Kelson v. Kelson, No. 85246

• Court: United States State Supreme Court of Florida
• Writing for the Court: Grimes, C.J., concurred in result only with opinion, in which Harding; Overton, J., dissented with opinion, in which Wells; Wells, J., dissented with opinion, in which Overton; KOGAN; GRIMES, C.J., concurs in result only with an opinion, in which HAR
• Citation: 675 So.2d 1370
• Parties: 21 Fla. L. Weekly S134 Michelle M. KELSON, Petitioner, v. Russell M. KELSON, Respondent.
• Decision Date: 21 March 1996
• Docket Number: No. 85246

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675 So.2d 1370 21 Fla. L. Weekly S134 Michelle M. KELSON, Petitioner,
v.
Russell M. KELSON, Respondent. No. 85246. Supreme Court of Florida. March 21, 1996.
Rehearing Denied July 1, 1996.

Grimes, C.J., concurred in result only with opinion, in which Harding, J., concurred.

Overton, J., dissented with opinion, in which Wells, J., concurred.

Wells, J., dissented with opinion, in which Overton, J., concurred.

Gordon Edward Welch, Pensacola, for Petitioner.

Kathryn L. Runco of Michael J. Griffith, P.A., Pensacola, for Respondent.

KOGAN, Justice.

We have for review Kelson v. Kelson, 647 So.2d 959 (Fla. 1st DCA 1994), because of conflict with Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994), on the issue of whether Voluntary Separation Incentive (VSI) benefits paid to a service member upon voluntary separation from the armed forces qualify as military retirement pay under a property settlement agreement that provides for division of retirement pay. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

After a marriage of approximately fourteen years, Russell and Michelle Kelson were divorced in June 1990. The final judgment incorporated a marital settlement agreement that had been entered into by the Kelsons. A provision of the couple's property settlement agreement is at issue here. That provision provides that Michelle shall be awarded a monthly percentage share of Russell's "retired/retainer pay" upon Russell's retirement

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from the U.S. Marine Corps. The agreement also provided a formula for computing the percentage to be received by Michelle.

Approximately two years after entry of the final judgment of dissolution, but before Russell became eligible for retired pay, Russell elected to leave active duty and receive benefits under the newly enacted Voluntary Separation Incentive Program (VSI), which is codified at 10 U.S.C. § 1175. Under this election, Russell will receive an annual VSI payment of over $18,000 for thirty-two years rather than retired pay in monthly increments for life. Michelle filed a motion to "amend and/or modify" the final judgment, which both the trial court and district court treated as a motion to enforce or modify. ¹

According to Michelle, Russell's VSI benefits are the functional equivalent of the retired pay she is entitled to share under the parties' agreement. She maintains that to deny her an interest in Russell's VSI benefits would permit him to unilaterally divest her of her interest in his retired pay simply by electing to receive benefits under a program that did not exist at the time of the parties' agreement. The trial court denied Michelle's motion, "reluctantly" agreeing with Russell that 1) VSI benefits are not "retired/retainer pay" to be shared under the settlement agreement and 2) the court lacked jurisdiction to modify the agreement to provide for division of the VSI benefits.

The First District Court of Appeal affirmed. The district court agreed with the trial court that VSI benefits could not be considered retired/retainer pay, as used in the property settlement agreement. 647 So.2d at 961-92. It also agreed that the trial court lacked jurisdiction to modify the parties' agreement to encompass Russell's VSI benefits. Id. at 962.

This Court accepted jurisdiction to resolve apparent conflict with the Fifth District Court of Appeal's decision in Abernethy. The Abernethy court upheld an order enforcing a property settlement agreement that provided for the division of the former husband's military retirement pay pursuant to the Uniformed Services Former Spouses' Protection Act (USFSPA) even though the former husband voluntarily separated from the military under the VSI program. Contrary to the decision under review, the Fifth District concluded that VSI benefits qualify as retired pay that is subject to equitable distribution under the USFSPA. 638 So.2d at 162-63.

After considering the statutes at issue, along with the relevant legislative history and case law, we find that VSI benefits are sufficiently similar to retired pay to allow for enforcement of the settlement agreement at issue here. While we do not agree with the Abernethy court that VSI benefits are covered by the USFSPA, we find that federal law does not preclude a state court from enforcing a property settlement agreement that is found to encompass VSI benefits.

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that federal statutes governing military retirement pay prevented state courts from treating such benefits as marital property subject to division in dissolution proceedings. In response to the McCarty decision, Congress enacted the Uniformed Services Former Spouses' Protection Act, which allows state courts to divide "disposable retired or retainer pay" ² in dissolution proceedings according to state law. 10 U.S.C. § 1408(c)(1). Relying on McCarty, Russell Kelson argues that because VSI benefits are not expressly included within the

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USFSPA and Congress enacted no provision authorizing state courts to divide VSI benefits in dissolution proceedings, the trial court was precluded from awarding any portion of his VSI benefits to Michelle. However, before we reach the preemption issue, we must explain our determination that VSI benefits are sufficiently similar to "retired pay," as provided for under the Kelson's property settlement agreement, to allow for enforcement of that agreement.

On December 5, 1991, Congress authorized the Voluntary Separation Incentive (VSI) and Special Separation Benefit (SSB) programs, which took effect in 1992. Pub.L. No. 102-190, §§ 661-664, 105 Stat. 1290, 1394-99 (1991) (codified at 10 U.S.C. §§ 1174a-1175). These early separation incentives were designed to induce members of the armed forces to leave the military voluntarily rather than run the risk of being involuntarily separated due to reductions in the size of the United States military. H.R.Conf.Rep. No. 102-311, 102nd Cong. 1st Sess., reprinted in 1991 U.S.Code Cong. & Admin.News at 1111-12. Under both of the early separation incentive programs, qualifying service members who voluntarily leave...