Howell v. Howell (15-1031)

argument 15-1031

Howell v. Howell

Supreme Court of the United States 53 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal question about the applicability of Mansell’s holding to all retirement‑pay waivers?

John G. Roberts 0:00

We'll hear argument next in Case 15-1031,

Mr. Unikowski 0:03

Howell v. Howell. Mr. Unikowski. Mr. Chief Justice, and may it please the Court, in Mansell v. Mansell, this Court held that the Uniformed Services Former Spouses Protection Act does not authorize State courts to treat waived military retirement pay as divisible property in divorce. The question in this case is whether Mansell's holding applies only to waivers that preceded the divorce or or whether it applies to all waivers, no matter when they occur. And we respectfully submit that the latter interpretation is correct. And I'd like to make two points this morning. One is that we think the text of the statute compels our interpretation. And the second is that we think our interpretation just makes sense.

Mr. Unikowski 0:45

So our first argument is based on the text. And I think it's just inescapable that what the State Court did here was divide petitioners' waived retirement pay. And I think that can be seen from the fact that if the State Court's order had simply just said, henceforth, petitioner's waived retirement pay is now divided. If those were the words of the modification order, there would have been no difference at all in effect than what actually occurred in the modification.

Ruth Bader Ginsburg 1:10

Suppose that what the Court had said is, taking a look at what the retirement pay is now, how much it is total, had specified then a dollar amount for the wife equivalent to what the half was before the disability benefits. That would be okay. And it takes disability later. She still keeps the amount that was awarded, the dollar amount.

Mr. Unikowski 1:41

So if the question was if the modification order had simply said you have to pay a dollar amount equal to the amount that you've waived, if that was the modification order, we think the same preemption concern would exist because that's the economic equivalent of a division of —

Elena Kagan 1:56

No, I think Justice Ginsburg's question is the original divorce decree here said the petitioner is entitled to and is awarded as her sole and separate property 50 percent of respondent's military retirement. If it had read, petitioner is entitled to $250 a month, period, full stop. To ensure that that is received by her, she'll get $250 a month from his military retirement pay.

Mr. Unikowski 2:39

So if that was a settlement, then I think that it would be enforceable. Our position today has nothing to do with the enforcement of settlements. In this case, the divorce court said that the settlement as written only authorized respondents to receive half of petitioner's pension. That's why it modified it. But if the original order had simply specified a dollar value per month, then we would have no objection to enforcing that in the same sense that if petitioner had agreed to an express indemnification provision and thereby waived his rights under the USFSPA, we think that litigation waiver would be okay, would be enforceable, just like any other waiver in litigation. So I do agree that if There is simply a dollar figure that petitioner had signed.

Mr. Unikowski 3:19

That would be unobjectionable. So could

Elena Kagan 3:21

she go back to court now and ask for a dollar figure instead?

Mr. Unikowski 3:26

I don't think so, because I think that that would be a modification imposed by the court. That would be — that petitioner never agreed to, so he's never waived this protection. She

Elena Kagan 3:33

can't go back into court. I thought in divorce courts you can go back and change circumstances and seek a modification of the monetary awards. Why can't she do that?

Mr. Unikowski 3:47

Well, I think the question is whether this particular type of change circumstance, which is a waiver of military retirement pay, authorizes this particular remedy, which is this indemnification

Anthony M. Kennedy 3:57

order. Is the answer that there's a difference in adjusting alimony payments and property settlements that have been

Mr. Unikowski 4:04

concluded? Yes, Justice Kennedy. Absolutely. We don't read the USFSPA as interfering with state courts' power over alimony. And I think we expressly say that in our reply brief. I mean, if respondent needed more alimony, the statute has the savings clause that expressly says that she can come back to court and get more alimony.