California Court of Appeals, Fourth District, Second Division
In re the Marriage of JANICE R. and ROBERT J. CASSINELLI. JANICE R. CASSINELLI, Respondent,
ROBERT J. CASSINELLI, Appellant.
FOR PARTIAL PUBLICATION[*]
from the Superior Court of Riverside County No. D54420.
Christopher B. Harmon, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Offices of Ellen C. Dove and Ellen C. Dove for Appellant.
M. Clark for Respondent.
RAMIREZ P. J.
1964, Robert J. Cassinelli and Janice R. Cassinelli were
married; in 1986, they were divorced. In the meantime, after
20 years of service, Robert had retired from the United
States Air Force. In a stipulated judgment, the trial court
awarded Janice her community property interest in
Robert's military retired pay.
forward 26 years. In 2012, it was determined that Robert had
a combat-related disability. As a result, he became eligible
to receive both veteran's disability benefits and
combat-related special compensation (CRSC); to do so,
however, he had to waive his retired pay. Before the waiver,
Robert received $791 a month and Janice received $541 in
retired pay (taxable). After the waiver, Robert received $1,
743 a month in veteran's disability benefits and $1, 389
a month in CRSC, for a total of $3, 132 (tax-free); Janice
received zero. As a result, the trial court ordered Robert to
start paying Janice $541 a month in permanent and
nonmodifiable spousal support.
appeals. Among other things, he contends:
Under overriding federal law, the trial court lacked
jurisdiction to make any award to Janice based on
Robert's receipt of either veteran's disability
benefits or CRSC.
trial court erred by using spousal support as a remedy for
the loss of a community property interest.
trial court erred by making its award of spousal support
Because the judgment dividing the community property was
long-since final, the trial court could not give Janice any
remedy for the loss of her community property interest in the
of Robert's income was “non-attachable”
(i.e., exempt), and therefore he could not be required to use
it to satisfy Janice's claim.
Based on the relevant factors (see Fam. Code, § 4320),
Janice was not entitled to spousal support, and the trial
court abused its discretion by finding otherwise.
agree that federal law prohibited the trial court from
compensating Janice, in the form of spousal support or
otherwise, for the loss of her share of Robert's retired
pay. However, it could properly modify spousal support,
provided it did so based on the relevant factors and not as
compensation. Accordingly, we will reverse and remand with
directions to hold a new trial on Janice's request for a
modification of spousal support.
AND PROCEDURAL BACKGROUND
and Robert were married in 1964. At that time, Robert was on
active duty as a member of the United States Air Force. After
20 years of service, he retired from the military with the
rank of Technical Sergeant.
1985, after 21 years of marriage, the parties separated.
Janice then filed this marital dissolution proceeding.
August 1986, pursuant to stipulation, the trial court entered
a final judgment. It provided: “The Court finds that
[Janice] has a 43.1% interest in [Robert]'s United States
Air Force Pension, and that she shall receive the sum of Two
Hundred Thirty ($230) Dollars per month, or 43.1% of said
pension, whichever sum is greater. Said payments to commence
on May 1, 1986, providing that [Robert] shall make such
payments to [Janice] until such time as the United States Air
Force is able to process [Janice]'s claims so that her
share of the military pension can be paid directly to
her.” The judgment reserved jurisdiction over the issue
of spousal support.
Robert held several jobs, primarily as a teacher. He
developed ischemic heart disease; in 2011, he had a quadruple
bypass. In 2012, he took a medical retirement from teaching.
His ischemic heart disease was presumed to be due to his
exposure to Agent Orange in Viet Nam. (See 38 C.F.R. §
3.309.) Thus, also in 2012, the Department of Veterans
Affairs determined that he had a service-connected
disability, making him eligible for disability benefits. It
was further determined that his disability was
combat-related, making him eligible for CRSC.
2013, Robert elected to receive CRSC. Before his election, he
was receiving $791 a month of his retired pay and Janice was
receiving $541 a month of his retired pay. After his
election, he received $1, 743 a month in veteran's
disability benefits and $1, 389 a month in CRSC, for a total
of $3, 132 a month. These benefits were nontaxable. Janice
received zero. However, when Robert made his election, he was
not aware that it would affect Janice.
time of trial, Robert was 72 years old. His monthly income
Veteran's disability benefits
State teacher's disability benefits
Social security benefits
His total monthly expenses were
was 71 years old. She worked part-time for Rite Aid. Her
monthly income consisted of $1, 673 in wages and $1, 568 in
social security, for a total of $3, 286. After paying her
monthly expenses, she testified, “[s]ome months I have
[$]100, some months I have $50 [left over].”
when Janice stopped working, she would lose more than half
her income, although she could get another $200 a month
(“if I'm lucky”) by drawing on $44, 000 in a
401(k) account and $15, 000 in an annuity.
January 2014, Janice filed a motion to modify the judgment by
ordering Robert to pay the amount of her share of his retired
pay as “non-modifiable spousal support.”
opposition, Robert argued: (1) the property division in the
judgment was final and could not be reopened; (2)
“[f]ederal law which supersedes state law... prohibits
the non-military spouse[']s participation in the
member's disability combat pay”; (3) “some or
all of [Robert's] income is protected from
attachment”; and (4) the relevant statutory factors
militated against an award of spousal support.
August 2014, Janice filed a motion for attorney fees.
January 2015, the trial court held a trial on both pending
motions. After the trial, at the trial court's
invitation, both parties filed supplemental declarations.
April 2015, the trial court issued a written ruling. It
acknowledged that, under federal law, it could not treat
Robert's retired pay as community property. However, it
ruled that it was not precluded from “tak[ing]
equitable action” to compensate Janice.
found that “[Robert's] voluntary election and the
resulting termination of [Janice's] share of the military
retirement” was a material change of circumstances. It
further found that it would be a “miscarriage of
justice” to allow Robert, acting unilaterally, to
increase his military-source income from $791 (taxable) to
$3, 132 (tax-free) while reducing Janice's
military-source income from $541 to zero. After discussing
each of the factors listed in Family Code section 4320, it
concluded that Janice was entitled to receive $541 a month in
trial court further found that, in 1986, when the original
judgment was entered, Janice had a reasonable belief that her
share of Robert's retired pay was non-modifiable. It