Marriage of Bowman, In re

Decision Date22 July 1998
Docket NumberNo. 21904,21904
Citation972 S.W.2d 635
PartiesIn re the MARRIAGE OF Thomas H. BOWMAN and Kathy F. Bowman. 1 Thomas H. Bowman, Petitioner-Appellant, and Kathy F. Bowman, Respondent-Respondent.
CourtMissouri Court of Appeals

Brian L. Harvell, Rolla, for Appellant.

Terry D. Schwartze, Sidney T. Pearson, and Richard Anthony Skouby, Meramec Area Legal Aid, Rolla, for Respondent.

PREWITT, Presiding Judge.

Appellant Thomas H. Bowman appeals from a judgment dissolving the parties' marriage. In Appellant's first point relied on, he contends the trial court erred in its characterization of a certain portion of his military pension as marital property, and in ordering him to pay an amount in excess of fifty percent of his disposable retired pay to his wife in violation of the Uniformed Services Former Spouses' Protection Act [USFSPA], 10 U.S.C. § 1408. In his second point, Appellant contends the trial court erred in awarding Respondent maintenance. Prior to trial the parties entered into a "separation agreement," leaving for trial only the issues raised here.

The parties were married in June, 1988, in Virginia. They previously participated in a marriage ceremony on May 19, 1978, believing that marriage to be legal. The parties, however, treat that attempt at marriage as void from its inception as Respondent was not divorced from a previous spouse. The parties adopted a child in 1982. Appellant served twenty years in the army, retiring in 1993.

While Appellant was in the military, the parties lived in Germany, Virginia, Georgia, and in Missouri at St. Louis and Ft. Leonard Wood. The latter was approximately eighteen months before Appellant's retirement from the military. In 1993, Appellant initially drew his full retirement benefits from the Department of Defense for two months, then waived a portion of the retirement pay to receive Veterans Administration disability payments. Appellant receives monthly retirement and disability payments from the Department of Defense of $1,251.00. Respondent was awarded $150.00 of those payments.

Review of this non-jury case is under Rule 73.01(c). For an interpretation of that rule, see In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). "Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses." Rule 73.01(c)(2). "All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(a)(3).

Federal law grants state courts the authority to treat military pensions "in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1). "[U]nder the Act's plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property." Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 2029, 104 L.Ed.2d 675 (1989).

A few Missouri cases discuss the application of the USFSPA in this state. "Missouri considers military nondisability retirement benefits received for services during marriage as marital property.... The United States Supreme Court has interpreted this statute to preclude an award to a former spouse of any amounts of retired pay which do not fall within the definition of 'disposable retired pay.' " In re Marriage of Strassner, 895 S.W.2d 614, 616 (Mo.App.1995). See also Moritz v. Moritz, 844 S.W.2d 109, 115 (Mo.App.1992) ("[m]ilitary nondisability retirement pension benefits received, for service which occurred during marriage, are also considered marital property." Mings v. Mings, 841 S.W.2d 267 (Mo.App.1992); and In re Marriage of Berger, 950 S.W.2d 307 (Mo.App.1997).

USFSPA defines "disposable retired pay" as the total monthly retired pay to which a member is entitled less amounts which "are deducted from the retired pay of such member as a result of forfeitures of retired pay," such as pay waived in order to receive veterans' disability payments. 10 U.S.C. § 1408(a)(4)(B), Mansell, 109 S.Ct. at 2028-2029. See also Hapney v. Hapney, 37 Ark.App. 100, 824 S.W.2d 408, 409 (1992) (the United States Supreme Court has held that the USFSPA does not permit state courts to treat certain military retirement pay waived by the retiree in order to receive Veteran's disability benefits as property divisible upon divorce). Disability benefits received by a retired member of the armed services is not marital property. 10 U.S.C. § 1408(a)(4)(B).

Once the trial court has characterized the military retired pay as marital, then the "total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay." 10 U.S.C. § 1408(e)(1). However, "[n]othing in this section shall be construed to relieve a member of liability for the payment of alimony ... or other payments required by a court order...." 10 U.S.C. § 1408(e)(6).

Appellant's first point contains two complaints regarding his military retired pay. In essence, the first part of Appellant's argument is that the trial court improperly characterized the portion of his military retired pay which is subject to division as marital property. This argument has merit as the trial court erred when it decreed that "30% of Plaintiff's military retirement pension is disposable retired pay," rather than have followed the formula for "disposable retired pay" provided in the statute. The trial court should have calculated the "disposable retired pay" in this manner:

Total monthly retired pay $ 1,251.00

Less the amount equal to the amount of disability payments ($1,020.00)

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Equals DISPOSABLE RETIRED PAY $ 231.00

Thus, $231.00 of retired pay is marital property.

The second part of Appellant's argument in his first point relied on, is that the trial court erred when it awarded Respondent in excess of fifty percent of his disposable military retired pay, in violation of the limitation set forth by the USFSPA in 10 U.S.C. § 1408(e)(1). Respondent argues that the limitation imposed by this section is only a limitation on the percentage for payments made directly by the Secretary of the Armed Services, and not on the total percentage she can receive. Missouri courts have not directly addressed this issue, although other states' courts have.

In Deliduka v. Deliduka, 347 N.W.2d 52 (Minn.App.1984), the appellant challenged the "award of 50 percent of his gross military pension benefits to his wife" arguing that the "Act limits the maximum portion of military pension benefits a court may award to a former spouse to 50 percent of 'disposable retired pay.' " Id. at 55. The court found that the trial court erred only in its "method of disbursing pension payments." The proper method was for the Secretary to be ordered to pay directly to wife fifty percent of the disposable pension, and the difference to be paid directly to wife by husband. Id. at 56. Thus, that court interpreted the § 1408(e)(1) limitation to be a limitation only on direct payments made by the Secretary.

Texas also interpreted the USFSPA provisions to be "intended only as a limit on the amount of disposable retired pay which can be garnished and paid out by the service secretaries pursuant to court orders." Grier v. Grier, 731 S.W.2d 931, 933 (Tex.1987). That court's reasoning rested on 10 U.S.C. § 1408(e)(6), which states:

Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired or retainer pay under this section have been made in the maximum amount permitted [under the Act].

Wyoming has also ruled similarly. In Forney v. Minard, 849 P.2d 724 (Wyo.1993), the court noted that a mechanism is created by the USFSPA permitting direct payments of disposable retired pay to the former spouse of a military member and "that the government will only permit the direct payment mechanism to be used to distribute fifty percent of the disposable retired pay. 10 U.S.C. Sec. 1408(e)(1)." Id. at 729. The court found that while the language of the Act is "not lyrical, it is precise.... The plain language of the savings clause of the USFSPA protects state court jurisdiction for equitable distributions to a former spouse of greater than fifty percent of the disposable retired pay." [citing to § 1408(e)(6) ] Quoting Justice Marshall who wrote the opinion in Mansell: "[T]he savings clause serves the limited purpose of defeating any inference that the federal direct payments mechanism displaced the authority of state courts to divide and garnish property not covered by the mechanism.' " Id.

When a Missouri court did address this issue, the result was limited to the facts and issues presented in that case. In Harris v. Harris, 670 S.W.2d 171, 172 (Mo.App.1984), the court held that the military member's spouse could not be awarded more than fifty percent of the retired pay. The court cited 10 U.S.C. § 1408(e)(1), but did not elaborate on its interpretation of the limitation.

In Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695, 698-699 (1988), the Supreme Court of Idaho recognized that 10 U.S.C. § 1408(e)(1) "limits the amount payable to '50 percent of such ... retired pay.' " It stated, 758 P.2d at 699:

In summary, the USFSPA permits a state court to consider the gross value of retirement benefits in computing the value of the marital estate. However, the USFSPA prohibits a state court from awarding the non-military spouse the right to collect more than 50 percent of the net monthly retirement payment. Thus, if an equal or equitable division were to require that 50 percent of the net retirement benefit would not satisfy [wife's] share, the trial court would have to make up the difference by a disproportionate award of other assets.

This court agrees with the interpretation of the Supreme Court of...

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