Parker v. Parker

• Citation: 2023 S.D. 5
• Decision Date: 18 January 2023
• Docket Number: 29724-r-MES
• Parties: DANIEL PARKER, Plaintiff and Appellee, v. CAMILLE PARKER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

2023 S.D. 5

DANIEL PARKER, Plaintiff and Appellee, v. CAMILLE PARKER, Defendant and Appellant.

No. 29724-r-MES

Supreme Court of South Dakota

January 18, 2023

CONSIDERED ON BRIEFS MAY 25, 2022

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE JON SOGN Judge.

PATRICK DOUGHERTY of Dougherty & Dougherty, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.

VICTORIA M. DUEHR of Bangs, McCullen, Butler, Foye &amp Simmons, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellee.

SALTER, JUSTICE.

[¶1.] Camille Parker appeals from the circuit court's judgment and decree of divorce, challenging the court's division of the military retirement for her former spouse, Daniel Parker. Camille argues the circuit court abused its discretion in determining Daniel's military "monthly pay base" to be $1,500.94. We vacate this portion of the court's decree and remand for further proceedings.

Facts and Procedural History

[¶2.] This case comes before us with a rather sparse record. Missing are transcripts from the four-day divorce trial, and nearly all of the information relating to the property division issue presented here was not included in the record but simply attached to the appellate briefs. See Batchelder v. Batchelder, 2021 S.D. 60, ¶ 5 n.2, 965 N.W.2d 880, 882 n.2 (holding that the practice of attaching material not included in the record to briefs "does not comply with our rules for preparing appendices"); Klutman v. Sioux Falls Storm, 2009 S.D. 55, ¶ 37, 769 N.W.2d 440, 454 ("Documents in the appendix must be included within, and should be cross-referenced to, the settled record.") (citing SDCL 15-26A-60(8)). Nevertheless, we have gleaned the following facts from explicit and contextual aspects of the record and briefs that appear to be undisputed.

[¶3.] Daniel and Camille were married in June 2010. Prior to their marriage, Daniel began serving as an enlisted member of the South Dakota Air National Guard. His service continued during the marriage and, indeed, continues to the present time.

[¶4.] At some point, Daniel also began serving in a civilian capacity for the National Guard. In his civilian position, Daniel works as an avionic technician during the week. In his military role, Daniel participates in guard drills and military training. He is also subject to mobilization for active duty in the Air Force under federal authority. See 10 U.S.C. § 12406 (authorizing the President to call "members and units of the National Guard of any State" to federal service).

[¶5.] This "dual status," though perhaps somewhat novel, is specifically authorized under federal law and was recently the subject of a helpful exposition by the United States Supreme Court:

As its name suggests, this rare bird has characteristics of two different statuses. On one hand, the dual-status technician is a "civilian employee" engaged in "organizing, administering, instructing," "training," or "maintenance and repair of supplies" to assist the National Guard. § 10216(a)(1)(C); 32 U.S.C. §§ 709(a)(1)-(2). On the other, the technician "is required as a condition of that employment to maintain membership in the [National Guard]" and must wear a uniform while working. 10 U.S.C. § 10216(a)(1)(B); 32 U.S.C. §§ 709(b)(2)-(4).

This dual role means that [dual-status] technicians perform work in two separate capacities that yield different forms of compensation. First, they work full time as technicians in a civilian capacity. For this work, they receive civil-service pay . . . . Second, they participate as National Guard members in part-time drills, training, and (sometimes) active-duty deployment. See 32 U.S.C. §§ 502(a), 709(g)(2). For this work, they receive military pay and pension payments from a different arm of the Federal Government, the Defense Finance and Accounting Service. See 37 U.S.C. §§ 204, 206; 10 U.S.C. § 113.

Babcock v. Kijakazi, 142 S.Ct. 641, 644, 211 L.Ed.2d 424 (2022) (first brackets in original); see also Moore v. Pa. Dep't of Mil. & Veterans Affs., 216 F.Supp.2d 446, 450 (E.D. Pa. 2002) (explaining the concept of dual-status, hybrid employees).

[¶6.] In any event, Daniel filed for divorce in May 2019, citing irreconcilable differences. As a result of either the parties' agreement or the circuit court's decision, all of the issues related to the equitable division of the marital estate were resolved following the court trial, with the exception of the division of Daniel's military retirement. It appears that the circuit court took this remaining issue under advisement at the completion of the trial, and the parties submitted argument to the court via email.

[¶7.] Strictly speaking, Daniel's military retirement is a potential marital asset because it is conditioned upon him becoming eligible for retirement, which is most commonly associated with completing twenty years of satisfactory service. A spouse's prospective military retirement is subject to equitable division under state law as part of a divorce or legal separation proceeding, but the ultimate amount of the military retirement is controlled by federal law. Because Daniel serves in the National Guard, his service is classified as "non-regular," which is contrasted with the "regular" service of active duty military members. See 10 U.S.C. § 12739 (stating the formula for computing monthly retired pay for non-regular service members).

[¶8.] Calculating monthly retired pay is different in some key respects for National Guard and reserve service members than it is for their active duty counterparts. Though a National Guard or reserve member's eligibility for retirement is most often determined by years of service, the amount of monthly retired pay is significantly influenced by the number of military retirement points they accrue for drill and intermittent periods of active duty.^[1]

[¶9.] In general terms, these retirement points are converted to corresponding years when a National Guard or reserve member begins to draw monthly retired pay using a statutory formula. See 10 U.S.C. § 12739. These years are then multiplied by a Guard or reserve member's "retired pay base," id., also termed the "high-three average." See 10 U.S.C. § 1407(b) (defining high-three average). Commonly known simply as the "high-3," this amount is the 36-month average of the non-regular member's "monthly basic pay[,]" as explained more fully below. See 10 U.S.C. § 1407(d)(1).

[¶10.] A circuit court's effort to equitably divide a divorcing military spouse's future retirement in cases such as this one implicates these retirement rules as the court seeks to isolate and divide the service time that corresponds with the parties' marriage. Consequently, the number of a military spouse's retirement points along with the military paygrade and the years of service at the time of the divorce are all important to the retirement calculus for non-regular service.

[¶11.] Here, the parties agree that Daniel accrued 913 retirement points during his marriage to Camille and had earned a total of 2,370 retirement points as of July 2019.^[2] Also undisputed is the fact that Daniel was serving as an Air Force master sergeant in the E-7 enlisted paygrade with sixteen years of service. And significantly, the parties also seem to agree in principle that Camille should share equally in the portion of Daniel's military retirement attributable to the years they were married. The parties disagree, however, about the correct amount of Daniel's high-3, and this is the principal issue before us in this appeal.

[¶12.] For her part, Camille asserts the high-3 amount should be $4,895, citing the military's 2021 Monthly Basic Pay Table. Camille justifies her position under the theory that Daniel is effectively serving on active duty given his dual-status role and proposed the following language for the circuit court's divorce decree:

The former spouse is awarded 50% of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with retired base (High-3) of $4,895 and with 913 Reserve retirement points on July 31, 2019, the date of separation. On the date of separation, July 31, 2019, the member's military pay grade (rank) was E7 and the member had Reserve retirement points 913, and the member had 16 years and XX months of service for basic pay purposes.

[¶13.] Daniel suggested a much lower high-3 amount of $1,500, which represented the average of his actual earnings as a National Guard member over the course of the previous thirty-six months. He offered a different 50% formulation for the decree:

The former spouse is awarded 50% of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired base (High-3) of $1,500 and with 913 Reserve retirement points on July 31, 2019 . . . .

[¶14.] Using the parties' somewhat incomplete legal arguments contained in emails, the circuit court opted for a third method which it included in the decree:

If Daniel receives disposable military pay, Camille is awarded a percentage of Daniel's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 913 retirement points earned during the period of the marriage, divided by the member's total number of reserve points earned. On the date of the decree of divorce, July 6, 2021, Daniel's military pay base (high-3) was $1,500.94 and the member had 2370 retirement points total at the time of valuation of July 2019.

[¶15.] Camille appeals, and in her initial appellate briefing, her argument remained fixed, incorrectly, on the idea that Daniel's dual-status role equates to him...