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JACQUELINE M. JOHNSON n/k/a
JACQUELINE M. GARCIA,
Petitioner-Appellant,
v.
DAVID B. JOHNSON,
Respondent-Appellee,
and
NEW MEXICO HUMAN SERVICES
DEPARTMENT,
Intervenor.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Elizabeth E. Whitefield, District Judge
Jacqueline M. Johnson, Las Vegas, NM, Pro
Se Appellant
Rosalie Fragoso, Albuquerque, NM, for
Appellee
J. MILES HANISEE, Judge. WE CONCUR: LINDA
M. VANZI, Chief Judge, JULIE J. VARGAS, Judge
{1} Petitioner
Jacqueline Johnson (Wife) has appealed from the district court’s order adopting
the conclusions and recommendations of a family court hearing officer, to the
effect that 46.5% of Wife’s gross military retirement pay is Respondent David
Johnson’s (Husband) community property. We previously issued a notice of
proposed summary disposition in which we proposed to affirm. Wife has filed a
memorandum in opposition. After due consideration, we remain unpersuaded. We
therefore affirm.
The pertinent background information was set forth in the
notice of proposed summary disposition. We will avoid undue repetition here,
and focus instead on the content of the memorandum in opposition.
Wife reiterates her position that the district court erred in
calculating Husband’s community share based on her gross disposable retired
pay. [MIO 1-6] As we stated in our calendar notice, the applicable definition
of “disposable retired pay” is contained in Section 1408 of the Uniformed
Services Former Spouses Act (USFSPA):
A. The term “disposable
retired pay” means the total monthly retired pay to which a member is entitled
. . . less amounts which—
(i) are owed by that member
to the United States for previous overpayments of retired pay and for
recoupments required by law resulting from entitlement to retired pay;
(ii) are deducted from the
retired pay of such member as a result of forfeitures or retired pay ordered by
a court-martial or as a result of a waiver of retired pay required by law in
order to receive compensation under title 5 or title 38;
(iii) in the case of a member
entitled to retired pay under chapter 61 of this title, are equal to the amount
of retired pay of the member under that chapter computed using the percentage
of the member’s disability on the date when the member was retired (or the date
on which the member’s name was placed on the temporary disability retired
list); or
(iv) are deducted because of
an election under chapter 73 of this title to provide an annuity to a spouse or
former spouse to whom payment of a portion of such member’s retired pay is
being made pursuant to a court order under this section.
10 U.S.C. § 1408(a)(4)(A) (2016).
{2} In her memorandum
in opposition, Wife asserts that the definition of “disposable earnings”
contained in the Department of Defense Financial Management Regulation, DoD
7000.14-R, Volume 7B, Chapter 27, paragraph 270203 (Jan. 2017), should govern.
However, as that publication makes clear, Chapter 27 “provide[s] information
unique to the collection of child support and/or alimony from military retired
pay” and therefore does not apply to the matter at hand, where military retired
pay is treated as community property under state law. DoD F 7000.14-R, Volume
7B, Chapter 27, para. 270101 (Jan. 2017);
see also para. 270201
(“Alimony, as used in Chapters 27 and 29, excludes payments or transfers of
property made in compliance with any community property settlement, equitable
distribution of property, or other division of property between the spouse(s)
or former spouse(s).”).
{3} Wife’s reliance on
10 U.S.C. § 1435(2) (2015) is likewise misplaced. [MIO 2] That section
establishes which children of a member of the armed forces “are eligible to be
made the beneficiaries of, or to receive payments under, an annuity elected
under this subchapter[.]”
Id. To the extent Wife’s argument is that her
gross retired pay should be adjusted under Section 1408 of USFSPA, we are
unpersuaded, as that section refers solely to an “annuity to a spouse or former
spouse[.]” 10 U.S.C. § 1408(a)(4)(A)(iv). Wife points to no evidence in
the record on appeal establishing that she ever made “an election under chapter
73 of this title to provide an annuity to [Husband.]”
Id.
{4} In a final effort
to establish that the district court erred in this context, Wife quotes from an
email she asserts to have received from a paralegal employed by the Defense
Finance and Accounting Services (DFAS), in which DFAS appears to apply the
definition of “disposable earnings” contained in DoD 7000.14-R, Volume 7B,
Chapter 27, paragraph 270203, in calculating both Wife’s child support
obligation and Husband’s community property interest in her retirement pay.
While Wife asserts that she provided a copy of this email to Husband’s
attorney, [MIO 4, 6] Wife does not claim to have introduced it into evidence
below, and our review of the record proper failed to discover any indication
that this email was presented either to the hearing officer or the district
court. As such, we may not consider it on appeal.
See State v. Harrison,
2010-NMSC-038, ¶ 10,
148 N.M. 500,
238 P.3d 869 (“Matters outside the record
present no issue for review.”(internal quotation marks and citation omitted)).
Therefore we merely observe, without deciding, that DFAS’s reliance on the
definition of “disposable earnings” in relation to Husband’s community property
interest appears to be in error. We further direct Wife’s attention to Section
1408(e)(6) of USFSPA, which states:
Nothing in this section shall be
construed to relieve a member of liability for the payment of alimony, child
support, or other payments required by a court order on the grounds that
payments made out of disposable retired pay under this section have been made in
the maximum permitted under paragraph (1) or subparagraph (B) of paragraph (4).
Any such unsatisfied obligation of a member may be enforced by any means
available under law other than the means provided under this section in any
case in which the maximum amount permitted under paragraph (1) has been paid
and under section 459 of the Social Security Act (42 U.S.C. 659) in any case in
which the maximum amount permitted under subparagraph (B) of paragraph (4) has
been paid.
{5} In the memorandum
in opposition, Wife also reiterates her position that Husband’s community share
in her retired pay should terminate after 223 monthly payments or at the
emancipation of their children, or that it should be reduced to twenty-five
percent of her disposable retired pay. [MIO 6] Once again, Wife cites no
authority supporting any of these proposed limitations. [MIO 6-9]
See ITT
Educ. Servs., Inc. v. Taxation & Revenue Dep’t,
1998-NMCA-078, ¶ 10,
125 N.M. 244,
959 P.2d 969 (stating that this Court will not consider propositions
that are unsupported by citation to authority). As such, we remain unpersuaded.
{6} Accordingly, for
the reasons stated above and in the notice of proposed summary disposition, we
affirm.
LINDA M. VANZI, Chief Judge