Fisher v. Fisher

462 S.E.2d 303, 319 S.C. 500, 1995 S.C. App. LEXIS 114
CourtCourt of Appeals of South Carolina
DecidedAugust 7, 1995
Docket2387
StatusPublished
Cited by20 cases

This text of 462 S.E.2d 303 (Fisher v. Fisher) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Fisher, 462 S.E.2d 303, 319 S.C. 500, 1995 S.C. App. LEXIS 114 (S.C. Ct. App. 1995).

Opinions

Hearn, Judge:

This is an appeal from a family court order which held that a wife who was entitled to a percentage share of her husband’s military retirement was also entitled to share in benefits he received under the voluntary separation incentive (VSI) program. The husband also appeals the award of child support. We affirm.

FACTS

The parties were married on June 16, 1979. Two children were born or the marriage, both of whom are still minors. In September of 1989, the parties separated and the husband commenced an action for separate maintenance which resulted in the issuance of a final order in August of 1990. The family court’s order approved the parties’ settlement agreement which provided, among other things, that the wife would receive 20% of the husband’s military retirement benefits, payable in monthly allotments upon actual entitlement, and $595 per month in child support.

In October of 1993, the husband received a voluntary discharge from the Navy. Because the husband had not fulfilled the mandatory twenty-year service requirement at the time of his discharge, he was not eligible for military retirement. The husband testified he had to reenlist periodically to continue serving in the Navy and he needed his commanding officer’s recommendation in order to do so. In the middle of a two-year enlistment period and less than four years before fulfill[503]*503ing twenty years of service, the husband extensively damaged a commanding officer’s vehicle and had to be transferred to the psychiatric floor of a Navy hospital as a result of the incident. Thereafter, the husband decided to voluntarily leave the Navy under the VSI program rather than risk an involuntary discharge. The husband entered into an early separation agreement with the Navy, which provided he would receive annual payments of $10,114.50 for thirty-two years.

In August of 1993, the wife commenced an action for divorce on the ground of one year’s continuous separation and requested the previous order be adopted by the court. The wife also alleged the husband’s negotiated early separation incentive plan with the United States Navy was in lieu of retirement benefits as contemplated in the 1990 order and requested she receive monies from his VSI payments, pursuant to the terms of the 1990 order. The husband answered and counterclaimed alleging the wife’s request for 20% of his VSI payments was barred by the doctrine of res judicata. The husband also requested a modification in child support on the grounds of reduced income.

The family court granted the wife’s request for divorce, ordered the husband to pay the wife 20% of each annual installment he received under his VSI agreement and required the husband to pay $595 per month in child support. This appeal followed.

DISCUSSION

I. Apportionment of Marital Property

The husband argues the family court erred in holding his VSI payments were marital property. Specifically, the husband asserts the VSI payments should have been deemed nonmarital property because he entered into the early discharge agreement with the Navy after judicial approval of the parties’ separation agreement, which only contemplated apportionment of his “retirement” benefits. We disagree.

It is well settled that military retirement benefits accrued during marriage constitute a shared investment of both parties and payments therefrom are subject to equitable apportionment. Eckhardt v. Eckhardt, 309 S.C. 225, 420 S.E. (2d) 875 (Ct. App. 1992). The characterization of VSI payments has never before been considered in South Carolina [504]*504and rarely has been considered elsewhere. Courts in Ohio and Florida have held VSI benefits more analogous to severance pay than to retirement benefits and therefore not marital property. See Kelson v. Kelson, 647 So. (2d) 959 (Fla. Dist. Ct. App. 1994); McClure v. McClure, 98 Ohio App. (3d) 27, 647 N.E. (2d) 832 (1994). Courts in Arizona, Montana, and another district court of appeals in Florida have held VSI benefits or special separation benefits (SSB) tantamount to retirement benefits and subject to equitable division. See In re Marriage of Crawford, 180 Ariz. 324, 884 P. (2d) 210 (Ct. App. 1994); Abernethy v. Fishkin, 638 So. (2d) 160 (Fla. Dist. Ct. App. 1994); Blair v. Blair, 894 P. (2d) 958 (Mont. 1995).

We agree with the family court that under the facts of this case, the husband’s early discharge under the VSI program is analogous to an early retirement. Like retirement benefits, payments pursuant to an early separation agreement are based in part on the length of time a person served in the military and his pay grade during his time of service. Here, the husband voluntarily elected to accept an early discharge from the Navy rather than risk an involuntary discharge, which would have been due solely to his own misconduct. Although the husband correctly cites S.C. Code Ann. Section 20-7-473(2)(c) (Supp. 1994) for the proposition that property acquired by either party after entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties is nonmarital, here, any rights the husband now possesses to receive early discharge incentive payments are due to the time he spent in the military and accrued during his marriage to the wife, not after the separation agreement was approved. Thus, we hold the family court properly deemed the funds received by the husband pursuant the VSI agreement marital property.

The husband also asserts the court lacked subject matter jurisdiction to modify the original property division made pursuant to the 1990 order. This argument is without merit. In light of our holding that the husband voluntarily elected to receive payments via an early discharge incentive plan in lieu of the retirement benefits contemplated in the original order, we find no error in the family court ordering payments to the wife pursuant to the provisions of the [505]*5051990 order. The husband cannot, by his voluntary act of changing the plan under which he will receive his post-military service payments, divest the wife or her rights as contemplated under the 1990 order.

Moreover, we do not agree with the husband’s contention that the VSI payments are not subject to state equitable distribution laws due to federal preemption. We are unaware of any federal statute which expressly excludes early discharge incentive pay from state equitable distribution. But see Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed. (2d) 675 (1989) (holding veteran’s disability benefits received in lieu of waived retirement benefits could not be treated as divisible property where disability pay was expressly exempted from claims pursuant to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C.A. § 1408(a)(4)(B) (Supp. 1995)). In our view, had Congress intended to exclude early separation incentive pay from state apportionment laws, it easily could have done so. Moreover, in discussing Congress’ intent in enacting these programs, one court noted that literature distributed by the Department of Defense explaining the Voluntary Separation Incentives and Special Separation Benefits programs states that the treatment of VSI and SSB payments is not dictated by federal law and that it will be up to the state courts to rule on the divisibility of these incentives. Abernethy v.

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Fisher v. Fisher
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Bluebook (online)
462 S.E.2d 303, 319 S.C. 500, 1995 S.C. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-fisher-scctapp-1995.