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COA rules on military benefits to former spouses

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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.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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