United States v. Williams

Singley, J., delivered the opinion of the Court. The issues raised by this case are posed by three questions of law certified to this Court by the United States District Court for the District of Maryland: 1 “1. Is federal military retirement pay which is paid to retirees of the Armed Services of the United States of America, ‘wages’ within the meaning of Annotated Code of Maryland, Commercial Law Article Section 15-601? “2. If federal military retirement pay which is paid to retirees of the Armed Services of the United States of America is ‘wages’ within the meaning of Annotated Code of Maryland, Commercial Law Article Section 15-601, do the exemptions from garnishment provided in Section 15-602 apply to federal military retirement pay where the underlying obligation is for alimony? “3.

Must separate Writs of Attachment by way of garnishment be filed each month pursuant to Annotated Code of Maryland, Commercial Law Article Sections 15-601, 602 in order to attach federal military retirement pay which is paid to ⁶⁷⁵ retirees of the Armed Services of the United States of America?” The facts which underlie the problem are summarized in the briefs filed by the parties. When the domestic litigation was initiated, Walter A. Williams was a Chief Warrant Officer in the United States Army on active duty in Germany. His wife, Mrs. Essye B. Williams, was a resident of Maryland. On 3 March 1972, Mr. Williams filed in the Circuit Court No. 2 of Baltimore City a bill of complaint against Mrs. Williams, seeking a divorce.

In July of the same year, Mrs. Williams filed a cross bill of complaint against Mr. Williams in the same court and obtained an order directing Mr. Williams to pay her $300.00 per month as temporary alimony. In October, 1972, Mrs. Williams filed an amended and supplemental cross bill of complaint. Mr. Williams’ payments of alimony were sporadic, and Mrs. Williams’ attempts to effect collection were something less than successful. In March of 1975, Mr. Williams instituted divorce proceedings against Mrs. Williams in the Regional Court of Wiesbaden, West Germany.

In October of that year, Mrs. Williams was successful in obtaining an injunction, enjoining further action by Mr. Williams in the case pending in Germany. Later in 1975, the combat was resumed in Baltimore, where in October Mrs. Williams obtained a monetary judgment for $10,427.00 for arrearages in alimony. In November, after an evidentiary hearing, a decree of divorce a vinculo matrimonii was granted Mrs. Williams. The decree, by its terms, preserved the injunction forbidding further proceedings in Germany, preserved the monetary judgment, and provided for permanent alimony, the payment of counsel fees, and entered a monetary decree for additional arrearages of alimony which had accumulated.

At about this time, Mr. Williams retired from the army and began to receive the pension to which he was entitled. In January, 1976, Mrs. Williams filed a writ of attachment with ⁶⁷⁶ the United States under 42 U.S.C. § 659 to effect a collection of the arrearages of alimony. 2 The United States responded that Williams’ retirement pay constituted earnings under 15 U.S.C. § 1672 (a) which provides that: “For the purpose of this title: “(a) The term ‘earnings’ means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.” and alleged that Maryland Code (1975), Commercial Law Article §§ 15-601 and 15-602 impose limitations on the garnishment of wages, which would require Mrs. Williams to seek reimbursement by the filing of writs of attachment monthly. 3 ⁶⁷⁷ Mrs. Williams challenged this contention. The United States filed a petition to remove the case to the United States District Court for the District of Maryland. Mrs. Williams’ motion to remand on the ground that the United States District Court was without jurisdiction was denied, 4 and the Order of Certification followed.

We propose to answer the first and third of the certified questions in the affirmative and the second in the negative and shall state our reasons. 1. Probably the most recent case holding that a pension paid to a retired member of the military services constitutes wages is Ables v. Ables, 540 S.W.2d 769 (Tex. Civ. App. — Waco 1976).

While decided in a different context, whether the right to retirement pay earned during marriage constituted vested community property subject to division at time of divorce, the court accepted the husband’s contention that “... regular officers retire only from active duty and remain members of the military subject to continuing controls of the government which materially affect their right to pay after retirement.” Among those controls, he enumerated: recall to active duty, 10 U.S.C. § 8504 ; court-martial for offenses committed during retirement, 10 U.S.C. § 802 , with consequent loss of pay and allowances, Hooper v. United States, 326 F. 2d 982 , cert. denied, 377 U. S. 977 (1964), and subjection to federal ⁶⁷⁸ dual compensation act, 5 U.S.C. § 5532 b. This led the court in Ables to reach the conclusion