McCarty v. McCarty

LOCATION:Dames & Moore

DOCKET NO.: 80-5
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 453 US 210 (1981)
ARGUED: Mar 02, 1981
DECIDED: Jun 26, 1981

Mattaniah Eytan – on behalf of the Appellant
Walter T. Winter – on behalf of the Appellee

Facts of the case


Audio Transcription for Oral Argument – March 02, 1981 in McCarty v. McCarty

Warren E. Burger:

We’ll hear arguments next in McCarty v. McCarty.

Mr. Eytan, I think you may proceed when you are ready.

Mattaniah Eytan:

Mr. Chief Justice, and may it please the Court:

Richard John McCarty, the husband in a California divorce action, appeals the decision of the California Court of Appeal, First Appellate District; which we’ve had affirmed a Superior Court determination that the husband’s expectancy in receiving Army retired pay should be awarded in part to his ex-spouse.

The Court of Appeal took the position that the Superior Court had properly applied California law… and that’s a crucial matter in this entire case… and that having applied California law the expectancy in retired pay was indivisible and then divided the Army retired pay pursuant to established California formula.

The husband contended then and contends now that federal law prohibits such a result, and federal law not only applies but preempts California from making such a determination.

The facts in the case can very briefly be summarized.

The parties were married in Oregon in 1957 and were divorced in California, or at least they were separated in California, in 1976.

When the parties were married the husband was in medical school in Oregon.

He was a domiciliary of Oregon, as was his wife.

In his fourth year of medical school, the husband joined the Army and remained in the Army for the entire period up until the divorce.

After spending one year in Oregon he was transferred by the military to Pennsylvania, the District of Columbia, Texas, Hawaii, California, staying in each place for a number of years.

Before the Superior Court the husband contended that he was an Oregon domiciliary and that California could not apply its quasi-community property regime, which is encompassed in Section 4803 of the California Civil Code.

That’s a somewhat unusual provision which provides that property which is acquired by either party to a marriage while domiciled outside of California shall be treated as community property if the party would have been domiciled in California at the time of the acquisition of the property.

Once property is classified as quasi-community property, it then is treated as community property.

The issue before this Court is not the distinctive to community property matters.

The issue comes up in a wide variety of contexts whenever a community property state or another state that under equitable division of property, in the context of a divorce seeks to divide Army retired pay.

Now there is a threshold jurisdictional issue in this case, and by explaining what happened before the lower courts I can deal with that as a preliminary matter.

Before the Superior Court the husband submitted the decision in Hisquierdo v. Hisquierdo of the California Court of Appeals.

That decision was not terribly dissimilar from the decision of this Court in the same case, which came out sometime later.

Warren E. Burger:

Under California law, assume hypothetically that he had been a physician for General Motors or Du Pont all this time and had precisely the same experience.

Ultimately, would his pension be subject to division under the California community property law?

Mattaniah Eytan:


What makes this case so distinctive is that the California Court here improperly assumes that California law applies of its own force.

In your example, Mr. Chief Justice, there should be no question that California law has everything to say and federal law has nothing to say about the matter.

Federal law tells us nothing about the pension rights of someone who works for General Motors.

What we have here, however, is a very major federal interest.

We have here the exercise by the Congress of elaborate legislation pursuant to congressional war power authorities to raise and support armies.

Article I, Section 8, Clause 12.

The Congress has passed legislation which covers in great detail all elements of Army pay, Army retired pay, various annuity programs, and the like.

William H. Rehnquist:

Mr. Eytan, supposing that this is ten years prior to the divorce in this case and the husband is in the military.

He brings home his paycheck, it’s deposited in the bank account, and a house is bought with it and paid for by the time of the divorce.

Would it be your contention that that wouldn’t be subject to equitable division under the California formula?

Mattaniah Eytan:

No, I would not so contend.

William H. Rehnquist:

So that it’s just the in-the-future retirement pay and not the past accumulations that you’re arguing about?

Mattaniah Eytan:

Well, I would argue, of course, that the future element of it is very significant, but of course my argument goes way beyond that.

And if I can move then to what I consider to be the main part of the argument it will more fully answer your question.


Warren E. Burger:

Excuse me.

Just one more before we go on to that.

Then you implied that the Congress had established this elaborate scheme of compensation, which in part was to draw physicians into the service?

Mattaniah Eytan:


And others.

Warren E. Burger:

And other services too, but we’re dealing with a physician here now.

Congress certainly must not be unaware that most physicians coming in would have wives accompanying them.

Mattaniah Eytan:

Yes, Congress has directed its attention specifically on several occasions to the question, how to deal with the needs of wives.

It has done so on three occasions which resulted in legislation.

In 1957 Congress addressed this problem and decided that Army personnel should be put under social security.

Until then they weren’t, and of course the federal Civil Service and Foreign Service are not.

So that since 1957 Army personnel have been subsumed under social security in the way that when the Army man gets his paycheck, there’s a subtraction for social security and if the wife never works a day in her life and never accumulates any credits whatever toward social security benefits in her own right, she collects benefits, the ex-wife collects benefits–

William H. Rehnquist:

But she collects only a widow’s benefit, not the benefit of a retired worker under social security?

Mattaniah Eytan:

–Oh, no, under social security she collects the same benefits as the spouse.

William H. Rehnquist:

Which is a widow’s benefit, not that of the person who has worked, which are quite different.

Mattaniah Eytan:

No, I don’t think that’s correct, if I may respectfully dissent.

When he reaches the appropriate age there is a benefit to his spouse.

He doesn’t have to die for his spouse to get a benefit, nor does he have to die for his ex-spouse to get a benefit.

The only requirement in that regard is that they must have been married for ten years.

In addition, there are separate benefits, of course, for the widow.

And with respect to social security widow’s benefits there is an offset configuration which applies to other programs that operate in conjunction with social security and those are the annuity programs that I believe you had in mind.

There are annuity programs.

Mattaniah Eytan:

There is also social security for the widow, and there’s a combination, and at the top level if the widow gets the maximum amount of the annuity, she doesn’t get social security by an offset and she doesn’t get the maximum amount of the annuity she gets from social security.

But interestingly, there’s no offset as against the ex-spouse at all.

The offset is only as against the widow.

And the annuity program, you’re correct, is only to the widow.

Social security is not.

Now, the main point in all this, if one can cut through the heart, is that obviously California law cannot apply of its own force and effect.

This is a program established by Congress.

This is a federal entitlement.

There are very important considerations both to the national program involved.

There are very practical, direct consequences, and as Hisquierdo taught us and perhaps, more importantly, as we know from Clearfield Trust and its multiple progeny, that where important federal programs, important interests of the federal government are implicated, are involved, we look to federal law.

Now what does federal law tell us in this case?

If we had a civil service situation here, if we had a civil service husband, we would have direct federal law telling us what to do because the Congress has in Title V, Section 8345(j)(1) told us that you defer to the states and whatever the state rule is, you apply it.

The same thing is now true for the Foreign Service.

But the Congress has not done that for the military.

They have not passed a direct statement of their intention as to what federal law ought to apply and I would submit to you, the husband would submit to you, that the formula that the Congress has adopted for civil service cannot apply to the military, and I don’t think I’m overreaching by saying I don’t see how the Congress could pass such a law.

And the reason for that is that the husband’s status as a retired Army man doesn’t mean that he’s resigned his commission.

An Army man who retires remains a commissioned officer in the Army.

The consequences of that is that he’s subject to the Code of Military Justice forever.

William H. Rehnquist:

Well, but, the Congress passed the Code of Military Justice, didn’t it?

Mattaniah Eytan:

Yes, but the point that I’m trying to make, Mr. Justice, is that Congress could not… I don’t believe it could… I am making the argument to you that it could not pass the same kind of a formula enactment as it did to the civil service because the consequences for the Army, for the Army retirees, would be far different than for civil servants–

William H. Rehnquist:

You mean that a sensible Congress wouldn’t pass it, not that it doesn’t have the power to pass it?

Mattaniah Eytan:

–Oh, of course, it has the power to do anything it wants.

The point that I’m trying to make is that it could not follow that same formula.

Let me show you why.

We know that an Army retiree remains subject to recall at any time, and any time means any time.

It doesn’t mean national emergency, it doesn’t mean war, it means any time that the Secretary of the service says so.

And apropos of that, on December 12, 1980, the Congress reaffirmed this insistence that the Army retiree can be called up at any time.

I’ve mentioned in the reply brief that there is new legislation, so we’re not talking about any “porey” scheme going back a long time or some disused statute.

Now, at any time means that despite the fact that we have an all-volunteer Army today, as to the Army retiree the impact of this statute is conscriptive.

He has to go, and the reason he has to go is because he is still an officer in the Army.

Mattaniah Eytan:

If the Congress now were to pass a law–

John Paul Stevens:

Mr. Eytan, may I ask you a question, Mr. Eytan?

Supposing the retiree resigns his commission, does he lose his pension?

Mattaniah Eytan:


John Paul Stevens:

He does lose his pension.

He loses… well, may I correct you and call it retired pay?

He loses his retirement pay?

Mattaniah Eytan:


Now, the reason he loses his retired pay is because retired pay is not pay for, it’s not deferred payment for past services.

The federal rule, enunciated in some 16 cases which I call to the Court’s attention, including five opinions of this Court, is that retired pay is current pay.

It’s reduced pay for reduced services.

And that’s really the whole point, what did California do?

What does California always do?

It said that whatever the retirement benefits are, those are deferred payments for past services; and once it makes that decision, it treats Army pay the way it does the General Motors official.

William H. Rehnquist:

Well, Mr. Eytan, supposing on a divorce order to show cause for temporary provisions pending a final decision, the wife asks for $300 alimony.

The husband is an Army colonel.

Do you say that California can’t apply its own law there?

Mattaniah Eytan:

Certainly it can, and Congress has permitted that in express terms.

What the Congress did in that regard was really quite drastic, because in 1975 the Congress changed the whole scheme of things.

And had you asked me the question, what could the wife have done prior to 1975, I would have said that the wife would have a very tough time enforcing any California support order.

But, look, in 1975 the Congress said that when it comes to support, any kind of support… and there’s a long list in the statute; I’m talking about Title 42 of the Code, Section 659(a) and especially Section 662(c).

What the Congress said there was that when it comes to support payments, the wife armed with a state court award may proceed to garnishee the funds directly from the financial officer of the appropriate federal agency.

And ever since then we’ve had wives from California and elsewhere doing just that, and elaborate regulations implementing that statute have now been published.

So that matter has been taken care of by Congress in the very limited area of support.

And what the Congress did, just so that no one could mistake it, it distinguished carefully between support and property interest.

It stated in Section 662(c) of that legislation that when we say support, we mean alimony, alimony pendente lite and all the rest of it, child support payments, but we don’t mean community property awards, we don’t mean property divisions pursuant to the decrees of state courts that have equitable division; a very careful distinction.

So that, as we look at what the Congress did in 1975 you see that there as well as in social security amendments it had the spousal interest in mind.

Hisquierdo put it this way: when the Congress provided for a spousal award for the railroad retiree, it had something like a community concept in mind.

Indeed, I may point out a third instance where the Congress had support, and only support, in mind.

There is legislation that says that the Army man may make an allotment.

Mattaniah Eytan:

Again, for support purposes.

Everything deals with support, not property.

And what is the distinction?

We’re talking here about property rights, property rights that have no connection whatever with need.

My opponent essentially makes the argument, as do the amicus briefs, that spouses, ex-spouses have great need.

Their social security payments may come late, they have to wait a long time.

They need more; they get the runaround, or whatever.

But that’s a question of need, again, that’s a question of support.

The Congress has directed its attention to that several times and it’s come out with a formula.

That formula now gives the spouse more than she ever had, because the Congress went so far as to allow the United States to be sued directly.

But let me come again to what I consider to be the control issue.

This case is much simpler than Hisquierdo ever was, because in this case if we apply federal law as the California courts should have, the California courts should have stated that under federal law Army retired pay is current wages, reduced current wages for reduced services.

If that is so, the whole conceptual underpinning for the community property position evaporates, it doesn’t exist.

Now, what does the California court do?

It stubbornly applies California law in the sense that it says, let us see whether there is any express statement by Congress that bars us from first characterizing the property and then dividing it and deciding to do anything we want to do with respect to that property.

Now, that’s not the right rule.

The right rule has to be, what does federal law tell us that the appropriate rule should be?

I would concede that the federal rule might well be that courts should defer to state law.

That might be the correct rule, but that would then be a federal rule.

In our case the federal rule is clear beyond peradventure, because we had this Court speaking five times and for a hundred years.

The first decision on this was in 1881, and it stated very clearly that an Army man who was retired still wears the uniform, is still subject to the Code, the Code of Military Justice.

He gets his pay for staying in the service and jumping to attention and going back into the service when he’s directed.

Now, if the California court had done that, that would have been the end of the matter.

And I wouldn’t be here talking about the anti-assignment statute, the Social Security Act amendments, the spousal awards, and all that.

What the California court does, however, is it ignores the federal law, it gives it the back of the hand.

There is not a single intelligent analysis in any community property state as to the large body of federal law that says, look, this is not deferred compensation for past services; this is compensation for your staying eligible for recall.

It’s your compensation for doing all kinds of other things, which are set out in the brief.

I’d like to reserve the balance of my time.

Warren E. Burger:

As an economic matter, laying aside your statute–

Mattaniah Eytan:


Warren E. Burger:

–Isn’t every pension a form of deferred compensation?

Mattaniah Eytan:

I of course would agree with you for those pensions which do not require current services and most important those which do not have current liabilities.

Your question can’t be answered uniformly for the military retiree because the Congress has spoken to that point, and this Court has spoken, and the Court of Claims has spoken.

There is no authority to the contrary.

And if it were so that I could agree with you for Army retired pay, then and only then would we come to the question whether, despite the fact that this is a pension, aren’t there other economic considerations?

Aren’t there considerations concerning the operation of the Army?

Those are set out in the briefs at length.

Doesn’t the community property division or any equitable division really substantially disrupt the Army?

And of course, the answer to that is, yes.

Warren E. Burger:

Very well.

Mr. Winter.

Walter T. Winter:

Mr. Chief Justice; may it please the Court:

I would like to ask the Court’s indulgence for one moment while I read to you one short sentence quoting Mr. Justice Gardner, from the case of In re Marriage of Brantner, when he said,–

“A woman is not a breeding cow to be nurtured during her years of fecundity, then conveniently and economically converted to cheap steaks when past her prime. “

I think nothing is more appropriate than this particular phrase, when we are talking about the plight of the military wife, because the military wife’s situation is unique.

Unlike her sisters who are not military wives, she not only is supposed to be the companion, the homemaker, to bear and raise children, but the military wife has a very unique position in the military.

From the moment that she marries a military man, she becomes part of the military as much as if she herself were wearing that uniform.

She assumes the role of her husband.

If her husband is a lieutenant, she is the wife of a lieutenant.

She for all intents and purposes has to be subservient to the wife of the colonel.

And so it goes.

This is a very–

Harry A. Blackmun:

You would say the same thing about a military husband these days?

Walter T. Winter:

–Pardon me?

Harry A. Blackmun:

Would you say the same thing about a military husband these days?

Walter T. Winter:

Yes, I think it is, it is very definitely so.

But I think that what we have to do at the present time, Mr. Justice, is we have to recognize the fact that these women do serve and they are expected to serve, they are expected to participate in social functions.

They are even given guides,

“how to be a good military wife. “

They are left alone for months at a time; they lead nomadic lives; their moves are approximately two years apart, and this is extremely important.

Walter T. Winter:

So they cannot develop their own careers, they cannot develop their own potential.

They are required to stabilize the children, because I think we all know and recognize that the children of military families do have peculiar problems, they cannot have any continuity.

So this is part of their function again.

And they cannot fulfill, Justices, the American dream of owning a home, their own home, because for all intents and purposes when you have to get up and move every couple of years, forgetting for a moment the fact that their incomes are extremely low, they simply do not have the time or the opportunity to purchase a home.

They have a lower standard of living.

For example, Dr. McCarty, who was a Board-certified cardiologist, had an income of $2,596.51 a month, $30,000 a year.

And I think we all know that cardiologists can earn upwards of $150,000 a year.

These people are giving up something for the future.

They are working today for the future.

You may recall… if I may direct your attention to the fact that after almost 20 years of marriage, what did Dr. and Mrs. McCarty actually accumulate?

$13,000 in assets.

Two automobiles, $200 in the bank, and a couple of thousand dollars that somebody owed to them.

That is what they acquired after almost twenty years of marriage.

Why do people do this?


Well, patriotism, perhaps.

But actually I think we all know why they do it.

They’re in the military because they know that from the moment that they start, twenty years later they are going to have an income for life.

This is the true asset of the marriage.

And I don’t think that we can possibly ignore that.

Thurgood Marshall:

Well, how in the world are there so many of them that don’t stay in twenty years?

Are they stupid?

Walter T. Winter:

No, I don’t think they’re stupid.

Perhaps they don’t want to put up with it, Mr. Justice, and that’s precisely–

Thurgood Marshall:

Well, but I mean, you said it’s for the money that you get.

Walter T. Winter:

–Pardon me?

Thurgood Marshall:

You said, it’s for the retirement money.

Walter T. Winter:

I think that anyone who goes into the service and stays in the service, Mr. Justice, stays in it because they anticipate that retirement.

And that’s something they all talk about.

Thurgood Marshall:

What does that have to do with this case?

Walter T. Winter:

Pardon me?

Thurgood Marshall:

What does that have to do with this case?

Walter T. Winter:

Well, Mr. Justice, it has everything to do with this case simply because what we’re talking about is the supremacy requirement.

Now, I might add, if I may, just, Mr. Justice, that in the first place, there’s a big question of jurisdiction here.

Thurgood Marshall:

Do you want us to take judicial notice that military people and their wives are devoted people, period?

Do you want us to take judicial notice of that?

Walter T. Winter:

Your Honor, I’d be delighted if you would take judicial notice–

Thurgood Marshall:

Do you want us to do any more than that?

Walter T. Winter:

–Yes, sir.

I really do.

And if I may just point this out to you, there are two requirements of supremacy.

And you see, this is not their entire argument.

In the first place, they never actually raised the statute at the time that we were in court previously.

The first time that the appellant here raised the unconstitutionality of the statute was when he filed this particular brief.

He never mentioned it before.

However, let’s forget that for just a moment.

Let’s treat this as if this were a sur petition.

We then get involved in the supremacy requirement, because after all, the only question here is, has the federal scheme actually mandated that the state courts can no longer act over pensions?

And there are two requirements, Mr. Justice.

One of them is, there must be an actual conflict or unambiguous mandate.

Now, we don’t have that here, because there is no conflict at all.

It is not even mentioned in any of the federal statutes, and there has to be some interference with a federal interest.

And Mr. Justice, this is precisely why I think it’s very important for the Court to understand that, because, you see, they keep on saying that this country is going to fall apart if the ladies, or the wives, or the spouses are able to obtain their portion of the pension.

And nothing could be further from the truth.

The fact of the matter is, Mr. Justice, that it’s exactly the opposite way around.

Thurgood Marshall:

I’d suggest you’d better address yourself to the other eight, because they don’t usually agree with me.

And you’d look cute talking to me.

Walter T. Winter:

I will address myself to the other eight Justices then, if I may.

One of the points that is made and that is so often made in this particular case by the appellant is the fact that the military would allegedly fall apart, fall apart, the moment that we give the wives their share of the retirement.

John Paul Stevens:

Mr. Winter, I don’t really think that’s a fair statement of their position.

John Paul Stevens:

Their position, as I understand it is, that Congress has said that the pension or the retirement pay should belong to the retired officer to the same extent in every state in the United States.

You’re saying that there’s a different rule in community property states.

Walter T. Winter:

No, Your Honor, I think that there are two things, there are two portions to your questions, if I may address it.

In the first place, insofar as what they have said, I believe that it is their statement that they are talking about preemption, and it is our position that there has not been a preemption because the Congress has not spoken about it one way or the other.

Now, insofar as the second portion is concerned, I believe that if the Congress wished to speak on that subject and wished to have a separate rule for military divorces, then Congress can certainly do that.

There is absolutely no constitutional prohibition saying that they may not have a federal divorce law.

But the fact of the matter is, Mr. Justice, that there is no federal divorce law.


William H. Rehnquist:

But there is no railroad retirement divorce law either, and yet Hisquierdo came out the way it did.

How do you distinguish your case from that?

Walter T. Winter:

–Very easily, Mr. Justice.

One of the… in the first place, Hisquierdo had some very, very specific wording in that particular statute.

They talk about, for example, that there not, be not any assignment.

And in the present case, and in the military retirement cases, there is a specific provision that there can be an assignment of an officer’s wages.

The Hisquierdo statute talks about the fact that it is not subject to attachment.

And in the present case there is a specific provision for attachment in the case of support, and Congress has in fact aided the wife in that regard.

Third, in the Hisquierdo case they talk about the legal process not being mentioned in the statute.

In other words, it is actually by case law only that we’re talking about legal process and, as far as we’re concerned here… in Hisquierdo it is not subject to legal process, but in the present type of a situation the legal process is not even mentioned in the statute.

So that, for all intents and purposes Hisquierdo is easily differentiated.

And another thing, sir, is about anticipation of payments, again in Hisquierdo.

And again I’d like to point out to this Court that it is not mentioned in the military situation at all.

So Hisquierdo is a very, very tightly knit scheme which I believe is restricted solely to the retirement scheme, the retirement benefits, and has absolutely nothing to do with a military retirement.

Byron R. White:

When does the wife’s interest in this retirement pay arise?

Walter T. Winter:

That depends upon where they come from, Mr. Justice.

Byron R. White:

Well, how about California?

Walter T. Winter:

In California, in the event that the soldier comes to the State of California, our law with reference to quasi-community property would only arise if there were two very, very distinct requirements.

One, both have to be domiciled in the State of California, so the mere fact that you come into the State of California does not in any way transmute this interest–

Byron R. White:

But it does if you both move there?

Walter T. Winter:

–They have to do more than that, Mr. Justice.

Byron R. White:

They have to get divorced, don’t they?

Walter T. Winter:

That’s part of it, yes.

That is a secondary part–

Byron R. White:

The wife has no interest unless there is a divorce, is that right?

Walter T. Winter:

–Under quasi-community property, we have to differentiate–

Byron R. White:

Well, I’m talking of this… I don’t care about quasi-community property, I want to talk about this pension.

When does her interest rise in that pension?

Walter T. Winter:

–The interest arises if they are California residents or domiciliaries… pardon me, and if it… then, well, if they start out in California and he earns it in California and they start out there and they stay there and get a divorce there, she’s had this interest all along.

Byron R. White:

Well, I know, but she doesn’t have it if they’re not divorced?

Walter T. Winter:

Oh, yes, she does; she does unless it is under the quasi-community property scheme.

Warren E. Burger:

Are you saying it’s an inchoate interest until there’s some occasion like a divorce to take some legal action about it?

Walter T. Winter:

Only if it is under the quasi-community property.

If they are residents or… pardon me… domiciliaries of another state, if they are domiciliaries of another state, then what happens is that as far as California is concerned, California will not touch that retirement because the laws of that particular state apply, Mr. Chief Justice.

Byron R. White:

But, doesn’t the husband have the right to assign his retirement payments?

Walter T. Winter:

Well, again, the question then is–

Byron R. White:

Well, here, again, here are two people married, and one of them is a retired Army officer, and they’re not divorced, they’re living together.

And he assigns his retirement payments.

Walter T. Winter:

–He can’t do that under California law, Mr. Justice.

He cannot do that because the wife owns half of it.

You see, this is the part–

Byron R. White:

Well, that’s what I wanted to know.

Walter T. Winter:

–This is part of… I’m sorry?

Byron R. White:

I’m just trying to find out when her interest arises.

Walter T. Winter:

Her interest arises as they earn it because under the community property scheme the husband and wife are working together.

Our California courts recognize the fact that the husband, when he works, actually does not contribute any more to the benefit of the couple’s life together, the community, as it were, than the wife who’s home raising the children.

And that’s why this is so important.

Byron R. White:

So, she has… under California law she has an interest enough in the pension payments to keep him from assigning the?

Walter T. Winter:

Yes, sir, I believe that she does.

Byron R. White:

Or from encumbering them?

Or from their being attached?

Walter T. Winter:

Yes, sir.

Walter T. Winter:

I believe that that is so inasmuch… and this is only, now, this is only in the situation where we have a community property situation.

If it is quasi-community property, it’s a completely different situation because by the mere fact of entering into the State of California, this in and of itself does not change the property interest, but as far as California is concerned, when you both worked for it, you’re both entitled to it.

It’s a property interest, Mr. Justice.

Now, of course, under quasi-community property we have a different situation because under quasi-community property they both must be domiciled there and, of course, it has to be in a divorce situation only.

In other words, again even though they both become domiciliaries, if they then leave the State of California, California has no interest in it anymore.

And so I believe that it’s very important for us to differentiate in this type of a situation.

And I think it is still very important for us to consider the fact that the wife is an equal partner and should be considered an equal partner in this very important property right.

Now, I would like to make one very short statement to this Court at this time, because yesterday when I came here to Washington I visited Arlington Cemetery.

And I could not help but think of the millions of our brave fighting men who sacrificed so much, and also the millions of brave and patient women that they left behind, women who spent their lonely and fearful days and nights waiting and praying for their men to return home.

These women provided, Justices, for their men’s homes, reared their men’s children, and most important, gave their men the courage and hope, something to come home, something to fight for.

We have never turned our back on our fighting men.

And I ask you at this time, let us not now minimize the importance of their courageous women.

Potter Stewart:

Mr. Winter, in addition to the conventional preemption arguments, it seemed to me that your brother on the other side made another argument, i.e., that California has misconceived what the nature of this property; that instead of it being a run-of-the-mill pension such as was involved in Hisquierdo or such as would be involved in a General Electric pension, this instead of being deferred compensation for present services on active duty is actually compensation for more limited services in retirement.

And if that’s true, then it wouldn’t even be the kind of property that’s subject to the community property laws, quasi-community property or any other kind, would it?

Walter T. Winter:

Well, Mr. Justice–

Potter Stewart:

Wait, am I right in my assumption?

Walter T. Winter:

–Yes, to some degree, but perhaps not to another degree, Mr. Justice.

In the first place, I think that we have to be somewhat realistic.

Potter Stewart:

Of course we do.

We always have to be that.

Walter T. Winter:

The fact of the matter is, Mr. Justice, that the retired military officer doesn’t really have to do anything any more.

Potter Stewart:

Well, no, assuming that’s true, I said, assuming that’s true?

Walter T. Winter:


Potter Stewart:

That what it is, what so-called retirement pay is, is compensation for the more limited services for which he is liable in retirement, and rather than being deferred compensation for his services performed during active duty.

Walter T. Winter:


Potter Stewart:

Now, assuming that’s true?

Walter T. Winter:

But I don’t think that–

Potter Stewart:

Let’s not argue about whether or not it is.

Assuming it’s true, then California would be quite mistaken in considering this property covered under its community property doctrines, wouldn’t it?

Walter T. Winter:

–Well, I think that our community property law covers that in this way, Mr. Justice.

Walter T. Winter:

Under community property law, once there has been a separation then the earnings of each of the spouses then becomes his or her separate property.

Potter Stewart:

Their subsequent earnings?

Walter T. Winter:

Their subsequent earnings.

Potter Stewart:


Walter T. Winter:

So that if we assume counsel’s argument, the way that I can answer that is really simply this, the minute that he gets back into the military and he actually becomes part of the active duty again, then he is paid–

Potter Stewart:

Full pay.

Walter T. Winter:

–number one, he is actually paid for his services, the services that he renders at that time.

But furthermore, he also accrues further military retirement benefits all of which will then benefit him.


Potter Stewart:

We’re really now arguing about whether or not it is true, the assumption, aren’t we?

Walter T. Winter:

–I don’t think so, but perhaps I misunderstand you.

Potter Stewart:

Perhaps I misunderstood you.

Walter T. Winter:

I don’t think that we’re arguing about whether or not it’s true.

The question is whether or not it would then be a property interest.

And what I’m saying is that you can’t ignore one without the other.

Now, it just depends upon how far you really have to go.

If he’s really, if he’s factually only on limited duty, then I would have to agree.

But the fact of the matter is, and in one of our cases the courts have addressed that issue.

John Paul Stevens:

Mr. Winter, do you agree with what your opponent said, in the event the doctor had not merely retired but had resigned his commission, would he not then have forfeited any right to the retirement pay?

Walter T. Winter:

Yes, but that cuts both ways–

John Paul Stevens:

Would you not agree that he has the sole discretion as to whether to do that, and the wife cannot veto that decision?

Walter T. Winter:

–I believe that he has that sole discretion or he should have that sole discretion, Mr. Justice.

However, I would like to point out to the Court that under the California scheme, under the California law, that the wife actually has no greater right to the retirement than the husband, or, I should say, actually, the spouse.

Of course, I’m talking about wife and husband here, because from a practical standpoint it has been that situation in 99 percent of the cases.

I might add parenthetically that now that we have more and more women becoming part of the military, it could easily cut the other way.

But getting back to that for just one moment, the wife in that particular situation has absolutely no power at all to increase her right.

In other words, if the husband chooses to give the whole thing up, then certainly he can do that, and there is nothing that she can do about it.

John Paul Stevens:

But it’s not just… if your opponent’s conception of the scheme is the correct one, it’s not merely giving something up, he also gets something when he resigns, namely, he is no longer exposed to the risk of being called into active duty and running the risk of the danger that’s associated with a military life.

Walter T. Winter:

Well, I’m not asking this Court to state that the wife should have the right to tell him whether or not he should remain in the service.

John Paul Stevens:

No, but this goes to the question whether it’s in the nature of a pension or it’s in the nature of reduced pay for a limited type of service, namely, availability to recall.

Walter T. Winter:

I believe that under these circumstances, Mr. Justice, I believe that this is nothing more than a play on words.

And while I agree that it isn’t–

John Paul Stevens:

But there are a number of officers who do resign for that very reason.

Walter T. Winter:


And in the event that they resign then they for all intents and purposes will defeat their spouse’s interest, and that takes care of that, she’s out.

And I recognize that, Mr. Justice.

I certainly feel that under those circumstances the Court should not have the power to keep him in there, or to make him work, or do anything that he doesn’t want to do.

This, of course, is part of the overall scheme, this is part of the community property law.

And we recognize that.

I will say that there is one Court of Appeal decision that came down recently, that was mentioned in the reply brief, in which the California Court of Appeal did go one step further.

I personally disagree with that particular Court of Appeal decision.

It never went on to the California Supreme Court, and I assume that somehow or other that point is going to be raised at a future time.

But I don’t think that that has anything at all to do with the situation as it is here today, because essentially, Mr. Justice, what we’re talking about here is whether or not there has been a federal preemption.

That’s really all we’re talking about.

Has the federal law preempted?

And the fact of the matter is that it hasn’t even been mentioned.

Nothing has been said about it at any time, one way or another.

And I think it’s every bit as fair to say that when the federal law has not said anything about it one way, then it certainly is every bit as fair the other.

Except that, under the law, under what is required under the supremacy requirement, there actually has to be an actual conflict.

And this is something that they have not been able to demonstrate.

There is no conflict at all between our California community property law and military retirement benefits.

There has not been an unambiguous mandate.

And there certainly has not been an interference with the federal interest.

You see, this is the other requirement.

You can’t just have this without a so-called damage provision.

There has not been any interference at all.

Harry A. Blackmun:

Mr. Winter, suppose you lose this case here?

Are you without remedy under California law?

You have alimony in California?

Walter T. Winter:

Yes, we do, Your Honor.

Harry A. Blackmun:

And that could be enforced against… well, his pension, once it is received by him, I suppose?

Walter T. Winter:

Yes, it may, Your Honor.

However, if I may point this out–

Harry A. Blackmun:

What you want is a direct share of the pension?

You want half?

Walter T. Winter:

–Yes, Your Honor, because actually–

Harry A. Blackmun:

Payable by the United State Government?

Do you want the United States Government to pay her half direct to your client?

Walter T. Winter:

–Well, I’m afraid that under present law that cannot be done.

However, I would like to respond insofar as the alimony… you see, alimony has many, many provisions, many requirements.

And one of the requirements, of course, is that immediately upon the remarriage of the party who is receiving the alimony, the recipient, that automatically then terminates the alimony.

Now, this is a property right we’re talking about.

This is something that they earned, both of them together, during a marriage, and it is not something that should terminate.

Because, after all, why should he get the windfall merely because she remarries?

Why should she have to then worry about starting out all over again?

This is something that they have both worked for–

Harry A. Blackmun:

Of course, even that isn’t true in all states.

But in any event, I understand your property argument and I think I know what alimony is, but would your argument about service wives… I want to know whether they’re without remedy in case you lose this case.

And I take it they are not without remedy.

Walter T. Winter:

–They are without remedy, Mr. Justice, because they are losing a very valuable property right, and spousal support, as we call it, or alimony, I don’t think is the proper remedy.

Because that is subject to many, many conditions and it is not exactly the same thing as saying to her that this is something they have and something that is to be divided.

It’s something that he will keep, whether or not he remarries.

So why should he keep it and she then lose it?

Warren E. Burger:

Very well.

Walter T. Winter:

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Eytan?

Mattaniah Eytan:


Mr Justice Stevens, the wife can compel the husband to pay her damages in the event he refuses to resign.

In the very recent case that my opponent mentioned, a case that did not plough new ground at all, we had an Air Force husband, Luciano v. Luciano, a 1980 case, where the Air Force husband refused to resign from the Air Force and the wife claimed that she had the right to collect her property interest in his retired pay and never mind whether he wished to actually start retired pay coming.

He refused to resign.

Potter Stewart:

You mean he refused to retire?

Not to resign?

Mattaniah Eytan:

Yes, I’m sorry; retire.

Thank you for the correction.

The Court held that she could declare when her portion of the retirement–

Potter Stewart:

That is not involved in this case.

Mattaniah Eytan:

–I’m sorry?

Potter Stewart:

That question isn’t involved in this case?

Mattaniah Eytan:

That’s correct.

The California court determined that it was up to her to decide when the retired pay would come, and that idea was further amplified in a more recent case cited in my reply brief, that said that the husband who refuses to retire so as to trigger the retirement benefits has to pay damages to the wife in an amount equal to what she would have gotten as her property interest had she retired.

William H. Rehnquist:

Is that like palimony?

Mattaniah Eytan:

Not at all.

It’s a property interest.

It’s not like alimony at all.

It’s damages for someone converting your property, someone depriving you of your property.

California has had this doctrine a very long time, and it’s fundamentally based upon the notion that if you have something within your control, you can trigger a set of consequences or not.

And if you choose not to trigger them, then the person who suffers thereby is entitled to damages from you.

The wife in this case, may I point out, is getting alimony.

She wants half the retired pay.

She’s getting alimony.

The husband has custody of the three minor children, the husband pays everything, she’s getting her alimony based upon a court determination of her need.

This case is not about needs, and if she has greater need at any time, she can always go back to the courts and get more alimony if she can sustain her burden of proof on that.

Is it fair to assume that if you win this case the court would reassess the alimony situation and perhaps give her a little more?

Mattaniah Eytan:

I think it’s fair to say that she has the right to do so and if she can show need, the answer is, yes.

But imagine this.

Suppose she gets the money and then she decides to pledge it to a financial institution or suppose she decides to give it to her second husband if there is one, never mind the specific fact here.

The point is that once you get into the property business you allow the states to determine that the wives can dispose of it by testamentary disposition.

She could pledge it.

Strangers start getting the money.

Look, you have a new case here, In re Miller, as to which cert is pending.

Mattaniah Eytan:

The Miller court from Montana decided that the wife has such a marvelous property interest in this that she can give this to any person she wants by testamentary disposition.

Does anyone really believe that the Congress intended that the Army retiree, perhaps languishing in a nursing home, is going to share his retired pay with a second husband who secured it by testamentary disposition?

Has anyone really considered that the Army intended for Army retired pay to be so abused as a property interest that husbands who have their retired pay taken away from them in substantial portions have to seek out bankruptcy relief?

That’s exactly what’s been happening.

If you take a look at the reply memorandum you’ll see the cases cited there.

Most importantly, I think that the statement that there’s no anti-assignment statute here a la Hisquierdo is rot.

There clearly is an anti-assignment statute.

It goes back to the days before California entered the Union.

The exact text has changed from time to time but the essential point is the same.

There is as good an anti-assignment statute here, as in Hisquierdo, and when you consider that it’s the United States Government that has all the benefits in this area, the pay, the retired pay, the social security, the annuity programs, obviously an anti-assignment statute in these circumstances for Army pay which the Congress protected as much as it protected regular pay… it’s all in the same statute… cannot mean that someone can take active duty pay, retired pay, because of state law.

Federal law applies here.

Federal law is very clear; the wife has no interest.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.