Ex parte Burson

• Decision Date: 22 April 1981
• Docket Number: No. B-9915,B-9915
• Citation: 615 S.W.2d 192
• Parties: Ex Parte Billy Bruce BURSON.
• Court: Texas Supreme Court

Page 192

615 S.W.2d 192

Ex Parte Billy Bruce BURSON.

No. B-9915.

Supreme Court of Texas.

April 22, 1981.

Rehearing Denied May 20, 1981.

Weeks, Chapman, Moore & Graham, Barbara Gibson, Austin, for relator.

Levy & Cowan, Robert Cowan, Jr., San Antonio, for respondent.

POPE, Justice.

This is a habeas corpus proceeding. Tex.R.Civ.Pro. 475. Relator, Billy Bruce Burson, brought this original proceeding after the district court held him in contempt and committed him to jail because of his failure to comply with that portion of a 1978 divorce decree which ordered him to pay to his ex-wife, Elizabeth Anne Burson Kasprzyk, $375.00 per month out of his Air Force disability retirement pay. Since the date of his divorce, Burson has waived his Air Force disability retirement pay in exchange for different benefits from the Veterans Administration. Burson argues that the district court cannot order him to pay over to Kasprzyk any portion of the Veterans Administration disability benefits because the supremacy clause of the United States Constitution preempts this area from the purview of state courts. We agree. We, therefore, grant the writ of habeas corpus and order Burson discharged.

The divorce decree awarded Burson all insurance, pensions, retirement benefits and other benefits arising out of his disability payment from the Air Force, but ordered:

Petitioner shall assign the $375.00 monthly payment from his Air Force disability check to Respondent; Petitioner will hold the $375.00 out of his monthly disability check in constructive trust for Respondent. The $375.00 monthly payment to Respondent will begin on August 5, 1978.

Burson has made no payments since October, 1979. On April 21, 1980, Kasprzyk commenced this contempt proceeding. After a hearing, the trial court adjudged Burson in contempt for disobedience of the divorce decree and ordered him committed in the Williamson County Jail until he purges himself by paying $3,375.00, the amount of the arrearages, and $571.00 attorney fees.

Burson is one hundred percent disabled by reason of cancer surgery. When, after twenty-four years of service, he left the Air Force on June 21, 1974, he elected to receive disability benefits under 10 U.S.C. § 1201 et seq. ¹ This election was the source of his Air Force disability retirement pay. At the time of the divorce, Burson's military retirement pay was a vested right in the then community of Burson and Kasprzyk. ² Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Marvel, Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176 (1979); see also Keen, Post Divorce Acquisitions of Community Property, Marriage Dissolution 1980, at 0-4 thru 0-9 and 0-14 thru 0-20 (1980).

A district court, under our decisions, has the power to enforce a decree ordering a spouse to make payments out of the Air Force disability retirement pay. United States v. Stelter, 567 S.W.2d 797, 799 (Tex.1978). If there is no appeal from the divorce court's division of the property, that decree may not be collaterally attacked. Ex parte Sutherland, 526 S.W.2d 536 (Tex.1975); Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 163 (1962); see also Constance v. Constance, 544 S.W.2d 659 (Tex.1977).

The important fact which distinguishes this case from those cited above is that Burson, after the divorce decree, made an election to forego his Air Force disability benefits and to receive instead the disability benefits from the Veterans Administration. ³ Veterans Administration benefits, unlike Air Force disability retirement benefits, are not divisible or assignable. They are not property. 38 U.S.C. § 3101; ⁴ Ex parte Johnson, 591 S.W.2d 453 (Tex.1979). See also Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979); Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950); McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905); Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979); Perez v. Perez, 587 S.W.2d 671 (Tex.1979); United States v. Stelter, 567 S.W.2d 797 (Tex.1978); Valdez v. Ramirez, 574 S.W.2d 748 (Tex.1978); Arrambide v. Arrambide, 601 S.W.2d 197 (Tex.Civ.App. El Paso 1980, no writ).

Military disability retirement pay and Veterans Administration benefits are established by different statutory schemes. See 10 U.S.C. §§ 1201 et seq., 10 U.S.C. §§ 1331 et seq., and 38 U.S.C. §§ 3101 et seq. The statutes control the property characterization of each and the fact of, or lack of, federal preemption of each. ⁵

The trial court, at the contempt hearing, while recognizing the statutory distinction between Burson's Air Force retirement disability pay and Veterans Administration benefits, concluded that Burson could not by his voluntary act defeat the force of the divorce decree that had adjudicated community property as it existed and had vested at the time of the divorce. By analogy, while impossibility to comply with a court order will excuse compliance, Ex parte Ramzy, 424 S.W.2d 220 (Tex.1968); Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967), one should not be permitted to claim the excuse after voluntarily creating the impossibility. Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948).

We conclude that federal law empowered Burson to make an election. 38 U.S.C. § 3105. The relator in Ex parte Johnson, 591 S.W.2d 453 (Tex.1979), took almost identical actions to those taken by Burson. The Ex parte Johnson court relates these facts at 454:

Relator entered the United States Navy in 1947 as an enlisted man. He and Elizabeth Johnson were married in 1951. In July 1959, relator was given a medical discharge from the Navy. He was suffering lateral sclerosis and arthritis of the spine which were service connected and 100 percent disabling at the time of his discharge. He was entitled to and began receiving disability retirement pay. However, in March 1970, relator executed a waiver of his retirement pay in order to receive the larger disability compensation benefits in question from the Veterans' Administration. The waiver and exchange of benefits is provided for in 38 U.S.C. § 3105. These benefits are unrelated to length of service, but are based solely upon disability.

The Ex parte Johnson relator was divorced in 1976; therefore, the only significant factual difference between that case and the present one is the fact that in Ex parte Johnson the relator waived his Navy retirement pay during the marriage and before the divorce, while Burson made his election after his divorce was finalized.

Military retirement pay, even after it is a vested right and a part of the community, under federal law, is subject to defeasance. This defeasance may occur through the service person's breach of good conduct, by his death, or by the service person's waiver of the retirement pay. See 10 U.S.C. § 1406; Ex parte Johnson, supra; Sandbote, Military Retirement Benefits as Community Property: New Rules From the Supreme Court, 24 Baylor L.Rev. 251, 237 (1972). A partial defeasance can occur if the service person is a retired regular officer of the uniformed services who holds a federal civilian position with the federal government. See 5 U.S.C. § 5532; Puglisi v. United States, 564 F.2d 403 (Ct.Cl.), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59, reh. denied, 436 U.S. 951, 98 S.Ct. 2860, 56 L.Ed.2d 794 (1977).

We now hold that a divorce decree cannot prohibit Burson from doing that which the federal law properly gave him a right to do. Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950); McJunkin v. Estate of McJunkin, 493 S.W.2d 278 (Tex.Civ.App. Dallas 1973, writ ref'd n. r. e.). See also Texas Employers' Ins. Ass'n v. United States, 569 F.2d 874 (5th Cir. 1978), cert. denied, 439 U.S. 826, 99 S.Ct. 98, 58 L.Ed.2d 119 (1978).

Veterans Administration benefits are not divisible property. We held in Eichelberger v. Eichelberger, 582 S.W.2d 395, 401 (Tex.1979), that the federal supremacy clause and congressional intent will not permit the frustration of a federal law which grants benefits as a gratuity. Federal preemption of veterans benefits for disability does not leave room for their defeat, either by implication nor indirection.

The relator is discharged.

1 10 U.S.C. § 1201 in pertinent part states:

§ 1201. Regulars and members on active duty for more than 30 days: retirement

Upon a determination by the Secretary concerned that a member of a regular component of the armed forces entitled to basic pay, or any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 270(b) of this title (10 USC § 270(b))) for a period of more than 30 days, is unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay computed under section 1401 of this title (10 USC § 1401), if the Secretary also determines that ....

2 This court is aware of the fact that the Supreme Court of the United States recently heard oral argument in the case of McCarty v. McCarty, no published opinion (Cal.App.1980), cert. granted, 49 U.S.L.W. 3139, 3661 (U.S. March 1, 1981) (No. 80-5), and that applications are pending in Cose v. Cose, 592 P.2d 1230 (Alaska 1979), petition for cert. filed, 48 U.S.L.W. 3627, 3108 (U.S. March 19, 1980) (No. 79-1469); Russell v. Russell, 605 S.W.2d 33 (Ky.1980), petition for cert. filed, 49 U.S.L.W. 3532, 3625 (U.S. Jan. 2, 1981) (No. 80-1132), and Miller v. Miller, 609 P.2d 1185 (Mont.1980), petition for cert. filed, 49 U.S.L.W. 3136, 3273...