Petition for Writ of Certiorari — Padot v. Padot (No. 05-1076)

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In The

Supreme Court of the United States

2

vy

KEVIN Y. PADOT,

Petitioner,

v.

BRENDA G. PADOT,

Respondent.

°

On Petition For A Writ Of Certiorari

To The Second District Court Of Appeal Of Florida

—--——¢

PETITION FOR WRIT OF CERTIORARI

*

DAVID J. BEDERMAN

Counsel of Record

1301 Clifton Road

Atlanta, Georgia 30322-2770

(404) 727-6822

Attorney for Petitioner

(i)

QUESTION PRESENTED FOR REVIEW

Where a veteran has elected to take military disability pay

in lieu of retired pay, may state courts, in contravention of federal

statutes, 10 U.S.C. 1408 and 38 U.S.C. 5301, and this Court’s

ruling in Mansell v. Mansell, 490 U.S. 581 (1989), nonetheless

requ::e former servicemembers to remit to former spouses a part

of that foregone pay, even without an indemnification provision

__ in the divorce property settlement?

(ii)

TABLE OF CONTENTS

Page

Question Presented for Review ..............,.0+005- (i)

ea is ih bes Verse sw eee ee te sen es 1

ENTE CF PUNROIOUEE © cece eceevreeecucceveses l

Constitutional Provision and Statutes Involved ......... 2

GS ete ead ale ay whee 4'¢ 6 b0 wee we CON cee eee 2

Reasons for Granting the Petition ................... 10

STATE COURTS ARE SHARPLY DIVIDED AS TO

THE PRCPER TREATMENT OF VETERANS’

DISABILITY PAY, TAKEN IN LIEU OF MILITARY

RETIRED PAY, IN DIVORCE DECREES ........... 10

oS gat 26

(iii)

TABLE OF AUTHORITIES

CASES

Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997) ...........+.. 9, 15, 22

Ashley v. Ashley, 990 S.W.2d 507 (Ark. 1999) ...........2.60-- 16, 17

Black v. Black, 842 A.2d 1280 (Me. 2004) .........555 cece cece eeees 16

Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992) ............... 13, 18

Ex Parte Billieck, 777 So. 2d 105 (Ala. 2000) .....-....-0--- ee eeee 17

Halstead v. Halstead, 596 S.E.2d 353 (N.C. App. 2004) ...........-.. 18

Hapney v. Hapney, 824 S.W.2d 408 (Ark. App. 1992) ............4-- 18

Hillyer v. Hillyer, 59S.W.3d 118 (Tenn. App. 2001) .........-.....+.- 16

Hisgen v. Hisgen, 554 N.W.2d 494 (S.D. 1996) ..........-.-+-+205- 15

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ......-.-6--20000- 6, 11

be ve Kragt, $32 9.20 S71 Cath. 1997) oo csc cccscvcccsccsscecccess 13

In re Marriage of Gaddis, 957 P.2d 1010 (Ariz. App. 1997) .......... 15

In re Marriage of Harris, 991 P.2d 262 (Ariz. App. 1999) ............ 15

In re Marriage of Jennings, 980 P.2d 1248 (Wash. 1999) ............ 16

In re Marriage of Krempin, 83 Cal.Rptr.2d 134 (Cal. App. 1999) ...... 16

In re Marriage of Nielsen, 792 N.E.2d 844 (Ill. App. 2003) ........... 15

In re Marriage of Pierce, 982 P.2d 995 (Kan. App. 1999), ......... 16, 17

In re Marriage of Strassner, 895 S.W.2d 614 (Mo. Ct. App. 1995) ..... 15

In re Strong, 8 P.3d 763 (Mont. 2000) .......-.-. 222. eee eee eee 13, 18

Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001) .......... 10, 14, 15, 23

Keough v. Keough, 1997 WL 242559 (Va. App. May 13, 1997) ........ 18

Krapf v. Krapf, 771 N.E.2d 819 (Mass. App. 2002), aff'd,

FOB TE E.AG FER Ds FOE oi ons sce dnc ccbc sidecases 15, 16

Loria v. Loria, 2006 WL 66359 (Tex. App. Jan. 12,2006) ........... 17

Mansell v. Mansell, 490 U.S. 581 (1989) ... 2.0... eee eee eee eee passim

Matter of the Marriage of Reinauer,

946 S.W.2d 853 (Tex. App. 1997) .......00-.ccccccescces 18

Matter of the Marriage of Wherrell, 58 P.3d 734 (Kan. 2002) ......... 18

McCarty v. McCarty, 453 U.S. 210 (1981) ...........---.2-06. passim

McHugh v. McHugh, 861 P.2d 113 (Idaho 1993) ................... 15

Owen v. Owen, 419 S.E.2d 267 (Va. App. 1992) ................24-- 16

Poullard v. Poullard, 780 So. 2d 498 (La. App. 2001) ............... 16

Ridgway v. Ridgway, 454 U.S. 46 (1981) ............-..--. Aes ‘ena

Roos v. Rane, Gi WS. GID CPST) oon co ccc ceecveccccusee 6, 20, 24, 25

Ryan v. Ryan, 600 N.W.2d 739 (Neb. 1999) ...........2. 000 ee eee 18

(iv)

Shelton v. Shelton, 78 P.3d 507 (Nev. 2003) ..... Ronee bra eRe ete FEF 16

Wissner v. Wissner, 338 U.S. 655 (1950) .............220 0c eee eee 24

Wright v. Wright, 594 So. 2d 1139 (La. App. 1992).................. 18

FEDERAL CONSTITUTION AND STATUTES

U.S. Const.

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Pe hai ob ac obs Uhr Vere pinbiieioedeswinna 2

Art. VI, cl. 2 (Supremacy Clause) ...... Peery ie re oot 2

IE kb he Core ba ves Uo eK ee shea Carns vedi ehebanke Ne

Uniformed Services Former Spouses’ Protection Act (USFSPA)

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Se EES ok 0 oda bane ey acow bdedone ewes 4

Oe Rein EE hes 5 dno Rip wats 4 cue Kenuinvaecnnebee 4

i Cale sy IgE reno emery er eee bea ogeck 4

OE SII vs oo si pwockeee sche 5, 6

PR Ck Bo” Pe Or eae ey pee pt hae Ree PEE, rey ee 3

ee GRIT GUE ob bos se So he SER ER a add ca eRR Rea es 1

Veterans’ Benefits Act (VBA)

SR IE ov 80 ok oe Wewce'crc tech dienaetdeoepcesees 3

Be a os bos 5 oo heb k a a Joe sew Saber tb crue creer 3

SE EROS, isin oda bine ieeudcuk vee ereeie es 3

I I Sook Ss nec os Sw bo epee ee bnnes passim

p ii a Bs) Siete aera ay Fey rrp arr er 3, 6, 23

Ea ee D o.o hi ewe en cixeteanceterbes 23,25

yt a | es Pree errr eebareabaaeans 3

National Defense Authorization Act, 1998,

a Pe SE BE ek I a ow beck viwecwesend ccuves 4,19

(v)

National Defense Authorization Act, 2004,

P.L. No. 109-136, 117 Stat. 1392 (2003) ...........008.

Veterans Benefits Act of 2003, P.L. No. 108-183,

ELT Sat: DOSE GIOOS) oi. cece iis cevtevecievavcsees

STATE STATUTES

Cah et et, Ae BO Fs i ccaearivevnrcheas

OTHER MATERIAL

Statement of John Thompson, Acting General Counsel,

Department of Veterans’ Affairs,

House Committee on Veterans’ Affairs, Aug. 5, 1998,

Garnishment of Veterans Affairs Benefits ...........++..

U.S. Department of Defense,

A Report to Congress Concerning Federal Former

Spouse Protection Laws, Sept. 4, 2001 ..................

PETITION FOR WRIT OF CERTIORARI

Petitioner, Kevin Y. Padot, respectfully prays that a rit

of certiorari issue to review the December 15, 2004, judgment and

opinion of the Second District Court of Appeal of Florida in the

above-captioned proceeding.

OPINIONS BELOW

Petitioner seeks review of the opinion and judgment of the

Florida Second District Court of Appeal of December 15, 2004,

styled as Padot v. Padot (Docket Nos. 2D03-1011 & 2D03-

3843), and reported at 891 So. 2d 1079 (Fla. Dist. Ct. App. Dec.

15, 2004), and reprinted at App. la. The Florida District Court of

Appeal’s decision came as an appeal of an Order issued by the

Circuit Court of Pinellas County, Florida, of November 12, 2002,

which was unreported, but is reprinted at App. 16a, confirmed on

motion for rehearing on January 22, 2003. See App. 21a.

STATEMENT OF JURISDICTION

Petitioner seeks review from the opinion and judgment of

the Florida District Court of Appeal of December 15, 2004. The

Florida Supreme Court denied review of that decision on October

3, 2005. See App. 15a.

On December 21, 2005, an Application to extend the time

to file a Petition for Certiorari in this case from January 1, 2006,

to February 24, 2006, was filed. Such Application was granted by

Justice Kennedy on December 28, 2005.

The U.S. Supreme Court has jurisdiction to review cases

from state courts by virtue of 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This Petition implicates the power of states to override

provisions of acts of Congress, in contravention of the Supremacy

Clause of Article VI of the federal Constitution. See U.S. CONST.

Art. VI, cl. 2 (“The Constitution, and the Laws of the United

States which shall be made in Pursuance thereof . . . shall be the

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

bound thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.”).

The federal statutes specifically at issue in this case are the

Uniformed Services Former Spouses’ Protection Act (USFSPA),

codified at 10 U.S.C. § 1408, the relevant provisions of which are

reprinted at App. 24a, as well as the nonattachment and exempt

status provisions of the Veterans’ Benefits Act (VBA), codified

at 38 U.S.C. § 5301, reprinted at App. 32a.

STATEMENT

1. a. In exercise of its powers under the Constitution, U.S.

Const. art. I, § 8, cls.12 (Raise and Support Armies Clause) & 14 -

(Regulation of Armed Forces Clause), Congress has prescribed a

_wide array of benefits to the men and women who have served

with honor in the United States armed forces. Among these

benefits are the retired and retention pay that is rendered to

enlisted personnel and officers who serve a statutorily-prescribed

period of time on active duty (typically 20 years), and (though

retired) are still obliged to comport themselves in accordance with

the Uniform Code of Military Justice and are subject to recall for

active duty. See 10 U.S.C. §§ 1401 et seq.

Analytically distinct from retired or retention pay are

veterans’ disability benefits, including disability pay, which is

offered’ “hose former service members (separated from active

duty 0. » tired) who have been found by the Veterans

Administration to have actually accrued service-related

disabilities. See 38 U.S.C. §§ 1101, 1110, 1131 et seq. Up until

very recently,' a veteran who was eligible for both retired pay and

disability cormpensation was required to elect one or the other.

See 10 U.S.C. § 1414; 38 U.S.C. § 5305. Since disability pay,

unlike retired pay, is not subject to federal income tax, see 38

U.S.C. § 5301(a)(1); App. 32a, veterans have tended to select the

receipt of disability pay.

b. Up until the early 1980's it was a matter of

some controversy whether military retired pay was even divisible

‘as acommunity asset in divorce proceedings involving a former

member of the armed forces. In a 1981 decision, this Court in

McCarty v. McCarty, 453 U.S. 210 (1981), ruled that federal law

precluded state courts from dividing military nondisability retired

pay pursuant to state community property laws. See id. at 235.

This Court made clear in McCarty that disability compensation

was an entirely different benefit, although subject to the same

rules of federal preemption. See id. at 213.

In response to McCarty, Congress legislated in 1982 the

Uniformed Services Former Spouses’ Protection Act (USFSPA),

codified at 10 U.S.C. § 1408; App. 24a. For the purposes of the

present Petition, the crucial provisions of USFSPA concern

' See National Defense Authorization Act, 2004, Pub. L. No. 108-

136, § 641, 117 Stat. 1392 (2003), which allows a phase-in of full

concurrent receipt of military retired pay and veterans disability

compensation for certain military retirees (those whose disability rating

exceed 50% and satisfy other eligibility criterion). This possibility of

concurrent receipts of retirement pay and disability compensation is not

otherwise at issue in this case.

Congress’s grant to state courts of the authority to treat retired pay

as property “solely of the [service] member or as property of the

member and his spouse in accordance with the law of the

jurisdiction. .. .” See 10 U.S.C. § 1408(c)(1); App. 26a.

USFSPA by no means required states to treat military retired pay

as divisible property, but merely allowed them to do so without

any federal preemptive effect, should state community property

or divorce settlement laws so prescribe.” In any event, Congress

took care in USFSPA to define what “disposable retired pay,” id.,

was subject to division with a former spouse. Among the

amounts required to be deducted from total retired pay, in order

to calculate disposable retired pay, are any amounts that a veteran

was obiiged to waive as a condition of receiving disability

compensation. See 10 U.S.C. § 1408(a)(4)(B); App. 26a.

An additional feature of USFSPA was an automatic

payment procedure by which former spouses could directly

receive court-ordered increments or shares of a veteran’s retired

pay, provided that certain statutory requisites were satisfied by the

former spouse. See 10 U.S.C. § 1408(d). In addition, Congress

imposed a percentage cap on amounts of a veteran’s retired pay

that could be directly remitted under this scheme. See 10 U.S.C.

2 Community property states had traditionally sought to include

military retired pay as a marital asset. After USFSPA, most, but not all,

of remaining states have, in fact, adypted statutory or common law rules

of construction allowing the treatment of military retired pay as a marital

asset subject to division upon divorce. See A Report to Congress

Conceming Federal Former Spouse Protection Laws, Sept. 4, 2001,

Appendix C, available at http://www.dod.mil/prhome/spouserev.html

(visited Feb. 3, 2006) [hereinafter “DoD 2001 USFSPA Report”]. This

Report was prepared in accordance with the congressional mandate of the

National Defense Authorization Act, FY 1998, § 643, Pub. L. 105-85,

111 Stat. 1629 (1997).

§ 1408(e)(1); App. 28a. Congress also prescribed a carefully-

constructed savings clause to govern situations where state ccurts

ordered remissions of retired pay in excess of the statutory caps

applicable to the automatic pay scheme:

Nothing in this section shall be construed to -

relieve a [service] member of liability for the

payment of alimony, child support, or other

payments required by a court order on the

grounds that payments made out of disposable

retired pay under this section have been made in

the maximum amount permitted under paragraph

(1) or subparagraph (B) of paragraph (4). Any

such unsatisfied obligation of a member may be

enforced by any means available under law other

than the means provided under this section in any

case in which the maximum amount permitted

under paragraph (1) has been paid... .

10 U.S.C. § 1408(e)(6); App. 30a.

_c. Any hopes that the enactment of USFSPA

would conclusively and completely resolve the status of veterans’

retired pay as marital property subject to division at divorce were

quickly dashed. Indeed, state courts quickly proved their aptitude

in evading USFSPA’s restrictions in order to settle additional

benefits on the former spouses of service members. Indeed, this

Court was obliged in 1989, in Mansell v. Mansell, to address

virtually the precise issue raised in this Petition: whether state

courts “may treat as property divisible upon divorce military

retirement pay waived by the retiree in order to receive veterans’

disability benefits.” 490 U.S. 581, 583 (1989). Writing for a

majority of the Court (with O’Connor and Blackmun, JJ.,

dissenting), Justice Marshall concluded that “they may not.” Id.

The Mansell Court was faced with a state court divorce

decree and property settlement that was much more ambiguous

than the one presented here: Major Gerald Mansel! agreed, at the

time of his divorce, that his former wife, Gaye Mansell, would

receive “SO percent of his total military retirement pay, including

that portion of retirement pay waived so that [he] could receive

disability payments.” Id. at 586. Four years later, Major Mansell

requested a modification of his divorce decree by removing the

provision requiring him to share his total retired pay with his

former spouse. Id. California courts denied his motion, despite

his challenge that such a ruling conflicted with both USFSPA and

the anti-attachment provision of the Veterans’ Benefits Act (at the

time of the Mansell decision, codified at 38 U.S.C. §3101(a), and

now at id. § 5301(a); App. 32a).

Basing its holding on USFSPA, and declining to reach the

nonattachment statute as an independent ground, 490 U.S. at 581

n.6, this Court held that USFSPA specifically preempted a state

_ court’s attempt to treat disability pay as a part of a veterans’

disposable retired pay, subject to division as part of marital

property under that statute. See id. at 588-90 (construing 10

U.S.C. § 1408(a)(4)(B); App. 26a, and id. § 1408(e)(6); App.

30a). The Court reached this conclusion, even as it acknowledged

that “Congress, when it passes general legislation, rarely intends

to displace state authority” over family law issues, and that this

Court “will not find preemption absent evidence that it is

“positively required by direct enactment”’.” Id. at 587 (quoting

Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979), and citing

Rose v. Rose, 48! U.S. 619, 628 (1987)). Indeed, the Mansell

Court concluded that “[t]he instant case, however, presents one of

those rare instances where Congress has directly and specially

legislated in the area of domestic relations.” Id. ;

And, unlike the situation in the wake of this Court’s

decision in McCarty, Congress appears to have acquiesced in this

6

Court’s construction of USFSPA to the effect that amounts owing

to a veteran as disability pay are not subject to being divisible as

marital property upon divorce. Despite the fact that Congress has

amended USFSPA no less than eight times after the Mansell

decision was rendered, see App. 31a, in no instance has Congress

chosen to disturb that ruling or to otherwise amend the statute in

a way material to the issues raised in this Petition. As will be

discussed presently, however, state courts have not been so

respectful of this Court’s ruling in Mansell, necessitating this

Petition and this Court’s intervention.

2. a. Petitioner, Kevin Y. Padot, married Respondent,

Brenda G. Padot, on September 6, 1980. In a Final Judgment,

issued by the Circuit Court for Bay County, Florida, on February

1, 1995, they were divorced. See App. 2a. In that Judgment, the

court specifically reserved jurisdiction to determine the equitable

division of marital assets and liabilities. See id.

In a Supplemental Order of March 17, 1995, the Florida

Circuit Court divided Petitioner’s military retired pay with his

former spouse. See id. Kevin Padot servedii. “ie U.S. Air Force

from April 1980 until May 2000. At the time of his divorce, he

was still on active duty in the armed forces, needing six more

. years of service to become statutorily eligible to draw retired pay

upon his separation from his service. See App. 16a-17a.

The Florida Circuit Court nevertheless awarded

Respondent a percentage of Mr. Padot’s retired pay, as property,

if and when he began receiving it. See id. The Supplemental

' Order contained a provision to the effect that “[nJeither party shall

take any action which shall alter or otherwise reduce the interest

of the other party in the retainer pay, retired pay, deferrea

compensation, or other military benefit.” Id. (quoting J 2(b)(11)

of the Order). The Supplemental Order did not, however, value

the retirement pay nor contain an indemnification provision which

required Mr. Padct to compensate Respondent, in the event that

his military retired pay was reduced for whatever reason. See

App. 7a-8a. Nor did the Supplemental Order award Respondent

with a sum certain to be paid by Mr. Padot from his retired pay,

or incorporate by reference a property settlement agreement

concluded by the parties. See id. Finally, nothing in the Order

mentioned the disposition of Petitioner’s disability pay, in the

event he received any. The Order did give the Florida Circuit

Court continued jurisdiction “to enforce the former spouse’s

rights to her share of the above-described benefits.” App. 8a

(quoting { 2(b)(16) of the Order).

Mr. Padot retired from the Air Force on May *., 2000, at

the rank of E-6 (Technical Sergeant) and received his first

military retirement pay in June 2000. See App. 2a. As part of the

retirement process, Mr. Padot sought review of his medical

records and received a 30% disability rating from the U.S.

Veterans Administration. See id. As aconsequence, Petitioner,

in December 2000, was required by law to waive 30% of his

retired pay in order to receive an equal amount of non-taxable

disability pay. See id. After a period of underemployment, in

April 2001, Mr. Padot was hired by the federal government as a

civilian air-traffic controller, a position he had held during his

military service. See App. 2a-3a, 17a.

b. Because Mr. Padot’s retirement pay was

reduced by his disability rating and election to take disability pay,

his former wife’s share of retirement pay as property was likewise

diminished. In July 2002, Respondent filed a motion in Pinellas

County Circuit Court to enforce the 1995 Final Judgment and

Supplemental Order, claiming that Mr. Padot’s waiver of retired

pay in preference for disability pay, was a violation of the court’s

orders, as was an election taken in regard to Petitioner’s military

survivor benefit plan. See App. 3a. (That second issue is not

before this Court.)

In a November 12, 2002, Order, see App. 16a, the Florida

Circuit Court ruled that Mr. Padot was required to reimburse

Respondent for her share of the lost retired pay he had waived as

a result of receiving disability pay. See App. 18a-20a. The

Circuit Court acknowledged the apparent tension between

Florida’s jurisprudence on this subject, and this Court’s ruling in

Mansell v. Mansell, 490 U.S. 581 (1989), see App. 17a-18a, but

ruled that the equities of the situation (including the fact that

Petitioner had a source of income other than his retired and

disability pay) required that he reimburse his former wife, even

though the divorce decree did not require that he indemnify her in

these circumstances. See App. 18a-20a.

In response to a motion for reconsideration, the Florida

Circuit Court confirmed, see App. 21a, that it understood the

controlling authority to be the Florida Supreme Court’s decision

in Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997), and not this

Court’s earlier ruling in Mansell. Rehearing as to the division of

military retired pay was thus denied. See id.

c. On appeal, the Florida Second District Court

of Appeal affirmed with respect to this ruling on military retired

and disability pay. See App. 3a-9a, 13a. The Florida Court of

Appeal held, consistent with the trial court’s judgment, that this

Court’s ruling in Mansell was distinguishable to the

circumstances here, because Mr. Padot was still on active duty at

the time of his divorce and had (at least currently) a source of

income aside from the receipt of military retired or disability pay.

See App. 4a-6a.

The Florida Court of Appeal went on to hold that the

Florida Supreme Court’s decision in Abernethy was controlling,

even though in that case the divorce decree required the former

servicemember to indemnify his ex-spouse in the event that he

reduced his military retired pay by electing to take disability pay

in its stead. See App. 7a. The Florida Court of Appeal, relying

on Tennessee case law, see App. 8a-9a (quoting Johnson v.

Johnson, 37 S.W.3d 892 (Tenn. 2001)), ruled that Petitioner’s

agreement to “take [no] action which shall alter or otherwise

reduce the interest of the other party in the . . . retired pay,” was

tantamount to an indemnification promise and that Florida courts

have the equitable power to ensure that former spouses receive,

as a “vested interest,” a percentage of all] of the military retired

pay that was due them. See App. 9a.

d. Discretionary review in the Florida Supreme

Court was sought by Petitioner for this aspect of the Florida Court

of Appeal’s ruling. Review was denied on October 3, 2005. App.

- 15a. This timely Petition (in light of Justice Kennedy’s December

28, 2005, grant of an application extending the time for filing)

follows.

REASONS FOR GRANTING THE PETITION

STATE COURTS ARE SHARPLY DIVIDED

AS TO THE PROPER TREATMENT OF

VETERANS’ DISABILITY PAY, TAKEN IN LIEU

OF MILITARY RETIRED PAY, IN

DIVORCE DECREES

This Petition calls for the Court to reconsider the

nettlesome connection between federal statutes governing the

_disposition of federal veterans’ benefits and the traditional

authority of state courts over the making and enforcement of

property decrees arising from divorce. This issue has required the

Court’s attention on a number of occasions in the last quarter-

10

century, see, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572

(1979); McCarty v. McCarty, 453 U.S. 210 (1981); Rose v.

Rose, 481 U.S. 619 (1987); and Mansell v. Mansell, 490 U.S.

581 (1989).

It requires this Court’s review now because state supreme

courts and appellate courts are in manifest division as to the

proper construction of the relevant federal statutes involved here

— the Uniformed Services Former Spouses’ Protection Act

(USFSPA), 10 U.S.C. § 1408; App. 24a, and the nonattachment

provision of the Veterans’ Benefits Act (VBA), 38 U.S.C. § 5301;

App. 32a. In addition, state courts — including the Florida Court

' of Appeal in the decision for which review is sought here; see

App. 3a-9a — are clearly unsettled as to the preemptive effect that

federal benefits statutes should have on the enforcement of state

law divorce property decrees. Finally, many state courts appear

to be either in open defiance of this Court’s earlier rulings in

Mansell and McCarty, or (at a minimum) striving mightily to

develop untenable and problematic ways to distinguish this

Court’s holding that USFSPA preempts state laws that have the

effect of devolving on a former spouse funds that are

attributable to a veteran’s receipt of disability pay. See 490 U.S.

at 583, 594-95.

1. This Petition essentially asks the Court to resolve a

number of matters left outstanding from its previous decisions

in Mansell and McCarty.

a. As already discussed, this Court’s ruling in

Mansell settled the question of whether a veterans’ disability

benefits could be divided under state law community property

theories. See 490 U.S. at 586 n.6 (“we decide that the Former

Spouses’ Protection Act precludes States from treating as

community property retirement pay waived to receive veterans’

disability benefits... .”). But this Court appeared to leave open

i]

the question of whether a state court could justify a division of

veterans’ disability pay on other grounds. In an enigmatic

footnote, this Court noted:

In a supplemental brief, Mrs. Mansell argues that

the doctrine of res judicata should have

prevented this pre-McCarty property settlement

from being reopened. The California Court of

Appeal, however, decided that it was

appropriate, under California law, to reopen the

settlement and reach the federal question.

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. The

federal question is therefore properly before us.

490 U.S. at 586 n.5.° As will be shown presently, many state

courts have seized on this language to create a “res judicata”

exception to USFSPA’s bar on state courts allocating, in a

divorce decree, disability pay as part of a veteran’s retired pay.

Reduced to its essentials, the holding in Mansell is that

when no prior order and no prior agreement exists, federal law

requires that disability benefits be awarded to the owning

spouse, and state law to the contrary is preempted. The issue

presented here is whether a state court may construe a divorce

decree that does not even mention disability pay, and that does

not purport to indemnify a former spouse for an election of

3 Nor is there any doubt that a federal question is properly before the

Court in this case. The Florida Appeal Court clearly relied upon (or at

least sought to distinguish) federal law as the basis of its decision, see

App. 4a-6a, and did not expressly invoke state law res judicata grounds

for its holding.

12

disability pay in lieu of retired pay, as nonetheless being an

equitable agreement to pay such benefits, despite the contrary

provisions of federal law.

b. The relevant federal law is not only the

applicable provisions of USFSPA, which formed the basis of

this Court’s holding in Mansell, but also the anti-attachment

clauses of the Veterans’ Benefits Act (VBA), 38 U.S.C. §

5301(a); App. 32a. The Mansell Court expressly declined to

rule on that ground of federal preemption, being content to stand

on its construction of USFSPA. See 490 U.S. at 587 n.6. As

will be discussed below, the VBA (as recently amended and

strengthened by Congress) is a significant element in this case.

Also worthy of attention is the fact that state courts, in

responding to Mansell, have sought to recharacterize a veterans’

disability pay as some other sort of marital property or benefit

(such as alimony) and make an off-setting award to the former

spouse to compensate for a lost share of retired pay income.

This arguably occurred in this case. See App. 9a. But this

Court earlier warned, in its McCarty decision, that “it is clear

that the injunction against attachment is not to be circumvented

by the simple expedient of an offsetting award.” 453 U.S. at

230 n.22. And, yet, a number of state courts have done

precisely that in attempting to allocate military disability to a

former spouse, even in the absence of a consensual property

settlement or indemnification provision in a divorce decree.‘

4 The decision below (as well as the Florida and Tennessee

authorities it relies upon) is in manifest conflict with Clauson v.

Clauson, 831 P.2d 1257 (Alaska 1992); In re Strong, 8 P.3d 763 (Mont.

2000); and Jn re Kraft, 832 P.2d 871 (Wash. 1992) (all prohibiting an

offset against disability pay). But see La. Rev. Stat. Ann. 9:2801.1

(where federal law excludes one spouse’s benefits from division, court

13

2. As a consequence of the issues left open in the

McCarty and Mansell decisions, there are today a number of

lines of fracture in state court decisions dealing with the proper

application of federal veterans’ benefits statutes in enforcement

of divorce property decrees.

a. One set of these divisions was suggested by

the Florida Court of Appeal, App. 3a-9a, insofar as it observed

that many state courts have held, notwithstanding Mansell, that

a recipient of military disability payments may not deprive a

former spouse of an equitable interest in receiving a share of

retired pay. See App. 9a (relying on Johnson v. Johnson, 37

S.W.3d 892, 894 (Tenn. 2001)). Employing these same

precedents from other jurisdictions, the Florida Court of Appeal

appeared to conclude that states are not preempted from

enforcing orders that are res judicata or from reconsidering

divorce decrees, even when disability pay is involved.

b. Another set of state court decisions have

specifically confronted this Court’s ruling in Mansell and sought

to limit or distinguish it.. Some courts have sought to constrain

Mansell to its facts. After all, Major Mansell was already

receiving disability benefits at the time of the dissolution of his

marriage; any attempt to divide disability pay as a marital asset

would have clearly violated USFSPA. See 490 U:S. at 585.

But, according to some state courts, Mansell’s facts did not

ostensibly speak to the situation where a veteran later decides to

forego additional retirement pay in favor of disability pay.

Some state courts have seized on this factual nuance as the basis

of authority to quantify with certainty the former spouse’s

interest in a veteran’s retired pay, which the former service

must exclude from division an identical amount of community property

in favor of the other spouse).

14

member is not permitted to frustrate by subsequently voluntarily

waiving retired pay.” See Hisgen v. Hisgen, 554 N.W.2d 494,

497-98 (S.D. 1996); Abernethy v. Fishkin, 699 So. 2d 235,

239-40 (Fla. 1997); In re Marriage of Gaddis, 957 P.2d 1010,

1013 (Ariz. App. 1997); In re Marriage of Harris, 991 P.2d

262, 266 (Ariz. App. 1999); Johnson v. Johnson, 37 S.W.3d

892, 896-97 (Tenn. 2001). This may well characterize the

approach of the Florida Court of Appeal here. See App. 6a-9a.

In other cases, state courts have enforced divorce decrees

or property settlements which provided that the military spouse

would indemnify the non-military spouse for any such

diminution of retired pay.* See Abernethy, 699 So.2d at 239-40;

Owen, 419 S.E.2d at 269-71; In re Marriage of Strassner, 895

S.W.2d 614 (Mo. Ct. App. 1995). Some courts, such as the one

here, have taken the same approach even without an express

indemnity agreement. See McHugh v. McHugh, 861 P.2d 113,

- 115 (idaho 1993); Hisgen, 554 N.W.2d at 495; In re Marriage

of Neilsen, 792 N.E.2d 844, 849 (Il. App. 2003); Krapf v.

> Other state courts have noted that Mansell was decided in the

context of acommunity property state and that its ruling should not affect

a state court’s decision to award alimony out of a veteran’s disability pay.

See, e.g., Steiner v. Steiner, 788 So. 2d 771, 778 (Miss. 2001); Riley v.

Riley, 571 A.2d 1261, 1265 (Md. Ct. Spec. App. 1990); Weberg v.

Weberg, 463 N.W.2d 382, 384 (Wis. App. 1990). Since Petitioner and

Respondent mutually disclaimed alimony or spousal support in their

divorce decree, see App. 5a, this issue is not directly raised kere,

although the state trial court appeared to rule that equitably granting

Respondent an interest in Mr. Padot’s retirement pay was functionally

equivalent to an alimony award. See App. 18a.

® No such indemnification clause appears in the divorce decree in

this case. See App. 7a-8a.

15

Krapf, 771 N.E.2d 819, 823 (Mass. App. 2002); Black v. Black,

842 A.2d 1280, 1285 (Me. 2004); Hillyer v. Hillyer, 59 S.W.3d

118 (Tenn. App. 2001). But see Ashley v. Ashley, 990 S.W.2d

507 (Ark. 1999); In re Marriage of Pierce, 982 P.2d 995 (Kan.

App. 1999) (rejecting implied indemnification theory).

Still other state courts have held that the waiver of

retirement pay with a corresponding reduction in payments to

the non-military spouse was a change in circumstances, which

permitted redistribution of marital property or reassessment of

support payments. See In re Marriage of Jennings, 980 P.2d at

1254-55. Yet other courts have held that if the military retiree

waives retired pay to receive disability benefits, the state courts

have the equitable power to impose a resulting trust on the

money received as disability payments. See Krapf v. Krapf, 786

N.E.2d 318, 326 (Mass. 2003); In re Marriage of Krempin, 83

Cal.Rptr.2d 134, 143 (Cal. App. 1999). Other courts have

emphasized the contractual nature of consensual property

divisions upon divorce, and the competence of state courts to

enforce such provisions. See Shelton v. Shelton, 78 P.3d 507,

508-10 (Nev. 2003); Poullard v. Poullard, 780 So.2d 498,

499-500 (La. Ct. App. 2001); Owen v. Owen, 419 S.E.2d 267

(Va. App. 1992).

While these state courts have tak..: slightly different

approaches, each achieved a doctrinal end-run around Mansell.

The common thread in these and other similar cases is the

central concept that the nonmilitary former spouse has an

inchoate interest in the military retiree’s retired pay that can be

fixed at the time of divorce, which the retiree should not and

will not be permitted to affect. See App. 9a (“the Former Wife

obtained a vested interest in a percentage of the Former

Husband’s military retirement or retainer pay. .. .”). Where the

veteran seeks to elect the receipt of disability pay, these state

courts have ruled that, Mansell notwithstandine, they are at

16

liberty to modify divorce property settlements to require the

effective transfer of a portion of a veteran’s disability benefits

to a former spouse.

c. But the courts in other jurisdictions have been

more respectful of this Court’s rulings, resisting the temptation

to limit or distinguish Mansell to the vanishing point, and to

blithely override the preemptive effect of USFSPA. In Ex parte

Billieck, 777 So. 2d 105 (Ala. 2000), the Alabama Supreme

Court held that USFSPA’s definition of disposable retired pay,

10 U.S.C. § 1408(a)(4); App. 25a, ud this Court’s ruling in

Mansell, ineluctably led to the conclusion that state courts could

not modify a divorce property settlement by requiring a veteran

to remit disability pay to a former spouse, even where the

veteran had agreed (at the time of divorce) to pay a certain

percentage of retirement pay which was later foregone in favor

of disability pay. See id. at 106-09. See also Loria v. Loria,

2006 WL 66359 (Tex. App. Jan. 12, 2006); Ashley, 990 S.W.2d

at 508-09 (Ark. 1999) (to the same effect).

Kansas courts have reached substantially the same

conclusion. In Matter of the Marriage of Pierce, 982 P.2d 995

(Kan. App. 1999), the Kansas Court of Appeals ruled that

Mansell makes it perfectly clear that the state

trial courts have no jurisdiction over disability

benefits received by a veteran. The trial court in

this case cannot order Douglas to change the

payments back to retirement benefits, and it

cannot order him to pay his disability benefits to

Priscilla. We conclude the court may not do

indirectly what it cannot do directly.

Id. at 998. In a subsequent decision, the Kansas Supreme Court

adopted this approach, although ruling that how to characterize

a particular veteran’s benefits as either retired pay or disability

17

pay, within the meaning of USFSPA’s exclusion clause, 10

U.S.C. § 1408(a)(4)(B), App. 26a, was sometimes a difficult

factual matter. See Matter of the Marriage of Wherrell, 58 P.3d

734, 737-41 (Kan. 2002).

Other state supreme courts have simply ruled that

USFSPA, as interpreted by this Court in Mansell, denies state

courts the jurisdiction to award former spouses any portion of a

veteran’s disability pay. See Clauson v. Clauson, 831 P.2d

1257, 1262 (Alaska 1992); Ryan v. Ryan, 600 N.W.2d 739, 745

(Neb. 1999); see also Strong, 8 P.3d at 766 (Mont. 2000) (for a

ruling on preemption grounds). Some state intermediate appeals

courts have likewise held that the proper interpretation of

USFSPA, as construed by Mansell, is that divorce decrees

cannot be modified in order to transfer a veteran’s disability

benefits to a former spouse, even where a service member had

agreed to share a portion of retirement pay that was later waived

to receive disability pay. See Hapney v. Hapney, 824 S.W.2d

408 (Ark. App. 1992); Wright v. Wright, 594 So. 2d 1139, 1140

(La. App. 1992); Halstead v. Halstead, 596 S.E.2d 353 (N.C.

App. 2004); Matter of the Marriage of Reinauer, 946 S.W.2d

853, 858-59 (Tex. App. 1997); Keough v. Keough, 1997 WL

242559 (Va. App. May 13, 1997).

In short, at least six state supreme courts (Alabama,

Alaska, Arkansas, Kansas, Montana, and Nebraska), and the

intermediate courts of appeals of an additional four jurisdictions

(Louisiana, North Carolina, Texas, and Virginia) have taken

diametrically the opposite position of that held below by

Florida’s courts.

2.a. This widely disparate treatment of disability pay in

modifications of divorce property decrees involving waived

retired pay has not gone unnoticed by the federal agencies

charged respectively with the disbursement of veterans’ retired

18

pay and of disability pay, namely the Departments of Defense

and Veterans Affairs. In the September 2001 Report prepared

by the Department of Defense, at the request of Congress in

section 643 of the National Defense Authorization Act, FY

1998, Pub. L. 105-85, 111 Stat. 1629 (1997), it was noted that

Congress has, on several occasions, chosen to

give VA disability compensation a higher

priority than payments to former spouses. This

is consistent with the treatment historically

provided. by Congress to VA _ disability

compensation. It has treated it as compensation

owed to the member for injuries/wounds

incurred in the service of the United States. As

such, the Congress has always exempted it from

the claims of creditors (it has allowed claims for

spousal and child support).

DoD 2001 USFSPA Report, supra note 2, at 3, 81-82. The

Department of Defense observed that state courts had given

widely variant treatment to disability pay when enforcing an

earlier divorce decree that involved waived retired pay, see id.

at 52-54 (citing an American Bar Association’s April 13, 1999,

responses to DoD’s inquiries, at 11-12, found at

http://www.abanet.org/family/military/nda98 html (last visited

Feb. 4, 2006)), and that this would either have to be addressed

by Congress or this Court. In any event, the Department of

Defense turned aside suggestions that it should institute

regulations that would allow the payment of veterans’ disability

pay to former spouses. It found that this would be a clear

contravention of USFSPA, and such a radical change in the law

would have to be a matter addressed, in the first instance, by the

Veterans Administration, or by Congress. See id. at 82.

Likewise, the Veterans Administration has indicated

19

that, pursuant to this Court’s decision in Rose v. Rose, 481 U.S.

619 (1987) (allowing state courts to set child support obligations

at levels that veterans would necessarily have to use disability

pay to satisfy them), it will allow a garnishment of disability

compensation received in lieu of retirement pay to satisfy court-

ordered child support, consistent with the nonattachment

provision of the Veterans’ Benefits Act, 38 U.S.C. § 5301(a).

See Stutement of John Thompson, Acting General Counsel,

Department of Veterans’ Affairs, House Committee on

Veterans’ Affairs, Aug. 5, 1998, Garnishment of Veterans

Affairs Benefits, available for viewing at

http://www.va.gov/OCA/testimony/SAG9I8AGC_usa.htm

(visited Feb. 4, 2006)). Somewhat more controversial was the

application of such garnishment for the satisfaction of alimony

or spousal support orders, but the VA has apparently been

permitting such. See id. The Veterans Administration will not,

however, permit the attachment of disability pay as part of a

divorce decree. See id.

According to these pronouncements by the relevant

federal agencies, it seems clear that the root cause of the widely

discordant treatment of veterans’ disability pay in state divorce

property modification proceedings is not any lack of guidance

by the relevant federal statutes on point - USFSPA and the

antiattachment provision of the VBA — but, rather, the failure of

state courts to give the proper preemptive effect to these laws.

That such confusion should persist even after this Court’s

decision in Mansell, with its express holding that USFSPA’s

treatment of disability pay preempts contrary state law even

under the most stringent preemption standards, see 490 U.S. at

587, is deeply troubling and requires this Court’s attention.

b. Petitioner needs hardly speculate as to the

number of individuals who are potentially affected by this trend

in the case law. According to the DoD 2001 USFSPA Report,

20

supra note 1, at 19, as of April 1, 1999, 1.985 million former

service members are receiving retired pay. Assuming even

moderate divorce rates and a robust cohort of veterans (a large

percentage of which may not have yet been rated for disability),

that leaves a large pool of male and female veterans who may

find themselves in the situation presented in this case. Indeed,

the two million figure surely undercounts the potential class of

litigants here, insofar as it excludes those still in the service (and

thus not drawing retired or disability pay), even though they may

already be divorced and subject to a divorce decree which

Stipulates as to a future division of retired pay.

3. Even if state courts were unanimous in their holdings

that USFSPA does not preempt state court enforcement of

divorce decrees involving the division of retired pay later

supplanted by disability pay, Petitioner would still refer this

issue to the Court’s attention in light of its previous ruling in

Mansell. But state courts have by no means reached such a

consensus, and, indeed, as indicated above, have sharply split as

to whether such modification proceedings are permissible, and,

even if so, under what legal theories they may proceed. The

split in state court jurisprudence has not narrowed over time; it

has continued to grow.

Likewise, Petitioner believes this is a suitable case for

the Court to accept to resolve this matter. The relevant

provisions of the divorce decree, see App. 2a, 7a-8a, 16a-17a,

are standard. There was no indemnification provision by which

a veteran undertakes to compensate a former spouse in the event

the veteran seeks to elect disability pay in lieu of retired pay. As

even acknowledged by the Florida Court of Appeal, see App.

7a-8a, Petitioner did not purport in the divorce decree to allocate

any part of his existing disability pay to the Respondent.

Finally, this case does not involve a modification of alimony

payments, as both parties to the divorce decree disciaimed any

21

spousal support. See App. Sa. Simply presented here is the

question of whether a state court can, under any legal theory,

and consistent with federal law and this Court’s ruling in

Mansell, require a veteran to remit a portion of disability pay in

compensation for waived retired pay.

4.a. Without unnecessarily broaching the merits of this

issue, Petitioner would merely remark at this stage that this

question is settled by the same sensible construction of USFSPA

made already by this Court in Mansell. Congress has already

spoken to the definition of “disposable retired pay” subject to

division under USFSPA, 10 U.S.C. § 1408{a)(4)(B); App. 26a,

by expressly excluding disability pay from such-calculations.

Likewise, the savings clause that Congress provided in USFSPA

as grounds for state courts to exceed the statutory caps on the

automatic remission of retired pay to former spouses, 10 U.S.C.

§ 1408(e)(6); App. 30a, does not give state courts carte blanche

to treat disability pay as retired pay. See Mansell, 490 US. at

588-90.

The relevant provisions of USFSPA have not changed

since this Court’s decision in Mansell. It would stretch the

canons of statutory construction too far to suggest, as the court

below appears to, see App. 4a & n.1, that what was found

preempted under wne statutory scheme is not later to be regarded

as preempted under the same scheme. Nor can it seriously be

entertained that state courts’ reliance — as in the Florida Court

of Appeal decision here, see App. 6a-7a (citing Abernethy v.

Fishkin, 699 So. 2d 235, 237-40 (Fla. 1997) — on principles of

state equitable construction of divorce decrees can prevail over

a preemptive federal interest.

b. The Florida Court of Appeal’s suggestion that

federal law does not prevent a divorce decree to be equitably

construed to grant a former spouse an interest in disability pay

22

received in lieu of retired pay, see App. 7a-9a (citing Johnson,

37 S.W.3d at 893-94), is manifestly contradicted by the relevant

provisions of the Veterans’ Benefits Act, 38 U.S.C. § 5301,

which provides that

[p]ayments of benefits due or to become due

under any law administered by the Secretary [of

Veterans Affairs] 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 the claim

of creditors, and shall not be liable to

attachment, levy, or seizure by or under any

legal or equitable process whatever, either before

or after receipt by the beneficiary.

Id. § 5301(a)(1); App. 32a. And, if this was not enough,

Congress has recently amended the VBA and this applicable

provision, to

Clarify that, in any case where a beneficiary

entitled to compensation, pension, or

dependency and indemnity compensation enters

into an agreement with another person under

which agreement such other person acquires for

consideration the right to receive such benefit by

payment of such compensation, pension or

dependency and indemnity compensation, as the

case may be. . . such agreement shall be deemed

to be an assignment and is prohibited.

Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 702, 117

Stat. 2651, Dec. 16, 2003, codified at § 5301(a)(3)(A); App.

33a.

Petitioner would thus submit that, in addition to the

issues raised under USFSPA, this case is an appropriate vehicle

23

for the Court to revisit the proper construction of the VBA. And

while the Florida Court of Appeal was clearly cognizant of the

VBA, see App. 4a-8a, it chose to ignore it in its ruling that no

federal statute prevents an allocation of veterans’ disability pay.

Petitioner is mindful that the VBA issue may well turn on this

Court’s earlier decisions in Rose, 481 U.S. at 630-33 (allowing

attachment of disability pay to satisfy child support obligations),

and Ridgway v. Ridgway, 454 U.S. 46 (1981) (rejecting state

court’s disposition of a veterans’ life insurance policy benefits

as either marital property or a constructive trust). And although

the logic of the Rose decision on the VBA’s antiattachment

clause drew but a bare majority of this Court’s members (with

O’Connor, Stevens and Scalia, JJ. writing or joining

concurrences), the holding was narrowly drafted to cover only

child support obligations, and appeared to specifically exclude

alimony or spousal support payments or any general attempt to

characterize veterans’ benefits as marital property divisible upon

divorce. See also Wissner v. Wissner, 338 U.S. 655 (1950)

(state community property law preempted by VBA anti-

attachment provision).

Petitioner would maintain before this Court that it would

stretch the VBA’s antiattachment provision too far to allow state

court modifications of divorce decrees by transferring disability

pay to former spouses. Given the wide array of veterans’

benefits (not just disability pay), and the broad range of

circumstances in which these can become encumbered with debt

or contractual obligations, this Court’s guidance may well be

necessary to avoid a wholesale erosion of veterans’ benefits

through a variety of attachment schemes. Just as Congress has

made clear in USFSPA that disability pay is not to be treated as

a form of retired pay subject to division with former spouses,

there is no indication that Congress intended that disability pay

be made available to satisfy the claims of former spouses in

24

divorce property settlements. Cf. Rose, 481 U.S. at 631 (‘state

contempt proceedings to enforce a valid child support order

coincide[s] with Cong iess’ intent to provide veterans’ disability

compensation for the benefit of both appellant and his

dependents.”). Indeed, if anything, Congress appears to be as

concerned as ever in strengthening the VBA’s antiattachment

provision to cover the circumstances raised in this case. See

Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 702, 117

Stat. 2651, Dec. 16, 2003, codified at § 5301(a)(3)(A); App.

33a.

c. This case presents an opportunity for the

Court to not only clarify the relevant standards of preemption

that apply where federal veterans’ benefits protections

apparently conflict with state divorce decrees, but also to

conclusively settle the effect of USFSPA and VBA where state

courts purport to award disability pay in the guise of enforcing

earlier divorce decrees granting portions of retired pay.

Additionally, this Court can delimit the precise scope of its

earlier rulings in McCarty and Mansell, and either announce to

state courts that they must faithfully adhere to them or are free

to continue experimenting in limiting and distinguishing those

holdings. Lastly, and not to be discounted, this Court would

have the opportunity to declare a coherent and consistent rule of

construction for USFSPA and VBA in cases involving the

disposition of disability pay, potentially affecting tens of

thousands of veterans and their former spouses attempting to

manage their respective financial affairs.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID J. BEDERMAN

Counsel of Record

1301 Clifton Road

Atlanta, Georgia 30322-2770

Attorney for Petitioner

February 2006

26

Appendix

la

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION ANCL. IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

KEVIN Y. PADOT,

Appellant,

v. Case No. 2D03-1011

2D03-3843

BRENDA G. PADOT,

Appellee. Consolidated

Opinion filed December 15, 2004.

Appeal from the Circuit Court for

Pinellas County; Walt Logan, Judge.

SILBERMAN, Judge.

In this consolidated appeal, Kevin Padot (the Former

Husband) challenges orders arising from postdissolution

enforcement proceedings regarding his military retirement pay

and a military survivor benefit plan. In case number 2D03-1011,

we affirm the "Order re Military Retirement" of November 12,

2002, except to the extent that it provides for an income

deduction order, and we vacate the clarification order of

February 19, 2003. In case number 2D02-3843, we reverse that

portion of the Order on Motion for Rehearing of July 24, 2003,

that required the Former Husband to cooperate with Brenda

2a

Padot (the Former Wife) to obtain and share the cost of a

replacement survivor benefit plan.

BACKGROUND

The parties were married in 1980, and a final judgment

of dissolution was entered on February 1, 1995. In the judgment,

the trial court reserved jurisdiction to determine, among other

things, issues of equitable distribution and alimony. On March

17, 1995, the trial court entered a Supplemental Order resolving

the remaining issues. The Supplemental Order indicates that the

parties agreed the Former Wife “shall be entitled to direct

payment of a percentage of the [Former Husband's] military

retirement or retainer pay" and that the parties agreed on a

formula to determine that percentage. The percentage was

subsequently computed to be 33.96%. The Supplemental Order

also provided, "Neither party shall take any action which shall

alter or otherwise reduce the interest of the other party in the

retainer pay, retired pay, deferred compensation, or other

military benefit." }

The Former Husband retired from active military duty on

May 1, 2000, and he received his first military retirement pay in

June of 2000. As part of the retirement process, he applied for

and was awarded veterans’ disability payments, with the

Veterans’ Administration (VA) determining that he was 30%

disabled. Under federal law, before the Former Husband could

receive the disability benefits, he was required to waive an equal

amount of his military retirement pay. See Mansell v. Mansell,

490 U.S. 581, 583 (1989). A waiver of retirement pay for

disability benefits is common because disability benefits are

nontaxable. Id. at 583-84. The Former Husband's waiver went

through in December of 2000. In April of 2001, the Former

Husband became employed by the federal government in a

3a

civilian capacity as an air traffic controller, a position he had

held while in the military.

FORMER HUSBAND'S WAIVER OF

MILITARY RETIREMENT BENEFITS

_InJuly 2002, the Former Wife filed a Motion to Enforce

Final Judgment/Supplemental Order. She contended that the

Former Husband's waiver of a portion of his military retirement

pay in exchange for disability benefits operated to reduce her

share of the military retirement pay, in violation of her rights

under prior court orders. Additionally, she claimed that the

Former Husband improperly sought to reduce a military

survivor benefit plan and that the Former Husband should be

required to maintain that plan for the benefit of the parties’

minor child.

In the Order re Military Retirement entered on

November 12, 2002, the trial court determined that the Former

Husband's voluntary election to reduce his retirement pay in

exchange for disability benefits worked to his benefit, at the

expense of the Former Wife. The trial court concluded that the

impact of the election violated the provision contained in the

1995 Supplemental Order that prohibited the parties from taking

any action to alter or reduce the other party's interest in retainer

pay, retired pay, deferred compensation, or other military

benefit. The trial court found that the situation was inequitable

and that, under Abernethy v. Fishkin, 699 So. 2d 235 (Fla.

1997), it had the ability to enforce the Supplemental Order "so

long as no funds from the disability poo] are drawn upon to

fulfill the obligations” the Former Husband owed to the Former

Wife. Because the Former Husband had income from his work

as an air traffic controller, the trial court concluded that the

4a

Former Husband would be required to make payments to the

Former Wife to fulfill the obligations of the Supplemental

Order. The court ordered that payments due to the Former Wife

“be computed by applying the percentage of 33.96% to the

amount that the former spouse's military retirement would have

been absent his voluntary reduction of those retirement dollars

in favor of disability payments.”

The Former Husband, relying on Mansell, contends that

principles of federal preemption prohibit the result ordered by

the trial court. As noted in Mansell, at the time of the divorce

Major Mansell was already retired and receiving Air Force

retirement pay and disability benefits. He obtained the disability

benefits by waiving a portion of his retirement pay. The parties’

property setilement agreement provided that "Major Mansell

would pay Mrs. Mansell 50 percent of his total military

retirement pay, including that portion of retirement pay waived

so that Major Mansell could receive disability bencfits.” 490

US. at 586. The state divorce court had ordered Major Mansell

to pay a portion of his disability benefits directly to Mrs.

Mansell, in accordance with the agreement.

The Supreme Court noted that the Uniformed Services

Former Spouses’ Protection Act, 10 U.S.C. § 1408, provides that

"disposable retired or retainer pay” is property subject to

division by state courts in divorce proceedings. Id. at 584.' The

Court explained:

" Disposable retired or retainer pay'" is defined

' Since Mansell, 10 U.S.C. § 1408 has been amended to refer

to "disposable retired pay,” and retired pay is defined to include

retainer pay; however, the amendment does not affect the result here.

See 10 U.S.C. § 1408(a)(4), (a)(7) (1994); Abernethy v. Fishkin, 699

So. 2d 235, 237 n.1 (Fla. 1997).

Sa

as "the total monthly retired or retainer pay to

which a military member is entitled," minus

certain deductions. § 1408(a)(4) (1982 ed. and

Supp. V). Among the amounts required to be

deducted from total pay are any amounts waived

in order to receive disability benefits. §

1408(a)(4)(B).

Id. at 584-85. The Supreme Court held "that the Former

Spouses’ Protection Act does not grant state courts the power to

treat as property divisible upon divorce military retirement pay

that has been waived to receive veterans’ disability benefits." Id.

at 594-95.

The situation in Mansell, however, is materially

distinguishable from the circumstances of the present case.

Here, the Former Husband was still in the military at the time of

the divorce, and the parties agreed to a formula to determine the

percentage of the Former Husband's "military retirement or

retainer pay" to which the Former Wife was entitled. The

divorce court ordered that neither party shall take any action to

reduce the other party's interest in the retainer or retired pay, and

the court retained jurisdiction to enforce the Former Wife's

rights to her share of the benefits. The court denied "{a]]ll

requests for periodic and/or rehabilitative alimony" in this

_ fifteen-year marriage.

At the time of the enforcement proceedings, in addition

to receiving retainer pay and tax-free disability income, the

Former Husband was employed as a civilian air traffic

controller. The trial court noted that the disability pay is

shielded from the Former Wife, but the court found that the

Former Husband's civilian pay was a source of income that

would enable him to comply with the 1995 Supplemental Order.

The Order re Military Retirement specifically states, "Nothing

6a

in this Order should be read to require the former husband to

pay any portion of his disability retirement income from his

active military duty time over to the former wife." Rather, the

order contemplates payment from a portion of the remaining

military retirement benefits and the Former Husband's current

civilian income as an air traffic controller. Thus, the trial court's

order is distinguishable from the divorce court's order in

Mansell.

The Former Husband also contends that under Mansell

and 10 U.S.C. § 1408, the Florida Supreme Court wrongly

decided Abernethy. In Abernethy, the parties had entered into a

marital settlement agreement while the former husband, Richard

Abernethy, was still on active duty. Their agreement provided

that Monica Fishkin, the former wife, would receive 25% of

Abernethy's military retirement pay. The final judgment of

dissolution

entitled Fishkin to monthly payments comprised

of twenty-five percent of Abemethy's “net

disposable retired or retainer pay.” The final

judgment also prohibited Abernethy from

pursuing any course of action which would

defeat Fishkin's right to receive her allotted

portion of Abemethy's "full net disposable

retired or retainer pay” and required Abernethy

to indemnify Fishkin for any breach in this

regard.

Abernethy, 699 So. 2d at 237 (footnotes omitted). Months later,

Abernethy left the Air Force and began receiving military

separation benefits. After an enforcement proceeding, he was

ordered to pay Fishkin 25% of the separation benefits.

Subsequently, Abernethy waived portions of his separation

benefits in order to receive veterans’ disability benefits. A

Ta

second enforcement proceeding ensued.

The supreme court in Abernethy determined that federal

law preempted the division of veterans’ disability benefits either

by court order or settlement agreement. Id. at 239. However, the

court determined that Fishkin was "entitled to receive payments

equal to the amount she was receiving before Abernethy elected

veterans’ disability benefits." Id. The court reasoned that, unlike

in Mansell, there was no express provision for the division of

disability benefits in the final judgment or settlement agreement.

Also, an indemnification provision in the settlement agreement

“clearly indicated the parties’ intent to maintain level monthly

payments pursuant to their property settlement agreement.” Id.

at 240. The indemnification provision prohibited Abernethy

from "pursuing any course of action which would defeat

Fishkin's right to receive a portion of his ‘full net disposable

retired or retainer pay’ " and required Abernethy to indemnify

Fishkin in that event. Id. Because Abernethy could use other

available assets to pay Fishkin rather than disability payments,

the court held that the final judgment did not contravene

Mansell. Id.

, The Former Husband contends that apart from being

wrongly decided, Abernethy is distinguishable because here the

Former Husband retired and, at the same time, waived a portion

of the retirement benefits in favor of disability benefits. Thus, he

argues that the Former Wife never received a steady stream of

payments that was later reduced by the waiver. He further

argues that the 1995 Supplemental Order did not have an

indemnification provision. The Former Husband concludes that

the Former Wife is entitled only to 33.96% of his net retainer

pay at the time of his retirement.

The parties specifically agreed that the Former Wife was

entitled to 33.96% of the Former Husband's "military retirement

8a

or retainer pay,” and the Supplemental Order provides that

"[nJeither party shall take any action which shall alter or

otherwise reduce the interest of the other party in the retainer

pay, retired pay, deferred compensation, or other military

benefit.” Although the order does not specifically state that the

Former Husband must indemnify the Former Wife if he takes

action that reduces her interest, the order gives the court

continuing jurisdiction "to enforce the former spouse's rights to

her share of the above-described benefits.”

In Janovic v. Janovic, 814 So. 2d 1096, 1101 (Fla. Ist

DCA 2002), the First District stated that when a party merely

"seeks to receive what is contemplated by the property

settlement agreement incorporated into the final dissolution

judgment,” then “a trial court may order an equivalent benefit as

part of an enforcement action where one spouse takes a

voluntary action which defeats the intent of the parties." As in

the present case, Mr. Janovic was on active duty when the

consent final judgment of dissolution was entered. Less than a

year later he was discharged and waived part of his retirement

pay to receive disability benefits. The First District held that the

subsequent enforcement- order requiring Mr. Janovic to

indemnify his former wife for the reduction in benefits did not

violate Mansell. Id. at 1099. The court determined that the lack

of an indemnification provision in a settlement agreement is not

fatal. Id. at 1101.

We also note that in Johnson v. Johnson, 37 S.W.3d 892,

894 (Tenn. 2001), the Tennessee Supreme Court held as

follows:

[Wjhen an MDA _ [marital dissolution

agreement] divides military retirement benefits,

the non-military spouse obtains a vested intcrest

in his or her portion of those benefits as of the

9a

date of the court's decree. Any act of the military

spouse that unilaterally decreases the non-

military spouse's vested interest is an

impermissible modification of a division of

marital property and a violation of the final

decree of divorce incorporating the MDA.

There, the parties’ MDA provided that Ms. Johnson would

receive, upon retirement, 50% of Mr. Johnson's “military

retirement benefits," and after the court entered the final] decree,

Mr. Johnson waived part of his military retired pay to receive

veterans’ disability benefits, thereby reducing Ms. Johnson's

share. Id. at 893-94.

We agree with the reasoning in Janovic and Johnson and

conclude that the Former Wife obtained a vested interest in a

percentage of the Former Husband's military retirement or

retainer pay on March 17, 1995, when the trial court entered the

Supplemental Order. Thus, when years later the Former

Husband took the voluntary action of waiving retainer pay in

order to receive disability benefits, the Former Wife's vested

interest in his military retirement or retainer pay was reduced.

As a result, we find no error in the trial court's conclusion “that

equity requires that the former wife be made whole given the

totality of the situation concerning the husband's voluntary acts

and his ability to supplement and make whole the retirement

benefits contemplated in the Final Judgment in favor of the

former wife." Thus, we affirm on this issue.

We reject without discussion the Former Husband's

alternative argument that the trial court improperly granted the

Former Wife the right to share in the Former Husband's separate

property. However, the Former Husband also argues, and the

Former Wife properly concedes, that section 61.1301, Florida

Statutes (2002), does not permit the use of an income deduction

10a

order to effectuate an equitable distribution scheme. See Motil

v. Motil, 771 So. 2d 1251, 1251 (Fla. 20 DCA 2000). Rather,

section 61.1301 limits the use of income deduction orders to

payments for alimony or child support. Id. Accordingly, we

reverse that portion of the Order re Military Retirement that

provides for payment by income deduction order.

JURISDICTION TO ENTER CLARIFICATION

ORDER OF FEBRUARY 19, 2003

The trial court rendered its Order re Military Retirement

on November 12, 2002, and its order on rehearing on January

22, 2003. Although there was no motion for rehearing directed

to the trial court's order of January 22, 2003, the trial court held

a telephonic conference with the parties on February 12, 2003.’

The trial court then entered the clarification order of February

19, 2003, regarding the issue of "retroactivity." The Former

Husband argues that the trial court was without jurisdiction to

enter the clarification order. The Former Wife contends that the

trial court properly entered the clarification order pursuant to

Florida Rule of Civil Procedure 1.540(a).

Rule 1.540(a) allows the trial court to correct errors

"arising from oversight or omission . . . at any time on its own

initiative or on the motion of any party and after such notice, if

any, as the court orders.” In Bolton v. Bolton, 787 So. 2d 237,

238 (Fla. 2d DCA 2001), this court stated as follows:

A trial court may correct a clerical error “at any

time on its own initiative” pursuant to Florida

? Our record does not indicate who initiated the telephonic

conference.

lla

Rule of Civil Procedure 1.540(a), but judicial

errors, which include errors that affect the

substance of a judgment, must be corrected

within ten days after entry of the judgment

pursuant to Florida Rule of Civil Procedure

1.530, or by appellate review. |

See also Commonwealth Land Title Ins. Co. v. Freeman, 29 Fla.

L. Weekly D1704 (Fla. 2d DCA July 23, 2004). In Malone v.

Percival, 875 So. 2d 1286 (Fla. 2d DCA 2004), this court held

that an addendum to a final judgment of dissolution, which

purported to correct scrivener’s errors, constituted an

unauthorized amendment of the judgment. The addendum made

several changes to the final judgment, including an extension of

the time period during which child support would be paid. We

concluded that the addition of the provision that extended the

child support period was a substantive, not clerical, change that

was not authorized by rule 1.540(a). Id. at 1288.

Here, the Order re Military Retirement provided that "all

sums due and owing to the former wife are retroactive to the

date of the former husband's retirement from active military

service.” The order on rehearing stated that the retroactive date

was "the date of the former husband's re-employment as an air

traffic controller,” and it did not provide for any payments from

the time of the Former Husband's retirement until he became

employed as an air traffic controller. The clarification order

provided for retroactive payments of 33.96% of the Former

Husband's retirement pay from May 2000 (when he retired from

the military) through November 2000 and to 33.96% of the

retirement pay less the amount of the VA waiver for December

of 2000 through March of 2001. The order also provided for

retroactive payments without a reduction for the amount of the

VA waiver beginning in Apnl of 2001, when the Former

Husband became employed as an air traffic controller.

12a

We conclude that the clarification order, by changing the

period of retroactivity, changed the substance of the prior order

on rehearing. The trial court did not make the change pursuant

to the procedures of rule 1.530 or rule 1.540, and the change

was not an otherwise authorized clerical correction under rule

1.540. Thus, we vacate the clarification order of February 19,

2003.

SURVIVOR BENEFIT PLAN

The Former Husband's survivor benefit plan (SBP) is a

military annuity that provides the beneficiary a percentage of the

deceased service member's retired pay. On May 12, 2003, the

Former Wife filed a motion to enforce the March 17, 1995,

supplementa! final judgment, alleging that the Former Husband

failed to protect her right to receive continuing payments from

the military, should the Former Husband predecease her, by

naming someone else (his current wife) as the SBP beneficiary.

In an order entered June 2, 2003, the trial court denied the

Former Wife's request to require the Former Husband "to name

her as the beneficiary of his Survivor Benefit Plan." On

rehearing, the trial court heard testimony from an expert in

military benefits regarding replacement coverage to protect the

Former Wife's military benefits should the Former Husband

predecease her. In the July 24, 2003, Order on Motion for

Rehearing, the trial court required the Former Husband to

cooperate with the Former Wife to obtain replacement SBP

coverage, with the Former Husband to pay 66.04% of the

premium and the Former Wife to pay 33.96% of the premium.

The Former Husband argues that the trial court erred in

construing the 1995 Supplemental Order as requiring the

Former Husband to elect the Former Wife as the SBP

beneficiary. The Former Wife relies upon Wise v. Wise, 765 So.

13a

2d 898 (Fla. 1st DCA 2000), and Johnson v. Pogue, 716 So. 2d

1123 (Miss. Ct. App. 1998), to support the trial court's decision.

In both Wise and Johnson, however, the final judgment

specifically required the former husband to elect the former wife

as beneficiary of the military SBP. The 1995 Supplemental

Order contains no such directive, and in fact, it does not

anywhere mention an SBP.

The Former Wife also argues that the trial court was

correct based on the language of the 1995 Supplemental Order

that “[nJeither party shal] take any action which shall alter or

otherwise reduce the interest of the other party in the retainer

pay, retired pay, deferred compensation, or other military

benefit.” Although the expert witness testified that the SBP is a

military benefit, nothing in the 1995 order gave the Former Wife

an interest in an SBP. Rather, the 1995 order gave the Former

Wife an interest in “military retirement or retainer pay.”

Therefore, nothing prevented the Former Husband from

changing his SBP. Accordingly, we reverse the July 24, 2003,

Order on Motion for Rehearing to the extent that it requires the

Former Husband to cooperate to obtain and pay for a portion of

the cost for replacement SBP coverage. Based on our

disposition of this issue, the Former Husband's other issues

concerning the SBP are moot.

CONCLUSION

In summary, we affirm the Order re Military Retirement

of November 12, 2002, except to the extent that it provides for

an income deduction order; we vacate the clarification order of

February 19, 2003; and we reverse that portion of the Order on

Motion for Rehearing of July 24, 2003, requiring that the

14a

Former Husband cooperate to obtain and pay for a portion of the

premium for a replacement SBP with the Former Wife as

beneficiary.

Affirmed in part, reversed in part, and vacated in part.

CASANUEVA and DAVIS, JJ., Concur.

1Sa

SUPREME COURT OF FLORIDA

MONDAY, OCTOBER 3, 2005

CASE NO.: SC05-386

Lower Tribunal Nos.: 2D03-3843, 2D03-1011

KEVIN Y. PADOT vs. BRENDA G. PADOT

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record deemed

necessary to reflect. jurisdiction under Article V, Section 3(b),

Florida Constitution, and the Court having determined that it

should decline to accept jurisdiction, it is ordered that the

petition for review is denied.

No motion for rehearing will be entertained by the Court.

See Fla. R. App. P. 9.330(d).

PARIENTE, C.J., and LEWIS, QUINCE, CANTERO and

BELL, JJ., concur.

A True Copy

Test:

/s/

Thomas D. Hall

Clerk, Supreme Court

[6a

IN THE CIRCUIT COURT FOR

PINELLAS COUNTY, FLORIDA

CASE NO. 00-1908FD-24

BRENDA G. PADOT,

Petitioner

VS.

KEVIN Y. PADOT,

Respondent

ORDER RE MILITARY RETIREMENT

The Court has for consideration the former wife's

Motion to Enforce Final Judgment filed July 9, 2002. The

former husband entered the military April 1980. The parties

were thereafter married September 6, 1980. The marriage was

dissolved by Final Judgment February 1, 1995. The former

husband left active military sen/ice In May 2000. The timeline

concerning the military service and the duration of the marriage

results in a question concerning the former husband's military

retirement.

_ This file came to the undersigned Court by way of a

Petition to Domesticate and Modify and Enforce a Judgment

entered in Dade County, State of Florida. The Final Judgment

had been entered in Dade County followed by a Supplemental

Final Judgment signed March 17, 199S by Circuit Judge DeDee

S. Costello.

The former husband was still on active duty when Judge

Costello entered the Supplemental Final Judgment. Judge

Costello provided at Page 6 in Paragraph (6) for the division of

17a

military benefits. The provision noted 163 months of active duty

during the marriage to be divided by the total number of months

of creditable service. The resulting fraction would be divided by

half to arrive at the former wife's percentage of interest in the

military retirement. This court has been requested to do the

mathematics and assign a percentage and accordingly has done

the math and finds the former wife's share in the former

husband's military retirement to be 33.96%.

Judge Costello further ordered In Paragraph (11) of the

Supplemental Judgment as follows:

“*.. (11) Reduction in Value: Neither party shall

take any action which shall alter or otherwise

reduce the interest of the other party In the

retainer pay, retired pay, deferred compensation,

or other military benefit... .”

The former husband has applied for and obtained disability

benefits. The receipt of the disability benefits are conditioned

upon the former husband relinquishing a portion of his normal

retirement pay. The process is described in Abernethy v. Fishkin,

699 So.2d 235 (Fla. 1997).

The testimony presented to the Court is that the former

husband was an air traffic controller while on active duty. After

retirement, the husband spent a time _ involuntarily

underemployed, however, the former husband is now employed

by the U.S. Government in a civilian capacity as an air traffic

controller, The former husband has as sources of income his

military retirement that is reduced by the disability payments,

the disability payments from the government relating to his

military service, and his pay as a civilian air traffic controlling

working for the United States Government.

The Court has reviewed case law including Abernethy,

supra, and Janovic v. Janovic, 814 So.2d 1096 (Fla. lst DCA

18a

2002) which cases address the situation where the former spouse

voluntarily elects to transfer part or the former spouse's

retirement pay to disability pay. The Court has also reviewed

Mansell v. Mansell, 490 U.S. 581 (U.S. 1989).

Further review of Judge Costello's March 17, 1995

Supplemental Judgment indicates a denial of alimony to the

former wife. Reasonable interpretation of the Supplemental

Judgment as a whole could lead a reasonable reviewer to the

conclus?on that the former wife's share of the military retirement

would stand in the place of alimony. Such appeared to be the

overall plan set forth in the Supplemental Final Judgment. That

plan seems to have been altered by the voluntary action of the

former husband which action seems contrary to the provision of

Paragraph (11) of the Supplemental Judgment cited above.

The net result that the parties find themselves in today is

that the former husband is retired from the military and drawing

more from his military service than he would have absent the

disability pay. The disability pay carries the advantage of being

non-taxable and therefore a dollar for dollar transfer from

regular retirement pay to disability inures to the definite benefit

of the retired military member/the former husband. Further,

under the umbrella of protection provided to the disability pay

by federal law, the former husband has further increased the

benefit of transferring funds from regular retirement to disability

by seeking to shield those funds from the former wife's share as

established in the Final Judgment. The net result is a substantial

increase derived by the former military member at the expense

of his former wife.

Were the facts to end there then perhaps the inequitable

nature of the result would be set in place, however, the former

husband who has been retired with disability as an air traffic

controller from active military duty is now doing the same work

19a

as an air traffic controller at the hire of the U.S. Government in

the capacity of a civilian. The pay from the now civilian air

traffic controller both inures to his benefit and also provides

funds that are not a part of his disability payments which funds

are available to supplement the former wife's loss as a result of

the former husband's voluntary reduction in retirement pay in

favor of disability pay.

The inequity of the present situation in favor of the

former husband is undeniable. The Florida Supreme Court has

analyzed the scenario set forth in the case at bar in Abernethy,

supra, and found that Trial Courts are not powerless to enforce

the original agreement so long as no funds from the disability

pool are drawn upon to fulfiil the obligations of the former

husband to the former wife.

The Court finds the equities of the situation to be with

the former wife and that the former husband is full well and able

to provide with the provision made in the Supplemental Final

Judgment by Judge Costello in March 1995.

Nothing in this Order should be read to require the

former husband to pay any portion of his disability retirement

income from his active military duty time over to the former

wife. The Court orders no portion of that poo] of funds in

whatever amount that pool may be from time to time to be

payable over to the former wife.

The Court finds that equity requires that the former wife

be made whole given the totality of the situation concerning the

husband's voluntary acts and his ability to supplement and make

whole the retirement benefits contemplated in the Final

Judgment in favor of the former wife.

Accordingly, the Court finds that the payments under the

Supplemental Final Judgment shall be computed by applying the

percentage of 33.96% to the ar.ount that the former spouse's

20a

military retirement would have been absent his voluntary

reduction of those retirement dollars in favor of disability

payments. That number shall establish the amount payable on a

monthly basis to the former wife by or on behalf of the former

husband.

The amount so calculated shall be payable by assignment

of the remaining military retirement benefits up to 50% of the

amount of the remaining military retirement benefit. The

remainder of the allocation due to the former wife shall be

payable by Income Deduction Order payable from the former

husband's civilian income as an air traffic controller.

Counsel are instructed to confer and apply the

appropriate amounts to the directives of this Order and submit

appropriate paperwork to the Court for entry.

The Court further finds that all sums due and owing to

the former wife are retroactive to the date of the former

husband's retirement from active military service. The amount

of retroactive payments due/the arrearages shall be payable in

equal installments over a two year period bearing the legal rate

of interest.

IT IS SO ORDERED in Chambers in St. Petersburg,

Pinellas County, Florida this 12" day of November, 2002.

_Ss/

WALT LOGAN, CIRCUIT JUDGE

2la

IN THE CIRCUIT COURT FOR

PINELLAS COUNTY, FLORIDA

REF: 00-001908FD-25

UCN: 522000DR001908XXFDFD

BRENDA G. PADOT,

Petitioner

vs.

KEVIN Y. PADOT,

Respondent.

ORDER ON MOTION FOR REHEARING

The Court heard argument on the Motion for Rehearing

filed on behalf of the Respondent/former husband. Argument

was presented to the Court on January 22, 2003 which

proceeding was recorded with a transcript available if ordered.

The Respondent/former husband argues through counsel

that the Court misapplied Federal law in holding that the former

husband must pay to the former wife an amount equal to the

amount of retirement the wife would have been entitled to had

the husband not voluntarily applied for disability pay thus

converting part of the retirement pay to disability pay. The Court

has reviewed the cases cited and has most particularly relied

upon Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997). The

Court has once again reread Abernethy, supra, and concludes

that the Motion for Rehearing is not well taken.

22a

Accordingly, the Motion for Rehearing concerning the

military pay question is DENIED.

Upon review of the Court's Order and considering the

facts of the case presented to date, the Court finds that one

modification is appropriate. In the Order of November 12, 2002

the Court found “...that all sums due and owing to the former

wife are retroactive to the date of the former husband's

retirement from. active, military service..." The Court has

reconsidered and finds that the retroactive amount is appropriate

from the date of the former husband's re-employment by the

Federal government as an air traffic controller at which time the

former husband became re-employed at a pay rate that would

provide sufficient funds to meet the requirements of the Court

Order. Accordingly, the retroactive date shall be the date of the

former husband's re-employment as an air traffic controller.

The former husband filed for rehearing/reconsideration

with regard to the bankruptcy issue that had been addressed in

this Court's Order on Pending Motions which Order was signed

December 12, 2002. The Court has considered the additional

argument on the question of dischargability of the attorney's fee

award to attorney James Obeso and finds that the Motion for

Reconsideration is not well taken. Accordingly, the Motion for

Reconsideration on the bankruptcy issued is DENIED.

Finally, the former husband moved for reconsideration

with regard to the life insurance issue. The Court considered

additional argument and finds that the Motion is not well taken.

The Court did advise the former husband that as an alternative

to providing insurance coverage the former husband may

provide documentary proof that in the event of his demise the

child support will be payable through income continuation plans

23a

or Social Security. The Court referred the parties to Browning

v. Browning, 784 So.2d 1145 (Fla. 2nd DCA 2001).

IT IS SO ORDERED in Chambers in St. Petersburg.

Pinellas County, Florida this 22” day of January, 2003.

_Ss/

WALT LOGAN, CIRCUIT JUDGE

24a

UNITED STATES CODE ANNOTATED

TITLE 10. ARMED FORCES

SUBTITLE A — GENERAL MILITARY LAW

PART II--PERSONNEL

CHAPTER 71--COMPUTATION OF RETIRED PAY

§ 1408. Payment of retired or retainer pay in compliance

with court orders.

(a) Definitions.--In this section:

(1) The term "coust" 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;

(C) any court of competent jurisdiction of a foreign country with

which the United States has an agreement requiring the United

States to honor any court order of such country; and

(D) any administrative or judicial tribunal of a State competent

to enter orders for support or maintenance (including a State

agency administering a program under a State plan approved

under part D of title [V of the Social Security Act), and, for

purposes of this subparagraph, the term “State” includes the

District of Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, and American Samoa.

(2) The term “court order” means a final decree of divorce,

dissolution, annulment, or legal separation issued by a court, or

25a

a court ordered, ratified, or approved property settlement

incident to such a decree (including a final decree modifying the

terms of a previously issued decree of divorce, dissolution,

annulment, or legal separation, or a court ordered, ratified, or

approved property settlement incident to such previously issued

decree), or a support order, as defined in section 453(p) of the

Social Security Act (42 U.S.C. 653(p)), which--

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

that court;

(B) provides for--

(i) payment of child support (as defined in section 459(1)(2) of

the Social Security Act (42 U.S.C. 659(i)(2)));

(ii) payment of alimony (as defined in section 459(i)(3) of the

Social Security Act (42 U.S.C. 659(i)(3)));_ 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

26a

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-marital or as a

result of a waiver of retired pay required by law in order to

receive compensation under title 5 or title 38;

(C) 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 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 12731 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.

* * * *

(c) Authority for court to treat retired pay as property of the

member and spouse.--(1) Subject to the limitations of this

section, a court may treat disposable retired pay payable to a

member for pay periods beginning after June 25, 1981, either as

property solely of the member or as property of the member and

his spouse in accordance with the law of the jurisdiction of such

27a

court. A court may not treat retired pay as property in any

proceeding to divide or partition any amount of retired pay of a

member as the property of the member and the member's spouse

or former spouse if a final decree of divorce, dissolution,

annulment, or legal separation (including a court ordered,

ratified, or approved property settlement incident to such

decree) affecting the member and the member's spouse or

former spouse (A) was issued before June 25, 1981, and (B) did

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) T' .s 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 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.

** * *

28a

(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 ttan one court order

which provide for payment to a spouse and one or more former

spouses or to more than one former spouse, the disposable

retired pay of the member shall be used to satisfy (subject to the

limitations of paragraph (1)) such court orders on a first-come,

first-served basis. Such court orders shall be satisfied (subject

to the limitations of paragraph (1)) out of that amount of

disposable retired pay which remains after the satisfaction of all

court orders which have been previously served.

(3){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 remairs 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

29a

available for payment of any conflicting court order based on

when such court order was effectively served and the limitations

of paragraph (1) and subparagraph (B) of paragraph (4); and

(iii) pay to that member the amount which is equal to the

amount of that member's disposable retired pay (less any

amount paid during such month pursuant to legal process served

under section 459 of the Social Security Act (42 U.S.C. 659)

and any amount paid during such month pursuant to court orders

effectively served under this section, other than such conflicting

court orders) minus--

(I) the amount of disposable retired pay paid under clause (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-served

basis. Such court orders and legal process shall be satisfied out

of moneys which are subject to such orders and legal process

and which remain available in accordance with the limitations

of paragraph (1) and subparagraph (B) of this paragraph during

such month after the satisfaction of all court orders or legal

30a

process which have been previously served.

(B) Notwithstanding any other provision of law, the total

amount of the disposable retired pay of a member payable by the

Secretary concerned under all court orders pursuant to this

section and all legal processes pursuant to section 459 of the

Social Security Act (42 U.S.C. 659) with respect to a member

may not exceed 65 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

3la

means available under law other than the means provided under

this section in any case in which the maximum amount

permitted under paragraph (1) has been paid and under section

459 of the Social Security Act (42 U.S.C. 659) in any case in

which the maximum amount permitted under subparagraph (B)

of paragraph (4) has been paid.

{Added Pub.L. 97-252, Title X, § 1002(a), Sept. 8, 1982, 96

Stat. 730, and amended Pub.L. 98-525, Title VI, § 643(a) to (d),

Oct. 19, 1984, 98 Stat. 2547; Pub.L. 99-661, Div. A, Title VI,

§ 644(a), Nov. 14, 1986, 100 Stat. 3887; Pub.L. 100-26, §§

3(3), 7(h)(1), Apr. 21, 1987, 101 Stat. 273, 282; Pub.L.

101-189, Div. A, Title VI, § 653(a)(5), Title XVI, § 1622(e)(6),

Nov. 29, 1989, 103 Stat. 1462, 1605; Pub.L. 101-510, Div. A,

Title V, § 555(a) to (d), (f), (g), Nov. 5, 1990, 104 Stat. 1569,

1570; Pub.L. 102-190, Div. A, Title X, § 1061(a)(7), Dec. 5,

1991, 105 Stat. 1472; Pub.L. 102-484, Div. A, Title VI, §

653(a), Oct. 23, 1992, 106 Stat. 2426; Pub.L. 103-160, Div. A,

Title V, § 555(a), (b), Title XI, § 1182(a)(2), Nov. 30, 1993, 107

Stat. 1666, 1771; Pub.L. 104-106, Div. A, Title XV, §

1501(c)\(16), Feb. 10, 1996, 110 Stat. 499; Pub.L. 104-193,

Title I, §§ 362(c), 363(c)(1) to (3), Aug. 22, 1996, 110 Stat.

2246, 2249; Pub.L. 104-201, Div. A, Title VI, § 636, Sept. 23,

1996, 110 Stat. 2579; Pub.L. 105-85, Div. A, Title X, §

1073(a)(24), (25), Nov. 18, 1997, 111 Stat. 1901; Pub.L.

107-107, Div. A, Title X, § 1048(c)(9), Dec. 28, 2001, 115 Stat.

1226.}

-32a

UNITED STATES CODE ANNOTATED

TITLE 38. VETERANS’ BENEFITS

PART IV--GENERAL ADMINISTRATIVE

PROVISIONS

CHAPTER 53--SPECIAL PROVISIONS RELATING TO

BENEFITS

§ 5301. Nonassignability and exempt status of benefits.

(a) (1) Payments of benefits due or to become due under any

law administered by the Secretary shall not be assignable except

to the extent specifically authorized by law, and such payments

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

taxation, shall be exempt from the claim of creditors, and shall

not be liable to attachment, levy, or seizure by or under any legal

or equitable process whatever, either before or after receipt by

the beneficiary. The preceding sentence shall not apply to claims

of the United States arising under such laws nor shall the

exemption therein contained as to taxation extend to any

property purchased in part or wholly out of such payments. The

provisions of this section shall not be construed to prohibit the

assignment of insurance otherwise authorized under chapter 19

of this title, or of servicemen's indemnity.

(2) 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 a 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

33a

an assignment and is prohibited.

(3) (A) This paragraph is intended to clarify that, in any case

where a beneficiary entitled to compensation, pension, or

dependency and indemnity compensation enters into an

agreement with another person under which agreement such

other person acquires for consideration the right to receive such

benefit by payment of such compensation, pension, or

dependency and indemnity compensation, as the case may be,

except as provided in subparagraph (B), and including deposit

into a joint account from which such other person may make

withdrawals, or otherwise, such agreement shall be deemed to

be an assignment and is prohibited.

(B) Notwithstanding subparagraph (A), nothing in this

paragraph is intended to prohibit a loan involving a beneficiary

under the terms of which the beneficiary may use the benefit to

repay such other person as long as each of the periodic payments

made to repay such other person is separately and voluntarily

executed by the beneficiary or is made by preauthorized

electronic funds transfer pursuant to the Electronic Funds

Transfers Act (15 U.S.C. 1693 et seq.).

(C) Any agreement or arrangement for co! lateral for security for

an agreement that is prohibited under subparagraph (A) is also

prohibited and is void from its inception.

(b) Yhis section shall prohibit the collection by setoff or

otherwise out of any benefits payable pursuant to any law

administered by the Secretary and relating to veterans, their

estates, or their dependents, of any claim of the United States or

any agency thereof against (1) any person other than the

indebted beneficiary or the beneficiary's estate; or (2) any

beneficiary or the beneficiary's estate except amounts due the

United States by such beneficiary or the beneficiary's estate by

reason of overpayments or illegal payments made under such

34a

laws to such beneficiary or the beneficiary's estate or to the

beneficiary's dependents as such. If the benefits referred to in

the preceding sentence are insurance payable by reason of yearly

renewable term insurance, United States Government life

insurance, or National Service Life Insurance issued by the

United States, the exemption provided in this section shall not

apply to indebtedness 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 loans, or interest on such premiums or loans, or

indebtedness arising from overpayments of dividends, refunds,

loans, or other insurance benefits.

(c)(1) Notwithstanding any other provision of this section, the

Secretary may, after receiving a request under paragraph (2) of

this subsection relating to a veteran, collect by offset of any

compensation or pension payable to the veteran under laws

administered by the Secretary the uncollected portion of the

amount of any indebtedness associated with the veteran's

participation in a plan prescribed in chapter 73 of title 10.

(2) If the Secretary concerned (as defined in section 101(5) of

title 37) has tried under section 371 1(a) of title 31 to collect an

amount described in paragraph (1) of this subsection in the case

of any veteran, has been unable to collect such amount, and has

determined that the uncollected portion of such amount is not

collectible from amounts payable by that Secretary to the

veteran or that the veteran is not receiving any payment from

that Secretary, that Secretary may request the Secretary to make

collections in the case of such veteran as authorized in

paragraph (1) of this subsection.

(3)(A) A collection authorized by paragraph (1) of this

subsection shall be conducted in accordance with the procedures

prescribed in section 3716 of title 31 for administrative offset

—_—— —

35a

collections made after attempts to collect claims under section

3711(a) of such title.

(B) For the purposes of subparagraph (A) of this paragraph, as

used in the second sentence of section 3716(a) of title 31--

(i) the term "records of the agency” shall be considered to refer

to the records of the department of the Secretary concerned; and

(ii) the term "agency" in clauses (3) and (4) shall be considered

to refer to such department.

(4) Funds collected under this subsection shall be credited to the

Department of Defense Military Retirement Fund under chapter

74 of title 10 or to the Retired Pay Account of the Coast Guard,

as appropriate.

(d) Notwithstanding subsection (a) of this section, payments of

benefits under laws administered by the Secretary shall not be

exempt from levy under subchapter D of chapter 64 of the

Internal Revenue Code of 1986 (26 U.S.C. 6331 et seq.).

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

(1) has been determined to be eligible to receive pension or

compensation under laws administered by the Secretary but for

the receipt by such person of pay pursuant to any provision of

law providing retired or retirement pay to members or former

members of the Armed Forces or commissioned officers of the

National Oceanic and Atmospheric Administration or of the

Public Health Service; and

(2) files a waiver of such pay in accordance with section 5305

of this title in the amount of such pension or compensation

before the end of the one-year period beginning on the date such

person is notified by the Secretary of such person's eligibility for

such pension or compensation, the retired or retirement pay of

such person shall be exempt from taxation, as provided in

subsection (a) of this section, in an amount equal to the amount

36a

of pension or compensation which would have been paid to such

person but for the receipt by such person of such pay.

{Pub.L. 85-857, Sept. 2, 1958, 72 Stat. 1229, § 3101; Pub.L.

94-502, Title VII, § 701, Oct. 15, 1976, 90 Stat. 2405; Pub.L.

95-479, Title I, § 301, Oct. 18, 1978, 92 Stat. 1564; Pub.L.

97-295, § 4(74), Oct. 12, 1982, 96 Stat. 1310; Pub.L. 99-576,

Title V, § 504, Title VII, § 701(68), Oct. 28, 1986, 100 Stat.

3286, 3296; renumbered § 5301 and amended Pub.L. 102- 40,

Title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239;

Pub.L. 102-54, § 14(d)(2), June 13, 1991, 105 Stat. 285; Pub.L.

102-83, 4(a)(1), (2)(A)(vii), (b)(1), (2)(B), (4)(C), Aug. 6, 1991,

105 Stat. 403- 405; Pub.L. 102-86, Title V, § 505(a), Aug. 14,

1991, 102 Stat. 426; Pub.L. 101-189, Div. A, Title XIV, §

1404(b)(2), Nov. 29, 1989, 103 Stat. 1586; Pub.L. 102-25, Title

VI, § 705(c)(2), Apr. 6, 1991, 105 Stat. 120; renumbered and

amended Pub.L. 102-40, Title IV, § 402(b)(1), (d)(1), May 7,

1991, 105 Stat. 238, 239; Pub.L. 102-54, § 14(d)(2), June 13,

1991, 105 Stat. 285; Pub.L. 102-83, § 4(a)(1), (2)(A)(vii),

(b)(1), (4)(C), Aug. 6, 1991, 105 Stat. 403-405; Pub.L. 102-86,

Title V, § 505(a), Aug. 14, 1991, 102 Stat. 426; Pub. L. No.

108-183, § 702, Dec. 16, 2003. }