Warner v. Warner

651 So. 2d 1339 (1995)

Cliff WARNER, Sr.
v.
Mary Price WARNER.

No. 95-C-0057.

Supreme Court of Louisiana.

March 10, 1995.

PER CURIAM:

Writ granted. Trial court and court of appeal judgments reversed.

The issue is whether a spouse married less than ten years is entitled to an interest in the other spouse's military pension. The federal statute, 10 U.S.C. § 1408(d)(2) provides:

If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.

The ten-year requirement in 10 U.S.C. § 1408(d)(2) only applies to military retirement pay paid directly by the Secretary to the former spouse. See Oxelgren v. Oxelgren, 670 S.W.2d 411 (Tex.App.1984); Matter of Marriage of Wood, 66 Or.App. 941, 676 P.2d 338 (1984); Konzen v. Konzen, 103 Wash.2d 470, 693 P.2d 97 (1985), cert. denied 473 U.S. 906, 105 S. Ct. 3530, 87 L. Ed. 2d 654 (1985); In re Marriage of Beltran, 227 Cal. Rptr. 924, 183 Cal. App. 3d 292 (1986); Parker v. Parker, 750 P.2d 1313 (Wyo.1988); Scott v. Scott, 519 So. 2d 351 (La.App.2d Cir.1988); Carranza v. Carranza, 765 S.W.2d 32 (Ky. App.1989); Warren v. Warren, 563 N.E.2d 633 (Ind.App.1990); DeLoach v. DeLoach, 590 So. 2d 956 (Fla.App.1991); King v. King, 78 Ohio App. 3d 599, 605 N.E.2d 970 (1992); Cook v. Cook, 18 Va.App. 726, 446 S.E.2d 894 (1994).

The divorced wife, Mary Price Warner, is recognized as a proportionate owner of her former husband's future retirement pay. She is entitled to a percentage of one-half of his retirement pay. The percentage is to be calculated by the number of military marriage years relative to the total length of military service. See Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984).

For the foregoing reasons, the judgments of the trial court and the court of appeal 646 So. 2d 1262, are reversed and judgment is rendered recognizing Mary Price Warner as a proportionate owner of one-half of her husband's military retirement plan. Her percentage interest in one-half of his pension is the number of military marriage years relative to the total length of military service.

REVERSED AND RENDERED.

DENNIS, J., not on panel.