Butcher v. Butcher, 16705

CourtSupreme Court of West Virginia
Citation178 W.Va. 33,357 S.E.2d 226
Decision Date02 April 1987
Docket NumberNo. 16705,16705
PartiesRobert H. BUTCHER v. Opal I. BUTCHER

1. Military nondisability retirement benefits as set out in 10 U.S.C. § 1408 are subject to alimony and child support payments under W.Va.Code, 48-2-15(j) (1984), and are marital property subject to division under our equitable distribution statute. W.Va.Code, 48-2-32(j) (1984).

2. Where an equitable distribution claim is made on a military retirement pension, courts have utilized their general law on equitable distribution of property, and have also applied what may be termed the "coverture factor" to determine the nonmilitary spouse's share. This factor is applied once the initial marital share is determined and consists of the ratio of the number of years the parties have been married while the service person has been in the military to the total number of years of military service.

3. Before an award of alimony or child support is made, a court should first determine the amount of marital assets and the division thereof between the parties. The reason for this rule is that in the division of marital property a spouse may receive income-producing property and this will have some bearing on the need for alimony or child support as stated in W.Va.Code, 48-2-16(b)(5) (1984).

4. "The concept of 'rehabilitative alimony' generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained." Syllabus Point 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

5. "There are three broad inquiries that need to be considered in regard to rehabilitative alimony: (1) whether in view of the length of the marriage and the age, health, and skills of the dependent spouse, it should be granted; (2) if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and (3) consideration should be given to continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony." Syllabus Point 3, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984).

6. Income produced from marital distribution property, although a factor to be considered in awarding alimony and child support under W.Va.Code, 48-2-16(b)(5) (1984), is not subject to be diminished even where a proper award of rehabilitative alimony is given. This is because it is a marital asset, that is to say a property interest which has accrued to the spouse during the marital relationship.

R. Mike Mullens, Elkins, for appellant.

John E. Busch, Elkins, for appellee.

MILLER, Justice:

The primary issue presented in this appeal is whether military nondisability retirement benefits can be considered for alimony and child support purposes and as marital property subject to equitable distribution in a divorce proceeding. A secondary issue involves whether the circuit court abused its discretion in awarding only temporary rehabilitative alimony. The circuit court concluded that military retirement benefits were exempt, and we find this to be error. The circuit court also erred in awarding only temporary rehabilitative alimony.

The procedural history of the case can be briefly summarized. On June 22, 1984, Robert H. Butcher filed a complaint in the Circuit Court of Randolph County seeking a divorce from Opal I. Butcher. The trial court granted a divorce on the grounds of irreconcilable differences in October, 1984. The parties were able to agree upon custody and child support and the division of the real and personal property accumulated during the marriage. They were unable to reach an agreement concerning an award of permanent alimony and the wife's entitlement to a portion of the husband's military pension benefits. These two issues were then presented for resolution to the circuit court.

The parties were married on May 4, 1954, and lived together as husband and wife until they separated on or about June 1, 1984. On November 4, 1953, six months prior to the marriage, the husband enlisted in the United States Air Force. He made a career of the military service and, upon his retirement with approximately twenty-eight years of service credit, he and his wife returned to their hometown of Elkins, West Virginia.

During their thirty years of marriage, the parties had three children, two of whom were adults at the time of the divorce. Mrs. Butcher had a high school education and had been primarily a housewife and mother. She was fifty years of age, had no vocational skills, and was employed part-time at a local motel as a cleaning lady. She also testified that during the early years of their marriage, her husband had not wanted her to work. After he retired from the Air Force, he also did not want her to work because the additional income would put them in a higher income tax bracket. She claimed entitlement to one-half of her husband's military pension benefits.

After the hearing, the trial court entered an order that confirmed the agreement of the parties, but denied the wife's claim for one-half of the military pension benefits as alimony and awarded temporary rehabilitative alimony at $300 a month for six months.

We granted the wife's appeal and, while it was pending, the trial court judge decided to reconsider his prior ruling and the parties filed a stipulation of facts. The husband stipulated that he receives military pension benefits of $1,262 per month and earns $800 per month from his present employment as a beer truck driver. He also stated that he did not complete high school. Mrs. Butcher stipulated that she earned approximately $200 per month.

By order entered in April, 1986, the trial court judge again ruled that the husband's military pension benefits were not subject to equitable distribution. The judge concluded that military retirement benefits payable to the husband were not pension benefits, but rather constituted a continuing salary payable for services rendered or to be furnished by the husband as a member

of the air force reserve, including possible active duty. 1


The law concerning whether military pensions are subject to state community property laws or equitable distribution statutes has undergone several changes in the last few years. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that the federal military retirement statutes precluded states from dividing military retirement pay pursuant to state community property laws under the doctrine of federal preemption. 2

In the wake of McCarty, Congress responded and enacted the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA), which is codified in 10 U.S.C. § 1408 (1984), and became effective on February 1, 1983. 3 The pertinent section of the legislation, 10 U.S.C. § 1408(c)(1) (1984), 4 brings military retirement benefits within the jurisdiction of a state court to be treated as an asset if state law so authorizes as the North Dakota Supreme Court acknowledged in Bullock v. Bullock, 354 N.W.2d 904, 907-08 (N.D.1984):

"Congress' intent in enacting subsection (c)(1) was to reverse the effect of the McCarty decision. H.R.Conf.Rep. No. 97-749, 97th Cong., 2d Sess. 165 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 1569, 1570.

" 'The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military As a result of the 1984 amendments to our domestic relations law, it is quite clear that our legislature was aware of the provisions of the FUSFSPA as specific reference is made to it in several of our Code sections. W.Va.Code, 48-2-15(j) (1984), indicates that military retirement pay can be utilized for alimony and child support. 5 In our equitable distribution statute, W.Va.Code, 48-2-32 (1984), which deals with the allocation of marital property and recognizes homemaker services, subsection (j) indicates that military retirement pay is available to be considered as a marital asset. 6

                retired or retainer pay should be divisible.  Nothing in this provision requires any division;  it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.  This power is returned to the courts retroactive to June 26, 1981.'   S.Rep. No. 97-502, 97th Cong., 2d Sess. 16 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 1596, 1611."

Even in jurisdictions where there is no specific reference to the FUSFSPA in the state's domestic relations statutes, courts have found military retirement benefits to be property subject to equitable distribution, alimony, and child support. E.g., In re Marriage of Campise, 115 Ill.App.3d 610, 71 Ill.Dec. 454, 450 N.E.2d 1333 (1983); Jones v. Jones, 680 S.W.2d 921 (Ky.1984); Anderson v. Anderson, 13 Ohio App.3d 194, 468 N.E.2d 784 (1984); Sawyer v. Sawyer, 1 Va.App. 75, 335 S.E.2d 277 (1985).

We reached a related result in Raley v. Raley, 175 W.Va. 694, 338 S.E.2d 171 (1985), where we decided in the absence of any specific statute that an employee's stock investment or thrift account which was held by his employer was subject to equitable distribution under LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983). This decision was made prior to the extensive 1984 amendments to W.Va.Code, 48-2-1, et seq., which created a broad statutory right to equitable distribution of marital property. 7


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