Vipers Vietnam Veteran Message Board: Alimony award of disability question settled.

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Alimony award of disability question settled.

Posted by haiki on 6/21/2006, 3:54 pm
172.165.61.159

It has been indicated that Michigan 19th District Circuit Court Judge James M. Batzer has, because of the United States Supreme Court veterans' disability benefits, child support ruling in Rose v. Rose, he was re-thinking his Murphy v. Murphy court order (1/4/06) “..concluding that it could not consider the Veterans’ Administration (VA) [disability] benefits of the defendant”. While doing research, discovered something that was right there all the time, specifically 38 USC 5301. Contrary to the conclusion reached in Rose v. Rose by the U.S. Supreme Court (1987) in the question of congressional intent. Here are just three references to Congress' intent, as determined by the United States Supreme Court in arguing Rose v. Rose.
(1.) (d) Provisions of the Child Support Enforcement Act, which provide that moneys payable by the Government to any individual are subject to child support enforcement proceedings (42 U.S.C. 659(a)), but which specifically exclude VA disability benefits, do not establish a congressional intent to exempt such benefits from legal process. "....
(2.) On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has `positively required by direct enactment' that state law be pre-empted.
(3.)we conclude that Congress would surely have been more explicit had it intended the Administrator's apportionment power to displace a state court's power to enforce an order of child support.
The State of Tennessee in following up on the United States Supreme Court's Rose v. Rose ruling, the following 2 paragraphs of veterans' benefits references are 'notes based on decisions', having been included in Tennessee Title 36, Domestic Relations. To clarify the understanding of veterans benefits decisions in divorce actions, according to the ruling in Rose v. Rose.
44. - Veterans' Benefits.
There is no indication that congress intended the veterans' administration to make child support determinations contrary to the determinations of state courts. The interest in uniform administration of veterans' benefits focuses, instead, on the technical interpretations of the statutes granting entitlements, particularly on the definitions and degrees of recognized disabilities and the application of the graduated benefits schedules. Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987).
An exception to the federal prohibition against attachment, levy, or seizure of veterans' benefits would not undermine the federal purpose in providing these benefits. Therefore,...we conclude 3101(a) [5307]does not extend to protect a veteran's disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support. Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987).
Some Code references (internet) mentioned in the U.S. Supreme Court ruling, as well as other Code references were indicated incorrectly, perhaps purposely, due to typo, or confusion. I have bracketed the correct Code number. For example, from Rose v. Rose, (c) State-court jurisdiction is not pre-empted by 38 U.S.C. 3101(a) [5301], which provides that veterans' benefits payments made to, or on account of, a beneficiary, shall not be liable to attachment, levy, or seizure. 38 USC 3101 refers to CHAPTER 31--TRAINING AND REHABILITATION FOR VETERANS WITH SERVICE- CONNECTED DISABILITIES Sec. 3101. Definitions.,
Section 5301 is explicit, as to Congress' intent, and does appear to protect veterans' disability benefits. "Nonassignability and exempt status of benefits (a) 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, and such payments made to, or on account of, 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. The preceding sentence shall not apply to claims of the United States arising under such laws nor..."
Under 38 USC 5301 Congress indicates that the Supremacy Clause does indeed apply. If benefits that are not assignable, shall be exempt, from seizure, etc., shall not apply to claims of the United States under such laws, who's claims, other than the United States are they referring to?
Yes, 5301 says the United States can claim owed taxes, and debts from the veteran, this is the exception. But Congress had written this as law for someone other than the United States, explaining, except for the United States, this law applies. And the question is, applies to who? Clearly, the States, and anybody else. 5301 refers to State actions that are not authorized by Congress, This... was the intent of Congress!
Because of the United States Supreme Court's ruling hinged on the reference of the "intent of Congress" in Rose V. Rose, finally, the U.S. Supreme Court has made clear to state courts this intent. That payments, administered by the Secretary to the veteran shall not be assignable, except to the extent specifically authorized by law, are exempt from attachment, or seizure, under any legal or equitable process. This is no longer an argument veterans have to fight over.
In Rose v. Rose, the Supreme Court, relying on United States statutes, used words, such as, “we are not persuaded”. Tennessee's statutes suggesting "there is no indication.." In other words an opinion... left open to interpretation. But nothing to “indicate unequivocally” that a veteran's disability benefits are not provided solely for that veteran's support....until now. As you see, 5301 provides the criteria, and the proof that Congress had specifically provided that veterans' disability compensation is exempt.
When the U.S. Supreme Court argued Rose v. Rose, they got it wrong. How wrong? 5301 was not even mentioned in Rose v. Rose, and strangely left out of the brief for the United States in the Amicus Curiae supporting appellant. However, it doesn't make any difference, as 5301 is, and has been the intent of Congress. Tennessee, in arguing, conveniently left out 5301. Which included, "The preceding sentence shall not apply to claims of the United States..." The only thing that can be done in future cases is to bring up, and argue strongly, and correctly 5301, and against the Supreme Court's and Tennessee' version of Rose v. Rose. We must remind those with whom we argue, it was the United States Supreme Court... in Rose v. Rose that brought up "the intent of Congress". 38 USC 5301 is the law of the land, therefore... the intent of Congress.
Does the court look at these laws independently, or rather argue on the basis of what both sides give them? The answer,.... it's unbelievable, and inconceivable how 38 USC 5301 was not even thought of, or considered by the United States Supreme Court. From the book, "The Brethren" Inside the Supreme Court, by Bob Woodward, Scott Armstrong. These are references to the research work done by the U.S. Supreme Court law clerks, "...basis for yet another draft, and he quickly sent his senior and most trusted law clerk back to work."......"he assigned a law clerk to prepare a detailed research memorandum on the pertinent law"....."his research indicated that they had the power to set forth any remedy they desired necessary".."had his clerk's massive research memorandum printed and presented." I ask, why was 38 USC 5301 ignored, left out? Veterans' can only speculate as to the many reasons.
1986 U.S. Supreme Court majority opinion, which holds true today, concluded using the words of Justice Brandeis, commenting on the presumption of stability in statutory interpretation..."Stare decisis is usually wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right." Charlie Wayne Rose a Vietnam veteran, blind in one eye, a triple amputee, unfortunately, and sadly, lost this case, because, "..it is more important that the applicable rule of law be settled than that it be settled right."
Court of Appeals of the State of Oregon. 2/10/05. Karen M. Landis v. James E. Landis. DR 0203154,A123666. "In McCarty v. McCarty...the United States Supreme Court held that military retirement pay was not divisible . This decision, however, is for Congress alone."
Now, we have the ammunition, to fight these state judges and their awarding of veterans' disability compensation as part of any divorce decree. This is now every veterans’ argument. We did not bring up “intent“. The United States Supreme Court in arguing Rose v. Rose, looking for the "intent of Congress" brought it up. Finally explaining definitively for veterans’ once and for all, what was missing. They gave it to us. 38 USC 5301,...it was there all the time. And all the time the U.S. Supreme Court claiming, "we are not persuaded", and Tennessee suggesting "there is no indication".