260 So. 3d 851
Ala. Civ. App.2018Background
- Parties divorced in 2010; the judgment incorporated a settlement giving Wife 25% of Husband's "disposable retirement benefits," "without regard to any reductions or setoffs due to disability compensation."
- Husband remained on active duty and later was placed on the Temporary Disability Retired List (TDRL) in Jan. 2016 after medical boards, receiving DFAS gross pay of $7,521 per month and VA disability benefits separately.
- DFAS informed Wife her USFSPA application was denied because Husband’s entire DFAS pay was classified as disability pay.
- Wife petitioned the trial court; the court awarded her 25% of Husband’s monthly DFAS pay ($1,880.25) and $30,084 for unpaid accrued benefits from Feb. 2016 to judgment, plus an attorney-fee award.
- Husband appealed, arguing federal law excludes Chapter 61/TDRL disability pay from "disposable retired pay" and that the trial court’s awards conflict with federal preemption principles announced by the U.S. Supreme Court.
Issues
| Issue | Brown (Wife) Argument | Brown (Husband) Argument | Held |
|---|---|---|---|
| Whether TDRL pay is divisible as "disposable retired pay" under USFSPA | Settlement language ("without regard to reductions due to disability") makes Wife entitled to 25% of DFAS pay despite TDRL classification | TDRL pay is Chapter 61 disability pay excluded from "disposable retired pay" under 10 U.S.C. §1408 and thus not divisible | TDRL pay is disability pay excluded from divisible "disposable retired pay"; Wife not entitled to 25% of TDRL pay |
| Whether trial court may order indemnification/reimbursement for lost retirement benefits caused by post‑divorce disability classification/waiver | Trial court may enforce settlement and award indemnity to restore Wife's bargained share | Federal law (Mansell/Howell) preempts state-law indemnification that effectively treats waived/converted retirement pay as divisible | Howell and Mansell preempt state orders that compensate a former spouse for retirement lost by conversion/waiver; trial court’s reimbursement order for TDRL benefits is preempted and reversed |
| Whether accrued unpaid benefits award ($30,084) was proper | Accrued amounts owed from Feb. 2016 should be paid as part of the property settlement | No divisible retirement pay existed, so no accruals owed | Reversed: no accrued divisible TDRL benefits, so award vacated |
| Whether trial court properly awarded Wife attorney fees for enforcement action | Wife entitled to fees; trial court awarded based on discretion and submitted time records | Husband did not object at trial to reasonableness; discretionary award should stand | Affirmed: attorney-fee award not a palpable abuse of discretion |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (federal law preempts state treatment of waived military retirement as divisible property)
- Howell v. Howell, 581 U.S. __ (state indemnification for retirement lost to post‑divorce waiver/conversion is preempted by federal law)
- Swindle v. Swindle, 204 So.3d 430 (Ala. Civ. App. 2016) (distinguishing TDRL pay that is calculated by years‑of‑service from disability‑computed amounts)
- In re Marriage of Poland, 264 P.3d 647 (Colo. App. 2011) (TDRL/disability portion excluded but any excess may be divisible)