Marriage of Bowman, In re, No. 21904
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | PREWITT |
| Citation | 972 S.W.2d 635 |
| Parties | In re the MARRIAGE OF Thomas H. BOWMAN and Kathy F. Bowman. 1 Thomas H. Bowman, Petitioner-Appellant, and Kathy F. Bowman, Respondent-Respondent. |
| Docket Number | No. 21904 |
| Decision Date | 22 July 1998 |
Page 635
1
Thomas H. Bowman, Petitioner-Appellant,
and
Kathy F. Bowman, Respondent-Respondent.
Southern District,
Division One.
Page 637
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
Page 638
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...
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Fulgium v. Fulgium, No. 1753, Sept. Term, 2017
...payments in excess of 50 percent must be made "by the member of the military to the spouse"). Cf. In re Marriage of Bowman , 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (§ 1408(e)(1)"sets a fifty percent cap on retired pay awarded to former spouses"). Although this issue is ......
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Mattson v. Mattson, A16-1535
...of the military to the spouse") (emphasis in original), review denied(Minn. Jul. 26, 1984); see also In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (concluding that 50% is an absolute cap).5 While courts differed post-Mansell on treatment of disability compensation a......
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Berberich v. Mattson, A16-1535
...of the military to the spouse") (emphasis in original), review denied (Minn. Jul. 26, 1984); see also In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (concluding that 50% is an absolute cap). 5. While courts differed post-Mansell on treatment of disability compensatio......
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Coon v. Coon, No. 3678.
...of disposable military retirement pay is subject to direct attack on appeal and is reversible error. See, e.g., In re Marriage of Bowman, 972 S.W.2d 635, 637-39 (Mo.Ct.App. 1998) (reversing, on direct appeal, an award of more than fifty percent of a spouse's disposable military pay because ......
-
Fulgium v. Fulgium, No. 1753, Sept. Term, 2017
...payments in excess of 50 percent must be made "by the member of the military to the spouse"). Cf. In re Marriage of Bowman , 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (§ 1408(e)(1)"sets a fifty percent cap on retired pay awarded to former spouses"). Although this issue is ......
-
Mattson v. Mattson, A16-1535
...of the military to the spouse") (emphasis in original), review denied(Minn. Jul. 26, 1984); see also In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (concluding that 50% is an absolute cap).5 While courts differed post-Mansell on treatment of disability compensation a......
-
Berberich v. Mattson, A16-1535
...of the military to the spouse") (emphasis in original), review denied (Minn. Jul. 26, 1984); see also In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo. Ct. App. 1998) (concluding that 50% is an absolute cap). 5. While courts differed post-Mansell on treatment of disability compensatio......
-
Coon v. Coon, No. 3678.
...of disposable military retirement pay is subject to direct attack on appeal and is reversible error. See, e.g., In re Marriage of Bowman, 972 S.W.2d 635, 637-39 (Mo.Ct.App. 1998) (reversing, on direct appeal, an award of more than fifty percent of a spouse's disposable military pay because ......