Case Title and Case Number: Howell vs Howell No.

15-1031

Date of decision: May 15, 2017

Name of Plaintiff/Petitioner and their legal counsel: John Howell

Name of Accused/Respondent and their legal counsel: Sandra Howell

Case Status (Open, Closed, Dismissed, etc): Closed, Decided

Case Summary:

John Howell was married to Sandra Howell. He was serving in the Air Force when they
got divorced in 1991. As he was nearing his retirement, the divorce decree treated his
retirement pay as a community property which awarded Sandra her sole and separate
property which is 50% of John's retirement fund. The divorce decree also ordered John
to pay $585 a month and spousal maintenance worth 150$ a month until John's
retirement.

Thirteen years after the divorce, it was discovered that John was partially disabled due
to a service-related shoulder injury. He elected to receive disability benefits and had to
waive $250 of his military pay that he shared with his ex-wife. This reduced the amount
that he and Sandra were entitled to receive each month.

Sandra filed a petition to the Arizona Family Court to enforce the original decree for her
to receive the original value she received from John's retirement pay. The court held that
she has a "vested" right to prewaiver the amount of the pay and ordered John to pay her
her full 50% notwithstanding the disability.

ISSUE: Whether or not the family court could “order John to indemnify Sandra for the
reduction” of her share of John’s military retirement pay

Court Verdict/Ruling:

No

The court cited the landmark case of Mansell, 490 U. S. 581 who likewise also entered
into property settlement with his wife after the divorce. They agreed that Major Mansell
would pay Mrs. Mansell "50% of his total military retirement pay, including that portion of
retirement pay, including that portion of retirement pay waived so that Major Mansell
could receive disability benefits." The court permitted the division but later on, Major
Mansell had to modify this portion because federal law forbade California from treating
the waived portion as community property divisible at divorce.

A new act by Congress provided a "precise and limited" grant of the power to divide
federal military retirement pay. It did not grant the States "the authority to treat total
retired pay as community property."
The temporal difference Between the Mansell case and the current case is vital. The
Court held that federal law completely pre-empts the States from treating waived military
retirement pay as divisible community property. However, the waiver in Mansell took
place before the divorce while Howell's took place years after the divorce proceedings.

Thus, the court ruled that it sees nothing in this circumstance that makes the
reimbursement award to Sandra any less an award of the portion of military retirement
pay that John waived to obtain disability benefits. But Congress in its act also intended
to exempt military retirement pay from state community property laws and apply a fortiori
to disability pay.

The court made clear that the original divorce decree divided the whole of John’s military
retirement pay, and their decisions rested entirely upon the need to restore Sandra’s lost
portion.

The judgment of the Supreme Court of Arizona is reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.