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Brown v. Brown

Alabama Court of Civil Appeals

March 30, 2018

Michael L. Brown
v.
Sinead M. Brown

          Appeal from Madison Circuit Court (DR-09-1610.01)

          THOMPSON, PRESIDING JUDGE

         Michael L. Brown ("the husband") appeals from a judgment of the Madison Circuit Court ("the trial court") ordering him to begin paying Sinead M. Brown ("the wife") 25% of his monthly military-retirement benefits. The trial court also ordered the husband to pay the wife $30, 084 for her share of his military-retirement benefits that had accrued but had not yet been paid.

         The record indicates the following relevant facts. On August 23, 2010, the trial court entered a judgment divorcing the parties. The divorce judgment incorporated an agreement that the parties had reached, which included the following provision.

"6. DIVISION OF MILITARY RETIREMENT (SURVIVOR BENEFIT PLAN).
"The parties agree that the Wife shall be and she is hereby awarded, as a property settlement, an amount equal to TWENTY FIVE PER CENT (25%) of the Husband's disposable retirement benefits from the United States Army, which sum shall constitute a property settlement to the Wife and shall not be modifiable in the future. The Wife shall receive 25% of the Husband's disposable retirement benefits without regard to any reductions or setoffs due to disability compensation or any other reason except the premium for the Survivor Benefit Plan. If the Husband shall do anything--actively or passively--to reduce the share of the amount of the Wife, then he shall indemnify and reimburse her for any such loss, including associated costs, expenses, and attorney fees. The wife shall be entitled to receive an amount equal to 25% of the monthly, and/or lump sum retirement benefits to be paid to the Husband by virtue of his active duty with and retirement from the United States Army, which shall be payable to the Wife directly from the United States Army. Said payments to the Wife shall begin within thirty (30) days of the Husband's retirement, and shall continue payable to the Wife until the death of the Husband, at which time the Survivor Benefit Plan Election shall be effective in favor of the Wife, as hereinafter provided. The Husband voluntarily agrees that he shall be and he hereby is divested of the 25% interest in said retirement benefits, which said 25% interest shall be and the same hereby vested in the Wife as a property settlement.
"....
"The Parties agree that the Wife qualifies for an award of said interest in accordance with the Uniformed Services Former Spouses' Protection Act, 10 U.S.C.A. § 1408 (West Supp. 1993). Her eligibility for direct payment of a portion of the Husband's disposable retired pay pursuant to a property division is based upon her marriage to the Husband for more than ten (10) years or more, during which the Husband performed ten (10) years or more creditable service. 32 C.F.R. § 63.6(a)(2)(1992). The Court, having jurisdiction over the Husband (other than because of military assignment in the territorial jurisdiction of the Court) by reason of his residence in Madison County, Alabama; further finds that the treatment of retired pay as property is in accordance with the laws of the State of Alabama.
"The parties acknowledge that the agreement of the Husband to divide his military retirement with the Wife and to make the election to participate in the Survivor Benefit Plan is being made pursuant to a voluntary written agreement, as a part of or incident to a proceeding of divorce, namely Sinead M. Brown vs. Michael L. Brown, Case Number DR-09-1610 in the Circuit Court of Madison County, Alabama; and further acknowledge that said agreement will be incorporated into, ratified, and approved by the Court in the [Judgment] of Divorce to be entered in said case."

         In 2006, before the divorce proceedings commenced, the husband was diagnosed with a brain tumor, which left him blind in his left eye. The husband remained on active duty with the United States Army. After the parties divorced, the husband was diagnosed with post-traumatic stress disorder and major depression disorder. On September 27, 2015, the Army convened an informal physical evaluation board ("the PEB"), which found that the husband was physically unfit to remain on active duty. The PEB recommended that the husband receive a disability rating of 70% and that he be placed on the temporary disability retired list ("the TDRL"). On January 18, 2016, the husband, having reached the rank of colonel and with 31 years of service, was separated from service and placed on the TDRL.

         The United States Department of Veterans Affairs ("the VA") found the husband to be 100% disabled. In a letter to the husband dated March 17, 2016, the VA notified him that he would receive monthly VA benefits of $3, 394.06 effective March 2016. The wife has not sought any portion of the husband's VA benefits in this action. The husband's retiree account statement from the Defense Finance and Accounting Service ("DFAS") indicated that he received gross retirement pay of $7, 521 each month. Pursuant to the terms of the 2010 divorce judgment, the wife applied to DFAS for payment of a portion of the husband's retirement pay pursuant to the Uniformed Services Former Spouses' Protection Act ("the USFSPA"), 10 U.S.C. § 1408. On February 11, 2016, she received a response from DFAS notifying her that the entire amount of the husband's retirement pay was based on disability and, therefore, there was no money available for payment to her under the USFSPA.

         The wife filed in the trial court a petition for a rule nisi on June 24, 2016. In her petition, the wife alleged that, since the entry of the divorce judgment in 2010, the husband had elected to receive disability pay only and that he had eliminated the receipt of any retirement benefits to which she would have been entitled pursuant to the parties' agreement. She added that DFAS had notified her that her application for a portion of the husband's retirement pay had been denied. The wife maintained that, pursuant to the divorce judgment, she was entitled to receive 25% of the husband's disposable retirement benefits "without regard to any reductions or setoffs due to disability compensation or any other reason except the premium for the Survivor Benefit Plan."

         On May 22, 2017, after the hearing on the wife's petition, the trial court entered a judgment in which it found, among other things not relevant to this appeal, that the wife was entitled to 25% of the husband's total gross pay of $7, 521 each month, i.e., the amount of the husband's gross monthly pay from DFAS, excluding the amount he received from the VA each month. The trial court calculated that the wife's share of the husband's monthly pay was $1, 880.25. The trial court stated that the amount could be paid to the wife directly by the husband or "by voluntary allotment." The trial court also ordered the husband to pay the wife $30, 084 for the portion of his military-retirement benefits the wife was owed from February 2016 until the date of the judgment. On June 15, 2017, the husband filed a timely motion to alter, amend, or vacate the judgment, which the trial court denied on June 20, 2017. The husband timely appealed from the judgment.

         The husband contends that the trial court's judgment awarding the wife 25% of his monthly gross pay from DFAS and ordering him to reimburse the wife $30, 084 violates federal law. Some background on the TDRL is helpful in disposing of this matter. A military member's placement on the TDRL is authorized by 10 U.S.C. § 1201, if it is determined that the military member might be permanently disabled and would be qualified for permanent retirement as a result of a disability. Swindle v. Swindle, 204 So.3d 430, 432 (Ala. Civ. App. 2016). This form of military retirement is commonly referred to as "Chapter 61" disability retirement. See Selitsch v. Selitsch, 492 S.W.3d 677, 684 (Tenn. Ct. App. 2015).

"[B]eing placed on the TDRL is materially different from a military spouse voluntarily choosing, after having agreed to divide all retirement benefits, to waive a portion of those benefits in order to receive VA disability benefits instead. Under TDRL statutes, a service member is 'placed on' the TDRL and is then subject to regular medical evaluations to determine whether TDRL status is still appropriate. See 10 U.S.C. §§ 1202, 1210. The service member does not voluntarily choose TDRL status. Additionally, TDRL benefits are addressed under a different section of the USFSPA than VA disability benefit waivers. See 10 U.S.C. § 1408(a)(4)(B) (addressing VA disability benefit waivers), (C) (addressing other disability retirement pay, including pay for service members on the TDRL)."

In re Marriage of Poland, 264 P.3d 647, 650 (Colo.App. 2011).

         At the time the husband was placed on the TDRL, military members who were placed on the TDRL could remain on the list for up to five years.[1] After five years on the TDRL, the member must then be either returned to active duty, if fit for service; permanently retired for longevity, if at least 20 years of service has been attained; or permanently retired for disability, if he or she is at least 30% disabled and the disability is permanent and stable. 10 U.S.C. § 1210(b)-(f); see also, e.g., Miller v. United States, 120 Fed.Cl. 772, 786 (2015); Thomas v. Piorkowski, 286 S.W.3d 662, 666-67 (Tex. App. 2009). While on the TDRL, military members must be medically evaluated every 18 months. 10 U.S.C. § 1210(a).

         Turning now to the husband's argument, the USFSPA allows state courts to treat a military member's "disposable retired pay" as marital property subject to division in a divorce proceeding. 10 U.S.C. § 1408(c)(1). However, the USFSPA excludes Chapter 61 benefits from the definition of "disposable retired pay." Specifically, the USFSPA provides:

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

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