Casey v. Casey

• Decision Date: 07 June 2011
• Docket Number: No. 10–P–643.,10–P–643.
• Citation: 948 N.E.2d 892,79 Mass.App.Ct. 623
• Parties: Deanne E. CASEYv.Michael S. CASEY.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 623

948 N.E.2d 892

Deanne E. CASEY

v.Michael S. CASEY.

No. 10–P–643.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 4, 2010.Decided June 7, 2011.

Jacqueline Y. Parker for Deanne E. Casey.Joyce G. Perocchi, North Andover, for Michael S. Casey.Present: COHEN, MILLS, & HANLON, JJ.HANLON, J.

The primary issue before us is whether, on the facts of this case, the husband's military retirement pay should have been treated as a marital asset subject to division. The wife appeals from a February, 2009, judgment of divorce, arguing that the judge erred in treating the husband's military pension as income, and that the judge's findings of fact related to property division and child support were not supported by the evidence. We affirm in part and reverse in part, remanding for further proceedings in the Probate and Family Court.

Facts.¹ The judge characterized this as a long-term marriage; the parties were married in Hawaii in August, 1990, and last lived together in Florida in January, 2007. They have one daughter, who was born in July, 1993. At the time of the trial in 2009, the husband was fifty-one and the wife was forty-five.

The husband enlisted in the United States Air Force Reserve Officers' Training Corps in 1978 and was commissioned as an officer in 1980. In 2000, after a lengthy career in the United States Air Force, flying fighter aircraft, he retired from military service with a rank of lieutenant colonel. He is currently employed full time as a defense contractor. Because of the husband's career, the family moved four times in ten years, with posts in the United States and Europe, including time in Germany, where the husband served on the staff of the North Atlantic Treaty Organization at Ramstein Air Base. During the summer of 2006, the parties moved from Massachusetts to the marital home in Niceville, Florida.

Throughout the marriage, the parties enjoyed a middle-class lifestyle. The wife has a bachelor's degree in nursing and has taken some courses toward a master's degree. During the marriage, she served as the primary caregiver for the daughter and the primary homemaker. Although the husband traveled extensively for work,² he did contribute to the “maintenance and operation of the household” when he was home and also handled all of the parties' finances.

The judge found that the parties' daughter, who was fifteen at the time of the trial, was in good health and had a loving relationship with both parents. ³ At the time of the trial, she resided with her mother in Massachusetts, attending high school, but she communicated with her father “via email, telephone and a web camera.”

The wife worked full-time before the daughter was born and part time at other points in the marriage, but she did not work while the parties lived abroad in Germany and England. The husband worked full-time throughout the marriage and deposited his income in the parties' joint bank account. The judge found that “both parties made monetary contributions to the family unit throughout the marriage.” The parties did not accrue substantial debt during the marriage and had limited liabilities after the divorce.

The parties' primary asset, other than the husband's military pension, was the marital home in Niceville, Florida, which they purchased in July, 2006, for $615,000. At the time of the divorce, the husband was living in the home, ⁴ while the wife and daughter were living in a rented two-bedroom townhouse in a Massachusetts suburb. The parties agreed as to the division of the proceeds from the sale of the marital home,⁵ and the rest of their financial holdings, apart from the husband's military pension, were divided equally by stipulation.⁶

At the time of trial, the wife was working twenty-eight hours per week as a nurse coordinator, and her net weekly income, not including the temporary child support order, was $695.07.⁷ “In light of Wife's age, the minor child's age, Wife's experience, field of expertise and credentials, as well as her current work schedule, ... [the judge found] that Wife is capable of working a 40–hour week as a nurse, and, as such, [found] her potential earning capacity to be” approximately $868 per week.

At the time of the trial, the husband was employed full time as a defense contractor; his net income was $2,496.72 per week, not including the deduction for temporary child support. His net income included $867 per week in military pension and $29 per week in veteran's disability pay. Although the husband travels extensively for work, and receives large reimbursement checks for lodging, flights, rental cars, and other travel expenses, along with a per diem allowance for food, the judge concluded that those payments should not be considered income.

Trial. After a two-day divorce trial, hearing evidence from the husband, the wife, and a certified public accountant, the judge found the contested issues to be the custody of the minor child, the characterization of the husband's military pension, alimony, and the sale of the marital home. As noted, the marital home has been sold and the proceeds divided; no appellate issues remain as to the sale. The custody judgment is also unchallenged.⁸ The most significant issue at trial was treatment of the husband's military pension, in pay status at the time of the divorce: the wife argued that the pension should be treated as a marital asset, subject to equitable distribution; the husband argued that it was a stream of income. Citing Andrews v. Andrews, 27 Mass.App.Ct. 759, 761, 543 N.E.2d 31 (1989), and the factors under G.L. c. 208, § 34, the judge concluded that it was more appropriate to treat the pension as income. He noted that treating the pension as a source of income entitled the wife to a greater child support award and could be taken into consideration should the wife seek a modification to provide alimony.⁹

After considering the Massachusetts Child Support Guidelines and the parties' incomes and expenses, the judge ordered the husband to pay $589 in weekly child support until the child's emancipation. With the child support order, the wife's net weekly income, as augmented by attributed income, increased to $1,457 and the husband's net weekly income decreased to $1,907.72.¹⁰

Discussion. 1. Military pension. At the heart of the parties' dispute is the question whether the husband's military pension should be treated as a stream of income or as a marital asset subject to equitable distribution. The stream of income would provide the wife with an interest subject to modification; the distribution of a marital asset would provide her with a fixed interest. See Andrews v. Andrews, 27 Mass.App.Ct. 759, 761, 543 N.E.2d 31 (1989). The judge treated the pension as a stream of income, and the husband argues that decision is a finding of fact that we must uphold unless clearly erroneous. Whelan v. Whelan, 74 Mass.App.Ct. 616, 619, 908 N.E.2d 858 (2009). “Although we will not substitute our judgment for that of the probate judge, we will ‘scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.’ ” Id. at 620, 908 N.E.2d 858, quoting from Kelley v. Kelley, 64 Mass.App.Ct. 733, 739, 835 N.E.2d 315 (2005).

a. Background. In McCarty v. McCarty, 453 U.S. 210, 224–227, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that Congress, when it provided for military retirement pay in 10 U.S.C. § 2771, specifically intended that the pay reach the former serviceman as a “personal entitlement.” Thus, “California's community property division of retired pay [was] simply inconsistent with this explicit expression of congressional intent.” Id. at 227, 101 S.Ct. 2728. The Court held that State courts, in dissolving marriages, could not award retirement pay to the retirees' former spouses, without explicit legislative correction from Congress. Id. at 232–236, 101 S.Ct. 2728.

Shortly afterwards, Congress responded with the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408 (1982). Section 1408 became effective in February, 1983, and applies to payments to military retirees after June 25, 1981, the day prior to the Supreme Court's decision in McCarty v. McCarty, supra.¹¹ Adkins v. Rumsfeld, 464 F.3d 456, 460–461 (4th Cir.2006), cert. denied sub nom. Adkins v. Gates, 551 U.S. 1130, 127 S.Ct. 2972, 168 L.Ed.2d 702 (2007).

The USFSPA “unambiguously leaves to the states the choice of whether to treat disposable retired pay earned for service during marriage as divisible property.” ¹² Id. at 461. After the enactment of § 1408, “[i]t appears that nearly every state has elected to treat military retired pay as divisible marital property. See generally State–by–State Analysis of Divisibility of Military Retired Pay, 2002 Army Law. 42.” Id. at 462.

b. Massachusetts law. The Massachusetts Child Support Guidelines specifically indicate that “veterans' benefits,” “military pay, allowances and allotments,” and “pensions” may be considered as income when calculating an award. Massachusetts Child Support Guidelines I–A(9), I–A(10), I–A(14) (2009). On the other hand, G.L. c. 208, § 34, amended by St.1990, c. 467, states, “In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage ... [including] ... military retirement benefits if qualified under and to the extent provided by federal law.”

We begin by observing that “[i]n our ever complex times, various assets, e.g., pensions, stock options, bonuses, and contingencies, are difficult to categorize and value. Each case, each asset, is different and a ‘one size fits all’ rule is both impractical and potentially unfair.” Brower v. Brower, 61 Mass.App.Ct....