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haiki
07-07-07, 06:47 AM
Judge grabbing any law, punishes veteran.
This is the short version. Lee County, Florida Judge Margaret O. Steinbeck, Former Military lawyer, avoided the use of a veteran's disability compensation benefits as alimony, in Fisher v. Fisher citing, " USC 38 sec. 5301 is a general statute which prohibits assignability, levy or seizure." Having avoiding conflict with federal law, using her status, and the authority of her court to inflict her punishment to the veteran, in the only other way that she could, because Mr. Fisher argued federal law precludes VA disability benefits as an award of alimony, Judge Steinbeck goes after his Social Security disability compensation.

Citing, in Fisher, her Memorandum of Law, USC 10 sec. 1408 Uniformed Services Former Spouses protection Act. (USFSPA). “We now move to a more specific law USC 10 sec. 1408 (c) which allows the court to treat retired pay as property of the member and spouse.”

Judge Steinbeck then uses, as her primary decisions of law, in the justification of awarding alimony by going after this veterans Social Security disability compensation. Citing, “Finally, we look at USC 42 sec. 659 which allows garnishment to enforce alimony obligations.”

Here is the connection Judge Steinbeck tries to make, while having nothing to do with a veterans disability compensation, to justify her Social Security ruling. “Of more importance is 659 (h)(I)(A)(ii)(V). Money subject to process which includes disability paid...to a former member...who has waived a portion of the retirement or retainer pay in order to receive such compensation which is exactly the situation of our present case.”

Being two distinct, and unrelated issues, the obvious question being, what has a Veterans’ Administration retired pay benefits have to do with Social Security disability compensation? Absolutely nothing! Except for the fact it reveals the judges thinking. Into her not letting Fisher get off that easy. And as many Judges do, will use the authority of the court to punish a veteran.

As I have just illustrated with the Judge Steinbeck ruling, I have seen many references, that state courts, indicate and refer quite readily, as you will see, when justifying an alimony award in going after a veterans' Social Security compensation, to Title 42 USC 659. As I read it, 659 is not a law used in a court proceeding determining the rightfulness of an alimony award. 659 is purely administrative, only to be used after a withholding judgment has been made. An administrative follow-up process upon the direction, and pursuant to State or local law, then administered by the Secretary of the Treasury according to 42 USC 659. As I mentioned, Judges will try any trick in the book. And this is a classic. Please read the law and see for yourself.

Here is the reference that started my thinking on the subject. From a Nigel Crum, Friend of the Court, Ninth Judicial Circuit Court, State of Michigan. To Gordon Sutton. "You state, correctly that USCS 407 is clear in stating that these benefits cannot be garnished. However there is an exception. 42 USCS 659, which you cited in your letter, is the exception. That law consents to income withholding from SSD for the purposes of child support or alimony." Yes, 659 is the consent, upon written effective notice, to the Secretary of the Treasury, to withholding as determined only through a court of law! 659 is not the justification by legal counsel, the courts, or the Secretary of the Treasury, the consent to, or seize withholding without the proper legal arguments in the taking of a veteran’s compensation. 659 is not the legal principle of law over titles 38 USC 5301, 42 USC 407 arguments as to what is truly the law in the unfolding court room legal process. Only then, and only after the legal withholding of moneys has been determined, and upon effective written notice, administrative consent (42 USC 659) is given by the United States to the Secretary of the Treasury to process withholding.

Consent of 659 is not given to any judge. The consent role of 659 law is given to the Secretary of the Treasury. To enforcement of court proceedings. "(b) Consent to support enforcement. With respect to notice to withhold income pursuant to.. or any other order or process to enforce support obligations.. (2) Response to notice or process. If an agent.. receives notice pursuant to State procedures in effect... or is effectively served with any order, process or interrogatory, with respect to an individual's child support or alimony payment obligations, the agent shall..." And this all is explained in “(5) Legal process. The term ‘legal process’ means any writ, order, summons, or other similar process in the nature of garnishment (a) which is issued by
(i) a court or an administrative agency of competent jurisdiction in any State, territory, or possession of the United States;
(iii) an authorized official pursuant to an order of such a court or an administrative agency of competent jurisdiction or pursuant to State or local law; and
(B) which is directed to, and the purpose of which is to compel, a governmental entity which holds moneys which are otherwise payable to an individual to make payment from the moneys to another party in order to satisfy a legal obligation of the individual to provide child support or make alimony payments.”

Part (B) explains it all. Contrary to Mr. Nigel’s statement, there is no exception to 407 or 5301. 596 is a yet to be determined law that may be required in the fulfillment of a court determination that withholding is accepted.

Another example, of possibly hundreds more, in the complete misuse and mis-interpretation of 42 USC 659. See for yourself, reading 659. Here, in what follows, the court has used 42 USC 659, a Secretary of the Treasury administrative garnishment provision in repealing the LHWCA Workers Compensation Act. 659 being administrative only, but in Moyle v. OWPC, the courts had used it to repeal the LHWCA. Argued and Submitted June 2, 1998--Seattle, Washington.

Let me illustrate my point, in another way, how the court is using the wrong law in court proceedings when awarding alimony (Fisher). Let's say you were the Secretary of the Treasury, or his agent, involved in enforcing withholding matters. A judge phones, or writes you a note explaining although he had not yet finalized a ruling in an alimony award, he requests that you immediately start withholding of Social Security disability compensation, citing that his final ruling will be based on 659.

The question then being, before the finalization of a court ordered withholding judgment, would you honor the request? Your answer should be, no, I can't. Because 42 USC 659 is not a cause of action, and can be only implemented after final court judgment, and provides, "... receiving notice to state procedures in effect...or is effectively served with any order, process, or interrogatory, with respect to an individuals child support or alimony payment obligations, the agent shall..."

This is exactly what did not happen in Fisher, where the judge, arbitrarily applied an administrative law in her ruling. Here, Judge Steinbeck, finds, orders, and adjudges 659 in justifying withholding in an award of alimony. A law that comes into play, not during or before judgment ruling, but is presented, and processed only after a formal finalized court ordered writ, or similar process is presented to the Secretary of the Treasury.

cucuy21
08-15-09, 11:29 AM
This is another good example of the way Congress tells us "Thank You for your service and standby, we may need you again." There has been example following example of how the State judges circumvent the Uniformed Services Former Spousal Protection Act (USFSPA). I am currently going through one of these actions. A California judge, James Compton, Kern County Superior Court, ordered me to pay my ex-spouse 500 dollars a month because she was due 50% of my retirement. He did not care to hear about the "disposable pay" only Federal law requirement. He stated that nonetheless, she was owed 50% from my gross pay. I am scheduled for another hearing, with a new attorney. It would help if all service personnel made it a point to tell their Congressional reps that the USFSPA needs to be repealed, enforced, or amended. We earned our retirement pay, and continue to do so, by wearing a uniform, not following one. :usmc:

tripledog
08-16-09, 12:44 AM
"We earned our retirement pay, and continue to do so, by wearing a uniform, not following one"

How long married ?