Chisnell v. Chisnell

• Decision Date: 05 May 1986
• Docket Number: Docket No. 73430
• Citation: 385 N.W.2d 758,149 Mich.App. 224
• Parties: Beatrice M. CHISNELL, Plaintiff-Appellant, v. Robert Lloyd CHISNELL, Defendant-Appellee. 149 Mich.App. 224, 385 N.W.2d 758
• Court: Court of Appeal of Michigan — District of US

Page 758

385 N.W.2d 758

Beatrice M. CHISNELL, Plaintiff-Appellant, v.Robert Lloyd CHISNELL, Defendant-Appellee.

Docket No. 73430.

149 Mich.App. 224, 385 N.W.2d 758

Court of Appeals of Michigan.

Submitted Nov. 6, 1985.

Decided Feb. 18, 1986.

Released for Publication May 5, 1986.

[149 MICHAPP 226]McCallum & Bozimowski by Thomas J. McCallum, Fraser, for plaintiff-appellant.

Freeman, McKenzie, Matthews, Scherer & Stepek, P.C. by Gary E. Gendernalik, Mount Clemens, for defendant-appellee.

Before SHEPHERD, P.J., and J.H. GILLIS and CLULO^*, JJ.

SHEPHERD, Presiding Judge.

The present case has been before this Court on two previous occasions.The parties' 1977 divorce judgment provided plaintiff a share in defendant's military retirement pay.The judgment was affirmed by this Court, leave to appeal was denied by the Michigan Supreme Court, and certiorari was denied by the United States Supreme Court.Based on a subsequent decision by the [149 MICHAPP 227]United States Supreme Court, holding that military retirement pay was not a marital asset and could not be included in a property settlement, the trial court modified the divorce judgment some five years later to remove this provision.Plaintiff appeals by leave granted.

We reverse the trial court and hold that the award of military pension benefits to plaintiff must be reinstated in the divorce judgment.We also reverse the trial court insofar as it held that plaintiff may not garnish defendant's pension to satisfy her attorney fee awards.

The parties were divorced on April 21, 1977.The divorce judgment entered by Macomb County Circuit Court JudgeHunter D. Stair treated defendant's military pension as a marital asset and awarded plaintiff an interest in defendant's retirement benefits in the amount of $320 per month payable directly by defendant to plaintiff.The judgment further provided that the remaining property be equally divided and defendant was ordered to pay plaintiff's attorney $500.Defendant's later motion to amend the judgment was denied and the court awarded plaintiff additional attorney fees of $150.

Defendant then appealed to this Court, which upheld the award of defendant's military retirement pay, holding that the retirement pay was a marital asset subject to property division.Chisnell v. Chisnell, 82 Mich.App. 699, 267 N.W.2d 155(1978).The Michigan Supreme Court denied defendant's application for leave to appeal on November 29, 1978.403 Mich. 844(1978).The United States Supreme Court subsequently denied certiorari.442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310, reh. den.444 U.S. 887, 100 S.Ct. 187, 62 L.Ed.2d 121(1979).

While the case was pending before the United States Supreme Court, the trial court granted [149 MICHAPP 228]plaintiff an additional $3,000 in attorney fees.This Court affirmed the award of attorney fees but reversed in part another order, not pertinent to this appeal, which modified the property settlement.Chisnell v. Chisnell, 99 Mich.App. 311, 297 N.W.2d 909(1980).

Plaintiff then embarked on a series of attempts to collect the attorney fees owed by defendant.These included garnishment writs served upon the United States Army.Plaintiff states that no payment was ever made by the government pursuant to garnishment.Defendant hints that plaintiff received over $1,000 by this means.

On July 29, 1982, defendant again sought relief in the circuit court from the divorce judgment.Defendant relied on the July 26, 1981, United States Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589(1981), and its subsequent adoption by this Court in Grotelueschen v. Grotelueschen, 113 Mich.App. 395, 318 N.W.2d 227(1982), lv. den.417 Mich. 940(1983), which held that nondisability military retirement pay could not be distributed as a marital asset.

In an opinion dated November 3, 1982, Macomb County Circuit Court Judge Roskopp determined that McCarty should apply retroactively to the divorce judgment in the instant case.He found no undue prejudice to plaintiff, because defendant had never made any of the ordered payments from his military retirement pay.Furthermore, he found that garnishment of defendant's military retirement pay to satisfy plaintiff's attorney fee awards was prohibited by 42 U.S.C. Secs. 659,662.The court subsequently entered an order striking the property settlement provision of the judgment which awarded plaintiff part of defendant's military retirement pay and deemed it "a nullity retroactive [149 MICHAPP 229] to April 21, 1977".The order also prohibited garnishment of defendant's military retirement pay to recover attorney fees awarded and required the court clerk to return to defendant's attorney any sums received from the government pursuant to the garnishment writs previously issued.

Plaintiff moved for reconsideration or a new trial on December 8, 1982, citing the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. Sec. 1408, which was enacted on September 8, 1982, and retroactively reversed the effect of the McCarty decision.This motion, as well as plaintiff's subsequent motion for rehearing, was denied by the trial court.

I

Plaintiff argues on appeal that the $320 per month award to her from defendant's military pension must be reinstated in the divorce judgment.We agree.

As mentioned above, in this case's first appellate incarnation, this Court held that military retirement pay was properly considered a marital asset in Michigan.Chisnell v. Chisnell, 82 Mich.App. 699, 706, 267 N.W.2d 155(1978).The United States Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589(1981), on June 26, 1981, and held that federal law precluded the division of military nondisability retirement pay under state community property laws.This Court subsequently held that McCarty had overruled Chisnell, even though an equitable property division was involved in Chisnell rather than community property.Grotelueschen v. Grotelueschen, 113 Mich.App. 395, 404-405, 318 N.W.2d 227(1982), lv. den.417 Mich. 940(1983).The circuit court based its modification on McCarty and Grotelueschen.

[149 MICHAPP 230] Had events proceeded no further, it would still have been improper to modify the judgment on those grounds.This Court held in McGinn v. McGinn, 126 Mich.App. 689, 691-694, 337 N.W.2d 632(1983), that McCarty did not apply to a final judgment entered prior to that decision.The holding was based on the doctrine of res judicata and the necessity of finality in family law litigation to preserve the surviving family structure.The Court noted that other jurisdictions considering the issue have almost uniformly declined to give McCarty retroactive effect.

Even more compelling reasons exist for reversal in this case.Events did not stand still after McCarty and Grotelueschen.Congress subsequently enacted the USFSPA, which was signed into law on September 8, 1982.Pub.L. No. 97-252, Secs. 1001-1006;96 Stat. 730(codified at 10 U.S.C. Secs. 1072,1408,1447,1448,1450).The pertinent provision of the USFSPA states:

"Subject to the limitations 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."10 U.S.C. Sec. 1408(c)(1).

The section's meaning is well explained in the legislative history:

"The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision.That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retirement[149 MICHAPP 231] pay.Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation."(Emphasis supplied.)S.Rep. No. 502, 97 Cong., 2d Sess. 5, reprinted in1982 U.S. Code Cong. & Admin. News 1596, 1599-1600.

This Court recently held that the USFSPA was intended to retroactively subject the disposition of military retirement pay in divorce actions to state law as it existed prior to June 26, 1981, the date of the McCarty decision.Keen v. Keen, 145 Mich.App. 824, 378 N.W.2d 612(1985).The Court further held, citing Chisnell, supra, that the law prior to June 26, 1981, was that military retirement pay was a marital asset subject to division as part of a property settlement in a divorce action.

Thus, it is clear that McCarty should not have been retroactively applied by the circuit court to strike the award to plaintiff of part of defendant's military pension and that McCarty has been abrogated by the USFSPA and has ceased to be an intervening change in the law.Accordingly, we reverse the circuit court's November 15, 1982, order in insofar as it struck this award and direct the court to reinstate the provision in the divorce judgment.

However, in light of the recently enacted USFSPA provisions allowing direct payment of pension benefits to the former spouse, we conclude that further discussion of defendant's retirement pay is in order.Subsection 1408(d)(1) permits the direct payment of up to 50% of defendant's disposable military retirement pay to plaintiff upon her presentation of the court order providing for the payment of $320 per month from defendant's pension.¹[149 MICHAPP 232] 1] However, in this casedefendant has accrued a large arrearage since he has never made a single payment to plaintiff from his retirement pay as required by the divorce judgment.In order to assure that plaintiff receives the long overdue retirement benefits, we instruct the circuit court pursuant to Secs. 1408(d)(1) and (5)² to enter an...