Marriage of Strong v. Strong

• Citation: 2000 MT 178,300 Mont. 331,8 P.3d 763
• Decision Date: 06 July 2000
• Docket Number: No. 99-261.,99-261.
• Parties: In re the MARRIAGE OF Branadine C. STRONG, Petitioner and Respondent, v. Justin T. STRONG, Respondent and Appellant.
• Court: United States State Supreme Court of Montana

8 P.3d 763

2000 MT 178

300 Mont. 331

In re the MARRIAGE OF Branadine C. STRONG, Petitioner and Respondent, v. Justin T. STRONG, Respondent and Appellant.

No. 99-261.

Supreme Court of Montana.

Submitted on Briefs December 29, 1999.

Decided July 6, 2000.

John Bobinski, Helena, Montana, for Appellant. Dennis G. Loveless, Helena, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr. delivered the Opinion of the Court.

¶ 1 Justin T. Strong (Justin) appeals from the Findings of Fact and Conclusions of Law, and Final Decree of Dissolution of Marriage entered by the First Judicial District Court, Lewis and Clark County, dissolving the marriage of Justin and Branadine C. Strong (Brandy) and equitably dividing the marital estate. We reverse and remand.

¶ 2 In essence, two issues are raised by Justin on appeal. Those issues are restated:

¶ 3 (1) Did the District Court err in distributing a portion of Justin's VA disability benefits to Brandy as part of the division of marital property?

¶ 4 (2) Did the District Court err in awarding attorney's fees to Brandy?

BACKGROUND

¶ 5 Justin and Brandy were married on February 7, 1995. They have three sons. In the spring of 1995, Justin enlisted with the United States Army and was subsequently stationed in Germany. Brandy moved, in the summer of 1995, to join Justin in Germany. In September of 1995, while on active duty in Germany, Justin was involved in a car accident which left him disabled.

¶ 6 In October of 1995, Brandy returned to Helena and moved in with her parents. Justin returned to Helena in November of 1995, at which time he moved in with his parents. Then, in March of 1996, Justin moved into a mobile home on his parents' property. Brandy resided with Justin in the mobile home, although not on a regular basis. The parties totally separated in January of 1997, and have lived apart since that time. A permanent order of protection was entered in Justice Court on March 5, 1997, restraining both parties from having any contact with each other.

¶ 7 As a result of the accident, Justin has been rated as 100% unemployable and 60% disabled by the United States Veterans' Association (VA). Justin receives $2,145 per month in VA disability benefits. The VA disability benefits are Justin's only current source of income. In November of 1997, Justin received a lump sum settlement from the VA in the amount of $31,667 for back disability payments. This lump sum settlement was received during the parties' marriage, and the dollar amount was based on the fact that Justin was married and had three children. From the settlement, Justin gave his parents over $20,500; none of the settlement went to assist Brandy or the children.

¶ 8 In April of 1997, Brandy petitioned for dissolution of marriage. At the time of dissolution, the only money remaining from Justin's lump sum VA settlement was $1,440; this money had been placed in a savings account for the children that was under the control of Justin's mother. Throughout the marriage, Brandy was the primary caretaker of the children. To support the children while awaiting dissolution, Brandy collected AFDC between January of 1997 and April of 1998; Justin did not pay any child support to Brandy during that time. Brandy was unemployed at the time of filing for dissolution, and the District Court entered an order for temporary child support in April of 1998 pending a final decree of dissolution. Justin has not seen any of his children since early 1997.

¶ 9 The parties held almost no real property at the time of dissolution. As a part of the distribution of the marital estate, the District Court ordered Justin to execute a promissory note to Brandy in the amount of $5,000, payable in one year with legal interest, to compensate for the fact that Justin did not use any of his lump sum VA disability settlement to assist Brandy or the children. The District Court further ordered that Justin turn over to Brandy the $1,440 in savings remaining from the lump sum settlement. Lastly, the District Court ordered that Justin pay Brandy her reasonable attorney's fees and costs.

DISCUSSION

¶ 10 (1) Did the District Court err in distributing a portion of Justin's VA disability benefits to Brandy as part of the division of marital property?

¶ 11 Justin contends that the District Court erred in failing to find that federal law preempts Montana law on the question of whether a trial court may include VA disability benefits in a marital estate and award those benefits as part of an equitable division of marital property. Thus, this issue raises a question of law. We review a district court's legal conclusion de novo, seeking to determine whether the court correctly interpreted the law. In re Marriage of Barker (1994), 264 Mont. 110, 113, 870 P.2d 86, 88. A finding of federal preemption will be sustained in the area of domestic relations only where "Congress has `positively required by direct enactment' that state law be pre-empted." Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1, 11 (quoting Wetmore v. Markoe (1904), 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390, 394).

¶ 12 Specifically, Justin asserts that since both the United States Supreme Court and this Court have held that federal law preempts state courts from including VA disability benefits in a marital estate and awarding those benefits in a dissolution action, the District Court committed error in ordering him to execute a $5,000 promissory note and turn over the remaining $1,440 of his lump sum VA disability settlement to Brandy. In so contending, Justin relies on Mansell v. Mansell (1989), 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675, and this Court's application of the Mansell decision in In re Marriage of Murphy (1993), 261 Mont. 363, 862 P.2d 1143.

¶ 13 In Mansell, faced by "one of those rare instances where Congress has directly and specifically legislated in the area of domestic relations," the U.S. Supreme Court held that the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (USFSPA or the Act), "does not grant to state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans' disability benefits." Mansell, 490 U.S. at 587, 594-95, 109 S.Ct. at 2028, 2032, 104 L.Ed.2d at 684, 689. Following Mansell, we held in Marriage of Murphy that "[o]ur courts may not include in a marital estate military retirement pay which has been waived in order to receive veterans' disability benefits from the United States." Marriage of Murphy, 261 Mont. at 368, 862 P.2d at 1146 (limiting expressly In re Marriage of Cooper (1990), 243 Mont. 175, 793 P.2d 810, which held that military disability benefits may be included in a marital estate under Montana law).

¶ 14 On the basis of the foregoing holdings, Brandy argues that both Mansell and Marriage of Murphy are factually distinguishable from the case at bar. Here, in contrast, there are no military retirement benefits at issue which have been waived in order to receive VA disability benefits. Indeed, Justin served in the military for only a few months prior to his discharge for medical reasons related to the debilitating automobile accident; and that short stint of service did not entitle Justin to military retirement benefits, which generally require, as Brandy points out, service in a branch of the Armed Forces for a specified period of at least twenty years. See Mansell, 490 U.S. at 583,

109 S.Ct. at 2025,

104 L.Ed.2d at 681.

¶ 15 Thus, Brandy asserts that Mansell and Marriage of Murphy provide no authority for reversing the District Court's inclusion of a portion of Justin's VA lump sum disability settlement in the marital estate pursuant to the "however and whenever acquired" directive of § 40-4-202, MCA. Leaving aside the question of federal preemption for the moment, Brandy is correct in asserting that Montana law vests our trial courts with broad authority to equitably divide a marital estate in a dissolution action:

In a proceeding for dissolution of a marriage,... the court, without regard to marital misconduct, shall ... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

Section 40-4-202(1), MCA.

¶ 16 However, Brandy's attempt to distinguish Marriage of Murphy to avoid federal preemption faces a formidable obstacle in the strong language of the opinion. In Marriage of Murphy, this Court unequivocally stated that the Mansell decision "clearly directed State courts that a serviceperson's Veterans' Administration (VA) disability pay cannot be considered as part of a marital estate. . . ." Marriage of Murphy, 261 Mont. at 365, 862 P.2d at 1144

(emphasis added). Indeed, in Marriage of Murphy, we repudiated the Cooper Court's reliance on the "however and whenever acquired" directive of § 40-4-202, MCA, as a legal basis for including VA disability benefits in a marital estate, reasoning that "[s]uch inclusion in the marital estate of the `VA' disability benefits is an incorrect analysis of the law following the Mansell decision." Marriage of Murphy, 261 Mont. at 366, 862 P.2d at 1145 (holding that although Marriage of Cooper was "incorrectly decided" with respect to VA disability benefits, it "remains precedent" for military retirement pay); see also Lawrence J. Golden, Equitable Distribution of Property § 6.06A, at 182 (Supp.1993) (criticizing Marriage of Cooper as having "erroneously" divided military disability pay under state law "without even discussing the [federal] preemption question").

¶ 17 That Justin never "waived" military retirement pay in order to receive VA disability benefits does not answer the question of whether the USFSPA preempts, of its own force, state law on the question of whether VA disability pay may be included in a marital...