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Birmingham Bar Association Bulletin Winter 2015

Domestic Relations Charles H. Dunn, Boyd, Fernambucq, Dunn & Fann, P.C. Are Veteran Disability Payments “Income” for Purposes of Child Support & Alimony? I am sure that if I did more divorce work in the Anniston, Fort Rucker, Huntsville and Montgomery areas, the answer to this question would be a nobrainer. Although Birmingham does have an Air National Guard base and a local Veterans Affairs Office and Medical Center, I seldom encounter a client or adverse party in my divorce practice who is receiving military-retirement benefits, which may or may not include veteran disability payments. Years ago, I represented a fellow who was on active duty in the military. His child support and periodic alimony obligations were based, in part, on what his gross monthly income was at the time of his divorce. That same client recently came back to me seeking modification of these support obligations as he had been medically discharged from the military and had begun to receive military-retirement benefits. His military-retirement benefits included a taxable, military-retirement benefit amount and a separate disability payment from the United States Department of Veterans Affairs (“the disability benefit”). At the time he came to see me about a possible modification, an alimony arrearage had accrued. Unfortunately, we could not settle his case and had to resort to litigation. A significant part of the litigation centered on whether the amount of disability benefits the client received from the Department of Veterans Affairs, which was a part of his total monthly military-retirement benefit, could be considered “income” for child support and periodic alimony modification purposes and, further, whether the trial court could properly consider the disability benefits as available income to cure the accumulated arrearage. As our Supreme Court explained in Ex parte Billeck, 777 So.2d 105 (Ala. 2000), veteran disability benefits received in lieu of military-retirement benefits may not be considered as income of the obligor in determining an award of alimony. As noted in Ex parte Billeck, section 1408(a) (4) of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. §1408, preempts our state courts from including veteran disability benefits as income for purposes of calculating an alimony award. However, and this is critical, there must be evidence that the former service member is receiving these disability benefits in lieu of military-retirement benefits. However, Ex parte Billeck and Rose do not address whether veteran disability benefits may be considered as income to cure an alimony arrearage that was accrued due to the obligor’s contumacious actions. While one may conclude that if military-disability income cannot be considered when awarding alimony, it stands to reason that this same military-disability should not be considered as income accessible to cure an alimony arrearage, though our Appellate Courts have, thus far, not supported this conclusion. See: Goldman v. Goldman, 2140488 Ala. Civ. App. 9/11/2015. It is clear that so long as there is evidence that the disability benefits are being received in lieu of military-retirement benefits, our state courts cannot consider these benefits as income for alimony purposes; however, the same is not true for the calculation of child support. In Rose v. Rose, 481 U.S. 619 (1987), the United States Supreme Court held that federal law did not prevent a trial court from considering veteran disability benefits as a financial resource in setting the amount of a child support obligation. The Rose Court noted that “Congress clearly intended veteran disability benefits to be used, in part, for the support of veterans’ dependents.” 481 U.S. at 631. It further found that “state contempt proceedings to enforce a valid child support order coincide with Congress’ intent to provide veteran disability compensation for the benefit of both appellant and his dependents.” Id. In conjunction with Rose, Rule 32 (B), Ala. R. Jud. Admin., clearly defines “gross income” for purposes of calculating child support as “income from any source, and includes, but is not limited to, ….” Rule 32 then goes on to list some of the sources from which income may be derived. Notably, nothing contained within Rule 32 excludes veteran disability benefits from what may be considered “gross income” for child support calculation purposes. Therefore, in a contempt proceeding, it logically follows that nothing excludes these disability benefits from being considered by our state courts when determining and setting appropriate child support arrearage payments. G 10 Birmingham Bar Association


Birmingham Bar Association Bulletin Winter 2015
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