Campbell v. Campbell

• Decision Date: 21 August 1985
• Docket Number: No. 17097-CA,17097-CA
• Citation: 474 So.2d 1339
• Parties: James Robert CAMPBELL, Plaintiff-Appellant, v. Esther Goldenna CAMPBELL, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1339

474 So.2d 1339

James Robert CAMPBELL, Plaintiff-Appellant, v. Esther Goldenna CAMPBELL, Defendant-Appellee.

No. 17097-CA.

Court of Appeal of Louisiana,

Second Circuit.

Aug. 21, 1985.

Rehearing Denied Sept. 20, 1985.

James J. Thornton, Jr. and David C. Turansky by David C. Turansky, Shreveport, for plaintiff-appellant.

Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for defendant-appellee.

Before JASPER E. JONES, FRED W. JONES, Jr., and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

Esther Goldenna Campbell sued her former husband, James Robert Campbell, for a partition of his military retirement benefits which were not divided in their community property settlement. The trial judge recognized Mrs. Campbell's community property interest in the retirement pay, including that portion of the benefits representing Veterans Administration disability pay received in lieu of retirement pay. Campbell appealed. We affirm for the following reasons.

The Campbells were married in Bossier City, Louisiana, on October 6, 1940. Campbell filed for legal separation September 1, 1959 and Mrs. Campbell reconvened on September 28, 1959. Judgment was rendered granting the reconventional demand and rejecting the main demand on October 29, 1959. Both parties concede that they were domiciliaries of Louisiana and established their matrimonial domicile in Louisiana for the duration of the marriage.

Mr. Campbell raises two issues on appeal: (1) whether the trial judge erred when he determined the termination of the community to be the date of the judgment of separation rather than the date of the original petition for separation; and (2) whether the trial judge erred in determining that Veterans disability benefits received in lieu of retirement pay are subject to Louisiana community property law.

Dissolution of the community upon separation is governed by Louisiana Civil Code Article 155, which has been amended numerous times. Act No. 304 of 1950 amended Article 155 to read:

Separation from bed and board carries with it separation of goods and effects. Upon reconciliation of the spouses, the community may be re-established by husband and wife jointly, as of the date of the filing of the suit for separation from bed and board, by an act before a notary and two witnesses, which act shall be recorded in the conveyance office of the parish where said parties are domiciled but which act shall be without prejudice to rights validly acquired in the interim.

Article 155 was next amended by Act No. 178 of 1962 to read:

The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the petition for same was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorneys' fees and costs incurred by the wife in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment. Upon reconciliation of the spouses, the community may be re-established by husband and wife jointly, as of the date of the filing of the suit for separation from bed and board, by an act before a notary and two witnesses, which act shall be recorded in the conveyance office of the parish where said parties are domiciled, but which act shall be without prejudice to rights validly acquired in the interim between rendition of the judgment and recordation of the act of reconciliation.

Comparison of the two acts reveals that the retroactivity provision of Article 155 was not in the law until the effective date of the 1962 legislative act (August 1, 1962). The 1962 amendment to Article 155 has been held to be nonretroactive. LaFleur v. Guillory, 181 So.2d 323 (La.App. 3d Cir.1965), writ denied 248 La. 1099, 184 So.2d 24. Therefore, the law applicable to the Campbells, who were separated in 1959, is Act No. 304 of 1950. Consequently, the date of termination of the community is the date of the judgment of separation, October 29, 1959. The trial judge was correct.

The trial judge, in an excellent written opinion, thoroughly discussed the second issue. We adopt his opinion as follows:

"Mr. Campbell testified that twenty-three years, seven months and four days was the total time he served in the military, prior to his retirement on June 30, 1963. In addition, Mr. Campbell's testimony, corroborated by Mrs. Campbell, indicates the active duty service credited toward retirement rights, during the existence of the community totaled seventeen years, three months and twenty-two days. During Mr. Campbell's military service he suffered a broken ankle from a motorcycle accident and also a heart attack.

"Limited evidence was introduced as to the nature of the retirement benefits Mr. Campbell is receiving. From the "Air Force Retiree Annuitant Account Statement" (Exhibit D-1), the Court outlines the following:

                Gross Pay:                                 $848.85
                Deductions
                  1. Veterans Administration     $487.00
                  2. Survivor Benefit Annuity      47.95
                     Program
                  3. Federal Income Tax            13.67
                     Withholding
                  4. Allotment for V.A. Life       23.80
                                                ---------
                     Insurance                  ($572.42)
                Net Pay:                                   $276.43
                                                           -------
                

"Mrs. Campbell urges that she is entitled to receive payments from this military benefit equal to: ' 1/2 of 21/24 of $848.85 or $373.50.' She bases this on her entitlement to one-half of the gross pay attributable to twenty-one years of service during the marriage.

"Mr. Campbell urges that Mrs. Campbell is entitled to: "36.5% of $276.43 or $100.89". He relies on her entitlement to one-half of the net pay attributable to slightly more than seventeen years of service during the marriage.

"Congress enacted 10 U.S.C. Sec. 1408 (effective February 1, 1983) in response to the Supreme Court decision McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which barred states from recognizing the community interest in nondisability, military retirement benefits.

"10 U.S.C. Sec. 1408(c)(1) provides that:

'Subject to the limitation of this section, a court may treat disposable retired or retainer 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.' Emphasis supplied.

"Pursuant to this statute, the Court may recognize the former wife's community interest in Mr. Campbell's 'disposable retired pay'. 10 U.S.C. Sec. 1408(a)(4)(A)-(F) defines 'disposable retired or retainer pay' as follows:

'... the total monthly retired or retainer pay to which a member is entitled (other than the retired pay of a member retired for disability under Chapter 61 of this title) less amounts which--

... (B) are required by law to be and are deducted from the retired or retainer pay of such member, including ... amounts waived in order to receive compensation under title 5 or title 38; (C) are properly withheld for Federal, State, or local income tax purposes ...; (E) are deducted as Government life insurance premiums ...; or (F) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse ...' Emphasis supplied.

In accord with this definition, this Court recognizes the former wife's interest in Mr. Campbell's net pay of $276.43. The deduction for the 'Veterans Administration' is excluded in subsection (B) since it is an amount waived in order to receive disability compensation under Title 38. The 'Survivor Benefit Annuity Program' deduction is excluded in subsection (F). The 'Federal Income Tax Withholding' deduction is excluded in subsection (C), and the 'Allotment for Veterans Administration Life Insurance' is excluded in subsection (E).

"Having recognized Mrs. Campbell's interest in the disposable portion of the retirement pay, pursuant to 10 U.S.C. Sec. 1408, the Court will now consider whether a community interest in the portion of the benefits received as Veterans Administration disability pay in lieu of retirement pay, pursuant to a waiver under Title 38, may be recognized. The Court finds the question to be res nova in our state and finds there to be a split of authority among other community property jurisdictions. See generally Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3rd 176, at 222 (1979).

"Under Louisiana law, absent federal preemption, military retirement pay is community property to the extent attributable to employment during the community. Rohring v. Rohring, 441 So.2d 485 (La.App. 2d Cir.1983); Sims v. Sims, 358 So.2d 919 (La.1978). Thus, the retirement benefits Mr. Campbell receives pursuant to Title 38 (also shown on Exhibit D-1 as the Veterans Administration deduction of $487.00) may be classified as community property and Mrs. Campbell's interest therein recognized if a federal statute does not preempt Louisiana's law. In other words, the benefits may be partitioned unless Congress has by direct enactment precluded Louisiana courts from applying community property rules.

"Failure to include the benefits within 10 U.S.C. Sec. 1408(c)(1) arguably leads to the conclusion that Congress' intent was to preclude states from recognizing a community interest in the payments. However, the statute does not specifically deal with the classification of disability military retirement benefits. The statute was Congressional response to McCarty, which dealt solely with nondisability military retirement benefits. See Evans v. Wells, 408 So.2d 5 (La.App. 3rd Cir.1981); Coates v. Coates, 650 S.W.2d 307 (Mo.App.1983). It allows recognition of a community interest in regular retirement pay, but...