Ex parte Vaughn
Decision Date | 27 August 1993 |
Parties | Ex parte Madge W. VAUGHN. (Re Madge W. VAUGHN v. Charles G. VAUGHN). 1911634. |
Court | Alabama Supreme Court |
Ernest L. Potter, Huntsville, for petitioner.
David A. Kimberley of Floyd, Keener, Cusimano & Roberts, Gadsden, for respondent.
John L. Capell III and Ellen M. Hastings of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for amici curiae Madison County Women's Political Caucus, Alabama Women's Political Caucus, Alabama League of Women Voters, American Ass'n of University Women, Alabama Chapter, American Ass'n of University Women, Huntsville Chapter, Churchwomen United-Huntsville, Nat. Ex-pose (Ex-Partners of Service Men [Women] for Equality), Alabama Ex-pose, Alabama Women's Com'n and Rocket City Business and Professional Women.
We granted the petition of Madge W. Vaughn for certiorari review of the judgment of the Court of Civil Appeals in Vaughn v. Vaughn, 634 So.2d 530 (Ala.Civ.App.1992). We reverse and remand.
Madge W. Vaughn and Charles G. Vaughn were married on April 23, 1966, and they were divorced on March 13, 1991. During the marriage, Mr. Vaughn was a member of the United States Army and retired as a Lt. Colonel in October 1986. Since his retirement, Mr. Vaughn has been employed in the private sector, and he has also been receiving military retirement pay. Mrs. Vaughn is currently employed by the Huntsville school system.
After an ore tenus hearing, the trial court entered a divorce judgment providing for the distribution of real and personal property, nonpension financial assets, child support, and alimony payments. The trial court, however, denied Mrs. Vaughn's request for an award of an interest in Mr. Vaughn's military retirement pay, stating, on the basis of Tinsley v. Tinsley, 431 So.2d 1304 (Ala.Civ.App.1983), that
The Court of Civil Appeals affirmed; we granted certiorari review to address the issue of whether the military retirement benefits of one spouse may be considered as marital property and, thus, subject to property division and/or included in an award of alimony in gross. We answer affirmatively.
The standard governing the treatment of military retirement benefits, upon the dissolution of a marriage, in Alabama was set out in Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979). The Court of Civil Appeals refused to treat an award of military retirement benefits as either a property settlement or alimony in gross and stated:
Kabaci, 373 So.2d at 1146. While this premise--the "absence of sound authority"--may have been valid at the time the Court of Civil Appeals ruled in Kabaci, it is no longer true.
The United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that on dissolution of the marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws. The Supreme Court, however, "recognize[d] that the plight of an ex-spouse of a retired service member is often a serious one," but suggested that the decision of whether "more protection should be afforded a former spouse of a retired service member ... [was] for Congress alone." 453 U.S. at 235, 101 S.Ct. at 2742.
Congress responded to the Supreme Court's suggestion and enacted the Uniformed Services Former Spouses' Protection Act ("USFSPA") ( ) in 1982. Section 1408(c)(1) (as amended 1990) of the USFSPA provides:
Section 1408(a)(4) (as amended 1990) defines "disposable retired pay" or "retainer pay" as:
The Act has been explained as follows:
Senate Report No. 27.502, 97th Congress, Second Session 16, reprinted in 1982 United States Code Congressional and Administrative News, 1611. See also Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) ( ).
It is obvious that the USFSPA does not mandate, but rather, authorizes, state courts to consider military retirement benefits as marital property, and, thus, subject to equitable division. A significant number of state courts have taken notice of this authorization given by the USFSPA and have held that military retirement benefits are subject to distribution as...
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