Redwood County District Court File No. F500366.
Considered and decided by Kalitowski, Presiding Judge; Schumacher,
Judge; and Huspeni, Judge.*fn1
The district court may enforce the provisions of a stipulation regarding spouse's military disability benefits in a marital dissolution action.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
Appellant-wife Luella J. Gatfield challenges the district court's denial of her motion to either enforce the stipulated provisions of the judgment dissolving her marriage to respondent-husband Edward C. Gatfield, Jr. that addresses husband's military retirement benefits or to have husband pay her permanent maintenance. Wife argues that Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023 (1989),does not deprive the district courts of the ability to enforce the stipulated provision of a dissolution judgment in which a veteran agrees not to waive military retirement pay in favor of disability pay and to pay 50% of the gross military pay if retirement pay is waived in favor of disability pay.
Wife also argues the district court erred in denying her motion for spousal maintenance by not taking into account the change in circumstances of the parties caused by husband's unilateral act of breaching the parties' agreement. We reverse and remand.
Husband and wife were married in 1972. In that same year, husband joined the United States Navy. In December 1995, a Virginia circuit court dissolved their marriage. The decree specifically incorporates the parties' stipulation. The stipulated provision of the judgment regarding husband's military retirement benefits provides as an obligation . . . commencing November 1, 1993, and continuing on 1st day of each month thereafter (as to the monthly annuity) there shall be paid directly to wife, by government allotment, as a direct obligation of the government plan administrator by direct assignment to wife from the plan administrator, fifty percent (50%) of the total (as the same may vary hereafter) monthly disposable U.S. military retired pay, retirement benefits of husband to which husband is entitled under the laws administered by the Secretary of the service from which he retired.
"Disposable" retired pay means disposable retired pay of a member subject to division under the Uniformed Services Former Spouse's Protection Act (10 U.S.C. 1408).
For any months that wife does not receive a payment from the plan administrator and husband does, it shall be the duty of husband to make the payment promptly and directly to wife.
Husband covenants, represents, warrants and agrees that he will not waive any portion of any longevity retired, retirement or retainer pay in order to elect disability or other pension or lump sum or severance pay or other compensation in lieu thereof and agrees to renounce the right to make such waiver and election and to elect an alternative form of retirement. In the event husband does in violation hereof, he shall upon receipt pay to wife fifty percent (50%) thereof.
At some point, husband opted to receive military disability pay and waived an equivalent portion of his military retirement pay. In an affidavit submitted to the district court, husband states he has been receiving partial disability since November 1, 1993, and wife was aware he had waived part of his retirement pay in lieu of military disability pay before the parties entered into the stipulation. Wife denies any knowledge of when husband first opted to receive military disability pay.
Since the time husband initially waived his military retirement pay in favor of military disability pay, he has periodically undergone physical examination by the Veterans Administration to determine his level of service-related disability and thus the amount of military disability pay he is entitled to receive. At the time husband submitted his affidavit, the Veterans Administration had determined ...