HomeMy WebLinkAbout1987-02550
LARRY E. BRAXTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION (DIVORCE)
:
EILEEN BRAXTON, :
Defendant : NO. 1987-02550 CIVIL TERM
IN RE: DEFENDANT’S PETITION FOR CONTEMPT AND SPECIAL RELIEF
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
HYAMS, J., April 23, 2020.
This divorce case presents the issue of whether, following Howell v. Howell, 137
S. Ct. 1400 (2017), a decrease in equitable distribution payments to a former spouse from
a veteran’s military retirement pay arising out of the veteran’s election of service-related
disability payments can be ameliorated by (a) reopening the divorce case with respect to
alimony or (b) court-ordered indemnification on the theory that Howell was not intended
1
to be retroactive. Briefs have been received from both parties.
For the reasons stated in this opinion, we will hold that, under the circumstances
of this case, such amelioration is not permissible.
STATEMENT OF FACTS
Plaintiff (hereinafter Husband) is Larry E. Braxton, a resident of Mechanicsburg,
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Cumberland County, Pennsylvania. Defendant (hereinafter Wife) is Eileen Braxton, a
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resident of Tavares, Lake County, Florida.
The parties have stipulated to the following facts. Husband joined the United
States Marine Corps in 1970. The parties were married on April 20, 1974, and one child
1
Defendant’s Brief in Support of Her Petition for Special Relief, filed March 9, 2020; Respondent’s
Brief, filed March 9, 2020; Defendant’s Response Brief, filed March 20, 2020; Respondent’s Reply Brief,
filed March 20, 2020.
2
N.T. __, Hearing, February 7, 2020 (hereinafter N.T. __). As of the filing of this opinion, the notes of
testimony of this hearing had not been transcribed.
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N.T. __.
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was born of the marriage on November 1, 1974. The parties separated in or around June
of 1988. Husband retired from the Marine Corps in 1991. Both parties are now in their
early seventies.
A Divorce Decree was entered in this court on January 9, 1989, bifurcating the
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economic claims. A final order of court, resolving the parties’ economic claims, was
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entered on November 9, 1992. This 1992 order came about after a Master’s Hearing and
Husband’s Exceptions thereto in what was a very contentious divorce matter in which
Husband ultimately appealed to the Superior Court and lost. Wife was awarded 60% of
all marital property, including the marital portion of Husband’s military pension.
During the pendency of the divorce, Husband did not have a VA disability claim
or rating and, therefore, did not fail to disclose information to Wife or the Court. The
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court entered a Qualified Domestic Relations Order (QDRO) on October 28, 1993.
The Defense Finance and Accounting Service (DFAS) paid Wife directly every
month her share of the pension. Until recently, Wife was receiving $753.00 a month,
which represented 60% of the marital portion of Husband’s pension (41% of Husband’s
total pension). In or around July of 2019 Wife’s payments began to decrease. Wife is
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presently receiving only $536.67 a month.
The following additional information was elicited at a hearing held on February 7,
2020, before the undersigned judge. The recent reduction in Wife’s payments from DFAS
was the result of recognition of Husband’s claim as a veteran for service-related disability
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payments, based upon a determination in 2019 of 40% disability. According to
Husband’s testimony, his exercise of the right to disability payments had been a long-
standing process, motivated by tax considerations and the prospect of having his injuries
4
Joint Stipulated Facts and Exhibits, entered of record by orders of court dated January 30, 2020, and
February 7, 2020, Exhibit 1 (hereinafter Joint Stipulated Facts and Exhibits, __).
5
Joint Stipulated Facts and Exhibits, Exhibit 2.
6
Joint Stipulated Facts and Exhibits, Exhibit 3.
7
Joint Stipulated Facts and Exhibits.
8
N.T. __.
2
acknowledged; he had not, according to his testimony, realized that recognition of the
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claim would produce, by way of waiver, an offset to his military retired pay, nor that it
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would ultimately accrue to the detriment of Wife. However, he also indicated intent to
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continue to press for an increase in military-related disability income.
Wife testified at the hearing that she had not been employed since 2013, and that
her only current sources of income were social security disability payments and her share
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of Husband’s military retired pay. She had borrowed from her life insurance, according
to her testimony, to pay $5,000.00 in attorney’s fees in connection with the present
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litigation.
Finally, it does not appear that Wife pursued a claim for alimony in the divorce
proceeding. See Master’s Second Report and Recommendation, filed April 30, 1991;
Defendant’s Exceptions to Master’s Report, filed May 10, 1991.
Wife’s Petition for Contempt and Special Relief Pursuant to Pa.R.C.P. 1920.43
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was filed on November 13, 2019. The petition alleges, inter alia, that “Husband’s
actions, if permitted, will allow him to thwart the 1992 Order to Wife’s detriment, will
unjustly enrich Husband, and will deprive Wife of her fair share of the marital estate with
15
which she was awarded.” Relief was requested in the form of (a) an adjudication of
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contempt and sanction of attorney’s fees and (b) “re-open\[ing\] of \[the court’s prior
1992 Order, reconsider\[ation of\] the parties’ marital estate and re-visit\[ation of\] the issue
9
As a general rule, “a retired service member may only receive VA disability compensation if he or she
waives an equal amount of military retired pay.” Note, A Change in Military Pension Division: The End
of Court-Adjudicated Indemnification—Howell v. Howell, 44 Mitchell Hamline L.J. 1064, 1065 (2018).
10
N.T. __.
11
N.T. __.
12
N.T. __.
13
N.T. __.
14
Defendant’s Petition for Contempt and Special Relief Pursuant to Pa.R.C.P 1920.43, filed November
13, 2019.
15
Id., ¶31.
16
Id., ¶32.
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of alimony.” However, it appears from Wife’s brief that relief by way of a re-opening
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of the case to revisit the issue of equitable distribution is not being pursued.
In summary, the position of Wife with respect to her petition for contempt and
special relief has been expressed in her excellent brief as follows:
Here we are not dealing with an agreement of the parties to indemnify, nor are
we asking the court to order indemnification. We are asking the court to either find that
Howell is not applicable retroactively, or in the alternative, to find that it is appropriate to
address the issue of alimony in light of the substantial change in circumstances. If this
court agrees that Howell does not apply retroactively, the Court may order Husband to
indemnify Wife for the shortfall in what she presently receives in military retired pay. In
the alternative, if the court agrees that the circumstances of this case warrant revisiting
the need for alimony, the court should schedule a hearing address the alimony factors laid
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out in the Divorce Code, Section 3701.
STATEMENT OF LAW
Under the federal Uniformed Services Former Spouses’ Protection Act, enacted in
1982, as a general rule states may treat “disposable retired pay” of military veterans “as
property of the \[veteran\] and his spouse” for purposes of the division of property in
divorce cases. 10 U.S.C. 1408(c)(1). However, in this legislative context “disposable
retired pay” does not include “any amount that the Government deducts ‘as a result of a
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waiver’ that the veteran must make ‘in order to receive’ disability benefits.”
In Mansell v. Mansell, 490 U.S. 581, (1989), the United States Supreme Court
held that “federal law forbade \[a state\] from treating the waived portion \[of a veteran’s
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military retirement pay\] as community property divisible at divorce.” The context and
rationale of the holding have been described as follows:
. . . Major Gerald E. Mansell and his wife had divorced in California. At the time
of the divorce, they entered into a “property settlement which provided, in part, that
Major Mansell would pay Mrs. Mansell 50 percent of his total military retirement pay,
including that portion of retirement pay waived so that Major Mansell could receive
disability benefits. . . . The divorce decree incorporated this settlement and permitted the
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Id., ¶34.
18
Defendant’s Brief in support of Her Petition for Special Relief, filed March 9, 2020, at 17, 19.
19
Id., at 19.
20
Howell v. Howell, 137 S. Ct. 1400, 1402 (2017) (citation omitted); see 10 U.S.C. 1408(a)(4)(B).
21
Id. at 137 S. Ct. at 1403.
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division. Major Mansell later moved to modify the decree so that it would omit the
portion of the retirement pay that he had waived. The California courts refused to do so.
But this Court reversed. . . .
Justice Thurgood Marshall, writing for the Court, pointed out that \[at one time\]
federal law . . . “completely pre-empted the application of state community property law
to military retirement pay. . . . \[Although Congress overcame this preemption by way of
the Uniformed Services Former Spouses’ Protection Act, it did so\] only to a limited
extent. The Act 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.” . . . Rather, Congress excluded from its grant of authority
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the disability-related waived portion of military retirement pay.
In Howell v. Howell, 137 S. Ct. 1400 (2017), the Court applied the rationale of
Mansell, holding that federal law forbade a community-property state from ordering a
veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of
the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive
service-related disability benefits. The context and rationale of this holding have been
described as follows:
. . . Years after a veteran’s former spouse had been receiving a portion of the
veteran’s total retirement as a result of the state’s court having treated such pay as
community property, the Department of Veterans Affairs found that the veteran was 20
percent disabled due to a service-related injury. . . . The veteran then waived a share of
the retirement pay in order to receive nontaxable disability benefits. . . . The veteran’s
former spouse then procured from the state court an order that the veteran ensure that she
nevertheless “receive her full \[percentage\] of the military retirement without regard for
the disability.”. . . The Howell Court framed as the issue: “Can \[a state court\]
subsequently increase . . . the amount the divorced spouse receives each month from the
veteran’s retirement pay in order to indemnify the divorced spouse for the loss caused by
the veteran’s waiver?” . . . Citing its interpretation of the Act in Mansell, the Court
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answered “no.”
22
Id. at 137 S. Ct. at 1402-03 (citations omitted).
23
Phillips v. Phillips, 820 S.E.2d 158, 163 (2018) (citations omitted).
It may be noted that, “\[p\]rior to Howell, more than 60% of the states held than Mansell and the
USFSPA did not apply to post-divorce VA waivers of military retired pay and that indemnification was
permitted.” Note, A Change in Military Pension Division: The End of Court-Adjudicated
Indemnification—Howell v. Howell, 44 Mitchell Hamline L.R. 1064, 1072-73 (2018). Pennsylvania was
among these. See Morgante v. Morgante, 119 A.3d 382 (Pa. Super. Ct. 2015); Hayward v. Hayward, 868
A.2d 554 (Pa. Super. Ct. 2015). “Only a small minority of states did not permit indemnification.” Note, A
Change in Military Pension Division: The End of Court-Adjudicated Indemnification—Howell, v. Howell,
44 Mitchell Hamline L.R. 1064, 1074.
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In so holding, the Court cautioned against adoption of alternative distribution
schemes that “stand as an obstacle to the accomplishment and execution of the purposes
and objectives of Congress” in exempting disability pay from the category of marital
property. Howell v. Howell, 137 S. Ct. 1400, 1406 (2017). In this regard, the Court
referenced federal interests in “attracting and retaining military personnel,” inter alia. Id.
at 137 S. Ct. at 1405; cf. McCarty v. McCarty, 453 U.S. 210 (1981) (recitation of federal
interests promoted by exemption of military retired pay under earlier federal statute).
Subsequent to Howell, the Pennsylvania Superior Court affirmed a decision of the
Court of Common Pleas of Fayette County that enforced by indemnification a husband’s
post-retirement settlement agreement, incorporated into a divorce decree, whereby 50%
of the husband’s “retirement from the U.S. Army” was promised to the wife,
notwithstanding the subsequent occurrence of a total waiver of his disposable military
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retired pay due to disability. In reconciling a contractually-premised indemnification
order with the proscription in Howell on court-adjudicated indemnification, one
commentator has stated the following:
. . . \[T\]he retiree’s post-retirement agreement to pay his former wife a share of his
military pension, together with the doctrine of res judicata, barred his later claim that he
did not have to indemnify his former wife for amounts waived for \[disability payments\].
The Superior Court of Pennsylvania correctly affirmed.
Note, A Change in Military Pension Division: The End of Court-Adjudicated
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Indemnification—Howell v. Howell, 44 Mitchell Hamline L.R. 1064, 1089 (2018).
In the absence of the availability of relief on a contract theory, a possible avenue
of relief for a divorced party whose share of a veteran’s retirement benefits has been
reduced by election of disability is by reopening the issue of alimony. See Fattore v.
Fattore, 203 A.3d 151, 157 (2019); In re Marriage of Cassinelli, 229 Cal. Rptr. 3d 801
th
(2018); B.R. Turner, Equitable Distribution of Property §6.10 (Thomson Reuters, 4 ed.,
Dec. 2019). In this regard, it may be noted that, “\[a\]lthough VA disability benefits cannot
24
Bloom v. Bloom, No. 255 of 1991, G.D. (Fayette County, September 8, 2016), aff’d, 1443 WDA 2016,
2017 WL 3225862 (Pa. Superior Ct., July 31, 2017 (non-precedential decision).
25
It should be noted, however, that the decision in Howell is not referenced in Bloom.
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be divided as marital/community property, they can be considered a source of income for
purposes of alimony.” Note, A Change in Military Pension Division: The End of Court-
Adjudicated Indemnification—Howell v. Howell, 44 Mitchell Hamline L.R. 1064, 1082
(2018).
However, under Pennsylvania Rule of Civil Procedure 1920.31(c), “\[t\]he failure to
claim . . . alimony . . . prior to the entry of a final decree of divorce . . . shall be deemed a
waiver of th\[at\] claim\[\], unless the court expressly provides otherwise in its decree.” And,
with respect to the introduction of an award of alimony into a divorce proceeding after
entry of the divorce, the following general rule has been deduced from caselaw in the
United States:
\[I\]n the absence \[of a statute that authorizes allowance of alimony after the entry of a
divorce decree\], and in the absence of fraud and mistake, it has been generally held that a
domestic divorce decree without adjudication or reservation as to alimony and rendered
on personal service or its equivalent, precludes, under the doctrine of res judicata, or
because of the termination of the marital relationship, or because of lack of statutory
authority, a later alimony award, both in proceedings instituted in the divorce action for
the purpose of inserting an alimony award in the decree and in an independent action
brought for the purpose of recovering alimony. This rule applies no matter how drastic a
change of circumstances occurred after the entry of the divorce decree. Generally
speaking, it seems to make no difference whether the divorce decree was granted to the
wife or to the husband. Likewise, as a general proposition, it seems immaterial whether
or not alimony was specifically asked for or made an issue in the pleadings filed in the
divorce proceedings.
Domestic divorce decree without adjudication as to alimony, rendered on personal
service or equivalent, as precluding later alimony award, 43 A.L.R.2d 1387,
Introduction, §2 (1955 & Supps.) (emphasis added); see Com. ex rel. Kett v. Kett, 181 A.
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518 (Pa. Super. Ct. 1935).
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In the interest of thoroughness, it may also be noted that, in the absence of the availability of relief on a
contract theory, another “final property division remedy, not expressly discussed in Howell, would be to
open the entire divorce decree and redivide the property. As long as the only property \[that\] is redivided is
property other than the waived benefits, there should be no federal obstacle.” B.R. Turner, Equitable
th
Distribution of Property §6.10 (Thomson Reuters, 4 ed., Dec. 2019) (citation omitted).
But state law, for very good reasons, is reluctant to reopen final judgments. In cases
where a spousal support remedy is available that remedy will probably be preferred. In
cases in which spousal support is not available, reopening is an available option, but one
which state courts might be reluctant to exercise.
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Another possible avenue for relief for a divorced party, in the absence of the
availability of relief on a contract theory, might be to deny Howell retroactive effect. See
Russ v. Russ, 456 P.3d 1100 (N. M. Ct. of App. 2019), cert. granted (December 4, 2019).
Thus, in Russ, the New Mexico Court of Appeals affirmed a lower court’s pre-Howell
indemnification order on the ground that the Supreme Court’s 2017 decision in Howell
had only prospective effect. Id.
However, there is nothing in Howell which would suggest such an intended result,
and “the general rule is that a decision announcing a new rule of law is applied
retroactively so that a party whose case is pending on direct appeal is entitled to the
benefit of changes in the law.” Walnut Street Associates, Inc. v. Brokerage Concept, Inc.,
20 A.3d 468, 479 (Pa. 2011).
With respect to special relief in divorce cases, Pennsylvania Rule of Civil
Procedure 1920.43 (Special Relief) provides as follows:
(a) At any time after the filing of \[a divorce or annulment\] complaint, on petition setting
forth facts entitling the party to relief, the court may, upon such terms and conditions as it
deems just, including the filing of security.
(1) issue preliminary or special injunctions necessary to prevent the
removal, disposition, alienation or encumbering of real or personal
property in accordance with Rule 1531(a), (c), (d) and (e); or
(2) order the seizure or attachment of real or personal property; or
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(3) grant other appropriate relief. . . .
Section 3332 of the Domestic Relations Code (Opening or Vacating Decrees)
provides as follows:
A motion to open a decree of divorce or annulment may be made only within the period
limited by 42 Pa.C.S. § 5505 (relating to modification of orders) and not thereafter. The
motion may lie where it is alleged that the decree was procured by intrinsic fraud or that
there is new evidence relating to the cause of action which will sustain the attack upon its
validity. A motion to vacate a decree or strike a judgment alleged to be void because of
extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent on
Id.; see, e.g., Major v. Major, 344, 518 A.2d 1267 (Pa. Super. Ct. 1986) (noting absence of express
procedural mechanism in Pennsylvania for reopening divorce case to incorporate military retirement pay).
As mentioned in the text, this particular form of relief is not being requested by Wife, and no opinion is
expressed herein as to its availability.
27
Pa. R.C.P. 1920(a).
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the face of the record must be made within five years after entry of the final decree.
Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false
testimony, whereas extrinsic fraud relates to matters collateral to the judgment which
have the consequence of precluding a fair hearing or presentation of one side of the
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case.
Section 5505 of the Judicial Code (Modification of Orders), referenced above in
the Domestic Relations Code, provides as follows:
Except as otherwise provided or prescribed by law, a court upon notice to the parties may
modify or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken or
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allowed.
With respect to the opening of judgments in general, it is, of course, understood
that the law “favors the finality of judicial proceedings.” Frantz v. City of Philadelphia,
3 A.2d 917, 918 (Pa. 1939). A petition to open “addresses itself to irregularities
predicated on matters outside the record,” and “calls into play the court’s equitable and
discretionary powers.” National Recovery Systems v. Monaghan, 469 A.2d 244, 246 (Pa.
30
Super. Ct. 1983). A mistake can sometimes provide a basis for opening a judgment.
DISCUSSION
Alimony. In the present case, where a contractual premise for relief is not available
and court-adjudicated indemnity was foreclosed under similar circumstances in Howell,
several factors militate against granting relief to Wife on the alternate ground of
reopening the case with respect to alimony. First, her petition was not filed within 30
days of the entry on November 9, 1992, of the order resolving the parties’ economic
claims, so as to implicate the broad authority of the court to modify orders under Section
5505 of the Judicial Code. Second, the petition was not filed within five years of the
order, nor would the record support a finding of intrinsic fraud, extrinsic fraud or
invalidity of the order, so as to implicate the provisions of Section 3332 of the Domestic
28
23 Pa. C.S. §3332.
29
42 Pa. C.S. §5505.
30
See, e.g., Pittsburgh National Bank v. Kemilworth Restaurant Co., Inc., 195 A.2d 919 (Pa. Super. Ct.
1963).
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Relations Code. Third, this form of relief would not be consistent with general policy
favoring the finality of judicial proceedings.
Fourth, the issue of alimony has been ostensibly waived pursuant to Pennsylvania
Rule of Civil Procedure 1920.31(c), the weight of authority appears to be against
allowance of the initiation of an alimony claim subsequent to the disposition of a divorce
case, and obvious practical difficulties are presented by an attempt to determine in
retrospect entitlement to alimony and the effect, if any, of intervening circumstances
(e.g., a period of cohabitation). Fifth, it can not be said that the resolution of economic
claims, including the waiver of alimony, adopted decades ago by the court in this case
was the result of mistake; Husband’s military retired pay was a permissible item of
marital property and was known at the time to be subject to a condition subsequent in the
form of a disability waiver.
Sixth, no sanction in the form of caselaw, statute or rule of court appears to exist
in Pennsylvania for a reopening of the case in response to Howell. And, finally, creation
of this type of disincentive to a veteran’s exercise of a right to disability benefits may
frustrate federal legislative purposes.
Retroactivity. Several factors also militate against an attempt in this case to
ameliorate the effect of Howell by construing the decision as prospective only. First, it
does not appear that the Supreme Court regarded the decision as representative of a new
principle of law, but rather as an application of existing law in the form of Mansell.
Second, nothing in the Court’s decision suggests that a similar result would not obtain in
a subsequent case with similar facts, such as this one. Third, the general rule favors
retroactivity, and, fourth, Defendant’s petition for relief in this case was filed subsequent
to the Howell decision.
Without suggesting that under no circumstances could a veteran’s post-divorce
election of disability benefits to the financial detriment of a spouse being paid through
DFAS provide a basis for relief, the court is of the view that this 1992 case does not
represent an appropriate vehicle for that result on the theories advanced. It also follows,
10
from the foregoing discussion, that an adjudication of contempt on the part of Husband
arising out of his exercise of a right to claim military-related disability payments would
not be warranted.
Accordingly, the following order will be entered.
ORDER OF COURT
rd
AND NOW, this 23 day of April, 2020, upon consideration of Defendant’s
Petition for Contempt and Special Relief Pursuant to Pa.R.C.P. 1920.43, filed November
13, 2019, and for the reasons stated in the accompanying opinion, the petition is denied.
BY THE COURT:
Carrie E. Hyams
Carrie E. Hyams, Judge
.
Jeffrey C. Clark, Esq.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
Attorney for Plaintiff
Karen L. DeMarco, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Defendant
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