Scheidel v. Scheidel
Decision Date | 31 May 2000 |
Docket Number | No. 19,937.,19,937. |
Citation | 4 P.3d 670,129 N.M. 223,2000 NMCA 59 |
Parties | Nancy SCHEIDEL, Respondent-Appellant, v. Paul Neal SCHEIDEL, Petitioner-Appellee. |
Court | Court of Appeals of New Mexico |
Michael C. Jordan, Albuquerque, for Appellant.
William Short, Albuquerque, for Appellee.
{1} Brigadier General Paul Neal Scheidel (Husband) appeals from the trial court's order enforcing the terms of a Marital Settlement Agreement (MSA) entered into by Husband and Nancy Scheidel (Wife). The MSA divided Husband's military retirement benefits between the parties and prohibited Husband from taking any voluntary action to reduce Wife's share of those benefits. The MSA also contained an indemnity provision that would require Husband to compensate Wife for reductions in her benefits that might result from voluntary action by Husband. In the proceedings below, Wife successfully sought indemnity from Husband after Husband waived a portion of his retirement pay. On appeal, Husband argues that the trial court's order violates federal law. Husband further asserts that the trial court's determination that he violated the terms of the MSA, thereby triggering the indemnity provision, was in error. We affirm.
{2} Husband and Wife were married on June 3, 1960, while Husband was in the Air Force. Husband retired from the military in 1986. After the parties divorced in 1991, they entered into the MSA at issue, which was incorporated into the court's amended final decree. For the purposes of this appeal, the most significant portions of the agreement provide as follows:
The MSA also provides that Wife shall receive her payments from the Defense Finance and Accounting Service (DFAS), pursuant to a direct payment program established by federal law. See 10 U.S.C. § 1408(d)(1)-(2) (1994 & Supp. IV 1998).
{3} At the time of the divorce Husband was 30% disabled, and he received a commensurate amount of disability pay in lieu of retirement benefits. However, Husband suffered worsening heart problems in the years following the divorce. He had a number of strokes, and began taking medication to thin his blood. He also developed serious dental problems. Husband's condition required that he be hospitalized and put on medication to thicken his blood before he could have his dental problems treated. Because the Veterans Administration (VA) provides dental care only to military persons who are completely disabled, Husband applied for a reevaluation, and received a 100% disability rating.
{4} In accordance with federal law, Wife's share of Husband's military pension is based upon Husband's retirement pay, excluding any amounts received from the VA as disability pay. See 10 U.S.C. § 1408(a)(4)(B) (1994). Because a military retiree must waive a corresponding amount of retirement pay in order to receive veterans' disability benefits, see 38 U.S.C. § 5305 (1994), the amount received monthly by Wife as her share of the retirement benefits decreased dramatically after Husband's disability rating increased. Based upon the indemnity provision in the MSA, Wife therefore filed a motion for order to show cause, seeking an order forcing Husband to compensate her for the reduction in benefits. The trial court determined that Husband had violated the terms of the MSA by applying for and receiving a higher disability rating, and required Husband to indemnify Wife for her losses. This appeal followed.
{5} Husband asserts that the trial court's order is directly at odds with the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408 (the USFSPA), and the Supreme Court's ruling in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).
{7} In reliance upon Mansell, Husband contends that the trial court's order, which requires him to compensate Wife for the reduction in benefits that she suffered as a result of the increase in his disability rating, amounts to an impermissible distribution of disability benefits to Wife. We disagree.
895 S.W.2d at 618; Owen, 419 S.E.2d at 269-70.
{9} We find these cases persuasive. Not only is the rationale analytically sound, but the result is equitable. As this Court has previously noted, one spouse should not be permitted to benefit economically in the division of property from a factor or contingency that could reduce the other spouse's share, if that factor or contingency is within the first party's complete control. See Irwin v. Irwin, 121 N.M. 266, 271, 910 P.2d 342, 347 (Ct.App.1995)
.
{10} We acknowledge that when deciding cases with similar facts, courts in some jurisdictions appear to have reached conclusions contrary to ours. See, e.g., Ashley v. Ashley, 337 Ark. 362, 990 S.W.2d 507, 509 (1999)
Neb. 682, 600 N.W.2d 739, 744-45 (1999); Johnson v. Johnson, No. 02A01-9901-CV-00015, 1999 WL 713574, at * 3-5 (Tenn.Ct. App.1999), appeal granted, Apr. 10, 2000; Wallace v. Fuller, 832 S.W.2d 714, 718 (Tex. Ct.App.1992). Upon closer review, however, we find many of these cases distinguishable, and we find that they do not dissuade from our position.
{11} For example, in In re Marriage of Pierce, in contrast to this case, the settlement agreement at issue did not specify that the wife was to receive a certain sum of money per month, nor did it preclude the husband from doing anything to alter the amount the wife was to receive. See 982 P.2d at 997. As such, the court rightly held that the husband was free to waive his retirement pay in favor of disability benefits and that Mansell precluded the trial court from ordering otherwise. See In re Marriage of Pierce, 982 P.2d at 998
. In several of the other cases, the courts rightly...
To continue reading
Request your trial-
Merrill v. Merrill
...Government absent [his] conversion of his retirement pay to disability pay does not contravene” federal law); Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670, 674 (App.2000) (military retiree “may be required to shuffle assets or rearrange his finances” in order to satisfy indemnification ob......
-
Danielson v. Evans
...in the dissolution proceedings that he might do so. See Harris, 195 Ariz. 559, ¶ 13, 991 P.2d 262, ¶ 13. See also Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670, 675 (App.2000) (affirming trial court's determination that husband's post-dissolution "application for an increased disability ra......
-
Ghrist v. Ghrist, No. 03-05-00769-CV (Tex. App. 7/12/2007)
...if former service member was free to satisfy his obligation with assets other than his disability benefits); Scheidel v. Scheidel, 4 P.3d 670, 674 (N.M. Ct. App. 2000) ("[F]ederal law does not prohibit state courts from enforcing indemnity provisions which ensure the payment of a minimum su......
-
Krapf v. Krapf
...See, e.g., Abernethy v. Fishkin, 699 So. 2d 235, 240 (Fla. 1997); McHugh v. McHugh, 124 Idaho 543, 545 (1993); Scheidel v. Scheidel, 129 N.M. 223, 226 (Ct. App. 2000); Hisgen v. Hisgen, 554 N.W.2d 494, 498 (S.D. 1996); Owen v. Owen, 14 Va. App. 623, 629 (1992); In re Marriage of Choat, Nos.......
-
§ 12.03 Military Longevity and Disability Retirement
...Va. App. 623, 419 S.E.2d 267 (1992). See also: Florida: Abernathy v. Fishkin, 699 So.2d 235 (Fla. 1997). New Mexico: Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670 (2000). [256] Marriage of Strassner, 895 S.W.2d 614 (Mo. App. 1995). In Morgan v. Morgan, 249 S.W.3d 226 (Mo. App. 2008), the c......
-
The Killing of Krempin
...the indemnification approach (either by agreement or imposed in the terms of the original court order) include Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670 (2000), Abernethy v. Fishkin, 670 So.2d 1027 (Fla. Dist. Ct. App. 1996), Strassner v. Strassner, 895 S.W.2d 614 (Mo. Ct. App. 1995), ......