#29724-r-MES
2023 S.D. 5
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
DANIEL PARKER, Plaintiff and Appellee,
v.
CAMILLE PARKER, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
…
THE HONORABLE JON SOGN
Judge
…
PATRICK DOUGHERTY of
Dougherty & Dougherty, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
VICTORIA M. DUEHR of
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellee.
…
CONSIDERED ON BRIEFS
MAY 25, 2022
OPINION FILED 01/18/23
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SALTER, Justice
[¶1.] Camille Parker appeals from the circuit court’s judgment and decree of
divorce, challenging the court’s division of the military retirement for her former
spouse, Daniel Parker. Camille argues the circuit court abused its discretion in
determining Daniel’s military “monthly pay base” to be $1,500.94. We vacate this
portion of the court’s decree and remand for further proceedings.
Facts and Procedural History
[¶2.] This case comes before us with a rather sparse record. Missing are
transcripts from the four-day divorce trial, and nearly all of the information relating
to the property division issue presented here was not included in the record, but
simply attached to the appellate briefs. See Batchelder v. Batchelder, 2021 S.D. 60,
¶ 5 n.2,
965 N.W.2d 880, 882 n.2 (holding that the practice of attaching material not
included in the record to briefs “does not comply with our rules for preparing
appendices”); Klutman v. Sioux Falls Storm,
2009 S.D. 55, ¶ 37,
769 N.W.2d 440,
454 (“Documents in the appendix must be included within, and should be cross-
referenced to, the settled record.”) (citing SDCL 15-26A-60(8)). Nevertheless, we
have gleaned the following facts from explicit and contextual aspects of the record
and briefs that appear to be undisputed.
[¶3.] Daniel and Camille were married in June 2010. Prior to their
marriage, Daniel began serving as an enlisted member of the South Dakota Air
National Guard. His service continued during the marriage and, indeed, continues
to the present time.
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[¶4.] At some point, Daniel also began serving in a civilian capacity for the
National Guard. In his civilian position, Daniel works as an avionic technician
during the week. In his military role, Daniel participates in guard drills and
military training. He is also subject to mobilization for active duty in the Air Force
under federal authority. See 10 U.S.C. § 12406 (authorizing the President to call
“members and units of the National Guard of any State” to federal service).
[¶5.] This “dual status,” though perhaps somewhat novel, is specifically
authorized under federal law and was recently the subject of a helpful exposition by
the United States Supreme Court:
As its name suggests, this rare bird has characteristics of two
different statuses. On one hand, the dual-status technician is a
“civilian employee” engaged in “organizing, administering,
instructing,” “training,” or “maintenance and repair of supplies”
to assist the National Guard. § 10216(a)(1)(C); 32 U.S.C.
§§ 709(a)(1)–(2). On the other, the technician “is required as a
condition of that employment to maintain membership in the
[National Guard]” and must wear a uniform while working. 10
U.S.C. § 10216(a)(1)(B);
32 U.S.C. §§ 709(b)(2)–(4).
This dual role means that [dual-status] technicians perform
work in two separate capacities that yield different forms of
compensation. First, they work full time as technicians in a
civilian capacity. For this work, they receive civil-service pay
. . . . Second, they participate as National Guard members in
part-time drills, training, and (sometimes) active-duty
deployment. See 32 U.S.C. §§ 502(a), 709(g)(2). For this work,
they receive military pay and pension payments from a different
arm of the Federal Government, the Defense Finance and
Accounting Service. See 37 U.S.C. §§ 204, 206;
10 U.S.C. § 113.
Babcock v. Kijakazi,
142 S. Ct. 641, 644,
211 L. Ed. 2d 424 (2022) (first brackets in
original); see also Moore v. Pa. Dep’t of Mil. & Veterans Affs.,
216 F. Supp. 2d 446,
450 (E.D. Pa. 2002) (explaining the concept of dual-status, hybrid employees).
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[¶6.] In any event, Daniel filed for divorce in May 2019, citing irreconcilable
differences. As a result of either the parties’ agreement or the circuit court’s
decision, all of the issues related to the equitable division of the marital estate were
resolved following the court trial, with the exception of the division of Daniel’s
military retirement. It appears that the circuit court took this remaining issue
under advisement at the completion of the trial, and the parties submitted
argument to the court via email.
[¶7.] Strictly speaking, Daniel’s military retirement is a potential marital
asset because it is conditioned upon him becoming eligible for retirement, which is
most commonly associated with completing twenty years of satisfactory service. A
spouse’s prospective military retirement is subject to equitable division under state
law as part of a divorce or legal separation proceeding, but the ultimate amount of
the military retirement is controlled by federal law. Because Daniel serves in the
National Guard, his service is classified as “non-regular,” which is contrasted with
the “regular” service of active duty military members. See 10 U.S.C. § 12739
(stating the formula for computing monthly retired pay for non-regular service
members).
[¶8.] Calculating monthly retired pay is different in some key respects for
National Guard and reserve service members than it is for their active duty
counterparts. Though a National Guard or reserve member’s eligibility for
retirement is most often determined by years of service, the amount of monthly
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retired pay is significantly influenced by the number of military retirement points
they accrue for drill and intermittent periods of active duty. 1
[¶9.] In general terms, these retirement points are converted to
corresponding years when a National Guard or reserve member begins to draw
monthly retired pay using a statutory formula. See 10 U.S.C. § 12739. These years
are then multiplied by a Guard or reserve member’s “retired pay base,”
id., also
termed the “high-three average.” See
10 U.S.C. § 1407(b) (defining high-three
average). Commonly known simply as the “high-3,” this amount is the 36-month
average of the non-regular member’s “monthly basic pay[,]” as explained more fully
below. See
10 U.S.C. § 1407(d)(1).
[¶10.] A circuit court’s effort to equitably divide a divorcing military spouse’s
future retirement in cases such as this one implicates these retirement rules as the
court seeks to isolate and divide the service time that corresponds with the parties’
marriage. Consequently, the number of a military spouse’s retirement points along
with the military paygrade and the years of service at the time of the divorce are all
important to the retirement calculus for non-regular service.
[¶11.] Here, the parties agree that Daniel accrued 913 retirement points
during his marriage to Camille and had earned a total of 2,370 retirement points as
1. Retirement points are accrued as follows: one point for each day of active
service, one point for each attendance at a four-hour drill period, one point for
each day of performing funeral honors duty, and fifteen points for each year
of membership in a reserve component. See Reserve Retirement, Military
Compensation, U.S. Dep’t of Def.,
https://militarypay.defense.gov/Pay/Retirement/Reserve.aspx (last visited
Jan. 9, 2023).
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of July 2019. 2 Also undisputed is the fact that Daniel was serving as an Air Force
master sergeant in the E-7 enlisted paygrade with sixteen years of service. And
significantly, the parties also seem to agree in principle that Camille should share
equally in the portion of Daniel’s military retirement attributable to the years they
were married. The parties disagree, however, about the correct amount of Daniel’s
high-3, and this is the principal issue before us in this appeal.
[¶12.] For her part, Camille asserts the high-3 amount should be $4,895,
citing the military’s 2021 Monthly Basic Pay Table. Camille justifies her position
under the theory that Daniel is effectively serving on active duty given his dual-
status role and proposed the following language for the circuit court’s divorce
decree:
The former spouse is awarded 50% of the disposable military
retired pay the member would have received had the member
become eligible to receive military retired pay with retired base
(High-3) of $4,895 and with 913 Reserve retirement points on
July 31, 2019, the date of separation. On the date of separation,
July 31, 2019, the member’s military pay grade (rank) was E7
and the member had Reserve retirement points 913, and the
member had 16 years and XX months of service for basic pay
purposes.
2. For reasons that are not clear in the record, the parties and the circuit court
used the amount of retirement points as of July 2019, not the amount earned
as of the time of the divorce in July 2021. This appears inconsistent with
both state and federal law. See Ahrendt v. Chamberlain, 2018 S.D. 31, ¶ 20,
910 N.W.2d 913, 921 (“[A]bsent special circumstances, assets and liabilities
are valued at the time of trial rather than the time of separation.”); see also
10 U.S.C. § 1408(a)(4)(B)(ii) (defining disposable retired pay as total monthly
retired pay to which “the member would have been entitled using the
member's retired pay base and creditable service points on the date of the
decree of divorce, dissolution, annulment, or legal separation”) (emphasis
added).
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[¶13.] Daniel suggested a much lower high-3 amount of $1,500, which
represented the average of his actual earnings as a National Guard member over
the course of the previous thirty-six months. He offered a different 50% formulation
for the decree:
The former spouse is awarded 50% of the disposable military
retired pay the member would have received had the member
become eligible to receive military retired pay with a retired
base (High-3) of $1,500 and with 913 Reserve retirement points
on July 31, 2019 . . . .
[¶14.] Using the parties’ somewhat incomplete legal arguments contained in
emails, the circuit court opted for a third method which it included in the decree:
If Daniel receives disposable military pay, Camille is awarded a
percentage of Daniel’s disposable military retired pay, to be
computed by multiplying 50% times a fraction, the numerator of
which is 913 retirement points earned during the period of the
marriage, divided by the member’s total number of reserve
points earned. On the date of the decree of divorce, July 6, 2021,
Daniel’s military pay base (high-3) was $1,500.94 and the
member had 2370 retirement points total at the time of
valuation of July 2019.
[¶15.] Camille appeals, and in her initial appellate briefing, her argument
remained fixed, incorrectly, on the idea that Daniel’s dual-status role equates to
him actually serving on active duty and not as a part-time member of the National
Guard. Daniel’s initial brief centered on his perspective of the equities, stating, “To
use the income of $4,895.10 as set forth in the table submitted by Camille as Dan’s
base high 3, when he has only had an actual earned average of $1,500.94, is unjust
and defeats the intent of the . . . federal government.” Neither party cited any
applicable federal statutes or controlling decisional law addressing the topic of
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military retirement benefits or the selection of a high-3 figure ancillary to divorce or
legal separation proceedings.
[¶16.] Seeking further development of the parties’ legal arguments and
recalling our decisional law applying the federal Uniformed Services Former
Spouses Protection Act (USFSPA), 3 we ordered simultaneous supplemental briefing
to address “[t]he application, if any, of 2017 and 2018 amendments to the
[USFSPA], codified at 10 U.S.C. § 1408(a)(4)(B), and any related provisions of
federal law (including 10 U.S.C. 1407(d)(1)), to the circuit court’s division of Daniel
Parker’s military pension.”
[¶17.] Both parties augmented their original briefs with citations to
applicable federal statutory authority. The parties each remained committed to
their respective arguments concerning Daniel’s correct high-3, but Camille appears
to have pivoted to a textual analysis of
10 U.S.C. § 1407(d)(1) as the reason for
using the $4,895.10 from the Monthly Basic Pay Table, rather than claiming
Daniel’s dual-status role equated to him serving on active duty.
Analysis
Calculating Disposable Retired Pay for Non-Regular Service
[¶18.] We have treated “military retirement benefits . . . like any other asset
of the marriage and . . . subject to equitable distribution.” Porter, 1996 S.D. 6, ¶ 9,
542 N.W.2d at 450; see also Gibson v. Gibson,
437 N.W.2d 170, 172 (S.D. 1989)
(holding that a military pension is a marital asset subject to equitable division upon
3. See, e.g., Porter v. Porter,
1996 S.D. 6,
542 N.W.2d 448; Hisgen v. Hisgen,
1996 S.D. 122,
554 N.W.2d 494; Urbaniak v. Urbaniak,
2011 S.D. 83,
807
N.W.2d 621; see also Cook v. Cook,
2022 S.D. 74, ¶ 22, ___ N.W.2d ___.
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divorce). The division of marital assets upon divorce is reviewed for an abuse of
discretion. Gibson, 437 N.W.2d at 171. We have held that an error of law in a
circuit court’s equitable division of property “is never within the [discretionary]
range of permissible choices and necessarily constitutes an abuse of discretion.”
Field v. Field,
2020 S.D. 51, ¶ 15,
949 N.W.2d 221, 224 (citation omitted).
[¶19.] But the fact that a military retirement is subject to equitable division
“like any other asset of the marriage” does not mean it is actually like other assets.
Military retirements are, in many ways, unique even within the class of pension
and retirement assets. We believe, therefore, that it is useful to first discuss the
authority of state courts to divide a divorcing spouse’s military retirement before we
consider whether the circuit court abused its discretion when it fixed Daniel’s high-
3 at $1,500.
[¶20.] In 1981, the United States Supreme Court issued its decision in
McCarty v. McCarty,
453 U.S. 210,
101 S. Ct. 2728,
69 L. Ed. 2d 589 (1981), holding
that “the federal statutes then governing military pay prevented state courts from
treating military retirement pay as community property.” Mansell v. Mansell,
490
U.S. 581, 584,
109 S. Ct. 2023, 2026,
104 L. Ed. 2d 675 (1989). “In direct response
to McCarty, Congress enacted the [USFSPA],” codified at
10 U.S.C. § 1408, “which
authorizes state courts to treat ‘disposable retired or retainer pay’ as community
property.” Mansell,
490 U.S. at 584,
109 S. Ct. at 2026 (emphasis added) (citing
10
U.S.C. § 1408(c)(1)).
[¶21.] The USFSPA is, therefore, both the source and the ceiling of a state
court’s authority to divide a spouse’s military retirement. And though it neutralized
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the essential holding in McCarty, the USFSPA did not vest state courts with
unlimited authority to divide military retirements. Instead, the USFSPA
authorizes state courts to divide “disposable retired pay,” which is a specific
statutorily defined term under the provisions of 10 U.S.C. § 1408(a)(4)(A). See
Mansell,
490 U.S. at 589,
109 S. Ct. at 2029 (holding that “under the [USFSPA’s]
plain and precise language, state courts have been granted the authority to treat
disposable retired pay as community property; they have not been granted the
authority to treat total retired pay as community property”) (emphasis added).
[¶22.] In cases such as this one where a divorcing military spouse is a
member of the National Guard with non-regular service and not yet eligible for
retirement, the USFSPA defines disposable retired pay as follows:
[T]he total monthly retired pay to which the member is entitled
shall be . . . the amount of retired pay to which the member
would have been entitled[,] using the member’s retired pay base
and creditable service points on the date of the decree of divorce,
. . . under chapter 1223 of this title . . . .
10 U.S.C. § 1408(a)(4)(B)—§ 1408(a)(4)(B)(ii) (emphasis added); see also DoD FMR
7000.14-R, vol. 7B, ch. 29, paragraph 8.2.1 (“The amount of retired pay is limited to
that which the member would have been entitled using the member’s retired pay
base (rank or high-3) and years of service on the date of the final decree of divorce
. . . .”).
[¶23.] Established through congressional amendments in 2017 and 2018, this
has become known as the “frozen benefit rule.” 172 Am. Jur. Trials § 271 (2022).
Under the frozen benefit rule, the date of divorce serves as a hypothetical
retirement date for the purpose of calculating the former spouse’s equitable share of
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a military spouse’s retirement, the rationale being that it would be inequitable for
the former spouse to receive a share of the retired pay based upon pay increases
that occurred between the date of divorce and the member’s actual date of
retirement “to which the former spouse made no contribution.” Fulgium v.
Fulgium, 203 A.3d 33, 40 (Md. Ct. Spec. App. 2019). 4
[¶24.] Freezing a military spouse’s potential disposable retired pay at the
time of the divorce implicates, according to the express terms of § 1408(a)(4)(B), the
retirement rules for calculating “retired pay” for non-regular service set out in
chapter 1223 of Title 10. In particular,
10 U.S.C. § 12739 describes monthly retired
pay as the product of “(1) the retired pay base” and “(2) 2 ½ percent of the years of
service credited . . . .”
10 U.S.C. § 12739(a).
[¶25.] The retired pay base is also known as the high-3 figure, which
permeates this case. For non-regular service, the high-3 is “the total amount of
4. Many military retirement awards to non-military spouses are administered
through the Defense Finance and Accounting Service (DFAS), see infra
¶¶ 33–35, and DFAS recognizes several accepted methods for segregating the
portion of a military spouse’s retirement that corresponds to the marriage
before applying the “frozen benefit rule,” which then functions as a cap on the
share that the non-military divorcing spouse will receive. For instance, the
“formula award” utilized by the circuit court here takes points accumulated
during the marriage over total points at the time of divorce and is specifically
contemplated according to guidance from DFAS. See DoD FMR 7000.14-R,
vol. 7B, ch. 29, fig.29-2 (listing four types of sample awards, including a
“formula award” for a “Military Retired Pay Division Order . . . that occur[s]
after December 23, 2016”). However, the recent amendments to the USFSPA
provide for a compensation rate that has been “frozen” based on a member’s
high-3 and points at the time of the divorce, rather than as a percentage of
the military spouse’s ultimate monthly disposable retired pay based upon
longevity and promotions occurring after the termination of the marriage.
Compare 10 U.S.C. § 1408 with Hautala v. Hautala,
417 N.W.2d 879, 880 n.1
(S.D. 1988) (describing a “time” formula for dividing a military spouse’s
retirement that does not freeze the benefit at the time of divorce).
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monthly basic pay to which the member or former member was entitled during the
member or former member’s high-36 months (or to which the member or former
member would have been entitled if the member or former member had served on
active duty during the entire period of the member or former member’s high-36
months), divided by . . . 36.” 10 U.S.C. § 1407(d)(1)(A)-(B). The correct
interpretation of this statute represents a critical juncture in our analysis.
[¶26.] Based on his supplemental briefing, Daniel reads the parenthetical
information within this statutory language disjunctively—i.e. he can elect to use as
his high-3 amount either the higher compensation rates that he would have earned
on active duty, or the lower compensation amount represented by his actual drill
pay. But we believe this interpretation is unsustainable and too expedient given
the text of the statute and accepted rules of statutory construction. 5
[¶27.] Textually, Daniel’s argument that the parenthetical phrase allows him
to calculate his high-3 based upon the money he actually earned as a drilling
National Guard member overlooks the critical term “monthly basic pay.” When
Daniel completes standard monthly part-time drills, he is not earning monthly basic
pay as provided in
10 U.S.C. § 1407(d)(1)(A)—he is earning military reserve drill
pay commensurate with his rank/paygrade and years of service. The distinction is
illustrated by the fact that the Department of Defense publishes two military pay
tables, one the “Monthly Basic Pay Table” and the other detailing “Military Reserve
5. Daniel’s position also seems improvident over the long term. If he was truly
convinced his high-3 should be based on the lower compensation rates
represented by his drill pay, his view would artificially, and significantly,
reduce his ultimate monthly retired pay amount.
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Drill Pay.” 6 As a result, his actual earnings derived from drills do not constitute the
“monthly basic pay” explicitly referenced in the text of 10 U.S.C. § 1407’s definition
of high-3.
[¶28.] In addition, the use of parentheses in 10 U.S.C. § 1407(d)(1)(A) is
relevant to its interpretation. Though all judicial efforts to construe statutes must
be singularly focused upon ascertaining legislative intent, the fact that Congress
included parentheses counsels against Daniel’s disjunctive interpretation which
omits them entirely. See Peters v. Ashcroft,
383 F.3d 302, 309 (5th Cir. 2004)
(holding that “Congress . . . reduced the grammatical import” of statutory text
“when it replaced commas . . . in the predecessor provision with the parentheses
that now appear”). Indeed, Congress’s use of parenthetical phrases may be
descriptive of an antecedent term or provision and not a limitation of it. See
Germain v. U.S. Att’y Gen.,
9 F.4th 1319, 1326 (11th Cir. 2021) (noting that
Congress’s use of parentheticals in the Immigration and Naturalization Act “are
merely descriptive—rather than limiting”).
[¶29.] Drawing upon this persuasive authority, we view the parenthetical
used in
10 U.S.C. § 1407(d)(1)(A) as illustrative of the previous phrase and not an
entirely new disjunctive provision, as Daniel asserts. The parenthetical phrase is
6. The Monthly Basic Pay Table is updated annually, as authorized by
37
U.S.C. § 203 and
37 U.S.C. § 1009, and published online in “monthly basic
pay tables” by DFAS oftentimes at the direction of a Presidential Executive
Order. See Adjustments of Certain Rates of Pay, 86 Fed. Reg. 73601 (Dec. 22,
2021); Military Pay Tables & Information, Def. Fin. & Acct. Serv.,
https://www.dfas.mil/militarymembers/payentitlements/Pay-Tables/. The
Military Reserve Drill Pay chart lists one- and four-drill pay amounts that
are proportionate increments of the corresponding monthly basic pay amount.
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particularly helpful as a means of clarifying the use of the term “monthly basic pay”
to mean the amount a member of the National Guard or reserve would earn if
serving on active duty. Read in this way, the statute defines high-3 as “the total
amount of monthly basic pay to which the member or former member was entitled
during the member or former member’s high-36 months” or, in other words, the
amount “to which the member or former member would have been entitled if the
member or former member had served on active duty during the entire period. . . .”
(Emphasis added.)
[¶30.] In sum, then, a circuit court can only divide disposable retired pay,
which can, in turn, only be calculated using a service member’s correct high-3. For
service members with non-regular service, this number is based upon the applicable
Monthly Basic Pay Tables as if the service member was on active duty, whether
they were or not.
The Circuit Court’s Order
[¶31.] After tracing the definition of “disposable retired pay” through a
succession of statutory provisions to the point it intersects with a service member’s
high-3 amount, we conclude the circuit court’s division of Daniel’s military
retirement includes a legal error. The court’s order reflects Daniel’s incorrect legal
interpretation of his high-3 amount.
[¶32.] This error has the effect of undervaluing Daniel’s potential military
retirement at the time of divorce, resulting in what we would expect to be a
significantly smaller share for Camille than would be the case if Daniel’s high-3
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were accurately calculated. 7 Nothing in the record indicates the circuit court
intended this result. To the contrary, all appearances are that the court intended to
award Camille one-half of Daniel’s retirement for the time that corresponded to the
years of their marriage. Under the circumstances, we must vacate the portion of
the court’s divorce decree dividing Daniel’s military retirement and remand the case
for further proceedings.
The Payment Mechanism of the USFSPA
[¶33.] In addition to conferring a certain degree of authority upon state
courts to treat “disposable retired pay” as marital property, the Mansell Court
described a second major feature of the USFSPA that has potential utility in
dividing Daniel’s military benefit:
The Act also creates a payments mechanism under which the
Federal Government will make direct payments to a former
spouse who presents, to the Secretary of the relevant military
service, a state-court order granting her a portion of the military
retiree’s disposable retired or retainer pay. This direct
payments mechanism is limited in two ways. § 1408(d). First,
only a former spouse who was married to a military member “for
a period of 10 years or more during which the member
performed at least 10 years of service creditable in determining
the member’s eligibility for retired or retainer pay,” § 1408(d)(2),
is eligible to receive direct community property payments.
Second, the Federal Government will not make community
property payments that exceed 50 percent of disposable retired
or retainer pay. § 1408(e)(1).
7. The record does not, at this point, contain sufficient information to precisely
calculate Daniel’s high-3 using the annual Monthly Basic Pay Tables for the
thirty-six months preceding the parties’ July 2021 divorce. But using the
“most recent” basic pay amount from the 2021 Monthly Basic Pay Table
suggests that the current calculation using actual drill pay may reduce
Camille’s award by approximately two-thirds of what it would be using the
correct high-3 amount.
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Mansell, 490 U.S. at 585,
109 S. Ct. at 2027.
[¶34.] The Supreme Court clarified that “state courts have been granted the
authority to award a portion of disposable military retired pay to former spouses
who were married to the military member for less than 10 years, but such former
spouses may not take advantage of the direct payments mechanism.”
Id.,490 U.S.
at 591 n.13,
109 S. Ct. at 2030 n.13. Several courts have extended similar
reasoning to the former spouse’s 50% cap, holding that state courts maintain
discretion to award more than 50% of retirement benefits to a military spouse but
such an order will not be paid directly, at least in its entirety, by the Federal
Government. See Meyer v. Meyer,
952 So. 2d 384, 387 (Ala. Civ. App. 2006),
Deliduka v. Deliduka,
347 N.W.2d 52, 55 (Minn. Ct. App. 1984), In re Marriage of
Bocanegra,
792 P.2d 1263, 1267 (Wash. Ct. App. 1990).
[¶35.] Here, the parties were married for more than ten years, and it does not
seem that Daniel, Camille, or the circuit court envision a property award that
exceeds 50% of Daniel’s disposable retired pay. Therefore, it appears DFAS could
provide direct payments to Camille, and if the court is inclined to explore utilizing
this payments mechanism on remand, Volume 7B, Chapter 29 of the Department of
Defense rules and regulations, entitled “Former Spouse Payments From Retired
Pay,” provides instruction on how DFAS interprets division of military retirement
court orders and provides sample court orders that are routinely accepted by DFAS.
See DoD FMR 7000.14-R, vol. 7B, ch. 29.
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Conclusion
[¶36.] The abridged record here, “insofar as it exists[,]” reveals a legal error
in the application of federal law to determine Daniel’s high-3 amount. See Graff v.
Children’s Care Hosp. & Sch., 2020 S.D. 26, ¶ 16,
943 N.W.2d 484, 489 (holding
“appellate review in the absence of a transcript is not categorically precluded in all
cases,” but rather may be undertaken “insofar as [the record] exists”). This error
prejudiced Camille because it substantially reduced what we believe the circuit
court intended to be a true reflection of an equal share of Daniel’s disposable retired
pay attributable to time he and Camille were married. We, therefore, vacate the
portion of the court’s divorce decree dividing Daniel’s military retirement and
remand the case for further proceedings. 8
[¶37.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
8. Both parties have submitted requests for appellate attorney’s fees which are
authorized in the circuit court and on appeal, so long as they are reasonable.
See SDCL 15-17-38, 15-26A-87.3. However, we decline to grant attorney’s
fees here.
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