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Title: Joseph Byron Rothwell v. June Elizabeth Rothwell
Author : Eighth District, El Paso No. 08-88-00231-CV Court of Appeals of Texas
Release Date : January 28, 1989
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 69 KB

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Opinion ON MOTION FOR REHEARING MAX N. OSBORN, Chief Justice The Appellant urges that we erred in our decision about the right
of the trial court to consider veterans' disability benefits in dividing the parties' community property, even though there
was no actual division of those particular benefits. He bases his argument upon the decision by the United States Supreme
Court in Mansell v. Mansell, 57 U.S.L.W. 4567 (U.S. May 30, 1989)(No. 87-201), which was decided one day before our opinion
in this case. The Court in that opinion held that under the Uniformed Services Former Spouses Protection Act, which Congress enacted in
response to the Court's decision in McCarty v. McCarty, 453 U. S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728 (1981), state courts
may not treat veterans' disability benefits as property divisible upon divorce. The Court held that the Spouses Protection
Act makes only disposable retirement pay divisible in a state divorce proceeding and disability benefits are not in that category.
The Appellant recognizes that in this case the trial court did not divide Mr. Rothwell's disability benefits, but urges that
when the trial court made a disproportionate award of the parties' interest in their home to the wife, the net effect was
to offset their interest in that asset because of his V. A. benefits. He urges those benefits should not have been considered
in dividing the parties' community property. He seeks the same application to his V. A. disability benefits which this Court
gave to military retirement pay in Madrid v. Madrid, 643 S.W.2d 186 (Tex. App.--El Paso 1982, no writ), prior to the Spouses
Protection Act.

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