STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-357
SHIRLEY A. BROUILLETTE
VERSUS
KENDRICK L. BROUILLETTE
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 217507 HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
Cooks, J., dissents and assigns written reasons.
AFFIRMED.
Richard E. Lee 810 Main Street Pineville, LA 71360 Telephone: (318) 448-1391 COUNSEL FOR: Defendant/Appellee - Kendrick L. Brouillette
Brian Davis Mosley P. O. Box 12127 Alexandria, LA 71315 Telephone: (318) 484-6100 COUNSEL FOR: Plaintiff/Appellant: - Shirley A. Brouillette THIBODEAUX, Chief Judge.
Shirley Brouillette appeals a trial court judgment which characterized
combat-related military benefits received by her ex-husband, Kendrick Brouillette,
as disability benefits exempt from Louisiana’s community property laws. Shirley
appeals.
For the following reasons, we affirm.
I.
ISSUES
We must decide whether the trial court erred:
(1) in finding that Kendrick Brouillette intended that 47% of his retirement benefits were not paid in lieu of alimony;
(2) in finding that the military benefits were disability benefits and not retired pay;
(3) in excluding the testimony of Darlene Doolittle, as offered by plaintiff/appellant, to prove the intent of Kendrick Brouillette; and,
(4) in finding that Kendrick Brouillette did alter his military benefits from retired pay to disabled pay with the intent to deprive Shirley Brouillette of her portion of the community.
II.
FACTS AND PROCEDURAL HISTORY
Shirley divorced Kendrick in 1986. The two agreed to and signed a
Community Property Settlement that provided Shirley would receive 47% of
Kendrick’s military retirement benefits as her part of the community. Shirley
received monthly payments from the retirement benefit, which were paid through the
garnishment of Kendrick’s monthly check from the Department of Veteran’s Affairs.
In 2004, Kendrick applied for eligibility to receive Combat-Related Special Compensation (CRSC) with the United States Army. CRSC is not considered a
retirement benefit. As a result, Shirley stopped receiving monthly payments.
Shirley filed a Petition to Enforce the Community Property Settlement
agreement. Kendrick filed a Peremptory Exception of Res Judicata, which was
ultimately granted by the trial court. Shirley appealed to the Third Circuit. We
affirmed in part and remanded in part. Brouillette v. Brouillette, 09-35 (La.App. 3
Cir. 5/6/09), 18 So.3d 756. On remand, the trial court held that the nature of
Kendrick’s military benefit did not qualify as a retirement benefit and the state had
no right to intervene and demand garnishment for the benefit for Shirley.
Our previous consideration of this case on appeal resulted in a remand
to the trial court with specific instructions to address the purpose and intent of
Kendrick’s military retirement assignment at the time he entered into the Community
Property Settlement Agreement with his wife.
III.
LAW AND DISCUSSION
1. The purpose and intent of Kendrick’s assignment
On remand, the trial court was asked to determine the parties’ intentions
under the Community Property Settlement Agreement. The terms of the agreement
stated that Shirley Brouillette would receive 47% of Kendrick Brouillette’s military
retirement pay as her portion of the community. The parties reached this designation
by using the Sims formula, which calculates the amount contributed by each member
of the community, during the community, in order to equally dissolve the community.
Sims v. Sims, 358 So.2d 919 (La.1978).
Shirley asserts that the trial court erred by not applying Poullard v.
Poullard, 00-1121 (La. App. 3 Cir. 01/31/01), 780 So.2d 498. Poullard held that an
2 ex-spouse still owed alimony despite a change from retirement benefits to disability
benefits. Poullard involved a couple who, by consent judgment, agreed to dissolve
the community. The consent judgment provided permanent alimony for the ex-wife.
Subsequently, the husband sought to change his benefits from retirement benefits to
disability benefits. He argued that the wife was not entitled to any portion of the
disability benefits because he had only agreed to partition the retirement benefits. We
disagreed, determining that at the time of the consent judgment the husband intended
to provide the wife with permanent alimony irrespective of the source for that
alimony. Id. at 500.
Unlike Poullard, the issue here is not related to alimony. Rather,
Kendrick Brouillette and Shirley Brouillette agreed that Shirley was to receive 47%
of the retirement benefits Kendrick received from the United States Army.
Furthermore, during the trial, the parties stipulated that the 47% “was not granted to
her [Shirley] for waiver of any future alimony.” Therefore, Poullard is
distinguishable and cannot avail Shirley under the circumstances of this case. The
47% of retirement benefits previously received by Shirley reflected her community
interest, and was not apportioned to alimony.
2. The designation of pay as disability pay
Kendrick received military retirement benefits from 1974 through 2004.
In 2004, he applied to the United States Army for consideration to receive Combat-
Related Special Compensation. Combat-Related Special Compensation (CRSC) is
a special benefit program designed by the Department of Defense to better aid retired
veterans afflicted by combat-related injuries or disabilities. 10 U.S.C. § 1413a.1 To
1 § 1413a. Combat-related special compensation
(a) Authority. The Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the
3 qualify for CRSC, the veteran must be retired from active duty military, prove that
he/she is at least ten-percent disabled as the result of combat duty, and personally
apply to receive the special compensation. Id. The provisions within this section
provide that CRSC is not military retired pay. 10 U.S.C. § 1413a(g).
Louisiana community property law recognizes that each spouse owns an
interest in community assets acquired or built during marriage. Generally, after the
dissolution of marriage, each spouse is entitled to his/her pro rata share of the
community assets, including retirement plans and pensions. Frazier v. Harper, 600
So.2d 59 (La.1992); Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975);
La.Code Civ.P. art. 2402. However, it is clear under Louisiana jurisprudence that
recipients of military disability benefits own the sole interest in those benefits.
Russell v. Russell, 520 So.2d 435 (La.App. 3 Cir. 1987); Rearden v. Rearden, 568
So.2d 1111 (La.App. 2 Cir. 1990) (Veteran’s Affairs disability benefits, received in
lieu of military retirement benefits, are not subject to Louisiana’s community property
law).
Kendrick introduced Defendant’s Exhibit Number 5. Exhibit 5 is a
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-357
SHIRLEY A. BROUILLETTE
VERSUS
KENDRICK L. BROUILLETTE
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 217507 HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
Cooks, J., dissents and assigns written reasons.
AFFIRMED.
Richard E. Lee 810 Main Street Pineville, LA 71360 Telephone: (318) 448-1391 COUNSEL FOR: Defendant/Appellee - Kendrick L. Brouillette
Brian Davis Mosley P. O. Box 12127 Alexandria, LA 71315 Telephone: (318) 484-6100 COUNSEL FOR: Plaintiff/Appellant: - Shirley A. Brouillette THIBODEAUX, Chief Judge.
Shirley Brouillette appeals a trial court judgment which characterized
combat-related military benefits received by her ex-husband, Kendrick Brouillette,
as disability benefits exempt from Louisiana’s community property laws. Shirley
appeals.
For the following reasons, we affirm.
I.
ISSUES
We must decide whether the trial court erred:
(1) in finding that Kendrick Brouillette intended that 47% of his retirement benefits were not paid in lieu of alimony;
(2) in finding that the military benefits were disability benefits and not retired pay;
(3) in excluding the testimony of Darlene Doolittle, as offered by plaintiff/appellant, to prove the intent of Kendrick Brouillette; and,
(4) in finding that Kendrick Brouillette did alter his military benefits from retired pay to disabled pay with the intent to deprive Shirley Brouillette of her portion of the community.
II.
FACTS AND PROCEDURAL HISTORY
Shirley divorced Kendrick in 1986. The two agreed to and signed a
Community Property Settlement that provided Shirley would receive 47% of
Kendrick’s military retirement benefits as her part of the community. Shirley
received monthly payments from the retirement benefit, which were paid through the
garnishment of Kendrick’s monthly check from the Department of Veteran’s Affairs.
In 2004, Kendrick applied for eligibility to receive Combat-Related Special Compensation (CRSC) with the United States Army. CRSC is not considered a
retirement benefit. As a result, Shirley stopped receiving monthly payments.
Shirley filed a Petition to Enforce the Community Property Settlement
agreement. Kendrick filed a Peremptory Exception of Res Judicata, which was
ultimately granted by the trial court. Shirley appealed to the Third Circuit. We
affirmed in part and remanded in part. Brouillette v. Brouillette, 09-35 (La.App. 3
Cir. 5/6/09), 18 So.3d 756. On remand, the trial court held that the nature of
Kendrick’s military benefit did not qualify as a retirement benefit and the state had
no right to intervene and demand garnishment for the benefit for Shirley.
Our previous consideration of this case on appeal resulted in a remand
to the trial court with specific instructions to address the purpose and intent of
Kendrick’s military retirement assignment at the time he entered into the Community
Property Settlement Agreement with his wife.
III.
LAW AND DISCUSSION
1. The purpose and intent of Kendrick’s assignment
On remand, the trial court was asked to determine the parties’ intentions
under the Community Property Settlement Agreement. The terms of the agreement
stated that Shirley Brouillette would receive 47% of Kendrick Brouillette’s military
retirement pay as her portion of the community. The parties reached this designation
by using the Sims formula, which calculates the amount contributed by each member
of the community, during the community, in order to equally dissolve the community.
Sims v. Sims, 358 So.2d 919 (La.1978).
Shirley asserts that the trial court erred by not applying Poullard v.
Poullard, 00-1121 (La. App. 3 Cir. 01/31/01), 780 So.2d 498. Poullard held that an
2 ex-spouse still owed alimony despite a change from retirement benefits to disability
benefits. Poullard involved a couple who, by consent judgment, agreed to dissolve
the community. The consent judgment provided permanent alimony for the ex-wife.
Subsequently, the husband sought to change his benefits from retirement benefits to
disability benefits. He argued that the wife was not entitled to any portion of the
disability benefits because he had only agreed to partition the retirement benefits. We
disagreed, determining that at the time of the consent judgment the husband intended
to provide the wife with permanent alimony irrespective of the source for that
alimony. Id. at 500.
Unlike Poullard, the issue here is not related to alimony. Rather,
Kendrick Brouillette and Shirley Brouillette agreed that Shirley was to receive 47%
of the retirement benefits Kendrick received from the United States Army.
Furthermore, during the trial, the parties stipulated that the 47% “was not granted to
her [Shirley] for waiver of any future alimony.” Therefore, Poullard is
distinguishable and cannot avail Shirley under the circumstances of this case. The
47% of retirement benefits previously received by Shirley reflected her community
interest, and was not apportioned to alimony.
2. The designation of pay as disability pay
Kendrick received military retirement benefits from 1974 through 2004.
In 2004, he applied to the United States Army for consideration to receive Combat-
Related Special Compensation. Combat-Related Special Compensation (CRSC) is
a special benefit program designed by the Department of Defense to better aid retired
veterans afflicted by combat-related injuries or disabilities. 10 U.S.C. § 1413a.1 To
1 § 1413a. Combat-related special compensation
(a) Authority. The Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the
3 qualify for CRSC, the veteran must be retired from active duty military, prove that
he/she is at least ten-percent disabled as the result of combat duty, and personally
apply to receive the special compensation. Id. The provisions within this section
provide that CRSC is not military retired pay. 10 U.S.C. § 1413a(g).
Louisiana community property law recognizes that each spouse owns an
interest in community assets acquired or built during marriage. Generally, after the
dissolution of marriage, each spouse is entitled to his/her pro rata share of the
community assets, including retirement plans and pensions. Frazier v. Harper, 600
So.2d 59 (La.1992); Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975);
La.Code Civ.P. art. 2402. However, it is clear under Louisiana jurisprudence that
recipients of military disability benefits own the sole interest in those benefits.
Russell v. Russell, 520 So.2d 435 (La.App. 3 Cir. 1987); Rearden v. Rearden, 568
So.2d 1111 (La.App. 2 Cir. 1990) (Veteran’s Affairs disability benefits, received in
lieu of military retirement benefits, are not subject to Louisiana’s community property
law).
Kendrick introduced Defendant’s Exhibit Number 5. Exhibit 5 is a
notice letter describing Kendrick’s eligibility to receive CRSC. There is no
suggestion within the Exhibit, or the record as a whole, implying that Kendrick was/is
receiving any military benefits aside from CRSC. As a result, the trial court properly
concluded that Kendrick is receiving disability benefits.
Furthermore, according to the Supremacy Clause of the United States
Constitution, federal law may preempt state law when Congress shows clear intent
when enacting a law. Epoch Wellsite Servs. v. Ortego, 03-547 (La.App. 3 Cir.
combat-related disability of the retiree determined under subsection (b).
10 U.S.C. § 1413a(a).
4 11/5/03), 858 So.2d 827. Within the Combat-Related Special Compensation statute,
Congress expressed that CRSC pay was not military retired pay. See 10 U.S.C. §
1413a(g). Thus, federal law is controlling. As a result, we affirm the trial court’s
determination that Kendrick’s military benefits are disability benefits.
3. The exclusion of evidence
The trial court excluded the testimony of Darlene Doolittle, daughter of
Kendrick and Shirley, which was offered by Shirley to prove Kendrick’s intent
regarding the change in designation of his retirement benefits. The offered testimony
was to describe a form that Kendrick used to change his military benefit plan. The
form at issue could not be produced; therefore, there was no way to rebut the
testimony of the daughter.
The court permitted Shirley to proffer the testimony in order to fully
complete the record and make the excluded testimony reviewable by this court. Sher
v. Lafayette Ins. Co., 07-2441 (La. 7/7/08), 988 So.2d 186. After review, we do not
find the trial court erred in excluding the testimony. “The trial court is vested with
vast discretion in connection with the admissibility of evidence. It will not be
reversed absent an abuse of that discretion.” Bridgers v. Sw. La. Hosp. Ass’n, 99-520
(La.App. 3 Cir. 11/3/99), 746 So.2d 731,735 (citing Maddox v. Omni Drilling Corp.,
96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writ denied, 97-2766 (La. 1/30/98),
709 So.2d 706). We find there is no showing of an abuse of discretion on the part of
the trial judge. We affirm the trial court’s decision to exclude the testimony of
Darlene Doolittle.
5 4. Receipt of Combat-Related Special Compensation
Kendrick asserted that receipt of Combat-Related Special Pay is
disability pay, such that he no longer receives any retirement benefits from the United
States Army. The record is void of any evidence suggesting otherwise.
IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All
costs of this appeal are assessed to Shirley Brouillette.
6 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
COOKS, J., dissenting.
I do not agree with the majority’s decision to affirm. The result of the trial
court’s ruling, if allowed to stand, disregards the true intent of the parties. Their
intent was for Kendrick to pay Shirley 47% of his retirement benefits for as long as
Shirley lived, provided she did not remarry. She is still alive and has not remarried.
Further, Shirley has a vested ownership interest in a portion of Kendrick’s retirement.
In this case, Kendrick was bound by the contract created through the community
property partition. To allow Kendrick to get out of this agreement by re-designating
the classification of benefits affirms his announced intent not to honor the community
property agreement. Therefore, I would reverse the trial court’s judgment.