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157705 - Deborah Foster v Ray Foster

Deborah Lynn Foster,


Adam Kruppstadt





(Appeal from Ct of Appeals)



(Dickenson – Slagle, T.)


Ray James Foster,


Carson Tucker





In 2008, the parties’ consent judgment of divorce was entered, awarding plaintiff-wife 50% of defendant-husband’s military retirement benefits, but no part of his military disability benefits, which are not considered marital property under federal law.  Defendant thereafter became eligible for and began receiving increased disability benefits, which in turn reduced his retirement benefits and the amount plaintiff received.  When defendant failed to make up the difference to plaintiff (as contemplated by the divorce judgment), the trial court held defendant in contempt of court and ordered him to make payments toward his arrearage.  Defendant appealed, and the Court of Appeals affirmed, relying on Megee v Carmine, 290 Mich App 551, 574-575 (2010), which held that “a military spouse remains financially responsible to compensate his or her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment’s property division when the military spouse makes a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment.”  The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Howell v Howell, 581 US ___; 137 S Ct 1400; 197 L Ed 2d 781 (2017), which held that a state court may not order 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.  On remand, the Court of Appeals again affirmed, holding that Howell did not overrule Megee.  The Supreme Court has granted leave to appeal to address:  (1) whether the principles of Howell apply to combat-related special compensation (CRSC), 10 USC 1413a; (2) if so, whether Megee remains good law in light of Howell; and (3) whether the Court of Appeals was correct in upholding the Dickinson Circuit Court’s November 6, 2014, contempt order against defendant. ​