4 Cal. App. 5th 1285
Cal. Ct. App.2016Background
- Janice and Robert Cassinelli divorced in 1986. The stipulated judgment awarded Janice 43.1% (or $230/month, whichever greater) of Robert’s USAF retired pay (payments to commence May 1, 1986) and reserved spousal support jurisdiction.
- In 2012–2013 Robert was found service-disabled (Agent Orange/ischemic heart disease), waived retired pay, and began receiving nontaxable VA disability benefits and CRSC; his total military-related income increased while Janice’s retirement payments dropped to $0.
- Before the waiver Robert received $791/month and Janice $541/month (taxable retirement pay). Afterward Robert received disability and CRSC totaling $3,132/month (nontaxable) and Janice received nothing.
- Janice moved to modify the judgment and sought an order requiring Robert to pay her $541/month as nonmodifiable spousal support; the trial court granted $541/month permanent, nonmodifiable support and attorney fees.
- Robert appealed, arguing federal preemption (Mansell), lack of intent to protect Janice against waiver, improper use of spousal support to remedy lost community property, finality of the 1986 property division, improper nonmodifiable support, and that his income was exempt from attachment.
Issues
| Issue | Janice’s Argument | Robert’s Argument | Held |
|---|---|---|---|
| Whether federal law (Mansell/FUSFSPA) bars any state remedy tied to veteran disability/CRSC | State court can craft remedies that do not treat waived retired pay as divisible — e.g., require reimbursement from other assets | Mansell forbids any award implicating disability/CRSC or waived retired pay; state court lacked jurisdiction | Mansell bars treating waived retired pay or disability/CRSC as divisible community property, but does not bar state courts from ordering reimbursement/damages so long as payments aren’t taken directly from disability/CRSC (majority rule) |
| Whether the parties intended to protect Janice against postjudgment waiver of retired pay | The stipulated judgment’s fixed dollar amount and structure imply intent to secure Janice’s income stream; no evidence parties intended Janice to lose the benefit | Judgment did not expressly address future waiver or include indemnity; Janice should bear risk | Court presumes civilian spouse intended her retired-pay share to be a secure, indefeasible right absent clear evidence to the contrary; here intent to protect Janice is found |
| Whether spousal support was an appropriate remedy for loss of community interest | Support can compensate increased need and altered ability to pay | The proper remedy is dollar-for-dollar reimbursement or damages for loss of property interest; spousal support is inappropriate | Court holds spousal support is not an appropriate vehicle to replace a vested community property right; dollar-for-dollar compensation/damages is the correct remedy (not support or resulting trust) |
| Whether enforcing such a remedy violates finality of the 1986 judgment | Remedy enforces original division (not a prohibited modification); court retains enforcement jurisdiction | Postjudgment relief redividing property violates finality absent reservation | Court may enforce the 1986 property division by awarding damages to compensate the civilian spouse for loss of her vested share; enforcement (damages) is permissible and does not improperly modify the original decree |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (federal law precludes state courts from treating retired pay waived for veterans’ disability as divisible community property)
- McCarty v. McCarty, 453 U.S. 210 (U.S. 1981) (pre-McCarty federal preemption holding prompting FUSFSPA)
- In re Marriage of Krempin, 70 Cal.App.4th 1008 (Cal. Ct. App. 1999) (state may provide equitable remedies enforcing civilian spouse’s expectations when retired pay is waived)
- In re Marriage of Stenquist, 21 Cal.3d 779 (Cal. 1978) (military retired pay earned during marriage as community property under state law)
- In re Marriage of Justice, 157 Cal.App.3d 82 (Cal. Ct. App. 1984) (court enforcement of a decree to secure a spouse’s share of retirement benefits despite disability pension form)
- In re Marriage of Olsen, 24 Cal.App.4th 1702 (Cal. Ct. App. 1994) (post-FUSFSPA context where court restored spousal support after legislative/federal changes affected prior property treatment)