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In re Marriage of Berberich

Court of Appeals of Minnesota

October 2, 2017

In re the Marriage of: Diana Lynn Berberich f/k/a Diane Lynn Mattson, petitioner, Respondent,
v.
Mark Steven Mattson, Appellant.

         Anoka County District Court File No. 02-FA-14-2007

          Jennifer R. Wellner, Wellner & Isaacson, PLLP, Circle Pines, Minnesota (for respondent)

          Francis Herbert White III, Francis White Law, P.L.L.C., Woodbury, Minnesota (for appellant)

          Margaret Erickson, Southern Minnesota Regional Legal Services, Worthington, Minnesota; and Michael D. Dittberner, Linder, Dittberner & Bryant, Ltd., Edina, Minnesota; and Mary Catherine Lauhead, Law Offices of Mary Catherine Lauhead, St. Paul, Minnesota; and Johanna Clyborne, Brekke, Clyborne & Ribich, L.L.C., Shakopee, Minnesota (for amicus curiae Family Law and Military and Veterans Affairs Sections of the Minnesota State Bar Association)

          Anne M. Honsa, Honsa & Associates, P.A., Minneapolis, Minnesota; and David L. Olson, Edina, Minnesota (for amicus curiae The Minnesota Chapter of the American Academy of Matrimonial Lawyers)

          Benjamin Lee Krause, Krause Law, PLLC, Woodbury, Minnesota; and Carson J. Tucker (pro hac vice), Law Offices of Carson J. Tucker, Ann Arbor, Michigan (for amicus curiae Operation Firing for Effect and Forgotten Warriors Project, Inc.)

          Considered and decided by Jesson, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.

         SYLLABUS

         Federal law preempts state courts from dividing a veteran's military disability compensation as marital property and renders such property divisions unenforceable, even if agreed upon, overruling parts of Gatfield v. Gatfield, 682 N.W.2d 632 (Minn.App. 2004), review denied (Minn. Sept. 29, 2004).

          OPINION

          JESSON, JUDGE.

         Mark Mattson asserts that federal law renders unenforceable the district court's judgment directing him to pay Diana Berberich 40% of his military disability compensation. In light of the recent United States Supreme Court decision, Howell v. Howell, 137 S.Ct. 1400 (2017), we agree. Federal law preempts state courts from dividing a veteran's military disability compensation as marital property, even where, as here, the parties agreed to the division. As a result, we reverse and remand for entry of judgment reflecting the unenforceability of Mattson's obligation to pay military disability compensation to Berberich. In addition, because further findings are required on the issue of attorney fees, and because the appropriateness of any conduct-based attorney fees should be reconsidered in light of this opinion, we remand for further reconsideration of and findings on attorney fees.

         FACTS

         Appellant Mark Steven Mattson enlisted in the U.S. Navy in 1984 and, while serving, married respondent Diana Lynn Berberich in November 1992 in Virginia. Mattson retired from the military in 2004 and was granted a 70% disability rating for injuries suffered during active duty service.

         Mattson and Berberich separated in June 2014, and the following October, she filed for divorce in Minnesota. The parties finalized their divorce in February 2015 via a stipulated decree approved by the district court. At that time, they had two adult children. Berberich had been a homemaker and care provider for the parties' children during the majority of the marriage. At the time of the divorce, Berberich was employed part-time. Mattson was receiving military retired pay as well as military disability compensation.[1]

         Pursuant to the decree, the parties agreed that Berberich was in need of temporary and permanent spousal maintenance, but they agreed to reserve the issue of spousal maintenance based upon Berberich's receipt of a share of Mattson's disability compensation. Under the stipulated decree, Berberich was to receive 40% of Mattson's "gross monthly military retirement pay, " as well as 40% of "the gross amount of" Mattson's military disability compensation. The decree also divided personal property, debts, various financial accounts, real property, and other assets.

         Following the divorce, Mattson made only sporadic payments on his obligations under the decree, resulting in substantial arrearages. In January 2016, Berberich attempted to enforce the terms of the decree. She sought the military retired pay and disability compensation owed under the decree, as well as other relief. Mattson opposed most of Berberich's requests.

         On July 25, 2016, the district court filed an order directing Mattson to immediately pay to Berberich the military retired pay and disability compensation due and owing pursuant to the decree. The district court also granted other relief, including attorney fees. Mattson appeals.[2]

         ISSUES

         I. Did the district court err by enforcing a stipulated decree dividing as marital property Mattson's military disability compensation?

         II. Are Mattson's challenges concerning health care coverage and the release of ...


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