Tuesday, March 6, 2018
Court of Appeal:
Support Order Runs Afoul of U.S. Supreme Court Decision
Trial Judge Impermissibly Directed That Ex-Husband Pay Former Spouse Money As Reimbursement For Military Retirement Pay He Waived in Order to Receive Combat-Related Disability Pay—Ramirez
By a MetNews Staff Writer
The Fourth District Court of Appeal, in deciding a case on remand from the United States Supreme Court, has reversed an order, made 26 years after a couple was divorced, awarding a former wife spousal support in an amount that exceeded by $448 what her ex-spouse—most of whose income was derived from military disability benefits based on exposure to Agent Orange in Vietnam—was netting.
The award was made on a basis proscribed by a recent Supreme Court decision, the opinion declares, but leaves open the prospect of a reinstatement of it under a different approach.
Presiding Justice Manuel A. Ramirez of Div. Two wrote the opinion, filed late Friday. It reverses a spousal support order by Riverside Superior Court Judge Christopher B. Harmon against Robert J. Cassinelli, now 76, but affirms the judge’s award of attorney fees to ex-wife Janice R. Cassinelli, 74.
The dissolution of marriage came in 1986. A stipulated judgment recited that Janice Cassinelli had a community interest in her former spouse’s military pension, which he earned after 20 years in the Air Force.
He received $791 a month; she received $541 a month. The income was taxable.
Service Related Disability
Robert Cassinelli, who became a teacher after leaving the Air Force, became afflicted with heart disease, traceable to his exposure to Agent Orange. He became eligible to receive veteran’s disability benefits in the amount of $1,743 a month, as well as $1,389 a month in combat-related special compensation, totaling $3,132, which was tax free—but the proviso was that he waive retirement pay, which he did.
At the time he made the waiver, it was found, he was oblivious to this having any financial impact on his ex-wife. But it did; she now received no money based on her former husband’s military service.
Harmon in April 2015 ordered that Robert Cassinelli pay Janice Cassinelli $541 a month in permanent and nonmodifiable spousal support. He reasoned that although there was, under federal law, no community interest in military disability pay, he could take “equitable action” to prevent the ex-husband’s unilateral action from creating a “miscarriage of justice.”
The judge awarded Janice Cassinelli $7,180 in attorney fees.
2016 C.A. Opinion
A Nov. 2, 2016 opinion by Ramirez took a different approach. It says:
“Here, the judgment characterized Robert’s retired pay as community property and awarded 43.1 percent of it to Janice. By waiving his retired pay so that he could receive disability benefits, Robert effectively transferred 100 percent of his retired pay to the United States government.”
Ramirez declared that where “the military spouse has caused the loss or destruction of a property right belonging to the civilian spouse,” it should “be required to pay the civilian spouse money damages.”
On May 15, 2017, the United States Supreme Court decided in Howell v. Howell that a state could may not order a veteran “to indemnify the divorced spouse for the loss caused by the veteran’s waiver,” declaring that “federal law completely pre-empts the States from treating waived military retirement pay as divisible community property.”
Oct. 2, 2017, the nation’s high court granted Robert Cassinelli’s petition for a writ of certiorari, vacated the judgment, and remanded the matter to Ramirez’s division for reconsideration in light of Howell. (Robert Cassinelli was allowed to proceed in forma pauperis.)
Opinion on Remand
In Friday’s opinion, Ramirez wrote:
“In fairness to the trial court, it ruled before Howell was decided. Nevertheless, in light of Howell, it is now clear that it erred. Admittedly, it awarded Janice spousal support, rather than reimbursement or indemnification. Moreover, it purported to consider all of the factors listed in Family Code section 4320, and it made detailed findings with respect to each of these factors. Nevertheless, it came up with a support amount that was identical — down to the penny — to the amount of retired pay that Janice had lost. We cannot help but conclude that this was, in substance, reimbursement or indemnification. Howell was particularly critical of an award that ‘mirrors the waived retirement pay, dollar for dollar.’ ”
He went on to say, however:
“We do not mean to say that the trial court was wholly barred from awarding Janice spousal support as a result of Robert’s waiver. His waiver, and the resulting reduction in her income, were changed circumstances which would tend—ceteris paribus [all else being equal]—to increase her need for support. Howell specifically permitted a state court to take account of a military spouse’s waiver of retirement pay in recalculating spousal support.”
The opinion orders a new hearing on the Janice Cassinelli’s request for modification.
In an unpublished portion of the opinion, Ramirez rejected Robert Cassinelli’s contention that his ex-wife had the resources to pay her attorney herself, saying the award of attorney fees in family law cases is left to the discretion of the trial court and that Robert Cassinelli “has not shown that the trial court abused its discretion by awarding attorney fees” to Janice Cassinelli.
The case is In re the Marriage of Cassinelli, 2018 S.O.S. 1118.
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