Hillard v. Hillard

733 S.E.2d 176, 223 N.C. App. 20, 2012 WL 4497388, 2012 N.C. App. LEXIS 1140
CourtCourt of Appeals of North Carolina
DecidedOctober 2, 2012
DocketNo. COA12-353
StatusPublished
Cited by5 cases

This text of 733 S.E.2d 176 (Hillard v. Hillard) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hillard v. Hillard, 733 S.E.2d 176, 223 N.C. App. 20, 2012 WL 4497388, 2012 N.C. App. LEXIS 1140 (N.C. Ct. App. 2012).

Opinion

ELMORE, Judge.

I. Background

Charles Daniel Hillard (plaintiff) commenced this action for divorce and equitable distribution against Thi Den Hillard (defend[21]*21ant) on 24 August 1992. The parties’ original order for equitable distribution (the order) was entered on 28 September 1994. The order provided that plaintiff’s military retirement pay would be divided so as to award defendant one-half of plaintiff’s retirement benefits that accumulated from the time of marriage to the date of separation. The order specified that the retirement pay was from the U.S. Army (1972-1977), with the National Guard (1979-1991), and with the Army Aviation Support Facility (11/1980-7/1991).

Defendant filed a Motion for Amendment of Judgment on 31 July 2008, and the order was amended by consent of the parties on 30 December 2008 (2008 amended order). The 2008 amended order was less specific in its language, providing.only that defendant shall be entitled to 50% of plaintiff’s military retirement points, which she may receive at the time plaintiff is entitled to receive such benefits.

Plaintiff turned sixty and became eligible to receive his military retirement pay. Thereafter, defendant applied for and was denied former spouse payments from the National Guard Pension Fund because the 2008 amended order failed to direct the National Guard Pension Fund to make a specific distribution to defendant.

In December 2002, Congress enacted 10 U.S.C. § 1413(a), which created Combat-Related Special Compensation (CRSC) as a tax-free disability benefit available to veterans who suffered a combat-related disability as a direct result of armed conflict, training exercises that simulate war, or instrumentalities of war. A CRSC-eligible veteran may elect to receive these tax-free disability benefits up to the amount of retirement pay that the veteran would otherwise receive. Plaintiff applied for and was granted CRSC disability benefits in the amount of $1,081.00 per month.

Defendant filed a second Motion for Amendment of Judgment on 30 July 2010, which came on for hearing on 10 November 2010. During the hearing or some point earlier, defendant learned that plaintiff had elected to receive CRSC disability benefits in lieu of retirement pay. As a result, the parties voluntarily entered into a second amended order on 13 December 2010 (2010 amended order). The 2010 amended order provided that plaintiff shall pay defendant directly 31.637% of plaintiff’s monthly $1,081.00 payments that plaintiff would have received had plaintiff taken retirement pay instead of electing to take CRSC disability benefits. Plaintiff filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, which the trial court denied. Plaintiff now appeals.

[22]*22II. Plaintiffs Subject Matter Jurisdiction

Plaintiff first argues that his consent to the terms of the 2010 amended order does not preclude him from challenging the validly of such order for lack of subject matter jurisdiction. We agree.

A motion for relief pursuant to Rule 60(b) “is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975).

Under Rule 60(b)(4), a court may relieve a party from a judgment if the judgment is void. A judgment is void only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered. See In re Brown, 23 N.C. App. 109, 208 S.E.2d 282 (1974). Additionally, it is widely accepted “that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction.” Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956). Furthermore, when it appears that the court may lack jurisdiction, any person adversely affected may contest subject matter jurisdiction “at any time, even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986).

It is well settled that a party cannot consent to subject matter jurisdiction. Therefore, the fact that plaintiff agreed to the terms and entry of the 2010 amended order does not preclude him from raising the issue of subject matter jurisdiction on appeal. Plaintiff was not required to object to jurisdiction at the time the order was entered; it may be raised at any time.

III. Trial Court’s Subject Matter Jurisdiction

As we have determined that plaintiff has not waived his right to contest subject matter jurisdiction, we will now address plaintiffs contention that the trial court lacked the subject matter jurisdiction to enter the 2010 amended consent order because this area of law is federally preempted. We disagree.

“Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010).

Plaintiff contends that because military disability benefits, including CRSC, are not included within the definition of “disposable [23]*23retired or retainer pay” under USFSPA, these payments cannot be classified as marital property subject to distribution. See Halstead v. Halstead, 164 N.C. App. 543, 546, 596 S.E.2d 353, 355 (2004).

Plaintiff directs our attention to Halstead, where this Court reversed the trial court’s decision to increase the percentage of the husband’s retirement payable to the wife in order to account for the deduction in retirement pay as a result of the husband’s election to receive disability benefits. See Id. at 543, 596 S.E.2d 353. Here, this Court found that “[disability benefits should not, either in form or substance, be treated as marital property subject to division upon the dissolution of marriage.” Id. at 547, 596 S.E.2d at 356. In Halstead the trial court did not direct the husband to pay the increase from his disability benefits. Similarly, the trial court in the case at hand did not direct plaintiff to pay defendant specifically from his CRSC disability pay. However, plaintiff argues that, regardless of whether the amended order specifies that plaintiff must pay defendant directly from his CRSC benefits, the result is the same — plaintiff ends up paying defendant a portion of his retirement that was waived due to his election to receive disability benefits, which is what Halstead forbid.

Plaintiff is correct in noting that federal law continues to preempt state law with regard to all military payments except “disposable retired or retainer pay” and that disability payments are treated as the retiree’s separate property. See N.C. Gen. Stat. § 50-20(b)(1) (2012).

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Bluebook (online)
733 S.E.2d 176, 223 N.C. App. 20, 2012 WL 4497388, 2012 N.C. App. LEXIS 1140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillard-v-hillard-ncctapp-2012.