Petition for Writ of Certiorari — Seddio v. Michaels
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( Supreme Court, U.s.
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cs FILED
99187 6 FEB 1 6 2000
No. OERICE 05 25 shame
In The
Supreme Court of the United States
October Term, 1999
FRANK JOSEPH SEDDIO, JR.
Petitioner,
V.
LYN MICHAELS,
Respondent.
On Petition For Writ Of Certiorari
To The Court of Appeals
For The Second District Of Texas
Fort Worth, Texas
PETITION FOR WRIT OF CERTIORARI
THOMAS V. MURTO III
OF COUNSEL
STRADLEY & WRIGHT
9330 LBJ Freeway, Suite 1400
Dallas, Texas 75243
Tel.: (972) 231-6001
Fax: (972) 231-7004
Counsel of Record
For Petitioner
RICHARD B. TANNER
100 North Central Expressway
Suite 1205
Richardson, Texas 75080
Tel.: (972) 991-2124
Fax: (972) 234-5234
Additional Counsel
For Petitioner
QUESTIONS PRESENTED FOR REVIEW
Do state courts have authority under the federal Uniformed
Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, as
interpreted in Mansell v. Mansell, 490 U.S. 561 (1989), to enforce
an agreed divorce decree provision which awards the former
spouse a sum certain when that sum is based in part upon retired
pay that the retiree subsequently waives to receive veterans
disability benefits?
If a military retiree waives his retired pay to receive a VA
disability benefit after a divorce, does a state court have authority
under the federal Uniformed Services Former Spouses’ Protection
Act, 10 U.S.C. § 1408, as interpreted in Mansell v. Mansell, 490
U.S. 561 (1989), to enforce an agreed divorce decree provision
which awards the former spouse a sum that is based in part upon
the amount the retiree waived if the divorce decree contains a
general indemnification against undisclosed debts or obligations?
TABLE OF CONTENTS
Questions Presented For Review — ..........scccccccscccccsecees i
Tele CE COMMING ceicceccicccscvessccesscsarccncccsessssoccnscanesonts ii
Table Of Authorities ...ccccccccscccccccccccccscccccscscccccsccssccccees iv
FATE secsccccscescascccccsererecessovesevoncesenensecssvcneeansnees 1
Statutes Involved im Case — ....cccccccccoscccccccccccccccccccsccoocess 1
Statement Of the Case ..cccccccccccccccvccsccscoccssccccccessosesscese 3
Reasons for Granting the Writ — .............ccssccccssscescsccsecees 5
1. The court of appeals has decided an important
federal question in a way that conflicts with decisions
OF GRE COME, cacccnsrccnssopcasscxincsssssanensvnseioniobestoaneins 5
2. This case is part of a growing trend of state courts’
ignoring the limitations imposed upon their power
under the USFSPA, as interpreted in Mansell. __........ 10
3. Under the analysis of the court of appeals,
service members on active duty are not protected by
the USFSPA’s exclusions for disability benefits. ......... 13
4. Unless this Court acts to correct this situation,
it ie basi CO UE WOTER. — cedccctnkcnkciscnitnenceentnbedenianegs j4
COMET hn ccccnccnvncssinnsssbansssanmbeaaaeane 14
Appendix
Agreed Final Judgment and Decree of Divorce and
Binding Contractual Property Settlement Agreement
Ge PACES sev ccssccissistinteremasiienanmecebion la
seal Fa et Ai ie eR
Findings of Fact and Conclusions of Law _............... 33a
Judgment of Texas Court of Appeals ...............0s000 37a
Opinion of Texas Court of Appeals ................s0eeeeees 38a
Order Overruling Motion for Rehearing of Texas
Court of Appeals .............sesecceccceecececeeceserescesoes 45a
Notice of Denial of Writ of Error from the
Texas Supreme Court .............ceceeccceeececececeeseeseees 46a
E-mail letter dated Feb. 8, 2000 from Defense
Accounting and Finance Service to Richard B. Tanner,
re: Former Spouses’ Protection Act ...........seeeeeeeeees 47a
10 U.S.C. § 1408 —........erccccccccccccccccccccccccsoees sunsened 48a
SB US.C. G SSCL ccccvcscvesssccccccccvccccccccccccvcccsccecees 66a
3B U.S.C. § 5304 2. ..cccccccccccccccccccccccccvccccscscccsocses 70a
iv
TABLE OF AUTHORITIES
Cases
Abernethy v. Fishkin,
Se eB IR Ec isscrscuscouicovassnpinieetvesaneisaiiceonenonencenns 1]
Clauson v. Clauson,
ee ee I BPI oss is cckitecdccxocsetibicala cs buasiddalinate: 12
Hisquierdo v. Hisquierdo,
439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) 0.00. 13
Jn re Krempin,
70 Cal. App.4” 1008, 83 Cal.Rptr.2d 134
Fe Be MOU GsiistesrtinidideeNedacstanG tsk vessecdbanssbapial 11, 12,14
In re Marriage of Gaddis,
191 Anz. 467, 957 P.2d 1010 (Ariz. App. 1997)........00....0000. 11
In re Marriage of Jennings,
RDS PO: Gk i, FOr ae Ce CRO OP sen csiccctsitiessncnssctsnncroreiors 12
Kramer v. Kramer,
252 Neb. 526, 567 N.W.2d 100 (1997) ou... eee eeeeeeeeeees 12
Mansell v. Mansell,
490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed2d 675 (1989)......passim
McCarty v. McCarty,
453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) .....5, 6, 11
McHugh v. McHugh,
124 Idaho 543, 861 P.2d 113, 115 (1993) ..000. eee 1]
Owen v. Owen,
14 Va. App. 623, 419 S.E.2d 267, 269-71 (1992).........0....000. ll
Statutes
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Be ee IE piicistassinds ints Aaa tcnbacccanstidtapinnsicpabaadenoduatna dials 1,5
Pr ee IE anid ntivininidansinieencicsiedsinciecidsnniseiadalipbonmmmmaaiaos Lz
ee eI Sit riccifeta deniinnctscanischensactitcaecncihionsansapoenaiaaaaliaes Lz
PE tisitiennissinieeyesvisahiseiapeidiciaaiaaaicialaalmnti 2
Other Authorities
I HN Fg RE es atric cnn itccanscp taphtirrsatbindebaaenesonnninats 13
Block, Reduction in Disposable Retired Pay Triggered by
Receipt of VA Disability Pay: a Basis for Reopening a
Judgment of Divorce?, Oct. 1995 Army Law. 28 (1995)......... 14
Fenton, Uniformed Services Former Spouses’ Protection Act
and Veterans’ Disability and Dual Compensation Act
Awards, Feb. 1998 Army Law. 31 (1998)... eee 11, 13
Gilbert, A Family Law Practitioner's Road Map to the
Uniformed Services Former Spouses Protection Act,
Fee I ic I, Oe risers ca srersisiecaatenis craic 10
Statistical Abstract of the United States 1998 0000.00 13
Sullivan, Military Pension Division: Crossing the Minefield,
FE A ee as eich cata kicnsnaiiedentichbenaleceeiaaeiabimredighs 14
No.
In The
Supreme Court of the United States
October Term, 1999
FRANK JOSEPH SEDDIO, JR.
Petitioner,
V.
LYN MICHAELS,
Respondent.
PETITION FOR WRIT OF CERTIORARI
Petitioner Frank Joseph Seddio, Jr. (“Frank”) respectfully
requests that this Court grant its writ of certiorari to review the
judgment of the Texas Court of Appeals for the Second District of
Texas in Forth Worth issued in favor of Lyn Michaels (“Lyn”) on
August 28, 1998. That court’s opinion was not published.
JURISDICTION
The court of appeals’ judgment was entered on August 28,
1998. The court of appeals denied Frank’s motion for rehearing on
October 15, 1998. The Supreme Court of Texas denied Frank’s
Petition for Review on November 18, 1999, making the court of
appeals the highest court of Texas in which a decision on the
merits could be had. This Court has jurisdiction to review this case
by certiorari under 28 U.S.C.§ 1257 in that Frank asserts rights
under 10 U.S.C. § 1408, the Uniformed Services Former Souses’
Protection Act (““USFSPA”), and 38 U.S.C. § 5301.
STATUTES INVOLVED IN CASE
Due to their length, the full text of 10 U.S.C. § 1408, 38
U.S.C. § 5301, and 38 U.S.C. § 5304 are set out in the appendix.
The most pertinent portions of these statutes and the full text of 38
U.S.C. § 5305 are set out below.
10 U.S.C. § 1408
(a) Definitions. In this section:
(4) The term “disposable retired pay” means the total monthly
retired pay to which a member is entitled less amounts which—
(B) are deducted from the retired pay of such member as a
result of forfeitures of retired pay ordered by a court-martial
or as a result of a waiver of retired pay required by law in
order to receive compensation under title 5 or title 38; ....
(c) Authority for court to treat retired pay as property of the
member and spouse. (1) Subject to the limitations of this section,
a court may treat disposable retired 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....
(e) Limitations. (1) The total amount of disposable retired pay of
a member payable under all court orders pursuant to subsection (c)
may not exceed 50 percent of such disposable retired pay.
38 U.S.C. § 5301
(a) Payments of benefits due or to become due under any law
administered by the Secretary shail not be assignable except to the
extent specifically authorized by law....
38 U.S.C. § 5305
Any person who is receiving pay pursuant to any provision of law
providing retired or retirement 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 under
the laws administered by the Secretary if such person were not
receiving such retired or retirement pay, shall be entitled to receive
such pension or compensation upon the filing by such person with
the department by which such retired or retirement pay is paid of a
eee —
waiver of so much of such person’s retired or retirement as is equal
in amount to such pension or compensation. To prevent
duplication of payments, the department with which any such
waiver is filed shall notify the Secretary of the receipt of such
waiver, the amount waived, and the effective date of the reduction
in retired or retirement pay.
STATEMENT OF THE CASE
Frank and Lyn were divorced by an agreed final judgment and
decree of divorce (“divorce decree”) on February 19, 1991. (CR 2;
Appendix la et seg.) At the time of the divorce, Frank had
recently retired from the United States Air Force as a master
sergeant with 20 years of service. With respect to a division of
Frank’s military retired pay, the divorce decree awarded Lyn
a monthly amount of money equal to fifty (50%) per cent
of that monthly amount a retired Master Sergeant with
twenty (20) years’ [sic] of service will receive from the
date FRANK JOSEPH SEDDIO, JR. begins receiving
his retirement, together with the same percentage of any
and all cost-of—living-related increases to which FRANK
JOSEPH SEDDIO, JR. shall become entitled....
(CR 11; Appendix 8a.) The divorce decree also contained a
QUARDO directing the Secretary of the Air Force or his designee
to pay Lyn directly her interest in Frank’s disposable retired pay.
The divorce decree then stated:
It is the Court’s intention that, if that dollar amount or
“award” (or a larger sum as increases take effect)
exceeds fifty (50%) per cent of the disposable retired or
retainer pay, the Secretary of the Airforce [sic], or his
designated agent, shall pay to LYN [MICHAELS] the
maximum amount allowable under the Uniformed
Services Former Spouses’ Protection Act, and that
FRANK JOSEPH SEDDIO, JR. shall be responsible for
paying the balance of the award each month to LYN
[MICHAELS] ....
(CR 12; Appendix 10a.)
At the time of the divorce, Frank was receiving $76 per month
in Air Force disability benefits, which were deducted from his
gross monthly retired pay of $888. (CR 19, Appendix 18a;
Movant’s Exhibit 1.) Four years later the Department of Veterans’
Affairs (“VA”) granted Frank VA disability benefits, which it has
subsequently increased. In accordance with the USFSPA, the
Defense Finance and Accounting Service deducted Frank’s
disability benefits before sending Lyn 50% of frank’s disposable
retired pay. The VA disability adjustments resulted in Lyn’s
monthly USFSPA payments dropping from $453 to $164.50 in
September 1995 and to $61.50 in March 1996. (Movant’s Exhibit
1.)
In 1996 Lyn filed a motion to enforce provisions of the
divorce decree. (CR 42.) Frank raised the federal question sought
to be reviewed when he responded to the motion. He contended
that the divorce decree was void to the extent (1) that it calculated
the amount of military pay due to Lyn without regard to Frank’s
disposable retired pay, as required by the USFSPA and (2) that it
required Frank to pay money_received from VA disability benefits
or the amount of retired pay he had to waive to receive such
benefits. (CR 71.) At the hearing, Frank argued that this Court’s
opinion in Mansell v. Mansell, 490 U.S. 581 (1989) controlled this
case. Frank further argued that under Mansell the state court had
no jurisdiction over his VA disability benefits or the portions of his
retired pay that he had to waive to obtain the VA disability
benefits. (RR 45-47.)
On September 9, 1997 the district court issued an order
granting Lyn’s motion for enforcement and awarding her
$9,347.66 for unpaid retirement payments plus attorneys’ fees.
(CR 118; Appendix 31a.) The trial court made findings of fact and
conclusions of law in which it held that it had the authority to
enforce property settlement agreements that involve military
retirement and disability benefits. It distinguished Mansell on the
grounds that it did not decide the issue of whether a state court
may enforce an agreement between the parties even if it involves
payment from disability benefits. (CR 127; Appendix 36a.)
Frank appealed to the court of appeals. That court affirmed
the trail court’s order on August 28, 1998. (Appendix 37a.) In its
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opinion, the court of appeals acknowledged that Mansell also
involved a property settlement by the parties with court approval.
However, it held that Mansell did not control because this divorce
decree awards Lyn a “sum certain” that is unaffected by Frank’s
decision to waive retirement pay in favor of disability pay. It also
justified its decision on the grounds that the divorce decree
contained an indemnification clause that ensures reimbursement or
satisfaction upon the entry of a judgment against one of the parties
arising from the agreement. (Appendix 42a.)
Frank filed a petition for review by the Texas Supreme Court.
Although it directed briefs on the merits, the Texas Supreme Court
denied the petition without opinion on November 18, 1999. The
Texas court of appeals is therefore the highest court in Texas in
which a decision could be had. See 28 U.S.C. § 1257.
REASONS FOR GRANTING THE WRIT
1. The court of appeals has decided an important
federal question in a way that conflicts with
relevant decisions of this Court.
Congress adopted the Uniformed Services Former
Spouses’ Protection Act (“USFSPA”), 10 U.S.C. § 1408, in
direct response to this Court’s decision in McCarty that states
could not treat military retired pay as community property.
McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69
L.Ed.2d 589 (1981). Thereafter, various courts divided as to
whether the USFSPA restored to the state courts all pre-
McCarty authority.
This Court considered this contention in Mansell vy.
Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675
(1989). The Court specifically addressed whether under the
USFSPA a state court may treat as property divisible upon
divorce military retired pay waived by the retiree in order to
receive veterans’ disability pay. 490 U.S. at 583, 109 S.Ct. at
2025. The Court began by noting that Congress could
overcome McCarty only by enacting an affirmative grant of
power to the states to treat military retired pay as community
property because under McCarty the pre-existing federal law
completely pre-empted the application of state community
property law to military retired pay. 490 US. at 588, 109
S.Ct. at 2028. The Court held that under the specific
language of the statute:
[S]tate courts have been granted the authority to
treat disposable retired pay as community property;
they have not been granted the authority to treat
total retired pay as community property.
490 U.S. at 591, 109 S.Ct. at 2029 (emphasis added).
In considering Mrs. Mansell’s arguments attempting to
overcome the limiting language, the Court found that
Congress intended to create both new benefits for former
spouses and to place limits on state courts designed to protect
military retirees. 490 U.S. at 594, 109 S.Ct. at 2031. It
concluded:
[T]he Former Spouses’ Protection Act does not
grant state courts the power to treat as property
divisible upon divorce military retirement pay that
has been waive to receive veterans’ disability
benefits.
490 US. at 594-95, 109 S.Ct. at 2032. Congress has not
changed these provisions of the USFSPA since Mansell.
In this case, the divorce decree purported to award the
former spouse: fs
a monthly amount of money equal to fifty (50%) per
cent of that monthly amount that a retired Master
Sergeant, with twenty (20) years’ [sic] of service
will receive on the date [Frank] begins to receive his
retirement.
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(CR 11; Appendix 8a.) The Texas court of appeals held that
this award does not violate Mansell because it “awards a sum
certain that is unaffected by Frank’s decision to waive
retirement pay in favor of VA disability pay.” (Appendix
42a.) The court of appeals further explained:
In other words, the property settlement effectively
renders Frank’s waiver irrelevant for purposes of the
amount due Lyn because the parties contracted to tie
the award to the amount “a retired Master Sergeant,
with twenty (2) years’ [sic] of service” would
receive, not the amount that Frank actually
received. ...
Although we recognize that Mansell also
involved a property settlement entered into by the
parties prior to court approval, we believe that the
case at hand is distinguishable because of this
unique agreement. Whereas the Mansells’
agreement expressly divided Gerald’s VA disability
benefits in contravention of the Act, Frank and Lyn
merely contracted to divide a definite amount,
irrespective of ancillary or subsequent occurrences
such as we have here.
(Appendix 42a)
The court of appeals’ distinction of this award from that
in Mansell is a distinction without a real difference. This
Court described the Mansells’ property settlement agreement
as providing that:
Major Mansell would pay Mrs. Mansell 50 percent
of his total military retirement pay, including that
portion of retirement pay waived so that Major
Mansell could receive disability benefits.
490 US. at 567, 109 S.Ct. at 2027. In this case Frank is to
pay Lyn 50% of the retired pay of a master sergeant with 20
years service, which is Frank’s total retired pay including that
portion he has waived so that he can receive disability
benefits. In short, Frank and Lyn’s property settlement
agreement just uses different words to describe the same
agreement considered by this Court in Mansell. Therefore,
according to the Texas court of appeals, a state court can
ignore any restrictions imposed upon it by the USFSPA as
interpreted by Mansell by the simple expedient of describing
the service member’s total retired pay in terms of his or her
rank and years of service.
There is a second possible interpretation of the analysis
of the court of appeals. That is that Mansell concerned VA
disability benefits that existed at the time of the divorce while
this case concerns a subsequent waiver of retired pay to
receive VA disability benefits. (This view would be
consistent with Lyn’s actions because she has not sought
compensation for the $76 per month that Frank was receiving
as an Air Force disability benefit at the time of the divorce
and that was awarded to him in the divorce decree. [CR 19,
Appendix 18a.]) In other words, a state court can fix as of
the date of the divorce decree, a former spouse’s entitlements
with respect to the member’s total retired pay limited only by
the deductions required by the definition of disposable retired
pay that exist on that date. This analysis by Texas court of
appeals is inconsistent with this Court’s analysis in Mansell
and the language of the USFSPA.
The USFSPA authorizes state courts to treat only
“disposable retired pay” as property of the retiree and the
former spouse. 10 U.S.C. § 1408(c). The USFSPA does not
fix disposable retired pay to a specific date. The act defines
“disposable retired pay” as “the total monthly retired pay to
which a member is entitled less” certain amounts. 10 U.S.C.
§ 1408(A)(4) (emphasis added). The act speaks in terms of
monthly pay. A retiree’s disposable retired pay is not fixed
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in time but instead is subject to change from month to month.
Furthermore, the act limits the “total amount of disposable
retired pay” that a member has to pay under “all court
orders” to a maximum of 50% of “such disposable retired
pay.” 10 U.S.C. § 1408(e)(1). Therefore, the USFSPA
addresses the situation of serial marriages and divorces. If
the amount excluded in the definition of disposable retired
pay were fixed on the date of divorce, there would be the
likelihood amounts excluded and therefore the amount of the
disposable retired pay would differ for each divorce.
For example, suppose that service member Smith is
divorced from Wife A after 10 years of both service and
marriage, and marries B. Smith retires after 20 years of
service and is awarded a VA disability benefit. Two years
later Smith and B are divorced. Under the analysis of the
court of appeals, Smith’s disposable retired pay for the
purposes of the first divorce would include the amount Smith
waives to receive his VA disability benefits while his
disposable retired pay for the purposes of the second divorce
would exclude the amount he waived to receive the VA
disability benefits. In short, Smith would have two different
“disposable retired pays” at the same time. The language of
the USFSPA does not accommodate such a result. Instead,
subsection (e) clearly envisions one definitive “disposable
retired pay” to apply to multiple divorces. This result
requires that a member’s “disposable retired pay” be
determined month-to-month based upon those amounts that
are to be deducted under subsection (a)(4) that month. In
short, the USFSPA does not give the state courts the power to
freeze the disposable retired pay as it pertains to the former
spouse’s interest.
The Texas court of appeals had a second rationale for
holding that the divorce decree did not violate Mansell. That
rationale was that the divorce decree contained an
indemnification clause to protect the parties and which did
not specify the source of the amounts due. (Appendix 42a)
10
In the indemnification clause Frank and Lyn warranted to
each other that they had not incurred any debt, obligation or
liability not disclosed in the agreement. Each party agreed
that if any claim, action or proceeding were initiated against
the other party for the first party’s debt, obligation or
liability, the first party would defend and indemnify the other
party. (CR 29, Appendix 25a.) The indemnification clause
does not refer to the division of Frank’s retired pay either
directly or indirectly. Frank’s waiver of all or a part of his
retired pay to receive VA disability benefits is not a claim,
action or proceeding initiated against Lyn to hold her liable
for debts, obligations or liabilities of Frank.
Neither of the Texas court of appeals’ explanations
justifies that court’s refusal to follow this Court’s
interpretation of the USFSPA in Mansell. This case
represents a blatant disregard of Congress’s intentions as
expressed in the USFSPA, this Court’s interpretation of
federal law in Mansell, and the supremacy clause of the
United States Constitution.
2. This case is part of a growing trend of state courts’
ignoring the limitations imposed upon their power
under the USFSPA, as interpreted in Mansell.
It would be an understatement to say that McCarty
displeased many state courts by limiting their prerogative to
divide military retired pay in divorce proceedings. As a
result, many state courts ignored the statutory limitations in
the USFSPA and interpreted it to return to the states total
authority to divide military retired pay, as in the pre-McCarty
era. Gilbert, A Family Law Practitioner’s Road Map to the
Uniformed Services Former Spouses Protection Act, 32 Santa
Clara L. Rev. 61, 74 (1992). That commentator thought that
after Mansell state courts would find it very difficult to
deviate from the strict definition of disposable retired pay.
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Gilbert, Jd. at 80 n. 96. However, many state courts are
undeterred in their efforts to thwart any limitations upon their
power to divide gross retirement pay. Fenton, Uniformed
Services Former Spouses’ Protection Act and Veterans’
Disability and Dual Compensation Act Awards, Feb. 1998
Army Law. 31 (1998). There is a growing trend to ensure
that former spouses’ property interests are protected in the
event of a future award of VA disability benefits or federal
employment. /d. at 33. In fact, according to Major Fenton a
majority of courts take some type of equitable action to
compensate the former spouse when a reduction in
disposable retired pay occurs. Jd at 32. According to a
California court of appeals this practice is nearly universal.
In re Krempin, 70 Cal. App.4"" 1008, 83 Cal.Rptr.2d 134, 139
(Cal. App. 1999).
Some courts limit Mansell to its facts -- Major Mansell
was already receiving disability benefits; therefore the
division in that case violated the USFSPA. Those courts
claim the power to quantify with certainty the former
spouse’s interest in the member’s retired pay, which the
member is not permitted to frustrate by subsequently
voluntarily waiving retired pay. E.g. Abernethy v. Fishkin,
699 So.2d 235, 239-40 (Fla. 1997); In re Marriage of
Gaddis, 191 Ariz. 467, 957 P.2d 1010, 1013 (Ariz. App.
1997). This approach is essentially that taken in this case
In other cases, courts have enforced judgments which
provided that the military spouse could take no action to
diminish his or her retired pay, and would indemnify the non-
military spouse for any such diminution. E.g., Abernethy v.
Fishkin, supra, 699 So.2d at 239-40; Owen v. Owen, 14 Va.
App. 623, 419 S.E.2d 267, 269-71 (1992). Some courts have
taken the same approach even without an express indemnity
agreement. E.g., McHugh v. McHugh, 124 Idaho 543, 861
P.2d 113, 115 (1993).
12
Still other courts have held that the waiver of retirement
pay with a reduction in pension payments to the non-military
spouse was a change in circumstances, which permitted
redistribution of marital property or reassessment of support
payments. E.g., Jn re Marriage of Jennings, 138 Wash. 612,
980 P.2d 1248, 1254-55 (1999): Kramer v. Kramer, 252 Neb.
526, 567 N.W.2d 100, 113 (1997); Clauson v. Clauson, 831
P.2d 1257, 1261-64 (Alaska 1992).
Yet another court has held that if the military retiree
waives retired pay to receive disability benefits, the state
courts have the equitable power to impose a resulting trust on
the money received as disability payments. Jn re Marriage of
Krempin, supra, 83 Cal.Rptr.2d at 143.
While these state courts take different approaches, each
is intent upon making an end run around Mansell. The
common thread in these and other similar cases is the central
concept that the nonmilitary former spouse has immutable
interest in the military retiree’s retired pay that can be fixed
at the time of divorce, which the retiree should not and will
not be permitted to affect. As shown above, this concept is
not in accord with the specific language of the USFSPA and
the related statutes. Whether this should be so is a matter for
Congress, not the state courts.
A state court may be able to fix a former spouses’
percentage of interest in the member’s monthly disposable
retired pay, but that is all. (If the parties divorce while the
member is still on active duty, the court cannot fix the former
spouse’s percentage; instead, the court sets a formula to
calculate the former spouse’s interest when the member does
retire.) Similarly, state courts cannot prohibit service
members from applying for or accepting benefits provided by
federal law without frustrating the federal law. In addition,
the concept of offsetting the retiree’s disability pay with other
assets would also upset the balance that Congress has elected.
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NBD AD A eA TE EAs
13
See Hisquierdo v. Hisquierdo, 439 U.S. 572, 588, 99 S.Ct.
802, 811, 59 L_Ed.2d 1 (1979).
3. Under the analysis of the court of appeals, service
members on active duty are not protected by the
USFSPA’s exclusions for disability benefits.
The crux of the analysis of the Texas court of appeals
and the other courts cited above is that only those subsection
(a)(4) exclusions that actually exist on the date of the divorce
decree are excluded from the state court’s division of
property upon divorce. Such analysis particularly impacts
active duty military personnel. A service member will not
receive disability benefits from either the member’s service
component or VA until after the member retires. Therefore,
a member who is divorced while on active duty will be
denied the application of subsections (a)(4)(B) & (C) in these
States.
As of 1995 (the most recent year shown), there are
approximately 1.5 million military personnel on active duty.
STATISTICAL ABSTRACT OF THE UNITED STATES 1998, Table
No. 580. The provisional divorce rate in 1996 was 4.3 per
1,000 population. Jd, Table No. 156. Applying this average
divorce rate to the number of active duty personnel, one
would expect about 6,450 divorces each year involving active
duty military personnel. (According to an article in the Army
Times, men who serve in the military are 69% more likely to
get divorced by the time they reach 24. Army Times, Aug. 9,
1995.) If Major Fenton is correct, a majority of state courts
would hold that Mansell provides no protection as to future
disability pay for these service members. Feb. 1998 Army
Law. at 32. The language of the USFSPA does not suggest
that Congress intended that these provisions not apply to
members on active duty at the time of a divorce.
14
4. Unless this Court acts to correct this situation, it is
likely to get worse.
This trend of state courts evading the specific language
of the USFSPA and the teaching of this Court in Mansell is
not likely to abate. Indeed, there is some suggestion that it
would be malpractice for lawyers representing former
spouses not to assert these various approaches to evade
Mansell. See In re Krempin, supra, 70 Cal.Rptr.2d. at 142;
Sullivan, Military Pension Division: Crossing the Minefield,
31 Fam.L.Q. 19, 20, 27 (1997); Block, Reduction in
Disposable Retired Pay Triggered by Receipt of VA
Disability Pay: a Basis for Reopening a Judgment of
Divorce?, Oct. 1995 Army Law. 28 (1995).
CONCLUSION
The Defense Finance and Accounting Service has
informed counsel for Petitioner that it paid 52,569 former |
spouses in January, 1999 and 57,056 former spouses in
January, 2000. (Appendix 47a.) The proper interpretation of
the USFSPA affects over a million people. Service members,
Active, Reserve, National Guard and Retired, are entitled to a
uniform interpretation of the USFSPA throughout the United
States. Members should not be denied the protections
provided by the act because courts in their states are more
interested in promoting the power of the state courts rather
than applying the USFSPA as written and interpreted by this
Court.
The Texas court of appeals has basically ignored the
specific language of the USFSPA and this Court’s
interpretation of the USFSPA in Mansell; its purported
distinctions blink reality. The Texas Supreme Court has
refused to require the court of appeals to follow Mansell
Unless this Court acts to clarify the limits of power that
Congress has imposed upon the states in the USFSPA,
Mansell will be rendered virtually meaningless and state
15
courts in Texas and other states will continue ignoring the
limitations Congress imposed upon the powers it granted
them in the USFSPA.
For these reasons, the Court should grant its writ of
certiorari to the Court of Appeals for the Second District of
Texas at Fort Worth.
Respectfully submitted,
THOMAS V. MURTO III
OF COUNSEL
STRADLEY & WRIGHT
9330 LBJ Freeway, Suite 1400
Dallas, Texas 75243
Tel.:' (972) 231-6001
Fax: (972) 231-7004
Counsel of Record
For Petitioner
RICHARD B. TANNER
100 North Central Expressway
Suite 1205
Richardson, Texas 75080
Tel.: (972) 991-2124
Fax: (972) 234-5234
Additional Counsel
For Petitioner
APPENDIX
la
CAUSE OF ACTION NO. 89-3400-158
INTHE MATTEROF X_ IN THE DISTRICT COURT
THE MARRIAGE OF: X
X
LYN LARAINE (OTT) X
SEDDIO PETITIONER X_ 158™ JUDICIAL DISTRICT
X
AND X
X
FRANK JOSEPH SEDDIOX
JR., RESPONDENT X DENTON COUNTY, TEXAS
AGREED
FINAL JUDGMENT AND DECREE OF DIVORCE
AND
BINDING CONTRACTUAL PROPERTY SETTLEMENT
AGREEMENT OF THE PARTIES
---BE IT REMEMBERED BY ALL PERSONS—
DATE OF HEARING AND FINAL TRIAL
On the 19th day of February, A. D., 1991, the above styled
and numbered Cause of Action came on for Final Hearing before
this Court.
APPEARANCES OF THE PARTIES AND ATTORNEYS
Petitioner and Cross Respondent, LYN LARAINE (OTT)
SEDDIO, D.O.B. 09 January, A.D. 1945 Social Security
Number: 110-34-9213, 734 Red Wing Drive, Lewisville,
Denton County, Texas, 75067, and/or Army And Airforce
Exchange Service, 3911 South Walton Walker Boulevard,
Post Office Box No. 660202, Dallas, Dallas County,
Texas, 75266-0202 AD-P/T, Residence Telephone No:
(214) 780-3329, currently employed with Army Airforce
Exchanges Services, 3911 South Walton Walker
Boulevard, Post Office Box No. 660202, Dallas, Dallas
County, Texas, 75266-0202 AD-P/T , Texas Driver's
License No. 12578050, appeared in person and by and
through her Attorneys of Record, the Hon. Randall A.
Antonson, P.C., Randall A. Antonson, Esq. T.B.N.
2a
03275500, Attorneys and Counselors At Law, 619
Mercury Place, Suite 107, Duncanville, Dallas County,
Texas, 75137, Telephone No. (214) 298-6925-9951, and
announced Ready For Tnal.
Respondent and Cross-Petitioner, FRANK JOSEPH
SEDDIO, JR., D.O.B. 10 July, A.D., 1942, Social Security
Number: 092-32-7912, 734 Red Wing Drive, Lewisville, Denton
County, Texas, 75067, Residence Telephone No. (214) 436-5117,
currently employed with Electronic Data Systems, Dallas, Texas
Drivers License No. 10785281, appeared in person and by and
through his Attorneys of Record, the Hon. Richard S.Podgorski,
T.B.N. 16082500. 326 B, East McKinney Street, Post Office Box
No. 2494, Denton, Denton County, Texas, 76201-2, Telephone No.
(817) 387-3869-3961,and announced Ready For Trial.
RECORD OF TESTIMONY
The record of testimony was duly recorded by regularly
assigned Court Reporting Personnel, assigned to the 158th Judicial
District Court, in and for Denton County, Texas,
Pe > 8
JURISDICTION AND DOMICILE
The Court finds that the pleadings of Petitioner and
Respondent are in due form and contain all of the necessary
allegations, information and prerequisites required by Law. The
Court, after receiving further evidence, finds that it has Jurisdiction
over this Cause of Action and the Parties and that at least sixty (60)
days have elapsed since the date this Cause of Action was
originally filed. The Court finds further that Petitioner and
Respondent have both been domiciliaries of the State of Texas for
at least a six-month (6 MO.) period preceding the filing of this
Cause of Action, and further, both have been residents of the
County of Denton, Texas, the County in which this Cause of
Action is filed for at least a ninety (90) day period preceding the
filing of this Cause of Action.
The Court finds further that any and all necessary Parties
are before the Court, and that any and all persons entitled to
Citation and Notice have been properly Cited and Noticed.
PRR ESS ah Nos Baan ahi cash auesid Nga aes wn x gas aa he salina, co ND NRRL ALBA ib inh RRR ak a fidelity aie a ela in
3a
WAIVER OF JURY BY PARTIES
The Parties, after due consideration and consolation with the
Parties' respective Attomeys of Record, and/or after being fully
informed of each Party's Constitutional Right to have this Cause of
Action presented before, and tried in its entirety to a Jury
consisting of twelve (12) impartial persons, duly waived and
consented to the Waiver of Trial By Jury in the above styled and
numbered Cause of Action, and any and all matters, including any
and all questions of fact and of Law were duly submitted to the
Court for its consideration determination.
AGREEMENT OF THE PARTIES
The Parties, Petitioner, LYN LARAINE (OTT) SEDDIO,
and Respondent, FRANK JOSEPH SEDDIO, JR., have stipulated
and consented to the terms of this "Final Judgment And Decree of
Divorce" and have consented to its entry in the Minutes of this
Court as properly reflective of this Court's determinations,
findings, rulings and Orders, upon the conclusion of Trial and/or
Agreement of all material matters herein.
GRANTING OF DIVORCE BY COURT
IT IS THEREFORE, ORDERED, ADJUDGED and
DECREED that Petitioner, LYN LARAINE (OTT) SEDDIO, and
Respondent, FRANK JOSEPH SEDDIO, JR., be and they are
hereby DIVORCED and that the Marriage and Marriage
Relationship between them is forever dissolved on the ground of
Insupportability, with both Parties, upon entry hereof, being
restored to the status of "Single Persons", for all purposes.
MINOR CHILD-CHILDREN DEFINED
As used herein, the terms, "Child", "Children", shall
include all persons under the age of eighteen (18) years, as of the
date of the filing of this Original Cause of Action, and the
masculine shall include the feminine, and the singular shall include
the plural, and the terms may be interchangeable, as necessary.
NO MINOR CHILD OF THE MARRIAGE
This Court specifically finds further that no Minor Child,
currently under the age of eighteen (18) years, has been born to the
Marriage and/or Marriage Relationship by and between Petitioner
and Respondent; that no Minor Child, currently under the age of
eighteen (18) years, has been adopted by the Parties hereto, during
4a
the existence of the Marriage and Marriage Relationship by and
between Petitioner and Respondent; and that the Parties are not
now expecting a Child, by virtue of the Marriage and Marriage
Relationship of Petitioner and Respondent, the Parties hereto.
DIVISION OF MARITAL ESTATE OF THE PARTIES
The Court finds that the following is a just and right
division of the Parties' marital Estate, having due regard for the
rights of each Party to the Marriage.
IT IS THEREFORE ORDERED, ADJUDGED and
DECREED that the Estate of the Parties is divided as follows:
PROPERTY TO PETITIONER
Petitioner, LYN LARAINE (OTT) SEDDIO, is awarded
the following as Petitioner is sole and separate property, and
further certain "Separate Properties" and "Separate Estates" and/or
portions thereof, are hereby confirmed unto Petitioner, - LYN
LARAINE (OTT) SEDDIO, and Respondent. FRANK JOSEPH
SEDDIO, JR., is divested of any and all right, title, interest and
claim in and to such property, and by these presents, the said
FRANK JOSEPH SEDDIOP JR., does hereby trade, transfer,
convey, grant confirm, affirm, consign and assign unto LYN
LARAINE (OTT) SEDDIO, the following real and personal
property:
Nothing contained immediately above in this paragraph is
to be construed for any purpose, as a taxable event, either for
Petitioner or for Respondent, and it is the express intention of the
Parties, that the above represents a present division, assignment
and transfer of presently owned Community property, and is not
for any purposes to be construed by any person as a sale and
otherwise taxable event.
REAL PROPERTY AND ESTATE
THE SUM CERTAIN, IN CASH, OF THREE THOUSAND AND
NO/100-—($3,000-00) — DOLLARS. WHICH SUM CERTAIN
REPRESENTS ONE HUNDRED PER CENT (100%) OF
PETITIONER, LYN LARAINE (OTT) SEDDIO'S COMMUNITY
PROPERTY INTEREST, IN AND TO ALL OF THAT CERTAIN
LOT, TRACT AND/OR PARCEL OF LAND AND ESTATE,
|
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Beaieti
MOR: iia WET RS Wed ae
5a
TOGETHER WITH ANY AND ALL APPURTENANCES
THERETO, IMPROVEMENTS LOCATED THEREON, AND
HEREDITAMENTS THERETO IN ANYWISE BELONGING,
BEING COMMONLY DESCRIBED AND KNOWN AS 734
RED WING DRIVE, LEWISVILLE, DENTON COUNTY,
TEXAS, 75067, AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF THAT CERTAIN LOT, TRACT AND/OR PARCEL OF
LAND, TOGETHER WITH ANY AND ALL
APPURTENANCES THERETO, IMPROVEMENTS LOCATED
THEREON AND HEREDITAMENTS THERETO IN ANYWISE
BELONGING, IN THE CITY OF LEWISVILLE, DENTON
COUNTY, TEXAS, 75067, BEING FURTHER DESCRIBED
ASLOT: 1, BLOCK: "E", OF PHASE "A" TIMBERBROOK
ADDITION NO. 4, AN ADDITION TO THE CITY OF
LEWISVILLE, DENTON COUNTY, TEXAS, 75067,
ACCORDING TO THE MAP AND PLAT RECORDS
THEREOF DULY RECORDED IN THE MAP AND PLAT
RECORDS OF DENTON COUNTY, TEXAS, AT VOLUME: 16,
PAGE: 33, MAP RECORDS OF DENTON COUNTY, TEXAS.
The Court finds further that One Hundred Per Cent, (100.
0%), of the above-described and aforementioned Real Property and
Estate, is the Community Property and Estate of Petitioner, LYN
LARAINE (OTT) SEDDIO and Respondent, FRANK JOSEPH
SEDDIO, JR., and is being divided herein, under the express terms,
conditions and covenants of this "Agreed Final Judgment And
Decree Of Divorce", all in accordance with the Texas Family
Code, as amended and currently in force, and is a fair and equitable
distribution all in accordance with the specific findings and rulings
of this Court, and the Agreement Of the Parties.
PERSONAL PROPERTY
The sum certain in CASH, of Twenty Thousand And No/]00-
($20,000.00)-Dollars, which sum certain represents Petitioner,
LYN LARAINE (OTT) SEDDIO's interest in Respondent's
"Retirement, Deferred Compensation and Stock Purchase
Accounts" in reference to Respondent's employment with E.D.S.
Corporation (Company), and IT IS FURTHER ORDERED,
ADJUDGED and DECREED that this sum certain in CASH of
6a
Twenty Thousand And No/100-($20,000.00)-Dollars is and shall
be payable to Petitioner, LYN LARAINE (OTT) SEDDIO, by
Respondent, FRANK JOSEPH SEDDIO, JR., on or before the
expiration of thirty (30) days from date of execution and entry of
this "Agreed Final Judgment And Decree of Divorce", AND IS
FURTHER SECURED by Note executed by Respondent, FRANK
JOSEPH SEDDIO, JR. made payable to Petitioner, LYN
LARAINE (OTT) SEDDIO, together with Lien retained by
Petitioner, LYN LARAINE (OTT) SEDDIO, over and against the
entire balance of Respondent's "Retirement Fund Package",
"Deferred Compensation Package" and "Stock Purchase Package"
with E.D.S. Corporation (Company) until said sum is paid by
Respondent., FRANK JOSEPH SEDDIO, JR., to Petitioner, LYN
LARAINE (OTT) SEDDIO, in full.
All household furniture, furnishings, fixtures, goods, appliances
and equipment in the possession of, or subject to the sole custody
and control of Petitioner, save and except specific items hereinafter
awarded to Respondent;
All clothing, jewelry, and other personal possessions and effects
in the possession of, or subject to the sole custody and control
of Petitioner, save and except specific items hereinafter awarded
to Respondent;
Any and all sums of cash in the possession of, or subject to the
custody and control of Petitioner, including any and all monies on
account in any and all financial institutions, wheresoever located,
which accounts stand in Petitioner's name or from which accounts
Petitioner has the right to withdraw funds or which are otherwise
subject to Petitioner's custody and control, save and except any
awards of cash, specifically hereinafter awarded to Respondent, if
any;
One Hundred Per Cent of any and all sums, whether matured or
unmatured, accrued or unaccrued, vested or otherwise, together
with any and all increases thereof, the proceeds therefrom, and any
other rights related to any profit-sharing plan, retirement plan,
pension plan, employse stock option plan, employee savings plan,
accrued unpaid bonuses or other benefit program existing by
reason of Petitioner's employment, past, present and/or future, if
Ce SL Ge eee eT OND RT SDD Pe NR ee OP ge RCE ets SO Ak ac ati Rh ae i La pier a aa
any; 7a
Any and all insurance, pensions, retirement benefits and other
benefits arising out of Petitioner's membership in any National,
State and/or Local Trade Union, if any;
Any and all life insurance policies insuring the life of Petitioner,
inclusive of, and not limited to that certain New York Life
Insurance Policy, Certificate No.
Any and all stocks, bonds and securities registered in the name of
Petitioner, together with all dividends, splits and other rights and
privileges in connection therewith.
Any and all businesses run by Petitioner if any, including, but not
limited to, all furniture fixtures, machinery, equipment, inventory,
cash? accounts receivable, goods and supplies; all personal
property used in connection with the operation of such business:
and any and all rights and privileges, past, present, or future,
arising out of, or in connection with the operation of such business.
The sum certain in cash, representing Petitioner's one-half (1/2)
interest in and to that certain 19-inch color television with remote
control, that certain Hitachi VCR and AT&T portable telephone,
all due and payable by FRANK JOSEPH SEDDIO, JR., (from
insurance proceeds received by Respondent, FRANK JOSEPH
SEDDIO, JR.) to LYN LARAINE (OTT) SEDDIO, on the date of
entry of this Agreed Final Judgment And Decree Of Divorce,
which sum certain in cash, in the exact amount of Four Hundred
Forty Four And 84/100-($444.84)-Dollars, represents payment in
full of Petitioner's right, title and/or interest in and to that certain
community of the Parties., to wit: one certain 19-inch color
television with remote control, that certain Hitachi VCR and that
certain AT&T portable telephone, stolen and removed from the
community residence of the Parties at 734 Red Wing Drive,
Lewisville, Denton County, Texas, 75067, during the pendency of
this Cause of Action, by person or persons unknown to Petitioner,
LYN LARAINE (OTT) SEDDIO;
Six month's payment by Respondent, FRANK JOSEPH SEDDIO,
JR., of comprehensive automobile insurance coverage, specifically
8a
covering Petitioner, LYN LARAINE (OTT) SEDDIO. and her
automobile, from January, 1991, through and until 20 July, A.D.
1991, which insurance and insurance premium is currently being
paid by Respondent, through insurance providers providing
automobile insurance coverage for the Parties as of the date of the
entry of this Agreed Final Judgment And Decree of Divorce.
Fifty percent (50%) of that certain "Max" Federal Credit Union
Account, Account No. 38500 ' Montgomery, Alabama, in the total
approximate amount of $218.16;
Fifty percent (50%) of that certain Langley Federal Credit Union
Account, Account No. 4702242673, Riverdale Station, Post Office
Box No. 74633. Hampton, Virginia, 23666, in the total
approximate amount of $196.54:
DIVISION OF MILITARY RETIREMENT BENEFITS OF
RESPONDENT (QUADRO)
1. This Court specifically further finds that Respondent
FRANK JOSEPH SEDDIO, JR., has served in the United States
Airforce, for a period of two hundred forty one (241) months, and
has been married to Petitioner, LYN LARAINE (OTT) SEDDIO,
for a period of months during that tenure of employment.
This Court further specifically finds that FRANK JOSEPH
SEDDIO, JR., at the date of this Final Judgment And Decree Of
Divorce, holds the rank of Master Sergeant, with twenty (20) years
and one (1) months of service.
FRANK JOSEPH SEDDIO, JR.'s rights under the
Soldiers’ and Sailors’ Civil Relief Act (50
U.S.C.app.Sec.501,Et.Seq.) were observed by this Court.
IT IS THEREFORE FURTHER ORDERED,
ADJUDGED and DECREED that LYN LARAINE (OTT)
SEDDIO, shall have Judgment against and recover from FRANK
JOSEPH SEDDIO, JR., if, as and when retirement is received by
FRANK JOSEPH SEDDIO, JR, a monthly amount of money
equal to fifty (50%) per cent of that monthly amount tha t a retired
Master Sergeant, with twenty (20) years’ of service will receive on
the date FRANK JOSEPH SEDDIO, JR. begins to receive his
retirement, together with the same percentage of any and all cost-
of-living related increases to which FRANK JOSEPH SEDDIO,
JR. shall become entitled for the period beginning on the date of
SRA ira SSSR a ARNE aR aL DE seit SS)
SSRN ENS Leak WARS AAS When Mean Dee wAcst i UY ia eka yarn chs
9a
retirement and ending on the death of FRANK JOSEPH SEDDIO,
JR.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that FRANK JOSEPH SEDDIO, JR., is designated by
this Court as a CONSTRUCTIVE TRUSTEE, for the benefit of
LYN LARAINE (OTT) SEDDIO, for the purpose of receiving the
retirement payments and benefits, and FRANK JOSEPH
SEDDIO.. JR, is FURTHER ORDERED and DECREED to
directly pay the resulting product defined above to LYN
LARAINE (OTT) SEDDIO, within three (3) days after receipt of it
by FRANK JOSEPH SEDDIO, JR.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that any and all payments made directly to LYN
LARAINE (OTT) SEDDIO, by the United States government
under this benefit division, shall be a credit against this obligation.
This Court finds specifically further that Petitioner, LYN
—LARAINE (OTT) SEDDIO and Respondent., FRANK JOSEPH
SEDDIO, JR., were married on the 30th day of June, A.D., 1962,
in Port Jervis, New York, and their Marriage and Marnage
Relationship, each to the other, has lasted for ten (10) years or
more, during which time FRANK JOSEPH SEDDIO, JR. served
ten (10) or more years of creditable service toward retirement.
2. FRANK JOSEPH SEDDIO, JR's Social Security
Number is: 092-32-7912), and Respondent, FRANK JOSEPH
SEDDIO., JR. 's ‘address is 734 Red Wing Drive, Lewisville,
Denton County, Texas, 75067, and FRANK JOSEPH SEDDIO,
JR. 's date of birth is 10 July, A.D.
1942.
3. LYN LARAINE (OTT) SEDDIO's Social Security
Number is: 110-34-9213 and Petitioner, LYN LARAINE (OTT)
SEDDIO's address is Army Airforce Exchange Services, 3911
South Walton Walker Boulevard, Post Office Box No. 660202,
Dallas, Dallas County, Texas, 75266-0202 AD-P/T , and LYN
LARAINE (OTT) SEDDIO's date of birth is 09 January, A.D.,
1945:
4. That all rights of FRANK JOSEPH SEDDIO, JR. under
the Soldiers' And Sailors' Relief Act of 1940 were and have been
fully observed and complied with by this Court in this Cause of
Action;
5. That the award of retirement pay made to LYN
LARAINE (OTT) SEDDIO, is made in conformity with, and in
10a
compliance with, the Uniformed Services Former Spouses'
Protection Act;
6. That it is intended by this Court that the Secretary of the
Airforce or his designee, make the payments due to LYN
LARAINE (OTT) SEDDIO, of her interest in the retirement
benefits awarded in this Final Judgment And Decree Of Divorce
directly to LYN LARAINE (OTT) SEDDIO;
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that the Secretary of the Airforce, or his designated
agent, shall pay to LYN LARAINE (OTT) SEDDIO, directly, each
month, LYN LARAINE (OTT) SEDDIO's interest awarded herein
in the United States Airforce disposable retired or retainer pay paid
as a result of FRANK JOSEPH SEDDIO, JR.'s service in the
United States Airforce, plus fifty (50%) per cent of all cost of
living or other increases in the United States Airforce disposable
retired or retainer pay, on a monthly basis, if, as and when said
retirement pay is due to be paid. It is the Court's intention that, if
that dollar amount or "award" (or a larger sum as increases take
effect) exceeds fifty (50%) per cent of the disposable retired or
retainer p4y, the Secretary of the Airforce, or his designated agent,
shall pay to LYN LARAINE (OTT) SEDDIO the maximum
amount allowable under the Uniformed Services Former Spouses’
Protection Act, and that FRANK JOSEPH SEDDIO, JR., shall be
responsible for paying the balance of the award each month to
LYN LARAINE (OTT) SEDDIO, and it is accordingly so
ORDERED and DECREED.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED, in this regard, that FRANK JOSEPH SEDDIO, JR., is
hereby designated and appointed by this Court as a
CONSTRUCTIVE TRUSTEE for the benefit of LYN LARAINE
(OTT) SEDDIO, to the extent of LYN LARAINE (OTT)
SEDDIO's interest in the United States Airforce disposable retired
or retainer pay paid as a result of FRANK JOSEPH SEDDIO, JR.
's service in the United States Airforce and FRANK JOSEPH
SEDDIO, JR., is ORDERED FURTHER to pay to LYN
LARAINE (OTT) SEDDIO, LYN LARAINE (OTT) SEDDIO's
interest of same each month as it is received by FRANK JOSEPH
SEDDIO, JR., and in no event later than the fifth (Sth) day of each
month in which FRANK JOSEPH SEDDIO, JR.), receives such
retirement, beginning the fifth (Sth) day of the first (1st) month in
which said retirement is paid following the date the Final Judgment
lla
And Decree Of Divorce is signed by this Court. This paragraph
shall be applicable to the extent that the Secretary of the Airforce
or his designee fails to pay directly to LYN LARAINE (OTT)
SEDDIO, her monthly entitlement as awarded herein or any
portion of said monthly entitlement.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that for purposes of this Final Judgment And Decree
Of Divorce, that FRANK JOSEPH SEDDIO, JR., is specifically
directed, upon penalty of contempt, to pay LYN LARAINE (OTT)
SEDDIO's interest in the retirement pay to LYN LARAINE (OTT)
SEDDIO, as Ordered herein. FRANK JOSEPH SEDDIO, JR., is
specifically directed that FRANK JOSEPH SEDDIO, JR., is not
relieved of such obligation except to the extent FRANK JOSEPH
SEDDIO, JR., is notified that one hundred (100%) per cent of
LYN LARAINE (OTT) SEDDIO's interest in the retirement
benefit has been paid directly to LYN LARAINE (OTT) SEDDIO,
by the Secretary of the Airforce or his designated agent.
IT IS FURTHER ORDERED ADJUDGED and
DECREED that the payment of the disposable retirement pay
awarded herein to LYN LARAINE (OTT) SEDDIO shall continue
until the death of FRANK JOSEPH SEDDIO, JR., or LYN
LARAINE (OTT) SEDDIO.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that since LYN LARAINE (OTT) SEDDIO is entitled
to her percentage interest in any cost of living or other increase in
the united states Airforce retired or retainer pay, that FRANK
JOSEPH SEDDIO, JR, shall send to LYN LARAINE (OTT)
SEDDIO, at her above-listed address, or at such other address as
LYN LARAINE (OTT) SEDDIO may from time to time provide
in writing, within five (5) days of receipt of same, a copy of each
retired pay voucher that FRANK JOSEPH SEDDIO, JR., receives
in the future.
MED PROVISIONS F
MIL Vv
This Court finds specifically further that LYN LARAINE
(OTT) SEDDIO, is entitled to receive medical and dental care
pursuant to the terms of 10 U.S.C. Sec. 1701, et seq. and to
commissary and post exchange privileges to the same extent and
on the same basis as a surviving spouse of a retired member of the
Uniformed Services following the date this Final Judgment And
et Me
—
12a
Decree Of Divorce is signed by this Court. FRANK JOSEPH
SEDDIO, JR., therefore, is ORDERED to cooperate as necessary,
by timely taking whatever action is necessary to enable LYN
LARAINE (OTT) SEDDIO, to retain and/or obtain such benefits
upon LYN LARAINE (OTT) SEDDIO's request for the benefit of
LYN LARAINE (OTT) SEDDIO.
That certain 1990 Oldsmobile Cutlass Ciera model motor vehicle
and automobile which motor vehicle is currently in the possession
of, or otherwise subject to the custody and control of Petitioner,
bearing V.I.N. No: together with all prepaid
insurance, keys and title documents.
Any and all other miscellaneous personal property and effects,
currently in the possession of, or otherwise subject to the custody
and control of Petitioner, not hereinafter specifically awarded to
Respondent, which personal property herein awarded to Petitioner
is inclusive of, but not limited to the following:
That certain Piano and matching piano bench; Two certain barrel
chairs; One certain love-seat; Two certain glass-topped tables; Two
certain glass lamps; Certain various knick-knacks; That certain
wine rack and collection of wine; Those certain house plants; That
certain table and matching six chairs; That certain buffet furniture:
That certain bottom hutch; That certain master bedroom suite; That
certain television unit; That certain sewing machine and matching
cabinet, Two certain telephones; That certain silver collection:
That certain Afghan; Those certain 25th wedding anniversary gifts;
Those certain books; Those certain figurines and pictures; That
certain clarinet; That certain two-piece cake plate; That certain
two-piece cheese set; That certain six-piece glass set; That certain
glass set; That certain sauce bowl; That certain potpourri pot, bowl
and relish tray; That certain canister set; Those certain plaques and
wall hangings; That certain pressure cooker; That certain large
mixer and miscellaneous items; That certain antique orange juice
squeezer, That certain canning pot; That certain meat slicer; that
certain toaster, That certain can openerThat certain deep fat fryer;
That certain crockpot; That certain set of silverware; That certain
set of Noritake china; Those certain everyday dishes; Those certain
glasses (drinking); That certain blender unit; that certain
microwave oven; That certain microwave stand; That certain
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corningware cookware; That certain set of spices; That certain
Noritake tea set; That certain canister set; Those certain television
trays; that certain washer and dryer unit; That certain set of
cookbooks; That certain vacuum cleaner; Miscellaneous items for
vacuum cleaner; That certain freezer; That certain set of Christmas
decorations; That certain children's rocking chair; That certain
magazine rack; That certain cradle and dol!: Those certain tools of
Petitioner; That certain skydiving equipment of Petitioner, Those
certain wines and liquors of Petitioner; Those certain wall
decorations; That certain bookshelf in bedroom; That certain
savings/shopper's club membership of Petitioner; That certain wall
decorations; Those certain pictures in the study; All of Petitioner's
clothing; Those certain army blankets; Those certain suitcases-,
Those certain hanging plants; Those certain personal toiletries
Those certain doilies; Those certain wall decorations in hall of
house; That certain umbrella stand and flowers:
All of Petitioner's miscellaneous separate property and estate,
not otherwise currently in the possession of, or otherwise subject to
the custody and control of Petitioner, which separate property and
estate items are currently located on or about the premises and
homestead of the Parties located at 734 Red Wing Drive,
Lewisville, Denton County, Texas, 75067, all of which separate
property items are hereby confirmed unto Petitioner;
PROPERTY TO RESPONDENT
Respondent, FRANK JOSEPH SEDDIO, JR., is awarded
the following as Respondent's sole and separate property and
estate, and Petitioner, LYN LARAINE (OTT) SEDDIO, is hereby
divested of any and all right, title and interest in and to such
property; and by these presents, the said LYN LARAINE (OTT)
SEDDIO, does hereby grant, trade, convey, transfer, affirm,
confirm, consign and assign the following real and personal
property unto Respondent, FRANK JOSEPH SEDDIO, JR..:
Nothing contained immediately above in this paragraph is
to be construed for any purpose, as a taxable event, either for
Petitioner or for Respondent, and it is the express intention of the
Parties, that the above represents assignment and transfer of
presently owned and is not for any purposes to be construed vy any
person as a sale and otherwise taxable event a present division
14a
assignment and transfer of property owned Community property,
and is not for any purposes to be construed by any person as a sale
or other taxable event.
REAL PROPERTY AND ESTATE
SUBJECT TO PAYMENT BY RESPONDENT, FRANK JOSEPH
SEDDIO, JR., TO PETITIONER, LYN LARAINE (OTT)
SEDDIO, OF THE SUM CERTAIN OF THREE THOUSAND
AND NO/100-($3,000.00)-DOLLARS, WHICH SUM CERTAIN
REPRESENTS PETITIONER'S UNDIVIDED COMMUNITY
EQUITY INTEREST IN THE FOLLOWING DESCRIBED
REAL PROPERTY AND ESTATE, ONE HUNDRED PER CENT
(100%) OF ALL COMMUNITY PROPERTY INTEREST, IN
AND TO ALL OF THAT CERTAIN LOT, TRACT AND/OR
PARCEL OF LAND AND ESTATE, TOGETHER WITH ANY
AND AL#t APPURTENANCES THERETO, IMPROVEMENTS
LOCATED THEREON, AND HEREDITAMENTS THERETO IN
ANYWISE BELONGING, BEING COMMONLY DESCRIBED
AND KNOWN AS 734 RED WING DRIVE, LEWISVILLE,
DENTON COUNTY, TEXAS 75067, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF THAT CERTAIN LOT, TRACT AND/OR PARCEL OF
LAND, TOGETHER WITH ANY AND _ ALL
APPURTENANCES THERETO, IMPROVEMENTS LOCATED
THEREON AND HEREDITAMENTS THERETO IN ANYWISE
BELONGING, IN THE CITY OF LEWISVILLE, DENTON
COUNTY, TEXAS, 75067, BEING FURTHER DESCRIBED AS
LOT _, BLOCK__, OF _, AN
ADDITION TO THE CITY OF LEWISVILLE, DENTON
COUNTY, TEXAS, 75067, ACCORDING TO THE MAP AND
PLAT RECORDS THEREOF, DULY RECORDED IN THE MAP
AND PLAT RECORDS OF DENTON COUNTY, TEXAS, AT
VOLUME: ___ PAGE:__ MAP RECORDS OF DENTON
COUNTY, TEXAS.
The Court finds further that One Hundred Per Cent,
(100.0%), of the above-described and aforementioned Real
Property and Estate, is the Community Property and Estate of
Petitioner, LYN LARAINE (OTT) SEDDIO and Respondent,
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FRANK JOSEPH SEDDIO, JR., and, subject to the payment of the
sum certain in cash of Three Thousand And No/100-($3,000.00)-
Dollars, by Respondent, FRANK JOSEPHS SEDDIO, JR., to
Petitioner, LYN LARAINE (OTT) SEDDIO, is being divided with
One Hundred Per Cent (100%) being awarded to Respondent,
FRANK JOSEPH SEDDIO, JR., all in accordance with the Texas
Family Code, as amended and currently in force, and is a fair and
equitable distribution all in accordance with the specific findings
and rulings of this Court, and the Agreement Of the Parties.
PERSONAL PROPERTY
All household furniture, furnishings, fixtures, good, appliances and
equipment in the possession of, or otherwise subject to the custody
and control of Respondent, save and except those items
hereinbefore specifically awarded to Petitioner.
Any and all clothing, jewelry and other personal effects in the
possession of, or otherwise subject to the custody and control of
Respondent, save and except those items hereinbefore specifically
awarded to Petitioner.
Any and all sums of cash in the possession of, or otherwise subject
to the custody and control of Respondent, including any and all
monies on account in any and all financial institutions,
wheresoever located, which accounts stand in the name of
Kespondent., or from which accounts Respondent has the right to
withdraw funds., or which are otherwise subject to the sole custody
and control of Respondent, save and except those accounts and
monies hereinbefore specifically awarded to Petitioner.
Fifty percent (50%) of that certain "Max" Federal Credit Union
Account, Account No. 38500, Montgomery, Alabama, in the total
approximate amount of $218.16;
Fifty percent (50%) of that certain Langley Federal Credit Union
Account, Account No. 4702242673, Riverdale Station, Post Office
Box No. 7463, Hampton, Virginia, 23666, in the total approximate
amount of $196.54;
Subject to the payment by Respondent, FRANK JOSEPH
SEDDIO, JR., to Petitioner, LYN LARAINE (OTT) SEDDIO, of
16a
the sum certain IN CASH, of Twenty Thousand And No/100-
($20,000.00)-Dollars, on or before the expiration of thirty (30)
days from date of execution and entry of this "Agreed Final
Judgment And Decree Of Divorce" with Lien retained by LYN
LARAINE (OTT) SEDDIO, in any and all Retirement Accounts,
Deferred Compensation Accounts and Stock Purchase Accounts of
Respondent, FRANK JOSEPH SEDDIO, JR., otherwise due and
payable to Respondent, FRANK JOSEPH SEDDIO, JR. , as a
result of Respondent FRANK JOSEPH SEDDIO's employment
with "E.D.S. Corporation", Respondent, FRANK JOSEPH
SEDDIO, JR. , is awarded One Hundred Per Cent of any and all
sums, whether matured or unmatured, accrued or unaccrued, vested
or otherwise, together with any and all increases thereof, the
proceeds therefrom, and any other nghts related to any retirement
plan, pension plan, employee stock option plan, employee savings.
plan, accrued unpaid bonuses or other benefit program existing by
reason of Respondent's employment, past, present and/or future
together with all consequential benefits thereto in any manner
appertaining, inclusive of, but not limited to the following:
One hundred percent (100%) of all of that certain E.D.S. Deferred
Compensation Plan, with an approximate account balance as of 12-
31-89, in the total approximate amount of $1 1,730-70:
One hundred percent (100%0 of all of that certain E.D.S. Stock
Purchase Plan account, consisting, as of 02-16-90, of
approximately 293 shares of stock, with a per unit stock value of
approximately $43.64 per share, together with any and all additions
thereto since that date and time;
One Hundred percent (100%) of the approximate sum of $1]
000.00 (+/-) which sum of monies was removed by Respondent,
from E.D.S. stock accounts during the pendency of this Cause of
Action;
One hundred percent (100%) of all of that certain E.DS.
Retirement Plan Account, with an approximate account balance as
of 02-16-90, payable at normal retirement date under single life
annuity provisions, in the amount of $3,879.12 per year, with a
present value of annual accrued benefit as of 02-16-90 in the
approximate amount of $11,149.41, with a vesting date of 07-01-
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89, and with a participation date in the "Plan" of 07-01-83:
Any and all insurance, pensions, retirement benefits, and other
benefits arising out of Respondent's membership in any National,
State and/or Local Trade Union, if any, save and except any and all
portions of those retirement/annuity/pension benefits herein
previously and specifically awarded to Petitioner;
Any and all policies of life insurance insuring the life of
Respondent;
Any and all stocks, bonds, and securities registered in the name of
Respondent, together with all dividends, splits, and other rights and
privileges in connection therewith, save and except
any such stocks, bonds and securities registered 'in the name of
Respondent, which form any portion of the retirement/
annuity/pension benefits herein specifically awarded to Petitioner:
That certain 1988 van model motor vehicle and automobile which
motor vehicle is currently in the possession of, or otherwise subject
to the custody and control of Respondent, bearing V.I.N. No:
, together with all prepaid insurance, keys and title
documents.
That certain 1980 MGB model motor vehicle and automobile
which motor vehicle is currently in the possession of, or otherwise
subject to the custody and control of Respondent, bearing V.I.N.
No: , together with all prepaid insurance, keys and
title documents.
Any and all. businesses run by Respondent, if any, including but
not limited to, all furniture, fixtures, machinery, equipment,
inventory, cash, accounts receivable, goods and supplies; all
personal property used in connection with the operation-of such
business; and any and all rights and privileges, past, present or
future, arising out of, or in connection with the operation of such
business;
Any and all other miscellaneous personal property and effects
currently in the possession of, or otherwise subject to the custody
18a
and control of Respondent, not hereinbefore specifically awarded
to Petitioner; :
Any and all separate personal property of Respondent, which
separate personal property of Respondent, is currently in the
possession of Respondent, or otherwise subject to the exclusive |
custody and control of Respondent., all of which separate property
and estate is hereby confirmed unto Respondent;
Any and all remaining insurance proceeds, due and payable to
Respondent and Petitioner, as a result of the burglaries of the house
and residence of the Parties at 734 Red Wing Drive, Lewisville,
Denton County, Texas, 75067, save and except that certain portion
of those, insurance proceeds herein previously awarded to
Petitioner;
One Hundred Per Cent (100%) of any and all United States
Airforce "Disability Benefits" due and payable to Respondent by,
through and by reason of, Respondent's service with the United
States Airforce, in the approximate amount of $73.00 per month;
PAYMENT OF MONIES TO PETITIONER SECURED BY
NOTE AND LIEN
IT IS FURTHER ORDERED, ADJUDGED and
DECREED, that anything contained herein to the contrary
notwithstanding, Petitioner, LYN LARAINE (OTT) SEDDIO., is
granted a JUDICIAL LIEN over and against any and all retirement
accounts, deferred compensation accounts and stock purchase
accounts of Respondent, herein awarded to Respondent, or
otherwise belonging to Respondent to secure payment by
Respondent, FRANK JOSEPH SEDDIO, JR., to Petitioner, LYN
LARAINE (OTT) SEDDIO, of the sum certain of Twenty
Thousand And No/100-($20,000-00)-Dollars, due and payable by
Respondent, FRANK JOSEPH SEDDIO, JR. , to Petitioner, LYN
LARAINE (OTT) SEDDIO., on or before the expiration of thirty
(30) days of date of execution and entry of this "Agreed Final
Judgment And Decree Of Divorce."
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that concurrent with the execution and entry of this
19a
"Agreed Final Judgment And Decree Of Divorce", Respondent,
FRANK JOSEPH SEDDIO, JR., shall additionally execute a Note
in the amount of Twenty Thousand And No/100-($20,000.00)-
Dollars, made payable to Petitioner, LYN LARAINE (OTT)
SEDDIO, additionally securing the payment to Petitioner by
Respondent of the sum certain of Twenty Thousand And No/100-
($20,000.00)-Dollars, which sum represents Petitioner's interest in
Respondent's Retirement Fund, Stock Purchase Fund and Deferred
Compensation Fund with E.D.S. Corporation (Company).
DIVISION OF INDEBTEDNESS OF PARTIES
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that Petitioner shall pay, as a part of the division of the
Estate of the Parties, the following debts and obligations and shall
indemnify and hold Respondent and Respondent's property
harmless from any failure to so discharge these debts and
obligations:
Any and all debts, charges, liabilities and other obligations
incurred by Petitioner from and after the date of separation, that
date being 08 September, A.D., 1989, unless express provision is
made herein to the contrary;
Any and all ad valorem taxes, assessments, or other charges due or
to become due on the real and personal property herein awarded to
Petitioner, unless express provision is made herein to the contrary;
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that Respondent shall pay, as a part of the division of
the Estate of the Parties, the following debts and obligations, and
shall indemnify and hold Petitioner and Petitioner's property
harmless from any failure to so discharge such debts and
obligations:
The sum certain of Three Thousand And No/100-($3,000-00)-
Dollars, in cash, due and payable by Respondent, FRANK
JOSEPH SEDDIO, JR_., to Petitioner, LYN LARAINE (OTT)
SEDDIO, on or before 19 February, A.D.J. 1991, which sum
represents Petitioner's "Equity Interest" in and to that certain
real property and estate commonly known and described as 734
Red Wing Dnive, Lewisville, Denton County, Texas, 75067;
20a
The sum certain in cash, of Twenty Thousand And No/100-
($20,000.00)-Dollars, due and payable by Respondent, FRANK
JOSEPH SEDDIOP JR., te Petitioner, LYN LARAINE (OTT)
SEDDIO, on or before the expiration of thirty (30) days from date
of execution and entry of this "Agreed Final Judgment And Decree
Of Divorce".. which sum represents Petitioner's "Equity Interest"
in Respondent's Retirement Account, Stock Purchase Account and
Deferred Compensation Account, by virtue of Respondent's
employment with E.D.S. Corporation (Company), being
additionally secured by "Note" and "Judicial Lien” herein
previously awarded by this Court to Petitioner, to secure payment;
Any and all. debts, charges, liabilities and other obligations
incurred by Respondent from and after the date of separation, that
date being-08 September, A.D., 1989, unless express provision is
made herein to the contrary;
Any and all ad valorem taxes, assessments, or other charges due or
to become due on the personal property herein awarded to
Respondent, unless express provision is made herein to the
contrary;.
The sum certain representing six month's comprehensive insurance
coverage on Petitioner's automobile from January, 1991, through
and until 31 July, A.D., 1991, which sum of monies is currently
being paid for insurance on Petitioner's automobile herein awarded
to Petitioner, pursuant to the Temporary Orders entered previously
in this Cause of Action, this provision of Temporary Orders not
being released until paid in full;
The total outstanding balance due and owing to any and all Credit
Card Account companies, revolving charge account companies
and/or other financial institutions which have extended- open lines
of credit to the Parties during the existence of the Marriage and
Marnage Relationship of the Parties
The sum certain of One Hundred Twelve And 50/100- ($112.50)-
Dollars, which sum is due and owing by Respondent to Petitioner,
and which sum represents one-half (1/2) of E.D.S. insurance
reimbursement made to the Parties, and received by Respondent,
Le Ot DSLRs A Rad a a ies FAL TEN NT ge RET Oe eRe CTR OPE See ETT ghee ik i cai RE ee oe eer eee ae es
21a
which sum certain shall be paid by Respondent, FRANK JOSEPH
SEDDIO, JR., to Petitioner, LYN LARAINE (OTT) SEDDIO, on
or before 19 February, A.D., 1991, concurrent with the entry and
execution by this Court of the "Agreed Final Judgment and Decree
of Divorce."
ATTORNEY'S FEES AND COSTS OF PROCEEDING
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that to effect an equitable division of the Marital Estate
of the Parties, and as a part of the division, each Party shall be
responsible for and shall pay his or her own Attorney's Fees,
Expenses and Costs of Court, incurred as a result of legal
representation in this Cause of Action.
UNITED STATES FEDERAL INCOME TAX REFUND
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that each party, shall be responsible for and
shall pay without further Order of this Court issuing, all
United States Federal Income Tax liabilities of the Parties
due and owing by Party, from and after the date of
Marmniage through and until 31 December, A.D., 1990, to
the extent that such tax liability exceeds monies previously
withheld from the Parties and prepaid by the Parties
through Federal Withholding;
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that for calendar year, 1991, each Party shall file a
separate retum and report as that Party's income, 50% of all
community income or loss attributable to the Parties, or either of
them, before the date of Divorce, all income attributable to the
reporting Party after that date, and all the reporting Party's separate
income during any part of the year. Each Party shall take credit on
that Party's return for 50% of all prepayments occurring before the
date of Divorce and reporting Party's prepayments and
withholdings the date of Divorce.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that LYN LARAINE (OTT) SEDDIO and FRANK
JOSEPH SEDDIO, JR., shall each furnish such information to the
other Party as is requested to prepare United States income
Taxation retums for each Party for the year in which this Divorce
22a
Decree is entered, and in no event shall such information be
exchanged later than 01 March of the year following the year in
which this Divorce Decree is entered. Each Party shall pay for the
preparation of his or her own United States Federal Income
Taxation return for the year in which this Divorce Decree is
entered.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that if a refund is made for overpayment of taxes for
any year during the Parties' Marriage, through and until 31
December, A.D., 1989, each Party hereto shall be entitled to
one-half, (1/2) of the refund, and the Party receiving the refund
check is designated as a Constructive Trustee for the benefit of the
other Party, to the extent of one-half, (1/2) of the total amount of
the refund, and shall pay to the other Party one-half, (1/2) of the
total amount of the refund check or draft within five (5) days of
receipt thereof.
IT IS FURTHER ORDERED ADJUDGED and
DECREED that from and after 31 December, A.D., 1989, each
Party to this Cause of Action, shall be entitled to, and shall receive
One Hundred Per Cent (100%) of any and all such United States
Internal Revenue Service Income Taxation Refund payment made,
if any.
PRESERVATION OF RECORDS
IT IS FURTHER ORDEREDY ADJUDGED and
DECREED that each Party to this Cause of Action shall keep and
preserve for a period of four (4) years from the date of entry of this
"Final Judgment and Decree of Divorce" any and all financial
records relating to the Community Estate, and each Party to this
Cause of Action is further ORDERED to allow the other Party
access to these records in the event of any Federal, State or Local
Taxation Audits.
REMOVAL OF PERSONAL ITEMS FROM PREMISES
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that Petitioner, LYN LARAINE (OTT) SEDDIOV
shall remove any and all remaining items of personal property of
Petitioner, herein awarded or confirmed to Petitioner, from the
homestead and residence of the Parties, located at 734 Red Wing
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Drive, Lewisville, Denton County, Texas, 75057, on a date to be
agreed to by the Parties hereto, with the Party’s' son being present
at such time as Petitioner removes her property herein awarded to
her, and with Respondent being absent from such premises at the
time of removal of Petitioner's personal property. If necessary,
prior to removal of all such property, Respondent may examine
and inspect such property selected by Petitioner, outside of two (2)
days prior to its actual physical removal.
DIVISION OF ASSETS AND _ LIAIBLITIES NOT
PROVIDED FOR IN AGREEMENT
IT IS FURTHER ORDERED, ADJUDGED §and
DECREED that as part of the division of the Estate of the Parties,
any Community Property or its value not otherwise awarded by
this Agreement, and not secreted by the Party in possession of such
property, from the other Party, is awarded to the spouse and Party
in possession or control of the property.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that as part of the division of the Estate of the Parties,
any Community Property or its value not otherwise awarded by
this Agreement, and secreted by the Party in possession of such
property, from the other Party, is awarded to the spouse and Party
not in possession or control of the property.
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that as part of the division of the. Estate of the Parties,
any Community liability not expressly assumed by a Party under
this Agreement will be paid by the Party personally incurring the
liability.
EXECUTION, TRANSFER AND DELIVERY OF DEEDS AND
TITLES
IT IS FURTHER ORDEREDV ADJUD GED and
DECREED that Petitioner, LYN LARAINE (OTT) SEDDIO, and
Respondent, FRANK JOSEPH SEDDIO, JR., are both specifically
ORDERED to sign, execute and deliver to the other Party, any and
all necessary Deeds, Car Titles, Bills of Sale and other related
documents necessary to effectuate this "Final Judgment and Decree
of Divorce", all of which documents as herein described being
signed, executed and delivered, and being further ORDERED to be
24a
signed, executed and delivered to the other Party, on or before the
expiration of fifteen (15) days from the date of entry of this "Final
Judgment and Decree of Divorce."
CONTRACTUAL AGREEMENTS VOLUNTARY, MUTUAL,
AND CLEARLY UNDERSTOOD
Each Party to these binding Agreements, Covenants and
Contractual Undertakings and Contractual Agreements,
specifically Petitioner, LYN LARAINE (OTT) SEDDIO and
Respondent, FRANK JOSEPH SEDDIO, JR., individually, hereby
stipulates as follows:
|. This Agreement, and all of its provisions is based on
valuable consideration, the mutuality and sufficiency of which
being hereby acknowledged by Petition-er, LYN LARAINE (OTT)
SEDDIO and Respondent, FRANK JOSEPH SEDDIO, JR., for all
purposes;
2. Petitioner, LYN LARAINE (OTT) SEDDIO, and
Respondent, FRANK JOSEPH SEDDIO, JR., each, has been and
is, completely informed of the facts relating to the subject matter of
these several binding Contractual Agreements, herein contained,
and of the nghts and liabilities of both Parties;
3. Each Party, Petitioner, LYN LARAINE (OTT)
SEDDIO, and Respondent, FRANK JOSEPH SEDDIO, JR., enters
into this Agreement(s) voluntarily and only after receiving the
advice of independent Legal Counsel, or having been provided
with the opportunity to seek independent advice from independent
Legal Counsel;
4. Each Party, Petitioner, LYN LARAINE (OTT)
SEDDIO and Respondent, FRANK JOSEPH SEDDIO, JR., has
given careful, mature and informed thought and consideration to
the making of this Agreement (s) ;
5. Each Party, Petitioner, LYN LARAINE (OTT)
SEDDIO and Respondent, FRANK JOSEPH SEDDIO, JR, has
carefully, intelligently and completely read each and every
provision of this Agreement(s), and this "Agreed Final Decree Of
Divorce and Binding Contractual Property Settlement Agreement",
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25a
and all of its provisions, herein contained;
6. Each Party, Petitioner, LYN LARAINE (OTT)
SEDDIO, and Respondent, FRANK JOSEPH SEDDIOV JR.,
completely and fully understands, for all purposes, cach and every
provision of this Agreement(s), both as to the subject matter
therein contained and the binding legal effect of all Agreements
and Orders herein contained.
INDEMNIFICATION OF THE PARTIES
Each Party, Petitioner, LYN LARAINE (OTT) SEDDIO,
and Respondent, FRANK JOSEPH SEDDIO, JR., cach to the
other, represents for all purposesP and further warrants, each to the
other, that he or she has not incurred any debt, obligation or other
liability, other than those described in this Agreement, on which
the other Party is, or may be liable. Each Party further agrees,
stipulates, covenants and contracts, cach with the other, that if any
claim, action or proceeding is hereinafter initiated secking to hold
the other Party liable for any other debt, obligation, liability, act, or
omission of the Party, that Party will, at his or he sole cost and
expense, inclusive of Attorney's Fees, defend the other Party
against any such claim or demand, whether or not. well founded,
and will further indemnify and hold harmless the other Party from
all damages resulting therefrom.
"Damages" as used herein, will include any loss, cost,
expense, penalty, and other damage, including, without limitation,
counsel fees and other costs and expenses reasonably incurred in
investigating or in attempting to avoid same or oppose the
imposition thereof or in enforcing this indemnity.
The indemnifying Party will reimburse the indemnified
Party upon demand, for any payment made by the indemnified
Party at anytime after the entry of. the Divorce Decree to satisfy
any Judgment of any court of competent Jurisdiction or pursuant to
a bona fide compromise or settlement of claims, demands, or
actions for any damages to which the foregoing indemnity relates.
Each Party further agrees, covenants and contracts further
to give the other Party prompt written notice of any litigation
threatened or instituted against cither Party that might constitute
26a
the basis of a claim for indemnity under this Agreement.
RIGHT TO LIVE SEPARATELY AND FREE FROM
INTERFERENCE
Each Party to this Cause of Action, will live separately and
apart from the other Party for the rest of his or her life, at any place
or places that he or she may select, consistent with the Agreements
And Orders herein contained. Neither Party to this Cause of
Action, will molest, harass, annoy, injure, threaten or interfere with
the other Party in any manner, whatsoever. Each Party may carry
on and engage in any employment, profession, business or other
activity as he or she may deem advisable for his or her sole use and
benefit. Neither Party shall interfere with the use, ownership,
enjoyment or disposition of any property now owned or hereafter
acquired by the other Party.
NO LITIGATION PENDING AFFECTING PARTIES
Both Parties stipulate, each to the other, that to that arty's
knowledge, there are no actions, suits or proceedings pending or
threatened against cither Party or the Comsaunity Estate or
affecting any Community Property or nghts, at Law or in Equity,
or before any Federal, State, Municipal or other Governmental
agency or instrumentality, domestic or foreign, and neither Party is
aware of any facts that might result in any action, suit or
proceeding, other than this proceeding.
JOINT BINDING AGREEMENT OF THE PARTIES
Each Party to this Cause of Action, and cach Party to the
other Party, does hereby confirm, affirm and stipulate that both
Parties have voluntarily participated in the preparation “of all
Contractual provisions contained in this Agreement, and that same
are to be construed, for all purposes, as absolutely contractually
binding on both Parties to this Agreement, all as contained in this
"Agreed Final Decree Of Divorce And Contractually Binding
Property Settlement Agreement.”
ENTIRE AGREEMENT OF THE PARTIES
This "Agreed Final Decree- Of Divorce And Contractually
Binding Property Settlement Agreementlt together with the other
contractually binding Agreements of the Parties, herein contained,
supersede any and all other agreements, either oral or in writing,
4
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4
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27a
between the Parties relating to the nghts and liabilities arising out
of their Marriage and Marital Relationship, cach to the other, and
constitutes the entire Agreement of the Parties, for all purposes.
PARTIAL INVALIDITY OF THIS AGREEMENT
If any provision of this Agreement is held by any Court of
competent Jurisdiction to be invalid, void, or unenforceable, the
remaining provisions contained herein will nevertheless and for all
purposes, continue in full force and effect without being impaired
or invalidated in any manner.
WAIVER-OF_BREACH OF ANY PROVISION
The waiver by one Party of any breach of this Agreement
by the other Party, shall not be deemed a Waiver of any other
provision of this Agreement, for any purpose.
AMENDMENT OR MODIFICATION OF THIS AGREEMENT
This "Agreed Final Decree Of Divorce and Contractually
Binding Property Settlement Agreementst may be amended or
modified further, only by written instrument executed by both
Parties.
SUCCESSORS AND ASSIGNS
This Agreement, shall be binding upon, and will inure to
the benefit of, the respective Legatees, Devisees, Heirs, Executors,
Administrators, Assigns and Successors In Interest, of cach of the
Parties, hereto, specifically Petitioner, LYN LARAINE (OTT)
SEDDIO and Respondent, FRANK JOSEPH SEDDIO, JR.
NOTICES T PARTI
Any Notice to be given under this Agreement by either
Party to the other Party shall be in writing and may be effected by
Registered or Certified Mail, Return Receipt Requested, showing
attempted Delivery, or Delivery of same, and addressed to the
other Party, at that Party's last known mailing address, as
hereinabove provided.
LAW GOVERNING THIS AGREEMENT
This Agreement shall be governed by, and shall be
construed i; accordance with, the Law of the State of Texas,
exclusively.
28a
VENUE GOVERNING SUIT UNDER THIS AGREEMENT
Venue and Jurisdiction with reference to any Post-
Judgment litigation, Post-Judgment Cause of Action and/or Post-
Judgment Suit, Claim, or Equity Proceeding, is and shall be in and
under the Junsdiction and Venue or the 158th Judicial District
Court, in and for Denton County, Texas, sitting at Denton, Denton
County, Texas.
ATTORNEY'S FEES AND EXPENSES FOR ENFORCEMENT
OF THIS AGREEMENT
Reasonable Attorney's Fees and Expenses of a Party
incurred in successfully prosecuting or defending a suit under this
Agreement against the other Party, or the other Party's Estate shall
be recoverable by the successful Party in such action, together with
interest thereon.
BILL OF REVIEW
If either Party seeks a modification of this Agreement by
equitable "Bill Of Review" and the initiating Party fails to succeed
in setting aside this Agreement, then the initiating Party will be
liable to the defending Party for any costs, Attorney's Fees,
consultant's fees, appraisal fees and any other expenses incurred in
defending such action.
AGREEMENTS OF THE PARTIES MERGED IN THE ORDER
OF THIS COURT
The Parties, each to the other, do hereby further, and by
these presents, do further covenant, agree, stipulate and contract,
that each and every agreement contained herein, is merged into,
and by consent and stipulation of the Parties, each to the other,
become upon execution hereof, the Order of this Court.
TEMPORARY ORDERS GOVERNING PARTIES ARE
RELEASED
IT IS FURTHER ORDERED ADJUDGED and
DECREED that, except as specifically set forth herein, that
Petitioner and Respondent are hereby discharged from all further
liabilities and obligations imposed by the Temporary Orders of this
Court previously entered herein, if any, as of the date of entry of
this "Agreed Final Judgment And Decree Of Divorce."
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29a
NECESSARY CLARIFYING ORDERS
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that without in any manner affecting the Finality of
this "Final Judgment And Decree of Divorce". this Court expressly
reserves the night to make any additional Orders necessary to
clarify and enforce this "Agreed Final Decree of Divorce."
RELIEF NOT GRANTED, IS DENIED
IT IS FURTHER ORDERED, ADJUDGED and
DECREED that any and all other relief requested in the this Cause
of Action, and not expressly granted herein, be, and the same is,
hereby DENIED.
DATE OF JUDGMENT
This "Final Judgment and Decree of Divorce" and other
associated and related Orders judicially announced and rendered
in open-Court in the 158th Judicial District Court in and for
Denton County, Texas, at Denton, Denton County, Texas, on the
19th day of February, A.D., 1991, and further noted on the Court's
Docket Sheet on the same date, and ministerially signed and
ratified on the 19" day of February, A.D., 1991.
SIGNED
JUDGE PRESIDING
30a
APPROVED AS TO FORM AND CONTENT AND
AGREED TO AS BINDING CONTRACTUAL AGREEMENT
OF THE PARTIES
SIGNED 19 Feb 91
LYN LARAINE (OTT) SEDDIO, DATE OF EXECUTION
PETITIONER AND COUNTER-RESPONDENT
SIGNED Feb 19 1991
FRANK JOSEPH SEDDIO, JR. DATE OF EXECUTION
RESPONDENT AND COUNTER-PETITIONER
PREPERED BY: RANDALL A. ANTONSON, PC.
RANDALL A. ANTONSON, 01275500
619 MERCURY PLACE, SUITE 107
DUNCANVILLE, TEXAS 75137
(214) 298-6925-995 1
ATTORNEYS FOR PETITIONER
COMPUTER REFERENCE: SEDDIO
UNAPPROVED AS TO CONTENT
HON. RICHARD S. PODGORSKI, ATTORNEY AT LAW
RICHARD S. PODGORSKI, T.B.N. 16082500
326-B, EAST MCKINNEY STREET
POST OFFICE BOX NO. 2494 ~
DENTON, DENTON COUNTY, TEXAS 76201-2
(817) 387-3869-3961
ATTORNEYS FOR RESPONDENT
UNAPPROVED AS TO CONTENT
ay
Sik Barts Staten etn wat tent tn
3la
NO. 89-3400-367
IN THE MATTER OF ) IN THE DISTRICT COURT
THE MARRIAGE OF )
LYN LARAINE (OTT) ) IN AND FOR
SEDDIO MICHAELS ) DENTON COUNTY, TEXAS
PETITIONER )
)
AND )
)
FRANK JOSEPH SEDDIO, )
JR. RESPONDENT ) 367th JUDICIAL DISTRICT
ORDER GRANTING MOTION FOR ENFORCEMENT
On this 17th day of July, 1997, came on to be heard
Movant's Motion for Enforcement of Agreed Final
Judgment and Decree of Divorce and Binding Contractual
Property Settlement Agreement of the Parties, hereinafter
referred to as Motion for Enforcement.
Movant, LYN MICHAELS, appeared in person and by
attorney of record. Respondent, FRANK JOSEPH
SEDDIO, JR., appeared in person and by attomey of
record.
A jury was waived and the Court proceeded to consider all
written response and the evidence and argument of counsel
and find and Order as follows:
The Court finds that all prerequisites of law have been
legally satisfied and that this Court has jurisdiction over
the parties and subject matter contained herein.
IT IS ORDERED that the Motion for Enforcement is
hereby granted.
The Court finds that FRANK JOSEPH SEDDIO, JR. has
failed to pay to LYN MICHAELS money that was
awarded in the prior decree and that the amount of unpaid
payments to which LYN MICHAELS is, as of July 17,
1997, entitled is $9347.66.
32a
IT IS ORDERED that LYN MICHAELS is granted judgment
against FRANK JOSEPH SEDDIO, JR. in the amount of
$9347.66, such judgment bearing interest at 10 percent per annum
compounded annually from the date this order is signed, for which
let execution issue, if not timely paid.
IT IS FURTHER ORDERED AND DECREED that LYN
MICHAELS is granted judgment against FRANK JOSEPH
SEDDIO, JR. in the amount of $3423.63 for attorney's fees, such
judgment bearing interest at 10 percent per annum compounded
annually from the date this order is signed until paid, for which let
execution issue if not timely paid.
IT IS FURTHER ORDERED AND DECREED that costs of court
are taxed against FRANK JOSEPH SEDDIO, JR., and FRANK
JOSEPH SEDDIO, JR., is ORDERED to pay those costs.
All relief not specifically granted herein is denied.
Signed this 9 day of September 1997.
= SIGNED ___
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
SIGNED SIGNED
JILL O'CONNELL RICHARD TANNER
Attorney for Movant Attorney for Respondent
33a
NO. 89-3400-367
INTHE MATTEROF ) — IN THE DISTRICT COURT
THE MARRIAGE OF _)
)
LYN LARAINE (OTT) |)
SEDDIO MICHAELS __ ) IN AND FOR
PETITIONER ) DENTON COUNTY, TEXAS
)
AND )
)
FRANK JOSEPH SEDDIO) 367" JUDICIAL DISTRICT
JR. RESPONDENT
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
In response to the request of Respondent, the Court makes
and files the following as original Findings of Fact and
Conclusions of Law in accordance with Rules 296 and 297 of the
Texas Rules of Civil Procedure.
FINDINGS OF FACT
l. LYN LARAINE MICHAELS, Movant and FRANK
JOSEPH SEDDIO, JR_, Respondent were married June 30, 1962.
2. On February 19, 1991, an Agreed Final Judgment and
Decree of Divorce and Binding Contractual Property Settlement
Agreement of the Parties was entered.
3. Both LYN LARAINE MICHAELS and FRANK
JOSEPH SEDDIO, JR. signed the Agreed Final Judgment and
Decree of Divorce and Binding Contractual Property Settlement
Agreement of the Parties.
4. FRANK JOSEPH SEDDIO, JR. agreed to pay LYN
LARAINE MICHAELS 50% of the monthly amount that a Master
Sergeant with 20 years of service would receive on the day that
FRANK JOSEPH SEDDIO, JR. begins to receive his retirement,
together with the same percentage of any and all cost-of-living-
34a
related increases to which FRANK JOSEPH SEDDIO, JR. shall
become entitled for the period beginning on the date of retirement
and ending on the death of FRANK JOSEPH SEDDIO, JR.
4. FRANK JOSEPH SEDDIO, JR. was designated within
the divorce decree as a constructive trustee for the benefit of LYN
LARAINE MICHAELS.
5. FRANK JOSEPH SEDDIO, JR. did not pay to LYN
LARAINE MICHAFLS the money that was awarded to her
pursuant to the property settlement agreement.
6. FRANK JOSEPH SEDDIO, JR. failed to pay to LYN
LARAINE MICHAELS the balance of the 50%, each month, that
was awarded to her, after the Air Force had paid her a direct
amount each month.
7. The Agreed Final Judgment and Decree of Divorce and
Binding Contractual Property Settlement Agreement of the Parties
contained the provision that the terms within the decree were "...
absolutely contractually binding on both Parties to the Agreement,
all as contained in this 'Agreed Final Decree of Divorce And
Contractually Binding Property Settlement Agreement'’."
8. The unpaid amount that LYN LARAINE MICHAELS is
entitled to as of July 17, 1997, is $9347.66.
9. Any finding of fact that is a conclusion of law
shall be deemed a conclusion of law.
CONCLUSIONS OF LAW
1. The Motion to Enforce filed by LYN LARAINE
MICHAELS is in due form and contains all the allegations
required by law.
CF vOD SE a ee Re
35a
2. This Court has jurisdiction of the parties and of the
subject matter of this cause.
3. FRANK JOSEPH SEDDIO JR's agreement to pay LYN
LARAINE MICHAELS 50% of the monthly amount that a Master
Sergeant with 20 years of service would receive on the day that
FRANK JOSEPH SEDDIO, JR. begins to receive his retirement,
together with the same percentage of any and all cost-of-living-
related increases to which FRANK JOSEPH SEDDIO, JR. shall
become entitled for the period beginning on the date of retirement
and ending on the death of FRANK JOSEPH SEDDIO, JR., was
not appealed and is therefore the law of the case.
4. FRANK JOSEPH SEDDIO, JR. breached his fiduciary
duty to LYN LARAINE MICHAELS by failing to account and
deliver within 3 days of receipt of his retirement payments the
sums due to LYN LARAINE MICHAELS.
5. FRANK JOSEPH SEDDIO, JR. is indebted to LYN
LARAINE MICHAELS in the amount of $9347.66, as of July 17,
1997, bearing interest at 10 percent per annum if not timely paid.
6. LYN LARAINE MICHAELS is entitled to reasonable
attorney's fees in the amount of $3423.63, plus 10 percent interest
per annum from September 9, 1997 until paid.
7. Attorney's fees in the amount of $3423.63 were
reasonable and necessary.
7. The division of military retirement benefits is
enforceable as a property settlement agreement.
8. The rules of contract law therefore apply to the agreed
upon division of military retirement.
9. This Court has the power to enforce property settlement
agreements.
10. This Court has the authority to enforce property
settlement agreements that involve military retirement and
disability benefits.
36a
11. Mansell v. Mansell 490 U.S. 581, 109 S.Ct. 2023, 104
L. Ed. 2d 675 (1989) is distinguished from this case, because
Mansell did not decide the issue of whether the state court may
enforce an agreement between the parties even if it involves
payment from disability benefits.
Signed this 17 day of October, 1997.
SIGNED
JUDGE PRESIDING
37a
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-97-372-CV
Frank Joseph Seddio, Jr From the 367” District Court
of Denton County (89-3400-367)
VS. August 28, 1998
Opinion by Justice Livingston
Lyn Ott Michaels (nfp)
JUDGMENT
This Court has considered the record on appeal in this case and
is of the opinion that there was no error in the judgment of the trial
court. It is ordered, adjudged, and decreed that the judgment of the
trial court is affirmed.
It is further ordered that Frank Joseph Seddio, Jr. pay all costs
of this appeal for which let execution issue.
TL
38a
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-97-372-CV ~
FRANK JOSEPH SEDDIO, JR. APPELLANT
VS.
LYN OTT MICHAELS APPELLEE
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
OPINION
I. INTRODUCTION
Appellant Frank Joseph Seddio, Jr. (Frank) appeals from the
trial court's granting of appellee Lyn Ott Michaels's (Lyn) motion
for enforcement of a divorce decree. In four points, Frank contends
the tnal court erred in: (1) awarding Lyn a portion of his Veterans'
Administration (VA) disability benefits; (2) overruling his statute
of limitations defense; (3) granting Lyn attorney 's fees; and (4) not
granting him attorney's fees. We affirm the trial court's judgment.
Il. FACTUAL BACKGROUND
Frank and Lyn marred on June 30, 1962. On February 19,
1991, they obtained a divorce pursuant to their agreed final
judgment and decree of divorce and binding contractual property
settlement agreement (the agreement). The agreement was drafted
by Frank's and Lyn's respective attorneys. The trial court did not
have a hand in the disposition of the couple's property. It merely
approved the agreement. The agreement provided that Lyn was
entitled to receive from Frank "a monthly amount of money equal
to fifty (50%) percent of that monthly amount that a retired Master
Sergeant, with twenty (20) years' of service will receive on the date
[Frank] begins to receive his retirement."
Lyn received several payments from, Frank, then began.
receiving direct payment from the Department of Defense for fifty
percent of what was later determined to be Frank's United States
Air Force disposable retirement retainer pay. Thus, Lyn did not
39a
receive any money from Frank's VA disability pay, which
constituted 10% of his retirement at the time he retired. As Frank's
disability entitlement increased to 60% of his retirement, he
waived his retirement benefits in order to take the money in the
form of disability payments. The amount of his disposable
retirement pay decreased accordingly. As a result, in September
1995, the monthly amount Lyn received diminished from $453.00
to $164.50. Her payment later fell to $61.50 in March 1996.
In May 1996, Lyn moved for enforcement of the decree of
divorce complaining that she was not receiving fifty percent of
Frank's gross retirement pay as required by the agreement. The
crux of Lyn's argument was that Frank's VA disability pay should
be factored into the award under the agreement. The trial court
held a hearing on the motion on July 17, 1996. On September 9,
1997, the tnal court granted the motion for enforcement and
awarded Lyn $9,347.66 in unpaid payments and $3,423.63 in
attorney's fees. Frank filed a motion for new trial, which was
overruled. The trial court filed its findings of fact and conclusions
of law on October 21, 1997. Conclusion of law number |] states:
Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L.
Ed. 2d 675 (1989) is distinguished from this case, because
Mansell did not decide the issue of whether the state court
may enforce an agreement between the parties even if it
involves payment from disability benefits.
III. DISCUSSION
A. Standard of Review
Findings of fact entered in a case tried to the court are of
the same force and dignity as a jury's answers to jury questions.
See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). The trial court's findings of fact are reviewable for legal and
factual sufficiency of the evidence to support them by the same
standards that are applied in reviewing evidence supporting a jury's
answer. See Ortiz v. Jones, 917 S-W.2d 770, 772 (Tex. 1996).
Conclusions of law may not be challenged for factual sufficiency,
but conclusions of law may be reviewed to determine their
correctness based upon the facts. See Forbis v. Trinity Universal
Ins. Co. of Kan., Inc., 833 S-W.2d 316, 319 (Tex. App.-Fort Worth
1992, writ denied).
40a
B. Disability Pay
In his first point, Frank argues the portion of the agreement
that purportedly awards Lyn fifty percent of all his retirement
benefits is void because it attempts to award Lyn one-half of his
VA disability pay in violation of the Former Spouses’ Protection
Act (the Act) and the United States Supreme Court's interpretation
of the Act in Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023
(1990). See Department of Defense Authorization Act of 1983,
Pub. L. No. 97-252, § 1001, 96 Stat., 730-735 (1982). Lyn argues
Mansell is inapplicable to the case at hand because Frank and Lyn
contractually split a sum certain such that the tnal court never
"awarded" disability payments to Lyn in contravention of Manse/1.
In Mansell, Gerald and Gaye Mansell entered into a
property settlement agreement that required Gerald to pay Gaye
"50 percent of his total military retirement pay, including that
portion of retirement pay waived so that [Gerald) could receive
disability payments." Mansell, 490 U.S. at 585-86, 109 S. Ct. at
2025. Gerald moved for modification of the divorce decree to
strike the provision requiring him to share his total retirement pay
with Gaye. Id. at 586, 109 S. Ct. at 2025-26. The trial court denied
the request for modification and the case reached the United States
Supreme Court on the issue of whether the California state court
could apply its own marital property laws to divide veterans’
disability benefits in a divorce partition proceeding. Id. at 585, 109
S. Ct. at 2025; Wallace v. Fuller, 832 S-W.2d 714, 716-18 (Tex.
App.-Austin 1992, no writ) (providing historical look at a Texas
trial court's ability to divide military retirement benefits).
The Mansell Court held that the California state court was
preempted from applying its community property laws to divide
the portion of Gerald's retirement pay that was waived to secure
VA disability benefits. Mansell, 490 U.S. at 594-95, 109 S. Ct. at
2031-32 (holding that state courts only have authority to treat
“disposable retired pay" as marital property and the Act excludes
disability benefits from its definition of "disposable retired pay");
Wallace, 832 S.W-2d at 716-18 (acknowledging that federal law
preempted the Texas state court from applying its own community
property laws to divide the military disability payments in a
partition proceeding).
41a
Lyn cites a Florida Supreme Court case, Abernethy v.
Fishkin, 699 So.2d 235 (Fla. 1997), to support her
proposition that Mansell does not prevent a divorcing
couple from entering into a settlement agreement to divide
all retirement benefits. Jn Abernethy, Richard and Monica
Abernethy entered into a property settlement agreement in
which Richard, whe had not yet retired, gave Monica
twenty-five percent of his Air Force retirement pay. Id. at
237.
The settlement agreement was later incorporated into a final
judgment of dissolution of marriage, with the change that Monica
would be entitled to twenty-five percent of Richard's “net
disposable retired or retainer pay." Id. Some time after he retired,
Richard waived a portion of his retirement in favor of VA
disability benefits, and Monica moved to receive a portion of
Richard's total benefits. Id. at 238. The trial court granted Monica's
motion, but the intermediate appellate court reversed. Id. at 238-39.
Although the Florida Supreme- Court concluded that "division of
veterans' disability benefits, whether through court order or
settlement agreement, are preempted by federal law, it found that
Monica "is entitled to receive payments equal to the amount she
was receiving before [Richard] elected veterans’ disability
payments." Id. at 239. The court reasoned that Richard was not
receiving disability payments when he and Monica entered into the
settlement agreement and the agreement itself contained an
indemnification clause that ensured Monica would receive level
payments by precluding Richard from shifting retirement payments
to avoid paying Monica her due under the agreement. See id. at
239-40. Because the indemnification provision did not specify
what assets would be used to keep Monica's payments level (i.e., it
did not say he had to pay her out of his disability benefits), the
court reasoned the final judgment did not violate Mansell. Id. at
239-40. Consequently, the court held that !d. at 240. [While
federal law prohibits the division of disability benefits, it does not
prohibit spouses from entering into a property settlement
agreement that awards the non-military spouse a set portion of the
military spouse's retirement pay. Nor does it preclude
indemnification provisions ensuring such payments-, so long as
veterans’ disability benefits are not the source of such payments.
42a
Here, we have a property settlement agreement purporting to
award: [A] monthly amount of money equal to fifty (50%) percent
of that monthly amount that a retired Master Sergeant, with twenty
(20) years' of service will receive on the date [Frank] begins to
receive his retirement.
We find that, as in Abernethy, the property settlement agreement
awards a sum certain that is unaffected by Frank's decision to
waive retirement pay in favor of VA disability pay. See id. In other
words, the property settlement effectively renders Frank's waiver
irrelevant for purposes of the amount due Lyn because the parties
contracted to tie the award to the amount "a retired Master
Sergeant, with twenty (20) years' of service" would receive, not the
amount that Frank actually received. In addition, as in Abernethy,
the agreement contains an indemnification clause that ensures
reimbursement, or satisfaction, upon the entry of a judgment
against one of the parties arising from the agreement. See id.
Moreover, the indemnification clause does not specify the source
of the amounts due. See id.
Although we recognize that Mansell also involved a
property settlement entered into by the parties prior to court
approval, we believe the case at hand is distinguishable because of
this unique agreement. Whereas the Mansells’ agreement expressly
divided Gerald's VA disability benefits in contravention of the Act,
Frank and Lyn merely contracted to divide a definite amount,
irrespective of ancillary or subsequent occurrences such as we have
here. See Mansell, 490 U.S. at 585-86, 109 S. Ct. at 2025. For these
reasons, we overrule Frank's first point.
C. Statute of Limitations
In his second point, Frank argues the tral court erred in
not applying the statute of limitations to Lyn's claims. However,
the record reveals that Frank failed to preserve error concerning
this point because he never raised this issue at the hearing or in his
motion for new tral. Texas Rule of Appellate Procedure 33.1
states:
(a) In general. As a prerequisite to presenting a complaint
43a
for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request,
objection, or motion that: , (A) stated the grounds for the ruling
that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rule of Civil or
Criminal Evidence or the Texas Rules of Civil or Appellate
Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either
expressly or implicitly; or
(B) refused to rule on the request, objection, or motion,
and the complaining party objected to the refusal.
TEX. R. App. P. 33.1 (a).
Here, there is nothing in the record to show that Frank ever raised
his statute of limitations defense in the trial court. Frank included
the statute of limitations defense in a laundry list of defenses in his
second amended original answer, but he never raised the issue at
the hearing or in his motion for new trial. Thus, Frank failed to
adequately preserve error. If a party fails to comply with rule 33. 1,
error is not preserved, and the complaint is waived. See Bushell
v. Dean, 803 SW.2d 711, 712 (Tex. 1991) (op. on reh'g)
(construing former rule 52). Therefore, we find that Frank waived
error concerning his statute of limitations defense. We overrule
Frank's second point.
D. Attorney's Fees
In his third and fourth points, Frank argues the trial court erred in:
(1) granting Lyn attorney's fees because it should not have granted
the motion to enforce; and (2) not granting him attorney I s fees
because he successfully defended the motion to enforce.
Frank does not contest the avai lability of attorney's fees or the
amount of attorney's fees awarded. Thus, because of our
disposition of point one, we overrule Frank's third and fourth
points.
| 44a
IV. CONCLUSION
We affirm the trial court's judgment.
TERRI LIVINGSTON
PANEL A: CAYCE, C.J., LIVINGSTON, and RICHARDS, JJ
DO NOT PUBLISH
TEX. R. App. P. 47.3(a)
AUG 2 8 1998
45a
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-97-372-CV
FRANK JOSEPH SEDDIO, JR. APPELLANT
LYN OTT MICHAELS ia APPELLEE
FROM THE 367th DISTRICT COURT OF DENTON COUNTY
ORDER
We have considered the appellant's "Motion For Rehearing."
It is the opinion of the court that said motion for rehearing
should be and is hereby denied and that the Opinion and judgment
of August 28, 1998, stand unchanged.
The clerk of this Court is directed to transmit a copy of this
order to the attorneys of record.
SIGNED THIS 15th day of October, 1998.
TERRIE LIVINGSTON
JUSTICE
PANEL A: CAYCE, C.J.; LIVINGSTON, and RICHARDS, JJ.
46a
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711 (512) 463-1312
November 18, 1999
Mr. Thomas V. Murto, Ii
Stadley & Wnght
9330 LBJ Freeway, Suite 1400
Dallas, TX 75243 ws
Ms. Jill Elizabeth Tate O'Connell
Morris & Morris
900 Parker Square, Suite 235
Flower Mound, TX 75028
RE: Case Number 98-1179
Court of Appeals Number: 02-97-00372-CV
Trial Court Number: 89-3400-367
Style: FRANK JOSEPH SEDDIO, JR.
V.
LYN OTT MICHAEL
Dear Counsel:
Today, the Supreme Court of Texas denied the petition for review
in the above styled case.
Sincerely,
John T. Adams Clerk
By Tanya R. Hunter, Deputy Clerk
Cc: Ms. Stephanie Lavake, Clerk
Ms. Tracy Kunkel
47a
Subj: Re: Former Spouses' Protection Act
Date: 02/08/2000 11:32:34 AM Central Standard Time
From: DEE.DACOSTA@DFAS.MIL
To: RBTCTT@aol.com
Mr. Tanner
There is a system generated report with this information. Total
number of former spouses paid in January 2000 was 57,056.
While I cannot give you a direct count for additions for 1999, I can
tell you that in January 1999 the number paid was 52,569.
This is a monthly report that tallies all payments and totals are
affected by accounts suspended or terminated as well as by
accounts added.
Hope this answers your question. If you have questions, don't
hesitate to ask.
DeeDaCosta
48a
Sec. 1408. Payment of retired or retainer pay in compliance
with court orders
e (a) Definitions. - In this section:
e (1) The term "court" means -
e (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;
e (B) any court of the United States (as
defined in section 451 of title 28) having
competent jurisdiction;
e (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; and
(D) any administrative or judicial tribunal
of a State competent to enter orders for
support or maintenance (including a State
agency administering a program under a
State plan approved under part D of title
IV of the Social Security Act), and, for
purposes of this subparagraph, the term
"State" includes the District of Columbia,
the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and American
Samoa.
e (2) The term "court order” means a final decree of
divorce, dissolution, annulment, or legal
separation issued by a court, or a court 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), or a support order, as defined in
49a
section 453(p) of the Social Security Act (42
U.S.C. 653(p)), which -
e (A) is issued in accordance with the laws
of the jurisdiction of that court;
e (B) provides for -
¢ (i) payment of child support (as
defined in section 459(i)(2) of the
Social Security Act (42 U.S.C.
659(i)(2)));
e (i) payment of alimony (as
defined in section 459(i)(3) of
the Social Security Act (42 U.S.C.
659(i)(3))); or
e (i) 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 pay, from the disposable
retired pay of a member to the
spouse or former spouse of that
member.
(3) The term "final 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) The term "disposable retired pay" means the
total monthly retired pay to which a member is
entitled less amounts which -
e (A) are owed by that member to the
United States for previous overpayments
of retired pay and for recoupments
50a
required by law resulting from entitlement
to retired pay;
e (B) are deducted from the retired pay of
such member as a result of forfeitures of
retired pay ordered by a court-martial or as
a result of a waiver of retired pay required
by law in
order to receive compensation under title 5
or title 38;
e (C) in the case of a member entitled to
retired pay under chapter 61 of this ttle,
are equal to the amount of retired
pay of the member under that chapter
computed using the percentage of the
member's disability on the date when the
member was retired (or the date on which
the member's name was placed on the
temporary disability retired list); or
e (D) are deducted because of an election
under chapter 73 of this title to provide an
annuity to a spouse or former spouse to
whom payment of a portion of such
member's retired pay is
being made pursuant to a court order
under this section.
e (5) The term "member" includes a former member
entitled to retired pay under section 12731 of this
ttle.
e (6) The term "spouse or former spouse" means the
husband or wife, or former husband or wife,
respectively, of a member who, on or before the
date of a court order, was married to that member.
e (7) The term "retired pay" includes retainer pay.
e (b) Effective Service of Process. - For the purposes of this
section -
e (1) service of a court order is effective if -
e (A) an appropriate agent of the Secretary
concerned designated for receipt of service
of court orders under
regulations prescribed pursuant to
51a
subsection (i) or, if no agent has been so
designated, the Secretary concerned, is
personally served or is served by facsimile
or electronic transmission or by mail;
(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, if
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 (50
U.S.C. App. 501 et
seq.) were observed; and
(2) a court order is regular on its face if
the order -
e (A) is issued by a court of competent
jurisdiction;
e (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) Authority for Court To Treat Retired Pay as Property of
the Member and Spouse. - (1) Subject to the limitations of
this section, a court may treat disposable retired 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. A court may not
treat retired pay as property in any proceeding to divide or
partition any amount of retired pay of a member as the
property of the member and the member's spouse or former
spouse if a final decree of divorce, dissolution, annulment.
or legal separation (including a court ordered, ratified, or
approved property settlement incident to such decree)
affecting the member and the member's spouse or former
spouse (A) was issued before June 25, 1981, and (B) did
52a
not treat (or reserve jurisdiction to treat) any amount of
retired pay of the member as property of the member and
the member's spouse or former spouse.
e (2) Notwithstanding any other provision of law,
this section does not create any nght, title, or
interest which can be sold, assigned, transferred,
or otherwise disposed of (including by inheritance)
by a spouse or former spouse. Payments by the
Secretary concerned under subsection (d) to a
spouse or former spouse with respect to a division
of retired pay as the property of a member and the
member's spouse under this subsection may not be
treated as amounts received as retired pay for
service in the uniformed services.
e (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.
e (4) A court may not treat the disposable retired pay
of a member in the manner described in paragraph
(1) unless the court has junsdiction over the
member by reason of (A) his residence, other than
because of military assignment, in the terntorial
jurisdiction of the court, (B) his domicile in the
terntorial junsdiction of the court, or (C) his
consent to the jurisdiction of the court.
e (d) Payments by Secretary Concerned to (or for Benefit of)
Spouse or Former Spouse. - (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 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 pay
of the member to the spouse or former spouse (or for the
benefit of such spouse or former spouse to a State
disbursement unit established pursuant to section 454B of
the Social Security Act or other public payee designated by
a State, in accordance with part D of title IV of the Social
53a
Security Act, as directed by court order, or as otherwise
directed in accordance with such part D) 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
pay specifically provided for in the court order. In the case
of a spouse or former spouse who, pursuant to section
408(a)(3) of the Social Security Act (42 U.S.C. 608(a)(4)),
assigns to a State the rights of the spouse or former spouse
to receive support, the Secretary concerned may make the
child support payments referred to in the preceding
sentence to that State in amounts consistent with that
assignment of rights. In the case of a member entitled to
receive retired pay on the date of the 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 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 receive retired-pay-
e (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 eligibility for retired 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 pay of the member as property
of the member or property of the member and his
spouse.
e (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
pay in order to comply with a court order.
e (4) Payments from the disposable retired pay of a
member pursuant to this section shall terminate in
accordance with the terms of the applicable court
54a
order, but not later than the date of the death of the
member or the date of the death of the spouse or
former spouse to whom payments are being made,
whichever occurs first.
(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 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 shall pay (subject
to the limitations of this section) from the
disposable retired 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 frorn such retired pay.
(6) In the case of a court order for which effective
service is made on the Secretary concerned on or
after the date of the enactment of this paragraph
and which provides for payments from the
disposable retired pay of a member to satisfy the
amount of child support set forth in the order, the
authonty provided in paragraph (1) to make
payments from the disposable retired pay of a
member to satisfy the amount of child support set
forth in a court order shall apply to payment of any
amount of child support arrearages set forth in that
order as well as to amounts of child support that
currently become due.
(7)
e (A) The Secretary concerned may not
accept service of a court order that is an
out-of-State modification, or comply with
the provisions of such a court order, unless
the court issuing that order has jurisdiction
in the manner specified in subsection
55a
(c)(4) over both the member and the
spouse or former spouse involved.
¢ (B) A court order shall be considered to be
an out-of-State modification for purposes
of this paragraph if the order
¢ (i) modifies a previous court order
under this section upon
which payments’ under __ this
subsection are based; and
(ii) is issued by a court of a State
other than the State of
the court that issued the previous
court order.
(e) Limitations. - (1) The total amount of the disposable
retired pay of a member payable under all court orders
pursuant to subsection (c) may not exceed 50 percent of
such disposable retired 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 pay
of the member shall be used to satisfy (subject to
the limitations of paragraph (1)) such court orders
on a first-come, first-served basis. Such court
orders shall be satisfied (subject to the limitations
of paragraph (1)) out of that amount of disposable
retired pay which remains after the satisfaction of
all court orders which have been previously
served.
(3)
e (A) In the event of effective 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 -
e (i) pay to that spouse from the
member's disposable retired pay
the least amount directed to be
paid during that month by any
56a
such conflicting court order, but
not more than the amount of
disposable retired pay which
remains available for payment of
such court 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 disposable
retired 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 pay which remains
available for payment of any conflicting
court order based on
when such court order was effectively
served and the limitations of paragraph (1)
and subparagraph (B) of paragraph
(4); and (iii) pay to that member the
amount which is equal to _ the
amount of that member's disposable
retired 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) 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 pay
paid under clause
(II) the amount of disposable retired pay
retained under
clause (ii).
(4)
57a
(B) The Secretary concerned shall hold the
amount retained under clause (ii) of
subparagraph (A) until such time as that
Secretary is provided with a court order
which has been certified by the member
and the spouse or former spouse to be
valid and applicable to the retained
amount. Upon being provided with such
an order, the Secretary shall pay the
retained amount in accordance with the
order.
(A) In the event of effective service of a
court order under this section and the
service of legal process pursuant to section
459 of the Social Security Act (42 U.S.C.
659), both of which provide for payments
during a month from the same member,
satisfaction of such court orders and legal
process from the retired pay of the
member shall be on a first-come, first-
served basis. Such court orders and legal
process shall be satisfied out of moneys
which are subject to such orders and legal
process and which remain available in
accordance with the limitations of
paragraph (1) and subparagraph (B) of this
paragraph during such month after the
Satisfaction of all court orders or legal
process which have been previously
served.
(B) Notwithstanding any other provision
of law, the total amount of the disposable
retired pay of a member payable by the
Secretary concerned under all court orders
pursuant to this section and all legal
processes pursuant to section 459 of the
Social Security Act (42 U.S.C. 659) with
respect to a member may not exceed 65
58a
percent of the amount of the retired pay
payable to such member that is considered
under section 462 of the Social Security
Act (42 U.S.C. 662) to be remuneration
for employment that is payable by the
United States.
(5) A court order which itself or because of
previously served court orders provides for the
payment of an amount which exceeds the amount
of disposable retired pay available for payment
because of the limit set forth in paragraph (1), or
which, because of previously served court orders
or legal process previously served under section
459 of the Social Security Act (42 U.S.C. 659),
provides for payment of an amount that exceeds
the maximum amount permitted under paragraph
(1) or subparagraph (B) of paragraph (4), shall not
be considered to be irregular on its face solely for
that reason. However, such order shall be
considered to be fully satisfied for purposes of this
section by the payment to the spouse or former
spouse of the maximum amount of disposable
retired pay permitted under paragraph (1) and
subparagraph (B) of paragraph (4).
(6) Nothing in this section shall be construed to
relieve a member of liability for the payment of
alimony, child support, or other payments required
by a court order on the grounds that payments
made out of disposable retired pay under this
section have been made in the maximum amount
permitted under paragraph (1) or subparagraph (B)
of paragraph (4). Any such unsatisfied obligation
of a member may be enforced by any means
available under law other than the means provided
under this section in any case in which the
maximum amount permitted under paragraph (1)
has been paid and under section 459 of the Social
Security Act (42 U.S.C. 659) in any case in which
the maximum amount permitted under
subparagraph (B) of paragraph (4) has been paid.
59a
(f) Immunity of Officers and Employees of United States. -
(1) The United States and any officer or employee of the
United States shall not be liable with respect to any
payment made from retired pay to any member, spouse, or
former spouse pursuant to a court order that is regular on
its face if such payment is made in accordance with this
section and the regulations prescribed pursuant to
subsection (i).
e (2) An officer or employee of the United States
who, under regulations prescribed pursuant to
subsection (i), has the duty to respond to
interrogatories shall not be subject under any law
to any disciplinary action or civil or criminal
liability or penalty for, or because of, any
disclosure of information made by him in carrying
out any of his duties which directly or indirectly
pertain to answering such interrogatories.
(g) Notice to Member of Service of Court Order on
Secretary Concerned. - A person receiving effective
service of a court order under this section shall, as soon as
possible, but not later than 30 days after the date on which
effective service is made, send a written notice of such
court order (together with a copy of such order) to the
member affected by the court order at his last known
address.
(h) Benefits for Dependents Who Are Victims of Abuse by
Members Losing Right to Retired Pay. - (1) If. in the case
of a member or former member of the armed forces
referred to in paragraph (2)(A), a court order provides (in
the manner applicable to a division of property) for the
payment of an amount from the disposable retired pay of
that member or former member (as certified under
paragraph (4)) to an eligible spouse or former spouse of
that member or former member, the Secretary concerned,
beginning upon effective service of such court order, shall
pay that amount in accordance with this subsection to such
spouse or former spouse.
e (2) A spouse or former spouse of a member or
former member of the armed forces is eligible to
receive payment under this subsection if -
60a
e (A) the member or former member, while
a member of the armed forces and after
becoming eligible to be retired from the
armed
forces on the basis of years of service, has
eligibility to receive retired pay terminated
as a result of misconduct while a member
involving abuse of a spouse or dependent
child (as defined
in regulations prescribed by the Secretary
of Defense or, for the
Coast Guard when it is not operating as a
service in the Navy, by
the Secretary of Transportation); and
(B) the spouse or former spouse -
(i) was the victim of the abuse and was married to the
member or former member at the time of that abuse; or
(ii) is a natural or adopted parent of a dependent child of
the member or former member who was the victim of the
abuse.
e (3) The amount certified by the Secretary
concerned under paragraph (4) with respect to a
member or former member of the armed forces
referred to in paragraph (2)(A) shall be deemed to
be the disposable retired pay of that member or
former member for the purposes of this subsection.
e (4) Upon the request of a court or an eligible
spouse or former spouse of a member or former
member of the armed forces referred to in
paragraph (2)(A) in connection with a civil action
for the issuance of a court order in the case of that
member or former member, the Secretary
concemed shall determine and certify the amount
of the monthly retired pay that the member or
former member would have been entitled to
receive as of the date of the certification -
e (A) if the member or former member's
eligibility for retired pay had not been
terminated as described in paragraph
(2)(A); and (B) if, in the case of a member
6la
or former member not in receipt of retired
pay immediately before that termination of
eligibility
for retired pay, the member or former
member _had retired on _ the
effective date of that termination of
eligibility.
¢ (5) A court order under this subsection may
provide that whenever retired pay is increased
under section 1401a of this title (or any other
provision of law), the amount payable under the
court order to the spouse or former spouse of a
member or former member described in paragraph
(2)(A) shall be increased at the same time by the
percent by which the retired pay of the member or
former member would have been increased if the
member or former member were receiving retired
pay.
(6) Notwithstanding any other provision of law, a
member or former member of the armed forces
referred to in paragraph (2)(A) shall have no
ownership interest in, or claim against, any amount
payable under this section to a spouse or former
spouse of the member or former member.
(7)
e (A) Ifa former spouse receiving payments
under this subsection with respect to a
member or former member referred to in
paragraph (2)(A) marries again after such
payments begin, the eligibility of the
former spouse to receive further payments
under this subsection shall terminate on
the date of such marriage.
¢ (B) A person's eligibility to receive
payments under this subsection that is
terminated under subparagraph (A) by
reason of remarriage shall be resumed in
the event of the termination of that
marnage by the death of that person's
spouse or by annulment or divorce. The
62a
resumption of payments shall begin as of
the first day of the month in which that
marriage is so terminated. The monthly
amount of the payments shall be the
amount that would have been paid if the
continuity of the payments had not been
interrupted by the marniage.
(8) Payments in accordance with this subsection
shall be made out of funds in the Department of
Defense Military Retirement Fund established by
section 1461 of this title or, im the case of the
Coast Guard, out of funds appropriated to the
Department of Transportation for payment of
retired pay for the Coast Guard.
(9)
(A) A spouse or former spouse of a
member or former member of the armed
forces referred to in paragraph (2)(A),
while receiving payments in accordance
with this subsection, shall be entitled to
receive medical and dental care, to use
commissary and exchange stores, and to
receive any other benefit that a spouse or a
former spouse of a retired member of the
armed forces is entitled to receive on the
basis of being a spouse or former spouse,
as the case may be, of a retired member of
the armed forces in the same manner as if
the member or former member referred to
in paragraph (2)(A) was entitled to retired
pay.
(B) A dependent child of a member or
former member referred to in paragraph
(2)(A) who was a member of the
household of~ the member or former
member at the time of the misconduct
described in paragraph (2)(A) shall be
entitled to receive medical and dental care,
to use commissary and exchange stores,
and to have other benefits provided to
e (10)
63a
dependents of retired members of the
armed forces in the same manner as if the
member or former member referred to in
paragraph (2)(A) was entitled to retired
pay.
(C) If a spouse or former spouse or a
dependent child eligible or entitled to
receive a particular benefit under this
paragraph is eligible or entitled to receive
that benefit under another provision of
law, the eligibility or entitlement of that
Spouse or former spouse or dependent
child to such benefit shall be determined
under such other provision of law instead
of this paragraph.
(A) For purposes of this subsection, in the
case of a member of the armed forces who
has been sentenced by a court-martial to
receive a punishment that will terminate
the eligibility of that member to receive
retired pay if executed, the eligibility of
that member to receive retired pay may, as
determined by the Secretary concerned, be
considered terminated effective upon the
approval of that sentence by the person
acting under section 860(c) of this title
(article 60(c) of the Uniform Code of
Military Justice).
(B) If each form of the punishment that
would result in the termination of
eligibility to receive retired pay is later
remitted, set aside, or mitigated to a
punishment that does not result in the
termination of that eligibility, a payment
of benefits to the eligible recipient under
this subsection that is based on the
punishment so vacated, set aside, or
mitigated shall cease. The cessation of
payments shall be effective as of the first
64a
day of the first month following the month
in which the Secretary concerned notifies
the recipient of such benefits in writing
that payment of the benefits will cease.
The recipient may not be required to repay
the benefits received before that effective
date (except to the extent necessary to
recoup any amount that was erroneous
when paid).
(11) In this subsection, the term "dependent child",
with respect to a member or former member of the
armed forces referred to in paragraph (2)(A),
means an unmarried legitimate child, including an
adopted child or a stepchild of the member or
former member, who -
e (A) is under 18 years of age;
e (B) is incapable of self-support because of
a mental or physical incapacity that
existed before becoming 18 years of age
and is dependent on the member or former
member for over one-half of the child's
support; or
e (C) if enrolled in a full-time course of
study in an institution of higher education
recognized by the Secretary of Defense for
the purposes of this subparagraph, is under
23 years of age and is dependent on the
member or former member for over one-
half of the child's support.
(i) Certification Date. - It is not necessary that the date of a
certification of the authenticity or completeness of a copy
of a court order for child support received by the Secretary
concemed for the-purposes of this section be recent in
relation to the date of receipt by the Secretary.
(j) Regulations. - The Secretaries concerned shall
prescribe uniform regulations for the
administration of this section.
(k) Relationship to Other Laws. - In any case
involving an order providing for payment of child
support (as defined in section 459(i)(2) of the
65a
Social Security Act) by a member who has never
been married to the other parent of the child, the
provisions of this section shall not apply, and the
case shall be subject to the provisions of section
459 of such Act.
66a
Sec. 5301. Nonassignability and exempt status of benefits
(a) Payments of benefits due or to become due under any
law administered by the Secretary shall not be assignable
except to the extent specifically authorized by law, and
such payments made to, or on account of, a beneficiary
shali be exempt from taxation, shall be exempt from the
claim of creditors, and shall not be liable to attachment,
levy, or seizure by or under any legal or equitable process
whatever, either before or after receipt by the beneficiary.
The preceding sentence shall not apply to claims of the
United States arising under such laws nor shall the
exemption therein contained as to taxation extend to any
property purchased in part or wholly out of such payments.
The provisions of this section shall not be construed to
prohibit the assignment of insurance otherwise authorized
under chapter 19 of this title, or of servicemen's indemnity.
For the purposes of this subsection, in any case where a
payee of an educational assistance allowance has
designated the address of an attommey-in-fact as the payee's
address for the purpose of receiving a benefit check and
has also executed a power of attomey giving the attomney-
in-fact authority to negotiate such benefit check, such
action shall be deemed to be an assignment and is
prohibited.
(b) This section shall prohibit the collection by setoff or
otherwise out of any benefits payable pursuant to any law
administered by the Secretary 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 the beneficiary's
estate; or (2) any beneficiary or the beneficiary's estate
except amounts due the United States by such beneficiary
or the beneficiary's estate by reason of overpayments or
illegal payments made under such laws to such beneficiary
or the beneficiary's estate or to the beneficiary's
dependents as such. If the benefits referred to in the
preceding 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 shall not apply to indebtedness
67a
¢ (B) For the purposes of subparagraph (A)
of this paragraph, as used in the second
sentence of section 3716(a) of title 31 -
e (i) the term "records of the
agency" shall be considered to
refer to the records of the
department of the Secretary
concerned; and (ii) the term
"agency" in clauses (3) and (4)
shall be considered to refer to such
department.
e (4) Funds collected under this subsection shall be
credited to the Department of Defense Military
Retirement Fund under chapter 74 of title 10 or to
the Retired Pay Account of the Coast Guard, as
appropriate.
(d) Notwithstanding subsection (a) of this section,
payments of benefits under laws administered by the
Secretary shall not be exempt from ievy under subchapter
D of chapter 64 of the Internal Revenue Code of 1986 (26
U.S.C. 6331 et seq.).
(e) In the case of a person who -
e (1) has been determined to be eligible to receive
pension or compensation under laws administered
by the Secretary but for the receipt by such person
of pay pursuant to any provision of law providing
retired or retirement pay to members or former
members of the Armed Forces or commissioned
officers of the National Oceanic and Atmospheric
Administration or of the Public Health Service;
and
(2) files a waiver of such pay in accordance with
section 5305 of this title in the amount of such
pension or compensation before the end of the
one-year period beginning on the date such
person is notified by the Secretary of such person's
eligibility for such pension or compensation, the
retired or retirement pay of such person shall be
exempt from taxation, as provided in subsection
(a) of this section, in an amount equal to the
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existing against the particular insurance contract upon the
matunty of which the claim is based, whether such
indebtedness is in the form of liens to secure unpaid
premiums or loans, or interest on such premiums or loans,
or indebtedness arising from Overpayments of dividends,
refunds, loans, or other insurance benefits.
(c)
° (1) Notwithstanding any other provision of this
section, the Secretary may, after receiving a
request under paragraph (2) of this subsection
relating to a veteran, collect by offset of any
compensation or pension payable to the veteran
under laws administered by the Secretary the
uncollected portion of the amount of any
indebtedness associated with the veteran's
participation in a plan prescribed in chapter 73 of
title 10.
° (2) If the Secretary concerned (as defined in
section 101(5) of title 37) has tried under section
3711 (a) of title 31 to collect an amount described
in paragraph (1) of this subsection in the case of
any veteran, has been unable to collect such
amount, and has determined that the uncollected
portion of such amount is not collectible from
amounts payable by that Secretary to the veteran
or that the veteran is not receiving any payment
from that Secretary, that Secretary may request the
Secretary to make collections in the case of such
veteran as authorized in paragraph (1) of this
subsection.
° ()
¢ (A) A collection authorized by paragraph
(1) of this subsection shall be conducted in
accordance with the procedures prescribed
in section 3716 of title 3] for
administrative offset collections made
after attempts to collect claims under
section 37] 1(a) of such title.
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amount of pension or compensation which would
have been paid to such person but for the receipt
by such person of such pay.
a
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Sec. 5304. Prohibition against duplication of benefits
e (a)
(1) Except to the extent that retirement pay is
waived under other provisions of law, not more
than one award of pension, compensation,
emergency officers’, regular, or reserve retirement
pay, or initial award of naval pension granted after
July 13, 1943, shall be made concurrentiy to any
person based on such person's own service or
concurrently to any person based on the service of
any other person.
(2) Notwithstanding the provisions of paragraph
(1) of this subsection and of section 5305 of this
title, pension under section 1521 or 1541 of this
title may be paid to a person entitled to receive
retired or retirement pay described in section 5305
of this title concurrently with such person's receipt
of such retired or retirement pay if the annual
amount of such retired or retirement pay is
counted as annual income for the purposes of
chapter 15 of this title.
(1) Except as provided in paragraphs (2) and (3) of
this subsection and in section 1521(i) of this title,
the receipt of pension, compensation, or
dependency and indemnity compensation by a
surviving spouse, child, or parent on account of
the death of any person, or receipt by any person
of pension or compensation on account of such
person's own service, shall not bar the payment of
pension, compensation, or dependency and
indemnity compensation on account of the death
or disability of any other person.
(2) Benefits other than insurance under laws
administered by the Secretary may not be paid or
furnished to or on account of any child by reason
of the death of more than one parent in the same
parental line; however, the child may elect one or
more times to receive benefits by reason of the
death of any one of such parents.
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e (3) Benefits other than insurance under laws
administered by the Secretary may not be paid to
any person by reason of the death of more than
one person to whom such person was married;
however, the person may elect one or more times
to receive benefits by reason of the death of any
one spouse.
(c) Pension, compensation, or retirement pay on account of
any person's own service shall not be paid to such person
for any period for which such person receives active
service pay.
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