882 S.E.2d 19
Va. Ct. App.2023Background
- Randolph and Sheehy divorced; their property settlement (incorporated into a 2017 final decree) awarded Sheehy 50% of the marital share of Randolph’s disposable military retired pay.
- The agreement prohibited Randolph from taking actions that would reduce Sheehy’s share (including waiving retired pay to receive disability) and required Randolph to indemnify Sheehy for any reduction, including reasonable attorney’s fees.
- Randolph retired in 2019 and elected disability pay and Combat-Related Special Compensation (CRSC), which reduced his disposable retired pay and materially lowered Sheehy’s monthly share.
- Sheehy filed a rule to show cause; Randolph paid the arrearage and established allotments reimbursing Sheehy, but the circuit court ordered Randolph to revoke his CRSC election and awarded attorney fees.
- On appeal the Court of Appeals vacated the trial court’s order requiring revocation of CRSC (holding the court lacked authority because of federal preemption) and reversed/remanded the attorney-fee award for reconsideration.
Issues
| Issue | Sheehy’s Argument | Randolph’s Argument | Held |
|---|---|---|---|
| Whether a state court may order a veteran to revoke CRSC (or choose CRDP) to preserve former spouse’s share | Court can enforce the property settlement and order revocation to protect Sheehy’s 50% marital share | Federal law preempts; CRSC is statutorily authorized, not distributable retired pay, so court lacks power to force waiver/revocation | Vacated: court lacked authority under federal law; CRSC is not retired pay and cannot be treated/divided as marital property; ordering revocation is void |
| Whether a state court may order indemnification/reimbursement for reductions resulting from disability elections | Agreement entitles Sheehy to indemnity and attorney fees for reductions | Howell and federal preemption limit state power to force indemnity for waived retired pay; Randolph paid arrearage and continued reimbursements | Court did not hold Randolph in contempt; appellate court reversed the attorney-fee award and remanded for reconsideration because Randolph had paid arrearage and was not the prevailing/losing party under the circumstances |
| Whether trial court’s post-judgment orders (revocation and fees) were appealable | Orders affecting ongoing equitable-distribution enforcement are appealable | Randolph argued some orders were interlocutory and not properly appealable | Court exercised jurisdiction to review the orders at issue; vacated revocation order and remanded fee determination |
Key Cases Cited
- Yourko v. Yourko, 74 Va. App. 80 (Va. Ct. App. 2021) (explains interaction of USFSPA, federal preemption, and limits on state authority to remedy disability-related reductions)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (USFSPA does not permit division of retired pay waived to receive VA disability; federal law preempts state division of such benefits)
- McCarty v. McCarty, 453 U.S. 210 (U.S. 1981) (pre-USFSPA precedent holding military retired pay not subject to state division)
- Howell v. Howell, 137 S. Ct. 1400 (U.S. 2017) (state courts may not order indemnification or reimbursement for retired pay waived to obtain VA disability benefits)