Mallard v. Burkart
95 So. 3d 1264
Miss.2012Background
- Divorce finalized April 25, 2001; Final Judgment incorporated a property settlement awarding Burkart 40% of Mallard’s disposable military retired pay for ten years.
- Mallard later elected a 60% disability rating; disability benefits were not shared with Burkart.
- Chancellor held Burkart entitlement to 40% of disability benefits but did not hold Mallard in contempt.
- USFSPA framework applicable: disposable pay may be divided, but disability benefits are excluded from disposable pay.
- Mallard’s petition to modify and Burkart’s contempt counter-petition proceeded; court ultimately remanded/reversed on federal preemption grounds.
- Mississippi Court concluded federal law preempts state division of disability benefits, aligning with Mansell v. Mansell and USFSPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal preemption bars state division of disability benefits | Mallard argues federal law preempts state division of disability benefits. | Burkart contends state law can treat disability benefits as divisible under USFSPA. | Preemption applies; state court cannot divide disability benefits. |
| Whether Mansell governs and preempts Mississippi in this context | Mallard relies on Mansell to deny sharing disability proceeds. | Burkart argues Mansell permits some division under USFSPA but not disability benefits. | Mansell controls; disability benefits may not be treated as property divisible. |
| Whether the chancellor erred by enforcing division of disability benefits despite preemption | Mallard asserts no obligation to compensate Burkart for disability reduction. | Burkart asserts vested interest in benefits subject to division at decree. | Reversed; preemption prevents such distribution. |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (U.S. Supreme Court, 1989) (state courts cannot treat as property divisible retirement pay waived for disability benefits)
- McCarty v. McCarty, 453 U.S. 210 (U.S. Supreme Court, 1981) (federal law preempted treating military retirement as community property)
- Davis v. Davis, 111 S.W.2d 230 (Ky. 1989) (USFSPA preempts division of VA benefits as marital property)
- Youngbluth v. Youngbluth, 188 Vt. 53 (Vt. 2010) (preemption and USFSPA interpretation in state courts)