In the Matter of the Marriage of Roslyn Marie Babin, Appellee, and Nickey Nickles Babin, Appellant.
Under the Uniformed Services Former Spouses' Protection
Act, 10 U.S.C. § 1408 (2016), state courts may treat
disposable military retirement pay as marital property in
domestic actions. However, federal law preempts such courts
from ordering the division of military disability benefits
and the distribution of any portion of those benefits to a
veteran's former spouse.
any portion of a veteran's military retirement pay is
reclassified as disability benefits by the Veteran's
Administration, under the preemption doctrine any such
reclassified portion is the veteran's exclusively and is
no longer subject to a state court order of distribution to
such veteran's former spouse. This is true even if the
parties have agreed differently and the court has adopted
such agreement. The parties cannot rely on the sanctity of
contract to escape federal preemption.
Although the district court cannot order the division of
military disability benefits, it is permissible for the court
to consider the financial effect of disability pay when
dividing assets and ordering spousal support.
from Dickinson District Court; Benjamin J. Sexton, judge.
A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for
Charles Rombold, of Hoover, Schermerhorn, Edwards, Pinaire
& Rombold, of Junction City, for appellee.
Schroeder, P.J., Standridge, J., and Walker, S.J.
Nickles Babin and Roslyn Marie Babin originally reached a
mediated property settlement agreement in their divorce, but
issues arose between the parties after mediation was
complete. The district court granted the parties'
divorce, but litigation continued regarding the division of
property and spousal maintenance. Even though Nickey had
agreed to give 43% of his military disability benefits to
Roslyn as part of the settlement agreement, he later argued
that federal preemption prohibited the district court from
dividing military disability benefits in a divorce. The
district court ruled that the mediation agreement was plain
and unambiguous and adopted the mediation agreement as its
order. Nickey appeals from the district court's order
approving a division of his military disability benefits. We
concur with Nickey that the district court lacked
jurisdiction to divide his military disability pay because of
federal preemption, even though a property settlement
agreement allowing for the division of disability pay had
been reached through mediation. We thus reverse the district
court's orders approving the settlement and remand the
case for further proceedings.
and Roslyn were married in March 1994. During all but the
last few months of the marriage, Nickey was an active duty
member of the United States Army. He retired on August 1,
filed a petition for separate maintenance on September 1,
2016. In response, Nicky filed an answer and a
counter-petition for divorce. Ultimately the parties agreed
to treat the matter as a divorce action.
parties entered into mediation in November 2016. At the end
of mediation, the parties signed a handwritten document dated
November 29, 2016, memorializing the primary terms of a
property settlement agreement. In pertinent part, the
document provided: "4. Military retirement, disability
and any back pay divided 43% to Wife and 57% to Husband.
district court granted Nickey and Roslyn a decree of divorce
on December 22, 2016, but the division of property was
continued for a later time for two reasons: (1) Nickey was
proposing an alternative to the settlement agreement's
provisions for life insurance and (2) Nickey claimed that
Roslyn's purchase of a new vehicle was either contrary to
the agreement, or the parties did not have a "meeting of
the minds" when they provided for Roslyn's
postdivorce transportation in the agreement.
filed his proposed formal findings for the district court on
February 2, 2017.At a hearing on the proposed findings held
on February 6, 2017, Nickey came forward with another
objection to the agreement. In this new argument, Nickey
claimed that he did not agree to allocate 43% of his
disability pay to Roslyn. In his proposed formal settlement
agreement, the language indicated Roslyn was to be awarded a
43% share of his "disposable military retired pay"
without reference to disability payments. This was calculated
to be $1, 237.52 based on a net disposable retirement pay of
$2, 877.95. Even though it was not detailed in the mediation
document, Nickey proposed that any later reduction in
disposable military retired pay by ...