Opinion
2 CA-CV 2024-0104-FC
09-17-2024
Afiah Antwi, Petitioner/Appellee, v. Alfred Purvis, Respondent/Appellant.
Gillespie, Shields & Taylor, Phoenix By DeeAn Gillespie Strub Counsel for Petitioner/Appellee Alfred Purvis, Gilbert In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2021007469 The Honorable Max H. Covil, Judge
Gillespie, Shields & Taylor, Phoenix By DeeAn Gillespie Strub Counsel for Petitioner/Appellee
Alfred Purvis, Gilbert In Propria Persona
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
SKLAR, PRESIDING JUDGE
¶1 Alfred Purvis appeals from the superior court's post-decree ruling dividing his military retirement pay with Afiah Antwi. He challenges the court's power to divide the pay, the timing of the division, and the payment calculation. We reject his arguments as to the court's power and its payment calculation. However, we agree that the court erred to the extent it ordered that any division occur before Purvis retires. We therefore affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
¶2 In 2023, the superior court annulled Purvis and Antwi's marriage. The annulment decree divided Purvis's military retirement pay equally between him and Antwi. Several months after the court entered the decree, Antwi petitioned to obtain a present-day valuation of the retirement pay. She also asked the court to offset that amount against Purvis's interest in the community home.
¶3 After an evidentiary hearing, the superior court valued Antwi's portion of the military retirement at $83,293. It ordered Purvis to pay Antwi half this amount, or $41,646.50, in a lump sum from his interest in the home. It further ordered that he pay her the remaining amount via military allotment. Purvis appealed.
POWER TO DIVIDE MILITARY RETIREMENT PAY
¶4 Purvis first argues that the superior court lacked the power to divide the retirement pay. Specifically, he argues that: (1) the court lacked subject matter jurisdiction; (2) the federal "10/10 rule" precludes Antwi from any right to the pay; and (3) the pay is not property and therefore not subject to division.
I. Subject matter jurisdiction
¶5 Purvis frames his argument about the superior court's power as implicating subject matter jurisdiction. He argues that under the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210 (1981), the court lacked such jurisdiction. We review its jurisdiction de novo. See Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 5 (App. 2012).
¶6 Subject matter jurisdiction is the court's power to decide a case. Pritchard v. State, 163 Ariz. 427, 430 (1990). McCarty held that federal law preempted state courts' power to divide military retirement pay under community-property laws. 453 U.S. at 233-36. However, that holding has been superseded by the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408. See Howell v. Howell, 581 U.S. 214, 222 (2017).
¶7 Subsection (c) of that statute allows the superior court to divide military retirement pay pursuant to state law. Arizona law also authorizes such a division. A.R.S. § 25-318(A) (court authorized to divide community property in annulment proceedings); see also Barron v. Barron, 246 Ariz. 449, ¶ 7 (2019) ("[S]ince the enactment of the USFSPA, state courts have been able 'to treat disposable retired pay as community property.'" (quoting Mansell v. Mansell, 490 U.S. 581, 589 (1989))). Thus, we reject Purvis's argument that the court lacked jurisdiction.
II. 10/10 rule
¶8 Purvis further argues that the superior court's order violates subsection (d)(2) of the USFSPA, which is known as the "10/10 rule." That rule provides that "payments may not be made" under the USFSPA if that spouse was not married to the service member for ten years or more during which the member performed at least ten years of service. 10 U.S.C. § 1408(d)(2).
¶9 But the 10/10 rule limits only the superior court's power to order the military to make the payment under the USFSPA. 10 U.S.C. § 1408(d). It does not affect the court's power to divide the retirement pay or order that the pay be distributed some other way, such as by the service member. 10 U.S.C. § 1408(c), (d).
¶10 For that reason, Purvis's argument that Antwi was required to "exhaust her administrative remedies" by applying for her share of his retirement pay also fails. Neither the USFSPA nor Arizona law states that an application is required before the superior court can order a division. Here, the court ordered Purvis to effectuate that division via lump sum and voluntary allotment. The court did not order Antwi to apply for her portion of the military retirement pay under 10 U.S.C. § 1408(d). Consequently, the 10/10 rule does not preclude the court's order.
III. Property subject to division
¶11 Purvis also argues that military retirement pay is not property subject to division. We lack jurisdiction to address this issue because it could have been raised on appeal from the underlying decree and is unrelated to the superior court's jurisdiction to divide the pay. See Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (App. 1995) (appealable post-judgment orders must raise different issues than those arising from underlying judgment's appeal); Olesen v. Daniel, 251 Ariz. 25, ¶ 9 (App. 2021) (subject matter jurisdiction "can be raised at any stage of the proceedings." (quoting Swichtenberg v. Brimer, 171 Ariz. 77, 82 (App. 1991))). We therefore do not address this argument.
TIMING AND NATURE OF PAYMENTS
¶12 Purvis next argues that the superior court incorrectly caused him "undue hardship" by requiring him to pay, before retirement, the lump sum and taxes on the pay. We review the court's property division for an abuse of discretion. Hammett v. Hammett, 247 Ariz. 556, ¶ 13 (App. 2019). A court abuses this discretion when it "misapplies the law or predicates its decision on incorrect legal principles." Id. (quoting State v. Jackson, 208 Ariz. 56, ¶ 12 (App. 2004)).
¶13 The distribution of military retirement pay is governed by the USFSPA. 10 U.S.C. § 1408(a)(4)(A), (c)(1), (c)(3), (d)(1); Barron, 246 Ariz. 449, ¶ 18. As our supreme court explained in Barron, the USFSPA prohibits courts from ordering a service member to pay a former spouse a portion of the military retirement pay before the service member has retired. 246 Ariz. 449, ¶ 18 ("[S]tate courts cannot order service members to make [military retirement pay]-based payments to former spouses before retirement."). This is because under the USFSPA, a service member is not "entitled" to retirement pay until the "member has applied and been approved for military retirement benefits." Id. ¶ 15. Until then, any potential retirement pay is "discretionary, and thus a member's interest in [it] is neither vested nor matured." Id. ¶ 16.
¶14 From this record, it appears that Purvis is not yet eligible to retire. Thus, to the extent the superior court's order entitles Antwi to compensation for her share of the retirement pay before Purvis retires- which is not clear from the order's language-it is in error. Under the USFSPA and Barron, the court may not require Purvis to provide Antwi her share of his retirement pay until he actually retires and becomes entitled to that pay.
PAYMENT CALCULATION
¶15 Purvis further suggests that the superior court erred in calculating Antwi's share of his retirement pay at $83,293. The court must divide community property equitably. A.R.S. § 25-318(A). An equitable division must be based on "a concept of fairness dependent upon the facts of particular cases," which generally requires an equal distribution. Toth v. Toth, 190 Ariz. 218, 221 (1997). The court has broad discretion in effectuating this requirement, including post-annulment. See Boncoskey v. Boncoskey, 216 Ariz. 448, ¶ 13 (App. 2007).
¶16 In the context of retirement benefits, a superior court may in some cases require the employee-spouse to pay the non-employee spouse's portion of the community share in a lump sum. Johnson v. Johnson, 131 Ariz. 38, 41 (1981). This methodology-the present-cash-value method-is required when the benefit is "matured and payable." Koelsch v. Koelsch, 148 Ariz. 176, 183 (1986). But it is not necessarily appropriate when the right to pension benefits is not "unconditional and immediate." Boncoskey, 216 Ariz. 448, ¶¶ 15-17. This is because "the extensive actuarial calculations that are necessary to produce a present value lump sum are expensive, speculative, and always inaccurate." Koelsch, 148 Ariz. at 184.
¶17 However, Purvis has failed to supply us with the hearing transcript necessary for us to consider the appropriateness of the superior court's calculation. See Ariz. R. Civ. App. P. 11(c)(1) (appellant's duty to order transcripts necessary for consideration of issues on appeal). It is therefore unclear why the court applied the present-cash-value method even though Purvis does not appear to have retired. But as Purvis acknowledges, the absence of a transcript requires us to presume the evidence supports the court's findings and conclusions. Blair v. Burgener, 226 Ariz. 213, ¶ 9 (App. 2010). Purvis also does not develop an argument about how he believes the court erred in its calculation. We thus deem that argument waived and affirm the court's calculation. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (concluding that failure to develop argument can waive that issue on appeal).
¶18 Still, it may be necessary for the superior court on remand to consider one issue concerning the valuation of Antwi's share. The court calculated that share based on its "present-day value." This language suggests that the court made a present-value calculation based on the assumption that Purvis would be required to pay it immediately. If that is true, the court will need to recalculate the value of Antwi's share based on its present value as of Purvis's retirement date. See Koelsch, 148 Ariz. at 183. Thus, unless Purvis and Antwi can agree on a buyout of Antwi's interest, the court may need to reserve jurisdiction to make this calculation at that time. See id.; see also Hoobler v. Hoobler, 254 Ariz. 130, ¶ 15 (App. 2022).
¶19 Finally, Purvis argues that the superior court abused its discretion in ordering him to secure a voluntary allotment to pay Antwi's share. But he points to no authority suggesting that the court lacks the power to enter such orders, other than the fact that the procedure is called a "voluntary" allotment. We see nothing in the applicable law rendering that nomenclature controlling, especially given the court's broad discretion to divide property. See Boncoskey, 216 Ariz. 448, ¶ 13.
¶20 Nonetheless, the superior court's order required Purvis to "secure the military retirement allotment within 60 days of the date of this order." It is unclear from the record whether Purvis can secure the allotment before retiring. We therefore reverse that portion of the order. The court remains free to order Purvis to secure the allotment, provided it does not require him to do so until he retires. See 10 U.S.C. § 1408(a)(4)(A), (c)(1), (d)(1); Barron, 246 Ariz. 449, ¶¶ 14-18.
ATTORNEY FEES
¶21 Although we are remanding to the superior court, we nevertheless conclude that Antwi is the prevailing party in this appeal. She is therefore entitled to recover her costs on appeal upon compliance with Rule 21(b) of the Arizona Rules of Civil Appellate Procedure. A.R.S. § 12-341. We deny her request for attorney fees in our discretion.
DISPOSITION
¶22 We affirm the superior court's order that the military retirement pay is divisible. We reverse its order to the extent it requires that the retirement pay be divided before Purvis retires, as well as its order requiring that Purvis secure the voluntary allotment within sixty days. We remand for further proceedings consistent with this decision.