Cassinelli v. Cassinelli , 4 Cal. App. 5th 1285 ( 2016 )

Filed 11/2/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of JANICE R. and
ROBERT J. CASSINELLI.
JANICE R. CASSINELLI,
E063769
Respondent,
(Super.Ct.No. D54420)
v.
OPINION
ROBERT J. CASSINELLI,
Appellant.
APPEAL from the Superior Court of Riverside County. Christopher B. Harmon,
Judge. Reversed and remanded with directions.
Law Offices of Ellen C. Dove and Ellen C. Dove for Appellant.
Julie M. Clark for Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II and IX.
1
In 1964, appellant Robert J. Cassinelli and respondent Janice R. Cassinelli were
married; in 1986, they were divorced. In the meantime, after 20 years of service, Robert
had retired from the United States Air Force. In a stipulated judgment, the trial court
awarded Janice her community property interest in Robert’s military retired pay.
Fast forward 26 years. In 2012, it was determined that Robert had a combat-
related disability. As a result, he became eligible to receive both veteran’s disability
benefits and combat-related special compensation (CRSC); to do so, however, he had to
waive his retired pay. Before the waiver, Robert received $791 a month and Janice
received $541 in retired pay (taxable). After the waiver, Robert received $1,743 a month
in veteran’s disability benefits and $1,389 a month in CRSC, for a total of $3,132 (tax-
free); Janice received zero. As a result, the trial court ordered Robert to start paying
Janice $541 a month in permanent and nonmodifiable spousal support.
Robert appeals, contending:
1. Under overriding federal law, the trial court lacked jurisdiction to make any
award to Janice based on Robert’s receipt of either veteran’s disability benefits or CRSC.
2. There was insufficient evidence that the parties intended to protect Janice
against the consequences of a waiver of Robert’s retired pay.
3. The trial court erred by using spousal support as a remedy for the loss of a
community property interest.
2
4. Because the judgment dividing the community property was long-since final,
the trial court could not give Janice any remedy for the loss of her community property
interest in the retired pay.
5. The trial court erred by making its award of spousal support permanent and
nonmodifiable.
6. Robert’s income was exempt and Janice could not seize it to satisfy her claim.
7. Based on the relevant factors (see Fam. Code, § 4320), Janice was not entitled
to spousal support, and the trial court abused its discretion by finding otherwise.
We agree that the trial court erred by using spousal support as a remedy for the
loss of a community property interest. However, it could properly order Robert to
reimburse Janice for her lost community property interest; doing so would not violate
either federal law or finality principles. Accordingly, we will reverse and remand with
directions to enter an order awarding Janice the same amount on a different theory.
I
FACTUAL AND PROCEDURAL BACKGROUND
Janice and Robert were married in 1964. At that time, Robert was on active duty
as a member of the United States Air Force. After 20 years of service, he retired from the
military with the rank of Technical Sergeant.
In 1985, after 21 years of marriage, the parties separated. Janice then filed this
marital dissolution proceeding.
3
In August 1986, pursuant to stipulation, the trial court entered a final judgment. It
provided: “The Court finds that [Janice] has a 43.1% interest in [Robert]’s United States
Air Force Pension, and that she shall receive the sum of Two Hundred Thirty ($230.00)
Dollars per month, or 43.1% of said pension, whichever sum is greater. Said payments to
commence on May 1, 1986, providing that [Robert] shall make said payments to [Janice]
until such time as the United States Air Force is able to process [Janice]’s claims so that
her share of the military pension can be paid directly to her.” The judgment reserved
jurisdiction over the issue of spousal support.
Thereafter, Robert held several jobs, primarily as a teacher. He developed
ischemic heart disease; in 2011, he had a quadruple bypass. In 2012, he took a medical
retirement from teaching. His ischemic heart disease was presumed to be due to his
exposure to Agent Orange in Viet Nam. (See 38 C.F.R. § 3.309.) Thus, also in 2012, the
Department of Veterans Affairs (VA) determined that he had a service-connected
disability, making him eligible for disability benefits. It was further determined that his
disability was combat-related, making him eligible for CRSC.
In 2013, Robert elected to receive CRSC. Before his election, he was receiving
$791 a month of his retired pay and Janice was receiving $541 a month of his retired
pay. After his election, he received $1,743 a month in veteran’s disability benefits and
$1,389 a month in CRSC, for a total of $3,132 a month. These benefits were nontaxable.
Janice received zero. However, when Robert made his election, he was not aware that it
would affect Janice.
4
At the time of trial, Robert was 72 years old. His monthly income consisted of:
Veteran’s disability benefits $1,743
CRSC $1,389
State teacher’s disability benefits $1,433
Social security benefits $1,105
Total $5,670
His total monthly expenses were $5,577.
Janice was 71 years old. She worked part-time for Rite Aid. Her monthly income
consisted of $1,673 in wages and $1,568 in social security, for a total of $3,286. After
paying her monthly expenses, she testified, “[s]ome months I have [$]100, some months I
have $50 [left over].”
If and when Janice stopped working, she would lose more than half her income,
although she could get another $200 a month (“if I’m lucky”) by drawing on $44,000 in a
401(k) account and $15,000 in an annuity.
In January 2014, Janice filed a motion to modify the judgment by ordering Robert
to pay the amount of her share of his retired pay as “non-modifiable spousal support.”
In opposition, Robert argued: (1) the property division in the judgment was final
and could not be reopened; (2) “[f]ederal law which supersedes state law . . . prohibits the
non-military spouse[’]s participation in the member’s disability combat pay”; (3) “some
or all [of Robert’s] income [is] protected from attachment”; and (4) the relevant factors
militated against an award of spousal support.
5
In August 2014, Janice filed a motion for attorney fees.
In January 2015, the trial court held a trial on both pending motions. After the
trial, at the trial court’s invitation, both parties filed supplemental declarations.
In April 2015, the trial court issued a written ruling. It acknowledged that, under
federal law, it could not treat Robert’s retired pay as community property. However, it
ruled that it was not precluded from “tak[ing] equitable action” to compensate Janice.
It found that “[Robert]’s voluntary election and the resulting termination of
[Janice]’s share of the military retirement” was a material change of circumstances. It
further found that it would be a “miscarriage of justice” to allow Robert, acting
unilaterally, to increase his military-source income from $791 (taxable) to $3,132 (tax-
free) while reducing Janice’s military-source income from $541 to zero. After
considering and weighing each of the factors listed in Family Code section 4320, it
concluded that Janice was entitled to receive $541 a month in spousal support.
The trial court further found that, when the original judgment was entered, Janice
had a reasonable belief that her share of Robert’s retired pay was nonmodifiable. It
therefore made its award of spousal support nonmodifiable.
Finally, it awarded Janice $7,180 in attorney fees against Robert.
Robert filed a motion for reconsideration. The trial court denied the motion.
Robert filed a timely notice of appeal.1
1 The notice of appeal indicated that Robert was appealing both from the
judgment and from the order denying his motion for reconsideration. In his opening
brief, however, he indicates that he is challenging only the judgment.
6
II
EXPERT TESTIMONY
At trial, Janice called Attorney Richard Muir as an expert on the law regarding the
treatment of military-source payments in a divorce.
Robert objected to one question to Muir as calling for a legal conclusion; that
objection was sustained. He objected to two other questions as irrelevant; those
objections were overruled. Otherwise, he did not object to Muir’s testimony, nor did he
call any expert witness of his own. After trial, in a brief filed in lieu of closing argument,
he argued that Muir was unqualified, that his opinions lacked foundation, and that he
incorrectly stated the law.
In this appeal, Robert argues that the trial court erred by “adopt[ing] the fuzzy and
mis[s]tated opinion of a non-expert . . . .” Ordinarily, Robert would be deemed to have
forfeited this argument due to his failure to raise any objection until after trial. (Evid.
Code, § 353, subd. (a).)
The problem, however, went beyond the mere admission of evidence. A witness
cannot testify to a legal conclusion. This is true even if the witness is an attorney.
(Summers v. A.L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1178-1184.) “[I]t is
‘emphatically . . . the province and duty of the judicial department . . . to say what the law
is’ [citation] . . . .” (Powers v. City of Richmond (1995) 10 Cal. 4th 85, 115.) “‘[I]t is
thoroughly established that experts may not give opinions on matters which are
essentially within the province of the court to decide.’ [Citations.]” (Sheldon Appel Co.
7
v. Albert & Oliker (1989) 47 Cal. 3d 863, 884.) Even if a legal conclusion is admitted, it
does not constitute substantial evidence. (WRI Opportunity Loans II, LLC v. Cooper
(2007) 154 Cal. App. 4th 525, 532-533, fn. 3; Downer v. Bramet (1984) 152 Cal. App. 3d
837, 841-842.)
It follows that, regardless of whether Muir was correct or incorrect, qualified or
unqualified, “fuzzy” or precise, his testimony was not substantial evidence. If and to the
extent that the trial court relied on it, it erred. However, we need not decide whether this
occurred. If the trial court did not rely on Muir’s testimony, then the error was harmless.
(See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34
Cal. 4th 915, 939.) If the trial court did rely on Muir’s testimony, but Muir was correct
about the law, then once again, the error was harmless; the trial court came to the right
conclusion. And finally, if the trial court relied on Muir’s testimony and Muir was
incorrect about the law, then we must reverse based on the resulting legal error.
For these reasons, we have not included any of Muir’s testimony in our statement
of facts (part I, ante). (And for the same reasons, we also have not included any of the
legal conclusions to which Robert testified, purportedly also as an expert, based on his
own experience.)
8
III
FEDERAL LAW PROHIBITING THE DIVISION OF RETIRED PAY
AS COMMUNITY PROPERTY IN A DIVORCE
Robert contends that, as a matter of federal law, the trial court could not award
Janice any interest, directly or indirectly, in his veteran’s disability benefits.
A. General Legal Principles.
A member of the armed services who retires based on length of service becomes
entitled to retired pay. (10 U.S.C. §§ 1401 [Army], 6333 [Navy], 8991 [Air Force].)
Meanwhile, a veteran who becomes disabled as a result of an injury suffered or a
disease contracted in the line of duty becomes entitled to disability benefits. (38 U.S.C.
§§ 1110 [wartime disability], 1131 [peacetime disability].)2
“In order to prevent double dipping, a military retiree may receive disability
benefits only to the extent that he waives a corresponding amount of his military
retirement pay. [Citation.]” (Mansell v. Mansell (1989) 490 U.S. 581, 583, fn. omitted;
see 38 U.S.C. §§ 5304-5305.) “For example, if a military retiree is eligible for $1500 a
month in retirement pay and $500 a month in disability benefits, he must waive $500 of
retirement pay before he can receive any disability benefits.” (Mansell v. Mansell, supra,
2 Any discussion of military disability benefits in this opinion is limited to
disability benefits under title 38 of the United States Code. Title 10, chapter 61 of the
United States Code section 1201 et seq. provides a separate scheme of disability benefits
that is beyond the scope of our opinion.
9
at p. 584, fn. 1.) Military disability benefits are not taxable. (38 U.S.C. § 5301(a).)
Thus, normally a retiree is better off by making such a waiver.
Under California law, military retired pay that accrues based on service during
marriage is community property. (In re Marriage of Barnes (1987) 43 Cal. 3d 1371,
1374-1375; In re Marriage of Stenquist (1978) 21 Cal. 3d 779, 782.) However, in 1981,
the United States Supreme Court held that “the federal military retirement scheme”
conflicts with — and therefore preempts — state law treating military retired pay as
community property. (McCarty v. McCarty (1981) 453 U.S. 210, 223.)
In 1982, Congress enacted the federal Uniformed Services Former Spouses
Protection Act (FUSFSPA) specifically to change the outcome in McCarty. FUSFSPA
allows a state court in a community property jurisdiction to treat “disposable retired pay”
as community property. (10 U.S.C. § 1408(c)(1).) However, its definition of “disposable
retired pay” excludes any retired pay that has been waived in order to receive disability
benefits. (10 U.S.C. § 1408(a)(4)(B).)
Accordingly, in 1989, in Mansell v. Mansell, supra, 490 U.S. 581, the United
States Supreme Court held that FUSFSPA left McCarty in place with respect to waived
retired pay, and therefore federal law prohibits a state court from treating waived retired
pay as community property. (Mansell v. Mansell, supra, at pp. 594-595.) It
acknowledged that its holding “may inflict economic harm on many former spouses,” but
it felt constrained by “the plain language of the statute” as well as by the statute’s
legislative history. (Id. at p. 594.) Justice O’Connor, dissenting, protested that “[t]he
10
harsh reality of this holding is that former spouses . . . can, without their consent, be
denied a fair share of their ex-spouse’s military retirement pay simply because he elects
to increase his after-tax income by converting a portion of that pay into disability
benefits.” (Id. at p. 595 [dis. opn. of O’Connor, J.]; see also id. at p. 601 [same].)
B. In re Marriage of Krempin.
In the wake of Mansell, state courts have struggled with whether they have
jurisdiction to grant a civilian spouse any remedy whatsoever for a military spouse’s
waiver of retired pay.
In California, the leading case is In re Marriage of Krempin (1999) 70
Cal. App. 4th 1008.3 There, the trial court entered a judgment, pursuant to a marital
3 Very recently, in In re Marriage of Chapman (2016) 3 Cal.App.5th 719
also dealt with this issue. We choose not to rely on Chapman, because it is still subject to
Supreme Court review. We note, however, that it came to the same conclusion as we do.
Janice also cites In re Marriage of Smith (2007) 148 Cal. App. 4th 1115. In fact,
she has characterized the relief she is seeking as “Krempin/Smith relief.”
Smith held that, when entering a divorce judgment, the trial court could order that,
if, in the future, the military spouse waived retired pay in order to receive disability
benefits, the military spouse would have to reimburse the civilian spouse for the latter’s
share of the waived retired pay. The court reasoned that “Mansell held merely that the
federal law does not grant state courts the power to divide ‘military retirement pay that
has been waived to receive veterans’ disability benefits.’ [Citation.] In this case, so far
as we can tell from the record, [the military spouse] was not receiving any disability
payments when judgment was entered so the court did not divide retirement pay that ‘has
been waived.’” (In re Marriage of Smith, supra, 148 Cal.App.4th at pp. 1123-1124.)
The judgment here contains no similar express indemnity provision. Moreover,
Robert waived retired pay in or around 2013; in 2015, after his retired pay “ha[d] been
waived,” the trial court ordered him to compensate Janice for her lost share of the retired
pay. Thus, Smith does not support Janice’s claim that she was entitled to a remedy in this
scenario. Indeed, if anything, it implies that Mansell would prohibit such an order.
11
settlement agreement, awarding the wife 25 percent of the husband’s military retired pay.
(In re Marriage of Krempin, supra, at pp. 1010-1011.) After the husband retired, the
wife began receiving $327 a month as her share of his retired pay. Thereafter, the
husband was determined to be disabled. He waived retired pay and began receiving
disability payments of $2,051 a month, which meant that his retired pay went to zero.
The trial court denied the wife’s motion to reinstate the payments to her. (Id. at p. 1011.)
The appellate court began by surveying out-of-state cases. It found that: “Courts
in other states have protected the non-military spouse’s interest through various means.
“Some courts have found that the waiver of retirement pay and resulting reduction
in the pension payment to the nonmilitary spouse were changed circumstances which
permitted reassessment of support payments or redistribution of marital property.
[Citations.]
“In some cases the courts have enforced judgments which provided that the
military spouse would take no action to diminish his or her retirement pay, and would
indemnify the nonmilitary spouse for any such diminution. [Citations.] . . . Because the
military spouse is free to satisfy the indemnity obligation with assets other than the
disability benefits, there is no division of those benefits in contravention of Mansell.
[Citations.] [¶] This same result has been reached even where there was no express
indemnity agreement.” (In re Marriage of Krempin, supra, 70 Cal.App.4th at p. 1013,
italics added.)
12
In sum, then, “‘[a] majority of state courts,’ on one theory or another, ‘take
equitable action to compensate the former spouse’ when that spouse’s share of retirement
pay is reduced by the other’s postjudgment waiver. [Citation.] A review of the out-of-
state precedents confirms that this result is nearly universal.” (In re Marriage of
Krempin, supra, 70 Cal.App.4th at p. 1015.)
The court then stated: “If the trial court were to conclude that the parties intended
for [the wife] to continue to receive her original share of [the husband]’s retirement pay
even if he waived all or a portion of that pay to obtain disability benefits, the Mansell
case would not prevent the court from giving appellant the benefit of her bargain on [a]
resulting trust theory . . . . [Citation.]” (In re Marriage of Krempin, supra, 70
Cal.App.4th at p. 1021, fn. omitted.) Thus, it remanded to the trial court for further
proceedings. (Id. at p. 1022.)
C. Out-of-State Cases.
As Krempin mentioned, there are a number of relevant out-of-state cases. Indeed,
we have an advantage over the Krempin court, because additional out-of-state cases have
been decided since Krempin, affording us almost an embarrassment of riches.
It is the clear majority rule that Mansell does not prevent a state court from
ordering a military spouse to reimburse a civilian spouse for retired pay that the military
spouse has waived in order to receive disability benefits. We count 21 states as so
holding: In re Marriage of Howell (2015) 238 Ariz. 407, 410-411 [361 P.3d 936, 939-
13
940],4 pet. for cert. filed Feb. 16, 2016; In re Marriage of Lodeski (Colo.Ct.App. 2004)
107 P.3d 1097, 1101; Blann v. Blann (Fla. App. 2007) 971 So. 2d 135, 137; Perez v.
Perez (2005) 107 Haw. 85, 90-91 [110 P.3d 409, 414-415]; McHugh v. McHugh (1993)
124 Idaho 543, 545 [861 P.2d 113, 115]; In re Marriage of Neilsen (2003) 341 Ill.App.3d
863, 869 [792 N.E.2d 844, 849]; Bandini v. Bandini (Ind. App. 2010) 935 N.E.2d 253,
264; Black v. Black (Me. 2004) 842 A.2d 1280, 1285; Dexter v. Dexter (1995) 105
Md.App. 678, 686 [661 A.2d 171, 174]; Krapf v. Krapf (2003) 439 Mass. 97, 108 [786
N.E.2d 318, 326]; Megee v. Carmine (2010) 290 Mich.App. 551, 574 [802 N.W.2d 669,
682]; Shelton v. Shelton (2003) 119 Nev. 492, 496 [78 P.3d 507, 509], cert. den. (2004)
541 U.S. 960; Whitfield v. Whitfield (2004) 373 N.J.Super. 573, 582-583 [862 A.2d 1187,
1192]; Hadrych v. Hadrych (2006) 140 N.M. 829, 832 [149 P.3d 593, 596]; Hillard v.
Hillard (2012) 223 N.C.App. 20, 24-25 [733 S.E.2d 176, 180-181]; Hayes v. Hayes
(Okla.Civ.App. 2007) 164 P.3d 1128, 1130-1132; Hayward v. Hayward (Pa.Super.Ct.
2005) 868 A.2d 554, 559-560; Resare v. Resare (R.I. 2006) 908 A.2d 1006, 1009-1010;
4 One of the few out-of-state cases that the parties cite is Merrill v. Merrill
(2012) 230 Ariz. 369 [284 P.3d 880], which followed the majority rule. Robert claims
that Merrill is unpublished, which is incorrect. Robert also claims that Merrill was
overruled, which is inaccurate. Actually, it was partially superseded by state statutes.
(Ariz. Rev. Stat. §§ 25-318.01, 25.530.) However, the Arizona Supreme Court has held
that these statutes apply only when the original divorce judgment dividing the retired pay
was entered after the statutes’ effective date. (In re Marriage of Howell, supra, 361 P.3d
at pp. 940-941.) With respect to divorce judgments entered before the statutes’ effective
date, the Arizona Supreme Court adopted the majority rule. (Id. at pp. 938-939.)
14
Hisgen v. Hisgen (S.D. 1996) 554 N.W.2d 494, 498; Johnson v. Johnson (Tenn. 2001) 37
S.W.3d 892, 897-898.5
In general, the reasoning in such cases has two simple premises. First, “the non-
military spouse has a vested interest in his or her portion of [the retired pay] as of the date
of the court’s decree and . . . the vested interest cannot thereafter be unilaterally
diminished by an act of the military spouse.” (Provencio v. Leding (2011) 2011
Ark.App. 53 [at *3] [381 S.W.3d 82, 84]; but see Ashley v. Ashley (1999) 337 Ark. 362
[990 S.W.2d 507].) Second, “because the military spouse is free to satisfy the indemnity
obligation with assets other than the disability benefits, there is no division of disability
benefits in contravention of Mansell. [Citations.]” (Perez v. Perez, supra, 110 P.3d at
p. 414.)
A minority of states hold that Mansell absolutely prohibits a state court from
awarding the civilian spouse any remedy whatsoever for the loss of the retired pay. We
count five: Ex parte Billeck (Ala. 2000) 777 So. 2d 105, 108-109; In re Marriage of
Pierce (1999) 26 Kan. App. 2d 236, 240 [982 P.2d 995, 998]; Mallard v. Burkart (Miss.
2012) 95 So. 3d 1264, 1272; Ex parte Burson (Tex. 1981) 615 S.W.2d 192, 196;
5 In determining whether a state follows the majority or minority rule, there
is some room for the exercise of judgment; reasonable minds may differ. We have tried
to take a strict view and to count a state as adhering to one rule or the other only if it
appears that it would apply that rule in a non-fact-specific manner. For example, we have
omitted states in which the result would turn on whether parties have a marital settlement
agreement that includes an express indemnity provision. (Compare Strassner v.
Strassner (Mo.Ct.App. 1995) 895 S.W.2d 614, 617-618 with Morgan v. Morgan
(Mo.Ct.App. 2008) 249 S.W.3d 226, 233.)
15
Youngbluth v. Youngbluth (2010) 188 Vt. 53, 65 [6 A.3d 677, 685]. These courts reason
that it is a sort of legal fiction — an end-run around Mansell — to say that the military
spouse could make payments out of other assets. “Mansell must be followed, even when
it leads to seemingly unfair results. [Citation.]” (Youngbluth v. Youngbluth, supra, 6
A.3d at p. 685.)
D. Application to This Case.
The fact that a majority of other states follow the same rule persuades us to adhere
to that rule. Moreover, we agree with the reasoning of the majority: The military spouse
has unilaterally deprived the civilian spouse of a property interest in the retired pay and
can be required to reimburse the civilian spouse, albeit not directly out of disability
benefits. “[B]asic state policy prevent[s] a marital partner from depriving the other
spouse of a vested community property right by a unilateral decision . . . .” (In re
Marriage of Mastropaolo (1985) 166 Cal. App. 3d 953, 961-962.)
At the same time, we disagree with the reasoning of the minority, which was that
an order for reimbursement is an end-run around Mansell. Mansell relied narrowly on a
literal reading of the statutory language. (Mansell v. Mansell, supra, 490 U.S.at pp. 589,
594.) It declined to consider the broader purposes behind FUSFSPA, in part because
Congress had “mixed purposes”: “[T]he legislative history, read as a whole, indicates
that Congress intended both to create new benefits for former spouses and to place limits
on state courts designed to protect military retirees.” (Id. at p. 594.) Requiring the
military spouse to reimburse the civilian spouse for the latter’s share of the lost retired
16
pay — provided the military spouse is not required to make the payments out of disability
benefits — does not violate the language of FUSFSPA and thus does not violate Mansell.
Also, under Krempin, the majority rule is already the law of California. Robert
claims that Krempin is distinguishable because it involved “active duty military
personnel.” Admittedly, the husband was still on active duty when the judgment was
entered. (In re Marriage of Krempin, supra, 70 Cal.App.4th at pp. 1010-1011.)
Nevertheless, the trial court awarded the wife a share of his future retired pay. (Ibid.)
After that, the husband retired, and after that, he waived retired pay so he could receive
disability benefits. (Id. at p. 1011.) Thus, Krempin is on point. We fail to see why the
husband’s active duty status when the judgment was entered is relevant.6
We do not necessarily agree with Krempin in every respect. In part IV, post, we
will disagree somewhat with its conclusions regarding the intent of the parties. And in
part V, post, we will disagree somewhat with its choice of remedy.
For now, however, we do agree that a state court can order a military spouse who
has waived retired pay to reimburse a civilian spouse for the latter’s loss of a community
property interest in the retired pay without violating Mansell.
6 Robert also argues that Krempin is distinguishable because there (1) the
parties had an express indemnity agreement, and (2) the divorce judgment included a
reservation of jurisdiction. These arguments do not impugn Krempin’s central holding
that a state court can grant a remedy to the civilian spouse without violating Mansell.
Rather, they go to issues of the intent of the parties, which we will deal with in part IV,
post, and finality of judgments, which we will deal with in part VI, post.
17
IV
THE INTENT OF THE PARTIES
Robert contends that there was insufficient evidence that the parties intended to
protect Janice against the consequences of a waiver of Robert’s retired pay.
Krempin indicated that whether the civilian spouse is entitled to a remedy for the
military spouse’s waiver of retired pay depends on the terms of the judgment and may
require the interpretation of those terms. (In re Marriage of Krempin, supra, 70
Cal.App.4th at p. 1018.) It noted five aspects of the judgment before it that had some
bearing on this question.
First, the judgment did not include an express indemnity provision. “However,
while [the wife]’s claim would be stronger if the judgment or stipulation included an
indemnity provision, the absence of an indemnity agreement is not necessarily fatal to her
position.” (In re Marriage of Krempin, supra, 70 Cal.App.4th at p. 1019.)
Second, the judgment referred to retirement benefits paid by the Defense
Accounting and Finance Center; thus, it implicitly excluded disability benefits paid by
the VA. (In re Marriage of Krempin, supra, 70 Cal.App.4th at p. 1019.)
Third, the judgment identified a specific amount ($327) that was to be paid to the
wife monthly, and it required the husband to make these payments until the Defense
Accounting and Finance Center took over. (In re Marriage of Krempin, supra, 70
Cal.App.4th at pp. 1019-1020.) “This suggests an understanding that [the husband] was
ultimately responsible for insuring specific monthly payments.” (Id. at p. 1020.)
18
Fourth, the judgment included a reservation of jurisdiction “‘to make such orders
relating to [the husband’s] retirement benefits as are necessary to carry out this
agreement.’” (In re Marriage of Krempin, supra, 70 Cal.App.4th at p. 1020.) “[T]he
very fact that the parties’ agreement includes a reservation of jurisdiction on this subject
suggests that they may have anticipated future contingencies such as waivers of
retirement pay which might call for new arrangements to preserve the original bargain.”
(Ibid.)
Fifth, the marital settlement agreement provided that it was not to be construed in
favor of or against either party. (In re Marriage of Krempin, supra, 70 Cal.App.4th at
p. 1020.) “This language may support [the wife’s] contention that the agreement was not
strictly limited to retirement payments as opposed to disability benefits, but was intended
instead simply to provide her with a certain level of income.” (Ibid.)
The court concluded: “Since the provisions of the judgment and stipulation are
reasonably susceptible to both sides’ constructions, the parties may offer extrinsic
evidence to support their positions. [Citations.]” (In re Marriage of Krempin, supra, 70
Cal.App.4th at p. 1020.) Hence, “a remand for further proceedings is required.” (Id. at
p. 1018; see also id. at pp. 1010, 1020, 1022.)
We agree that the terms of the stipulated judgment are controlling; indeed, this is
almost a truism. Certainly a divorcing couple could choose to provide in their marital
settlement agreement that the military spouse has an absolute right to waive his or her
19
retirement pay, without any obligation to reimburse the civilian spouse. However, we
believe there should be a presumption against this interpretation.
There is a need for uniformity and predictability in this area, particularly given the
federal interests involved. Also, as our Supreme Court has noted, many if not most
family law litigants are self-represented. (Elkins v. Superior Court (2007) 41 Cal. 4th
1337, 1368.) As our research has made us all too aware, the whole subject of spouses’
rights to military benefits in a divorce is extremely arcane — even for lawyers. It would
be a mistake to give too much weight to minor differences in wording when that wording
was not necessarily chosen with these issues in mind.
In light of these concerns, we begin with a commonsense presumption that the
parties intend the civilian spouse’s property right to the military spouse’s retired pay to be
a secure source of income — except, of course, in the event of the military spouse’s
death, which the civilian spouse can insure against. Then we turn to the indicia of intent
identified in Krempin to determine whether they rebut the presumption.
First, here there was no express indemnity. However, Krempin held that this is not
controlling, and for the reasons just outlined, we agree. Second, the judgment referred to
Robert’s retired pay and did not mention his disability benefits. However, this is
consistent with the law that disability benefits are the military spouse’s separate property;
it is also consistent with our presumption that the parties intended Janice’s right to the
retired pay to be indefeasible. Third, the judgment identified a specific dollar amount
that Robert was to pay to Janice monthly, until the military began paying her directly.
20
Fourth, there was no reservation of jurisdiction over Robert’s retired pay. Again,
however, this seems perfectly consistent with our presumption that Janice’s right to the
retired pay was intended to be indefeasible. Fifth, unlike in Krempin, the judgment did
not specifically provide that it was not to be construed against either party. This would
simply mean that Civil Code section 1654 would apply; it provides that: “In cases of
uncertainty not removed by the preceding rules, the language of a contract should be
interpreted most strongly against the party who caused the uncertainty to exist.” Here,
Janice’s attorney drafted the judgment. However, in light of our presumption, there is no
uncertainty and hence no need to apply a construction against the drafter.
In sum, because there is no evidence that the parties did intend Robert to be able to
defeat Janice’s property right in his retired pay, we conclude that they did not intend this.
V
THE CHOICE OF REMEDY
Robert contends that, even assuming Janice is entitled to some sort of remedy for
his waiver of retired pay, an award of spousal support is not an appropriate remedy.
Janice urged the trial court to use an award of spousal support as the remedy in
this case. This had several advantages for her. First, it avoided any problem with finality
(see part VI, post), because the judgment expressly reserved jurisdiction over spousal
support. Second, unlike other money judgments (see part IX, post), a support order
would be enforceable against Robert’s disability benefits (although only up to the amount
of his waiver of retired pay) (42 U.S.C. §§ 659(a), 659(h)(1)(A)(ii)(V), 659(h)(1)(B)(iii);
21
5 C.F.R. § 581.103; United States v. Murray (1981) 158 Ga.App. 781, 785 [282 S.E.2d
372, 375]), against his CRSC (Dept. of Def. Fin. Mgmt. Reg. 7000.14–R, vol. 7B, ch. 63,
§ 630101(C)(3) (Nov. 2015) (Fin. Mgmt. Reg.)7), against his social security benefits (42
U.S.C. §§ 659(a), 659(h)(1)(A)(ii)(I); DeTienne v. DeTienne (D.Kan. 1993) 815 F. Supp.
394, 396-397), and against his state teacher’s disability benefits (Code Civ. Proc.,
§ 704.110, subd. (c); Ed. Code, § 22006).
In part III, ante, we noted that a majority of out-of-state cases hold that, when a
military spouse waives retired pay in order to receive disability benefits, the civilian
spouse is entitled to a remedy. Of these cases, the vast majority further hold that the
appropriate remedy is an order that the military spouse make monthly payments to the
civilian spouse in the same amount as the lost retired pay. The result is the same as if, in
a marital settlement agreement, the civilian spouse had expressly indemnified the civilian
spouse against any reduction in or loss of the retired pay.
A handful of cases, however — a minority of the majority — hold that the
appropriate remedy is increased spousal support.
In In re Marriage of Perkins (2001) 107 Wash. App. 313 [26 P.3d 989], the trial
court ordered the military spouse to pay the civilian spouse the same amount as her lost
share of his retired pay, as “permanent compensatory spousal maintenance . . . .” (Id. at
p. 991, italics omitted.) The appellate court held that Mansell prohibited any order for
7 Available at [as of Nov. 2, 2016].
22
“dollar-for-dollar” reimbursement of the lost retired pay, even if it was labeled
“maintenance.” (In re Marriage of Perkins, supra, at pp. 995-996.) However, a
“dissolution court . . . may consider a spouse’s entitlement to an undivided veterans’
disability pension . . . as one factor relevant to an award of maintenance . . . , provided of
course that it follows the usual state-law rules . . . .” (Id. at p. 994, fns. omitted.) In other
words, “a trial court may award maintenance after considering all relevant factors, of
which a military disability pension may be one.” (Id. at p. 997.) Thus, it remanded “for
reconsideration of maintenance.” (Ibid.)8
In Longanecker v. Longanecker (Fla. App. 2001) 782 So. 2d 406, the trial court
ordered: “As and for lump sum alimony to effectuate an equitable distribution of the
Husband’s military retirement pension as a marital asset, the Husband shall pay or direct
to be paid to the Wife the sum equal to $157.76 from each monthly net disposable
retirement payment . . . .” (Id. at p. 408.) The appellate court held that this violated
Mansell, to the extent that it ordered the military spouse to make the payments directly
out of his disability benefits. (Longanecker v. Longanecker, supra, at p. 407.) However,
it approved of ordering the payments in the form of support. (Id. at pp. 407-408.)
8 As authority for awarding spousal support, Janice cites In re Marriage of
Jennings (1999) 138 Wash. 2d 612 [980 P.2d 1248]. There, the trial court had awarded the
civilian spouse “compensatory spousal support” to replace her lost retired pay on a
dollar-for-dollar basis. (Id. at p. 1252.) On appeal, however, the only issue was whether
this violated state rules against reopening a final judgment. (Id. at pp. 1254-1256.) Thus,
the court had no occasion to discuss whether spousal support — either on a sliding
multifactor scale or on a dollar-for-dollar basis — was an appropriate remedy.
23
California law, however, does not allow a trial court to order dollar-for-dollar
reimbursement under the guise of support. “Permanent spousal support ‘is governed by
the statutory scheme set forth in [Family Code] sections 4300 through 4360. [Family
Code s]ection 4330 authorizes the trial court to order a party to pay spousal support in an
amount, and for a period of time, that the court determines is just and reasonable, based
on the standard of living established during the marriage, taking into consideration the
circumstances set forth in [Family Code] section 4320.’ [Citations.] The statutory
factors include the supporting spouse’s ability to pay; the needs of each spouse based on
the marital standard of living; the obligations and assets of each spouse, including
separate property; and any other factors pertinent to a just and equitable award.
[Citation.] ‘The trial court has broad discretion in balancing the applicable statutory
factors and determining the appropriate weight to accord to each, but it may not be
arbitrary and must both recognize and apply each applicable factor.’ [Citation.]” (In re
Marriage of Blazer (2009) 176 Cal. App. 4th 1438, 1442-1443.) By contrast, awarding
dollar-for-dollar reimbursement does not involve consideration of any of these factors; in
setting the amount of such reimbursement, the trial court would exercise no discretion.
Here, the trial court purported to consider all of the factors listed in Family Code
section 4320; it made detailed findings with respect to each of these factors.
Nevertheless, it came up with a support amount that was identical, down to the dollar, to
the amount of retired pay that Janice had lost. Obviously, the trial court subordinated all
24
of its other findings to the fact that Janice had been deprived of $541 in retired pay. This
was arbitrary and an abuse of discretion.9
Thus, we reject a dollar-for-dollar award of support as a remedy. More generally,
however, we reject any award of support as a remedy, even when the amount of support
is determined in scrupulous accordance with the factors listed in Family Code section
4320. We recognize that whenever a military spouse waives retired pay in order to obtain
disability benefits, the civilian spouse has increased need, and the military spouse has an
increased ability to pay. Nevertheless, the wrong that is done — the wrong that cries out
for a remedy — is that the civilian spouse has been deprived of a community property
right.
“[I]t must be kept in mind that spousal support considerations are separate and
distinct from property division concepts.” (In re Marriage of White (1987) 192
Cal. App. 3d 1022, 1026.) “Support cannot be awarded in lieu of an equal division of
9 Robert contends that particular findings regarding the Family Code section
4320 factors were not supported by the evidence. In light of our other holdings, we need
not consider this contention.
Robert also contends that Janice gave false testimony. It is not clear what he
wants us to do about it. He does not explain how the supposed falsity was prejudicial; to
the contrary, he asserts that it was “obvious to everyone in the courtroom” and that he
“discussed [it] in some detail in [his] Closing Brief.” In any event, the asserted
falsehoods pertained to need and other factors relevant to an award of spousal support, as
listed in Family Code section 4320. In light of our holding that the trial court erred by
awarding spousal support at all, Robert needs no other remedy for them.
25
community property [citation] or to compensate for an unequal division.” (Hogoboom &
King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 6:980, p. 6-507.)
The civilian spouse should be entitled to recover the amount lost, regardless of
earning capacity, other assets and obligations, or the former marital standard of living.
Thus, the appropriate remedy is dollar-for-dollar compensation, not a variable amount set
in the trial court’s discretion after weighing a host of factors. (See In re Marriage of
Stenquist, supra, 21 Cal.3d at p. 787, fn. 8 [“[A]djustments in the amount of alimony
awarded will not mitigate the hardship caused the wife by the denial of her community
interest . . . . ‘[T]he spouse “should not be dependent on the discretion of the court . . . to
provide her with the equivalent of what should be hers as a matter of absolute right.”’
[Citation.]”].)
In addition, unless otherwise agreed, a support award terminates automatically if
the supported spouse remarries. (Fam. Code, § 4337.) However, remarriage should have
no effect on a civilian spouse’s community property rights.
Similarly, unless otherwise agreed, a support order may be modified at any time
(Fam. Code, §§ 3603, 3651, subd. (a)), based on changed circumstances (In re Marriage
of Khera and Sameer (2012) 206 Cal. App. 4th 1467, 1479). By contrast, an award of a
share of a military spouse’s retired pay to a civilian spouse is final and nonmodifiable; an
award of compensation for the loss of that share should likewise be nonmodifiable. In
this case, the trial court attempted to overcome this problem by making its support award
26
unmodifiable. However, as Robert points out, this provision was statutorily unauthorized
and erroneous.
Janice cites In re Marriage of Olsen (1994) 24 Cal. App. 4th 1702 as authority
supporting an award of spousal support. There, the trial court awarded the wife a
community property share of the husband’s military retired pay, on the condition that she
waive any spousal support, which she did. (Id. at p. 1705.) Thereafter, FUSFSPA was
amended so as to provide that a state court cannot treat military retired pay as community
property. (Ibid.) In response, the trial court reinstated the wife’s spousal support. (Ibid.)
The appellate court held that, even though the trial court’s previous order had been final,
and even though the trial court had not expressly reserved jurisdiction over spousal
support, the trial court had jurisdiction to do so. (Id. at pp. 1705-1707.)
The only aspect of Olsen that is even tangentially relevant to the issue before us is
the trial court’s order requiring the wife to waive spousal support in order to receive her
community property interest in the husband’s military retired pay. Arguably, this
suggests that the two are somehow fungible. However, the parties did not appeal from
that order. Moreover, in the appeal that they did file, there was no issue with respect to
whether that previous order was valid. “‘“‘[I]t is axiomatic that cases are not authority
for propositions not considered.’”’ [Citation.]” (Riverside County Sheriff’s Dept. v.
Stiglitz (2014) 60 Cal. 4th 624, 641.)
As mentioned earlier, we do not agree with Krempin that a resulting trust is an
appropriate remedy. Krempin reasoned that the military spouse has “‘“effectively
27
utilized”’” the civilian spouse’s interest in the retired pay to “‘“acquire”’” disability
benefits for him or herself alone. (In re Marriage of Krempin, supra, 70 Cal.App.4th at
p. 1017.) “‘“The situation presented is a classic one for the imposition of a resulting
trust. When one person furnishes the money or other thing of value with which property
is acquired and title to the property is taken in the name of another, absent the intention of
the one to confer a gift upon the other, the titleholder is a trustee upon a resulting trust of
the property for the benefit of the person who furnished the money or other thing of value
by which the property was acquired. . . .”’” (Ibid.)
The problem with this is that it gives the civilian spouse an interest in specific
property — namely, the military spouse’s disability benefits. But this is precisely what
Mansell forbids. Hence, as far as we have been able to determine, no other court has ever
used a resulting trust as a remedy for a civilian spouse’s lost interest in a military
spouse’s waived retired pay.
We believe it is better to hold that the military spouse has caused the loss or
destruction of a property right belonging to the civilian spouse and should therefore be
required to pay the civilian spouse money damages. (See Civ. Code, § 3281 [“Every
person who suffers detriment from the unlawful act or omission of another, may recover
from the person in fault a compensation therefor in money, which is called damages.”].)
Here, the judgment characterized Robert’s retired pay as community property and
awarded 43.1 percent of it to Janice. By waiving his retired pay so that he could receive
disability benefits, Robert effectively transferred 100 percent of his retired pay to the
28
United States government. Like the court in Krempin, we do not mean to characterize
this action as fraudulent, a breach of the implied covenant of good faith and fair dealing,
contempt of court, or otherwise blameworthy. (In re Marriage of Krempin, supra, 70
Cal.App.4th at p. 1017.) However, it upset the division of property as adjudicated in the
judgment. Thus, Janice became entitled to damages for her lost property right.
Although the trial court erred by awarding spousal support, we can remedy this
error by directing it to award Janice $541 a month, not as spousal support, but as
damages.
VI
THE FINALITY OF JUDGMENTS
Robert contends that the trial court’s order violates the finality of judgments.10
“[P]ublic policy demands finality of litigation in the area of family law.” (In re
Marriage of Thomas (1984) 156 Cal. App. 3d 631, 638.) Thus, “[g]enerally, once a
marital dissolution judgment has become final, the court loses jurisdiction to modify or
alter it. [Citations.] . . . [M]arital property rights and obligations adjudicated by a final
10 Robert also argues that the passage of time since the 1986 judgment made
an award of spousal support inappropriate. Thus, he argues that Janice was not entitled to
spousal support because she had had ample time to become self-supporting. Similarly, he
argues that the significance of the marital standard of living had become attenuated. In
part V, ante, however, we held, for other reasons, that the trial court erred by choosing
spousal support as a remedy. Thus, we need not address these arguments. We note them
here only to point out that they are different from an argument based on the finality of
judgments.
29
judgment cannot be upset by subsequent efforts to ‘modify’ the judgment.” (In re
Marriage of Thorne and Raccina (2012) 203 Cal. App. 4th 492, 499.)
One exception to this general rule is that “a judgment may contain an express
reservation of jurisdiction authorizing the court to subsequently modify it. [Citations.]”
(In re Marriage of Thorne and Raccina, supra, 203 Cal.App.4th at p. 500.) Here, the
judgment contained an express reservation of jurisdiction regarding spousal support.
Thus, the trial court did not violate finality principles by making a new order for spousal
support. Indeed, the very existence of the reservation of judgment may well have
influenced its decision to choose spousal support as a remedy.
Krempin did not need to address this issue, because there, the stipulated judgment
included a reservation of jurisdiction “‘to make such orders relating to [the husband’s]
retirement benefits as are necessary to carry out this agreement.’” (In re Marriage of
Krempin, supra, 70 Cal.App.4th at p. 1020.)
Here, the 1986 judgment did not contain any similar express reservation of
jurisdiction regarding retirement benefits. We therefore consider Robert’s argument
regarding finality of judgments, not as it pertains to an award of spousal support, but
rather as it pertains to an award of damages.
Once a divorce judgment has been entered, it “may be enforced . . . by any other
order as the court in its discretion determines from time to time to be necessary.” (Fam.
Code, § 290.) “To the extent that a judgment of dissolution is not self-executing in
respect of any division of property therein ordered, the court retains jurisdiction to make
30
such further orders as are appropriate to compel obedience to its judgment.” (Bonner v.
Superior Court (1976) 63 Cal. App. 3d 156, 165.)
In In re Marriage of Justice (1984) 157 Cal. App. 3d 82, the trial court entered a
stipulated judgment awarding the wife a specified percentage of the husband’s future
police officer pension. (Id. at p. 85.) Ultimately, the husband retired on a disability
pension rather than a longevity pension; he therefore refused to pay the wife anything.
(Ibid.) On the wife’s motion, the trial court ordered the pension administrator to pay the
wife her share of what the husband would have received if he had retired on a longevity
pension. (Id. at pp. 85-86.)
On appeal, the husband argued “that because the judgment awarded to [the wife]
one-half of the community interest in his service retirement benefits and did not reserve
the court’s jurisdiction over any disability retirement benefits to which he might have
become entitled, the court was without jurisdiction to ‘divide’ [the husband]’s disability
pension by postjudgment order.” (In re Marriage of Justice, supra, 157 Cal.App.3d at
p. 86.)
The appellate court ruled: “The contention is without merit. A judgment entered
in a marital dissolution proceeding ‘may be enforced by the court . . . by such . . . order or
orders as the court in its discretion may from time to time deem necessary.’ (Civ. Code,
§ 4380.)[11] The postjudgment order enforces the judgment by securing to [the wife] her
11 After Justice was decided, Civil Code section 4380 was repealed and
replaced by Family Code section 290. Family Code “[s]ection 290 continues former
[footnote continued on next page]
31
share of the community interest in [the husband]’s service retirement benefits; the order
does not by its terms award to [the wife] any portion of [the husband]’s disability
pension.” (In re Marriage of Justice, supra, 157 Cal.App.3d at p. 86.)
As already noted, out-of-state decisions hold that a military spouse can be required
to compensate a civilian spouse for the loss of waived retired pay, despite Mansell. Some
of these have further held that this is permitted enforcement of the judgment, rather than a
prohibited modification.
For example, in Janovic v. Janovic (Fla. App. 2002) 814 So. 2d 1096, the court
stated: “A trial court may not, in the guise of an enforcement proceeding, readdress the
distribution of property when the property has been previously distributed, [citations], nor
may the trial court reallocate property based on an involuntary change in circumstances.
A trial court, however, retains jurisdiction to enforce a final dissolution judgment.
[Citation.] Where a party only seeks to receive what is contemplated by the property
settlement agreement incorporated into the final dissolution judgment, the relief sought is
enforcement rather than modification. [Citations.] Therefore, a trial court may order an
equivalent benefit as part of an enforcement action where one spouse takes a voluntary
action which defeats the intent of the parties. [Citation.]” (Id. at pp. 1100-1101, fn.
omitted.)
[footnote continued from previous page]
Civil Code Section 4380 without substantive change . . . .” (Cal. Law Revision Com.
com., 29C West’s Ann. Fam. Code (2004 ed.) foll. § 290, p. 96.)
32
In Whitfield v. Whitfield, supra, 862 A.2d 1187, the court said: “It is important to
emphasize the procedural posture of this case. The issue is one of enforcement of a prior
equitable distribution award, not a present division of assets. Wife does not seek to
divide her former husband’s disability benefits in violation of Mansell. Nor does she
seek a greater percentage of her husband’s military pension than she originally received
at the time of his retirement pursuant to court order. Moreover, wife does not seek to
alter the terms of her veteran-spouse’s retirement plan or to compel the Department of
Defense to make direct payments to her in excess of those permitted by federal law. The
remedy she seeks, and that to which she is entitled, is an enforcement of the original
order which was in effect before her former husband retired and unilaterally elected the
waiver.” (Id. at p. 1192; see also Megee v. Carmine, supra, 802 N.W.2d at pp. 679-680
[quoting and agreeing with Whitfield].)
Likewise, Hadrych v. Hadrych, supra, 149 P.3d 593 stated: “Husband’s unilateral
action significantly reduced benefits to which Wife was entitled under the final decree.
While we agree that there was no language expressly addressing the change in retirement
benefits that would occur if Husband were to become disabled, it is also true that the
decree awarded to Wife 50% of the retirement benefits that had accrued to date of
divorce. Husband’s argument that no language prohibited him from electing to waive
retirement benefits and convert them to disability benefits is not persuasive. There is no
language in the decree permitting him to do so, either. We think it is quite a stretch for
him to argue that the trial court could not intervene to address his attempt to significantly
33
reduce the 50-50 distribution set by the decree. Consequently, we hold that the court’s
order constituted enforcement because the order maintained Wife’s benefits at the same
level as was established by the decree. [Citations.] The order simply enforces the
division set by the final decree, guarantees that the reasonable expectations of the parties
concerning the allocation of the retirement benefits would be protected, and ensures that
Husband’s unilateral attempt to reduce Wife’s benefits would go unrewarded. [Citation.]
Under the facts in our case, we conclude that the trial court had jurisdiction to enter the
order. Husband’s technical argument rings hollow, and we reject it.” (Id. at p. 598; see
also Black v. Black, supra, 842 A.2d at p. 1286; Hayes v. Hayes, supra, 164 P.3d at
p. 1131; In re the Marriage of Warkocz (Colo.App. 2006) 141 P.3d 926, 931; contra,
Youngbluth v. Youngbluth, supra, 6 A.3d at pp. 685-688.)
We therefore conclude that the trial court had jurisdiction to make an award of
damages to compensate Janice for her lost property right.
VII
COMBAT-RELATED SPECIAL COMPENSATION (CRSC)
Here, in addition to disability benefits, Robert was also receiving CRSC. Both
parties make much of this fact. For example, Robert purports to distinguish Krempin and
other cases on the ground that they did not deal with CRSC. Accordingly, we will
discuss what CRSC is and how it is involved in this case. We will conclude, however,
that it is largely irrelevant.
34
CRSC is relatively new; it was first enacted in 2002. (10 U.S.C. § 1413a; Pub. L.
107-314 (Dec. 2, 2002) 116 Stat. 2574.)
For purposes of this opinion, CRSC may be viewed as a bonus payment that
effectively eliminates the double-dipping penalty for those disabled veterans whose
disabilities are combat-related. To be eligible for CRSC, a veteran must be eligible for
both retired pay and disability benefits. (10 U.S.C. § 1413a(c)(1), (e).) It follows that,
under the rule against double-dipping (38 U.S.C. §§ 5304-5305), the veteran must waive
all retired pay up to the amount of the disability benefits. CRSC then basically restores
the waived amount of retired pay (10 U.S.C. § 1413a(b)(1), (b)(2)) — but as “special
compensation,” and specifically not as retired pay (see 10 U.S.C. § 1413a(g)). Like
disability benefits, CRSC is nontaxable. (26 U.S.C. § 104(a)(4); Fin. Mgmt. Reg., supra,
§ 630101(D).)
Because CRSC is not retired pay — just as disability benefits are not retired pay
— under FUSFSPA as construed in Mansell, a state court does not have jurisdiction to
treat CRSC as community property. (10 U.S.C. §§ 1408(a)(4), (c)(1), 1413a(g); Fin.
Mgmt. Reg., supra, § 630101(C)(1).)
In this case, however, the trial court did not even arguably award Janice any
interest in Robert’s CRSC. Before Robert’s election to receive CRSC, he was receiving
$791 a month in retired pay and Janice was receiving $541 a month in retired pay, for a
total of $1,332. After his election, they received no retired pay, but Robert received
$1,743 a month in disability benefits. In other words, the retired pay was wiped out by
35
the disability benefits alone. Robert’s election to receive CRSC did not cause any
additional reduction in retired pay. In fact, CRSC never requires any additional waiver
of retired pay.12
In many cases, an election to receive CRSC is the event that triggers a waiver of
retired pay. As mentioned, a veteran cannot receive CRSC unless he or she also (1)
receives disability benefits and (2) waives retired pay. Thus, when the civilian spouse
asks why his or her flow of retirement benefits has suddenly dried up, he or she may be
told it is because the military spouse has elected CRSC. That appears to be what
happened here. Nevertheless, subject to one exception, CRSC is irrelevant to all of the
issues before us.
The one exception is Robert’s contention that the trial court erred because all of
his income — military disability benefits, state teacher’s disability benefits, social
security, and CRSC — is exempt from creditor’s claims. We now turn to this contention.
VIII
INCOME THAT IS EXEMPT FROM CREDITOR’S CLAIMS
Robert contends that his income is exempt from creditor’s claims.13
12 Some courts seem to be confused about this. (See, e.g., Provencio v.
Leding, supra, 381 S.W.3d at p. 84; Megee v. Carmine, supra, 802 N.W.2d at p. 673.)
13 Robert tends to conflate the issue of nondivisibility under Mansell with the
issue of exemption from creditor’s claims — what he calls “non-attachability.”
Nevertheless, they are distinct and we discuss them separately.
36
As already noted, Robert’s income consists of disability benefits, state teacher’s
disability benefits, social security, and CRSC. Subject to one possible exception —
which we will assume away for purposes of argument — we agree that these funds are
exempt from creditor’s claims.14
Disability benefits: Disability benefits are “exempt from the claim of creditors,
. . . either before or after receipt by the beneficiary.” (38 U.S.C. § 5301(a)(1).)
State teacher’s disability benefits: State teacher’s disability benefits are exempt,
both before and after receipt. (Code Civ. Proc., § 704.110; Ed. Code, § 22006; see also
Code Civ. Proc., § 703.080, subd. (a) [deposit accounts and cash remain exempt as long
as they are traceable to an exempt source].)
Social security: Social security benefits are exempt, both before and after receipt.
(42 U.S.C. § 407(a); S & S Diversified Services, L.L.C. v. Taylor (D.Wyo. 1995) 897
F. Supp. 549, 552.)
CRSC: Robert asserts that CRSC is similarly “exempt from attachment.”
However, he does not bother to provide a citation to support this assertion. The statute
that exempts disability benefits applies only to “[p]ayments of benefits due or to become
due under any law administered by the Secretary” (38 U.S.C. § 5301(a)(1)) — i.e., the
Secretary of Veterans Affairs (38 U.S.C. § 101(1)). CRSC is paid by the Defense
Accounting and Finance Center (10 U.S.C. § 1413a(a));
14 As stated in part V, ante, all of these exemptions are subject to exceptions
for claims for spousal support.
37
[as of Nov. 2, 2016]), not
by the VA.
Arguably, general sovereign immunity principles might prevent the enforcement
of a creditor’s claim against future CRSC payments while they are still in the hands of the
federal government. (Dept. of the Army v. Blue Fox, Inc. (1999) 525 U.S. 255, 264
[“sovereign immunity bars creditors from attaching or garnishing funds in the
Treasury”].) However, our research has not revealed any statute or other legal principle
that would protect CRSC payments after they have been made.
Nevertheless, for purposes of argument, we will assume that CRSC is exempt
from creditor’s claims both before and after receipt.
Even if all of Robert’s current income is exempt, however, the record shows that
he has other assets. He owns a home; although he has a “large” mortgage, he does have
some equity, in an amount not shown by the record. He also owns a car.
More to the point, the question of whether Janice was entitled to an award of
damages is completely independent from the question of whether Robert has any
nonexempt assets or income. It is possible that Janice will end up with a paper judgment
that she can never enforce. Or Robert will choose to pay her out of his exempt assets to
protect his nonexempt assets from seizure. Or Janice will settle her claim for a
significantly reduced amount in exchange for immediate payment out of Robert’s exempt
assets. Or Robert will win the lottery. But even if he is judgment-proof, she is entitled to
a judgment.
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In sum, then, as long as the trial court does not order Robert to pay Janice out of
his disability benefits, Mansell is satisfied. Even assuming that, in addition, there must
be evidence that Robert has some other assets, there was such evidence here. Whether
those other assets are also exempt may affect the enforcement of an award of damages,
but it does not affect the propriety of making and entering the award.
IX
ATTORNEY FEES
Robert contends that the trial court erred by awarding attorney fees to Janice.
“Under [Family Code] sections 2030 and 2032, a family court may award attorney
fees and costs ‘between the parties based on their relative circumstances in order to
ensure parity of legal representation in the action.’ [Citation.] The parties’
circumstances include assets, debts and earning ability of both parties, ability to pay,
duration of the marriage, and the age and health of the parties. [Citation.]” (In re
Marriage of Winternitz (2015) 235 Cal. App. 4th 644, 657.)
“[A] motion for attorney fees and costs in a dissolution proceeding is left to the
sound discretion of the trial court. [Citations.] In the absence of a clear showing of
abuse, its determination will not be disturbed on appeal. [Citations.] ‘[T]he trial court’s
order will be overturned only if, considering all the evidence viewed most favorably in
support of its order, no judge could reasonably make the order made. [Citations.]’
[Citation.]” (In re Marriage of Sullivan (1984) 37 Cal. 3d 762, 768-769.)
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Robert argues that Janice had sufficient income and savings to pay her counsel.
However, “[t]he fact the applicant has sufficient personal resources to pay his or her own
attorney fees and costs does not itself bar an order requiring the other party to pay part or
all of the fees and costs requested.” (Hogoboom & King, Cal. Practice Guide: Family
Law, supra, ¶ 14:158, p. 14-55, italics omitted.)
Robert also complains that the trial court awarded Janice the fees of her expert
witness Muir, even though Muir’s opinions were “ill-founded” and “misinformed” and
Muir “deigned to mislead the Court . . . .” However, he cites no authority for the
proposition that this is a basis for denying those fees to Janice (who, after all, still had to
pay Muir). “‘“[A]n appellate brief ‘should contain a legal argument with citation of
authorities on the points made. If none is furnished on a particular point, the court may
treat it as waived, and pass it without consideration.’”’ [Citation.]” (Almanor Lakeside
Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th 761, 777.) In addition, Robert
forfeited this argument by failing to raise it below.
To the extent that Robert’s reply brief may be construed as raising any other
arguments concerning attorney fees, we deem them forfeited by his failure to raise them
in his opening brief. (Estate of Moore (2015) 240 Cal. App. 4th 1101, 1106, fn. 3.)
We therefore conclude that Robert has not shown that the trial court abused its
discretion by awarding attorney fees to Janice.
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X
DISPOSITION
The order appealed from is reversed. On remand, the trial court must enter a new
order, not inconsistent with this opinion, awarding Janice the same dollar amount, but as
damages and not as spousal support nor on a resulting trust theory. In the interests of
justice, each side shall bear its own costs.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
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