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Absence, Basic Training, Custody and Deployment: the A-B-C-D of Military Parenting

The hazards of military service are well known. Lesser known are the hazards to home life’s rights and responsibilities that service in the military brings. A pair of cases decided on January 29 brought to light the impact of military duties on custody and visitation.

In Hazelett v. Hazelett, the Indiana Court of Appeals reviewed a case in which the parties were married for about 6 years when the mother filed for divorce; two months later, their child was born while the father was serving overseas. Finding that the father had been absent due to military duties in South Korea, he had only been in Indiana for five days after the child’s birth, and he had not had any type of contact with the child, including by electronic means, from birth until his return to Indiana the week before the final hearing in the case, the judge granted custody to the mother, ruled out overnight visitation until the child was three, and required visitation to be supervised.

The father contended that the trial court erred by denying him overnight parenting time based solely on his absence due to his military service. The appellate court considered this to be a challenge to the trial court’s award of legal custody to the mother on the sole basis of his military service. The Indiana statute prohibits a judge from considering a “parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

The trial court’s order was sparse on facts; in addition to the above, it merely stated that the mother had been the child’s primary caretaker since birth and the father had had very little contact with the child. The Court concluded that the judge did, in fact, consider the father’s absence due to military service as a factor in awarding mother sole legal custody, which is prohibited by statute.

The Court of Appeals ruled that the trial judge had improperly considered the father’s active-duty status as a factor in awarding mother sole legal custody, and it had failed to enter appropriate findings. It reversed the custody ruling and remanded the case.

[Author’s Notes: The reader might be confused about the “overnight visitation” argument of the father, who was stationed in South Korea at the time of the hearing. While such parenting time was not possible on a week-to-week basis for the father, it would certainly be a consideration when he took leave to return to Indiana; all servicemembers get 30 days of leave per year, accruing at 2.5 days per month. He might also utilize overnight visits upon his return from the overseas posting; his next base assignment was to be Ft. Carson, Colorado.

Also worth note is the mention of contact by electronic means. If Indiana had enacted the Uniform Deployed Parents Custody and Visitation Act, the father could have petitioned for an order requiring or allowing his regular communication with the mother and the child through electronic means. When parents cannot agree on custody and visitation terms, Article 3 of the UDPCVA sets out provisions for agreements and orders which allow an absent military parent to use electronic means in communicating with the child or children.

The UDPCVA also prohibits the court from using a parent’s past deployment or possible future deployment itself as a negative factor in determining the best interests of the child. Section 107 of the Act states:

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

In 2013 North Carolina became the second state to adopt the UDPCVA.]

* * *

On the same decision day and just three states away, the Oklahoma Supreme Court was exploring the issues of custody, visitation and deployment. The parties in Kohler v. Chambers were the biological parents of a child and they shared joint and equal custody and visitation time under a 2016 order. When the father received Army orders for basic training, he filed a motion with the court asking that his time with the child be transferred to his wife. Under the Oklahoma Deployed Parents Custody and Visitation Act, passed in 2011, the deploying parent is entitled to request transfer of his or her visitation rights to a step-parent, a designated family member, or another designated individual. There is a rebuttable presumption that the substitute custody/visitation time is in the best interest of the child and that the step-parent or other individual has a close and substantial relationship with the child.

The mother opposed the father’s motion. She didn’t argue that the substitute custodial time wasn’t in the child’s best interest. She did not say that the father’s current wife lacked a close and substantial relationship with the child. Rather, she argued that the father didn’t qualify since he was not being deployed. He was being ordered to basic training for nine weeks in South Carolina, followed by 19 weeks of advanced individual training in Virginia. The trial judge allowed the father’s motion and granted substitute parenting time rights to the step-mother.

The mother appealed. She argued that the statute applies only to parents who have been “order[ed] to another location in support of combat, contingency operation, or natural disaster,” and not those parents who receive orders for basic training.

The Oklahoma Supreme Court noted that the Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. It was designed to address unique issues arising during the deployment of military personnel, including maintenance of the parent-child bond during a parent’s temporary absence due to deployment, resuming normal custody and visitation following a servicemember’s return from deployment and preventing a deployed parent from being penalized as a result of serving his or her country. The Oklahoma statute, which was “[v]ery similar to early drafts of the UDPCVA, … was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.

The Court then examined the definition of “deployment.” The Oklahoma statute states that this term means

…the temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.

Finding that the father’s assigned duties did not qualify as deployment, the Court reversed the trial ruling, leaving the child without contact with the father’s side of the family for 28 months.

[Author’s Notes: The background music for this Oklahoma drama might be Simon and Garfunkel’s 1966 hit, “The 59th Street Bridge Song,” which begins “Slow down, you move too fast.” If the Oklahoma legislature hadn’t jumped the gun by enacting an early version of the Uniform Deployed Parents Custody and Visitation Act, this case wouldn’t have arisen.

I was a member of the Drafting Committee of the Uniform Law Commission which wrote up the UDPCVA. The initial version spoke of “deployment” in strict terms as to support of combat and contingency operations. We debated that. I pointed out that there were many other instances of “military absence” which should also trigger the rights and duties set out in the Act. For example, a servicemember could be assigned without dependents to a remote tour (e.g., Iceland or Turkey), a six-month “float” on board a Navy vessel, or temporary duty (TDY) for training or a special mission. Why limit the protection of the Act to the strict definition of “deployment” involving military operations?

We finally reached an agreement. In Article I, Section 102, deployment is defined to mean “…the movement or mobilization of a service member for more than [90] days but less than [18] months pursuant to uniformed service orders that:

(A) are designated as unaccompanied;

(B) do not authorize dependent travel; or

(C) otherwise do not permit the movement of family members to the location to which the service member is deployed.”

Perhaps a future amendment to Oklahoma’s statute will “loosen up”

the definition to include more servicemembers and their children.]

The cases are:

Hazelett v. Hazelett, 18A-DN-1592, 2019 Ind. App. LEXIS 36*; 2019 WL 347975.

Kohler v. Chambers, Case Number: 116391, 2019 OK 2 *; 2019 Okla. LEXIS 3 **; 2019 WL 350336.

*Mr. Sullivan, a retired Army Reserve JAG colonel who practices family law in Raleigh, NC, is the author of The Military Divorce Handbook (Am. Bar Assn.), about to go into its third edition. He helps attorneys nationwide with cases involving military divorce issues and the division of military retirement benefits.

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The Value of Leave

Who hasn’t doubted the value of a vacation day or two during busy times at work? The rest and respite provided by taking leave for a few days can often recharge one’s batteries, as well as make room for family time and duties at home.

But the North Carolina Court of Appeals was thinking of a different “value of leave” when it decided Rathcamp v. Danello on December 4, 2018.  In the Rathkamp case, the Court of Appeals (COA) addressed an appeal by both parties to a 2017 equitable distribution order from Mecklenburg County related to the parties’ divorce. One of the issues was valuation and classification of the vacation and sick leave of the former husband.

The ex-wife claimed that the judge had erred in failing to classify, value and divide her former husband’s job-related sick leave or annual leave. The judge made a finding in his order that there was insufficient evidence to allow classification, valuation or distribution of the accrued leave.

What did the former wife have for proof? The COA said that there was a “Statement of Earnings and Leave” that documented the ex-husband’s accrued leave as of 6 days after the date of separation, but there was no proof of its value, only the affidavit of the ex-wife that it was worth $56,218.

The COA noted that the record showed annual leave of 83 hours and sick leave of about 440 hours for the ex-husband; there was no evidence, however, no evidence in the record supported the classification and valuation claimed by the ex-wife.  Noting that case law provides that the “… party claiming that property is marital property must also provide evidence by which that property is to be valued by the trial court,” the COA affirmed the trial court’s finding of insufficient evidence, which meant a loss of about $28,000 by the former wife.

What went wrong? The ex-wife should have obtained documents from the former husband’s employer (such as an employee manual) which would have stated whether there was a cash value to accrued sick leave and vacation time.  A current or former employee familiar with the policy of the employer could have also given testimony to back up the ex-wife’s assertion of a value of over $56,000.  With such a value at stake, it certainly would make sense for the ex-wife and her attorney to spend some time nailing down the means of establishing value for the accrued leave.

The issue is not unique to North Carolina.  While half a dozen states have clearly held that vacation time and leave are marital or community property, three states – Illinois, Kentucky and Maryland – have stated that leave may not be distributed as marital property.  The Maryland case found that leave was “alternative wages,” not deferred compensation; the appellate court held that accrued leave was less tangible, more difficult to value and more personal than pension and retirement benefits, and thus it was a nonmarital asset.

In some cases, leave can have little or no value.  In the Maryland case, for example, the wife would have lost her sick leave (about $11,000) if she terminated employment.  It was only good for taking time off for health reasons, not for cashing in the time.

The same is not true, however, for military leave.  Servicemembers get 30 days of paid leave each year, accruing at 2.5 days a month.  It is worth the same amount as the base pay for each day of leave, and thus one can determine the value of an Army sergeant’s accrued leave by looking at the Leave and Earnings Statement (LES); the row entitled “Leave” will show in the box marked “CR BAL” the number of days of existing leave that have been earned as of that pay period. If the sergeant’s base pay is $4,000 a month, and his or her LES shows 60 for “CR BAL,” then the leave is worth $8,000.

It takes some time to establish the rules for valuing leave.  I was tasked with writing a brief for a Colorado attorney who needed to determine the value of the 65 days of leave shown on the LES of the husband, an Army warrant officer.  I finally figured out the location of the rules and the statute governing this issue for military cases, and I’ve finished the brief; it will be presented to the court in Colorado Springs in April.

It’s surprising how seldom accrued leave comes up in settlement negotiations.  Most of the time the parties seem unaware of the value of this asset.  It’s truly “hidden money” for some people who are going through a divorce.  In recognition of this potential problem, I wrote an article several years ago entitled “Hidden Money in Military Divorce Cases” which deals with this and other matters which may be overlooked in the divorce process.

The case is: Rathkamp v. Danello, No. COA 17-760, 2018 N.C. App. LEXIS 1190, 2018 WL 6318307 (N.C. Ct. App., Dec. 4, 2018).

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Mark Sullivan Recognized as Expert

Mark’s recognition as an expert in military retirement benefits came from a recent opinion of the Arkansas Court of Appeals. The October 3 decision, Hargis v. Hargis, involved the division of the ex-husband’s military pension. The divorce settlement gave the former wife half of the pension as of the date of divorce. The ex-wife, however, wanted half of the entire pension, including that earned before the marriage and after the divorce. Mark’s calculations carried the day, however, and the Court stated that he had correctly calculated the ex-wife’s share. The Court, recognizing him as a retired Army Reserve JAG colonel, cited him in the majority and the concurring opinion, and noted that Mark “is the author of a book [THE MILITARY DIVORCE HANDBOOK (Am. Bar Assn., 2d Ed. 2011)] on military divorce covering military retirement and pensions.”

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Costly Mistakes in Military Divorce

In too many military divorces, a client or lawyer makes a costly mistake.  Often it’s because the client is unaware of the options or the law, someone relies on rumors and myths, “barracks lawyers” and buddies provide well-meaning but erroneous information, the attorney is unaware of the rules for military retirement and its division, or the rules themselves are too complex, illogical and confusing.  For advice and assistance navigating your military divorce, call us at 919-832-8507 for a consultation.  

Welcome Kris Hilscher

Law Offices of Mark E. Sullivan, P.A. is pleased to announce that Kristopher J. Hilscher has joined the firm as Senior Associate.  Kris brings extensive experience to the firm, providing counsel to those facing divorce, custody, alimony, equitable distribution, high net worth divorce, complex estates and business divisions, domestic violence, child support, and all related family law matters.