Fisher v. Fisher

Goolsby, Judge

(dissenting):

I respectfully dissent. I do not regard voluntary separation incentive payments (VSI) as “retirement benefits,” particularly as that term was used in the parties’ settlement agreement and the family court’s final consent order. Clearly, the agreement and order contemplated “actual retirement” by the husband and the payment each month of a “military allotment.”¹ Here, the husband did not “retire” from military service — he was not eligible for retirement; rather, he participated in the VSI program, a program that did not even exist at the time the family court undertook to equitably divide the marital property between the parties. 10 U.S.C.A. § 1175 (Supp. 1995). Severance payments are one thing and retirement benefits are quite another.²

The VSI payments also do not constitute marital property as the term is defined by S.C. Code Ann. § 20-7-473 (Supp. 1994). Subsection (2) of the last-cited statute specifically defines nonmarital property to include “property acquired by either party... after... (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.” This is the case here. As noted previously, the VSI program did not exist at the time the family court approved the parties’ settlement agreement. The family court lacked jurisdiction to apportion the VSI payments because they are nonmarital property. S.C. Code Ann. § 20-7-473 (Supp. 1994); see Hayes v. Hayes, 312 S.C. 141, 439 S.E. (2d) 305 (Ct. App. 1993) (the family court lacks jurisdiction to modify a division of property once a retirement account has been apportioned by a final order). The payments represent income only.

I would reverse and remand. See Kelson v. Kelson, 647 So. (2d) 959 (Fla. Dist. Ct. App. 1994) (holding VSI payments the husband received after the parties’ final settlement agreement, which apportioned part of the husband’s retirement benefits to the wife, were not “retirement benefits” as contemplated by the specific terms of the settlement agreement, the VSI program having become effective after the parties entered into the settlement agreement, and holding the VSI payments were a form of severance pay attributable to the husband as income and not subject to equitable division); cf. Abernethy v. Fishkin, 638 So. (2d)160, 163 (Fla. Dist. Ct. App. 1994) (holding VSI payments the husband received after the parties’ final settlement agreement were marital property subject to equitable division, but only because the “husband specifically agreed [in the settlement agreement] that he would take no action which would defeat the wife’s right to receive 25% of his retirement pay and that, if necessary, he would self-implement the agreement’s payment provision”).

Although I would not reach the issue of whether VSI payments are subject to equitable division through a settlement agreement provision specifically directing such a division. I note the federal statutory mandate that “[t]he member’s right to [VSI] payments shall not be transferable.” 10 U.S.C.A. § 1175(f) (Supp. 1995).

1 The provision reads as follows:

That the [wife] shall be entitled to the sum of [$197.27} per month, which represents twenty percent (20%) of [the husband’s] retirement benefits had he been able to retire as of the date of this Consent Order, said sum to be paid via military allotment upon [the husband’s] actual entitlement to said retirement benefits.

2 For example, military retirement benefits are paid out of the Department of Defense Military Retirement Fund, whereas VSI payments are paid out of the Voluntary Separation Incentive Fund. 10 U.S.C.A. § 1175(h)(1), (4) (Supp. 1995).