Watson v. Watson

• Court: U.S. District Court — Eastern District of North Carolina
• Writing for the Court: HEMPHILL, , Sitting by Designation
• Citation: Watson v. Watson, 424 F.Supp. 866 (E.D. N.C. 1976)
• Decision Date: 21 December 1976
• Docket Number: No. 76-0006-CIV-3.,76-0006-CIV-3.
• Parties: Mary Leigh WATSON, Plaintiff, v. George David WATSON, Defendant, and United States of America, Garnishee.

424 F. Supp. 866

Mary Leigh WATSON, Plaintiff, v. George David WATSON, Defendant and United States of America, Garnishee.

No. 76-0006-CIV-3.

United States District Court, E. D. North Carolina, Fayetteville Division.

December 21, 1976.

Robert D. Jacobson, of I. Murchison Biggs, P. A., Lumberton, N. C., for plaintiff.

George David Watson, pro se.

Carl L. Tilghman, U. S. Atty., E. D. N. C., Raleigh, N. C., and Joseph W. Dean, Asst. U. S. Atty., Chief, Civ. Section, E. D. N. C., Raleigh, N. C., for garnishee.

ORDER

HEMPHILL, District Judge, Sitting by Designation.

This is an action by the plaintiff, Mary Leigh Watson, to recover from her ex-husband, a retired colonel in the United States Air Force, now living in Europe, $24,000.00 in back alimony and child support payments pursuant to 42 U.S.C., Section 659. On February 6, 1976, plaintiff filed the complaint in the above-captioned action, and summoned the garnishee, attempting to garnish the full retirement pay of defendant, pursuant to Title 42, U.S.C., Section 659.

Answer was made by the garnishee, the United States of America, on March 15, 1976 stating that the net amount paid monthly to the defendant subject to garnishment was $1,546.58 per month as long as the defendant was entitled to that amount according to the laws governing retirement pay. Garnishee also stated that the sum of $1,546.58 was being held by the United States subject to further orders of this court concerning this disposition of this cause. Plaintiff in this action filed a motion for summary judgment and a hearing came on before this court in which both counsel for the plaintiff and counsel for the United States appeared and presented oral argument.

The plaintiff's cause rests upon two grounds for relief. The first ground is for $3,000.00 in child support. The second ground is for $21,000.00 in unpaid alimony and $300.00 a month future alimony payments to be garnished from the defendant's retirement pay. Both the plaintiff and the defendant-garnishee have stipulated that under the new child support statute in North Carolina, N.C.G.S. 110-136, a responsible parent may be garnished for child support not to exceed 20% of his disposable monthly income, and said garnishment may be had against the responsible parent's wages. Therefore, all parties agree that under 42 U.S.C., Section 659 and N.C.G.S. 110-136, the retirement pay of George David Watson, defendant herein, may be garnished $309.32 per month, said sum representing 20% of the defendant's disposable monthly earnings of $1,546.58, until the $3,000.00 in back child support has been paid.

All parties to this action have agreed that the decree of divorce granted plaintiff from defendant in the Circuit Court of Fairfax County, State of Virginia and the orders of that court for child support and alimony are not in issue before this court. The issue before this court to be decided on plaintiff's motion is, (1) whether the defendant, George David Watson's military retirement pay should be treated as wages for purposes of garnishment, and (2) under the law of the State of North Carolina is it permissible to garnish the defendant's military retirement pay to pay alimony?

The first issue for consideration by this court is what is the nature of defendant's retirement pay; is it in the nature of salary or in the nature of a vested sum due the defendant, which the United States must pay, and which therefore would be subject to attachment and garnishment as a normal debt. The plaintiff in this cause maintains that the military retirement pay received by the defendant from the United States is not a pension, grant or annuity, it is an emolument of the office held by the defendant, that is retired Colonel, United States Air Force, which is derived from statutory enactments of the Congress of the United States. Plaintiff maintains that defendant's retirement is an earned property right which accrues by reason of the years served by the defendant in the United States Air Force. In support of plaintiff's contention she cites Hooper v. Hartman, 163 F.Supp. 437 (D.C.Calif.), affirmed, 274 F.2d 429, 9 Cir. and Berkey v. United States, 361 F.2d 983, 176 Ct.Cl. 1. Berkey v. United States, supra, is distinguishable from the cause in bar in that Berkey dealt with accumulated retirement pay. In that case, the retired officer in question had been drawing retirement pay over a number of years and it had accumulated to a sizeable sum. At his death, his heirs sued to recover that sum and the court allowed said suit, holding that an accumulated retirement pay, under the veteran laws, should go to the survivors. In that case, the amount of money contested was already vested in the retired serviceman, and he would have been entitled to have received it himself as soon as he was dismissed from Veterans Hospital. It is evident from the facts that George David Watson's retirement is not a vested sum, but becomes due and payable each day that he lives.

There is no pre-existing retirement fund, earmarked for the use and benefit of George David Watson, defendant herein, in the United States Treasury. The defendant earns his retirement pay, like his pay when he was on active duty, by staying alive, obeying military discipline, and being subject to recall to the active military service. In effect, the defendant continues to hold the same office, that is, a retired Colonel, that he held when he was on active duty, and he continues to receive compensation for this employment. As stated in Hostinsky v. United States, 292 F.2d 508, 154 Ct.Cl. 443, (1961),

"plaintiff says a retired officer does not hold an office. We think that an officer in the Navy, though retired, is still an officer. He continues to draw pay as a retired officer; he draws it because he is still an officer. Being an officer, he is subject to recall to active duty at the will of his superiors. He is subject to recall whether he wishes to serve or not. He is still subject to naval discipline."

This theory is maintained in plaintiff's own case when they cite Hooper v. Hartman, supra. In that case, a retired rear admiral had been tried by court-martial for charges arising after he had retired from active service. After being convicted by military court-martial for these offenses, he lost all pay and allowances arising out of his retirement. The court-martialed admiral then sued in United States District Court attempting to have the action of the United States disallowed. The court affirmed the Government, holding, retired officers of the regular components of the armed services of the United States, entitled to receive pay, are officers of the United States, and the pay is not a pension or annuity, but is an emolument of and dependent upon the office so held. Upon ceasing to hold the office, the right to pay, being an emolument thereof and dependent thereon, likewise ceases. This case also supports the argument of the garnishee, the United States, in this cause, that an officer's retirement pay is subject to increase, decrease, or stop for various reasons. An officer's retirement pay is based upon the Consumer Price Index and can rise or fall an amount depending on the economy. As indicated above, the retirement pay can be stopped altogether with a violation of a retired individual of an offense against the Uniform Code of Military Justice. Retirement pay is also subject to modification under various federal laws intending to prevent conflicts of interest as was the subject of the case in Hostinsky v. United States, supra, and as appears in various sections of the United States Code. Title 5, U.S.C., Section 5532 states that retired officers are subject to having their retirement pay reduced if they receive other employment. Title 5, U.S.C., Section 8312 states that retirement pay is subject to forfeiture upon conviction of certain crimes. Title 37, U.S.C., Section 801 restricts retired officers from working in defense work for private firms within three years after retirement. The United States Constitution itself, Article I, Section 9, Clause 8, prevents retired officers from being employed by any foreign government. As alluded above, retired officers are subject to return to active duty whether they wish to go or not, and are subject to good order and military discipline. Moreover, retirement pay is not inheritable, and does not pass to the heirs of the retired officer...