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STATE OF MICHIGAN 

COURT OF APPEALS 

DEBORAH LYNN FOSTER, 

 Plaintiff/Counter-DefendantAppellee, 

UNPUBLISHED 

October 13, 2016 

v No. 324853 

Dickinson Circuit Court 

RAY JAMES FOSTER, LC No. 07-015064-DM 

 Defendant/Counter-PlaintiffAppellant. 

Before: MARKEY, P.J., and MURPHY and RONAYNE KRAUSE, JJ. 

PER CURIAM. 

 Defendant appeals as of right an order holding him in contempt of court for failure to pay 

plaintiff in compliance with the parties’ consent divorce judgment that was entered in December 

2008. Defendant argues that the contempt order and the divorce judgment itself are 

unenforceable because their effect is to require defendant to pay plaintiff a portion of his military 

disability benefits as part of the property settlement in violation of federal law. Defendant also 

presents arguments regarding alleged problematic factual findings and other legal shortcomings 

tied to entry of the divorce judgment. Defendant’s arguments are effectively and ultimately 

rooted in the judgment of divorce and its terms; however, he never appealed that judgment, nor 

has he moved for relief from that judgment, MCR 2.612. Thus, defendant is engaging in an 

improper collateral attack on the divorce judgment. See Kosch v Kosch, 233 Mich App 346, 

353; 592 NW2d 434 (1999) (the defendant's failure to appeal the original divorce judgment 

precluded collateral attack on the merits of the judgment and effectively constituted a stipulation 

to its provisions). Indeed, defendant agreed to the very provision in the divorce judgment that he 

now assails. Nevertheless, for the reasons set forth below, we also substantively reject 

defendant’s arguments. In sum, we affirm. 

 The parties were married on August 6, 1988, and plaintiff filed for divorce on November 

20, 2007. Defendant had served in the military during, and prior to, the marriage, and he retired 

from the Army in September 2007. Defendant testified at the divorce hearing, which involved 

finalizing the parties’ settlement, that he was receiving both military retirement pay and military 

disability benefits based on injuries he had sustained during the war in Iraq. Both parties waived 

their rights to seek spousal support and agreed that defendant’s disability benefits were not 

subject to division by the court because they were not considered marital property under federal 
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law. However, pursuant to the property settlement, plaintiff was awarded 50 percent of 

defendant’s retirement pay, or “disposable military retired pay,” as calculated based on 

defendant’s creditable military service during the marriage. The parties also agreed to the 

inclusion of the following provision in the divorce judgment, which we shall refer to as the 

“offset provision:” 

 If Defendant should ever become disabled, either partially or in whole, 

then Plaintiff’s share of Defendant’s entitlement shall be calculated as if 

Defendant had not become disabled. Defendant shall be responsible to pay, 

directly to Plaintiff, the sum to which she would be entitled if Defendant had not 

become disabled. Defendant shall pay this sum to Plaintiff out of his own pocket 

and earnings, whether he is paying that sum from his disability pay or otherwise, 

even if the military refuses to pay those sums directly to Plaintiff. If the military 

merely reduces, but does not entirely stop, direct payment to Plaintiff, Defendant 

shall be responsible to pay directly to Plaintiff any decrease in pay that Plaintiff 

should have been awarded had Defendant not become disabled, together with any 

Cost of Living increases that Plaintiff would have received had Defendant not 

become disabled. Failure of Defendant to pay these amounts is punishable 

through all contempt powers of the Court. 

At the divorce hearing, the trial court questioned the attorneys regarding the language of 

the offset provision, noting that it seemed to suggest that defendant was not currently receiving 

any disability benefits, which was not the case. Counsel for both parties acknowledged that the 

language was awkward, but explained that the intent was simply to address a scenario in which 

defendant became entitled to and accepted more disability benefits than currently being received, 

inversely diminishing the retirement benefits that were being divided and awarded to plaintiff. 

The purpose of the offset provision was to protect plaintiff in such a scenario. The trial court 

also discussed the offset provision with defendant in the following exchange: 

Court. All right, . . . Mr. Foster, you do acknowledge that if you were to 

defer any of your current military retirement pay or convert it to disability pay, or 

if your military retirement pay were reduced because the level of your disability 

pay was increased, you acknowledge this Court’s ability to enforce payment to 

Ms. Foster the level of benefits that she would be entitled [to] presently from your 

retirement pay? 

 Defendant. Yes. 

Shortly after the entry of the divorce judgment, defendant became eligible for and began 

receiving increased disability benefits, which consequently reduced the amount of his retirement 

payments and the amount plaintiff received from defendant’s military retirement pay. This was 

the precise circumstance that the parties had contemplated in drafting and agreeing to the offset 

provision. However, defendant failed to comply with the divorce judgment by paying plaintiff 

the difference between the reduced amount of retirement pay she received and the amount that 

she had received at the time of the divorce judgment. A number of show cause and contempt 

proceedings took place over several years, leading to the order that defendant now appeals, 

wherein the trial court held defendant in contempt for failure to pay plaintiff in compliance with 
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the consent divorce judgment. The court ordered him to pay plaintiff $1,000 per month, with 

$812 credited as current payments due under the divorce judgment and $188 to be credited 

against the arrearage of $34,398 until the arrearage was paid in full. 

Defendant’s primary argument on appeal is that the divorce judgment and the trial court’s 

order enforcing the judgment were legally invalid because they required him to pay plaintiff a 

portion of his disability benefits in violation of federal law. We disagree. Defendant’s argument 

entails statutory construction and questions of law in general, which we review de novo on 

appeal. Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011). 

 “Members of the Armed Forces who serve for a specified period, generally at least 20 

years, may retire with retired pay.” Mansell v Mansell, 490 US 581, 583; 109 S Ct 2023; 104 L 

Ed 2d 675 (1989) (citations omitted). And retired or retirement pay is generally subject to 

division in state court divorce proceedings under the Uniformed Services Former Spouses’ 

Protection Act (USFSPA), 10 USC 1408. Id. at 584-585; Megee v Carmine, 290 Mich App 551, 

562; 802 NW2d 669 (2010). With respect to disability pay, “[m]ilitary veterans in general are 

entitled to compensation for service-connected disabilities under 38 USC 1101 et seq.,” 

sometimes referred to as “VA disability benefits.” Megee, 290 Mich App at 560. Pursuant to 10 

USC 1414(a)(1), as effective January 1, 2004, “ ‘a member or former member of the uniformed 

services who is entitled for any month to retired pay and who is also entitled for that month to 

veterans’ disability compensation for a qualifying service-connected disability . . . is entitled to 

be paid both for that month . . . .’ ” Id. at 560-561 (ellipses in Megee). “This concurrent receipt 

of military retirement pay and VA disability benefits is commonly referred to as CRDP, which 

stands for ‘concurrent retirement and disability pay.’ ” Id. at 561 (citation omitted). Another 

form of military disability pay, separate from standard VA disability benefits, is combat-related 

special compensation (CRSC), 10 USC 1413a. Id. at 552-553. “To be eligible for CRSC, a 

person must be a member of the uniformed services who is entitled to retired pay and who has a 

combat-related disability.” Id. at 560, citing 10 USC 1413a(c) (emphasis added). A veteran 

who is qualified for CRDP (retirement pay plus VA disability pay) and who is also qualified for 

CRSC (combat-related disability pay), may elect to receive CRDP or CRSC, but not both. 

Megee, 290 Mich App at 561. 

 According to defendant, he became entitled to receive CRSC, which determination was 

apparently made retroactive to a date preceding entry of the divorce judgment. Defendant 

elected to receive CRSC, which resulted in a diminution of his retirement pay and plaintiff’s 50 

percent award of that pay. See Megee, 290 Mich App at 561 (“Plaintiff elected CRSC, which 

effectively discontinued his retirement pay that had been subject to the QDRO, halting payments 

to defendant.”). The Megee panel observed the following concerning CRSC and the division of 

waived retirement pay related to CRSC, i.e., retirement pay that is not being received because of 

a CRSC election: 

 The trial court here effectively divided plaintiff’s CRSC and, although 

Mansell did not directly address division of disability pay, the USFSPA clearly 

does not allow such a division. Subsection (c)(1) of the USFSPA, 10 USC 

1408(c)(1), permits a court to treat only “disposable retired pay” as “property of 

the member and his spouse,” and CRSC is “not retired pay,” 10 USC 1413a(g). 

Accordingly, the trial court erred by dividing plaintiff’s CRSC and forcing 
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plaintiff to pay a portion of his CRSC to defendant. However, on the subject 

addressed in Mansell, i.e., dividing waived retirement pay, the Mansell decision 

actually supports making plaintiff in the case at bar pay defendant half of the 

retirement pay that he would be receiving but for his election to take CRSC. The 

Mansell Court concluded that waived retirement pay could not be divided as 

property in circumstances in which the pay had been waived in favor of title 38 

VA disability benefits, given that the definition of “disposable retired pay” in 10 

USC 1408(a)(4)(B) excludes consideration of amounts waived in order to receive 

title 5 or title 38 compensation. Under the reasoning and rationale of Mansell,

there would be no prohibition here against considering for division waived 

retirement pay under the USFSPA because we are addressing a waiver of title 10 

CRSC not mentioned in 10 USC 1408(a)(4)(B). Thus, all of plaintiff’s envisioned 

yet waived military-retirement pay can be divided without offending the USFSPA 

or Mansell. Accordingly, there is no bar to ordering plaintiff to compensate 

defendant in an amount equal to 50 percent of plaintiff’s envisioned retirement 

pay as intended under the terms of the divorce judgment after plaintiff made a 

unilateral and voluntary postjudgment election to waive his retirement pay in 

favor of disability benefits contrary to the terms of the judgment. 

* * * 

 We hold that a military spouse remains financially responsible to 

compensate his or her former spouse in an amount equal to the share of retirement 

pay ordered to be distributed to the former spouse as part of a divorce judgment's 

property division when the military spouse makes a unilateral and voluntary 

postjudgment election to waive the retirement pay in favor of disability benefits 

contrary to the terms of the divorce judgment. Conceptually, and consistently with 

extensive caselaw from other jurisdictions, we are dividing waived retirement pay 

in order to honor the terms and intent of the divorce judgment. Importantly, we 

are not ruling that a state court has the authority to divide a military spouse's 

CRSC, nor that the military spouse can be ordered by a court to pay the former 

spouse using CRSC funds. Rather, the compensation to be paid the former spouse 

as his or her share of the property division in lieu of the waived retirement pay 

can come from any source the military spouse chooses, but it must be paid to 

avoid contempt of court. To be clear, nothing in this opinion should be construed 

as precluding a military spouse from using CRSC funds to satisfy the spouse's 

obligation if desired. [Megee, 290 Mich App at 566-567, 574-575 (footnote 

omitted).] 

Megee governs and dictates, given the involvement of CRSC, that the offset provision in 

the consent divorce judgment is fully enforceable through the trial court’s contempt powers. 

Defendant attempts to distinguish Megee on the basis that, because of the retroactive nature of 

the CRSC award, he effectively became entitled to and elected CRSC and waived retirement pay 

prior to entry of the divorce judgment, whereas Megee concerned a unilateral, postjudgment 

election to waive retirement pay and opt for CRSC. Defendant’s argument construes Megee 

much too narrowly and misses the broader legal principle that emanates from Megee, which is 

that a state divorce court has the authority to divide waived retirement pay, which waiver had 
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resulted from a veteran’s decision to elect CRSC, so long as the court does not directly order 

payment from CRSC funds.1 Thus, assuming for the sake of argument that defendant’s waiver 

of retirement pay and election of CRSC must be treated as having already occurred when the 

divorce judgment was entered, the offset provision contemplating the division of waived 

retirement benefits was nonetheless valid and enforceable under Megee. 

 Defendant presents an alternative argument under 38 USC 5301, which regards the 

nonassignability and exempt status of veterans’ benefits. Defendant’s argument is woefully 

undeveloped and we deem it waived. See Mudge v Macomb Co, 458 Mich 87, 104-105; 580 

NW2d 845 (1998). Moreover, as ruled earlier, the argument reflects an improper collateral 

attack on the judgment of divorce. See Kosch, 233 Mich App at 353. Finally, 38 USC 

5301(a)(1) speaks of precluding the assignment of benefits “except to the extent specifically 

authorized by law[.]” As noted above, the USFSPA generally permits the division of disposable 

retired pay in state divorce actions, and the instant dispute concerns the division of waived 

retirement pay, which the Megee panel held was proper under federal law when the waiver is in 

relation to a CRSC election. Megee, 290 Mich App at 566-567, 574-575. 

 Finally, defendant poses arguments regarding alleged mistakes of fact by the trial court, 

along with purported fraud and unconscionable advantage, all tied to the procurement of the 

divorce judgment. These arguments are an improper and untimely attempt to relitigate the 

divorce action that was settled years ago absent appeal, and the arguments are therefore rejected. 

We additionally note that defendant’s assertion that the trial court was factually mistaken with 

respect to whether defendant was suffering from a disability at the time of the divorce hearing is 

belied by the record. The trial court expressly recognized that defendant was currently receiving 

disability benefits and sought clarification from the parties concerning the language in the offset 

provision that suggested otherwise. In sum, defendant’s arguments are unavailing. 

 Affirmed. Having fully prevailed on appeal, plaintiff is awarded taxable costs under 

MCR 7.219. 

/s/ Jane E. Markey 

/s/ William B. Murphy 

 /s/ Amy Ronayne Krause 

 

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 The contempt order does not require payment from CRSC funds, nor do we construe the 

divorce judgment’s offset provision as ordering payment from CRSC funds, and any such 

construction must be avoided.