Petition for Writ of Certiorari — Banks v. Banks

Supreme Court brief1992

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Epwma Sourt, US.

Sik #& YD

In The

Supreme Court of the United States

October Term, 1992

JOHN W. BANKS II,

Petitioner,

VERNA j. BANKS,

Respondent.

Petition For A Writ Of Certiorari

To The California Court Of Appeals

For The Third Appellate District

PETITION FOR A WRIT OF CERTIORARI

Douc.as B. Cone

Attorney at Law

720 West 19th Street

Merced, California 95340

(209) 383-4333

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the order reopening petitioner’s divorce case

to divide his Veterans’ Administration disability benefits as

community property was void under the Supremacy Clause of

the Federal Constitution for lack of subject matter jurisdiction

because the anti-attachment provision of the Veterans’ Benefits

Act (38 U.S.C. §5301), which protects V.A. disability

benefits from "any legal or equitable process whatever,"

completely preempts state court power to treat veterans’

disability benefits as community property.

PARTIES

The parties are: Petitioner, JOHN W. BANKS, III,

Major, USAF, Ret. and Respondent, VERNA J. BANKS.

Since Petitioner contends that application of California

Civil Code §4800(a) to divide his Veterans Administration

disability compensation as community property offends Art.

VI, Cls. 2 of the United States Constitution, 28 U.S.C.

§2403(b) may be applicable, and the Attorney General of the

State of California is being served pursuant to Rule 29.4(c) of

this Court.

ies? Ae oo

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ......... i

ie se I a a en il

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............. 2

pemumeemers Ge Bem CASE... 1... eee 3

I tea Ora a ag a Sn ag 6a a a 0 8 '

I THE ORIGINAL TRIAL COURT

DID NOT HAVE SUBJECT MATTER

JURISDICTION TO REOPEN THE

FINAL PROPERTY DISTRIBUTION ...... 7

II COMMUNITY PROPERTY

DIVISION OF V.A.DISABILITY

BENEFITS VIOLATES 38 U.S.C.

§5301, WHICH POSITIVELY

REQUIRES THAT DISABLED

VETERANS ACTUALLY RECEIVE

ee 12

iil

Il 38 U.S.C. §5301 IS PART OF A

GENERALIZED CONGRESSIONAL

PLAN FOR PROTECTING VETERAN’S

DISABILITY BENEFITS FROM ANY

FORM OF ATTACHMENT EXCEPT FOR

ee a ee ae ae 15

IV OFFSETTING GARNISHMENT OF

OTHER ASSETS CONSTITUTES A SEIZURE

OF THE V.A. DISABILITY BENEFITS

FORBIDDEN BY 38 U.S.C. §5301 ....... 19

[A 6 cia Cece ee 8 a 21

APPENDICES

A Original Judgment ............. A

B Modification Dividing V.A. disability

a eee eee ee eee ee ee B

& Order Denying Motion to Set Aside

Community Property Division of V.A.

ee ere C

D Court of Appeals Opinion Affirming

Denial: ef Motion to Set Aside Division

of V.A. Disability Benefits ......... D

E California Supreme Court Order

Be eee ae eae E

Rs cg re a ee ee en ree oe Statutes

(UE

TABLE OF AUTHORITIES

CASES

Absher v. U.S.,

9 Ct. Cl. 223 (1985),

aff'd, 805 F.2d 1025 (Fed.Cir.,

1986), cert. den., 481 U.S. 1028

[107 S.Ct. 1953, 95 L.Ed.2d 526]

to: eo ee itp cig Be Need tana ag tt nln 16, 17

Casas v. Thompson, 42 Cal.3d 131

[228 Cal.Rptr. 33] (1986) . 1, 4, 7, 8, 9, 10, 18, 19

Consolidated Theaters v. Theatrical Stage

Employees Union, 69 Cal.2d 713

[73> Cal Retr. 213} (19GB)... ee 6

County of Ventura v. Tillett,

133 Cal.App.3d 105

See Mi, PURE AUOME) oc sy os cs a ces 1]

Costa v. Banta,

98 Cal.App.2d 181

rie eG 0, | ees 6, 11

Free v. Bland,

ee es ee tte Gs ew een 12, 13

Hisquierdo v. Hisquierdo,

Soe ss FAR CURT 6 oe ee we LZ, tay 2 oe

In re Burrus,

ie Shc Oo 6. Sk 6 0s 5s ck 12

In re Marriage of Costo,

156 Cal. App.3d 781

[de Coa Bee, G51 CI9S4) ww ck ce 7

In re Marriage of Curtis,(1 Civ. A05S3562)

__ Cal.App.4th

[__ Cal.Rptr.2d_ —_—'] (June 10, 1992) ..... 9, 10

In re Marriage of Fithian,

10 Cal.3d 592

cond Commer. SOP) C1974) ww ec we 8

Mansell v. Mansell,

490 U.S. 581 [104 L.Ed.2d 675,

109 S.Ct. 2023] (1989) ..... 4,9, 10, 11, 13, 15

Mansell v. Mansell,

217 Cal.App.3d 219

yee 8 eet) | re 11

McCarty v. McCarty,

435 U.S. 210 [101 S.Ct. 2728,

ee. 8 rere 7, 8, 10, 11, 13

McCune v. Essig,

Poe Mak BO CEO? coal cals pee 13

People v. West Coast Shows, Inc.,

10 Cal.App.3d 462 (1970) .............. 11

Ridgway v. Ridgway,

G28 Ue. GEC) ke 85 es 12, 13, 14, 19

Rose v. Rose,

481 U.S. 619 [107 S.Ct. 2029,

FS LEG Seed CIPO 6 es ee FS 13, 15, 20

Smith Metropolitan Company v. Superior Court,

16 Cal.2d 226

[ROE FOU Te HD ok ek cet ewes 5

Summers v. Superior Court,

53 Cal.2d 295

Fe Cy ON GOOD ck ck Co a oe hee 6

Svistunoff v. Svistunoff,

108 Cal.App.2d 638

[eae WOE CADE 6p cee eee a

Wissner v. Wissner,

aoe S.m ee CO Oee sn kee tee 13, 14, 19, 20

CONSTITUTIONAL PROVISIONS

if ie Oe ee ae re eee es 2

STATUTES

SRC «sn i ha ee 17

PR EE Sn 0 eee eee ec 5, 6, 8, 10, 11

pe ee 8 Pee eee eee ee Se a ee 17

Rie Ee | eee eee ee ee ee 17

Be Ties OUTRO 6 6 eK Vs eee eS l

Oe Us Pe TS be aa ee ee Se 20

KT eh) ee a er ee ae eee ee 12

Pe ee PRUE 8 a eh ee a eee 13

OS Re 4) ee ee ee ae or 18

De Ae Oe aah eS i nee ee a 13

Pe ees EE ek oe ee COON ee eek ees 17

38 U.S.C. §5301 [former §3101]) .. i, 2, 6, 7, 11, 13, 15

18, 19, 20, 21

Cee ke Pere ee eee eee eee 13, 17

GU BA oh a yk wR eR A aw ee eS 17

ee Sees Oe! 0 8 a WE 6 re we 15, 17

. ee | Peer ee see Tee ee es 17

Pe Sa De ee ce ee 6, 8, 9, 10, 11

California Civil Code §4800(a) ................ ll

Vii

California Code of Civil Procedure §473 ....... 2, 3, 6

re oe le yeh wee ea ii

CONGRESSIONAL RECORDS

Senate Report No. 97-504 on the Omnibus

Budget Reconciliation Act of 1982 (Pub.

ree ree erate ater Nir a Xe 16

Senate Report No. 98-174, pp. 221-222

to accompany S-675, Department of

Defense Authorization Act of 1984 ...... 17, 18

House Report No. 96-1155, p. 4, Veterans’

Disability Compensation and Housing

Benefits Amendments of 1980 ............ 16

House Conf. Rpt. 97-749 on the Uniformed

Services Former Spouses Protection Act ...... 8

House Report 1C9-563, April 5, 1988,

(National Defense Authorization Act

ee I ne a eye anein a x oS 8, 10

House Report 101-665, August 3, 1990, on

rR. 4739 (PL 101-510), (National Defense

Authorization Act for Fiscal Year 1991) ...... 8, 10

House Report 101-923, October 20, 1990, on

H.R. 4739 (PL 101-510), (National Defense

Authorization Act for Fiscal Year 1991) ...... 8, 10

Viil

OPINIONS OF THE LOWER COURTS

In the parties’ 1986 divorce, the trial court originally

determined Major Banks’ V.A. disability benefits were not

subject to division as community property and awarded his ex-

wife 43.95% of his net military retirement pay. (Appendix

[Appen] A; CT 229.)

On May 4, 1987, the trial court reopened the case and

found that, pursuant to Casas v. Thompson, 42 Cal.3d 131

[228 Cal.Rptr. 33] (1986), Major Bank’s must pay his ex-wife

43.95% of his gress military retirement pay, including V.A.

disability benefits. (Appen. B; CT 350-353.)

On December 7, 1990, the trial court entered an Order

denying Major Banks’ motion to set aside the Order that

divided his V.A. disability benefits as community property.

(Appen. C; CT 510-512.)

On January 31, 1992, in an unpublished Opinion, the

California Court of Appeal for the Third Appeliate District

affirmed, finding the Veterans’ Benefits Act (Title 38,

U.S.C.) does not preempt state court subject matter

jurisdiction. (Appen. D.)

On April 15, 1992, the California Supreme Court

denied review without issuing a opinion. (Appen. E.)

JURISDICTIONAL GROUNDS

Major Banks invokes this court’s jurisdiction under 28

U.S.C. §1257(3). Major Banks asks the court to determine

whether state courts have subject matter jurisdiction to

characterize V.A. disability benefits as community property in

violation of 38 U.S.C. §5301 and 10 U.S.C. §1408(a)(4), that

put veterans’ disability benefits beyond the reach of state

courts.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Supremacy Clause of the federal

Constitution, the anti-attachment provisions of the Veterans’

Benefits Act (38 U.S.C. § 5301 [former §3101]), the

jurisdictional limitation provisions of the Uniformed Services |

Former Spouses Protection Act (FUSFSPA), (10 U.S.C. ;

§1408(a)(4) and (c)(1)), and the California Statute authorizing

collateral attacks on void orders (California Code of Civil

Procedure §473.) The statutes are set forth in full in the

appendix because of their length. The relevant portions :

provide: |

U.S. Const., Art. VI, Cls. 2:

"The Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding."

Pe Tyla ta nwt a ee Met aiae

10 U.S.C. §1408(a)(4)(B):

"(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;"

38 U.S.C. §5301 [former §3101]:

(a) "Payment of benefits due or to become due

under any law administered by the Veterans Ad-

ministration shali not be assignable except to the extent

specifically authorized by law, and such payments

made to, or on account of, a beneficiary shall be

exempt from taxation, shall be exempt from the claims

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 * * *"

California Code of Civil Procedure §473:

“The court may, upon motion of the injured

party, or its own motion, correct clerical mistakes in

its judgment or orders as entered, so as to conform to

the judgment or order directed, and may, on motion of

either party after notice to the other party, set aside

any void judgment or order."

STATEMENT OF THE CASE

Petitioner, John Banks entered the United States Air

Force in 1951, and retired as a Major in 1971, after twenty

years of service. (Reporter’s Transcript [RT], p. 10.) John

and Verna Banks were married in 1954, and separated about

17 1/2 years later in 1979. (RT 1, 11, 77.) They were

married during 87.9% of the time Major Banks was on active

duty with the Air Force. (RT 77.) Major Banks has a 40%

disability rating from the Department of Veterans Affairs

(V.A.). (RT 11.)

The ex-wife filed a petition for dissolution of marriage

in 1979. (CT 1-2.) The marital status was terminated

pursuant to a stipulation for bifurcation, with reservation of

jurisdiction over all other issues. (CT 100, 104.) Judgment

was finally entered January 1, 1986. (CT 224-230.)

The original trial court found Major Banks was

awarded a disability rating of 40% by the Veterans’

Administration [Department of Veterans Affairs) and

determined his military retirement benefits attributable to

disability were not subject to division as community property.

The ex-wife was awarded 43.95% of Major Banks’ net

military retirement pay. (CT 229.) Judgment was entered on

October 31, 1986. (CT 333-335.)

LMI: ON INE mr ern nae,

The ex-wife did not appeal or otherwise seek review of

the decision that Major Banks’ V.A. disability benefits were

his separate property. However, after the California Supreme

Court decided Casas v. Thompson, 42 Cal.3d 131 [228

Cal.Rptr. 33] (1986), but before this court overruled Casas in

Mansell v. Mansell, 490 U.S. 581 [104 L.Ed.2d 675, 109

S.Ct. 2023] (1989), the ex-wife filed a motion to reopen the

case on March 2, 1987, seeking division of Major Banks’

V.A. disability benefits. (CT 338.)

The trial court did not apply res judicata to the original

separate property determination. Rather, on May 4, 1987, the

court found that, pursuant to Casas v. Thompson, 42 Cal.3d

131 [228 Cal.Rptr. 33] (1986), Major Banks must pay his ex-

wife 43.95% of his gross military retirement pay, including

the V.A. disability benefits. (CT 353.)

In California, the normal and adequate remedy is to

violate a void order deliberately, be adjudged in contempt, and

then review the contempt order by habeas corpus. (See e.g.,

Smith Metropolitan Company v. Superior Court, 16 Cal.2d

226, [105 P.2d 587] (1940).) Review of the resulting

contempt order on certiorari or habeas corpus, is a better

remedy than appeal. An appeal would require obedience

during the long period until reversal because Major Banks was

not able to post a huge bond at the time the reopening order

divided his V.A. benefits. Further, after reversal on appeal,

he would be faced with the daunting task of recouping the

unlawful payments from his ex-wife. Review of a contempt

order would make obedience unnecessary.

Therefore, Major Banks elected tc ignore the order and

defend potential contempt citations. The United States Air

Force also tacitly supported this decision by refusing to honor

the reopening order.

However, the ex-wife has never brought a contempt

action. Perhaps she recognized §5301’s absolute defense to

contempt, but was hoping for a favorable change in federal

law.

She filed five different Orders to Show Cause to set

arrearages in the division of V.A. disability benefits because

the Air Force would not honor the Modified Juézment or pay

her more than 43.95 % of the net disposable retirement pay as

defined in 10 U.S.C. §1408(a)(4). (CT 355-363; 381-387;

396-406; 436; 487.)

After Major Banks received a tort recovery, the ex-

wife attached it to offset the Air Force refusal to honor the

reopening order. In response, Major Banks filed the present

action pursuant to Code of Civil Procedure §473 to set aside

the void reopening order. (CT 438-440.)

After the attachment, Maj. Banks filed the present

motion under California Code of Civil Procedure §473, to set

aside the void order dividing his V.A. disability benefits. He

contends the order is void due to lack of subject matter

jurisdiction pursuant to the federal Veterans Benefits Act (38

U.S.C. §5301.) It is also void under the retroactive

provisions of §555 of Public Law 101-510. (10 U.S.C.

§1408.)

Under California law, a void order is a "dead limb on

the judicial tree," which has no provisional or interim effect.

(Svistunoff v. Svistunoff, 108 Cal.App.2d 638 [239 P.2d 650]

(1952).) Void judgments and orders are always subject to

collateral attack. (California Code of Civil Procedure §473

[last sentence]; Summers v. Superior Court, 53 Cal.2d 295,

298 [1 Cal.Rptr. 324] (1959); Consolidated Theaters v.

Theatrical Stage Employees Union, 69 Cal.2d 713, 721 [73

Cal.Rptr. 213] (1968); Costa v. Banta, 98 Cal.App.2d 181,

182 [219 P.2d 478] (1950).)

Major Banks contended the state court never had

jurisdiction over his V.A. disability benefits, and that

collateral estoppel did not prevent him from challenging the

reopening order at this late date because void orders are

_ always subject to collateral attack. (CT 421-425; 429.)

On December 7, 1990, the court denied the motion to

set aside the reopening order that divided Mr. Banks’ V.A.

disability benefits. (CT 510-512.) On January 31, 1992, the

Court of Appeal affirmed, finding the Veterans’ Benefits Act

does not preempt state court subject matter jurisdiction.

Therefore, according to the Court of Appeal, res judicata

applies to prevent reconsideration, even though res judicata

did not preclude the ex-wife from reopening the original

judgment. The California Supreme Court denied review on

April 15, 1992.

Major Banks seeks review in this court to determine

whether the Veterans’ Benefits Act (Title 38, United States

Code) preempts state subject matter jurisdiction over V.A.

disability benefits by virtue of the anti-attachment provisions,

38 U.S.C. §5301, which protect V.A. disability benefits from

"* * * any legal or equitable process whatever, * * * *."

ARGUMENT

THE ORIGINAL TRIAL COURT DID NOT HAVE

SUBJECT MATTER JURISDICTION TO REOPEN

THE FINAL PROPERTY DISTRIBUTION

The tria! court found it could reopen the original

property distribution because Casas v. Thompson, 42 Cal.3d

131 [228 Cal.Rptr. 33] determined California courts could

apply state law to the federal asset. According to Casas,

FUSFSPA obliterates McCarty v. McCarty, 435 U.S. 210

[101 S.Ct. 2728, 69 L.Ed.2d 589], and allows the states to

apply pre-McCarty subject matter jurisdictional analyses to

military retirement pay.

Ironically, Casas severely criticized, without overruling

In re Marriage of Costo, 156 Cal.App.3d 781 [203 Cal.Rptr.

85] (1984), the only reported California decision that correctly

interpreted the Veterans Benefits Act. However, after

McCarty corrected the Casas court’s interpretation of federal

law, the California courts continued to follow the mistaken

Casas reasoning, to the exclusion of the correct Costo analysis

of the Veterans’ Benefits Act.

Under the mistaken Casas analysis, Jn re Marriage of

Fithian, 10 Cal.3d 592 [111 Cal.Rptr. 369] (1974) allows

community property treatment of military retirement benefits

because there was no federal preemption. Fithian, of course,

was overruled by McCarty v. McCarty, 435 U.S. 210 (1981).

However, according to the present California analysis, 10

U.S.C. §1408 retroactively overruled McCarty.

However, application of FUSFSPA to eliminate

McCarty directly conflicts with four Congressional

declarations that FUSFSPA is not retroactive. (House Conf.

Rpt. 97-749; House Rpt. 100-563; House Rpt. 101-665; and

House Rpt. 101-923.)

Further, California’s determination of retroactivity

directly conflicts with §555(e) of Public Law 101-510, which

makes it clear that the new second sentence of 10 U.S.C.

§1408(c)(1), withholding su» ect matter jurisdiction applies to

every state court reopening judgment or order, regardless of

when the reopening order is entered.

In addition, California’s analysis dees not recognize

that both issues addressed by Casas are questions of federal!

law and have been overruled. According to the California

Supreme Court, itself, the Casas case presented:

"* * * two issues for review: (1) following enactment

of the Federal Uniform Services Former Spouses’

Protection Act (FUSFSPA), does a California court

have the power to award a former spouse an interest

in a military retiree’s pension which was omitted from

an earlier dissolution decree; and (2) if the court can

make such an award, should the division of the

pension be based on its ‘disposable’ (as defined in

FUSFSPA) amount or its ‘gross’ amount? We

conclude that the court has the power to award a

een

former spouse an interest in the ‘gross’ amount of a

military retiree’s pension. (Casas, supra, 42 Cal.3d at

136.)

California completely ignores the fact that Casas was

overruled on the net versus gross issue by Mansell v.

Mansell, 490 U.S. 581 [104 L.Ed.2d 675, 109 S.Ct. 2023]

(1989). And now, Casas has been overruled on its other

issue, subject matter jurisdiction over "omitted" retirements,

by §555 of Pub. L. 101-510. Therefore, California has no

basis for exercise of subject matter jurisdiction.

Casas has absolutely no vitality as a tool for analyzing

federal law. Both of the Casas conclusions have been

overruled. Mansell settled the "net-versus-gross" question and

the retroactivity clause of §555(e) limits subject matter

jurisdiction for all judgments, regardless of date. The

retroactivity clause provides:

"EFFECTIVE DATES.-- (1) The amendment

made by subsection (a) [Prohibition of Certain

Retroactive Court Orders] shall apply with respect to

judgments issued before, on, or after the date of the

enactment of this Act." Pub. L. 101-510,

Subparagraph (e).)

Thus, California law, as discussed in the trial and

appellate courts in the present case, in Casas, and in virtually

all other California cases is not relevant. The federal

restriction of subject matter jurisdiction applies to all

judgments.

In re Marriage of Curtis, (1 Civ. A0Q53562) ___

Cal.App.4th — =-{____ Cal. Rptr.2d —_] (June 10, 1992)

discusses the effect of Pub. L. 101-510, §555. The Curtis

court found §555 "curious," and questioned the rationale of

Congress. However, when §555 is viewed in the full light of

the entire legislative history of FUSFSPA, Congressional

rationale is clear.

Congress never intended to allow state courts to reopen

dissolution cases, notwithstanding the legion of state cases that

found otherwise. (House Conf. Rpt. 97-749; House Rpt. 100-

563; House Rpt. 101-665; and House Rpt. 101-923.)

FUSFSPA merely allows division of retirement benefits

payable after June 25, 1981, in cases decided after February

1, 1983, unless a prior judgment specifically reserved

jurisdiction. All other cases are controlled by McCarty,

Mansell, 10 U.S.C. §1408(c)(1), and 38 U.S.C. §5301.

Even though Curtis questioned Congressional rationale

in enacting §555, the court correctly observed and held that:

"The amendment in fact deprives state courts of

subject matter jurisdiction to open pre-McCarty

dissolutions for the purpose of dividing military

retirement benefits." (Curtis, supra.)

Curtis is the first California decision to recognize that

state courts have misapplied FUSFSPA for almost ten years.

The Curtis opinion correctly recognized the Congressional

record unequivocally demonstrates the word "treat" in

FUSFSPA means "characterize." The word "treat" is not,

and never has been, as Casas mistakenly determined, a mere

limitation on ordering the Service Secretaries to pay former

spouses directly.

A state court may not treat [characterize] military

retirement pay aS community property except in accordance

with the limitations of FUSFSPA. (10 U.S.C. §1408(C)(1);

Curtis, __Cal.App.4th _ at n. 9.) _—“ For this independent

reason, the post-FUSFSPA state court decisions that purported

)

to exercise jurisdiction based upon state law were mistaken

and probably void. (Code of Civil Procedure §473 [last

sentence]; People v. West Coast Shows, inc., 10 Cal.App.3d

462, 467 (1970); Costa v. Banta, 98 Cal.App.2d 181, 182

(1950).)

Even the California Court of Appeal that applied res

judicata to prevent Major Mansell from challenging

community property division of his V.A. disability benefits

acknowledged that, if subject matter jurisdiction is preempted,

then the stipulation and order allowing division would be void.

(Mansell v. Mansell, 217 Cal. App.3d 219, 225 [265 Cal.Rptr.

227] (1989).) In California, void judgments are always

subject to collateral attack. (County of Ventura v. Tillett, 133

Cal.App.3d 105 [183 Cal.Rptr. 741] (1982).) As of the time

of the Mansell remand, Congress had not yet declared, other

than in the legislative history, that the subject matter

jurisdictional limitations of FUSFSPA apply to all state

actions, regardless of their date. Now it has. (Pub. L. 101-

510, §555(e).)

FUSFSPA did not obliterate McCarty, as some courts

have assumed. And, FUSFSPA certainly did not repeal 38

U.S.C. §5301. Public Law 101-510 §§ 555(a) and (e)

conclusively establish that FUSFSPA is the only authority that

ever existed for community property division of military

retirement benefits, and FUSFSPA specifically excludes

community property division of V.A. disability benefits. (10

"U.S.C. §1408(a)(4).)

Because of FUSFSPA’s retroactive jurisdictional

5 prohibition, FUSFSPA completely occupies the field of subject

matter jurisdiction over military retirement pay in marital

dissolution cases. All purported theories of state-law subject

matter jurisdiction are preempted, both prospectively and

veo

retrospectively. Therefore, the reopening order in the present

case 1S void.

COMMUNITY PROPERTY DIVISION OF V.A.

DISABILITY BENEFITS VIOLATES 38 U.S.C. §5301,

WHICH POSITIVELY REQUIRES THAT DISABLED

VETERANS ACTUALLY RECEIVE THE BENEFITS

When state action is in conflict with a direct

pronouncement of federal law, the state act is invalid, even if

the state moves in an area of its general competence. As the

Court pointed out in Ridgway v. Ridgway, 454 U.S. 46

(1981):

"Notwithstanding the limited application of federal law

in the field of domestic relations generally, (see

McCarty v. McCarty, 435 U.S. 210, 101 S.Ct. 2728,

2735, 69 L.Ed.2d 589 (1981); Hisquierdo v.

Hisquierdo, 439 U.S. 572, 581 (1979); In re Burrus,

136 U.S. 586, 593-594 (1890)), this court, even in that

area, has not hesitated to protect, under the Supremacy

Clause, rights and expectancies established by federal

law against the operation of state law, or to prevent the

frustration and erosion of the congressional policy

embodied in federal rights. **** And, specifically, a

state divorce decree, like other law governing the

economic aspects of domestic relations, must give

way to clearly conflicting federal enactments."

(emphasis added, Ridgway, supra, 454 U.S. at 54-55).

If a state action is seen to be incompatible with any legitimate

exercise of power by the federal government, it loses all claim

of validity--and this is true even though the state action in

question was taken within a sphere in which the states could

otherwise act (Free v. Bland, 369 U.S. 663, 666 (1962)).

This Court has, on many previous occasions, con-

sidered direct conflicts between federal law and state com-

munity property laws, and each time resolved the conflict in

favor of federal pre-emption (McCune vy. Essig, 199 U.S. 382

(1905); Wissner v. Wissner 338 U.S. 655 (1950); Free vy.

Bland, 369 U.S. 633 (1962); Hisquierdo v. Hisquierdo, 439

U.S. 572 (1979); McCarty v. McCarty, 435 U.S. 210 (1981);

Ridgway v. Ridgway, 454 U.S. 46 (1981) Mansell v. Mansell,

490 U.S. 581 (1989)). In the present case there is an entire

body of federal law protecting veterans’ benefits--Title 38,

U.S.C. Thus, there is a clear and substantial federal interest

which cannot be served if state community property law

intercepts the benefits and awards them to a healthy former

spouse.

In the present case, Major Banks waived a portion of

his military longevity retirement in order to receive disability

compensation from the V.A. (38 U.S.C. §§1110 and 5305).

His monthly compensation is not based on any particular

period of service, but rather is a flat sum determined on the

basis of his percentage of disability and impairment of his

earning capacity (38 U.S.C. §§1114 and 1155). Asa recipient

of V.A. disability benefits, Major Banks is fully protected by

the anti-attachment provisions of the Veterans’ Benefits Act

(38 U.S.C. §5301), which shield disability benefits from every

form of legal process, except for child support (Rose v. Rose.

481 U.S. 619 [107 S.Ct. 2029, 95 L.Ed.2d 599] (1987).

Section 5301(a) states:

(a) "Payment of benefits due or to become due under

any law administered by the Veterans Administration

shall not be assignable except to the extent specifically

authorized by law, and such payments made to, or on

account of, a beneficiary shall be exempt from

taxation, shall be exempt from the claims 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. ****" (emphasis added.)

Language identical to the phrase highlighted above,

word for word, was involved in the case of Wissner v.

Wissner, 338 U.S. 655, 659 (1950), and again in the case of

Ridgway v. Ridgway, 454 U.S. 46, 52-53 (1981). The Wissner

Court held that the language prevented the state from applying

community property law to reach the federal benefits. As a

separate ground for reversal, the Wissner Court found that the

diversion of future payments to be received by the beneficiary

would be a "seizure" prohibited by the anti-attachment

provision. (Wissner, supra., 338 U.S. at 659.) The Ridgway

Court, commenting on Wissner, said "These are strong words

and a positive ruling." (Ridgway, supra, 454 U.S. at 55.)

Venerable and worthy as this community [the business

relationship of man and wife] is, it is not, we think, as

likely to justify an exception to the congressional

language as specific judicial recognition of particular

needs, in the alimony and support cases." (Wissner,

supra, 338 U.S. at 660).

Five years ago this Court had occasion to comment

further on the distinction between support and community

property claims. In Rose v. Rose, 481 U.S. 619 [107 S.Ct.

2029, 95 L.Ed.2d 599] (1987), the Court discussed the

exception to anti-attachment statutes for alimony and child

support in a context of community property.

"Consistent with the distinction suggested in Wissner

v. Wissner, 338 U.S. 655 (1950), Congress had

amended the Social Security Act to authorize

garnishment of certain federal benefits, including

siesta iain

railroad retirement annuities, for spousal and child

support but not for community property divisions.

42 U.S.C. §§659 and 662. We construed these

amendments to expressly override’ the anti-attachment

provisions for support claims, finding it ‘logical to

conclude that Congress * * * thought that a family’s

need for support could justify garnishment, even

though it deflected other federal benefit programs from

their intended goals, but that community property

claims, which are not based on need, could not do

so.’" (emphasis added, Rose, supra., 481 U.S. at n.6).

In the present case, there is no issue of child support

or alimony. Thus, in keeping with the consistently uniform

decisions of the Court, and consistent with the direct

enactment of Congress, Major Banks’ disability benefits are

protected by the anti-attachment provisions of 38 U.S.C.

§5301.

Congress has positively required, by direct enactment,

that the disabled veteran actually receive the disability

benefits. The passage of the FUSFSPA did nothing to change

the protections of the Veterans’ Benefits Act (Mansell v.

Mansell, 490 U.S. 581 [104 L.Ed.2d 675, 109 S.Ct. 2023]

(1989).) Therefore, the reopening order in the present case is

void.

Ill

‘ 38 U.S.C. §53061 IS PART OF A GENERALIZED

is CONGRESSIONAL PLAN FOR PROTECTING

VETERAN’S DISABILITY BENEFITS FROM ANY

FORM OF ATTACHMENT EXCEPT FOR

CHILD SUPPORT

Congress has charged the Veterans Administration with

management of benefits for service-connected disabled

veterans as its highest priority mission. (Senate Report No.

97-504 on the Omnibus Budget Reconciliation Act of 1982

(Pub. L.97-253), p.245). The Veterans’ Benefits Act conforms

to this generalized Congressional plan to protect veterans’

disability benefits from state interference.

"The basic purpose of the disability compen-

sation program, throughout its history, has been one of

providing relief from the impaired earning capacity of

veterans disabled as the result of their military service.

The amount of compensation payable varies according

to the degree of disability which, in turn, is required

by law to represent, to the extent practical, the average

impairment in earning capacity resulting from such

disability or combination of disabilities in civil

occupations." (House Report No. 96-1155, p. 4,

Veterans’ Disability Compensation and Housing

Benefits Amendments of 1980 (Public L. 96-385)).

In addition to providing at least some compensation for

the injuries and disabilities that have been visited upon

members in the service of their country, disability payments

also benefit the nation as a whole. Disability payments help

maintain a fit military force by encouraging those eligible for

benefits to retire, rather than to conceal their disability and

continue in active service for economic reasons. Protection of

those disability benefits also helps preclude service members

from concealing their impairments until they are transferred

to a state that will not try to diminish the compensation by

awarding part of it to a healthy former spouse. Like most of

the other fringe benefits, they also facilitate recruitment.

Furthermore, adequate disability benefits help avoid the

possibility that disabled veterans will be a burden on local

communities and other state and federal programs.

16.

The thorough, thoughtful, and deliberate balance

weighed by Congress (Senate Report No. 98-174,pp. 221-222

to accompany S-675, Department of Defense Authorization

Act of 1984, (Pub. L. 98-94), 97 Stat. 614 (10 U.S.C.

§§ 1461-1467) concerning payment of V.A. disability benefits

is evinced by the singular treatment of retired military

members. Other federal retirees who qualify for V.A.

compensation are not required to waive a portion of their

retirement pay to receive V.A. benefits.

Civil Service employees in the executive, legislative

and judicial branches of government, certain foreign service

retirees of the Department of State, and certain Central

Intelligence Agency retirees can receive both full retirement

pay and full V.A. compensation. (Absher y. U.S., 9 Ct. Cl.

223, 224 (1985), aff'd, 805 F.2d 1025 (Fed.Cir., 1986), cert.

. den., 481 U.S. 1028 [107 S.Ct. 1953, 95 L.Ed.2d 526]

(1987).) Military retirees may not (38 U.S.C. §5305).

Further eviderice of the overall Congressional intent to

protect V.A. disability benefits can be found in other federal

programs. The Social Security Act waives federal immunity

from attachment of federal pay, including military pay, for

child support and alimony. (42 U.S.C. §659.) However,

community property is specifically excluded from the

definition of alimony. (42 U.S.C. §662[c].)

Congress allows garnishment of Civil Service retire-

ment benefits for community property purposes. (Pub. L. 95-

366, 92 Stat. 600, 5 U.S.C. §8345(j)). And, Congress allows

garnishment of Foreign Service retirement for community

property division (22 U.S.C. §§4044 et seq.) However,

Congress, presumably for good and sufficient reasons, has

enacted no comparable provision for benefits payable by the

Veterans Administration.

This contention finds added support in the provision of

a separate benefit for a disabled veteran’s dependent spouse

(38 U.S.C. §1115), a benefit which terminates on the last day

of the calendar month in which an annulment or divorce

occurs (38 U.S.C. §5112[b][2].)

Another significance of 38 U.S.C. §5301 in the present

case, is that it speaks in clear terms concerning exemptions to

the protection of the funds after receipt by the beneficiary.

Section 5301 specifically states that the exemption from

taxation does not extend to any property purchased in part or

wholly out of the disability payments. However, there is no

such exemption from the anti-attachment provisions for the

community property claims of former spouses.

Furthermore, subdivision b of §5301 specifically

prohibits collection, by offset or otherwise, out of the

benefits except for amounts due to the federal government by

reason of overpayments or illegal payments. Nevertheless,

California’s reopening order for community property division,

without citing any specific statutory language, puts petitioner’s

ex-wife in a position even stronger than that of the federal

government.

Congress is sensitive to the confidence placed in it by

military personnel (Senate Report No. 98-174, pp. 221-222,

supra.). Therefore, changes to the military retirement program

must come as the product of thorough, thoughtful, and

deliberate study that weighs heavily the impact of such

changes on military force management and national security

needs. When Congress intends to allow exemption from the

anti-attachment policy, it specifically says so. Congress allows

attachment of permanent investments for tax obligations.

(§5301 (a).) Congress also allows offset to recover

overpayments and unlawful payments. (§5301(b).) However,

nothing in any statute or decision of the Court has ever

allowed attachment or offset for collection of community

property claims.

Until Congress chooses to act, its long-standing anti-

attachment policy, as expressed in the Veterans’ Benefits Act,

FUSFSPA and the Social Security Act is controlling. A

program as carefully balanced as the V.A. disability

compensation system should not be disrupted by the vagaries

of the laws of the fifty states. Yet, California’s reopening of

the final judgment after the mistaken Casas decision to allow

community property division of petitioner’s V. A. disability

compensation does just that. .

OFFSETTING GARNISHMENT OF OTHER ASSETS

CONSTITUTES A SEIZURE OF THE V.A.

DISABILITY BENEFITS FORBIDDEN

BY 38 U.S.C. §5301

California may not make an offsetting award from

other assets. (Wissner v. Wissner, 338 U.S. 655, 659 (1951).)

To do so would, in effect, anticipate the benefit in violation of

the statute, just as would awarding a house or other property

as an offset (Hisquierdo v. Hisquierdo, 439 U.S. 572, 588-589

(1979),) and as imposition of a constructive trust would

operate as a forbidden "seizure." (Ridgway v. Ridgway, 454

U.S. 46, 60 (1981).) The state court’s attempt to limit the

anti-attachment provisions because of equitable interests

violates the unqualified sweep of the statute. Section 5301

prohibits, in the broadest of terms, any “attachment, levy, or

seizure by or under any legal or equitable process whatever,"

even after receipt by the disabled veteran (Ridgway, supra. ,

454 U.S. at 60.)

In Wissner v. Wissner, 338 U.S. 655 (1950), the Court

found it unnecessary to decide whether California is entitled

to call Army pay community property. (/d., 338 U.S. at 657

n.2.) Nevertheless, for two separate reasons, the Court held

that the wife of a deceased Army officer had no community

property interest in the proceeds of a National Service Life

Insurance policy, the premiums of which were paid with

community property.

The Court held that because the federal statute gave the

service member the absolute right to designate the beneficiary,

the state may not interfere with that designation by awarding

the proceeds to another, or by awarding an equivalent

. amount under some other theory. (338 U.S. at 659.)

As an independent ground for reversing the California

community property award of the benefits, the Wissner Court

held that the state judgment was in effect a seizure in

viclation of [former] 38 U.S.C. §816 (Jbid.) It is significant

to note that the operative language of §816 is identical, word-

for-word, to the operative language of §5301.

The Wissner court commented on the distinction be-

tween community property obligations and support obligations

based upon particular needs in alimony and support cases.

These comments eventually formed the basis of the holding of

the Court in the recent case of Rose v. Rose, 481 U.S. 619

[107 S.Ct. 2029, 95 L.Ed.2d 599] (1987).

Concerning an offsetting award of other assets, the

Wissner Court held:

“Whether directed at the very money received from the

government or an equivalent amount, the judgment

below nullifies the soldier’s choice and frustrates the

deliberate purpose of Congress. It cannot stand." (338

U.S. at 659.)

Almost thirty years later, the Court again addressed an

offsetting award of other property to compensate for federal

pre-emption of state community property laws. In Hisquierdo

v. Hisquierdo, 439 U.S. 572 (1979), the Court held that an

offsetting award would defeat the purpose of the statute

barring anticipation of payments. (/d., at 588-590.)

Like anti-attachment provisions generally, §5301

insures that the benefits are actually received by the

beneficiary. It pre-empts all state law that stands in its way.

It protects the benefits from legal process, notwithstanding any

other law of any state. It prevents the vagaries of state law

from disrupting the national scheme and guarantees a national

uniformity that enhances the effectiveness of Congressional

policy.

CONCLUSION

For these reasons, certiorari should be granted to

address the federal pre-emption issue that California refuses

to acknowledge.

Respectfully Submitted,

Douglas B. Cone

Counsel of Record

720 West 19th Street

Merced, California 95340

(209) 383-4333

July, 1992.

FILED

January 1, 1986

Joyce Russell Smith,

Clerk

Law Office of (916) 973-1122

D.M. PERKOVICH & NANCY PERKOVICH

525 Morse Avenue, Suite 201

Sacramento, California 95684

ATTORNEY FOR: Verna J. Banks

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SACRAMENTO

720 Ninth Street

Sacramento, California 95814

MARRIAGE OF Case No.

748218

PETITIONER: VERNA JO BANKS

RESPONDENT: JOHN W. BANKS, II

JUDGMENT-RESERVED ISSUES

Dissolution

Date marital status ends: November 1, 1984

1. | This proceeding was heard as follows: Contested

a. Date: 4/24-26/85 & 7/29/85 Dept.: 7

b. Judge: RICHARD K. PARK

c. Petitioner present in court Attorney present in

court: D.M. PERKOVICH

d. Respondent present in court Attorney present in

court: CLARENCE D. WALTERS

er A

y The court acquired jurisdiction of the respondent

on 9/27/79 Respondent appeared

3. THE COURT ORDERS, GOOD CAUSE

APPEARING:

a. Judgment of dissolution be entered. Marital

status is terminated and the parties are restored to the

status of unmarried persons on the following date: (Status

Only Dissolution entered November 1, 1984).

4. THE COURT FURTHER ORDERS:

Jurisdiction is reserved over all other issues and all

present orders remain in effect except as provided below.

The parties’ stipulations recited in open court on

April 26, 1985 and July 29, 1985, are incorporated herein

as part of the Orders of the Court. The parties are hereby

ordered to comply with the terms and conditions thereof.

Date: January 2,1986 /s/ PARK

Judge of the Superior Court

? THE COURT ORDERS that of the funds on

deposit in Attorney Walters’ client trust account in the

approximate amount of $14,351.14, including the Home

Life Insurance Policy refund, $3,000.00 shall be awarded

to Respondent as his sole and separate property and all of

the remaining funds shall be awarded to Petitioner as her

sole and separate property.

frites DIX A

2. IT IS FURTHER ORDERED that each

party shall retain a one-half interest in the following

community property and such interest shall be awarded to

the respective parties as their sole and separate property.

(a) The mineral rights reserved on the Reese

Road property as described in the grant deed recorded

with the Sacramento County Recorder’s Office on

November 8, 1984, Book 84 11- 8, page 1072, document

number 194742, admitted into evidence as Petitioner’s

Exhibit 4 and more particularly described as follows:

Real property in the City of unincorporated area,

County of Sacramento, State of California, described as:

AS TO AN UNDIVIDED 1/3rd INTEREST

Parcel A and Parcels | thru 23, inclusive, as said

parcels are shown on that certain map entitled "Parcel |

as shown on 49 P.M. 11 and a portion of the Southeast

1/4 Section 2, T. 7N, R.5, M.D.B.&M." filed for record

in the office of the County Recorder, County of

Sacramento on July 20, 1981 in Book 65 of Parcel

Maps, Map No. 39.

EXCEPTING THEREFROM An undivided one-

sixth interest in one hundred percent (100%) of All oil,

asphaltum, minerals, hydrocarbon substances and

geothermal rights in or on said land below a depth of 500

feet from the surface of said land, together with the right

to produce develop, explore and extract said substances,

but without however the right to entry on the surface of

said land or within said 500 feet from the surface thereof

oe DIX A

as reserved in the deed from Verna J. Banks to John W.

Banks, II, as his separate property, dated July 11, 1979,

recorded July 31, 1979, Book 7907-31, Official Records,

Page 1783, as to all that portion being within Parcel | of

Parcel Map Book 49, Map No. 11.

ALSO EXCEPTING THEREFROM AN

UNDIVIDED TWO-SIXTH INTEREST in one Hundred

percent (100%) of all oil, mineral, geothermal and similar

right below a depth of five hundred (500 ft.) of existing

surface elevation but shall have no right to surface entry,

subject to all matters of record and all matters which

would be disclosed by a survey or inspection of the real

property as set forth in those certain deeds executed Real

Estate Restoration, Inc., a California corporation and

Merit Design, Inc., a California corporation, recorded in

Book 8304-06, Pages 1298 & 1301 respectively.

(b) The 7.3% limited partnership interest in

Auburn Equestrian Park Limited Partnership, which name

was later changed to Auburn Bluffs, Limited, described

in the Certificate of Limited Partnership of Auburn

Equestrian Park recorded with the Sacramento County

Recorder’s Office on June 12, 1978, Book 7806, page

121896 thru page 121899, document number 88473 and

admitted into evidence as Petitioner’s Exhibit 8.

those encumbrances recorded against the property as

designated on the preliminary title report issued by Placer

Title Company dated January 23, 1985, marked for

identification as Petitioner’s Exhdibit [sic] 18, and more

particularly described as follows:

APPENDIX A

| |

Real property situated in the State of California,

County of El Dorado, unincorporated area, described as:

Lots | through 23, 25, 27 through 30, inclusive as

shown on that certain map entitled "Frenchtown Hills a

Rural Subdivision", filed in the office of the County

Recorder of said County on February 8, 1980 in Map

Book "F" at page 113.

(d) Twenty (20) acres in Arkarisas title to which

shall be held as tenants in common by Petitioner and

Respondent. The court shall retain jurisdiction over this

asset to equally divide the community interest in the event

Arkansas law does not provide for equal undivided

ownership interests equivalent to a tenancy in common.

3. IT IS FURTHER ORDERED that of the

Century Properties Fund XII, Limited Partnership Units

shall be awarded to Petitioner as her sole and separate

property.

4. IT IS FURTHER ORDERED that the

following property shall be awarded to Respondent as his

sole and separate property:

(a) The community residence, with the

existing liens and encumbrances thereon, located at 4643

Paula Way, Fair Oaks, Sacramento County, California,

and more particularly described

as:

a A

Parcel F as shown on the parcel map recorded in

Book 4 of Parcel Maps, Map No. 14, recorded in said

County.

(b) Keogh account located ‘n the Putnam

Fund.

(d) Proceeds from sale of Petitioner’s 1977

Cadillac.

(e) 7.5% general partnership interest in

Auburn Bluffs Limited

(f) All interests of J.L.C., Inc. or J.L.C.

Partnership I in the Auburn Bluffs property.

(g) Any benefits Respondent may obtain by

way of the proposed agreement and option between

J.L.C. Enterprises, Inc. and Auburn Bluffs, Limited

respecting the Reese Road property

¥. IT IS FURTHER ORDERED that three (3)

lots in the Auburn Biuffs subdivision are confirmed to

Petitioner as her sole and separate property and more

particularly described as follows:

Lois 20, 29 and 32 of Auburn Bluffs as

shown on the Subdivision Map recorded March 29, 1984

in book N of Maps at page 91, Placer County Records.

6. IT IS FURTHER ORDERED that the court

shall retain jurisdiction over Petitioner’s retirement with

the City of Sacramento and Respondent’s retirement with

the State of California.

7 IT IS FURTHER ORDERED J that

Respondent shall assume and hold Petitioner harmless

ae A

from all the community obligations and other debts listed

on his financial declaration and community property

declaration, attached to his pretrial statement both signed

on January 8, 1985 and filed with the court, except that

any community debts listed which are secured by a lien

or deed of trust recorded against the Auburn Bluffs

property or the Frenchtown Hills property as set forth in

the Placer Title Company Preliminary Report of January

23, 1985, marked for identification as Petitioner’s Exhibit

18, will stay with the property.

8. IT IS FURTHER ORDERED that each

party shall bear their own attorneys’ fees and costs with

respect to all proceedings through July 29, 1985. The

court shall retain jurisdiction to award any fees and costs

incurred in obtaining entry or enforcement of this

judgment and allocation of the peusions.

9. IT IS FURTHER ORDERED that the Order

to Show Cause re Contempt filed February 7, 1985 shall

be dropped and all claimed arrearages in spousal support

shall be deemed satisfied by the division of funds held in

Attorney Walters’ client trust account as set forth

hereinabove.

10. IT IS FURTHER ORDERED that each

party shall execute any and all documents reasonably

necessary to carry out the provisions of this judgment.

11. IT IS FURTHER ORDERED that each

party shall hold the other party harmless from and shall

defend them against any liability or litigation that might

—— A

arise from the property and/or debts assumed by the

respective parties.

12. ITIS FURTHER ORDERED that if it shall

hereafter be determined by a court of competent

jurisdiction that either party is possessed of any

community property not set forth herein, the party in

possession of any such property shall pay to the other on

demand an amount equal to one-half of the fair market

value thereof.

13. IT IS FURTHER ORDERED that the

parties shall equally divide the costs of preparation of the

original and two copies of the court reporters transcript of

the Stipulation recited on April 26, 1985.

14. WHEREAS, the issue of characterization

and division of Respondent’s military disability and

retirement pension benefits having been submitted to the

court for judicial determination, the court makes the

following findings:

(a) Respondent entered the military on

November 21, 1951.

(b) The parties married on April 17, 1954.

December 1, 1971.

(d) The parties separated on June 25, 1979.

(e) The parties were married 17 years and

7 months of the 20 years Respondent was on active duty.

(f) Respondent suffered medical problems

and .elected to receive a portion of his retirement as a

disability pension in approximately 1978.

a A

(g) Respondent’s percentage of disability

was set at approximately 40%.

IT IS THEREFORE ORDERED THAT:

(a) The portion of Respondent’s military

retirement attributable to disability is not subject to

division as community property, as governed by In re

Marriage of Costo (1984) 156 CA3d 781.

(b) The community has a 87.9% interest in

Respondent’s military retirement.

portion of Respondent’s retirement pay remaining after

the amounts attributable to disability are deducted.

IT IS FURTHER ORDERED THAT the

issue of Petitioner’s right to reimbursement for her

portion of the retirement pay which the Respondent

received and spent after the date of separation is

bifurcated from all other issues and the court retains

jurisdiction for presentation of further evidence and

argument at a further hearing to be reset by either party.

15. WHEREAS, the issue of characterization

and division of personal property having been submitted

to the court for judicial determination, IT IS

THEREFORE ORDER THAT:

(a) The following items are confirmed to

Respondent as his sole and separate property:

(1) Leather bedroom chairs received

from Saregent Irvin.

eis acl A

(2) Two large J.B.L. speakers

purchased with inherited funds.

(3) Chaffing dishes purchased with

inherited funds.

(4) Bone china purchased with

inherited funds.

(5) Two sets of snack glasses received

from Japanese employees.

(b) All other items of personal property in

which Respondent claimed a separate property interest at

the time of the July 29, 1985 hearing are found to be

community property.

personal property in her possession.

(d) Respondent shall be awarded the items

of personal property of his choice in his possession in an

amount equal to the value of those items of personal

property in Petitioner’s possession.

(e) Respondent shall receive an additional

credit in the amount of $3,000.00 which Respondent gave

to Petitioner to establish a separate household. Said

credit is to be offset against the value of the personal

property in his possession.

(f) All items of community _ personal

property in each party's possession shall be appraised by

Alex Sabbadini, F.A.S.A. Petitioner and Respondent shall

each pay one-half of Mr. Sabbadini’s fees.

(g) The court shall retain jurisdiction over

the determination of the values of the personal property

items and any amount necessary to equalize the division

of the personal property items in each party’s possession.

This issue shall be bifurcated from all other issues and

APPENDIX A

10 os

————EeEEeVGGQVQuVeeEeeeee ee

may be determined at a further hearing to be reset by

either party.

APPROVED AS TO FORM:

/s/ PERKOVICH

D.M. PERKOVICH

Attorney for Petitioner

APPENDIX A

FILED

May 4, 1987

JOYCE RUSSELL SMITH,

CLERK

Law Offices of (916) 973-1122

D.M. PERKOVICH & NANCY PERKOVICH

525 Morse Avenue, Suite 201

Sacramento, California 95864

ATTORNEY FOR: Verna Jo Banks

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

720 Ninth Street

Sacramento, CA 95814

PETITIONER: VERNA JO BANKS Case No. 748218

RESPONDENT: JOHN W. BANKS, II

FINDINGS AND ORDER AFTER HEARING:

Division of Military Retirement Pay

This proceeding was heard as follows:

1. a. Date: April 15, 1987 Dept.: 13

b. Judge: William R. Ridgeway

Attorney present in court: D.M. PERKOVICH

Respondent present in court

On the Motion filed

Date: March 2, 1987 By: Petitioner

The court finds that pursuant to Casas v. Thompson (1986) 42

C3d 131, Respondent is ordered to pay each month to

Petitioner, effective September 1, 1986, 43.95% of his gross

military retirement pay. The Court further orders Respondent

APPENDIX B

. i

to submit by May 4, 1987 a written request to the U.S. Air

Force for a warrant each month stating both the gross amount

and the net amount of his retirement pay. Respondent shall

furnish the Court with a copy of said request.

Date: May 4, 1987 /s/ RIDGEWAY

Judge of the Superior Court

WILLIAM R. RIDGEWAY

Date: April 17, 1987 /s/ PERKOVICH

D.M. PERKOVICH

Attorney for Petitioner

APPENDIX B

FILED

December 7, 1990

DENISE K. MCHUGH

Attorney at Law, State Bar #125405

5441 Fair Oaks Boulevard, Suite B-1

Carmichael, CA 95608

Telephone: (916) 971-3536

Attorney for Petitioner: VERNA J. BANKS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SACRAMENTO

VERNA J. BANKS, ) CASE NO. 748218

) Dept. 13

Petitioner, )

V. )

) ORDER ON

) SUBMITTED

JOHN W. BANKS, II, ) MATTERS

)

Respondent. )

)

The above-entitled matter came on for hearing on July

6, August 1, and October 12, 1990 in Department 13 of the

Superior Court of California, County of Sacramento, the

Honorable Vance Raye presiding. Upon considering the

moving and opposing papers and upon hearing oral argument,

the matter was taken under submission. On October 30, 1990,

the court issued its tentative ruling. No objection being filed,

the tentative ruling became the court’s order.

For good cause appearing,

IT IS HEREBY ORDERED:

APPENDIX C

‘ia

1. Respondent’s Motion of Set Aside the Judgment

entered May 4, 1987 ordering respondent to pay 43.95 percent

of his gross military retirement pay to petitioner each month

is DENIED;

2. Petitioner’s request for a determination of arrearages

is GRANTED. Arrearages and interest to June 6, 1990 are

determined to be in the sum of $12,156.81.

3. Petitioner’s request for enforcement orders are

granted as follows:

Respondent is ordered to endorse the warrant, or other

instrument, received in settlement of respondent’s claims

against the State of California, Department of Education, et al.

The proceeds of the settlement shall be deposited in a blocked

interest bearing account under the control of petitioner’s

counsel. Disbursements shall be made from the account as

follows:

a. $12,156.81 shall be paid to petitioner in satisfaction

of prior orders and as payment of arrears and interest through

June 30, 1990;

b. $20,000.00 shall be placed in a separate, interest

bearing blocked account, controlled by petitioner’s attorney,

and shall remain in such account until the respondent develops

a plan, approved by the Court, to ensure the timely payment

of amounts due from respondent’s military retirement under

the judgment entered on May 4, 1987. Pending the approval

of such plans, payments required to ensure compliance with

the Court’s judgment shall be made monthly to petitioner from

such account;

c. $3,850.00 shall be paid to petitioner’s attorney as

and for attorney’s fees;

d. The balance in the account, within thirty (30) days

after the above disbursements, shall be paid to respondent and

APPENDIX C

his attorney, Carlos Alcala, by check payable to them jointly

and requiring the endorsement of each.

Dated: _ Nov_ 1991

/s/ RAYE

Judge of the Superior Court

(Vance Raye)

APPENDIX C

Filed

January 31,1992

Court of Appeal 3rd District

Robert L. Liston, Clerk

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

In Re The Marriage of VERNA J.

and JOHN W. BANKS.

C010194

(Super. Ct.No.748218)

VERNA J. BANKS,

Respondent,

Vv.

JOHN W. BANKS II,

Appellant.

ee eee ae owe

This is an appeal from an order after judgment in an

action for dissolution of a marriage. Appellant (Husband)

moved to set aside a three-year old judgment awarding

respondent (Wife) a community property share of his gross

military retirement pay. He claimed the order is void for lack

of jurisdiction because some of his military retirement pay is

attributable to disability payments not subject to community

property division. The trial court denied Husband’s motion

and he appeals. We will affirm the order denying the motion

to set aside the judgment.

APPENDIX D

]

FACTS

On March 2, 1987, Wife moved for an order dividing

Husband’s military retirement pay pursuant to the ruling in

Casas v. Thompson (1986) 42 Cal.3d 131. On May 4, 1987,

judgment was entered dividing Husband’s military retirement

pay and directing him to pay each month to Wife 43.95

percent of his gross retirement pay. The judgment was

explicitly founded upon Casas. No appeal was taken from the

judgment.

On June 12, 1990, Wife sought to obtain a declaration

of arrearage under the judgment and to enforce it by levying

upon proceeds of a settlement in a tort action between husband

and his former employer. On June 21, 1990, Husband replied

with a motion to set aside the judgment on the ground it is

_ void because some of his military retirement pay is

attributable to disability payments not subject to community

property division under Mansell v. Mansell (1989) 490 U.S.

581 [104 L.Ed.2d 675] (Mansell I), which overruled Casas.

The trial court found no lack of jurisdiction warranting a

determination that the judgment founded on Casas was void

and denied Husband’s motion.

DISCUSSION

Husband contends that the trial court erred in denying

his motion to set aside the judgment. He argues that federal

statutes preempt the California community property law as to

military disability benefit payments. He asserts that this

renders erroneous the judgment dividing his military

retirement pay based, among other things, upon his disability

benefit payments. Wife replies here, as in the trial court, that

APPENDIX D

the arguments are barred by res judicata. Husband rejoins that

the judgment is void for lack of subject matter jurisdiction. !

Husband’s counsel unsuccessfully tendered the same

contention in In re Marriage of Mansell (1989) 217

Cal.App.3d 219, 227-229 (Mansell I!).2The court found no

lack of subject matter jurisdiction, relying upon a distiction in

In Re Marriage of Thomas (1984) 156 Cal.App.3d 621, 636

between subject matter jurisdiction preemption and the

preemption of state law by federal law. Husband suggests that

'We assume for the sake of discussion that a lack of subject

matter jurisdiction would present a valid basis for Overturning a

prior final judgment per se. (See, e.g., 7 Witkin, Cal. Procedure

(3d ed. 1985) Judgment, § 194, p. 630; but see, e.g., Rest.2d

Judgments, § 12; Stoll v. Gottlieb (19838) 305 U.S. 165 [83

L.Ed. 104]; Levy v. Cohen (1977) 19 Cal.3d 165, 172-174.)

Husband may also be tendering a claim that regardless of subject

matter jurisdiction collateral attack should be permitted on the

ground that the judgment is an act in excess of jurisdiction. If so

we wauld reject that claim on the ground that he makes no

showing of the peculiar requirements for permitting such an

attack. (See 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 271.

p. 670.)

> Husband’s counsel improperly failed to mention this

authority in his 48 page opening brief. Chided by opposing

counsel for this lack of candor, husband’s counsel admits the

Omission was not inadvertent aad excuses himself on the ground

the court of appeal in Mansell II refused to address what he

perceives as the issue and was engaged in "judicial legerdemain."

We expect counsel to disclose California legal authority known to

be directly adverse to the position of his client. (See Rules Prof.

Conduct, rule 7-105; People v. Crafts (1970) 13 Cal.App.3d 457,

460; see generally, Model Rules of Prof. Conduct, rule 3.3.)

Counsel is free to attempt to distinguish or attack precedent, but

knowingly failing to attend to it, at best, wastes the time of

Opposing counsel and the court.

APPENDIX D

the distinction is "sui generis to military retirement cases."

(Orig. emphasis.)

The preemption of inferior by higher law as a result of

a conflict is commonplace, given, e.g., the hierarchies of

constitutions, statutes, common law and of federal, state, and

local lawgivers. Even where preemption arises from a conflict

with the paramount constitutional law the ordinary rule is that

a judgment rendered based upon the lesser law preempted by

the conflict is not void and may not be collaterally challenged

on the ground of lack of jurisdiction. (See, e.g., Chicot

County Drainage District v. Baxter State Bank (1940) 308

U.S. 371 [84 L.Ed. 329]; Rescue Army v. Municiple Court

(1946) 28 Cal.2d 460, 463-464; Annot., Validity and Effect

of Judgment Based Upon Erroneous View as _ to

Constitutionality or Validity of a Statute or Ordinance Going

to the Merits (1947) 167 A.L.R. 517.)

> Husband suggests that federal law preemption of any kind

renders an inconsistent state judgment void. He points to

Hoffman v. United States (9th Cir. 1968) 391 F.2d 195

concerning National Service Life Insurance and Ridgway v.

Ridgway (1981) 454 U.S. 46 [70 L.Ed.2d 39] concerning

Servicemen’s Group Life Insurance policies. Neither case is

apposite; nor does either discuss res judicata. Both concern

disputes between a beneficiary designated by the deceased

policyholder and claimants seeking policy benefits based upon the

disobedience by the deceased policyholder of a state court

judgment directing him to designate the claimants as

beneficiaries. Both cases invoive efforts to attach polict benefits

in derogation a federal anti-attachment statute. Neither case

presents a question of holding a final judgment void as between

the parties thereto. The questions posed in Hoffman and

Ridgway are the consequences of judgments with respect to

nonparties in future proceedings.

APPENDIX D

Subject matter jurisdiction preemption is the unusual

variety.

"It is generally true that a judgment by a court

of competentjurisdiction bears a presumption of

regularity and is not there-after subject to collateral

attack. But Congress, because its power over the

subject of bankruptcy is plenary, may by specific

bankruptcy legislation create an exception to that

principle and render judicial acts taken with respect to

the person or property of a debtor whom the

bankruptcy law protects nullities and vulnerable

collaterally. Although the Walworth County Court had

general jurisdiction over foreclosures under the law of

Wisconsin, a peremptory prohibition by Congress in

the exercise of its supreme power over bankruptcy that

no State court have jurisdiction over a petitioning

farmer-debtor or his property, would have rendered the

confirmation of sale and its enforcement beyond the

County Court’s power and nullities subject to coliateral

attack." (Kalb v. Feuerstein (1940) 308 U.S. 433, 438-

439 [84 L.Ed. 370, 374, fns. omitted.)

The manner of specifying such a prohibition in Kalb

was plain, the federal statue said that the filing of a

bankruptcy petition immediately subjected the farmer and his

property “to the exclusive jurisdiction of the [bankruptcy]

court." (308 U.S. at p. 440 [84 L.Ed. at p. 375, emph.

added.) This language expressly invokes subject matter

jurisdiction. "The provisions of law investing a court or other

tribunal with authority to adjudicate a type of controversy are

referred to as the rules of subject matter jurisdiction and

sometimes as rules of ’competency’ or competence.’" (Rest.2d

Judgments, § 11, com. (a), p. 109.) The federal courts under

the federal Constitution have subject matter jurisdiction only

where it has been delegated. "In contrast, the principal trial

APPENDIX D

court in state court systems is a court of general jurisdiction,

i.e., it has not exclusively consigned to some other tribunal."

(Id., at p. 108.) The statutory language in Kalb exclusively

consigned the authority to adjudicate the controversy to the

bankruptcy court. Husband fails to identify similar statutory

language prohibiting the exercise of state court jurisdiction

over matters of disputed property interests in military

retirement pay; accordingly he offer no persuasive reason to

depart from the holding in Mansell II.

Nonetheless, Husband unaccountably suggests that

Mansell II and Thomas “fully support" his view of federal

subject matter preemption. His first argument is founded on

a sentence in Mansell I which says that prior to the Uniformed

Services Former Spouses’ Protection Act "federal law, as

construed by this Court, completely pre-empted the application

of state community property law to military retirement pay..."

(480 U.S. at p. 588 [104 L.Ed.2d at p. 684].) He suggests

that this language compels the conclusion that the underlying

statutory preemption identified in McCarty v. McCarty (1981)

453 U.S. 210 [69 L.Ed.2d 589] is one of subject matter

jurisdiction within the two part scheme of Mansell II and

Thomas.

This argument is apparently founded upon the adverb

“completely." The passing usage is completely unavailing.

There is nothing in the context of that usage that shows it was

selected for the point in issue. The contrary implication is to

be found in footnote 5 of the Mansell I opinion: “Whether the

doctrine of res judicata, as applied in California, should have

barred the reopening of pre-McCarty settlements is a matter

of state law over which we have no jurisdiction." (480 U.S.

at p. 586 [104 L.Ed.2d at p. 684].)

Husband’s remaining argument is that federal

preemption of jurisdiction arises from the anti-attachment

APPENDIX D

clause which protects a veteran’s receipt of disability benefits,

38 United States Code section 3101 (a) (now § 5301). It

provides that veteran’s benefits "shall not be assignable except

to the extent specifically authorized by law, 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 [veteran]." (Ibid.) Husband argues that this language

works a preemption of California community property law to

the extent that it would divide community property in light of

the value attributable to the disability portion of a veteran’s

military retirement pay. Assuming for the sake of discussion

that he is correct, Husband fails to explain why the result of

this language goes to subject matter jurisdiction rather than the

ordinary preemption arising from a conflict with higher law.

We discern nothing in the language that suggests that

a preemption, if any, founded on this provision would work

a limitation in subject matter jurisdiction. There is no

language addressed to the jurisdiction of the state courts by the

assignment of exclusive jurisdiction to some other forum. Nor

does it address the question whether judicial acts taken with

respect to division of military retirement are subject to

collateral attack. Rather the provision addresses otherwise

available remedies which might be invoked under the general

law of civil judgments. No claim is made that the order here

seeks to levy upon disability pay.

* The majority opinion in Mansell I eschewed resolving the

question whether this provision also occasions a preemption.

(Mansell I, 490 U.S. at p. 587, fn. 6 [104 L.Ed.2d at p.684].)

The dissenters in Mansell I expressed the view that it does not

work a preclusion of all consideration of the existence of such

benefits but only protects the disability benefits from attachment.

(490 U.S. at p. 603, dis. opn of O’Connor, J. [104 L.Ed.2d at p.

694].)

APPENDIX D

DISPOSITION

Husband supplies no persuasive reason to depart from

the precedents of Mansell II and Thomas. Accordingly, the

order denying vacation of the judgment is affirmed.

/s/BLEASE ,

Acting P.J.

We concur:

/s/SIMS _, J.

/s/(MARLER _, J.

APPENDIX D

ree

Third Appellate District No. C010194

S$025577

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

VERNA J. BANKS, Respondent SUPREME COURT

FILED

V. APR 15, 1982

Rebert Wandruff Clerk

Deputy

JOHN W. BANKS II, Appellant

Appellant’s petition for review DENIED.

/S/ LUCAS

Chief Justice

APPENDIX E

TITLE 10, U.S.C.A. $1408

§1408. Payment of retired pay in compliance with

court orders

(a) DEFINITIONS.-- IN THIS SECTION:

(1) The term "Court" means--

(A) any court of competent jurisdiction of any

State, the District of Columbia, the Commonwealth of Puerto

Rico, Guam, American Samoa, the Virgin Islands, the

Northern Mariana Islands, and the Trust Territory of the

Pacific Islands;

(B) any court of the United States (as defined

in section 451 of title 28) having competent jurisdiction; and

foreign country with which the United States has an agreement

requiring the United States to honor any court order of such

country.

(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), which--

(A) is issued in accordance with the laws of the

jurisdiction of that court;

(B) provides for--

APPENDIX - STATUTES

]

(i) payment of child support (as defined

in section 462(b) of the Social Security Act (42 U.S.C.

662(b)));

(ii) payment of alimony (as defined in

section 462(c) of the Social Security Act (42 U.S.C. 662(c)));

(iii) division of property (including a

division of community property); and

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-

(A) are owed by that member to the United

States for previous overpayments of retired pay and for

recoupments required by law resulting from entitlement to

retired pay;

(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

APPENDIX - STATUTES

by law in order to receive compensation under title 5 or title

38:*:

pay under chapter 61 of this title, 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

(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 or retainer pay is being made pursuant to a

court order under this section.

(5) The term "member" includes a former member

entitled to retired pay under section 1331 of this title.

(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.

(7) The term ’retired pay’ includes retainer pay.

(b) EFFECTIVE SERVICE OF PROCESS.-- FOR THE

PURPOSES OF THIS SECTION--

(1) service of a court order is effective if--

(A) an appropriate agent of the Secretary

concerned designated for receipt of service of court orders

under regulations prescribed pursuant to subsection (h) or, if

no agent has been so designated, the Secretary concerned, is

APPENDIX - STATUTES

personally served or is served by certified or registered mail,

return receipt requested;

(B) the court order is regular on its face;

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--

(A) is issued by a court of competent

jurisdiction;

(B) is legal in form; and

reasonable notice that it is issued without authority of law.

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

APPENDIX - STATUTES

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 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.

(2) Notwithstanding any other provision of law, this

section does not create any right, title, or interest which can

be sold, assigned, transferred, or otherwise disposed of

(including by inheritance) by a spouse or former spouse.

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.

(3) This section does not authorize any court to order

a member to apply for retirement or retire at a particular time

in order to effectuate any payment under this section.

(4) A court may not treat the disposable retired or

retainer pay of a member in the manner described in

paragraph (1) unless the court has jurisdiction over the

member by reason of

(A) his residence, other than because of military

assignment, in the territorial jurisdiction of the court,

(B) his domicile in the territorial jurisdiction of

the court, or (C) his consent to the jurisdiction of the court.

APPENDIX - STATUTES

(d) PAYMENTS BY SECRETARY CONCERNED TO

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 or retainer pay from a member to the spouse or a

former spouse of the member, the Secretary shall make

payments (subject to the limitations of this section) from the

disposable retired or retainer pay of the member to the spouse

or former spouse in an amount sufficient to satisfy the amount

of child support and alimony set forth in the court order and,

with respect to a division of property, in the amount of

disposable retired pay specifically provided for in the court

order. 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. ,

(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.

APPENDIX - STATUTES

(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.

(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 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 from such retired pay.

(e) LIMITATIONS. --

(1) The total amount of the disposable retired pay of a

member payable under all court orders pursuant to subsection

(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

APPENDIX - STATUTES

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) (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--

(i) pay to that spouse from the member’s

disposable retired pay the least amount directed to be paid

during that month by any such conflicting court order, but not

more than the amount of disposable retired, 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

APPENDIX - STATUTES

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 (i); and

(II) the amount of disposable

retired pay retained under clause (ii).

(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.

(4) (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-serve 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.

APPENDIX - STATUTES

(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 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

APPENDIX - STATUTES

maximum amouni 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.

(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 (h).

(2) An officer or employee of the United States who,

under regulations prescribed pursuant to subsection (h), has

the duty to respond to interrogatories shall not be subject

under any law to any disciplinary action or civil or criminal

liability or penalty for, or because of, any disclosure of

information made by him in carrying out any of his duties

which directly or indirectly pertain to answering such

interrogatories.

(g) 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) REGULATIONS.--

APPENDIX - STATUTES

The Secretaries concerned shall prescribe uniform

regulations for the administration of this section.

TITLE 38 U.S.C. §1110. Basic Entitlement

For disability resulting from personal injury suffered

or disease contracted in line of duty, or for aggravation of a

pre-existing injury suffered or disease contracted in line of

duty, in the active military, naval, or air service, during a

period of war, the United States will pay to any veteran thus

disabled and who was discharged or released under conditions

other than dishonorable from the period of service in which

said injury or disease was incurred, or pre-existing injury or

disease was aggravated, compensation as provided in this

subchapter, but no compensation shall be paid if the disability

is the result of the veteran’s own willful misconduct.

TITLE 38 U.S.C. §1114. Rates of wartime disability

compensation

For purpose of section 1110 of this title--

(a) if and while the disability is rated 10 percent the

monthly compensation shall be $71;

(b) if and while the disability is rated 20 percent the

monthly compensation shall be $133;

monthly compensation shall be $202;

(d) if and while the disability is rated 40 percent the

monthly compensation shall be $289;

(e) if and while the disability is rated 50 percent the

monthly compensation shall be $410;

APPENDIX - STATUTES

12 ;,

(f) if and while the disability is rated 60 percent the

monthly compensation shall be $516;

(g) if and while the disability is rated 70 percent the

monthly compensation shall be $652;

(h) if and while the disability is rate 80 percent the

monthly compensation shall be $754;

(i) if and while the disability is rated 90 percent the

monthly compensation shall be $849;

(j) if and while the disability is rated as total the month

compensation shall be $1,411; 7

TITLE 38 U.S.C. §1115. Additional compensation for

dependents

Any veteran entitled to compensation at the rates

provided in section 1114 of this title, and whose disability is

rated not less than 30 percent shall be entitled to additional

compensation for dependents in the following monthly

amounts:

(1) If and while rated totally disabled and--

(A) has a spouse but not child, $82;

(B) has a spouse and one or more children,

$138 plus $44 for each child in excess of one;

$57 plus $44 for each child in excess of one;

APPENDIX - STATUTES

=e -— —

(D) has a parent dependent upon veteran for

support, then, in addition to the above amounts, $67 for each

parent so dependent;

(E) notwithstanding the other provisions of this

paragraph, the monthly payable amount on account of a

spouse who is (i) a patient in a nursing home or (ii) helpless

or blind, or so nearly helpless or blind as to need or require

the regular aid and attendance of another person, shall be

$149 for a totally disabled veteran and proportionate amounts

for partially disabled veterans in accordance with paragraph

(2) of this section; and

(F) notwithstanding the other provisions of this

paragraph, the monthly amount payable on account of each

child who has attained the age of eighteen years and who is

pursuing a course of instruction at an approved educational

institution shall be $126 for a totally disabled veteran and

proportionate amounts for partially disabled veterans in

accordance with paragraph (2) of this section.

(2) If and while rated partially disabled, but not less

than 30 percent in an amount having the same ratio to the

amount specified in paragraph (1) of this section as the degree

of disability bears to total disability, the amounts payable

under this paragraph, if not a multiple of $1, shall be rounded

down to the nearest dollar.

TITLE 38 U.S.C. §1155. Authority for schedule for rating

disabilities

The Administrator shall adopt and apply a schedule of

ratings of reductions in earning capacity from specific injuries

or combination of injuries. The ratings shall be based, as far

as practicable, upon the average impairments of earning

capacity resulting from such injuries in civil occupations. The

APPENDIX - STATUTES

schedule shall be constructed so as to provide ten grades of

disability and no more, upon which payments of compensation

shall be based, namely, 10 percent, 20 percent, 30 percent, 40

percent, 50 percent, 60 percent, 70 percent, 80 percent, 90

percent, and total, 100 percent. The Administrator shall from

time to time readjust this schedule of ratings in accordance

with experience.

TITLE 38 U.S.C. §5112. Effective dates of reductions and

discontinuances

(b) The effective date of a reduction or discontinuance

of compensation, dependency and indemnity compensation, or

pension--

(2) by reason of marriage annulment, divorce,

or death of a dependent of a payee shall be the last day of the

month in which such marriage, annulment, divorce, or death

occurs;

TITLE 38 U.S.C. §5301. Nonassignability and exempt

status of

benefits

(a) Payments of benefits due or to become due under

any law administered by the Veterans’ Administration shall

not be assignable except to the extent specifically authorized

by law, and such payments made to, or on account of, a

beneficiary shall be exempt from taxation, shall be exempt

from the claim of creditors, and shall not be liable to at-

tachment, 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.

APPENDIX - STATUTES

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 attorney-in-fact as the payee’s address for the

purpose of receiving his or benefit check and has also

executed a power of attorney giving the attorney-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 Veterans’ Administration and relating to

veterans, their estates, or their dependents, of any claim of the

United States or any agency thereof against (1) any person

other than the indebted beneficiary or his estate; or (2) any

beneficiary or his estate except amounts due the United States

by such beneficiary or his estate by reason of overpayments or

iilegal payments made under such laws to such beneficiary or

his estate to his 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 existing against the particular

insurance contract upon the maturity of which the claim is

based, whether such indebtedness is in the form of liens to

secure unpaid premiums or liens, or interest on such

premiums or liens or indebtedness arising from overpayments

of dividends, refunds, loans, or other insurance benefits.

(1) has been determined to be eligible to receive

pension or compensation under laws administered by the

APPENDIX - STATUTES

Veterans’ Administration 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 of 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 Veterans’

Administration 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 amount of pension

or compensation which would have been paid to such person

but for the receipt by such person of such pay.

TITLE 38 U.S.C. §5305. Waiver of retired pay

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

Veterans’ Administration 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

of a waiver of so much of such person’s retired or retirement

pay as is equal in amount to such pension or compensation.

To prevent duplication of payments, the department with

which any such waiver is filed shall notify the Veterans’

Administration of the receipt of any such waiver, the amount

APPENDIX - STATUTES

waived, and the effective date of the reduction in retired or

retirement pay.

TITLE 42 U.S.C. §659. Enforcement of individual’s legal

obligations to provide child support or make

alimony

payments

(a) United States and District of Columbia to be subject

to legal process.

Notwithstanding any other provision of law (including

section 407 of this title) effective January 1, 1975, moneys

(the entitlement to which is based upon remuneration for

employment) due from, or payable by, the United States or

District of Columbia (including any agency, subdivision, or

instrumentality thereof) to any individual, including members

of the armed services, shall be subject, in like manner and to

the same extent as if the United States or the District of

Columbia were a private person, to legal process brought for

the enforcement, against such individual of his legal

obligations to provide child support or make alimony

payments.

TITLE 42 U.S.C. §662. Definitions

For purposes of section 659 of this title--[enforcement

of individual’s legal obligations to provide child support or

make alimony payments]

legal obligations of an individual to provide the same, means

periodic payments of funds for the support and maintenance

of the spouse (or former spouse) of such individual, and

(subject to and in accordance with State law) includes but is

not limited to, separate maintenance, alimony pendente lite,

APPENDIX - STATUTES

maintenance, and spousal support; such term also includes

attorney’s fees, interest, and court costs when and to the

extent that the same are expressly made recoverable as such

pursuant to a decree, order, or judgment issued in accordance

with applicable State law by a court of competent jurisdiction.

Such term does not include any payment or transfer of

property or its value by an individual to his spouse or former

spouse in compliance with any community property

settlement, equitable distribution of property, or other division

of property between spouses or former spouses.

California Civil Code §4800(a). Division of Community

Estate.

(a) Except upon the written agreement of the parties,

or on oral stipulation of the parties in open court, or as

otherwise provided in this section, the court shall, either in its

judgment of dissolution of marriage, in its judgment decreeing

the legal separation of the parties, or at a later time if it

expressly reserves jurisdiction to make such a property divi-

sion, divide the community estate of the parties equally. For

purposes of making this division, the court shall value the

assets and liabilities as near as practicable to the time of trial,

except that, upon 30 days’ notice by the moving party to the

other party, the court for good cause shown may value all or

any portion of the assets and liabilities at a date after

separation and prior to trial to accomplish an equal division of

the community estate of the parties in an equitable manner.

For the purposes of division and in confirming or

assigning the liabilities of the parties for which the community

estate is liable, the court shall characterize liabilities as

separate or community and confirm or assign them to the

parties in accordance with subdivision (c).

APPENDIX - STATUTES

a ii is

z lial

As used in this section, "community estate" includes

both the community and quasi-community assets and liabilities

of the parties.

CALIFORNIA CODE OF CIVIL PROCEDURE, §473.

Amending Pleadings-Continuance-Relief From

Mistake, Inadvertence, Surprise or Excusable

Neglect; Time Limit; Affidavit of Merits Not

‘Required-Correcting Clerical Errors-Setting Aside

Void Judgments or Orders.

The court may, in furtherance of justice, and on such

terms as may be proper, allow a party to amend any pleading

or proceeding by adding or striking out the name of any party,

or by correcting a mistake in the name of a party, or a

mistake in any other respect; and may, upon like terms,

enlarge the time for answer or demurrer. The court may

likewise, in its discretion, after notice to the adverse party,

allow, upon such terms as may be just, an amendment to any

pleading or proceeding in other particulars; and may upon like

terms allow an answer to be made after the time limited by

this code.

When it appears to the satisfaction of the court that the

amendment renders it necessary, the court may postpone the

trial, and may, when the postponement will by the amendment

be rendered necessary, require, as a condition to the

amendment, the payment to the adverse party of such costs as

may be just.

The court may, upon such terms as may be just,

relieve a party or his or her legal representative from a

judgment, order, or other proceeding taken against him or her

through his or her mistake, inadvertence, surprise, or

excusable neglect. Application for this relief shall be

accompanied by a copy of the answer or other pleading

APPENDIX - STATUTES

proposed to be filed therein, otherwise the application shall

not be granted, and shall be made within a reasonable time, in

no case exceeding six months, after the judgment, order or

proceeding was taken; provided, however, that, in the case of

a judgment, order or other proceeding determining the

ownership or right to possession of real or personal property,

without extending the six-months period, when a notice in

writing is personally served within the State of California both

upon the party against whom the judgment, order or other

proceeding has been taken, and upon his or her attorney of

record, if any, notifying that party and his or her attorney of

record, if any, that the order, judgment or other proceeding ~

was taken against him or her and that any rights the party has

to apply for relief under the provisions of Section 473 of the

Code of Civil Procedure shall expire 90 days after service of

the notice, then the application shall be made within 90 days

after service of the notice upon the defaulting party or his or

her attorney of record, if any, whichever service shall be

later. No affidavit or declaration of merits shall be required of

the moving party. Notwithstanding any other requirements of

this section, the court shall, whenever an application for relief

is made no more than six months after entry of judgment, is

in proper form, and is accompanied by an attorney’s sworn

affidavit attesting to his or her mistake, inadvertence, surprise,

or neglect, vacate any (1) resulting default entered by the

clerk against his or her client, and which will result in entry

of a default judgment, or (2) resulting default judgment

entered against his or her client, unless the court finds that the

default was not in fact caused by the attorney’s mistake,

inadvertence, surprise, or neglect. The court shall, whenever

relief is granted based on an attorney’s affidavit of fault,

direct the attorney to pay reasonable compensatory legal fees

and costs to opposing counsel or parties.

Whenever the court grants relief from a default or

default judgment based on any of the provisions of this

APPENDIX - STATUTES

section, the court may: (1) impose a penalty of no greater than

one thousand dollars ($1,000) upon an offending attorney or

defaulting party, (2) direct that an offending attorney pay an

amount no greater than one thousand dollars ($1,000) to the

State Bar Client Security Fund or (3) grant such other relief

as 1S appropriate.

However, where the court grants relief from a default

or default judgment pursuant to this section based upon the

affidavit of the defaulting party’s attorney attesting to the

attorney’s mistake, inadvertence, surprise, or neglect, the

relief shall not be made conditional upon the attorney’s

payment of compensatory legal fees or costs or monetary

penalties imposed by the court or upon compliance with other

sanctions ordered by the court.

The court may, upon motion of the injured party, or its

own motion, correct clerical mistakes in its judgment or

orders as entered, so as to conform to the judgment or order

directed, and may, on motion of either party after notice to

the other party, set aside any void judgment or order.

APPENDIX - STATUTES

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