Swindle v. Swindle, 204 So. 3d 430

Parties divorced in 2008; divorce judgment (incorporating a settlement) awarded Mary Swindle 50% of Jeffery Swindle’s “disposable” military-retirement pay, calculated as of separation.
In July 2012 the former husband was placed on the Temporary-Disability Retired List (TDRL) and received retirement pay computed based on years of service (Method B) through August 2014.
In August–September 2014 the former husband was placed on the Permanent-Disability Retired List (PDRL) with an increased disability rating and thereafter received retirement pay computed based on his disability percentage (Method A).
The former wife received none of the retirement payments and filed a contempt petition in 2014 seeking enforcement of the 50% award; trial court found the husband in contempt and awarded the wife $60,246.45 plus future relief.
The husband appealed, arguing that pay computed under Chapter 61 (disability-based pay) is excluded from “disposable retired pay” under 10 U.S.C. § 1408(a)(4)(C) and thus not divisible.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether disability-based retirement pay (Chapter 61 Method A) is "disposable" and divisible	Swindle: 50% of all retirement pay (as awarded) is divisible; trial court awarded past and future shares	Husband: Pay received after placement on PDRL is computed by disability and excluded from “disposable” under §1408(a)(4)(C)	Pay received while on PDRL computed by disability is excluded and not divisible; reversal as to that portion
Whether TDRL/Method B pay is divisible	Wife: All amounts the husband received should be subject to the 50% award	Husband: Only non-disability (service-based) amounts are divisible; he conceded TDRL pay method	Court affirmed that TDRL/Method B pay (service-based) was disposable and divisible; contempt affirmed as to that period
Whether husband could unilaterally elect disability-based pay after divorce to defeat the award	Wife: Husband’s unilateral election improperly circumvented the award; she sought conversion/order to force method change	Husband: He had statutory right to elect method; divorce instrument lacked a prohibition on such an election	Court held husband was permitted to elect disability method absent a limiting provision in the divorce judgment; wife not entitled to amounts based on disability

Ex parte Billeck, 777 So.2d 105 (Ala. 2000) (disposable military retirement pay under §1408 constitutes marital property subject to division)
Ex parte Vaughn, 634 So.2d 533 (Ala. 1993) (discusses treatment of military retirement in marital property context)
Stone v. Stone, 26 So.3d 1232 (Ala. Civ. App. 2009) (upholds use of a limiting provision in a divorce decree to prevent unilateral election to receive disability benefits in lieu of divisible retirement pay)