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In re Marriage of Tozer

Court of Appeals of Colorado, Fourth Division

November 30, 2017

In re the Marriage of Linda Tozer, n/k/a Linda Finch, Appellant, and Mark Tozer, Appellee.

         El Paso County District Court No. 07DR2125 Honorable Deborah J. Grohs, Judge.

          Kent L. Freudenberg, Colorado Springs, Colorado, for Appellant.

          James L. English, Colorado Springs, Colorado, for Appellee

          OPINION

          DUNN JUDGE.

         ¶ 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.

         I. Background

         ¶ 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.[1]

         ¶ 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 ...


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