Mary K. Keough, etc. v. Francis P. Keough ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
MARY K. KEOUGH, A/K/A
MARY S. PELLETTIERI
MEMORANDUM OPINION * BY
v. Record No. 2140-96-4 JUDGE JAMES W. BENTON, JR.
MAY 13, 1997
FRANCIS P. KEOUGH
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Robert B. Machen for appellant.
Ann W. Mische (Byrd, Mische, Bevis, Bowen,
Joseph & O'Connor, P.C., on brief), for
appellee.
Mary Keough Pellettieri appeals from an order determining
her interest in the military retirement pay received by her
former husband, Francis P. Keough. Pellettieri argues that the
trial judge erred in (1) miscalculating the portion of Keough's
retirement pay to which she is entitled, (2) ruling that any
amount of retirement benefits waived by Keough in order to
receive disability benefits should be subtracted from his gross
retirement pay before determining her monetary share, and (3)
ruling that Veterans Administration (VA) disability benefits are
"disability benefits" for purposes of determining the parties'
shares of Keough's retirement pay pursuant to the consent order.
For the reasons that follow, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
In the parties' final decree of divorce, the trial judge
awarded Pellettieri a lump sum of Keough's military retirement
pay, to be paid in monthly installments equal to fifty percent of
Keough's pay until the lump sum amount was satisfied.
Pellettieri appealed the decree and argued that the trial judge
erred by valuing the pension as of the date of the 1987 divorce
decree. This Court agreed with her argument and remanded the
case for valuation of the pension as of the date of the
evidentiary hearing. Following that appeal and based upon the
parties' agreement, the trial judge entered a consent order in
July 1990 regarding Pellettieri's share of Keough's retirement
pay.
On November 14, 1994, Pellettieri filed a motion seeking
clarification of the July 1990 order. Following an evidentiary
hearing, the trial judge entered a final order clarifying the
July 1990 order. This is an appeal from that order.
II.
In her brief, Pellettieri argued that the trial judge erred
in his calculation of her share of Keough's disability benefits.
At oral argument, however, Pellettieri's counsel acknowledged
that the argument was based on a mathematical error and withdrew
this argument. We agree that the briefs demonstrate that
Pellettieri's calculation was erroneous. Accordingly, we need
not address this issue further.
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III.
Pellettieri also argues that the trial judge erred in
reducing the amount of Keough's gross retirement pay by the
amount of the disability benefits Keough received. We disagree.
The evidence proved that Keough retired from military
service in 1993. In August 1994, the VA authorized payment of
disability compensation to Keough. In order to receive
disability benefits, Keough had to waive an equivalent amount of
his retirement pay.
The parties' agreement, which was later incorporated into a
consent order, stated the following:
[Pellettieri] shall have an interest in
the marital portion of [Keough's] monthly
military pension (minus and exclusive of
disability payments) as set out in the
following formula:
(18 years divided by years of actual
service) times 50% times the following
figure: the gross retired monthly
military pay in an amount that would
have been paid if [Keough] had retired
on December 5, 1984 (i.e., $23,336 per
annum or $1,944.67 per month), less (18
years divided by years of actual service
times 50% of disability payments).
(Emphasis added.)
In the order Pellettieri appealed from, the trial judge used
the actual years of service and set forth the following formula
for computing Pellettieri's share of Keough's retirement
payments: "Twenty-nine percent (29%) of the gross retired
monthly military entitlements, less twenty-nine percent (29%) of
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the monthly disability payment." The parties agree that
twenty-nine percent is the correct proportion. Furthermore, the
parties' agreement, as reflected in the consent order,
unambiguously requires a reduction of the gross retirement pay by
the disability payments received.
Citing Bullis v. Bullis, 22 Va. App. 24, 467 S.E.2d 830(1996), Pellettieri argues that no disability payments should be
used in the calculation to reduce her share of Keough's
retirement pay. She contends that because Keough did not have a
disability rating at the time of his retirement, Bullis bars the
use of disability payments to reduce her share of Keough's
retirement payments. She misconstrues Bullis. In Bullis, the
appellant argued that none of his retirement pay was subject to
division on divorce. See id. at 34-35, 467 S.E.2d at 835-36.
Appellant based his argument on a definition of "disposable
retired pay" contained in the original Uniformed Services Former
Spouses' Protection Act (USFSPA), which was later amended in
1986. See id. Under the original version of USFSPA, if a spouse
received any Chapter 61 disability benefits, all of that spouse's
retirement pay was exempted from division at divorce. See id. at
35-36, 467 S.E.2d at 836.
In discussing the statutory changes implemented by Congress
in the amended USFSPA, this Court stated:
The amended version of the USFSPA
therefore exempts only that portion of
Chapter 61 benefits which corresponds to the
retiree's disability percentage rating at the
time of retirement. If, for example, a
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service member retires with 60% disability
under Chapter 61, then 60% of the member's
retirement benefits are excluded from the
definition of "disposable retired pay." The
remaining 40% of the member's benefits may be
judicially apportioned under state community
property laws.
Id. at 36, 467 S.E.2d at 836. Contrary to Pellettieri's
assertion, the discussion in that passage was not a ruling that
any disability rating that occurs after the spouse's retirement
is precluded from consideration. The paragraph, read as a whole,
highlights the exemption provision of the amended USFSPA and
notes that under the amended statute, if a spouse receives a
partial disability rating, only a portion of the spouse's
military retirement pay is exempt from division at divorce. See
id.
Moreover, the discussion in Bullis related to a reduction in
"disposable retired pay" under 10 U.S.C. § 1408(a)(4)(C) (1994).
See Bullis, 22 Va. App. at 33, 467 S.E.2d at 835. Subsection C
applies to service members who are retired due to their
disability and are entitled to receive "retired pay" under
Chapter 61. See 10 U.S.C. § 1408(a)(4)(C) (1994); 10 U.S.C.
§§ 1201-1221 (1994) ("Chapter 61 - Retirement or Separation for
Physical Disability").
In this case, on the other hand, Keough was already retired
before his disability was determined. He received disability
payments pursuant to Title 38. See 38 U.S.C. §§ 1110, 1131
(1994). Thus, 10 U.S.C. § 1408(a)(4)(B) (1994), which references
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Title 38, would apply to this case. Therefore, the discussion of
subsection C in Bullis does not apply to Keough's retirement pay.
We hold that Pellettieri's assertion -- that any disability
payments received pursuant to a disability rating that arises
after the service member's retirement are precluded from
consideration when dividing the retirement pay -- is without
merit. Accordingly, the trial judge's order is not plainly
wrong.
IV.
Pellettieri next argues that the trial judge erred in
concluding that the term "disability payments," contained in the
parties' agreement and the consent order, included Keough's VA
disability benefits. We disagree.
The term "disability" is defined as a "lack . . . of
physical, intellectual, or emotional capacity or fitness."
Webster's Third New International Dictionary 642 (1981). Indeed,
the federal statutory authority for providing Keough's benefits
states that the benefits are to cover "disability resulting from
personal injury." 38 U.S.C. § 1110 (1994) (injury suffered
during wartime); 38 U.S.C. § 1131 (1994) (injury suffered during
peacetime). Moreover, the evidence reveals that the Department
of Veterans Affairs awarded Keough "service-connected disability
compensation" for cervical disc syndrome, degenerative arthritis
to the right hip, lumbosacral strain, mild asthma, and status
post fracture of the left wrist. Because those ailments impaired
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Keough's physical fitness, the plain terms of the order dictate
that the VA benefits were included within the term "disability
benefits."
For these reasons, the judgment is affirmed.
Affirmed.
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