Murphy v. Murphy

• Decision Date: 23 April 1990
• Docket Number: No. 90-9,90-9
• Parties: James D. MURPHY, Appellant, v. Verna L. MURPHY, Appellee.
• Court: Arkansas Supreme Court

Page 684

787 S.W.2d 684

302 Ark. 157

James D. MURPHY, Appellant, v. Verna L. MURPHY, Appellee.

No. 90-9.

Supreme Court of Arkansas.

April 23, 1990.

James K. Young, Russellville, for appellant.

Richard L. Peel, Russellville, for appellee.

GLAZE, Justice.

This case involves an alimony dispute. The chancellor granted appellee the divorce based on three years separation without cohabitation, and ordered the appellant to pay alimony to appellee. In making the award, the chancellor noted appellant's military retirement pension, $1,554.00 per month, and then directed appellant to pay $361.00 per month. Due to certain waiver and election provisions under federal law, appellant actually received his entire monthly benefits as disability payments, which are not subject to taxation. In this appeal, appellant contends the trial court erred in requiring him to pay alimony out of his disability benefits, and appellee counters, arguing the trial court may order payment of alimony when such benefits are appellant's only source of funds.

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the Supreme Court held that pre-existing federal law completely pre-empted the application of state community property law to military retirement pay. Congress has since enacted the Former Spouses Protection Act (FSPA or Act) to change the legal landscape caused by the McCarty decision. That Act and a Supreme Court's recent decision interpreting it, Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), are argued by both parties in support of their respective positions. ¹

The FSPA provides that court ordered alimony, child support or division of property payments will be made directly to a former spouse who presents to the secretary of the relevant military branch a state court order granting her a portion of the military retiree's disposable retired or retainer pay. See 10 U.S.C. § 1408(d)(1) and (5) (Supp.1988). The alimony, child support or division of property amounts ordered paid may not exceed fifty percent of the member's disposable retired or retainer pay. 10 U.S.C. § 1408(e)(1) (Supp.1988). Disposable retired or retainer pay is defined as "the total monthly retired or retainer pay to which a military member is entitled," minus certain deductions. 10 U.S.C. § 1408(a)(4)(B) (1982); Mansell, at ----, 109 S.Ct. at 2026, 104 L.Ed.2d at 682.

In Mansell, the Supreme Court had before it a California court order that treated the retiree's disability benefits as community property. After reviewing the FSPA, the Court stated that, in the face of the FSPA's plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property, but they have not been granted the authority to treat total retired pay as community property. In this same vein, the court held that the FSPA does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veterans disability benefits. ²

In view of the Court's decision in Mansell, the appellee here is clearly not entitled to direct payments for alimony under the FSPA because the appellant has no disposable retired pay as defined under that Act. In fact, appellant's disability benefits are not only unavailable to appellee for alimony payments under the FSPA, but also they are subject to the strictures of the anti-attachment provision of 38 U.S.C. § 3101(a) once appellant actually receives his benefits. See Jones v. Goodson, 299 Ark. 495, 772 S.W.2d 609 (1989) [where the trial court held certain certificates of deposit purchased with veteran benefits were exempt from garnishment under 38 U.S.C. § 3101(a) ]. Even so, such conclusions do not preclude the trial court from ordering appellant to pay alimony, and once awarded, the FSPA does not relieve a retiree from paying such alimony obligations. See 10 U.S.C. § 1408(e)(6) (1982).

In challenging the court's alimony award, appellant argues he, not appellee, was the injured party, and besides, appellee had received alimony during their four years separation and therefore has had ample opportunity to rehabilitate herself for employment purposes. Of course, the relative fault of the parties is no longer a factor unless it meaningfully relates to need or ability to pay. Russell v....