# Petition for Writ of Certiorari — Banks v. Banks

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 866

## Text

.

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.

ii

ies? Ae oo

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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

iV

(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

vi

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

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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

a

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.)

aa

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,

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3
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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

ee

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

I
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

10

)

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

1]

retrospectively. Therefore, the reopening order in the present
case 1S void.

II
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)).

12

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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,

13

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

14

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

15

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.

17

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

18

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. .

IV
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

19

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.)

20

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.

21

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.

(c) The Frenchtown Hills property, subject to
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
4

| |

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.

(c) 1977 Cadillac

(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

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.

(c) Respondent retired from the military on
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.

(c) Petitioner is entitled to 43.95% of that
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.

(c) Petitioner shall be awarded the items of
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
11

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
2

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
l

‘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
2

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
7

i

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
2

Te

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
3

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
4

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
SS

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
6

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
7

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

8

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
l

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

(C) any court of competent jurisdiction of a
foreign country with which the United States has an agreement
requiring the United States to honor any court order of such
country.

(2) 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)));
or

(iii) division of property (including a
division of community property); and

(C) in the case of a division of property,
specifically provides for the payment of an amount, expressed
in dollars or as a percentage of disposable retired pay, from
the disposable retired pay of a member to the spouse or
former spouse of that member.

(3) The term "final decree" means a decree from which
no appeal may be taken or from which no appeal has been
taken within the time allowed for taking such appeals under
the laws applicable to such appeals, or a decree from which
timely appeal has been taken and such appeal has been finally
decided under the laws applicable to such appeals.

(4) The term "disposable retired pay" means the total
monthly retired pay to which a member is entitled less
amounts which-

(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
2

by law in order to receive compensation under title 5 or title
38:*:

(C) in the case of a member entitled to retired
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
3

personally served or is served by certified or registered mail,
return receipt requested;

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

(C) the court order or other documents served
with the court order identify the member concerned and
include, 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

(C) includes nothing on its face that provides
reasonable notice that it is issued without authority of law.

(c) AUTHORITY FOR COURT TO TREAT RETIRED PAT
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
4

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
5

,

(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
6

(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
(c) may not exceed 50 percent of such disposable retired pay.

(2) In the event of effective service of more than one
court order which provide for payment to a spouse and one or
more former spouses or to more than one former spouse, the
disposable retired pay of the member shall be used to satisfy
(subject to the limitations of paragraph (1)) such court orders

APPENDIX - STATUTES
7

a

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
8

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
9

(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
10

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
11

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;

(c) if and while the disability is rated 30 percent the
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;

(C) has no spouse but one or more children,
$57 plus $44 for each child in excess of one;

APPENDIX - STATUTES
13

=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
14

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
15

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.

(c) In the case of a person who--

(1) has been determined to be eligible to receive
pension or compensation under laws administered by the

APPENDIX - STATUTES
16

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
the department by which such retired or retirement pay is paid ©
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
17

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]

(c) The term "alimony," when used in reference to the
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
18

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
19

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
20

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
21

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
22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0992%3A1. Public record. Not legal advice.