828 S.E.2d 257
Va. Ct. App.2019Background
- Steven A. Starr (husband) entered military service in 1997; married Margaret A. Starr in 2000; divorce decree entered October 23, 2018; husband had not yet retired.
- The sole contested issue on appeal was equitable distribution of husband’s military retired pay.
- Virginia law requires courts to determine (1) total interest, (2) marital share, and (3) equitable division of retirement benefits.
- Federal USFSPA (10 U.S.C. § 1408) defines the total interest in military retired pay that state courts may distribute; a December 23, 2016 amendment (codified in subsection (a)(4)(B)) requires that, for divorces final before retirement, retired pay for division be computed using the member’s pay base and years of service as of the date of the divorce.
- The trial court applied the USFSPA amendment, treating the date of divorce as the hypothetical retirement date (denominator for the coverture fraction) and awarded wife 50% of the marital share; husband appealed.
Issues
| Issue | Starr’s Argument | Starr’s Wife’s Argument | Held |
|---|---|---|---|
| Whether the 2016 USFSPA amendment requires using date of divorce as hypothetical retirement date when computing total interest and the denominator of the marital-share fraction | Trial court should use preexisting Virginia precedent (denominator = actual retirement date); stare decisis requires Mann/Mosley approach | Amendment mandates using date of divorce as hypothetical retirement date, precluding post-divorce service/pay increases | The Amendment controls; trial court correctly used date of divorce as hypothetical retirement date and denominator for marital-share fraction |
| Whether federal law preempts state method for computing marital share | State law (Code § 20‑107.3(G)) should govern marital‑share method; federal law shouldn’t dictate the coverture fraction | Federal law determines total interest and limits what may be considered; states still apply their marital‑share formula but must use the frozen total interest as of divorce | Federal law determines total interest (freezes pay/service at divorce); Virginia’s method still used to calculate marital share but must use divorce-based denominator |
| Whether the trial court erred in applying the law based on inartful language about “preemption” | Trial court misapplied law by overbroadly claiming preemption of state law | Any inartful wording aside, the court applied the correct legal effect of the Amendment | No reversible error; substance of decision correct despite wording; remand only to correct scrivener error in date of creditable service |
| Whether appellate attorney’s fees should be awarded | Requested fees from both parties | Same | Denied — issue was one of first impression and appeal not frivolous |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (Supreme Court decision distinguishing military retirement and leading to congressional response)
- Cook v. Cook, 18 Va. App. 726 (discussing USFSPA’s restoration of state authority to treat disposable retired pay as property)
- Dugan v. Childers, 261 Va. 3 (describing scope of courts of competent jurisdiction under USFSPA)
- Mann v. Mann, 22 Va. App. 459 (Virginia precedent on using coverture fraction to compute marital share of retirement)
- Mosley v. Mosley, 19 Va. App. 192 (application of coverture fraction to military retirement)
- Home Paramount Pest Control v. Shaffer, 282 Va. 412 (explaining when reexamination of precedent is appropriate)
- Groves v. Commonwealth, 50 Va. App. 57 (refusing to reverse based on isolated inartful trial-court statements)