Esteemed colleagues:
As many of you know, a military disability pension is not subject to equitable distribution - it's exempt via clear federal law. Since judges can't directly distribute the disability pension, many (23) States, including NJ in Whitfield v. Whitfield, made up for it out of other assets. For example, if a court can't give a spouse the $10K from a disability pension, it would give an extra $10K from the house equity, or longer alimony, etc. Six very conservative states took the position that you can't do this - that it's circumventing the intent of congress and the other spouse is out of luck.
In May, the United States Supreme Court in Howell v. Howell adopted the position held by the minority of States, with Justice Roberts angrily saying that states may not do this - ever - that it's circumventing the congressional intent and the remedy is to have Congress revise the statute. This is going to leave a lot of dependant spouses out in the cold and the decision has been very harshly criticized. It is, however, the supreme law of the land.
I had a matter on appeal that had this very issue when the case came out. I applied to the App Div for a temporary remand since the Howell case didn't exist when the decision from the trial court was entered. It didn't seem "fair" the judge to be reversed without first considering the case and applying it. I gave a pretty detailed brief. There's no wiggle room here and no way around Howell.
I got an order from the App Div which denies the motion. There's no explanation, no "supplemental" explaining why they denied it.
I'd like to take another whack at this via an appellate motion without my client incurring the full cost of an appeal. Does it sound viable to file a motion an, instead of seeking a remand, I ask the Appellate Division to declare the trial court order void as it's been preempted by the US SCT? Or to seek summary reversal on this basis (or some combination of the two?) Or is this whole appeal going to have to run its course? (What a waste of time, counsel fees, and judicial resources!)
<x-sigsep></x-sigsep> David Perry Davis, Esq.
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