Longo v. Longo

• Decision Date: 20 June 2003
• Docket Number: No. S-02-394.,S-02-394.
• Parties: Gayliene Marie LONGO, appellee and cross-appellant, v. Dean Jay LONGO, appellant and cross-appellee.
• Court: Nebraska Supreme Court

663 N.W.2d 604

266 Neb. 171

Gayliene Marie LONGO, appellee and cross-appellant, v. Dean Jay LONGO, appellant and cross-appellee.

No. S-02-394.

Supreme Court of Nebraska.

June 20, 2003.

Carll J. Kretsinger, P.C., Bellevue, for appellant.

Eileen Reilly Buzzello and Brandie M. Fowler, of Holthaus Law Offices, Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Dean Jay Longo appeals from an order of the district court for Sarpy County dissolving his marriage to Gayliene Marie Longo. He contends that the court erred in awarding Gayliene (1) an interest in his future military pension benefits and (2) alimony of $1 per year modifiable only upon a potential reduction to his future military pension by a potential future disability offset. Gayliene cross-appeals, arguing that the award of alimony was inadequate and that the property division was inequitable.

I. FACTS

The parties married on August 15, 1991. At all times during the marriage, Dean was a commissioned officer on active duty in the U.S. Air Force. At the time of trial, he held the rank of lieutenant colonel and had served on active duty for 18 years. Dean testified that he could remain at his present rank until retirement. However, he had no guarantee of being permitted to continue his service as a commissioned officer, as his service was at the pleasure of the President of the United States.

Dean testified that neither he nor the U.S. government contributed on a monthly basis to a pension fund for his benefit. Instead, after 20 years of active duty, Dean will become eligible to apply for retirement status and receive a monetary pension if his application is approved. Dean understood that if he served 20 years and then retired, his pension would be calculated on the basis of a percentage of his salary at the highest rank achieved. Dean testified that it was his intention to eventually retire from the Air Force.

Gayliene resided in California at the time of trial. She was employed there as an assistant manager of a department store at a base salary of $1,200 per month, plus commissions. Gayliene was employed outside the home at various times during the marriage, but at other times, she stayed home with the parties' two minor children. It was difficult for her to obtain consistent employment due to the frequent moves necessitated by Dean's military career. Following dissolution of the marriage, Gayliene intended to return to school for 2 years and obtain her teaching credentials. She requested alimony of $1,000 a month for 5 years. She also requested a portion of Dean's future retirement, based on their 10 years of marriage during his military service.

On April 1, 2002, the district court entered a decree of dissolution. The court concluded that it had jurisdiction over the parties and awarded sole custody of the two minor children to Dean, with rights of visitation to Gayliene. Dean was awarded the marital home subject to its mortgages, for a net equity of approximately $10,000, and each party was awarded certain personal property. The marital debts were also divided.

With respect to Dean's military pension, the court found that the parties were married for 10 of the years that Dean had been on active military duty. The court determined that Dean would continue his military career until retirement and that there was a likelihood" that Dean would receive his pension. Therefore, "based upon the years of marriage [and] years overlapping in service," the court awarded Gayliene

$690.68 of [Dean's] net disposable non-disability military pension commencing on the first day of the first month during which [Dean] is entitled to receive and is in receipt of same; and, on the first day of each month thereafter for so long as [Dean] shall be entitled to receive such or until the death of [Gayliene], whichever event should occur first.

The court also awarded Gayliene alimony in the sum of $1 per year for life, "to be modifiable only upon [Gayliene's] portion of [the] military pension being reduced by a portion of said pension being received as disability." Dean filed this timely appeal, and Gayliene cross-appealed.

II. ASSIGNMENTS OF ERROR

Dean assigns, restated and summarized, that the trial court erred in (1) awarding Gayliene an interest in his future military retirement benefits and (2) awarding Gayliene alimony of $1 per year for life modifiable only upon a future reduction to the military pension by a disability offset.

On cross-appeal, Gayliene assigns, restated, that the trial court erred in (1) awarding only $1 per year in alimony, (2) tying the alimony award to the property division, and (3) making an inequitable property division.

III. STANDARD OF REVIEW

In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding division of property, alimony, and attorney fees. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002); Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002); Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).

Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Whipps Land & Cattle Co. v. Level 3 Communications, 265 Neb. 472, 658 N.W.2d 258 (2003); Hartman v. City of Grand Island, 265 Neb. 433, 657 N.W.2d 641 (2003).

IV. ANALYSIS

1. DIVISION OF FUTURE MILITARY PENSION BENEFITS

The primary issue on appeal is whether the district court was legally authorized to award Gayliene a portion of any military pension which Dean may receive in the future. Dean contends that this was impermissible because he was not receiving or eligible to receive such pension at the time of the decree and that thus there was no asset to be divided. He bases this argument on both federal and state law.

(a) Federal Law

Prior to 1981, division of military pensions in dissolution actions was governed exclusively by state law. In that year, however, the U.S. Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), in which it held that federal law precluded a state court from dividing military nondisability retired pay pursuant to state law. The Court reasoned that then-existing federal law clearly intended that all retirement benefits be enjoyed by only the service member. After reaching its conclusion and noting the harsh result such conclusion could impose, the Court noted that "Congress may well decide ... that more protection should be afforded a former spouse of a retired service member." 453 U.S. at 235-36, 101 S.Ct. 2728.

Congress responded by enacting the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1401 et seq. (2000). Initially, this legislation was viewed as a complete grant of authority to the states to divide military nondisability retirement pay pursuant to state law. See Bullock v. Bullock, 354 N.W.2d 904 (N.D. 1984) (citing cases). This interpretation, however, was limited by the U.S. Supreme Court in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). In that case, the Court addressed the issue of whether the USFSPA authorized state courts to treat military retirement pay waived by the retiree in order to receive veterans' disability benefits as property divisible upon divorce. Before directly addressing the issue, the Court found:

Because pre-existing federal law, as construed by this Court, completely pre-empted the application of state community property law to military retirement pay, Congress could overcome the McCarty decision only by enacting an affirmative grant of authority giving the States the power to treat military retirement pay as community property.

Mansell, 490 U.S. at 588, 109 S.Ct. 2023. In a footnote, the Court noted that it used the phrase "community property" only because the case at hand involved such law and that both its decision in Mansell and the USFSPA were equally applicable to equitable property division states. 490 U.S. at 584, n. 2, 109 S.Ct. 2023. Thus, according to Mansell, the USFSPA must affirmatively grant a state the power to divide a military pension, or the preemptive effects of McCarty remain applicable.

Dean's primary argument on appeal is largely based on Mansell. He argues that the current form of the USFSPA provides in relevant part:

Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

§ 1408(c)(1). Section 1408(a)(4) defines "disposable retired pay" to mean "the total monthly retired pay to which a member is entitled," less certain identified amounts. (Emphasis supplied.) Dean contends that because he has not yet served on active duty for 20 years, he is not presently "entitled" to a pension benefit, and that therefore the district court lacked the authority to divide his future military pension. He argues that McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), prohibited state courts from dividing any military pensions and that states now possess only that authority to divide pensions that is expressly granted to them by the subsequent enactment of the USFSPA.

In Mansell, supra, the U.S. Supreme Court acknowledged that "domestic relations are preeminently matters of state law" and that federal legislation is rarely intended "to displace state authority in this area." 490 U.S. at 587, 109 S.Ct. 2023. The Court noted its prior cases holding that federal preemption in this area would not be found in the absence of a...