Howell v. Howell , 137 S. Ct. 1400 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HOWELL v. HOWELL
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 15–1031. Argued March 20, 2017—Decided May 15, 2017
The Uniformed Services Former Spouses’ Protection Act authorizes
States to treat veterans’ “disposable retired pay” as community prop-
erty divisible upon divorce, 10 U. S. C. §1408, but expressly excludes
from its definition of “disposable retired pay” amounts deducted from
that pay “as a result of a waiver . . . required by law in order to re-
ceive” disability benefits, §1408(a)(4)(B). The divorce decree of peti-
tioner John Howell and respondent Sandra Howell awarded Sandra
50% of John’s future Air Force retirement pay, which she began to re-
ceive when John retired the following year. About 13 years later, the
Department of Veterans Affairs found that John was partially disa-
bled due to an earlier service-related injury. To receive disability
pay, federal law required John to give up an equivalent amount of re-
tirement pay. 38 U. S. C. §5305. By his election, John waived about
$250 of his retirement pay, which also reduced the value of Sandra’s
50% share. Sandra petitioned the Arizona family court to enforce the
original divorce decree and restore the value of her share of John’s to-
tal retirement pay. The court held that the original divorce decree
had given Sandra a vested interest in the prewaiver amount of John’s
retirement pay and ordered John to ensure that she receive her full
50% without regard for the disability waiver. The Arizona Supreme
Court affirmed, holding that federal law did not pre-empt the family
court’s order.
Held: A state court may not order a veteran to indemnify a divorced
spouse for the loss in the divorced spouse’s portion of the veteran’s re-
tirement pay caused by the veteran’s waiver of retirement pay to re-
ceive service-related disability benefits. This Court’s decision in
Mansell v. Mansell, 490 U. S. 581, determines the outcome here.
There, the Court held that federal law completely pre-empts the
States from treating waived military retirement pay as divisible
2 HOWELL v. HOWELL
Syllabus
community property. Id., at 594–595. The Arizona Supreme Court
attempted to distinguish Mansell by emphasizing the fact that the
veteran’s waiver in that case took place before the divorce proceeding
while the waiver here took place several years after the divorce. This
temporal difference highlights only that John’s military pay at the
time it came to Sandra was subject to a future contingency, meaning
that the value of Sandra’s share of military retirement pay was pos-
sibly worth less at the time of the divorce. Nothing in this circum-
stance makes the Arizona courts’ reimbursement award to Sandra
any the less an award of the portion of military pay that John waived
in order to obtain disability benefits. That the Arizona courts re-
ferred to her interest in the waivable portion as having “vested” does
not help: State courts cannot “vest” that which they lack the authori-
ty to give. Neither can the State avoid Mansell by describing the
family court order as an order requiring John to “reimburse” or to
“indemnify” Sandra, rather than an order dividing property, a se-
mantic difference and nothing more. Regardless of their form, such
orders displace the federal rule and stand as an obstacle to the ac-
complishment and execution of the purposes and objectives of Con-
gress. Family courts remain free to take account of the contingency
that some military retirement pay might be waived or take account of
reductions in value when calculating or recalculating the need for
spousal support. Here, however, the state courts made clear that the
original divorce decree divided the whole of John’s military pay, and
their decisions rested entirely upon the need to restore Sandra’s lost
portion. Pp. 6–8.
238 Ariz. 407, 361 P. 3d 936, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined. THOMAS, J., filed an opinion concurring in part and concurring
in the judgment. GORSUCH, J., took no part in the consideration or deci-
sion of the case.
Cite as: 581 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1031
_________________
JOHN HOWELL, PETITIONER v. SANDRA HOWELL
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
ARIZONA
[May 15, 2017]
JUSTICE BREYER delivered the opinion of the Court.
A federal statute provides that a State may treat as
community property, and divide at divorce, a military
veteran’s retirement pay. See 10 U. S. C. §1408(c)(1). The
statute, however, exempts from this grant of permission
any amount that the Government deducts “as a result of a
waiver” that the veteran must make “in order to receive”
disability benefits. §1408(a)(4)(B). We have held that a
State cannot treat as community property, and divide at
divorce, this portion (the waived portion) of the veteran’s
retirement pay. See Mansell v. Mansell, 490 U. S. 581,
594–595 (1989).
In this case a State treated as community property and
awarded to a veteran’s spouse upon divorce a portion of
the veteran’s total retirement pay. Long after the divorce,
the veteran waived a share of the retirement pay in order
to receive nontaxable disability benefits from the Federal
Government instead. Can the State subsequently in-
crease, pro rata, the amount the divorced spouse receives
each month from the veteran’s retirement pay in order to
indemnify the divorced spouse for the loss caused by the
veteran’s waiver? The question is complicated, but the
2 HOWELL v. HOWELL
Opinion of the Court
answer is not. Our cases and the statute make clear that
the answer to the indemnification question is “no.”
I
A
The Federal Government has long provided retirement
pay to those veterans who have retired from the Armed
Forces after serving, e.g., 20 years or more. It also pro-
vides disabled members of the Armed Forces with disabil-
ity benefits. In order to prevent double counting, however,
federal law typically insists that, to receive disability
benefits, a retired veteran must give up an equivalent
amount of retirement pay. And, since retirement pay is
taxable while disability benefits are not, the veteran often
elects to waive retirement pay in order to receive disability
benefits. See 10 U. S. C. §3911 et seq. (Army retirement
benefits); §6321 et seq. (Navy and Marines retirement
benefits); §8911 et seq. (Air Force retirement benefits); 38
U. S. C. §5305 (requiring a waiver to receive disability
benefits); §5301(a)(1) (exempting disability benefits from
taxation). See generally McCarty v. McCarty, 453 U. S.
210, 211–215 (1981) (describing the military’s nondisabil-
ity retirement system).
In 1981 we considered federal military retirement pay
alone, i.e., not in the context of pay waived to receive
disability benefits. The question was whether a State
could consider any of a veteran’s retirement pay to be a
form of community property, divisible at divorce. The
Court concluded that the States could not. See McCarty,
supra. We noted that the relevant legislative history
referred to military retirement pay as a “ ‘personal enti-
tlement.’ ” Id., at 224. We added that other language in
the statute as well as its history made “clear that Con-
gress intended that military retired pay ‘actually reach the
beneficiary.’ ” Id., at 228. We found a “conflict between
the terms of the federal retirement statutes and the [state-
Cite as: 581 U. S. ____ (2017) 3
Opinion of the Court
conferred] community property right.” Id., at 232. And we
concluded that the division of military retirement pay by
the States threatened to harm clear and substantial fed-
eral interests. Hence federal law pre-empted the state
law. Id., at 235.
In 1982 Congress responded by passing the Uniformed
Services Former Spouses’ Protection Act, 10 U. S. C.
§1408. Congress wrote that a State may treat veterans’
“disposable retired pay” as divisible property, i.e., commu-
nity property divisible upon divorce. §1408(c)(1). But the
new Act expressly excluded from its definition of “dispos-
able retired pay” amounts deducted from that pay “as a
result of a waiver . . . required by law in order to receive”
disability benefits. §1408(a)(4)(B). (A recent amendment
to the statute renumbered the waiver provision. It now
appears at §1408(a)(4)(A)(ii). See Pub. L. 114–328,
§641(a), 130 Stat. 2164.)
In 1989 we interpreted the new federal language in
Mansell, 490 U. S. 581. Major Gerald E. Mansell and his
wife had divorced in California. At the time of the divorce,
they entered into a “property settlement which provided,
in part, that Major Mansell would pay Mrs. Mansell 50
percent of his total military retirement pay, including that
portion of retirement pay waived so that Major Mansell
could receive disability benefits.” Id., at 586. The divorce
decree incorporated this settlement and permitted the
division. Major Mansell later moved to modify the decree
so that it would omit the portion of the retirement pay
that he had waived. The California courts refused to do
so. But this Court reversed. It held that federal law
forbade California from treating the waived portion as
community property divisible at divorce.
Justice Thurgood Marshall, writing for the Court, pointed
out that federal law, as construed in McCarty, “completely
pre-empted the application of state community property
law to military retirement pay.” 490 U. S., at 588. He
4 HOWELL v. HOWELL
Opinion of the Court
noted that Congress could “overcome” this pre-emption “by
enacting an affirmative grant of authority giving the
States the power to treat military retirement pay as com-
munity property.” Ibid. He recognized that Congress,
with its new Act, had done that, but only to a limited
extent. The Act provided a “precise and limited” grant of
the power to divide federal military retirement pay. Ibid.It did not “gran[t]” the States “the authority to treat
total retired pay as community property.” Id., at 589.
Rather, Congress excluded from its grant of authority the
disability-related waived portion of military retirement
pay. Hence, in respect to the waived portion of retirement
pay, McCarty, with its rule of federal pre-emption, still
applies. Ibid.B
John Howell, the petitioner, and Sandra Howell, the
respondent, were divorced in 1991, while John was serving
in the Air Force. Anticipating John’s eventual retirement,
the divorce decree treated John’s future retirement pay as
community property. It awarded Sandra “as her sole and
separate property FIFTY PERCENT (50%) of [John’s]
military retirement when it begins.” App. to Pet. for Cert.
41a. It also ordered John to pay child support of $585 per
month and spousal maintenance of $150 per month until
the time of John’s retirement.
In 1992 John retired from the Air Force and began to
receive military retirement pay, half of which went to
Sandra. About 13 years later the Department of Veterans
Affairs found that John was 20% disabled due to a service-
related shoulder injury. John elected to receive disability
benefits and consequently had to waive about $250 per
month of the roughly $1,500 of military retirement pay he
shared with Sandra. Doing so reduced the amount of
retirement pay that he and Sandra received by about $125
per month each. In re Marriage of Howell, 238 Ariz. 407,
Cite as: 581 U. S. ____ (2017) 5
Opinion of the Court
408, 361 P. 3d 936, 937 (2015)
Sandra then asked the Arizona family court to enforce
the original decree, in effect restoring the value of her
share of John’s total retirement pay. The court held that
the original divorce decree had given Sandra a “vested”
interest in the prewaiver amount of that pay, and ordered
John to ensure that Sandra “receive her full 50% of the
military retirement without regard for the disability.”
App. to Pet. for Cert. 28a.
The Arizona Supreme Court affirmed the family court’s
decision. See 238 Ariz. 407, 361 P. 3d 936. It asked
whether the family court could “order John to indemnify
Sandra for the reduction” of her share of John’s military
retirement pay. Id., at 409, 361 P. 3d, at 938. It wrote
that the family court order did not “divide” John’s waived
military retirement pay, the order did not require John “to
rescind” his waiver, nor did the order “direct him to pay
any amount to Sandra from his disability pay.” Id., at
410, 361 P. 3d, at 939. Rather the family court simply
ordered John to “reimburse” Sandra for “reducing . . . her
share” of military retirement pay. Ibid. The high court
concluded that because John had made his waiver after,
rather than before, the family court divided his military
retirement pay, our decision in Mansell did not control the
case, and thus federal law did not preempt the family
court’s reimbursement order. 238 Ariz., at 410, 361 P. 3d,
at 939.
Because different state courts have come to different
conclusions on the matter, we granted John Howell’s
petition for certiorari. Compare Glover v. Ranney, 314 P.
3d 535, 539–540 (Alaska 2013); Krapf v. Krapf, 439 Mass.
97, 106–107, 786 N. E. 2d 318, 325–326 (2003); and John-
son v. Johnson, 37 S. W. 3d 892, 897–898 (Tenn. 2001),
with Mallard v. Burkhart, 95 So. 3d 1264, 1269–1272
(Miss. 2012); and Youngbluth v. Youngbluth, 2010 VT 40,
188 Vt. 53, 62–65, 6 A. 3d 677, 682–685.
6 HOWELL v. HOWELL
Opinion of the Court
II
This Court’s decision in Mansell determines the outcome
here. In Mansell, the Court held that federal law com-
pletely pre-empts the States from treating waived military
retirement pay as divisible community property. 490
U. S., at 594–595. Yet that which federal law pre-empts is
just what the Arizona family court did here. App. to Pet.
for Cert. 28a, 35a (finding that the divorce decree gave
Sandra a “vested” interest in John’s retirement pay and
ordering that Sandra receive her share “without regard for
the disability”).
The Arizona Supreme Court, the respondent, and the
Solicitor General try to distinguish Mansell. But we do
not find their efforts convincing. The Arizona Supreme
Court, like several other state courts, emphasized the fact
that the veteran’s waiver in Mansell took place before the
divorce proceeding; the waiver here took place several
years after the divorce proceedings. See 238 Ariz., at 410,
361 P. 3d, at 939; see also Abernethy v. Fishkin, 699 So. 2d
235, 240 (Fla. 1997) (noting that a veteran had not yet
waived retirement pay at the time of the divorce and
permitting indemnification in light of the parties’ “intent
to maintain level monthly payments pursuant to their
property settlement agreement”). Hence here, as the
Solicitor General emphasizes, the nonmilitary spouse and
the family court were likely to have assumed that a full
share of the veteran’s retirement pay would remain avail-
able after the assets were distributed.
Nonetheless, the temporal difference highlights only
that John’s military retirement pay at the time it came to
Sandra was subject to later reduction (should John exer-
cise a waiver to receive disability benefits to which he is
entitled). The state court did not extinguish (and most
likely would not have had the legal power to extinguish)
that future contingency. The existence of that contingency
meant that the value of Sandra’s share of military retire-
Cite as: 581 U. S. ____ (2017) 7
Opinion of the Court
ment pay was possibly worth less—perhaps less than
Sandra and others thought—at the time of the divorce. So
too is an ownership interest in property (say, A’s property
interest in Blackacre) worth less if it is subject to defea-
sance or termination upon the occurrence of a later event
(say, B’s death). See generally Restatement (Third) of
Property §24.3 (2010) (describing property interests that
are defeasible); id., §25.3, and Comment a (describing
contingent future interests subject to divestment).
We see nothing in this circumstance that makes the
reimbursement award to Sandra any the less an award of
the portion of military retirement pay that John waived in
order to obtain disability benefits. And that is the portion
that Congress omitted from the Act’s definition of “dispos-
able retired pay,” namely, the portion that federal law
prohibits state courts from awarding to a divorced veter-
an’s former spouse. Mansell, supra, at 589. That the
Arizona courts referred to Sandra’s interest in the waiv-
able portion as having “vested” does not help. State
courts cannot “vest” that which (under governing federal
law) they lack the authority to give. Cf. 38 U. S. C.
§5301(a)(1) (providing that disability benefits are gener-
ally nonassignable). Accordingly, while the divorce decree
might be said to “vest” Sandra with an immediate right to
half of John’s military retirement pay, that interest is, at
most, contingent, depending for its amount on a subse-
quent condition: John’s possible waiver of that pay.
Neither can the State avoid Mansell by describing the
family court order as an order requiring John to “reim-
burse” or to “indemnify” Sandra, rather than an order that
divides property. The difference is semantic and nothing
more. The principal reason the state courts have given for
ordering reimbursement or indemnification is that they
wish to restore the amount previously awarded as com-
munity property, i.e., to restore that portion of retirement
pay lost due to the postdivorce waiver. And we note that
8 HOWELL v. HOWELL
Opinion of the Court
here, the amount of indemnification mirrors the waived
retirement pay, dollar for dollar. Regardless of their form,
such reimbursement and indemnification orders displace
the federal rule and stand as an obstacle to the accom-
plishment and execution of the purposes and objectives of
Congress. All such orders are thus pre-empted.
The basic reasons McCarty gave for believing that Con-
gress intended to exempt military retirement pay from
state community property laws apply a fortiori to disabil-
ity pay. See 453 U. S., at 232–235 (describing the federal
interests in attracting and retaining military personnel).
And those reasons apply with equal force to a veteran’s
postdivorce waiver to receive disability benefits to which
he or she has become entitled.
We recognize, as we recognized in Mansell, the hardship
that congressional pre-emption can sometimes work on
divorcing spouses. See 490 U. S., at 594. But we note that
a family court, when it first determines the value of a
family’s assets, remains free to take account of the contin-
gency that some military retirement pay might be waived,
or, as the petitioner himself recognizes, take account of
reductions in value when it calculates or recalculates the
need for spousal support. See Rose v. Rose, 481 U. S. 619,
630–634, and n. 6 (1987); 10 U. S. C. §1408(e)(6).
We need not and do not decide these matters, for here
the state courts made clear that the original divorce de-
cree divided the whole of John’s military retirement pay,
and their decisions rested entirely upon the need to re-
store Sandra’s lost portion. Consequently, the determina-
tion of the Supreme Court of Arizona must be reversed.
See Mansell, supra, at 594.
III
The judgment of the Supreme Court of Arizona is re-
versed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Cite as: 581 U. S. ____ (2017) 9
Opinion of the Court
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
Cite as: 581 U. S. ____ (2017) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1031
_________________
JOHN HOWELL, PETITIONER v. SANDRA HOWELL
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
ARIZONA
[May 15, 2017]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
I join all of the opinion of the Court except its brief
discussion of “purposes and objectives” pre-emption. Ante,
at 8. As I have previously explained, “[t]hat framework is
an illegitimate basis for finding the pre-emption of state
law.” Hillman v. Maretta, 569 U. S. ___, ___ (2013)
(THOMAS, J., concurring in judgment) (slip op., at 1); see
also Wyeth v. Levine, 555 U. S. 555, 583 (2009) (same). In
any event, that framework is not necessary to support the
Court’s judgment in this case.