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Disabled vet seeks Supreme Court review of spousal support ruling

In its 1987 Rose decision, the United States Supreme Court interpreted the legislative history underlying VA disability benefits to mean that Congress firmly intends such payments to be made as compensation to a disabled vet "and his family."

That case now stands as strongly entrenched precedent, with courts in 49 states -- including Georgia -- relying upon its rationale to award alimony, or spousal support, following a divorce to the ex-spouse of a disabled veteran from his or her disability compensation in certain cases. Only Arizona disallows vets' benefits from being included as a factor in calculating spousal or even child support payments.

A disabled vet from Oregon is now seeking to challenge that position on the ground that it violates congressional intent and federal statutory law. An Oregon state court ruled in 2010 that Peter James Barclay's ex-wife was entitled to a portion of his VA disability benefits for spousal maintenance. An appellate court in that state agreed, and Barclay now seeks reconsideration of that outcome at the Supreme Court. Implicitly, he is petitioning the Court to view anew and set aside its Rose decision.

The basis for doing so, he says, is a U.S. Code statute that renders VA disability benefits immune "from ... attachment, levy and seizure." He thinks that language applies centrally to his situation.

Barclay was granted a 100 percent disability rating award by the VA following his participation as an active-duty Air Force member in Oklahoma tasked with recovering dead and wounded victims following the1995 bombing of the federal building in Oklahoma City. He eventually suffered extreme post-traumatic stress symptoms and became unable to work.

Source: HeraldNet, "Ruling sought on split of military benefits in divorce," Tom Philpott, May 21, 2012

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The following is another view of exactly how disabled veterans’ have been manipulated by state courts’ to forcibly take hold their earned disability compensation.

A disabled veteran when returning home may face one of their toughest battles, facing a judge in divorce court trying to keep his or her VA disability compensation from being awarded as alimony. I’ve been at this very problem for many years in finding a solution. I joined in when a disabled veteran who put out a mayday call to veterans for help in protecting his VA disability compensation.

The statute which disabled veterans’ rely on is 38 USC 5301. Nonassignability and exempt status of benefits. "Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.

As read, 5301 it is quite clear. But when a disabled veteran appears before a divorce court judge and the opposing attorneys, they will try every interpretation possible to win judgment and secure as alimony a veteran’s disability compensation. You are probably thinking, what about child support? Should the veteran be responsible for that? Yes, I thought. But early on, I understood their argument because of what the law states. However, I was not getting into the child support issue, did not see any solution. My focus was those veterans” not having child support as an issue.

Opposing lawyers, activist state court judges and the ex-spouse, their arguments rely on states rights, stare decisis, forum shopping, contract law, etc., and finally almost in all of these cases, the courts, will rely on Rose v. Rose. A disabled triple amputee veteran, blind in one eye, requiring constant care, Charlie Wayne Rose, was sent to jail for failing to pay alimony and child support. Released after a short period when he agreed to relinquish his disability compensation for child support.

However, in support of alimony only, having no child support issues, divorce courts, judges, lawyers, most always refer to Rose v. Rose, a child and alimony support case, because it’s available, convenient and will prevail. New Hampshire, Brownell v Brownell, “Lower courts have repeatedly implemented Rose, and an “overwhelming majority of courts” have held that veterans’ disability payments may be considered as income in awarding alimony.” Brownell was not a child support issue, but you did notice, the opposing lawyer managed to bring up Rose v Rose which was a child support issue. Brownell, of course lost a portion of his disability compensation as alimony.

But this is not how the VA General Council John Thompson had interpreted the Rose case. 8/4/98 testimony of Congressional and Legislative Affairs statement of John Thompson, acting General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject, disability compensation may be attached. In clarifying for the VA, its legal definition, stating, “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”

Mr. Thompson then states, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”

Veterans Administration counsel Mr. Thompson’s explanation of “sole exception” is exactly what it is, which involves two (2) conditions… before “VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.” Two (2) conditions, child support and alimony. For those disabled veterans’ having no child support issues, this is not that “sole exception.” The courts in many cases do not make any exceptions .

For those cases not involved with child support, I recently suggested a defense of the disabled veteran’s compensation issue. Two disabled veteran’s have had enough and asked for help. They made this very claim. One in a letter to VA Secretary Shinseki, 3/29/12. As well mentioning other claims, which as you read exposes the VA’s lack of oversight of the it’s rules and regulations and exposes the illegal state court rulings interfering with VA medical procedures regarding disability compensation which has led to “clear and substantial” major damage to federal interests. A second veterans’ letter 5/25/12 was to the ACLU.

State court rulings awarding disability compensation are routinely processed by the VA, the governmental entity, in spite of 38 USC 5301, and VA General councils precedential interpretations, VA regulations, laws on the books, and the many years of disabled veterans complaints.

“Clear and substantial” major damage to federal interests occurs when state court activist judges make lasting decisions, partly based on Rose v. Rose, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. Nonassignability and exempt status of benefits, and…. 38 USC 1155 Authority for schedule for rating disabilities. “However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” 42 USC § 407 - Assignment of benefits, carries similar language.

Reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” When processing a reduction order, the VA would be violating the regulation 38 CFR 3.105 (e) when no medical evaluation has been ordered showing any physical improvement.

To a veteran his total disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran injuries should be compensated for. Forgetting for the moment, any rating system, to the veteran who loses any portion of his disability compensation payments, he has been downgraded and now any disability rating is totally meaningless. What happens to a veteran’s health and well being are now in jeopardy to many, many disabled veterans‘. A “cause and effect” situation.

A question presented to Secretary Shinseki, where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating? His future now without the compensation that was by law assured?

Which brings up other questions, how is it that state court judges can arbitrarily and capriciously award as alimony, waive away a portion of a veteran’s VA disability rated compensation, moneys in the form of disability compensation, the disability rights of a veteran whose disability rating, that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same? Activist state court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration, overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408.

State court judges may have adjudicated divorce support having “due process” in the distribution of income, however, this is only one part of two (2) separate “due process” issues in divorce proceedings. This is not just a one “due process” fits all situations, as state court judges may want to think. When a veterans disability compensation is court ordered as part of any alimony distribution, before the “consideration” of service connected disability compensation, as part of any alimony award, there is a separate “due process” right, to fair adjudication of a veterans’ claim for disability compensation benefits. This has not been done. Entitlement to benefits is a property interest protected by the Due Process Clause. To let this happen, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!

As you can surmise from what you have read, this is an issue involving veterans’ from every state, and the solution to this problem can only be solved on a federal level. The consequence of “due process” is, that it takes in the issue of child support, and the reality that disability compensation is then exempt in both alimony and child support. Perhaps’ that’s the way Congress had intended it to be? After all 38 USC 5301 is quite clear as to its meaning.

PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, August 12, 2009.

http://linehanpc.com/vadisabilityclaim/cushmanvshinseki.html

“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”

Just to be clear, many states do observe and respect federal law 38 USC 5301. Two cases not involving child support. California, Piner v. Piner, the judge had respected federal law and disallowed the use of a veteran’s disability compensation to be used as alimony. However, the judge gave him an ultimatum, forcing the veteran having to use his disability compensation in alimony support, by a set-off or assignment … or go to jail! To put it in prospective, the state court judge refused to violate federal law, but expects the veteran to violate that same law. New Hampshire, if Ronald Brownell, should refuse to hand over his disability compensation as ordered by the court, the judge would hold him in contempt of court, and can be ordered to jail. If, instead Brownell was forced to pay alimony reluctantly by the threat of jail time, he too, will violate federal law 38 USC5301, “Nonasignability and exempt status of benefits.”

In conclusion, our disabled men and women veterans, both returning and those having served in Afghanistan, Iraq, and past wars endure facing both the emotional and physical issues of unemployment, future uncertainty, suicide, PTSD, and rehabilitation. For many, are years of facing a far greater emotionally charged setting, a divorce court battle. Financially and psychologically draining, fighting for the right to keep their earned VA disability compensation, against court room rulings that fail in their duty to advise and observe its duty to procedures of due process rights, and the court’s proper place in a medical decision over the rights due a disabled veteran.

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