Alimony award of disability question settled.

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. By reference to the paragraph, sentence, and reading of, "The preceding sentence shall not apply to claims of the United States..." 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!

This is something which has been argued by veterans' all along. But in nearly every case it has been ruled against. Why? Because the paragraph can be deceiving. In a quick reading of the paragraph, it is glanced over, focusing mainly on non-assignability, exempt, etc. To be used by veterans’ in court to fight over. Nothing else was needed. Except... the last sentence! 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 according to state community property laws, because such division would harm a clear and substantial federal interest in securing veterans' financial secutiry. Recognizing the adverse implications of the decision for many veterans' spouses, the Court wrote, "Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. 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".

Perfect example of state court abuses.
Illinois Iroquois County Circuit Court wants to send disabled Vietnam veteran, former Watseka resident, Ron Ehlers to jail for contempt. For failing payment of yet another, recently signed court ordered $15,000. Case # 97 D 73. This despite Mr. Ehlers completing his original court ordered 55 month alimony payment of Veterans' Administration compensation. All the while, being unaware, that payment of a Veterans' Administration disability compensation is not only against Federal law (38 USC 5301), but Illinois case law precedent, Wojcik v. Wojcik (No. 03-D-2709) Dupage County, Illinois. Mr. Ehlers, following Illinois case law, federal law, has completed his court ordered obligation, will not comply.

Ron Ehlers while on patrol in Vietnam took the majority of 30 caliber bullets and a grenade in both legs. He was operated on again recently, during his contempt of court hearing Oct. 12th, 2006. Therefore, even if he could, he would not attend. His lawyer, also unaware of federal law, or Wojcik, having just recently received information for his defense, offered no argument. But it was Vietnam veteran Ron Ehlers, through his military service, had defended her. The judge, taking his medical condition into consideration, re-scheduled for December.

Mr. Ehlers, for several years has established his home in Missouri. Do veterans' want to see a Vietnam veteran, who not only obeyed his duty to his country, followed the law, complied, and completed his court ordered obligation, go to jail? Veterans’ need to know.
Ask Chief Judge Clark E. Erickson Iroquois County 21st Judicial Circuit Court, 450 E. Court St., Room 109, Kankakee, Illinois, 60901, which law is it going to be, Illinois law, or Iroquois County law?

When, as it concerns our veterans, and those veterans just returning, is enough, enough?

A disabled veteran pays,...... and pays,......and pays.
==
Ron Ehlers, in his divorce action, received a suggestion from his attorney, "I do have a female attorney in Illinois who said she would be willing to help me if I can show her proof of certain divorce cases where the disabled vet won and the ex was not allowed our disability money."
==
Bingo! My letter to Iroquois County Circuit Court Judge Schmidt stated Illinois case law, Wojcik v. Wojcik, as well as federal law. Ron Ehler's lawyer received a copy of the letter from Judge Schmidt. After which she writes Ron, "My initial research finds that despite what federal law states, the trial court may properly treat a veterans' present and future disability benefits as income in determining your obligation to pay alimony or maintenance." Illinois case law Wojcik v. Wojcik, this was not good enough. Wojcik cited Hisquierdo, Railroad Retirement Act, Crook, Social Security Act, Uniformed Services Former Spouses' Protection Act (USFSPA), these were not convincing for a young lawyer from Iroquois County Illinois. Nor was it important enough to bring it to the attention of the judge at Ron Ehler's recent contempt of court hearing. Or is there something else going on here?
==
Now, what good lawyer’s do, in a letter to Ron Ehlers, is cite exactly what was found in this initial research. But you see, although having this secret information, to see it there would have been another hourly charge.
==

haiki
OK so whats the scoop here? Have you been doing battle with the ex wifes lawyers?

Reply to Grunny; Just trying to what I can for for my fellow veterans. I have found state court judges not only make mistakes, but violate state law, and rule contrary to actions and benefits that are allowed state employees'. I just like to remind those judges, veterans are watching. Hoping someday that finally this issue of using exempt disability compensation in alimony awards is resolved. Which Congress reluctantly refuses to get into.

Here is a perfect example of how a law is used improperly, as I see it, to convey the idea the law supports their position in awarding alimony, or garnishment. The following is my recent follow-up with Gordon .
=
6/3/2007 Gordon; Yes, I was stumped, and stopped by the reference that was made to 42 USC 659. However, I've been re-thinking. What follows is my take on 42 USC 659.
=
Your Friend of the Court, Nigel Crum, stated, "You state correctly, that 42 USCS 407 is clear in stating that these benefits cannot be garnished. However, there is an exception, that the law consents to income withholding from SSD for the purpose of child support or alimony." 659 starts out stating , "Notwithstanding any other provision of law including section 407..."
=
Contrary to Mr. Nigel, there is no exception to 407 or 5301. 596 does not negate or reinforce court ordered law. Exception is either accepted or rejected. It does not consent the court to income withholding. 596 is a yet to be determined law that may be required in the fulfillment of a court determination that is accepted.
=
Title 42 U.S. Code as of: 01/22/02 Section 659. Consent by United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations
=
definition. CONSENT; to give assent, or approval.
=
42 USC 659 being law, it consents to withholding, however, it is not the authority or justification by a court to the legality of the taking of a veterans compensation without arguments as to what is truly the law as determined in a particular case. In other words when plaintiffs arguments point to 659 as the law in the sanctioning, or the right by law, in awarding of alimony, it is not the proof relied in law, justifying an award, notwithstanding (in spite of) all other law. 659 is not the alimony, garnishment law determining, or justifying the taking of moneys. 659 is only the authorization for the United States to make moneys available after the court has argued its case.
=
Gordon, you can state to Mr. Crum, in what I have determined, and what he, and others have mistakenly believed, 659 is not the exception upon which he relies. The law is not, and does not, for the purpose, justify any court to authorize withholding, notwithstanding all other law, merely on a law that pertains to the consent, and authorization for United States to make monies available. This follows only, and after the legality of all other law has been adjudicated. Then, and only then can 659 be the last piece in finalizing any award.
=
The last piece of the puzzle being,42 USC 659, “...to withholding in
accordance with State law enacted pursuant to subsections (a)(1)
and (b) of section 666 of this title and regulations of the
Secretary under such subsections,....
=
With respect to notice to withhold income pursuant to subsection
(a)(1) or (b) of section 666 of this title, or any other order or
process to enforce support obligations against an individual (if
the order or process contains or is accompanied by sufficient data
to permit ....”
=
Therefore, those laws which protect the veteran, 38 USC 5301, and 42 USC 407 are, in my opinion, are first and foremost in determining a veterans rights, and not a 659 law, a law that is irrelevant, having nothing to do with the courts determination of a veterans rightful compensation benefits under those federal laws. Again, 659 is authorization for the United States to release monies according to the court judgment and nothing more. 42 USC 659 is not the first law one goes to in determining a veterans rights but only a law required by the United States in processing the administration the courts determination according to law.
=
[Here I made a stab at defining the meaning of Notwithstanding.] Notwithstanding any other provision of law...., meaning the courts in understanding, and consideration of 407 and Title 38 USC 5301, must follow the procedure law as described in 42 USC 659, in the event withholding is determined.
=
Briefly......., Title 42 U.S. Code as of: 01/22/02 Section 659. Consent by United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations
=
"(a) Consent to support enforcement
Notwithstanding any other provision of law (including section 407
of this title and section 5301 of title 38), effective January 1,
1975, moneys (the entitlement to which is based upon remuneration
for employment) due from, or payable by, the United States or the
District of Columbia (including any agency, subdivision, or
instrumentality thereof) to any individual, including members of
the Armed Forces of the United States, shall be subject, in like
manner and to the same extent as if the United States or the
District of Columbia were a private person, to withholding in
accordance with State law enacted pursuant to subsections (a)(1)
and (b) of section 666 of this title and regulations of the
Secretary under such subsections, and to any other legal process
brought, by a State agency administering a program under a State
plan approved under this part or by an individual obligee, to
enforce the legal obligation of the individual to provide child
support or alimony."

so in a nutshell, any income regardless of where it comes from, can be set aside with regards to child support and or alimony?

No, it can't be set aside, it is not that easy. I'm just bringing up the fact, as I see it, that 659 is not justification, for the taking of a veterans SSD and VA disability benefits in a court proceeding, for the reason it's not a law to seize or award alimony or garnishment. It is for administration purposes only. As you probably are aware, state courts will claim state rights. This you must overcome, because they don‘t care about federal law. I bring this up in the event should, in court arguments 42 USC 659 is brought up, which I don't think they would, this has nothing to do with any determination as to any judgment, in my opinion. In each state court veterans will continue to fight alimony or garnishment. Child support will always have to be paid.

The problem in these veterans alimony award cases is there are Federal and possibly state laws which protect the veterans benefits, which others want to take away. If there were not these laws, which many state courts accept, veterans would not be arguing their case. The problem is state court judges. It seems to me, many judges ignore, Federal law, state law, or it’s statutes. As far as the veteran is concerned, the law is the law. And being law, the veteran has every right to fight for it, as he should. Your job would be to find them, via the internet search. You will be surprised by what you may find. State laws that support you, and run contrary to a judges ruling.

In order to use the information that follows, and improve and build upon your case I recommend, you must, search for precedent laws, cases. When searching using search word "veterans", in your state laws, state constitution, legislative intent, etc. Also search national guard, how do they treat disability benefits, and state case divorce law involving veterans, etc. Using search words as veterans, veterans' disability, military divorce. Anything to tie you, the veteran, to your particular case. When searching veterans' divorce in your state, you will find references to some cases involving military disability, in cases you happen upon. Use this information, even if only a name. Do a search, if the reference contains court information, docket number, year, etc. you may get the whole case using this information. If only Gray v. Gray, for example, you will get one response. To get the complete case, it may cost you. If you can somehow find the first names, Lillian Cecelia Gray v. Ivan Gray you may get the whole case, without having to pay for it. This is what you need. Here, is another example of my searching, in presenting a letter to a Kentucky judge. "How... can it be, that 403.190 Disposition of Property be part of Kentucky statutes providing and allowing disability allowances be excepted from classification as martial property, yet your not allowing a veterans' disability that same exemption? "

It has been, and is going to be a tough haul. But you have got to use all the ammunition you can find. There has been success in one Georgia case using this approach. In Michigan because another veteran fights their case, the judge is so confused, he is unsure, and has recommended this to another court.

I hope this explains.