Marriage of Crawford, In re, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtESPINOSA; DRUKE, C.J., and HATHAWAY
Citation180 Ariz. 324,884 P.2d 210
PartiesIn re the MARRIAGE OF Michael T. CRAWFORD, Petitioner/Appellant, and Leslie Joanne Crawford, Respondent/Appellee. 93-0203.
Decision Date29 April 1994
Docket NumberNo. 2,CA-CV

Page 210

884 P.2d 210
180 Ariz. 324
In re the MARRIAGE OF Michael T. CRAWFORD, Petitioner/Appellant,
and
Leslie Joanne Crawford, Respondent/Appellee.
No. 2 CA-CV 93-0203.
Court of Appeals of Arizona,
Division 2, Department B.
April 29, 1994
As Corrected June 3, 1994.
Review Denied Nov. 29, 1994.

Page 211

[180 Ariz. 325] Curtis & Cunningham by Marjorie Fisher Cunningham, Tucson, for petitioner/appellant.

Law Offices of Victoria Ann King, P.C. by Victoria Ann King, Tucson, for respondent/appellee.

OPINION

ESPINOSA, Presiding Judge.

Petitioner/appellant Michael T. Crawford appeals from the trial court's order awarding respondent/appellee Leslie Joanne Crawford (now known as Leslie Joanne Valdez) a portion of the Special Separation Benefits (SSB) Michael received for voluntarily separating from the Air Force. Michael argues that the trial court exceeded its jurisdiction in making the award, that the injunction it issued restraining him from disposing of the SSB funds was unenforceable, and that the court abused its discretion in imposing a lien on his real property in order to secure the judgment. We affirm.

Factual and Procedural Background

The parties' 1989 dissolution decree awarded Leslie 32 1/2 percent of Michael's military retirement benefits. At the time, Michael was on active duty with the United States Air Force. In October 1992, after 19 years and three months' service, Michael voluntarily left the Air Force pursuant to a "reduction in force" program and elected to receive a lump-sum SSB payment based upon his years of service, in lieu of eligibility to re-enlist or receive retirement and other benefits. 1 Leslie subsequently filed a petition for

Page 212

[180 Ariz. 326] an order to show cause, seeking 32 1/2 percent of the SSB payment. Michael moved to dismiss for lack of subject matter jurisdiction. Pending a hearing on October 21, the trial court enjoined Michael "from disposing of, or in any other way, alienating 32 1/2 percent of the gross of any funds he receives from the United States Government as a result of his separation or termination of service with the United States Air Force." The hearing was continued to November 18, 1992, but was subsequently vacated. Michael thereafter used the SSB payment to purchase a home.

No further action was taken until April 1993 when Leslie filed an amended order to show cause petition. After a hearing, the trial court found that "[w]hether it be said that the funds ... represented the proceeds from the sale of [Michael's] retirement benefits, or was a payment in lieu of retirement benefits, or was 'Petitioner's military retirement benefits' within the meaning of paragraph F of the Decree of Dissolution ..., [Leslie] is entitled to her proportionate part pursuant to the decree." The court ordered judgment in favor of Leslie in the amount of $14,391, 2 and granted her a lien on Michael's residence to secure payment of the judgment.

Divisibility of the SSB Payment

On appeal, Michael first contends that the trial court lacked subject matter jurisdiction to award any portion of his SSB to Leslie as a matter of federal preemption and congressional intent, citing McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which held that division of military retirement benefits is a decision for Congress alone. Subject matter jurisdiction is a question of law; our review is therefore de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966); Hughes v. Creighton, 165 Ariz. 265, 798 P.2d 403 (App.1990).

Michael argues that although the Uniformed Services Former Spouses' Protection Act (USFSPA) 3 now gives states express authority to treat military retirement benefits as community property, when Congress created the SSB program, 4 it enacted no provision authorizing state courts to divide SSB payments in dissolution actions. Michael cites personal correspondence with a congresswoman referring to "not enough support" by an armed forces subcommittee for a 1992 "discussion draft" amendment specifically making the USFSPA applicable to the SSB program. Although Michael asserts "the information" was provided to the trial court, it was not made a part of the record on appeal and Michael failed to provide a transcript of the hearing. Whether the...

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43 practice notes
  • Marriage of McElroy, In re, No. 94CA0957
    • United States
    • Colorado Court of Appeals of Colorado
    • August 10, 1995
    ...preempt state courts from dividing SSB and VSI benefits. Abernethy v. Fishkin, 638 So.2d 160 (Fla.App.1994); In re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 In In re Marriage of Crawford, supra, 884 P.2d at 212, the Arizona Court of Appeals discussed Congress' intent in enacting the......
  • Merrill v. Merrill, No. 1 CA–CV 11–0103.
    • United States
    • Court of Appeals of Arizona
    • August 9, 2012
    ...from seeking reimbursement from military retiree who waived retirement benefits to receive disability pay); In re Marriage of Crawford, 180 Ariz. 324, 327, 884 P.2d 210, 213 (App.1994) (“An employee spouse cannot defeat the nonemployee spouse's interest in retirement benefits by invoking a ......
  • Marriage of Heupel, In re, No. 95SC754
    • United States
    • Colorado Supreme Court of Colorado
    • April 21, 1997
    ...concluded that federal law does not bar state courts from dividing these benefits upon dissolution. 5 See In re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 (Ariz.Ct.App.1994); Kelson v. Kelson, 675 So.2d 1370 (Fla.1996); Blair v. Blair, 271 Mont. 196, 894 P.2d 958 (1995); Pavatt v. Pa......
  • Johnson v Johnson, 99-00015
    • United States
    • Court of Appeals of Tennessee
    • September 14, 1999
    ...retirement pay due to a post-decree change in circumstances unilaterally imposed by [the husband]. . . . In [In re Marriage of Crawford, 884 P.2d 210 (Ariz. Ct. App. 1994)], a somewhat analogous case, we held that a husband could not divest his former spouse of a community property interest......
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43 cases
  • Marriage of McElroy, In re, No. 94CA0957
    • United States
    • Colorado Court of Appeals of Colorado
    • August 10, 1995
    ...preempt state courts from dividing SSB and VSI benefits. Abernethy v. Fishkin, 638 So.2d 160 (Fla.App.1994); In re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 In In re Marriage of Crawford, supra, 884 P.2d at 212, the Arizona Court of Appeals discussed Congress' intent in enacting the......
  • Merrill v. Merrill, No. 1 CA–CV 11–0103.
    • United States
    • Court of Appeals of Arizona
    • August 9, 2012
    ...from seeking reimbursement from military retiree who waived retirement benefits to receive disability pay); In re Marriage of Crawford, 180 Ariz. 324, 327, 884 P.2d 210, 213 (App.1994) (“An employee spouse cannot defeat the nonemployee spouse's interest in retirement benefits by invoking a ......
  • Marriage of Heupel, In re, No. 95SC754
    • United States
    • Colorado Supreme Court of Colorado
    • April 21, 1997
    ...concluded that federal law does not bar state courts from dividing these benefits upon dissolution. 5 See In re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 (Ariz.Ct.App.1994); Kelson v. Kelson, 675 So.2d 1370 (Fla.1996); Blair v. Blair, 271 Mont. 196, 894 P.2d 958 (1995); Pavatt v. Pa......
  • Johnson v Johnson, 99-00015
    • United States
    • Court of Appeals of Tennessee
    • September 14, 1999
    ...retirement pay due to a post-decree change in circumstances unilaterally imposed by [the husband]. . . . In [In re Marriage of Crawford, 884 P.2d 210 (Ariz. Ct. App. 1994)], a somewhat analogous case, we held that a husband could not divest his former spouse of a community property interest......
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