disability payments, re-
tirement payments, or disability retirement payments.

12.

Perforce of the Supremacy Clause, Article 6, Clause:
2, of the Constitution of the United States, the Plaintiff
has no rights whatsoever in or on account of that which
the United States of America may choose to pay the
Defendant in the future on account of his service to
the United States, and the Court has erred in holding
that the Plaintiff has a vested right therein and thereto.

WHEREFORE, the Defendant prays that the Court
grant this Defendant a new trial.

ORDER OVERRULING DEFENDANT’S
MOTION FOR NEW TRIAL

On this the 1st day of March, 1971, the Court brought
on to be heard and considered the Defendant’s Motion
for New Trial heretofore filed in the captioned proceed-

27a

ing, and after having heard and considered the same,
it is considered ORDERED, ADJUDGED and DE-
CREED that said Motion for New Trial be, in all things,
overruled.

RENDERED, SIGNED and ENTERED the day and
year first above written.

/s/ Joseph H. Mims
(Judge Presiding)

ee

No. 6209

In The
COURT OF CIVIL APPEALS
FOR THE EIGHTH SUPREME J UDICIAL DISTRICT
OF TEXAS
At El Paso

JOSEPH BARNETT DOMINEY, JR.,
Appellant,
versus

LOUISE ELLEN DOMINEY,
Appellee.

BRIEF FOR APPELLANT

28a

STATEMENT OF THE POINTS OF ERROR UPON
WHICH THE APPEAL IS PREDICATED

* * * *

TWO

The error of the Court in treating as property,
which may be the subject of present division
between husband and wife on the occasion of
divorce, whatever the Appellant might hope or
expect to receive in the future from the United
States of America because of the Appellant’s
service in the United States Navy, whether
such payments might be deemed disability
payments, retirement payments, or disability
retirement payments. (Under Assignment of
Error No. 2, TR 47).

* * * *

FOUR

The error of the Court in failing to hold and to
recognize that it is the law of the United States
of America, and not the law of the State of Tex-
as, which governs entitlements, rights and
privileges in and with respect to payments
which might be made in the future to the Ap-
pellant by the United States of America be-
cause of his service in the United States Navy,
whether such payments might be deemed dis-
ability payments, retirement payments, or dis-
ability retirement payments. (Under Assign-
ment of Error No. 4, TR 48).

29a
TWELVE

Perforce of the Supremacy Clause, Article 6,
Clause 2, of the Constitution of the United
States, the Appellee has no rights whatsoever
in or on account of that which the United States
of America may choose to pay the Appellant in
the future on account of his services to
the United States, and the Court has erred in
holding that the Appellee has a vested right
therein and thereto. (Under Assignment of Er-
ror No. 12, TR 50).

REPLY BRIEF

SUBJECT INDEX:

I. Opinions of the Court Below .................. 1
Il. Jurisdictional Statement ...................... 2
Ill. Question Presented for Review ................ 2

ad «

Does state law approving a divorce judg-
ment which awards one-half of a Navy
officer’s disability retirement pay entitle-
ment which awards one-half of a Navy
him to pay her such an amount of money
monthly as he receives it, conflict with
United States law so as to require nullifi-
cation of the state law under the Supre-
macy Clause of the Constitution?

Constitutional Provisions and Statutes

Which the Case Involves .................... 2
Ghatemnent oF The GOOD «2... cc ccsvccccescsccces 2
Reasons for Denying the Petition .............. 3
IIS 6 ova ks dphconesnncddceesceseceess 4-10

A. There is no federal question of sub-
stance involved in this case, because the
holding of the Texas Court of Civil Ap-
peals does not conflict with United States
law so as to require striking down that
holding. ,

B. Petitioner does not here question the
essential fairness of the financial provi-
sions of the trial court’s judgment

C. It would be fundamentally unjust to
render Navy retirement pay categorical-

ii
INDEX (Continued)

ly unavailable for the welfare and sup-
port of the retiree’s dependents afer di-
vorce.

D. The Petitioner complains of the di-
vorce judgment financial provisions
which are favorable to his spouse, while
he accepted and retained under his total
and unlimited dominion (and may have
disposed of) some of the benefits award-
ed to him under the financial provisions
favorable to him. The Petitioner is there-
fore not before this Court with “clean
hands.”

E. The Petitioner has failed to sustain
the burden of showing a sound, compel-
ling reason to grant the writ.

Conclusion .......... ed ea gt EEN Oe ll
APPENDIX

“A”, From the Judgment of Divorce in the Court

of Domestic Relations .....................la
TABLE OF CASES:

Carle v Carle, 234 S.W.2d 907 (1950) _........... 9

Free land, 369 U.S. 663, 8 L.Ed.2d 180,
S.Ct 1089 (1962) aekanaweenden 4, 5,6

Kelly v Washington, 302 U.S. 1, 10; 82 LEd3;
AEE AE Rn 6

Schiaefer v. Schlaefer, 112 F.2d 117 (U.S. Ct.
of Appeals, Dist. of Columbia, 1940) ........ 7

iii
INDEX (Continued)

Voelkel v. Tohulka, 236 Ind. 588, 141 N.E.2d
344, certiorari denied 355 U.S. 891, 78 S.Ct.

Wissner v. Wissner, 338 U.S. 665, 94 L.Ed. 424,
70 S.Ct 398 (1950)

ee

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1972

No. 72-406

JOSEPH BARNETT DOMINEY, JR.,
Petitioner,

versus

LOUISE ELLEN DOMINEY,
Respondent.

RESPONDENT’S REPLY TO PETITION FOR WRIT
OF CERTIORARI

TO THE HONORABLE WARREN E. BURGER,
CHIEF JUSTICE OF THE UNITED STATES,
AND THE ASSOCIATE JUSTICES OF THE SU-
PREME COURT OF THE UNITED STATES:

Respondent Louise Ellen Dominey respectfully
urges the Court to deny the Petition for Writ of Cer-
tiorari filed by the Petitioner herein.

I. OPINIONS OF THE COURT BELOW

Petitioner has correctly presented the matter in his
petition.

Il. JURISDICTIONAL STATEMENT

Respondent contends that the provisions of 28 U.S.C,,
Section 1257(3) do not confer jurisdiction upon the
Court in this case, because none of the criteria set
forth in the statute are met.

Ill. QUESTION PRESENTED FOR REVIEW

Does state law approving a divorce judgment which
awards ome-half of a Navy officer’s disability retire.
ment pay entitlement to his spouse, and which
requires him to pay her such an amount of money
monthly as he receives it, conflict with United States
law so as to require nullification of the state law under
the Supremacy Clause of the Constitution?

IV. CONSTITUTIONAL PROVISIONS AND
STATUTES WHICH THE CASE INVOLVES

Although the Petitioner appears to assert that twelve
United States statutes are involved in this case as be-
ing in conflict with the holding of the Texas court, the
Respondent denies that any of the listed statutes con-
flicts with the Texas holding. Since the case involves
no conflict between United States law and Texas law,
it follows that neither is the Supremacy Clause of the
Constitution involved.

Vv. STATEMENT OF THE CASE

Petitioner fairly stated the case in his Petition. How-
ever, some additional statements are needed.

Upon retirement, Petitioner was entitled, solely at
his option, to elect either to receive ordinary retire-
ment pay with his longevity and his active-duty base
pay at the time of retirement being the only deter-
mining factors, or to receive disability retirement pay
to be determined by a formula that multiplies the per-
centage of disability times the amount of his active-
duty base pay at time of retirement. ‘Vhen the Petition-
er computed his prospective retirement pay by each
of these methods, he elected to accept disability retire-
ment pay, because he would thereby recive more re-
tirement pay.

Following entry of the trial court’s judgment, Peti-
tioner left in the registry of the trial court much of
the property awarded to him, but he also took and
possessed and exercised total unrestricted dominion
over other properties which were awarded to him.

Petitioner’s appeal of this case has been based solely
on his claim of conflict with federal law.

VI. REASONS FOR DENYING THE PETITION

A. There is no federal question of substance in-
volved in this case, because the holding of the Texas
Court of Civil Appeals does not conflict with United
States law so as to require striking down that holding.

B. Petitioner does not here question the essential
fairness of the financial provisions of the trial court’s
judgment.

4

C. It would be fundamentally unjust to render Navy
retirement pay categorically unavailable for the wel.
fare and support of the retiree’s dependents after dj.
vorce.

D. The Petitioner complains of the divorce judg-
ment financial provisions which are favorable to his
spouse, while he accepted and retained under his total
and unlimited ¢4ominion (and may have disposed of)
some of the benefits awarded to him under the finan-
cial provisions favorable to him. The Petitioner
is therefore not before this Court with “clean hands,”

E. The Petitioner has failed to sustain the burden
of showing a sound, compelling reason to grant the
writ.

Vil. ARGUMENT

A. There is no federal question of substance in-
volved in this case, because the holding of the
Texas Court of Civil Appeals does not conflict
with United States law so as to require striking
down that holding. i

Petitioner’s argument lists twelve statutes which he
considers to bear upon this case, but he has not in-
dicated how he considers that one of them conflicts
specifically with the Texas Court of Civil Appeals hold-
ing in this case.

However, Petitioner has made it clear that the hold-
ings in the cases of Free v. Bland, 369 U. S. 663, 8

LEd.2d 180, 82 S.Ct. 1089 (1962), and Wissner v. Wis-
sner, 338 U.S. 655, 94 L.Ed. 424, 70 S.Ct. 398 (1950),
are those upon which he relies to suggest a conflict
between Texas and United States law in this case. So
it might be helpful to examine these cases to deter-
mine their applicability, if any, to the present case.

In Free v. Bland, the dispute arose over title to cer-
tain United States savings bonds. Mr. and Mrs. J. W.
Free were Texans who, during their marriage, bought
savings bonds with community funds, and directed that
the bonds be issued to “Mr. or Mrs.” Free. When Mrs.
Free died, leaving her son as principal beneficiary of
her will, her widower claimed the bonds under the U.S.
Treasury regulations, which specified that such bonds
pass to the surviving named co-owner, while her son
claimed that her one-half community interest in the
ponds passed under her will. The Supreme Court held
for the widower, saying that there was a federal law
involved, and that it did specifically and directly and
irreconcilably conflict with the Texas law, and that
the federal law must therefore prevail.

The case of Wissner v. Wissner dealt with the pro-
ceeds of a policy of National Service Life Insurance.
Wissner, an Army officer, died owning the policy of
which he had designated his mother the sole bene-
ficiary. His widow would have been, under the com-
munity property law of California, entitled to one-half
the proceeds of the policy. The Court held that the
federal statute, which gave the insured the unequivocal
right to select beneficiaries, being in svecific opnosi-
tion to the state law, must prevail, so the decedent’s

mother was awarded the proceeds of the life insurance
policy.

The general rule or test concerning conflict betwes,
state and federal laws is that the state law must yield
where there is a conflict so direct and positive that
the two acts cannot be reconciled or consistently stand
together. Kelly v. Washington, 302 U.S. 1, 10; 82 L.Ed3;
58 S.Ct. 87, 92. Let us examine the three cases against
that test.

In Free v. Bland and Wissner v. Wissner, the fed.
eral and state law were in such diametric conflict that
both laws could not survive:

In the Free case, to have upheld state law
that a 50% interest in bonds passed under the
will would have struck down and rendered null
and void the federal law which said that 100%

of the bonds should pass to the named sur-
vivor.

In the Wissner case, to have upheld state
law that the widow should receive 50% of the
life insurance benefits would have struck down
and rendered null and void the federal law
which said that 100% of the benefits should
pass to the named beneficiary.

In the Dominey case, to hold that Mrs. Dom-
iney may receive 50% of the retirement pay
will not strike down nor render null or void
any federal] statute or regulation.

that this case does not in any way involve a claim
to the right of attachment, levy or seizure, but on the
contrary, such retirement funds are dealt with by the
trial court judgment only after they have been paid
to the retiree. (Appenidx “A” shows the trial court's
judgment as it pertains to the retirement pay.)

to prohibit the performance of domestic financial du-
ties. Voelkel v. Tohulka, 236 Ind. 588, 141 N.E.2d 344,
certiorari denied 355 U. S. 891, 78 S.Ct. 263, 2 L.Ed2d
189: Schlaefer v. Schlaefer, 112 F.2d 117 (US. Ct. of
Appeals, Dist. of Columbia, 1940).

statute. The right’s defeasibility at the instance of the
United States Congress does not destroy the “vested”
nature of the right in the context in which it is used
in this case.

B. Petitioner does not here question the os
sential fairness of the fimancial provisions of the
trial court’s judgment.

Petitioner has never during this appeal claimed that
the financial provisions of the judgment were in any-
way unfair or unjust to him, but rather he claims only
that it conflicts with federal law. In short there is no
assertion by Petitioner that the failure to rule favor-
ably to him will result in any injustice to him.

C. It would be fundamentally unjust to render

Petitioner, in stating that Congress “has so far de-
clined to” take care of divorced spouses of service
men, implies the contention that the retiree should
never be required to help take care of his divorced
spouse, if to do so would require that he dip into his
retirement pay. Bearing in mind that a military couple
might retire after 30 years of marriage and military
service with no income or property at all except, say,
$1,500.00 per month in retirement pay, it is difficult
to believe that Congress had clearly in mind a plan
to aid such a retiree in a scheme to drive his wife
from his home, leave her a destitute charge on society,

asily have said so in the statute.

D. The Petitioner complains of the divorce judg-
ment financial provisions which are favorable
to his spouse, while he accepted and retained un-
der his total and unlimited dominion (and may
have disposed of) some of the benefits awarded
to him under the financial provisions favorable
to him. The Petitioner is therefore not before this
Court with “clean hands.”

The courts of Texas have regularly held that when
a divorce judgment is entered, neither party may pros-
ecute an appeal as to the property division if such ap-
pellant has voluntarily accepted some of the financial
benefits of the judgment. Carle v. Carle, 2344 SW.2d
907 (1950). This issue was submitted by respondent on
appeal to the Texas Court of Civil Appeals, but since
that appellate court upheld this respondent's position
on other grounds, it did not comment in any way on
this issue.

E. The Petitioner has failed to sustain the bur-
den of showing « sownd, compelling reason to
grant the writ.

It is respectfully submitted that perhaps the strong-
est reason for not granting the writ of certiorari in
this case is that the Petitioner has not shown a really

10

strong reason for doing so. Petitioner fails to show
that any injustice will result from sustaining Respond.
ent, or even that adoption of any of the principles ad.
vanced by Petitioner are necessary to justice in future
cases involving related situations.

Petitioner states that if the Texas courts are sus.
tained, 100% of the retirement income could be or.
dered paid by the retiree to his former spouse, and
he implies that this would be bad. In the first place,
it is not an issue in this case because the court ordered
only an equal division of the income. Secondly, if it
is “bad,” the Congress may surely enact legislation
to prevent its occurrence.

Petitioner further states that an extension of the
state court holding in this case would entitle retiree's
former spouse to assign interests to such people as
retiree’s mother-in-law, or brother-in-law. or to the
spouse’s creditors, and Petitioner implies that this
would be bad. Once again, such a state of facts is not
now before this Court, so the Petitioner is asking that
the Court deal with the case on the basis of hypothetical
facts instead of the real ones. And once again. if such
assignments are “bad,” then the Congress may surely
enact legislation to prevent them.

So far the Congress has not enacted any statutes
that are in conflict with the state law involved. There-
fore, the Respondent's position herein is legally valid,
as well as fair and just.

ll
CONCLUSION

For the reasons stated, the Petition for Writ of Cer-
tiorari should be denied.

Respectfully submitted,

Pat M. Baskin

P. O. Box 10%

1000 Midland Savings Building
Midland, Texas 79701

Counsel of Record
For Respondent

LEGG, SAXE & BASKIN
P. O. Box 107

1000 Midland Savings Building
Midland, Texas 79701

Of Counsel
CERTIFICATE

I certify that a copy of the foregoing brief has been
served upon opposing counsel of record by placing the
same properly addressed in the United States Mail
with adequate postage affixed thereto this ___ day

of October, A. D. 1972.

la
APPENDIX “A”

IN THE COURT OF DOMESTIC RELATIONS OF
MIDLAND COUNTY, TEXAS

No. DR-1985

LOUISE ELLEN DOMINEY
versus

JOSEPH BARNETT DOMINEY, JR.

JUDGMENT OF DIVORCE

On September 22, 1969, came on to be heard the above
styled and numbered cause wherein Louise Ellen Dom-
iney is plaintiff and Joseph Barnett Dominey, Jr. is
defendant, and the defendant having been duly served
with citation and appearance day having passed, the
parties came in person and with their attorneys and
announced ready for trial. The Court finds that the
plaintiff's pleadings meet all the requisites of the law.
A jury having been demanded, a jury of twelve persons
was selected.

ay
;

SECTION III.

It further appears, and the Court so finds, that, on
account of the defendant’s service in the United States
Navy, all of which service occurred while the defend-
ant was domiciled in Texas, the defendant is entitled to
receive from the United States government U. S. Navy
retired, and/or disability retired, pay benefits, (here-
inafter called “Navy retired pay”, whether referring
to regular, or non-disability, retired pay benefits or
to disability retired pay benefits.)

IT IS ORDERED, ADJUDGED and DECREED that,
beginning with the payment received by the defendant
on or about January 1, 1971, the plaintiff shall own
and hold as her property one-half (1/2), and defendant
shall own and hold as his property one-half (1/2), of
the gross Navy retired pay entitlement, as the same
is now constituted and as it may from time to time

be increased or decreased in amount by the U. S. gov-
ernment.

It is further ordered that the defendant shall pay
and deliver over to the plaintiff in Midland County,
Texas, by postal or bank money order a sum of money
equal to one-half (1/2) of the gross Navy retired pay
on or before the fifth (5th) day after its receipt by
the defendant.

In order that plaintiff may know at all times of any
changes or proposed changes in the formula for Navy
retired pay and/or the status thereof, it is further or-

3a

ered that the defendant shall send to plaintiff @ fac-
simile copy Of each voucher accompanying & Navy
retired pay check, and all other memoranda, letters
and forms relating to the status or proposed status
of the retired pay account and/or of his duty status
in the Navy, and a copy of all requests, memoranda,
letters to, and written summaries of oral communica-
tion with U. S. government authorities which might
affect the retired pay account. The defendant shall
mail such copies and/or summaries to plaintiff within
five (5) days of the date that defendant so receives
or writes or orally communicates.

In the event that the defendant shall perform any
act or permit any omission which shall terminate, in-
terrupt, postpone or reduce, or shall contribute to ter-
minating, interrupting, postponing or reducing the a-
mount of the gross Navy retired pay (other than re-
turning to extended active duty in the United States
Navy), then the defendant shall nevertheless pay to
the plaintiff a sum of money each month, payable on
or before the fifth (5th) day of each such month, equal
to one-half (1/2) of the Navy retired pay which defend-
ant would have been entitled to receive but for such
act or omission of the defendant. In the event that
the defendant shall return to extended active duty in
the United States Navy, then when he shall return to
retired status, the payments by defendant to plaintiff
hereunder shall resume and continue, but the amount
due plaintiff shall be computed as one-half (1/2) of
the maximum gross Navy retired pay which the de-
fendant would have been entitled to receive from the

ww
#8

4a

U. S. government if he had never returned to active
duty.

The parties’ present mailing addresses are as fo}.
lows:

Dr. Joseph B. Dominey, Jr.
Travis State School

P. O. Box 430

Austin, Texas 78700

Mrs. Louise R. Dominey
P. O. Box 6064
Midland, Texas 79701

It is ORDERED that the defendant shall send to the
plaintiff at her said mailing address, (subject to
change of same as provided hereafter) all payments,
notices and other correspondence required or contem-
plated by this judgment. The defendant is hereby OR-
DERED to notify the plaintiff of any change of his
residence address by sending her written notice there-
of to the said post office address above within ten (10)
days after his change of such address. And the plain-
tiff is ORDERED to notify the defendant of any change
of her mailing address given above at least ten (10)
days prior to the effective date of such address change.
All notices and correspondence required hereunder be-
tween the plaintiff and the defendant shall be by certi-
fied or registered U. S. Mail, with return receipt re-
quested.

5a

The orders in Section III hereof shall have all the
full force and effect of permanent mandatory injunc-
tions, and they shall be enforceable by this Court, or
its successor, in continuing jurisdiction, by contempt
of court proceedings and by all other appropriate equit-
able and legal remedies of the plaintiff.

* om 7 2

SECTION VII.

IT IS FURTHER ORDERED, ADJUDGED and DE-
CREED that the plaintiff and defendant shall execute
such letters, assignments, endorsements, applications
and income tax returns, provided for above, and they
shall execute any and all other instruments and per-
form any and all other acts and deeds as may be rea-
sonably necessary or appropriate to carry out the prop-
erty and financial provisions hereinabove set forth.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1403%3A1. Public record. Not legal advice.