Moore v. Moore, WD 78641

Decision Date22 March 2016
Docket NumberWD 78641
Parties Jennifer Erin Moore, Respondent, v. Bryan Andrew Moore, Appellant.
CourtMissouri Court of Appeals

Jill K. Shipman–DeHardt, Lee's Summit, MO, Richard L. Rollings, Jr., Camdenton, MO, Attorneys for Respondent,

Jeffrey S. Royer, Blue Springs, MO, Attorney for Appellant.

Before Division II: Cynthia L. Martin, Presiding Judge, and Mark D. Pfeiffer and Karen King Mitchell, Judges

Mark D. Pfeiffer
, Judge

Mr. Bryan Andrew Moore ("Husband") appeals from the Judgment of the Circuit Court of Jackson County, Missouri ("trial court"), in favor of Ms. Jennifer Erin Moore ("Wife"), compelling enforcement of an underlying divorce decree relating to division of Husband's military retired pay. We affirm.

Facts and Procedural History1

Husband and Wife were married in 1989 and divorced by the trial court via Judgment and Decree of Dissolution of Marriage on July 2, 2013 ("Dissolution Decree"). The Dissolution Decree was not appealed by either party and became a final judgment before the initiation by Wife of her motion seeking to compel, inter alia, enforcement of the terms of the Dissolution Decree.

Prior to the Dissolution Decree, Husband and Wife successfully negotiated a settlement agreement that would later be incorporated into the Dissolution Decree at the request of the parties. In that settlement agreement, the parties expressly undertook the task of agreeing upon a division of military benefits related to Husband's twenty-three years of active service to the United States Military and his retirement from active duty due to disability.

Of relevance to this appeal, the parties agreed that the sum paid by the United States Military would be deemed Husband's "Military Pension," that Wife would receive fifty percent (50%) of Husband's monthly Military Pension payments (including 50% of any cost of living increases), and that the 50% calculation would only be reduced by any monthly premium reduction for Survivor Benefit Plan (SBP) costs. The agreement expressly defined Military Pension to include monthly benefits that represented Husband's "retired pay ... actually or constructively waive[d] ... in any manner and for any reason or purpose." Thus, for example, in the spring and early summer of 2014, Husband's monthly gross pay from the United States Military ($3,578.00) less SBP costs ($232.63) equaled $3,345.37, and Husband paid Wife $1,672.68, representing 50% of the net monthly military payment of $3,345.37.

In reality, the entire amount of Husband's monthly payments from the United States Military represented payments related to disability and any associated waivers of retired pay.

The parties requested that the trial court incorporate the terms of the settlement agreement into the Dissolution Decree, which the trial court did, noting as follows, in pertinent part:

For the purpose of interpreting the intention of the Court in making this division, Military Pension includes retired pay paid or to which [Husband] would be entitled for longevity of active duty and/or reserve component military service and all payments paid or payable under the provisions of Title 38 or Chapter 61 of Title 10 of the United States Code, before any statutory, regulatory, or elective deductions are applied (except for deductions because of an election to provide a survivor benefit annuity to [Wife] ). It also includes all amounts of retired pay [Husband] actually or constructively waives or forfeits in any manner and for any reason or purpose, including but not limited to any waiver made in order to qualify for Veterans Administration benefits, or reduction in pay or benefits because of other federal employment.

(Emphasis added.) Not only was this language derived exactly from the wording proposed by the parties in their settlement agreement, but both parties' attorneys signed the Dissolution Decree under the trial court's signature, "approv[ing]" the Dissolution Decree "as to form." The Dissolution Decree was signed by the trial court on July 2, 2013, neither party appealed from the Dissolution Decree, and it became a final judgment.

On or around July 1, 2014, Husband received a letter from the Defense Finance and Accounting Service ("DFAS") stating: "The entire amount of the member's retired/retainer pay is based on disability, thus there are no funds for payment under the USFPA."2 Husband ceased making payments as ordered by the Dissolution Decree. Wife sought relief from the trial court related to enforcing the Dissolution Decree. The trial court entered judgment on April 8, 2015, ordering Husband to resume making the monthly "Military Pension" payments as directed by the Dissolution Decree and to otherwise become current on his past-due obligations to Wife. Husband appealed.

Standard of Review

Appellate review of this court-tried civil case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)

. See Booher v. Booher, 125 S.W.3d 354, 356 (Mo.App.E.D.2004) (stating appellate court review of trial court's ruling regarding a motion seeking to enforce a dissolution decree is pursuant to Murphy v. Carron ). We must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. Although we defer to the trial court's factual determinations, we review issues of law de novo. Morgan v. Morgan, 249 S.W.3d 226, 230 (Mo.App.W.D.2008).


In Husband's sole point on appeal, though he couches his claim of error as one involving a mistake of law in the present judgment (as it relates to military retired pay), he essentially argues that the trial court never had authority to divide Husband's military disability payments as a marital asset in the Dissolution Decree ; hence, Husband argues that any attempt by the trial court to enforce the Dissolution Decree in the present proceeding violates federal law on the topic of military retired pay. In reality, then, Husband is collaterally attacking the Dissolution Decree, which has become a final judgment, by asserting that the Dissolution Decree contains a mistake of law—a mistake of law, coincidentally, that Husband requested the trial court incorporate into the Dissolution Decree in the first instance. To state Husband's argument is to understand our disdain for it.

Military Retired Pay
Members of the Armed Forces who serve for a specified period may receive retired pay upon their retirement. Mansell v. Mansell, 490 U.S. 581, 583, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989)

. "Veterans who became disabled as a result of military service are eligible for disability benefits." Id. ; see 38 U.S.C. §§ 1110, 1131. The amount of disability benefits a veteran is eligible to receive is calculated according to the seriousness of the disability and the degree to which the veteran's ability to earn a living has been impaired. Mansell, 490 U.S. at 583, 109 S.Ct. 2023 ; see 38 U.S.C. §§ 1114, 1155. "In order to prevent double dipping, a military retiree may receive disability benefits only to the extent that he [or she] waives a corresponding amount of his military retired pay." Mansell, 490 U.S. at 583, 109 S.Ct. 2023. "Because disability benefits are exempt from federal, state, and local taxation, military retirees who waive their retired pay in favor of disability benefits [can] increase their after-tax income." Id. at 583–84, 109 S.Ct. 2023 (citation omitted).

Morgan, 249 S.W.3d at 230


The Uniformed Services Former Spouses' Protection Act [USFSPA] authorizes state courts to treat "disposable retired pay" as marital property. 10 U.S.C. § 1408(c)(1)

(1988 & Supp. V 1993). Missouri considers military nondisability retirement benefits received for service during marriage as marital property. Moritz v. Moritz, 844 S.W.2d 109, 115 (Mo.App.1992). The USFSPA defines "disposable retired pay" as "the total monthly retired pay to which a [military] member is entitled," minus certain deductions. 10 U.S.C. § 1408(a)(4). Among these deductions are amounts waived in order to receive disability benefits, § 1408(a)(4)(B), and amounts deducted as premiums for a SBP, § 1408(a)(4)(D). 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." Mansell, 490 U.S. at 590, 109 S.Ct. at 2029.

In re Marriage of Strassner, 895 S.W.2d 614, 616 (Mo.App.E.D.1995)

(emphasis added).3 "It is clear that under Mansell a state court may not treat military retirement pay that has been waived to receive veterans' disability benefits as property divisible in a dissolution action." Id. at 617 (internal quotation omitted).

"Although the trial court may not have authority to do so, however, the parties may agree to a property division which awards one spouse a share of the other spouse's nonmarital property." Roberts v. Roberts, 432 S.W.3d 789, 794 (Mo.App.W.D.2014)

. See also Franken v. Franken, 191 S.W.3d 700, 702 (Mo.App.W.D.2006) (stating that a separation agreement in which the parties agreed that a part of husband's nonmarital property pension was to be awarded to wife was enforceable so long as: the parties had voluntarily reached the agreement; it was not unconscionable; the parties had requested that it be incorporated into the dissolution decree; and the trial court had so incorporated the agreement into the dissolution decree). The same is true in this case.

Here, at the behest of the parties, after voluntarily agreeing to the terms of their property settlement agreement, the trial court incorporated the settlement agreement into the Dissolution Decree and, accordingly, treated certain of Husband's nonmarital disability payments from the United States Military as marital property and divided that asset in the Dissolution Decree. Though the trial court may not have possessed the authority to do so on its own, the parties...

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