HomeMy WebLinkAbout2014-03493
STACEY M. SULLIVAN,: IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.: CIVIL ACTION (DIVORCE)
:
MICHAEL F. SULLIVAN,:
Defendant: NO. 2014-03493 CIVIL TERM
IN RE: PETITION TO ENFORCE MARITAL SETTLEMENT AGREEMENT
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
This divorce case,revived by way of a petition to enforce the terms of a marital
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settlement agreement,presents the issue of whether federal law prevents parties in a
divorce action from agreeing that,in the event an
to forgo such pay(in return for disability benefits),the financial status quo maybe
preserved byan order compellingindemnification by the retiree.
For the reasons stated in this opinion, the federal law will not be construed to
preventenforcement of such an agreement.
STATEMENT OF FACTS
This divorce action was commenced by the filing of a complaint onJune 11,
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2014., as of that time,may be summarized as
follows:
Plaintiff is Stacey M. Sullivan, an adult individual residing in Carlisle,
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Cumberland County, Pennsylvania.Defendant is Michael F. Sullivan, an adult
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individual residing in Carlisle, Cumberland County, Pennsylvania,and an active
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Petition for Enforcement of Marriage Settlement Agreement and Military Qualifying Order, filed by
Plaintiff on July 16, 2025 (hereinafter Petition To Enforce Marital Settlement Agreement).
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member of the Armed Forces of the United States.The parties were married in August
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of 1995,and as of the filing datein 2014the marriage wasirretrievably broken.
A petition raising economic claims, in the form of alimony pendente lite, alimony,
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and equitable distribution, was filed by Plaintiff on September 28, 2015.Thereafter, the
parties, each represented by counsel,resolvedthe economic issues by way of amarital
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settlement agreement dated July 14, 2017, which was filed of record on July 31, 2017,
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and in which they waived any claims ofalimony pendente lite or alimony.
aywas allottedto Wife as follows:
Wife is awarded fifty-percent (50%) of the marital portion of Husband's Miliary \[sic\]
Retirement Pay. The final percentage Wife shall receive of Husband's Military
Retirement Pay of Wife's award shall be determined by a coverature fraction, which shall
be calculated by the actuary, Jonathan Cramer. The parties were married and not
separated for 18.33 years,(August 12, 1995 to June 11, 2014), and Husband had 24.08
years of service in the military, (September 9, 1992 to October 31, 2016\[)\]. Survivor
benefits shall be maintained for Wife post-divorce, and the cost of survivor benefits shall
be deducted by DFAS prior to division of military retired pay.
The parties shall promptly engage the service of Jonathan Cramer for preparation of a
Qualified Domestic Relations Order to effectuate the division of Husband's retirement
benefits under this section. The parties shall equally share all costs for Jonathan Cramer's
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services.
Marital Settlement Agreement, §13 (Employment and Retirement Benefits).
A consensual divorce decree followed, dated August 17, 2017, which provided,
inter alia, that
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4.
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Petition for Additional Economic claims, filed by Plaintiff on September 28, 2015.
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Marriage Settlement Agreement, filed July 31, 2017 (hereinafter Marital Settlement Agreement).
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Marital Settlement Agreement, 4.
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Agreement, ¶13 (Breach).
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the marriage settlement agreement which was executed by the parties and filed under the
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above-captioned docket number shall be incorporated and not merged into this Decree.
Pursuant to the marital settlement agreement, the military retirement payprovision
contained therein was madethe subject ofaMilitary Qualifying Court Order,
consented to by the parties and their respective attorneys as evidenced by their signatures,
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dated August 28, 2017,and filed August 29, 2017,which provided as follows:
7.The Member assigns to the Former Spouse an interest in the Member's
disposable military retired pay. The Former Spouse is entitled to a direct payment in the
amount specified below and shall receive payments at the same time as the Member.
* * * *
9.This Order assigns to Former Spouse an amount equal to 39.10% of \[(a) minus
(b)\] where (a) equals the Member's gross military retired pay under the Plan and (b)
equals the deduction from Member's gross retired pay for Survivor Benefit Plan costs. In
addition to the above, the Former Spouse shall receive a proportionate share of any post-
retirement cost-of-living adjustments made to the Member's benefits.
The parties acknowledge that DFAS will pay directly to the Former Spouse no
more than 50.00% of the Member's disposable military retired pay under the Plan, which
equals his gross retired pay less authorized deductions, as that term is defined in the
prevailing Financial Management Regulations of the Department of Defense.
10.The Court shall retain jurisdiction to enter such further Orders as are
necessary to enforce the award to the Former Spouse of the military retired pay awarded
herein.Such orders may include, but not necessarily be limited to, orders modifying the
percentage of disposable retired pay awarded to Former Spouse or requiring Member to
make direct payments to the Former Spouse to maintain the intent of this Qualifying
Court Order should Member take any action to reduce the award of retired pay herein,
including but not necessarily limited to, an election to waive retired pay to receive
disability compensation or an election to merge his military retired pay with another
federal employee retirement plan.
Military Qualifying Court Order, ¶¶7,9-10(emphasis added).
sub judice to enforce the marital settlement agreement was filed
on July 16, 2025. It alleges that,
Defense Finance
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-
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Divorce Decree, dated August 17, 2017 (Peck, J.).
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Military Qualifying Court Order, dated August 28, 2017 (Peck, J.).
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Petition To Enforce Marital Settlement Agreement, ¶8.
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provide current contact information regarding the defendant.
Relief is requested by Wife as follows:
11.Wife is requesting that Husband be ordered to make direct payments to her,
in the amount she had previously been receiving from DFAS, as such was provided in the
marriage settlement agreement and military qualifying order as an award of marital
property.
12.Such requested relief would be equitable and is appropriate and authorized
to update Wife and communicate regarding this matter, and the breach of the prior
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agreement and Order.
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Defendant recounts the events that led to the
15.In January of 2025, Respondent requested that DFAS wave \[sic\] his
retirement benefits in order to receive nontaxable service-related disability benefits
through the Department of Veterans Affairs.
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increase in his disability benefits.
In this regard,
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Relief, however, is not available to Plaintiff, according to
, based upon federal statutory preemption:
18.The Uniform Services Former Spouses Protection Act (USFSPA) preempts a
state from treating as divisible community property non-taxable service-related disability
benefits (10 U.S.C. § 1408(a)(4)(B)).
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Petition To Enforce Marital Settlement Agreement, ¶9.
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Petition To Enforce Marital Settlement Agreement, ¶10.
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-13.
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Marital Settlement Agreement).
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-16.
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Brief of the Defendant, Statement of Facts, ¶8, filed December 19, 2025.
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19.An Order directing the Respondent to provide payment directly to the
violate Federal Preemption and the U.S. Supreme CHowell v. Howell,
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581 U.S. 214 (2017) and Mansell v. Mansell, 490 U.S. 581 (1989).
Counsel having notified the court that there are no facts in dispute which would
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require an evidentiary hearing,the matter has been submitted for disposition on briefs.
DISCUSSION
Statement of law.
AAm. Jur. 2d
Divorce and Separation, §988 (Construction and effect of property settlement or
separation agreements, generally)(Nov. 2025 update) (citations omitted).
The rules of contract construction are applicable to the interpretation of a marital
parties, which is to gleaned from the language of the contract and a reasonable
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construction of the agreement as a whole.
An agreement that is incorporated into, but not merged with, a divorce decree
Morgan v.
Morgan,2014 PA Super 176, ¶__, 99 A.3d 554, 557.Furthermore, regardless of
may utilize a remedy or sanction set forth in \[the Divorce Code\]to enforce the agreement
to the same extent as though the agreement had been an order of the court except as
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specific provision to the contrary appearing in the agreement, a provision regarding the
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-19.
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See Order of Court, dated November 13, 2025(Hyams, J.).
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Qualifying Court Order, filed December 19, 2025; Brief of the Defendant, filed December 19, 2025;
Reply Brief of the Defendant, filed December 29, 2025.
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24AAm. Jur. 2d Divorce and Separation, §988 (Construction and effect of property settlement or
separation agreements, generally) (Nov. 2025 update) (citations omitted.
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23 Pa. C.S. §3105(a).
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disposition of existing property rights and interests between the parties . . . shall not be
Thefederal legislativebackground of the current litigation has been concisely
stated by the United States Supreme Court as follows:
InMcCartyv.McCarty,453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981),
we held that the federal statutes then governing military retirement pay prevented state
courts from treating military retirement pay as community property. We concluded that
treating such pay as community property would do clear damage to important military
personnel objectives....We reasoned that Congress intended that military retirement
pay reach the veteran and no one else....In reaching this conclusion, we relied
particularly on Congress' refusal to pass legislation that would have allowed former
spouses to garnish military retirement pay to satisfy property settlements....Finally,
noting the distressed plight of many former spouses of military members, we observed
that Congress was free to change the statutory framework....
In direct response to McCarty,Congress enacted the Former Spouses' Protection
community property. 10 U.S.C. § 1408(c)(1).
amounts required to be deducted from total pay are any amounts waived in order to
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receive disability benefits. § 1408(a)(4)(B).
The Act also creates a payments mechanism under which the Federal
Government will make direct payments to a former spouse who presents, to the Secretary
of the relevant military service, a state-court order granting her a portion of the military
retiree's disposable retired or retainer pay. This direct payments mechanism is limited in
two ways. § 1408(d). First, only a former spouse who was married to a military member
§1408(d)(2), is eligible to receive direct community property payments. Second, the
Federal Government will not make community property payments that exceed 50 percent
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of disposable retired or retainer pay. § 1408(e)(1).
InMansell v. Mansell, 490 U.S. 581, 584-85, 109 S. Ct. 2023, 2026, 104 L. Ed. 2d
675, ___ (1989), the Supreme
U.S.C. §1408... may treat as property divisible upon divorce military retirement pay
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In holding that
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Mansell v. Mansell, 490 U.S. 581, 584-85, 109 S. Ct. 2023, 2026-2027, 104 L. Ed. 2d 675, ___ (1989)
(citations and footnote omitted).
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Mansell v. Mansell, 490 U.S. 581, 583, 109 S. Ct. 2023, 2025, 104 L. Ed. 2d 675, ___ (1989).
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may \[not\] treat as property divisible upon divorce military retirement pay
--a holding said to
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be applicable to both community property and equitable distribution states--,the Court
from McCarty accorded the spouse of
a member of the military
a state of thedisability benefitsportion of post-service retirementincome,
which disability benefitshad been initiated pre-divorce,as community property, the
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collectible directly from the government.
InHowell v. Howell, 581 U.S. 214, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (May 15,
2017),the Court also the federal law did not
preempta
disability benefits occurred subsequent to the entry of the decree.The context and
rationaleofHowellhave been described as follows:
...Years after
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...
former spouse then procured from the state court an order that the veteran ensure that she
..TheHowell
subsequently increase ...the amount the divorced spouse receives each month from the
... Citing its interpretation of the Act in Mansell, the Court
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Mansell v. Mansell, 490 U.S. 581, 584 n.2, 109 S. Ct. 2023, 2026 n.2, 104 L. Ed. 2d 675, ___ n.2
(1989).
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Cf. Casas v. Thompson, 42 Cal.3d 131, 720 P.2d 921,228 Cal. Rptr. 33(1986).
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Phillips v. Phillips, 347 Ga. App. 524, 529, 820 S.E.2d 158, 163 (2018) (citations omitted).
Howell, more than 60% of the states held thatMansell and the USFSPA
did not apply to post-
Note, A Change in Military Pension Division: The End of Court-Adjudicated IndemnificationHowell v.
Howell, 44 Mitchell Hamline L.R. 1064, 1072-73 (2018). Pennsylvania was said to be among these. See
Morgante v. Morgante, 2015 PA Super 145, 119 A.3d 382; Hayward v. Hayward,2005 PA Super 44,868
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In so holding, theHowellCourtcautionedagainst adoptionof alternative
of marital property.Howellv. Howell,581U.S.214, 222,137 S. Ct.1400, 1406,197 L.
Ed. 2d 781, ___(May15, 2017). In this regard,the Court referencedfederal interestsin
Id.at 222, 137 S. Ct. at 1406, 197
L.Ed. 2d at ___;cf. McCartyv. McCarty,453U.S. 210,101 S.Ct. 2728, 69 L. Ed. 589
(1981) (recitationof federalinterestspromotedby exemptionof military retiredpay
under earlier federal statute).
In applying the holding of Howell to a pre-Howell equitable distribution order, our
court declined to was intended to be
regardedasprospective only.
(denying petition for contempt and special relief premised upon non-retroactivity
ofHowelland/or propriety of alimony revisionbased on changed circumstances).
However,indeclining to grant relief to the former military spouse inBraxton,we
distinguished the case of Bloom v. Bloom, No. 255 of 1991, G.D. (Fayette County,
September 8, 2016), 1443 WDA 2016, 2017 WL 3225862 (Pa. Superior Ct., July
31, 2017), wherein the court ordered indemnification on the basis of an agreement of
the parties deemed to contemplate the same. .
A Change in Military
Pension Division: The End of Court-Adjudicated IndemnificationHowell, v. Howell, 44 Mitchell
Hamline L.R. 1064, 1074.
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Of the Bloom implicit reconciliation of a contractually-premised
indemnification order with the proscription discerned in Howell on court-adjudicated
indemnification, one commentator has stated the following:
. . . -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 \[disability benefits\].
The Superior Court of Pennsylvania correctly affirmed.
Note, A Change in Military Pension Division: The End of Court-Adjudicated
IndemnificationHowell v. Howell, 44 Mitchell Hamline L.R. 1064, 1089 (2018). This
reconciliation is premised upon the recognition that
. . . a duty to indemnify, but
another matter entirely to require a litigant to perform what he has promised in a contract.
2 Mark E. Sullivan, The Military Divorce Handbook: A Practical Guide to Representing
Military Personnel and Their Families 691 (3d ed. 2019).
This contractual approach to the issue has been adopted by a number of courts.
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and that
Howell makes clear that state courts cannot simply order a military spouse who elects
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the
Supreme Court of Alaska has Howell does not preclude one spouse from
agreeing to indemnify the other as part of a negotiated property settlement. Nor does
Howell Jones v. Jones, 505 P.3d 224,
230 (Alaska Supreme Court
spouse to enforce marital settlement agreement requiring indemnification in event of
conversion of retirement pay to disability benefits).
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Bloom preceded the decision in Howell,
affirmance of the decision occurred after it.
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Jones v. Jones, 505 P.3d 224, 226 (2022).
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Jones v. Jones, 505 P.3d 224, 230 (2022).
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Similarly, the Supreme Court of Nevada, while acknowledging that Howell and
Mansell direct that state courts lack the authority to treat disability pay as community
property and to divide it in a divorce disposition held that these decisions do not bar
parties themselves from taking into account the possibility that one divorcing spouse may
elect to receive disability compensation in the future and structuring the divorce decree
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in this regard\] Martin v. Martin, 138 Nev.
786, 792, 520 P.3d 813, 819 (2022) ( \[based on a
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determination that federal law \]
enforcing indemnification provision in divorce decree).
Likewise, the Supreme Court of Virginia, noting (a) Mansell nor
Howell involved a property settlement agreement that contained an indemnification
provision . . . \[and that\] neither opinion can be read as addressing the enforceability of
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such a provision, (b)
disability pay in any manner he or she sees fit, provided the money is paid directly to the
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and (c) that a consensual military qualified domestic relations order was a
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species of property settlement agreement, declined post-divorce relief to a military
retiree where the order relating to a division of military retired pay provided for
indemnification as follows:
The parties have agreed upon the level of payments to \[Wife\] to guarantee income to her,
based upon military retired pay with a deduction for disability compensation, resulting in
\[Wife's\] share equaling $1,202.70 per month. \[Husband\] guarantees the level agreed upon
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Martin v. Martin, 138 Nev. 786, 791, 520 P.3d 813, 818 (2022).
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Martin v. Martin, 138 Nev. 786, 788, 520 P.3d 813, 816 (2022).
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Yourko v. Yourko, 302 Va. 149, 158, 884 S.E.2d 799, 804 (2023).
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Yourko v. Yourko, 302 Va. 149, 159, 884 S.E.2d 799, 804 (2023).
\[did\] not dictate the source of the indemnification payments . . . \[and that as such the retiree was\]
; it also noted that the record did
not indicate that the source of the indemnification payments would have to be the disability benefits. Id. at
161, 884 S.E.2d at 805
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Yourko v. Yourko, 302 Va. 149, 159, 884 S.E.2d 799, 804 (2023).
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by the parties and agrees to indemnify and hold \[Wife\] harmless as to any breach hereof.
Furthermore, if \[Husband\] takes any action, including additional waiver of retired pay for
disability compensation which reduces the former spouse share she is entitled to receive,
then he shall indemnify her by giving to her directly the amount by which her share or
amount is reduced as additional property division payments which do not terminate upon
her remarriage or cohabitation. \[Husband\] hereby consents to the payment of this amount
from any periodic payments he received (such as wages or retired pay from any source)
and this clause may be used to establish his consent (when this is necessary) for the entry
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of an order of garnishment, wage assignment, or income withholding.
Yourko v. Yourko, 302 Va. 149, 884 S.E.2d 799 (2023) (reversing order
supporting
and military pension division order on theory federal law invalidated indemnification
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aspect of agreement).
Application of law to facts. It is apparent in this case that the parties were aware of
Mansell and Howell and
contractually agreed upon a remedy by which the status quo could be preserved as to
equitable distribution by way of indemnification on the part of Defendant in the event he
elected to receive disability benefits.
Based upon the foregoing principles of contract law, and the rationale of the cases
cited above,
, read in conjunction with their consensual military
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qualified domestic relations order, will be granted.
ORDER OF COURT
AND NOW, this 26th day of January 2026, upon consideration of the Petition for
Enforcement of Marriage Settlement Agreement and Military Qualifying Order, filed by
Plaintiff on July 16, 2025, the petition is granted and Defendant is ordered to indemnify
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Yourko v. Yourko, 302 Va. 149, 154, 884 S.E.2d 799, 801 (2023).
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By citation to these cases, it is not meant to imply that a diversity of opinion does not exist as to the
issue presented. See, e.g., Vlach v. Vlach, 556 S.W.3d 219 (Tenn. Ct. App. 2017).
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While not dispositive of the issue, it is noted that, as in Yourko, the record lacks any evidence that no
source is available to Defendant for the reimbursement other than the disability compensation benefits.
See note 37 supra.
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Plaintiff for the loss incurred by his election of military disabilitybenefits, including
payment within 60 days of the date of this order of accumulated arrearages.
A HEARING is scheduled for Monday,February 23, 2026, at 10:30 a.m.,in
fees.
BY THE COURT,
________________
Carrie E. Hyams, J.
DISTRIBUTION:
Jane Adams, Esq.
17 W. South Street
Carlisle, PA 17013
Attorney for Plaintiff
Marc A. Scaringi, Esq.
SCARINGI LAW
2000 Linglestown Road, Suite 106
Harrisburg, PA 17110
Attorney for Defendant
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