Rearden v. Rearden
| Decision Date | 26 September 1990 |
| Docket Number | No. 21793-CA,21793-CA |
| Citation | 568 So.2d 1111 |
| Parties | Tommie Eugene REARDEN, Appellant, v. Maxine Annette REARDEN, Appellee. 568 So.2d 1111 |
| Court | Court of Appeal of Louisiana — District of US |
Ronald J. Miciotto, Shreveport, for appellant.
Charles J. Neupert, Jr., Shreveport, for appellee.
Before NORRIS and LINDSAY, JJ., and JASPER E. JONES, Judge Ad Hoc.
Tommie Eugene Rearden appeals the judicial partition of community property owned by himself and Maxine Annette Rearden, his former wife. Mrs. Rearden answers the appeal. The trial court awarded specific proportions of the husband's military retirement and the wife's private retirement account to each party. In addition, it granted Mr. Rearden a credit against Mrs. Rearden's portion of the military retirement for accumulated permanent alimony paid. The parties reached a voluntary partition of the other community assets. For the reasons expressed, we reverse in part, amend in part, and render.
Mr. Rearden joined the United States Air Force June 15, 1961 while living in Missouri. He married Mrs. Rearden in 1962 and remained domiciled in Missouri until February 1976 when he was transferred to Barksdale Air Force Base, Bossier City, Louisiana. Later that year the couple bought a house in Bossier City. Mrs. Rearden began working for Pioneer Bank in January 1978. On July 1, 1981 Mr. Rearden retired from military service and in August 1982 he applied, for tax reasons, for Veterans Administration Disability benefits to replace a portion of his military retirement pension.
Marital difficulties ensued and on December 31, 1983 Mr. Rearden left the marital home. Mrs. Rearden filed a petition for separation on January 5, 1984 and obtained a judgment of separation on February 7, 1984. The judgment dissolved the community of acquets and gains retroactive to the filing of the petition for separation and ordered Mr. Rearden to pay $300 per month alimony pendente lite and $300 per month child support. He actually paid Mrs. Rearden $720 per month which included $120 per month over and above the judgment to assist with expenses.
The couple reconciled on December 15, 1984 and remained together until March 28, 1985. Both parties testified that they did not execute a matrimonial agreement to reestablish the community either at this time or later. After the second separation in March 1985 the parties agreed Mr. Rearden would pay $300 per month for child rearing expenses and $420 per month for the house payment.
On June 13, 1986 Mr. Rearden filed for a final divorce. Mrs. Rearden reconvened requesting, among other things, alimony pendente lite; by judgment-on-rule the court awarded alimony pendente lite of $500 per month commencing August 1, 1986. On October 16, 1987 Mr. Rearden was granted a judgment of final divorce. On December 4, 1987 Mrs. Rearden was awarded a judgment of permanent alimony commencing September 1, 1987 in the amount of $400 per month.
The trial for judicial partition was held in June 1988 and judgment was signed on September 20, 1989. The trial court ordered, pursuant to LSA-R.S. 9:2801, that Mrs. Rearden receive an interest of 47.9% in the military retirement pension, specifically including V.A. Disability pay. It calculated that Mrs. Rearden's interest had accrued to a sum of $10,982.37 from July 1986 until May 1989, prior to the partition judgment. It also found that Mr. Rearden was entitled to a 50% interest in the Pioneer Bank Retirement account; therefore, it ordered that 1/2 the cash value of that account ($5,944.00) and all permanent alimony she had received since September 1987 ($8,400.00) be applied against her share of the military retirement pension. The net effect of the judgment was to give Mr. Rearden a credit of $3,361.13 to be satisfied out of the community property assets. The judgment reduced the permanent alimony to $72.63 a month effective the date of judgment because of the change in circumstances caused by Mrs. Rearden's recovery of 47.9% of the military retirement benefits and Disability pay. The court also ordered that Mr. Rearden would not be reimbursed for house payments.
On appeal Mr. Rearden argues the trial court erred in subjecting his V.A. Disability payments to Louisiana's community property law. Mr. Rearden also asserts the court made a clerical error in computing his credit for accumulated alimony paid. By her answer to the appeal Mrs. Rearden claims the court erred by granting a credit to Mr. Rearden for accumulated permanent alimony paid. She further argues that the trial court improperly calculated her portion of the military retirement pension. She claims she should have started receiving her portion of the benefits as of January 5, 1984, the date of termination of the community, rather than July 1986. She also requests, in the event we find the Disability payments not to be community property, that we increase her alimony by an amount equivalent to her award from the trial court for Disability payments. We find merit in Mr. Rearden's argument as to disability benefits. However, we also find merit in the other arguments presented by Mrs. Rearden. We therefore reverse in part, amend in part, and render.
Mr. Rearden served 20 years in the United States Air Force. He retired July 1, 1981 and applied for Veterans Administration Disability payments in August 1982. The government apportioned 10% of his military retirement pension as Disability payments and required him to waive an equivalent amount of his military retirement benefits. Therefore, he received the same sum as before, only with part of his retirement benefits designated as non-taxable Disability pay. Mr. Rearden was receiving $71.00 per month for Disability pay as of the time of the trial for judicial partition. He claims the Disability payments received are not subject to Louisiana community property law.
The Uniformed Services Former Spouses' Protection Act (The "Act"), 10 U.S.C. Sec. 1408(c)(1) clearly states:
Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. (emphasis added)
This provision allows state courts to partition, upon dissolution of a marriage, the military retirement benefits of one spouse in accordance with that state's marital property law. However, 10 U.S.C. Sec. 1408(a)(4) 1 stated:
"Disposable retired or retainer pay " means the total monthly retired or retainer pay to which a member is entitled (other than the retired pay of a member retired for disability under Chapter 61 of this title)[.] (emphasis added)
The Act does not grant state courts the power to allocate total retirement pay, including V.A. Disability payments for which a portion of the military retirement pension was waived. Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). Prior to the Mansell decision, this court applied Louisiana law to characterize V.A. Disability payments received in lieu of military retirement benefits as community property. Campbell v. Campbell, 474 So.2d 1339 (La.App. 2d Cir.1985), writ denied 478 So.2d 148 (La.1985). However, subsequent to the Mansell decision this court has stated that V.A. Disability benefits received in lieu of military retirement benefits are not subject to Louisiana's community property law. Tarver v. Tarver, 557 So.2d 1056 (La.App. 2d Cir.1990), at fn. 1, writ denied, 563 So.2d 877 (La.1990). This subsequent result is also consistent with the classification scheme for marital property under Missouri law. In re Marriage of Cox, 724 S.W.2d 279 (Mo.App.1987). Under the authority of Mansell, we reverse that portion of the judgment that divides the V.A. Disability benefits into community shares.
By answer to the appeal, Mrs. Rearden argues the trial court erred in awarding Mr. Rearden a credit for accumulated permanent alimony paid. The December 1987 judgment ordered Mr. Rearden to pay Mrs. Rearden $400 per month permanent alimony commencing September 1, 1987. The partition judgment, however, allowed Mr. Rearden to offset the accumulated military pension owed to Mrs. Rearden with all permanent alimony payments made since September 1987. In effect, the court denied Mrs. Rearden a portion of her community property.
A former spouse's share of community property cannot be reduced for accumulated permanent alimony payments received. 2 Dugas v. Dugas, 544 So.2d 111 (La.App. 3d Cir.1989); Gottsegen v. Gottsegen, 503 So.2d 588 (La.App. 4th Cir.1987), writ denied, 503 So.2d 1019 (La.1987). In addition, LSA-R.S. 9:2801(4)(b) provides:
The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value. (emphasis added)
Permanent alimony is not classified as a community asset since the community terminates upon divorce. LSA-C.C. art. 2356. Thus the community property, which does not include permanent alimony, must be allocated equally between the spouses in judicial partition. The trial court erred in crediting accumulated permanent alimony paid by Mr. Rearden against the accumulated military pension he owed. This portion of the judgment will be reversed.
The trial court determined that under LSA-C.C. art. 155 B the parties' reconciliation of December 1984 effected a reestablishment of the community retroactive to the filing of the petition for separation. It further found the community was not terminated until Mr. Rearden filed his petition for final divorce, June 13, 1986, and it allocated the military retirement pension from June 1986 only.
Art. 155 B ( Acts 1985, No. 525 Sec. 1) states:
Upon reconciliation of the spouses, the community...
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