In re the Marriage of Linda Tozer, n/k/a Linda Finch, Appellant, and Mark Tozer, Appellee.
County District Court No. 07DR2125 Honorable Deborah J.
L. Freudenberg, Colorado Springs, Colorado, for Appellant.
L. English, Colorado Springs, Colorado, for Appellee
1 In this post-dissolution of marriage case, Linda Finch
(wife) appeals the district court's order denying her
second motion to enforce a provision of the permanent orders
that awarded her a portion of the military retirement pay of
Mark Tozer (husband). We affirm.
2 In 2008, the district court dissolved the parties'
marriage and entered permanent orders, which required husband
to pay wife monthly maintenance for three years and a
percentage of his military retirement pay. The court
expressly reserved jurisdiction over maintenance to
"offset [m]ilitary [r]etirement that is exchanged"
for Veteran Administration (VA) disability benefits.
3 Several years after permanent orders were entered, as a
result of his combat-related injury, the Air Force
"relieved [husband] from active duty, " placing him
first on the temporary disability retired list and later on
the permanent disability retired list. This form of military
retirement - where the military itself retires a member who
is "unfit to perform" his duties due to a
service-related physical disability - is commonly referred to
as "Chapter 61" disability retirement. See
10 U.S.C. § 1201 (2012). A veteran receiving Chapter 61
disability retirement may opt - as husband did here - to
receive monthly payments based upon his disability rating in
lieu of military retirement pay. See 10 U.S.C.
§ 1401 (2012 & Supp. I 2013).
4 In addition to his Chapter 61 disability retirement pay,
husband also received a VA disability benefit. Thus, his
entire military retirement pay was based on disability.
5 In 2014, wife moved to enforce the provision of the
permanent orders awarding her a share of husband's
military retirement pay. In her motion, wife asserted that
husband "ha[d] refused to comply" with the
permanent orders provision requiring payment of husband's
military retirement pay and that husband "ha[d]
effectively reduced his military retirement pay that is
subject to division by electing" instead to receive
disability benefits. The district court denied wife's
motion, determining that husband's disability benefits
were not subject to division under federal law.
6 Roughly a year later, wife again moved to enforce the
permanent orders provision regarding husband's military
retirement pay. This time, however, she sought equitable
relief. She alleged that by unilaterally and voluntarily
electing to convert his military retirement pay into
disability benefits, husband had essentially eliminated
wife's share of husband's military retirement pay
that the court had awarded her. As a result, she urged the
court to order husband to compensate her in an amount equal
to her share of husband's military retirement pay.
7 At the hearing on wife's motion, the parties presented
an independent expert whom they jointly asked to express
"an opinion concerning the issue of military retired
pay." The expert testified that none of husband's
disability pay was subject to division.
8 The district court then denied wife's motion,
concluding that husband's retirement was not
"divisible as a matter of law." And because wife
had remarried before husband retired, it denied wife's
request to ...