In re the Marriage of Jennings

138 Wash. 2d 612
CourtWashington Supreme Court
DecidedJuly 29, 1999
DocketNo. 67094-3
StatusPublished
Cited by1 cases

This text of 138 Wash. 2d 612 (In re the Marriage of Jennings) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Jennings, 138 Wash. 2d 612 (Wash. 1999).

Opinion

Smith, J.

— Petitioner Karen Rae Jennings seeks review of a decision of the Court of Appeals, Division Two, which reversed and remanded to the Thurston County Superior Court for reinstatement of a decree of dissolution which granted Petitioner as her community share one-half of her former husband’s unliquidated monthly military retirement benefits which was significantly reduced when a substantial portion of the military retirement benefits was allocated by the Department of Veterans Affairs for disability benefits not subject to division in a marital dissolution. We granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether the Thurston County Superior Court properly modified its decree of dissolution under Court Rule (CR) 60(b)(ll) because the portion of military retirement benefits awarded to a wife as

[614]*614her community share of her husband’s unliquidated military retirement benefits was significantly reduced when a substantial portion of the military retirement benefits payable to her former husband was allocated to disability benefits not subject to division in a marital dissolution.

STATEMENT OF FACTS

Petitioner Karen Rae Jennings and Respondent Michael Kevin Jennings were married July 1, 1967 in Spokane, Washington and separated on May 15, 19891 A trial for dissolution of their marriage was held on August 8, 1990 before the Honorable Paula Casey in the Thurston County Superior Court.2 Judge Casey signed a decree of dissolution of marriage3 4on March 26, 1992 which characterized as community property and divided Respondent’s military retirement benefits between the parties as follows:

3.3 PROPERTY TO BE AWARDED THE HUSBAND.

The husband is awarded as his separate property the following property:
One Thousand Thirty Eight dollars ($1038) per month from his monthly retirement benefit from the United States Military.

3.4 PROPERTY TO BE AWARDED THE WIFE.

The wife is awarded as her separate property the following property:
The wife shall also be entitled to Eight Hundred Thirteen dollars ($813) per month of the Petitioner’s military retirement. The wife’s share of the community interest of the [615]*615husband’s military retirement portions out to a monthly payment of Eight Hundred Thirteen dollars and Fifty cents ($813.50) per month. Said payment shall be made directly to the wife commencing with the month of September, 1990;5 [5]

3.14 DIVISION OF RESPONDENT’S MILITARY RETIREMENT

The military retirement pay presently being received by the Respondent is a marital asset to be divided by the Court as property. The parties were married for the entire length of the service member’s active duty and the Petitioner is therefore entitled to full medical, commissary and exchange privileges. The Petitioner is entitled to fifty percent (50%) of the gross retirement pension and shall be paid the sum of not less than Eight Hundred Thirteen dollars and Fifty cents ($813.50) per month commencing with the month of September, 1991. Said allotment of Eight Hundred Thirteen dollars and Fifty cents ($813.50) per month shall be paid directly to her from the Army Finance Center under the provisions of the Uniformed Services Former Spouses Protection Act and further redefined by PL 101.510. The Petitioner will receive fifty percent (50%) of the gross retirement pay and she should.be entitled to a like percentage of the withholding tax credit, as well as cost of living adjustments (COLAS). The portion of the retirement pay waived by the Respondent in order to receive disability compensation from Veteran’s Affairs, is not divisible by the Court and as such should be awarded to the Respondent as his sole and separate property under provisions of Federal Law.[6]

After the decree of dissolution was granted, the Department of Veterans Affairs (formerly Veterans Administration) determined Respondent’s disability had worsened and changed his disability status.7 The Department of Veterans Affairs then increased Respondent’s disability benefits from $318.00 to $2,285.00 per month and decreased his retirement benefits from $2,139.00 to $272.90 per month under [616]*616applicable government regulations.8 Respondent also began receiving Social Security disability benefits in the amount of $1,200.00 per month for total monthly income of $3,757.90.9

The pertinent portions of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408(a)(4)(B) and (6), reads:

(4) The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which
(B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;
(6) The term “spouse or former spouse” means the husband or wife, or former husband or wife, respectively, of a member who, on or before the date of a court order, was married to that member.

Section 1408(c)(1) reads:

(c) Authority for court to treat retired pay as property of the member and spouse.—(1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount [617]*617of retired pay of a member as the property of the member and the member’s spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member’s spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member’s spouse or former spouse.

Under the Wartime Disability Compensation Act, 38 U.S.C. § 1110, and the Peacetime Disability Compensation Act, 38 U.S.C. § 1131, disability payments are authorized

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in fine of duty, in the active military, naval, or air service . . .

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Related

Perkins v. Perkins
26 P.3d 989 (Court of Appeals of Washington, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
138 Wash. 2d 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jennings-wash-1999.