437 P.3d 985
Kan. Ct. App.2019Background
- Nickey and Roslyn Babin divorced after a mediated property settlement (handwritten 11/29/2016) that stated: "Military retirement, disability and any back pay divided 43% to Wife and 57% to Husband. Start 12-1-16."
- Divorce decree entered 12/22/2016; division of property (including military pay) was reserved and later litigated when Nickey disputed the allocation of disability pay.
- At hearings, the district court found the mediation agreement plain and adopted it, ordering Nickey to pay Roslyn 43% of his military disability pay and $800/month spousal maintenance per the agreement.
- Nickey moved for reconsideration and later relied on Howell v. Howell (2017) and Mansell precedent, arguing federal law preempts state courts from dividing military disability benefits.
- The Kansas Court of Appeals (Walker, J.) reversed: it held federal law preempts state-court division of military disability pay—even when agreed in a settlement—and remanded so the district court may reconsider division of other assets and spousal maintenance.
Issues
| Issue | Plaintiff's Argument (Nickey) | Defendant's Argument (Roslyn) | Held |
|---|---|---|---|
| Whether state court may divide military disability benefits as marital property | Federal law preempts state jurisdiction; disability pay is not divisible | Agreement/contract controls; Nickey voluntarily allocated 43% to Wife | Reversed: federal preemption bars dividing disability pay; district court lacked jurisdiction |
| Whether a mediated property settlement can validly assign disability pay to former spouse | Even if agreed earlier, federal law prevents enforcement | Settlement should be enforced; voluntary assignment permitted | Settlement enforcement invalid to the extent it divides disability pay; Mansell/Howell control |
| Whether state court may indirectly compensate former spouse for VA waiver (indemnify) | Indemnification or make-up obligations are preempted by federal law | Contractual indemnity is enforceable; courts can order indemnity from other sources | State courts may not force indemnification for losses caused by veteran’s waiver (Howell) |
| Whether disability pay may be considered in dividing other assets or awarding maintenance | Court may consider disability pay's financial effect but cannot divide it | Disability pay is part of parties’ agreement and should govern maintenance as agreed | Court may consider disability pay for maintenance and equitable division of other assets; may reconsider maintenance on remand |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (federal statute preempts state-court division of disability benefits)
- McCarty v. McCarty, 453 U.S. 210 (background on federal preemption of state community-property treatment of military retired pay)
- Howell v. Howell, 581 U.S. _ (state courts cannot order indemnification to restore former spouse’s share lost by veteran’s waiver in favor of disability benefits)
- In re Marriage of Pierce, 26 Kan. App. 2d 236 (state court lacks jurisdiction to order division of veteran’s disability benefits)