223 N.C. App. 20
N.C. Ct. App.2012Background
- Hillard filed for divorce and equitable distribution against Hillard on 24 Aug 1992; original 1994 order split retirement pay (50%) from Army, National Guard, and Army Aviation facilities.
- 2008 amended order (consented) reduced specificity to 50% of retirement points, payable when plaintiff eligible for benefits.
- Plaintiff reached age 60 and became eligible for retirement pay; defendant denied former-spouse benefits from National Guard Pension Fund due to lack of explicit language.
- 2010 amended order required plaintiff to pay defendant 31.637% of his CRSC benefits ($1,081/mo) instead of retirement pay.
- Plaintiff sought relief from judgment under Rule 60(b); trial court denied; plaintiff appeals on jurisdictional grounds.
- Court concludes trial court had jurisdiction and affirmed the 2010 amended order, with funds potentially drawn from any source at plaintiff’s discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction can be raised despite consent? | Hillard argues consent does not bar jurisdiction challenges. | Hillard concedes but argues jurisdiction exists. | Yes; jurisdiction challenge allowed. |
| Whether trial court could enter 2010 amended order under federal preemption? | Disability benefits not divisible; Halstead prohibits treating them as marital property. | Order flexible; did not divide CRSC; sought protection of original terms. | Trial court had authority to enter the 2010 amendment. |
| Does McGee v. Carmine support outcome that defendant entitled to compensation from any source? | Remains due per order despite CRSC election; source irrelevant. | Cannot force payment from prohibited sources; but funds may come from any source. | McGee persuasive; compensation due from plaintiff but source not fixed. |
Key Cases Cited
- Halstead v. Halstead, 164 N.C. App. 543, 596 S.E.2d 353 (N.C. App. 2004) (disability benefits not marital property; preemption limits apply)
- White v. White, 152 N.C. App. 588, 568 S.E.2d 283 (N.C. App. 2002) (court authority to amend qualifying order to reflect disability waivers)
- McGee v. Carmine, 290 Mich. App. 551, 802 N.W.2d 669 (Mich. Ct. App. 2010) (military spouse must compensate former spouse; source of funds may vary)
- In re Brown, 23 N.C. App. 109, 208 S.E.2d 282 (N.C. App. 1974) (jurisdictional limits; void judgments standard)
- Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (N.C. 1975) (Rule 60(b) abuse of discretion standard)
- Hart v. Thomasville Motors, Inc., 244 N.C. 84, 92 S.E.2d 673 (N.C. 1956) (subject-matter jurisdiction cannot be conferred by consent)
- Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83 (N.C. 1986) (prior judgments and jurisdictional challenges at any time)