985 N.W.2d 58
S.D.2023Background
- Daniel and Camille Parker married in 2010; Daniel served as a dual‑status National Guard member and civilian technician and was an E‑7 with ~16 years of service at the relevant times.
- Divorce was tried; all property issues were resolved except division of Daniel’s potential National Guard retirement (non‑regular service).
- Parties agreed Daniel accrued 913 retirement points during the marriage and had 2,370 points by July 2019; dispute focused on the correct “high‑3” (retired pay base) for calculating disposable retired pay.
- Camille argued the high‑3 should reflect active‑duty Monthly Basic Pay Table rates (~$4,895); Daniel argued the high‑3 should reflect his actual drill pay average (~$1,500.94).
- The circuit court adopted a high‑3 of $1,500.94. The South Dakota Supreme Court held this was a legal error under federal law (USFSPA and related statutes), vacated the pension‑division portion of the decree, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Daniel) | Defendant's Argument (Camille) | Held |
|---|---|---|---|
| Proper method to calculate high‑3 for non‑regular (Guard/reserve) service | High‑3 equals actual average drill pay (use $1,500.94) | High‑3 must use Monthly Basic Pay Table as if on active duty (use ~$4,895) | High‑3 is based on active‑duty monthly basic pay (statutory "high‑3"), circuit court erred in using $1,500.94; vacated and remanded |
| Valuation date for points/high‑3 (separation vs. decree) | Use separation date/points as of July 31, 2019 (as used below) | Frozen‑benefit rule and precedent require using valuation at date of decree | Federal law (USFSPA frozen‑benefit rule) requires using retiree’s pay base and points as of date of decree; court noted inconsistency and remanded |
Key Cases Cited
- Mansell v. Mansell, 490 U.S. 581 (USFSPA authorizes state courts to treat disposable retired pay as divisible but limits scope and provides direct‑payment mechanism)
- McCarty v. McCarty, 453 U.S. 210 (pre‑USFSPA rule that federal law barred state division of military retirement)
- Babcock v. Kijakazi, 142 S. Ct. 641 (explains dual‑status National Guard technicians receive separate civilian and military compensation)
- Ahrendt v. Chamberlain, 910 N.W.2d 913 (South Dakota rule valuing assets at time of trial/decree)