Lewis v. Lewis

• Decision Date: 02 December 1986
• Docket Number: No. 864DC186,864DC186
• Court: North Carolina Court of Appeals
• Parties: Sylvia G. LEWIS v. Floyd C. LEWIS.

Page 587

350 S.E.2d 587

83 N.C.App. 438

Sylvia G. LEWIS v. Floyd C. LEWIS.

No. 864DC186.

Court of Appeals of North Carolina.

Dec. 2, 1986.

Charles William Kafer, Barker, Kafer & Mills, New Bern, for plaintiff-appellee.

Bell & Collins by Hiram C. Bell, Jr., and George L. Collins, Jacksonville, for defendant-appellant.

COZORT, Judge.

Appellant's assignments of error raise the question of whether the trial court properly calculated and awarded to the wife a percentage of the husband's military pension in this equitable distribution action. We affirm the trial court's award to the wife of a sum equal to 35 percent of the gross amount of the defendant's military retirement pay, not to exceed 50% of the defendant's disposable retired or retainer pay, payable in monthly installments upon defendant's retirement from the Marine Corps.

The parties were married on 17 April 1962 and separated from each other on 31 January 1983. On 1 February 1984 plaintiff filed this action seeking an absolute divorce and an equitable distribution of the marital property, including one-half of the defendant's military retirement. A judgment of absolute divorce and equitably distributing the marital property was entered on 18 March 1985.

The defendant joined the United States Marine Corps on 1 October 1954; and at the time the parties separated, he had been in the United States Marine Corps for twenty-eight years, having risen during that time to the rank of Colonel. At the time of the equitable distribution judgment, defendant had been in the United States Marine Corps for over thirty years.

At the equitable distribution hearing, the parties stipulated and agreed to what was marital property and to the real and personal marital property's value, with the exception of the defendant's retirement income from the United States Marine Corps. In finding of fact number 27 of the equitable distribution judgment, the district court found that seventy percent (70%) of the defendant's military retirement is marital property:

27. When the defendant does retire from the Marine Corps, he will retire based upon 30 years of service in the Marine Corps. The defendant's retirement does not increase with the service of more than 30 years an [sic ] an officer. The plaintiff and the defendant lived together as man and wife for 21 of those 30 years. Accordingly, 70 percent of the defendant's military service was accomplished during the time the parties were married and lived together. This 70 percent of the defendant's military retirement is marital property.

Defendant excepts to this finding. The district court concluded, without exception from the defendant, that an equal division of the marital property is equitable, and divided the marital property, with the exception of the defendant's military retirement pay, per the parties' stipulation. In its conclusions of law numbers 4 and 5, to which defendant excepts, the district court concluded the following:

4. Seventy percent of the defendant's military retirement should be considered as marital property pursuant to the provisions of North Carolina General Statute 50-20(b)(1) and (3)c.

5. Pursuant to the provisions of North Carolina General Statute 50-20(b)(3)c, the plaintiff is entitled to receive 35 percent of the defendant's military retirement as a prorated portion of the benefits paid to the defendant by the United States Marine Corps at the time the defendant retires from the Marine Corps.

Accordingly, the district court ordered that:

9. Upon the retirement of the defendant from the United States Marine Corps, the defendant shall pay, except as herein stated, to the plaintiff from his military retirement a sum equal to 35 percent of the gross amount of the defendant's military retirement pay. This payment shall be made monthly by the defendant to the plaintiff beginning on the 5th day of the first month following the defendant's retirement from military service. Except as herein stated, payments shall continue in an amount equal to 35 percent of the gross amount of this military retirement pay until the plaintiff dies or the defendant dies, whichever event first occurs....

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Except as herein indicated, the plaintiff's share of the defendant's military retirement shall always be 35 percent of the gross amount of that retirement regardless of what the total amount of the defendant's retirement pay is due to him by virtue of his retirement from the United States Marine Corps.

PROVIDED, HOWEVER, in no event shall the 35 percent of the gross amount of the defendant's military retirement exceed 50 percent of the "disposable retired or retainer pay" as that term is defined in 10 United States Code Section 1408(a)(4). Therefore, in the event 35 percent of the gross amount of the defendant's military retirement exceeds 50 percent of the disposable retired or retainer pay due to the defendant as a result of his retirement from the Marine Corps, then the maximum sum that shall be paid to the plaintiff shall be 50 percent of this disposable retired or retainer pay. However, in the event the 35 percent of the gross amount of the defendant's military retirement does not exceed 50 percent of the disposable retired or retainer pay, then the defendant shall pay to the plaintiff the full 35 percent of the gross amount of his retired or retainer pay....

... Even though the plaintiff has been awarded 35 percent of the gross amount of the defendant's military retirement, a ceiling of 50 percent of the defendant's disposable retired or retainer pay is placed by law upon the award herein made to the plaintiff. Accordingly, the defendant shall not take any steps designed to diminish or in any way reduce the amount of disposable retired or retainer pay that he is entitled to receive by virtue of his military service to the end that the plaintiff's portion of his retirement is reduced.

From this award to the wife of one-half of that portion (70%) of the defendant's gross military retirement pay which the district court found to be marital property, not to exceed fifty percent (50%) of the husband's disposable retired or retainer pay, the husband appeals.

The husband's appeal is apparently based on his contentions that (1) the trial court improperly based the award to the wife of 35% of his gross military retirement pay upon the amount of military retirement pay to which he would be entitled upon the date of his retirement, rather than upon the date of separation; and (2) the trial court should have awarded the wife a percentage of his disposable retired or retainer pay rather than a percentage of his gross military retired pay. We find the trial court's distribution of the husband's military retired pay proper in all respects.

G.S. 50-20(b)(1) (1984) defines "marital property" as including "all vested pension and retirement rights, including military pensions eligible under the federal Uniformed Services Former Spouses' Protection Act." In Morton v. Morton, 76 N.C.App. 295, 297, 332 S.E.2d 736, 737, disc. review denied, 314 N.C. 667, 337 S.E.2d 582 (1985), we held that " 'military pensions eligible under the federal ...