ILNews

COA rules on military benefits to former spouses

Back to TopE-mailPrintBookmark and Share

Ruling on the issue for the first time, the Indiana Court of Appeals has held that a military spouse may not, by a post-decree waiver of retirement pay in favor of disability benefits or combat-related special compensation, unilaterally and voluntarily reduce the benefits awarded to the former spouse in a dissolution decree.

The issue arose in Victor J. Bandini v. JoAnn M. Bandini,
No. 49A04-1001-DR-26, in which Victor Bandini, who served in the military for more than 20 years, challenged whether the trial court properly concluded that the parties’ settlement agreement, incorporated into the dissolution decree, entitles JoAnn Bandini to 50 percent of his gross military retirement pay, including amounts he waived in order to receive Veterans Administration disability benefits and Combat-Related Special Compensation, which isn’t considered retirement pay.

As a part of their agreement, JoAnn was entitled to half of Victor’s military retirement/pension plan, including survivor benefits. She began receiving her half of his gross benefits, minus the amounts of disability benefits and survivor benefit premiums. That amount was dramatically reduced when Victor elected to receive CRSC, which is nontaxable and not subject to the provisions of the Uniformed Services Former Spouse Protection Act. He received less in benefits each month that were able to go to his ex-wife.

JoAnn demanded payment of the difference between half of Victor’s gross retirement pay and the reduced amount she was receiving due to his taking the CRSC. The trial court found the settlement agreement entitles JoAnn to half of his gross military retirement pay, Victor was in contempt, and that he must pay part of JoAnn’s attorney’s fees.

The appellate court agreed with Victor that the trial court erred in ordering him to pay JoAnn half of his gross retirement pay, which included amounts he had waived in order to receive VA disability benefits and CRSC or deducted from gross retirement pay as survivor benefit plan costs. Citing Mansell v. Mansell, 490 U.S. 581 (1989), and Griffin v. Griffin, 872 N.E.2d 653 (Ind. Ct. App. 2007), the judges held Indiana trial courts lack authority to enforce “even an agreed-upon division of property insofar as it divides amounts of gross military retirement pay that were, previously to the decree, waived to receive disability benefits or elected to be deducted from gross pay as SBP costs to benefit the former spouse.”

The trial court erred because Victor’s election to receive the VA disability benefits and his survivor benefit plan annuity preceded their dissolution decree, wrote Judge Margret Robb. The issue of post-decree waivers of retirement pay wasn’t addressed in Griffin, so for the first time the Court of Appeals adopted the view that forbids a military spouse from using a post-decree waiver of retirement pay to unilaterally diminish the benefits award to the other spouse in the dissolution.

“Thus, while Husband’s election of CRSC was a right provided him by Congress, federal law did not give Husband the authority to simultaneously invoke that right and reduce the amounts received by Wife under the terms of the dissolution decree,” wrote Judge Robb. “Further, Indiana law prohibits Husband’s election of CRSC from defeating the finality of the dissolution decree and the intent of the parties’ settlement agreement incorporated therein.”

The judges remanded for entry of an order that Victor compensate JoAnn, both prospective and as to the existing arrearage, for the decrease in her share of retirement pay caused by his taking of the CRSC. They also affirmed finding him in contempt and the order he pay part of JoAnn’s attorney’s fees.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT