Shirley A. Brouillette v. Kendrick L. Brouillette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-357

SHIRLEY A. BROUILLETTE

VERSUS

KENDRICK L. BROUILLETTE

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 217507
HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

Cooks, J., dissents and assigns written reasons.

AFFIRMED.

Richard E. Lee
810 Main Street
Pineville, LA 71360
Telephone: (318) 448-1391
COUNSEL FOR:
Defendant/Appellee - Kendrick L. Brouillette

Brian Davis Mosley
P. O. Box 12127
Alexandria, LA 71315
Telephone: (318) 484-6100
COUNSEL FOR:
Plaintiff/Appellant: - Shirley A. Brouillette

THIBODEAUX, Chief Judge.

Shirley Brouillette appeals a trial court judgment which characterized

combat-related military benefits received by her ex-husband, Kendrick Brouillette,

as disability benefits exempt from Louisiana’s community property laws. Shirley

appeals.

For the following reasons, we affirm.

I.

ISSUES

We must decide whether the trial court erred:

(1) in finding that Kendrick Brouillette intended that
47% of his retirement benefits were not paid in lieu
of alimony;

(2) in finding that the military benefits were disability
benefits and not retired pay;

(3) in excluding the testimony of Darlene Doolittle, as
offered by plaintiff/appellant, to prove the intent of
Kendrick Brouillette; and,

(4) in finding that Kendrick Brouillette did alter his
military benefits from retired pay to disabled pay
with the intent to deprive Shirley Brouillette of her
portion of the community.

II.

FACTS AND PROCEDURAL HISTORY

Shirley divorced Kendrick in 1986. The two agreed to and signed a

Community Property Settlement that provided Shirley would receive 47% of

Kendrick’s military retirement benefits as her part of the community. Shirley

received monthly payments from the retirement benefit, which were paid through the

garnishment of Kendrick’s monthly check from the Department of Veteran’s Affairs.

In 2004, Kendrick applied for eligibility to receive Combat-Related Special

Compensation (CRSC) with the United States Army. CRSC is not considered a

retirement benefit. As a result, Shirley stopped receiving monthly payments.

Shirley filed a Petition to Enforce the Community Property Settlement

agreement. Kendrick filed a Peremptory Exception of Res Judicata, which was

ultimately granted by the trial court. Shirley appealed to the Third Circuit. We

affirmed in part and remanded in part. Brouillette v. Brouillette, 09-35 (La.App. 3

Cir. 5/6/09), 18 So.3d 756. On remand, the trial court held that the nature of

Kendrick’s military benefit did not qualify as a retirement benefit and the state had

no right to intervene and demand garnishment for the benefit for Shirley.

Our previous consideration of this case on appeal resulted in a remand

to the trial court with specific instructions to address the purpose and intent of

Kendrick’s military retirement assignment at the time he entered into the Community

Property Settlement Agreement with his wife.

III.

LAW AND DISCUSSION

1. The purpose and intent of Kendrick’s assignment

On remand, the trial court was asked to determine the parties’ intentions

under the Community Property Settlement Agreement. The terms of the agreement

stated that Shirley Brouillette would receive 47% of Kendrick Brouillette’s military

retirement pay as her portion of the community. The parties reached this designation

by using the Sims formula, which calculates the amount contributed by each member

of the community, during the community, in order to equally dissolve the community.

Sims v. Sims, 358 So.2d 919 (La.1978).

Shirley asserts that the trial court erred by not applying Poullard v.

Poullard, 00-1121 (La. App. 3 Cir. 01/31/01), 780 So.2d 498. Poullard held that an

2

ex-spouse still owed alimony despite a change from retirement benefits to disability

benefits. Poullard involved a couple who, by consent judgment, agreed to dissolve

the community. The consent judgment provided permanent alimony for the ex-wife.

Subsequently, the husband sought to change his benefits from retirement benefits to

disability benefits. He argued that the wife was not entitled to any portion of the

disability benefits because he had only agreed to partition the retirement benefits. We

disagreed, determining that at the time of the consent judgment the husband intended

to provide the wife with permanent alimony irrespective of the source for that

alimony. Id. at 500.

Unlike Poullard, the issue here is not related to alimony. Rather,

Kendrick Brouillette and Shirley Brouillette agreed that Shirley was to receive 47%

of the retirement benefits Kendrick received from the United States Army.

Furthermore, during the trial, the parties stipulated that the 47% “was not granted to

her [Shirley] for waiver of any future alimony.” Therefore, Poullard is

distinguishable and cannot avail Shirley under the circumstances of this case. The

47% of retirement benefits previously received by Shirley reflected her community

interest, and was not apportioned to alimony.

2. The designation of pay as disability pay

Kendrick received military retirement benefits from 1974 through 2004.

In 2004, he applied to the United States Army for consideration to receive Combat-

Related Special Compensation. Combat-Related Special Compensation (CRSC) is

a special benefit program designed by the Department of Defense to better aid retired

veterans afflicted by combat-related injuries or disabilities. 10 U.S.C. § 1413a.1 To

1
§ 1413a. Combat-related special compensation

(a) Authority. The Secretary concerned shall pay to each eligible combat-related disabled
uniformed services retiree who elects benefits under this section a monthly amount for the

3

qualify for CRSC, the veteran must be retired from active duty military, prove that

he/she is at least ten-percent disabled as the result of combat duty, and personally

apply to receive the special compensation. Id. The provisions within this section

provide that CRSC is not military retired pay. 10 U.S.C. § 1413a(g).

Louisiana community property law recognizes that each spouse owns an

interest in community assets acquired or built during marriage. Generally, after the

dissolution of marriage, each spouse is entitled to his/her pro rata share of the

community assets, including retirement plans and pensions. Frazier v. Harper, 600

So.2d 59 (La.1992); Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975);

La.Code Civ.P. art. 2402. However, it is clear under Louisiana jurisprudence that

recipients of military disability benefits own the sole interest in those benefits.

Russell v. Russell, 520 So.2d 435 (La.App. 3 Cir. 1987); Rearden v. Rearden, 568

So.2d 1111 (La.App. 2 Cir. 1990) (Veteran’s Affairs disability benefits, received in

lieu of military retirement benefits, are not subject to Louisiana’s community property

law).

Kendrick introduced Defendant’s Exhibit Number 5. Exhibit 5 is a

notice letter describing Kendrick’s eligibility to receive CRSC. There is no

suggestion within the Exhibit, or the record as a whole, implying that Kendrick was/is

receiving any military benefits aside from CRSC. As a result, the trial court properly

concluded that Kendrick is receiving disability benefits.

Furthermore, according to the Supremacy Clause of the United States

Constitution, federal law may preempt state law when Congress shows clear intent

when enacting a law. Epoch Wellsite Servs. v. Ortego, 03-547 (La.App. 3 Cir.

combat-related disability of the retiree determined under subsection (b).

10 U.S.C. § 1413a(a).

4

11/5/03), 858 So.2d 827. Within the Combat-Related Special Compensation statute,

Congress expressed that CRSC pay was not military retired pay. See 10 U.S.C. §

1413a(g). Thus, federal law is controlling. As a result, we affirm the trial court’s

determination that Kendrick’s military benefits are disability benefits.

3. The exclusion of evidence

The trial court excluded the testimony of Darlene Doolittle, daughter of

Kendrick and Shirley, which was offered by Shirley to prove Kendrick’s intent

regarding the change in designation of his retirement benefits. The offered testimony

was to describe a form that Kendrick used to change his military benefit plan. The

form at issue could not be produced; therefore, there was no way to rebut the

testimony of the daughter.

The court permitted Shirley to proffer the testimony in order to fully

complete the record and make the excluded testimony reviewable by this court. Sher

v. Lafayette Ins. Co., 07-2441 (La. 7/7/08), 988 So.2d 186. After review, we do not

find the trial court erred in excluding the testimony. “The trial court is vested with

vast discretion in connection with the admissibility of evidence. It will not be

reversed absent an abuse of that discretion.” Bridgers v. Sw. La. Hosp. Ass’n, 99-520

(La.App. 3 Cir. 11/3/99), 746 So.2d 731,735 (citing Maddox v. Omni Drilling Corp.,

96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writ denied, 97-2766 (La. 1/30/98),

709 So.2d 706). We find there is no showing of an abuse of discretion on the part of

the trial judge. We affirm the trial court’s decision to exclude the testimony of

Darlene Doolittle.

5

4. Receipt of Combat-Related Special Compensation

Kendrick asserted that receipt of Combat-Related Special Pay is

disability pay, such that he no longer receives any retirement benefits from the United

States Army. The record is void of any evidence suggesting otherwise.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All

costs of this appeal are assessed to Shirley Brouillette.

AFFIRMED.

6

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-357

SHIRLEY A. BROUILLETTE

VERSUS

KENDRICK L. BROUILLETTE

COOKS, J., dissenting.

I do not agree with the majority’s decision to affirm. The result of the trial

court’s ruling, if allowed to stand, disregards the true intent of the parties. Their

intent was for Kendrick to pay Shirley 47% of his retirement benefits for as long as

Shirley lived, provided she did not remarry. She is still alive and has not remarried.

Further, Shirley has a vested ownership interest in a portion of Kendrick’s retirement.

In this case, Kendrick was bound by the contract created through the community

property partition. To allow Kendrick to get out of this agreement by re-designating

the classification of benefits affirms his announced intent not to honor the community

property agreement. Therefore, I would reverse the trial court’s judgment.