Casey v. Casey
79 Mass. App. Ct. 623
| Mass. App. Ct. | 2011Background
- Husband and wife married in Aug. 1990 in Hawaii; daughter born July 1993; last lived together in Florida in Jan. 2007.
- Husband retired from the U.S. Air Force as a lieutenant colonel in 2000 and later worked as a defense contractor; wife was primary homemaker and caregiver.
- Marital home in Niceville, Florida (purchased 2006 for $615,000) was a primary asset; sale proceeds allocated per stipulation between parties.
- Husband’s finances included a military pension (and disability pay); wife’s income was partial and dependent on hours worked; travel reimbursements affected income treatment.
- Trial court treated the pension as income for support/estate purposes; no alimony awarded; child custody awarded to wife; child support calculated under Massachusetts guidelines.
- Appeal challenged pension characterization and related financial/child-support findings; court vacated portions and remanded for new order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the military pension is an asset or income | Wife contends pension is divisible marital property. | Husband argues pension is a stream of income, not an asset. | Pension must be treated as a divisible marital asset; remand for asset division. |
| Impact of pension classification on child support | Attributing pension as income inflated child support; miscalculated by trial judge. | Pension as income supports appropriate support level. | Because pension is asset, child support ruling vacated and rebalance is needed. |
| Credit for other income and deductions in child support | Disability benefits and travel reimbursements should be treated as income or differently credited. | Reimbursements and disability benefits were handled inconsistently. | Errors acknowledged; requiring recalculation under proper income treatment. |
| Alimony | Alimony should be considered given long marriage and asset division. | No alimony awarded based on presented evidence. | Alimony remains unsettled pending new proceedings; current ruling does not award alimony. |
| Attorney’s fees on appeal | Appellate fees should be awarded due to lopsided initial division. | No fee shift warranted by the record. | No appellate attorney’s fees awarded. |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (U.S. 1981) (retirement pay personal entitlement; state division restricted)
- Adkins v. Rumsfeld, 464 F.3d 456 (4th Cir. 2006) (USFSPA context; division of retirement benefits; discretionary state treatment)
- Whelan v. Whelan, 74 Mass. App. Ct. 614 (Mass. App. Ct. 2009) (review standard for domestic relations findings; attribution of income)
- Kelley v. Kelley, 64 Mass. App. Ct. 733 (Mass. App. Ct. 2005) (attribution of income principles in support cases)
- Andrews v. Andrews, 27 Mass. App. Ct. 759 (Mass. App. Ct. 1989) (pension as income source for alimony, not asset; modification potential)
- Brower v. Brower, 61 Mass. App. Ct. 216 (Mass. App. Ct. 2004) (discretion in valuing and dividing retirement benefits)
- Rose v. Rose, 481 U.S. 619 (U.S. 1987) (veterans disability benefits may be considered for support purposes)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (federal framework for veterans' benefits and division)
- McMahon v. McMahon, 31 Mass. App. Ct. 504 (Mass. App. Ct. 1991) (military retirement benefits treated as asset in some contexts)
- Denninger v. Denninger, 34 Mass. App. Ct. 429 (Mass. App. Ct. 1993) (judicial discretion under § 34 in asset division)
- Grubert v. Grubert, 20 Mass. App. Ct. 811 (Mass. App. Ct. 1985) (integration of alimony and property division)