In Re the Marriage of Wherrell

Knudson, J.,

dissenting: I respectfully dissent from the majority’s holding in this appeal. The question in Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989), was whether *171state courts, pursuant to 10 U.S.C. § 1408 (2000), could treat as divisible property upon divorce, military retirement pay waived by the retiree in order to receive veterans’ disability benefits under 38 U.S.C. §§ 1110, 1131 (1994). Here, it is uncontroverted that Wesley’s lump sum settlement does not constitute veterans’ disability benefits under 38 U.S.C., nor has he waived any retirement pay.

The district court in a well-reasoned opinion found in material part:

“Mr. Wherrell is not receiving veterans disability benefits. In fact, Mr. Wherrell testified that he does not intend to apply for them and that even if he would apply for such benefits, he would receive no more than a ten percent disability. In this instance, Mr. Wherrell has not waived military retirement pay in order to receive veterans disability benefits. He received severance pay relating to his separation from naval service. As he was initially informed when placed on the [Temporary Disability Retired List], this severance pay was available because of his eligibility under the Temporary Early Retirement Authority. The nature of the benefits paid were defined by the terms of his placement on the Temporary Early Retired List on March 29,1995 and the election he made when faced with returning to active service or retiring with separation severance pay. The funds are subject to this Court’s jurisdiction and may be divided.”

The district court correctly made the subtle distinction required under federal law, distinguishing veterans’ disability benefits from retirement severance pay based upon disability. Wesley was afforded early retirement from the military because of disability with his severance pay calculated under 10 U.S.C. § 1212(a) (2000). Appropriately, Wesley received a federal income tax form 1099-R because the distribution was not exempt from the payment of income taxes. I completely agree with the district court that neither 10 U.S.C. § 1408(a)(4)(B) nor the Mansell holding preclude division of Wesley’s lump sum retirement payment by the district court. I would affirm the district court upon this issue and decide the remaining issues presented on their respective merits.