264 P.3d 647
Colo. Ct. App.2011Background
- Dissolution of marriage in 2005; separation agreement treated military retirement as marital property to be divided under Hunt-Gallo.
- Agreement stated parties intended to divide husband's gross military retirement and, if VA disability reduced disposable retirement pay, wife's share would not be reduced.
- In 2009, husband placed on TDRL after 21 years; wife moved to share TDRL pay and sought contempt; trial court ordered husband to pay wife's share.
- USFSPA limits marital property division to disposable retired pay; total retired pay may not be divided, except the disposable portion.
- Court held that TDRL pay must be analyzed to exclude the disability-based portion; remaining amount may be divisible under the decree; remanded to determine the disability-based exclusion.
- Record lacked sufficient detail on how TDRL pay was calculated and the disability percentage at TDRL placement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can TDRL pay be distributed as marital property under USFSPA? | Wife seeks a share of TDRL pay as marital property under the decree. | TDRL pay is disability-based and not fully divisible as marital property. | TDRL pay is not wholly divisible; exclude disability-based portion, excess may be divisible. |
| How is the disability-excluded amount calculated for TDRL pay? | Disability-based portion should be determined by the TDRL disability percentage at placement. | Same, or the court should determine the correct disability-based exclusion under USFSPA. | Exclude the amount computed from disability percentage; remand to calculate and apply the exclusion. |
Key Cases Cited
- In re Marriage of Williamson, 205 P.3d 538 (Colo. App. 2009) (TDRL pay not divisible when no longevity retirement; later analysis of disability vs. retirement components)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (USFSPA requires disposable retired pay for marital division; total retired pay not automatically divisible)
- In re Marriage of Wherrell, 58 P.3d 740 (Kan. 2002) (disability benefits may include disability and retirement elements; only disability portion excluded)
- In re Marriage of Strunck, 155 Ill. Dec. 781, 570 N.E.2d 1 (Ill. App. 1991) (disability retirement pay that relates to disability vs. retirement affects property division)
- In re Marriage of Franz, 831 P.2d 917 (Colo. App. 1992) (retirement pay division requires consideration of basis for disability-related computation)
- In re Marriage of Dunkle, 194 P.3d 462 (Colo. App. 2008) (attorney fees require a legal basis for recovery under rule)
- In re Marriage of Heupel, 936 P.2d 561 (Colo. 1997) (USFSPA framework for disposable retired pay analysis)
- Davies v. Beres, 233 P.3d 1139 (Ariz. Ct. App. 2010) (disability vs. retirement components in disability retirement pay division)