Spruell v. Spruell

• Decision Date: 18 September 2020
• Docket Number: A20A1007
• Parties: SPRUELL v. SPRUELL.
• Court: Georgia Court of Appeals

356 Ga.App. 722

848 S.E.2d 896

SPRUELL

v.SPRUELL.

A20A1007

Court of Appeals of Georgia.

September 18, 2020

Garnett Harrison, for Appellant.

Mark B. McManus Sr., Brunswick, for Appellee.

Dillard, Presiding Judge.

Joshua and Tamara Spruell married in 2006, and had a son nearly one year later. While Tamara raised their son, Joshua served in the United States Navy. And during his time in the Navy, Joshua deployed to Iraq and Afghanistan and suffered combat-related injuries. After Joshua's discharge, the couple divorced. Joshua now appeals the amended final judgment in his divorce action, arguing that the trial court erred in (1) treating his military disability pension as divisible property (in violation of federal law), (2) awarding Tamara alimony despite her never asserting such a claim, (3) failing to support a deviation from the child-support guidelines with findings of fact, and (4) basing its custody decision on an in-chambers interview with the couple's son, despite not providing a transcript of that interview. For the reasons set forth infra , we reverse the trial court's award of alimony, vacate its ruling as to child support and custody, and remand the case for further proceedings consistent with this opinion.

Viewing the evidence in the light most favorable to the trial court's rulings,¹ the record shows that Joshua and Tamara married on December 5, 2006. One month prior to their marriage, Joshua enlisted in the U.S. Navy and ultimately served as a medic. In October 2007, the couple had a son. And while Joshua continued his service in the Navy, Tamara raised their child in St. Marys, Georgia. For six months, in a period spanning part of 2008 to 2009, Joshua served in Iraq. And during that deployment, he suffered an injury from the blast of an improvised explosive device ("I.E.D."). Nevertheless, Joshua continued his service, and in 2012, he deployed to Afghanistan for eight months, where he again suffered an injury as a result of an I.E.D. blast. In 2013, Joshua returned from Afghanistan to a naval base in Port Hueneme, California, where he served for nearly four more years, while Tamara and their son remained in Georgia.

On April 28, 2017, the Navy involuntarily retired Joshua, having determined that his combat-related injuries rendered him unable to perform his current duties. Specifically, the Navy rated Joshua's disability at 70 percent, which allowed him to receive 70 percent of his base pay. And at that time, because he had only served a little over ten years in the military, Joshua was not eligible for longevity retirement compensation, which required at least 20 years of service.² But in light of his injuries, he was eligible to receive Military Disability Retirement. And in June 2017, he was given the option of waiving a portion of this retirement and, instead, receiving taxfree Veterans Disability Compensation—which he did, as it significantly increased his income.³ Additionally, because of his injuries, Joshua was eligible for and received Combat Related Special Compensation.⁴

In June 2017, Joshua moved back to Georgia, at which point, he and Tamara agreed to a formal separation and discussed obtaining a divorce. Consequently, on October 17, 2017, Joshua filed a complaint for divorce (which was later amended), in which he sought custody of the couple's son and child support from Tamara. Tamara filed an answer and counterclaim, seeking an equitable division of the property, child custody, child support, payment of marital debts, and attorney fees. The case then proceeded to a bench trial, during which Joshua and Tamara testified. The trial court also conducted an in-chambers interview of the couple's 11 year old son, with neither parent nor their counsel present. In addition, Tamara argued to the trial court that Joshua's military disability compensation was a marital asset subject to equitable division.

At the conclusion of the bench trial, the trial court took the matter under advisement. But concerned that the trial court seemed persuaded by Tamara's argument regarding the divisibility of his disability compensation, Joshua filed a motion to reopen the evidence, requesting that he be allowed to demonstrate otherwise. Tamara filed a response in opposition, and the trial court denied Joshua's motion. Subsequently, on May 23, 2019, the trial court issued a "Final Judgment Decree of Divorce," which, inter alia , awarded joint legal and physical custody of the couple's son and directed that the child live in the marital home with Joshua, but also provided that Tamara would have as close to equal time as possible. But noting that Joshua had a monthly income of $7,896 (while Tamara's was $4,086), the trial court declined to award him any child support. Finally, the trial court found that when Joshua elected to received disability compensation instead of military retirement, he converted a marital asset into a non-marital asset. And in consideration of this "conversion," the court awarded Tamara lump-sum alimony in the amount of $60,000.

Immediately thereafter, Joshua filed a motion for new trial, arguing that the trial court erred in failing to award child support and in awarding Tamara alimony based on its finding that Joshua's military disability compensation was essentially a marital asset that he converted. In addition, Joshua filed a motion to unseal the transcript of the trial court's in-chambers interview with the couple's son, but the court denied the motion. In doing so, the trial court explained that the court reporter misplaced the recording of the interview and, thus, could not create a transcript. Subsequently, the trial court conducted a hearing on Joshua's motion for new trial, during which Joshua presented testimony from an attorney with significant experience in the law pertaining to military benefits. This attorney explained to the court that Joshua's disability compensation was not a divisible asset under federal law. A few weeks after the hearing, the trial court issued an order, noting that while it agreed with Joshua's argument regarding the divisibility of his military disability compensation, it would use its power to set aside an order within the same term of court to amend the final judgment rather than grant a new trial. And in its "Amended Final Judgment Decree of Divorce," although the trial court acknowledged that Joshua's disability compensation was not divisible, it nonetheless—after citing the statutory requirements and the disparity between Joshua and Tamara's incomes—awarded Tamara $30,000 in lump-sum alimony. Joshua, thereafter, filed an application for discretionary appeal, which we granted. This appeal follows.

In the appellate review of a bench trial, we will not set aside the trial court's factual findings "unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses."⁵ But when a question of law is at issue, we review the trial court's decision de novo.⁶ With these guiding principles in mind, we turn now to Joshua's specific claims of error.

1. Joshua first contends that the trial court erred in treating his military disability pension as divisible property when it awarded Tamara $30,000 in lump-sum alimony in its Amended Final Judgment, arguing that doing so violated federal law. But given the trial court's explicit acknowledgment that the disability pension was not divisible, we disagree with this contention as premised.

In Howell v. Howell ,⁷ the Supreme Court of the United States noted that the Uniformed Service Former Spouses’ Protection Act provides that "a State may treat as community property, and divide at divorce, a military veteran's retirement pay."⁸ But the Howell Court also explained that "[t]he [Act], however, exempts from this grant of permission any amount that the Government deducts ‘as a result of a waiver’ that the veteran must make ‘in order to receive’ disability benefits."⁹ Accordingly, the Howell Court confirmed that it previously held that "a State cannot treat as community property, and divide at divorce, this portion (the waived portion) of the veteran's retirement pay."¹⁰ Indeed, as the Howell Court succinctly reiterated, "[F]ederal law completely preempts the States from treating waived military retirement pay as divisible community property."¹¹

And here, in its initial Final Judgment and Decree of Divorce, the trial court certainly overstepped its authority and ran afoul of the Howell decision in (1) ruling that when Joshua elected to received disability compensation instead of retirement, he converted a marital asset into a non-marital asset, and (2) awarding Tamara $60,000 in alimony on that basis.¹² But in its Amended Final Judgment and Decree of Divorce, the trial court reversed course and explicitly acknowledged that it could "neither grant [Tamara] a portion of [Joshua's] disability payments nor consider those payments when making its decision regarding alimony." Thus, we take the trial court at its word and do not agree with Joshua that it treated his military disability pension as divisible property.

2. Joshua also contends that the trial court erred in awarding Tamara alimony despite her never asserting such a claim. We agree.

As noted by the Supreme Court of Georgia, "[t]he constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard."¹³ Furthermore, neither the federal or Georgia's due process right

guarantees a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard, and to present its claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.¹⁴

In this matter, Tamara did not assert a claim for alimony in her counterclaims for divorce, nor did she ever amend her counterclaims. Moreover, Tamara never argued for alimony...