Selitsch v. Selitsch
492 S.W.3d 677
| Tenn. Ct. App. | 2015Background
- Michael Selitsch (Husband), retired from military on 100% disability (10 U.S.C. §1201); Angelí Selitsch (Wife) filed for divorce in 2012 and the parties negotiated a property settlement announced in court on Aug. 20, 2013.
- The announced agreement (incorporated into the final decree entered Jan. 13, 2014) awarded Husband his VA disability benefits and awarded Wife one-half of Husband’s remaining military retirement; provision required Husband to pay Wife one-half of any VA increase by private allotment if DFAS would not honor it.
- DFAS denied Wife’s direct payment request under the USFSPA, stating Husband’s retired pay was wholly disability-based and thus not disposable retired pay subject to direct payment.
- Husband moved under Tenn. R. Civ. P. 60.02 to set aside the agreed final decree, claiming (1) lack of mental capacity at the Aug. 20 hearing (due to MS and medications) and (2) mutual mistake of law because disability-based retirement is not divisible under federal law.
- Trial court denied relief on both grounds; this appeal affirmed, the court holding Husband failed to prove incapacity by clear and convincing evidence and mistakes of law do not justify Rule 60.02 relief; the court also enforced the parties’ contractual agreement to divide the funds.
Issues
| Issue | Husband’s Argument | Wife’s Argument | Held |
|---|---|---|---|
| Whether Husband lacked capacity at the Aug. 20 hearing so as to set aside the agreed decree under Rule 60.02 | Husband: MS, "flare ups," and medication impaired cognition; he took increased pain meds before hearing | Wife: Husband appeared coherent; testified under oath and consulted counsel; insufficient proof of incapacity | Denied — Husband failed to prove incapacity by clear and convincing evidence; trial court’s credibility findings upheld |
| Whether a mutual mistake about divisibility of disability-based military retirement justifies Rule 60.02 relief | Husband: Parties (and counsel) mistakenly believed retirement was divisible; federal law actually precludes dividing Chapter 61 disability-based retired pay | Wife: Parties contractually agreed to divide retirement; parties can contractually obligate use of disability funds even if DFAS cannot directly pay | Denied — mistake of law is not a basis for Rule 60.02 relief; parties’ contract/enforcement upheld |
| Whether federal law (USFSPA and Mansell) precludes enforcement of a private agreement dividing non-disposable disability-based retirement | Husband: Mansell/USFSPA prevents treating disability-based retirement as divisible property, so decree is unenforceable | Wife: Mansell does not prohibit parties from contractually agreeing to payment from disability benefits; Johnson permits enforcing vested contractual/division interests | Rejected — federal law does not prevent spouses from contractually agreeing to divide such funds; court may enforce the agreement (consistent with Johnson) |
| Whether the appeal is frivolous warranting sanctions | Wife: Appeal caused delay and contained deficiencies | Husband: Appeal raised arguable legal issues | Denied — appeal not frivolous despite being unsuccessful |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (U.S. 1981) (federal military retirement law preempted state property division until Congress enacted USFSPA)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (USFSPA excludes disability-based amounts from definition of "disposable retired pay" that states may treat as divisible)
- Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001) (contract principles: non-military spouse’s vested interest in military retirement cannot be unilaterally diminished; enforced vested contractual/division interests)
- Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114 (Tenn. 2013) (explaining Rule 60.02 relief is reviewed for abuse of discretion and is an extraordinary remedy)