Burnell v Burnell
| Decision Date | 28 February 2012 |
| Docket Number | Docket No. PEN–11–222. |
| Citation | 40 A.3d 390,2012 ME 24 |
| Parties | Franklin L. BURNELL Jr. v. Lynette D. BURNELL. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Jed J. French, Esq. (orally), and Maryellen Sullivan, Esq., Freeport, on the briefs, for appellant Franklin L. Burnell, Jr.
Suzanne N. Russell, Esq. (orally), Vafiades, Brountas & Kominsky, LLP, Bangor, on the briefs, for appellee Lynette D. Burnell.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
[¶ 1] Franklin L. Burnell Jr. appeals from a judgment of the District Court (Bangor, Gunther, J.) granting Lynette Burnell's motion to modify the parties' 1989 divorce judgment. Franklin argues that the divorce judgment was unambiguous in awarding him his full military pension and that the court erred in determining otherwise and awarding a portion of his benefits to Lynette. We agree and vacate the judgment.
[¶ 2] Franklin and Lynette Burnell were divorced in an uncontested proceeding in 1989 after nineteen years of marriage. The divorce judgment ( Kravchuk, J.), which incorporated an agreement that Franklin's attorney drafted following mediation, allocated parental rights and responsibilities, provided for alimony and child support payments, and divided the parties' property, including awarding the marital real estate to Lynette and awarding to Franklin his savings account and employer-sponsored pension. The provision relevant to this appeal relates to Franklin's military retirement benefits and states: “The Court hereby awards to the husband his National Guard Pension Plan except that the wife shall be entitled to any rights that she has to said plan pursuant to Federal Law.”
[¶ 3] Franklin retired from the Air National Guard in 2002 after twenty-seven years of service, including four in active duty in the Air Force, and he began collecting his retirement benefits in 2006. When Lynette learned in 2009 that Franklin was collecting his military pension, she applied to the Defense Finance and Accounting Service (DFAS), the federal agency responsible for processing military retirement pay, for what she believed to be her share of benefits. DFAS denied her application, but sent a form that she and Franklin could complete to “clarify” the court order by agreeing to a specific amount or percentage of benefits to be paid to Lynette.
[¶ 4] After contacting Franklin but failing to receive a response from him regarding the DFAS form, Lynette filed a motion to modify the divorce judgment in January 2010, requesting that the court specify the amount of Franklin's pension to which she was entitled, determine that the amount was retroactive to 2002, and order Franklin to pay that amount plus attorney fees. Lynette's subsequent motion to enforce the divorce judgment was denied and is not at issue on appeal.
[¶ 5] After a March 2011 hearing, the court ( Gunther, J.) granted Lynette's motion to modify, concluding that the provision of the divorce judgment regarding Franklin's military pension was ambiguous. The court found that the judgment intended to award Lynette her “full share” of the marital interest in Franklin's military benefits. Accordingly, after calculating that approximately eleven of Franklin's twenty-seven years of service occurred during the marriage, the court concluded that Lynette was entitled to 11/54 of Franklin's prospective benefits (one half of 11/27), and amended the judgment to read: “The Court hereby awards Franklin Burnell his Military Pension Plan except that Lynette Burnell shall be entitled to 11/54 of the monthly net pay payable to him, effective April 1, 2011.” This appeal followed.
[¶ 6] Franklin contends that the divorce judgment unambiguously awarded him his full military pension and that the court erred by concluding otherwise and granting Lynette's motion to modify the judgment. He argues that the language reserving Lynette's federal rights to the pension was provisional, requiring an inquiry into Lynette's rights pursuant to federal law, but nothing more. We therefore begin by reviewing the language of the divorce judgment in the context of the applicable federal law. “We review de novo whether a provision in a divorce judgment is reasonably susceptible to different interpretations and therefore ambiguous.” Ramsdell v. Worden, 2011 ME 55, ¶ 17, 17 A.3d 1224.
[¶ 7] The contested provision of the divorce judgment states: “The Court hereby awards to the husband his National Guard Pension Plan except that the wife shall be entitled to any rights that she has to said plan pursuant to Federal Law.” In finding this provision to be ambiguous, the court stated:
Under the military retirement statute ... the wife of a service member acquires no personal “rights” in the military pension. The only interest a spouse accrues is the undivided marital interest.... “Rights” as used in the judgment must mean something other than direct entitlement. The only rights the judgment could be referencing are the undivided property rights.
The court is correct that a former spouse has no right pursuant to federal law to a share of a service member's pension. However, the distinction drawn by the court between “rights” and “marital interest” is misplaced. Whether construed as an “interest” in marital property or as a “right,” federal law grants neither to the spouse of a service member. See Stern v. Marshall, 564 U.S. ––––, 131 S.Ct. 2594, 2616, 180 L.Ed.2d 475 (2011) .
[¶ 8] The federal law governing distribution of a service member's pension in state court divorce proceedings is the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C.S. § 1408 (LexisNexis 2011).1 See Gillis v. Gillis, 2011 ME 45, ¶ 10, 15 A.3d 720. The USFSPA authorizes, but does not require, a state court to “treat disposable retired pay payable to a member ... 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.” 10 U.S.C.S. § 1408(c)(1). The statute provides:
After effective service ... of a court order ..., with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments ..., with respect to a division of property, in the amount of disposable retired pay specifically provided for in the court order.Id. § 1408(d)(1) (emphasis added).
[¶ 9] The statute also expressly defines “court order” to mean “a final decree of divorce ... which ... 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.” Id. § 1408(a)(2)(C) (emphasis added). Finally, the statute notes that it “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.” Id. § 1408(c)(2).
[¶ 10] The federal statute is thus clear in its scope: it permits state courts to divide military pensions according to state law and provides a mechanism through which such awards to spouses may be enforced. See Mansell v. Mansell, 490 U.S. 581, 584–85 & n. 2, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). However, the statute applies only when the court order expressly makes such an award as a specific amount or percentage of benefits and does not itself grant a former spouse any independent right to the benefits.2 See Koszegi v. Erickson, 2004 ME 113, ¶ 20, 855 A.2d 1168 (); see also Stotler v. Wood, 687 A.2d 636, 637 n. 2 (Me.1996) ().
[¶ 11] The only right or interest a spouse accrues in a service member's pension is therefore solely a result of state law. See Stern, 564 U.S. ––––, 131 S.Ct. at 2616. The “undivided marital interest” referenced by the court is not an interest created by federal law, but rather a property interest that accrues during marriage pursuant to Maine's property distribution statute, 19–A M.R.S. § 953 (2011). Section 953 allows for the portion of a military pension earned during marriage to be considered marital property subject to equitable distribution. See Black v. Black, 2004 ME 21, ¶ 10 n. 4, 842 A.2d 1280; see also Stotler, 687 A.2d at 638 (). Maine law does not require that a divorce court divide marital property equally, only that the overall property division be just. Doucette v. Washburn, 2001 ME 38, ¶ 24, 766 A.2d 578 ( section 953); Robinson v. Robinson, 554 A.2d 1173, 1176 (Me.1989) ( section 722–A).
[¶ 12] Here, the divorce judgment expressly “awards to [Franklin] his National Guard Pension Plan.” It makes no affirmative award to Lynette in the form of a specific amount or percentage of Franklin's benefits. Although the divorce judgment might have divided Franklin's military benefits and awarded a share to Lynette pursuant to state property division law, it did not. By reserving for Lynette only those “rights” she had pursuant to federal law, the clear import of the divorce judgment is that its affirmative award of the military pension to Franklin constituted the application of state equitable distribution law.
[¶ 13] The context of the judgment further supports this interpretation. See Ramsdell, 2011 ME 55, ¶ 18, 17...
To continue reading
Request your trial
-
Curtis v. Medeiros, Docket: Pen–15–618
...not, under the guise of a clarification order, make a material change that modifies the provisions of the original judgment." Burnell v. Burnell , 2012 ME 24, ¶ 15, 40 A.3d 390 (quotation marks omitted). If the divorce judgment is ambiguous, however, the court has the inherent authority to ......
-
Deutsche Bank Nat'l Trust Co. v. Wilk
...and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.”). 4.See, e.g., Burnell v. Burnell, 2012 ME 24, ¶ 13 n. 4, 40 A.3d 390 (a judge's handwritten notes); In re Pike Family Trusts, 2012 ME 8, ¶ 2 n. 2, 38 A.3d 329 (a will that was ......
-
Voter v. Voter
...a de novo determination that centers on whether the language at issue is “reasonably susceptible to different interpretations.” Burnell v. Burnell, 2012 ME 24, ¶ 6, 40 A.3d 390 (quotation marks omitted). If the judgment is ambiguous, then “the court has the inherent and continuing authority......
- Anthem Health Plans of Maine, Inc. v. Superintendent of Ins.