Berberich v. Mattson, A16-1535

CourtCourt of Appeals of Minnesota
PartiesIn re the Marriage of: Diana Lynn Berberich f/k/a Diane Lynn Mattson, petitioner, Respondent, v. Mark Steven Mattson, Appellant.
Docket NumberA16-1535
Decision Date02 October 2017

In re the Marriage of:
Diana Lynn Berberich f/k/a Diane Lynn Mattson, petitioner, Respondent,
Mark Steven Mattson, Appellant.



October 2, 2017

Reversed and remanded
Jesson, Judge

Anoka County District Court
File No. 02-FA-14-2007

Jennifer R. Wellner, Wellner & Isaacson, PLLP, Circle Pines, Minnesota (for respondent)

Francis Herbert White III, Francis White Law, P.L.L.C., Woodbury, Minnesota (for appellant)

Margaret Erickson, Southern Minnesota Regional Legal Services, Worthington, Minnesota; and

Michael D. Dittberner, Linder, Dittberner & Bryant, Ltd., Edina, Minnesota; and

Mary Catherine Lauhead, Law Offices of Mary Catherine Lauhead, St. Paul, Minnesota; and

Johanna Clyborne, Brekke, Clyborne & Ribich, L.L.C., Shakopee, Minnesota (for amicus curiae Family Law and Military and Veterans Affairs Sections of the Minnesota State Bar Association)

Anne M. Honsa, Honsa & Associates, P.A., Minneapolis, Minnesota; and

David L. Olson, Edina, Minnesota (for amicus curiae The Minnesota Chapter of the American Academy of Matrimonial Lawyers)

Benjamin Lee Krause, Krause Law, PLLC, Woodbury, Minnesota; and

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Carson J. Tucker (pro hac vice), Law Offices of Carson J. Tucker, Ann Arbor, Michigan (for amicus curiae Operation Firing for Effect and Forgotten Warriors Project, Inc.)

Considered and decided by Jesson, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.


Federal law preempts state courts from dividing a veteran's military disability compensation as marital property and renders such property divisions unenforceable, even if agreed upon, overruling parts of Gatfield v. Gatfield, 682 N.W.2d 632 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).



Mark Mattson asserts that federal law renders unenforceable the district court's judgment directing him to pay Diana Berberich 40% of his military disability compensation. In light of the recent United States Supreme Court decision, Howell v. Howell, 137 S. Ct. 1400 (2017), we agree. Federal law preempts state courts from dividing a veteran's military disability compensation as marital property, even where, as here, the parties agreed to the division. As a result, we reverse and remand for entry of judgment reflecting the unenforceability of Mattson's obligation to pay military disability compensation to Berberich. In addition, because further findings are required on the issue of attorney fees, and because the appropriateness of any conduct-based attorney fees should be reconsidered in light of this opinion, we remand for further reconsideration of and findings on attorney fees.

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Appellant Mark Steven Mattson enlisted in the U.S. Navy in 1984 and, while serving, married respondent Diana Lynn Berberich in November 1992 in Virginia. Mattson retired from the military in 2004 and was granted a 70% disability rating for injuries suffered during active duty service.

Mattson and Berberich separated in June 2014, and the following October, she filed for divorce in Minnesota. The parties finalized their divorce in February 2015 via a stipulated decree approved by the district court. At that time, they had two adult children. Berberich had been a homemaker and care provider for the parties' children during the majority of the marriage. At the time of the divorce, Berberich was employed part-time. Mattson was receiving military retired pay as well as military disability compensation.1

Pursuant to the decree, the parties agreed that Berberich was in need of temporary and permanent spousal maintenance, but they agreed to reserve the issue of spousal maintenance based upon Berberich's receipt of a share of Mattson's disability compensation. Under the stipulated decree, Berberich was to receive 40% of Mattson's "gross monthly military retirement pay," as well as 40% of "the gross amount of" Mattson's military disability compensation. The decree also divided personal property, debts, various financial accounts, real property, and other assets.

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Following the divorce, Mattson made only sporadic payments on his obligations under the decree, resulting in substantial arrearages. In January 2016, Berberich attempted to enforce the terms of the decree. She sought the military retired pay and disability compensation owed under the decree, as well as other relief. Mattson opposed most of Berberich's requests.

On July 25, 2016, the district court filed an order directing Mattson to immediately pay to Berberich the military retired pay and disability compensation due and owing pursuant to the decree. The district court also granted other relief, including attorney fees. Mattson appeals.2


I. Did the district court err by enforcing a stipulated decree dividing as marital property Mattson's military disability compensation?

II. Are Mattson's challenges concerning health care coverage and the release of Veterans Affairs (VA) information moot?

III. Did the district court properly award attorney fees?

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I. The district court erred by enforcing that portion of the parties' stipulated decree dividing, as property, Mattson's disability compensation.

The primary issue before us is whether federal law preempts enforcement of the portion of the parties' decree that divides Mattson's disability compensation.

Historically, two important policy goals have dictated how military retirement benefits are divided in dissolution proceedings. Congress sought to protect veterans' benefits to ensure that they reach veterans, with the goal of incentivizing participation in the military and maintaining a strong national defense. See McCarty v. McCarty, 453 U.S. 210, 234, 101 S. Ct. 2728, 2742 (1981) (discussing federal interests in the area of military retired pay), superseded by statute, Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (1982), as recognized in Barker v. Kansas, 503 U.S. 594, 603, 112 S. Ct. 1619, 1625 (1992). Yet Congress also protected spouses of veterans by ensuring that they are compensated in divorce. See Mansell v. Mansell, 490 U.S. 581, 587-89, 109 S. Ct. 2023, 2028-29 (1989) (discussing Congress's intent to carve out a portion of veterans' retired pay for spouses). The federal statute straddling these divergent goals is the Uniformed Services Former Spouses' Protection Act, referred to hereafter as the Act.

Although state law historically controls domestic relations, Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct., 802, 808 (1979), the Act represents "one of those rare instances where Congress has directly and specifically legislated in the area of domestic relations." Mansell, 490 U.S. at 587, 109 S. Ct. at 2028. Thus, the Act raises the question of preemption. The preemption doctrine is rooted in the Supremacy Clause, which

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states that the laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." U.S. Const. art. VI, cl. 2. Congressional intent is the ultimate touchstone when determining if state action is preempted by federal law. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96, 112 S. Ct. 2374, 2381 (1992).

We review de novo whether a federal statute preempts state law. In re Estate of Barg, 752 N.W.2d 52, 63 (Minn. 2008). We begin by examining military retirement benefits and how preemption works to protect those benefits in divorce, and we then discuss the Act, which allows some retirement benefits to be treated as marital property. Next we turn to the caselaw—including our decision in Gatfield, 682 N.W.2d 632—interpreting the Act. Finally, we apply the law as most recently interpreted by the Supreme Court in Howell, 137 S. Ct. 1400, to the stipulated judgment dissolving the marriage of Mattson and Berberich.

Military benefits available to veterans and the Uniformed Services Former Spouses' Protection Act

Military personnel who serve for a set number of years may retire with pay. See, e.g., 10 U.S.C. §§ 6321-23 (2012) (Navy and Marine Corps officers). The amount of retired pay is determined by the number of years served and the rank at which the member retires. See 10 U.S.C. §§ 6325-27 (2012) (Navy and Marine Corps). Additionally, disability compensation is available to veterans who became disabled as a result of their military service. See 38 U.S.C. § 1110 (2012) (basic entitlement for injury during wartime). Generally, if a veteran is to receive disability compensation, to avoid double-

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dipping, he or she must waive a corresponding amount of retired pay. See 38 U.S.C. § 5305 (2012).

Congress passed the Act after the Supreme Court held that the federal laws then governing military retired pay preempted state courts from treating military retired pay as community property. McCarty, 453 U.S. at 210, 101 S. Ct. at 2730; see also Mansell, 490 U.S. at 581, 109 S. Ct. at 2024 (stating that the Act was a "direct response" to McCarty).3 In the Act, Congress effectively balanced the military objective of maintaining a national defense with the goal of fairly compensating military spouses in divorce. See Mansell, 490 U.S. at 594, 109 S. Ct. at 2031 (noting congressional intent to both "create new benefits for former spouses and to place limits on state courts designed to protect military retirees").

To achieve this balance, the Act carves out a portion of a veteran's retired pay that may be treated as marital property and is divisible between spouses in a dissolution. It specifically provides that state courts "may treat disposable retired pay" as marital property. 10 U.S.C. § 1408(c)(1) (2012). The term "disposable retired pay" includes gross retired pay minus certain deductions. See 10 U.S.C. § 1408(a)(4)(A) (Supp. 2017) (emphasis added).4

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But the Act does not specifically allow for the treatment of disability compensation as marital property. 10 U.S.C. § 1408(a)(4)(A). Moreover, it specifically excludes from marital property those amounts of retired pay that are waived in...

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