Davies v. Beres

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) 1 CA-CV 08-0697 ) LORI A. DAVIES, ) DEPARTMENT E ) Petitioner/Appellee, ) O P I N I O N ) ) v. ) MARK W. BERES, ) ) ) Respondent/Appellant. ) DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH Appeal from the Superior Court in Maricopa County Cause No. FC 2007-091006 The Honorable Bruce R. Cohen, Judge VACATED IN PART AND REMANDED Mark W. Beres In Propria Persona Tucson Platt & Westby, PC By Bryan L. Eastin Attorneys for Petitioner Appellee Phoenix Gust Rosenfeld, PLC By James H. Marburger Attorneys for Amicus Curiae ULSG, LLC Phoenix O R O Z C O, Judge ¶1 family Mark W. Beres (Husband) appeals the decision of the court which concluded that post-dissolution military Temporary Disability Retired List (TDRL) benefits were partially community property, subject to apportionment. For the reasons that follow, we conclude TDRL benefits are the separate property of the disabled spouse. Accordingly, we vacate the order of the family court in part and remand for additional proceedings. FACTS AND PROCEDURAL BACKGROUND1 ¶2 were Husband and his former spouse, Lori A. Davies (Wife) married from October 1992 to January 2003, when the marriage was dissolved pursuant to a Florida dissolution decree (Decree). During the marriage, Husband served in the United States Air Force, accumulating 121 months of service. With respect to Husband s military retirement, the Decree provides: The Wife is awarded an interest in the United States Air Force Military Retirement arising out of Husband s service with the United States Air Force, as of November 19, 2002, according to the following formula: The number of months of marriage during which the Husband served in the armed services during the marriage (121 months), divided by the total number of months for which the husband spent in the Armed Forces. The resulting percentage shall then be multiplied by 50% (.50) to determine the Wife s percentage share of any disposable retirement or retainer pay of the Husband. The Wife s portion shall 1 We disregard Husband s statement of facts because he fails to cite to the record as required by Arizona Rule of Civil Appellate Procedure 13(a)(4). State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1 (App. 1998). Additionally, we disregard those documents contained in the appendix to the opening brief that are not part of the record. See GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4-5, 795 P.2d 827, 830-31 (App. 1990) (noting that appellate review is limited to the record before the trial court). 2 not be decreased by any voluntary or involuntary act of the Husband including disability or otherwise. ¶3 On August 31, 2006, Husband was relieved from active duty and placed on the TDRL with a thirty percent disability rating. At fifteen years service. that time, Husband had and three months (183 Husband began accumulated months) receiving a active TDRL accordance with 10 U.S.C. § 1401 (2006).2 portion of payments. his It TDRL is pay not to clear Wife from pay computed of duty in Husband has paid a since the of total he began record receiving when Husband discontinued making such payments or the total amount he paid to Wife. Husband later applied for and received a Veterans Administration disability rating of forty percent.3 ¶4 Wife s Both parties interest, if subsequently any, in the raised TDRL issues benefits. concerning Husband maintained Wife had no interest in his TDRL benefits because he was ineligible for retirement for longevity, he was not retired and his status on TDRL was temporary. Wife believed she was 2 Husband was placed on the TDRL and began receiving retired pay as calculated under 10 U.S.C. § 1401. For purposes of this opinion and for clarity, we refer to the retired pay Husband received while on the TDRL as either TDRL pay or TDRL benefits. 3 This permits Husband to waive an amount of military retired pay and receive veterans disability benefits instead, in the amount waived, when he retires. Mansell v. Mansell, 490 U.S. 581, 583 (1989). 3 entitled to a percentage of the TDRL benefits based on the fixed formula in the Decree. The family court appointed a special master who issued a report. In the report, the special master explained that whether Wife had any interest in Husband s TDRL benefits depended on the court s interpretation of Arizona case law and the Decree. recommended the apportionable. Based on his analysis, the special master court find Husband s TDRL benefits partially He calculated Wife s interest to be $721 per month.4 ¶5 Husband objected to the special master s report. family court overruled Husband s objections and The adopted the findings and conclusions in the special master s report. In August 2008, the court ordered Husband to pay Wife $721 per month from his TDRL pay, and made the award retroactive to April 1, 2008, leaving $3605 in arrears. Husband timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and -2101.B (2003). DISCUSSION ¶6 Husband challenges master s report. numerous aspects of the special His challenges center on one issue: whether any part of Husband s TDRL benefits are community property and thus 4 apportionable to Wife. We review the family court s The explanation regarding how this amount was calculated is addressed in our discussion. Infra ¶ 16. 4 characterization of property de novo and the apportionment of community property for an abuse of discretion. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15, 5 P.3d 911, 915 (App. 2000); Hrudka v. Hrudka, 186 Ariz. 84, 93, 919 P.2d 179, 188 (App. 1995). Here, apportionable is review de novo. a the mixed issue of whether question of law TDRL and benefits fact are which we Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13, 36 P.3d 749, 754 (App. 2001); Huskie v. Ames Bros. Motor & Supply Co., 139 Ariz. 396, 401, 678 P.2d 977, 982 (App. 1984). ¶7 To fully explain the issue presented, it is necessary to discuss the history of the law regarding military retirement benefits. military In 1977, retirement the Arizona benefits Supreme could be Court treated ruled as that community property to the extent attributable to community efforts. Van Loan v. Van Loan, 116 Ariz. 272, 273-74, 569 P.2d 214, 215-16 (1977). McCarty In v. 1981, McCarty, characterizing property was the United 453 military contrary to States U.S. 210, retirement federal Supreme 223, 235 benefits law, and Court (1981), as that in that community federal preempted state law on community property division. thus overruled Van Loan. held, law McCarty De Gryse v. De Gryse, 135 Ariz. 335, 336, 661 P.2d 185, 186 (1983). 5 ¶8 In response to McCarty, Congress enacted the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (2006) (USFSPA), which became effective February 1, 1983. Razo, 163 Ariz. 505, 506, 788 P.2d 1256, 1257 Beltran v. (App. 1990). Under the USFSPA, state courts were given authority to treat disposable retired pay or retainer pay as community property and therefore they could apportion such benefits in dissolution cases. 10 U.S.C. § 1408(c)(1); Mansell, 490 U.S. at 589; In re Marriage of Gaddis, 191 Ariz. 467, 468, 957 P.2d 1010, 1011 (App. 1997); see also De Gryse, 135 Ariz. at 336-37, 661 P.2d at 186-87 (explaining Van Loan was questions revived concerning by the military USFSPA and thereafter governed retirement benefits). Disposable retired pay is defined, in pertinent part as: [T]he total monthly retired pay to which a member is entitled less amounts which . . . . in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member s disability on the date when the member was retired (or the date on which the member s name was placed on the temporary disability retired list). 10 U.S.C. § 1408(a)(4)(C). retirement disability. or separation Chapter 61 of Title 10 addresses from the military for a physical Id. at §§ 1201 to 1222 (2006 & Supp. 2008). 6 ¶9 If a member s disability is indeterminable as to its permanent and stable nature, the member of the armed forces may be placed on the TDRL for a maximum of five years. 1202, 1210(b), (h). Id. at §§ After five years, the member either returns to active duty, permanently retires for longevity if he has reached twenty years of service, or is placed on the permanent disability retired list (PDRL). U.S.C. § 8911 (2006) (a Id. at § 1210(b); see also 10 member of the Air Force generally receives retired pay after twenty years of service). While on the TDRL, a member receives TDRL pay5 pursuant ¶10 to one of two alternative formulas listed as Formula No. 2 in 10 U.S.C. § 1401(a). Id. at § 1202. Under the first formula, the member receives 2.5% of his monthly basic pay for each year of service. Luna v. Luna, 125 Ariz. 120, 124, 608 P.2d 57, 61 (App. 1979); see also 10 U.S.C. §§ 1401(a), 1406(b) (2006). Under the second formula, TDRL pay is computed by multiplying a member s monthly basic pay by the percentage of his disability. 10 U.S.C. §§ 1401(a), 1406(b). amount necessary for the percent of his basic pay. The result is increased by the member to receive at Id. at § 1401(a). least fifty A member is entitled to use the formula most favorable to him. Id. at § 1401(b). 5 This calculation 1408(a)(7). includes retainer 7 pay. 10 U.S.C. § ¶11 In this case, Husband was receiving $2862 per month in TDRL pay. This was calculated using the second formula consisting of fifty percent of Husband s 2006 basic pay plus a cost of living adjustment (COLA). TDRL pay resulting from application of the second formula is expressly excluded from the definition of disposable retired pay because such pay is computed using the percentage of a member s disability. Id. at § limits 1408(a)(4)(C). Wife s interest Additionally, in Husband s the Decree military expressly retirement disposable retirement pay or retainer pay. benefits to Because these TDRL benefits are not disposable retired pay, the benefits are not community property and are therefore not apportionable. Thomas v. Piorkowski, 286 S.W.3d 662, 666 (Tex. App. See 2009) (concluding TDRL benefits are not divisible as marital property because the benefits are not disposable retired pay). ¶12 This conclusion, however, does not end our inquiry. TDRL benefits may also be calculated under the first formula. ¶13 As previously stated, in Arizona, military retirement benefits are extent generally attributed to treated community as community efforts. property Edsall v. to the Superior Court, 143 Ariz. 240, 241, 693 P.2d 895, 896 (1984); Van Loan, 116 Ariz. at 273-74, 569 P.2d at 215-16. benefits are the disabled spouse s 8 However, disability separate property. Danielson, 201 Ariz. at 407, ¶ 19, 36 P.3d at 755; In re Marriage of Kosko, 125 Ariz. 517, 519, 611 P.2d 104, 106 (App. 1980). A retired service person is precluded from reducing his or her former spouse s interest in military retirement pay by electing to forego a disability benefits. portion of that pay in exchange for See Danielson, 201 Ariz. at 409 n.7, ¶ 26, 36 P.3d at 757 n.7 (listing cases). ¶14 number Prior to enactment of the USFSPA, Arizona issued a of benefits. payments decisions concerning retirement and disability In Flowers v. Flowers, several types of disability were identified and categorized, retirement disability and pure disability. 6 including semi- 118 Ariz. 577, 580, 578 P.2d 1006, 1009 (App. 1978) (Jacobson, J., specially concurring). The nature of such payments, as community or separate, depended on whether the asset was acquired by onerous title through the labor and industry of the husband or wife 6 Flowers concerned United States Civil Service disability retirement benefits. 118 Ariz. at 578, 578 P.2d at 1007. Due to the similarity between disability benefits and personal injury benefits, the court held such benefits were community property subject to apportionment. Id. at 579, 578 P.2d at 1008. The decision was based on the Arizona rule existing at the time: that damages recovered for personal injuries sustained during marriage were community property. Id. However, this rule was later abandoned in Jurek v. Jurek, which held that compensation for personal injuries is separate property. 124 Ariz. 596, 598, 606 P.2d 812, 814 (1980). In light of Jurek, the reasoning of the Flowers decision is no longer sound. See Villasenor v. Villasenor, 134 Ariz. 476, 477 n.2, 657 P.2d 889, 890 n.2 (App. 1982). 9 during the marriage, or by lucrative title through some other source. Id. at 580-81, 578 P.2d at 1009-10. Property acquired by onerous title is community property and property acquired by lucrative title is separate property. 608 P.2d at 62. person who Luna, 125 Ariz. at 125, Pure disability payments are received by a suffers a disability connected to his employment regardless of length of service and are the separate property of the disabled spouse. Flowers, 118 Ariz. at 580, 582, 578 P.2d at 1009, 1011 (noting service-connected disability payments are not received as a result of past labor). Semi-retirement disability payments are based in part on length of service and in part on percentage of disability and may be considered a community asset. Id. at 580, 578 P.2d at 1009 (citing 10 U.S.C. § 1201). ¶15 In Luna v. Luna, we also addressed issues concerning disability retired pay. 62. 125 Ariz. at 122, 125, 608 P.2d at 59, In that case, the husband was permanently retired with a 100 percent disability rating, prior to the divorce, with just over fifteen years of service in the Air Force. U.S.C. § 1401(a), two formulas husband s retirement pay. were available Id. Under 10 to calculate Id. at 124, 608 P.2d at 61. The formulas are nearly identical to the ones at issue here, except under the second formula in Luna, 10 there was no automatic increase for a member to receive fifty percent of his basic pay. Id.; see 10 U.S.C. § 1401(a); see supra ¶ 10. court calculated attributable percentage the solely result portion to of his the 61-62 (calculating the the disability first result of the second formula. of formula In Luna, the husband s by benefits subtracting from the the percentage 125 Ariz. at 124-25, 608 P.2d at benefit percentage under the second formula as 75 percent, and the benefit under the first formula as 37.5 percent, leaving a difference of 37.5 percent). The court concluded 37.5 percent of the husband s monthly benefits was attributed solely to his disability and was therefore his sole and separate property. Id. at 125, 608 P.2d at 62. The remainder of the husband s benefits was community property and apportionable. ¶16 In Id. the present case, the special master s incorporates the principles of Flowers and Luna.7 report The special master recommended to the extent Husband s TDRL benefits could be calculated formula), the by use benefits of credited constituted 7 service onerous (under title the and first were Although the special master did not cite Luna as a source considered, his report parallels the logic and reasoning in that case. 11 apportionable.8 Under the first formula, Husband s TDRL benefits would have been $2182 per month.9 Pursuant to the fixed formula in the Decree, Wife s percentage interest in Husband s military retirement pay is calculated to be 33.06%.10 Multiplying $2182 by 33.06% yields $721 in monthly benefits, the amount the court awarded to Wife. ¶17 Despite the fact that Husband s TDRL benefits could have been calculated under the first formula, we find Luna and the Flowers concurring opinion inapplicable due to the temporary nature of Husband s benefits.11 See Luna, 125 Ariz. at 122, 608 P.2d at 59 (explaining that husband was removed from the TDRL and permanently retired with a 100 percent disability rating). Husband is receiving TDRL payments in lieu of a monthly salary from the military. See, e.g., Randolph v. U.S., 31 Fed. Cl. 779, 781 n.5 (1994) (noting TDRL benefits are geared toward 8 In this decision, we are dealing solely with TDRL benefits. We do not decide whether the special master s calculations would be applicable in the event Husband is removed from the TDRL and placed on the PDRL. 9 This is calculated as follows: 15.25 (years of service) x 2.5% = 38.125%. 38.125 x basic pay (assumed to be $5724: $5596 increased by COLA) = $2182. Under the second formula, Husband s TDRL benefits are $2862 per month. See supra ¶ 11. 10 This is calculated as follows: 121 (months of service during marriage) / 183 (total months of service) = .6612 x 50% = 33.06%. 11 As previously mentioned, enactment of the USFSPA. these 12 cases also predate the rehabilitation or stabilization of a medical condition). Pursuant to 10 U.S.C. § 1202, these benefits are temporary in nature, and are solely attributable to [Husband s] disability. See Luna, 125 Ariz. at 125, 608 P.2d at 62. Thus, although TDRL benefits are calculated as retired pay under the statute, it is a substitute for wages, and is not actual retirement pay. U.S.C. § 1401. after 10 Arizona case law is clear that a spouse s income dissolution is the separate property of that spouse. A.R.S. § 25-213.B (Supp. 2009)12 (property acquired by a spouse after service of a petition for dissolution, if the petition results in a decree, legal separation, or annulment, is the separate property of that spouse); see also Luna, 125 Ariz. at 125, 608 P.2d at 62 (after dissolution, reduced earning capacity of a spouse becomes the separate loss of the disabled spouse). ¶18 Our conclusion is further supported by the similarities between TDRL benefits and workers compensation as discussed by Amicus Curiae, Uniformed Services Former Spouses Protection Act Liberation Support Group, LLC. Rickman, 124 (adopting a Ariz. 507, statement 509, from 605 the P.2d 909, Flowers See Rickman v. 911 (App. concurrence 1980) stating workers compensation and service-connected disability payments are not a result of past labor and thus are not earned ); see 12 We cite to the current versions of the applicable statutes as no revisions material to this opinion have since occurred. 13 Mylette v. Mylette, 140 Misc.2d 607, 608, 531 N.Y.S.2d 489, 490 (Sup.Ct.1988) (comparing disability compensation). Workers compensation is awarded to an injured employee in place of lost wages. pay to workers Bugh v. Bugh, 125 Ariz. 190, 192, 608 P.2d 329, 331 (App. 1980). Similarly, once placed on the TDRL, the member receives TDRL benefits in place of his basic pay. 10 U.S.C. § 1202. Computation compensation is based on lost earning capacity. at 192, 608 P.2d at 331. part on a member s of workers Bugh, 125 Ariz. Likewise, TDRL benefits are based in basic pay. 10 U.S.C. § 1401(a). The Industrial Commission determines whether a worker s disability is temporary or permanent. Cardinale v. Indus. Comm n, Ariz. 342, 345, 569 P.2d 284, 287 (App. 1977). 116 Similarly, the Secretary of the Air Force determines whether a disability of a member in the Air Force is temporary or permanent. 1201, 1202, 101(a)(9) compensation dissolution benefits are regardless of Bugh, Ariz. 125 benefits the whether paid at to (2006 paid to injured the 193, a & Supp. an 608 2008). injured spouse s injury P.2d disabled spouse, Workers spouse after separate property during marriage. occurred at 10 U.S.C. §§ 332. due Likewise, solely to TDRL his disability, after dissolution are the separate property of the disabled spouse. Therefore, regardless of which formula is used 14 to calculate TDRL benefits, such benefits are the separate property of the disabled spouse. ¶19 she Further, Husband is not depriving Wife of any benefit would otherwise be entitled to. Husband would not be entitled to any benefits at this point but for his disability because he has not completed twenty years of service. See 10 U.S.C. § 8911 (setting forth the twenty year service requirement for retirement). states [t]he Furthermore, the portion of the Decree which Wife s portion shall not be decreased by any voluntary or involuntary act of the Husband including disability or otherwise refers only to Husband s retirement pay and not any potential disability pay for which Husband was subsequently eligible. ¶20 Moreover, we distinguish TDRL benefits from PDRL benefits, which a member may also receive without achieving the longevity requirement. PDRL actual retirement benefits. concerning permanent benefits are more 10 U.S.C. § 1201. disability, a member analogous to In a situation is declared permanently disabled and receives benefits when he or she will no longer be active in the military. Id. With TDRL benefits, there has been no determination whether the disability is of a permanent nature and stable and thus whether the member will subsequently be able to return to the military and acquire more 15 years of service toward his total retirement benefits. 10 U.S.C. § 1202; see Dambrava v. Office of Personnel Mgmt., 466 F.3d 1061, 1063 (Fed.Cir.2006) (stating placement on the TDRL is akin to inactive duty); In re Marriage of Williamson, 205 P.3d 538, 541 (Colo.App. 2009) (noting time on the TDRL does not count toward the twenty year longevity requirement). a calculation of benefits under the second Moreover, formula differs between a member with a permanent disability and a member with a temporary disability. 10 U.S.C. § 1401(a). With TDRL pay based on the second formula, the amount is automatically increased so a member receives at least fifty percent of his basic pay. Id. With PDRL pay, there is no such increase, and pay under the second formula disability. Id. is computed based solely on percentage of The lack of automatic increase could become significant when a member is choosing under which formula to receive retired pay. Id. at (b). For these reasons, this opinion applies only to members receiving TDRL benefits. ¶21 Wife argues Husband s TDRL benefits are akin to the semi-retirement payments discussed in the Flowers concurrence, because years of service and basic pay are used in determining Husband s monthly benefits. address TDRL benefits. at 1009-11. However, the concurrence did not Flowers, 118 Ariz. at 580-82, 578 P.2d Additionally, even 16 if such benefits are to be categorized, we find TDRL benefits more akin to pure disability benefits. Husband s disability was received in the line of duty and was a direct result of a combat-related injury. See id. at 580, 578 P.2d at 1009 (explaining a disability causally related to employment or a service-connected disability considered in the pure disability category). should be Service-connected disabilities are not the result of past labors and are therefore not earned and not acquired by onerous title. P.2d at 1011. variable under Moreover, the first Id. at 582, 578 although length of formula, Husband s service is benefits a were actually calculated in accordance with the second formula, which depends primarily on the existence and the extent of Husband s disability. See Luna, 125 Ariz. at 125, 608 P.2d at 62 (stating benefits attributable solely to a person s disability are not a form of deferred compensation for past services, but rather, compensation for loss of military pay). What Wife fails to acknowledge is the reason for Husband s receipt of these TDRL benefits. Husband is only entitled to TDRL benefits due to his disability. military disability benefits, after dissolution, are separate property. Perras v. Perras, 151 Arizona Ariz. has 201, repeatedly 203, 726 held P.2d 617, 619 (App. 1986); Rickman, 124 Ariz. at 509, 605 P.2d at 911; Luna, 125 Ariz. at 125, 608 P.2d at 62. Finally, 17 even if TDRL benefits were considered semi-retirement payments, the Flowers concurrence merely noted a potential argument could be made that a portion of the payments may be considered a community asset. 118 Ariz. at 582, 578 P.2d at 1011. determine whether semi-retirement Flowers, Flowers did not actually payments were community property. ¶22 Wife also argues guidance in this case. Villasenor v. Villasenor In Villasenor, the court addressed a civil service disability retirement annuity. 657 P.2d at 889. provides 134 Ariz. at 476, Relying in part on Luna, the court determined the annuity had both a retirement component and a disability component and concluded the retirement component represented deferred compensation and was therefore community property. Id. at 478-79, 657 P.2d at 891-92. ¶23 TDRL benefits are distinguishable from the disability retirement annuity at issue in Villasenor. at 891. First, the Villasenor Id. at 478, 657 P.2d benefits different provisions of the United States Code. are governed by Id. at 478, 657 P.2d at 891 (listing the relevant portions of Title 5 Chapter 83). Second, a disability was merely one of several conditions causing the Villasenor annuity to vest. See id. at 479, 657 P.2d at 892 (explaining other ways to qualify for the annuity were based on age and years of service). 18 Here, the disability was the only reason Husband was entitled to TDRL benefits. Moreover, the annuity in Villasenor was not temporary, unlike the TDRL benefits in this case. Id. at 478-79, 657 P.2d at 891- 92. are Finally, TDRL benefits not a form compensation, but are instead a wage substitute. of deferred Accordingly, Villasenor is inapposite. ¶24 Although the nature of post-dissolution TDRL benefits presents an issue of first impression in Arizona, courts in two other states have recently published opinions on this issue. In Williamson v. Williamson, the Colorado Court of Appeals held post-dissolution TDRL benefits are disability benefits and are not divisible as marital property. 205 P.3d at 543. There, six years after dissolution, the husband was placed on the TDRL with a thirty percent disability rating after serving over sixteen years in the United States Armed Forces. evidence husband s benefits were calculated The under the second formula based on husband s percentage of disability. Id. at 542. showed Id. at 539-40. In determining whether the TDRL benefits were divisible marital property, the court found it significant that husband did not have twenty years of service at the time he was placed on the TDRL. Id. Because husband was ineligible for military retirement benefits, but for his disability, the court concluded all of his benefits were based 19 on his disability. Id. Therefore, the court held that because all of husband s benefits were based on his disability, they were not divisible as marital property pursuant to 10 U.S.C. § 1408(a)(4)(C). ¶25 Id. Similarly, in Thomas v. Piorkowski, husband and wife were divorced in 2004 and, pursuant to the dissolution decree, wife was entitled to receive fifty percent of husband s disposable retired pay resulting from husband s service in the military. 286 S.W.3d at 664. Husband was placed on the TDRL in 2006 with a thirty percent disability rating after more than ten years of service. Id. at 664, 667. Like Williamson, the court found because husband was not eligible to retire but for his disability, the TDRL property. Id. at benefits 667. were The not court divisible further as marital reasoned that husband s TDRL benefits were computed using the second formula, which 10 U.S.C. § disposable retired pay. explained husband s disability. ¶26 1408(a)(4)(C) pay Id. at expressly 666. calculation was excludes Finally, dependent the upon from court his Id. at 668. Although neither Williamson nor Thomas addresses the first formula available to calculate TDRL benefits, we find the cases persuasive. Both cases concluded the USFSPA, 10 U.S.C. § 1408(a)(4)(C), prevented their respective courts from dividing TDRL benefits as marital property 20 when the benefits were calculated based upon percentage of disability. P.3d at 542; Thomas, 286 S.W.3d at 666. conclusion. Williamson, 205 We agree with that To the extent Husband s TDRL benefits could have been calculated pursuant to the first formula, we decline to find such benefits constitute community property for the reasons previously explained. Accordingly, we vacate the family court s order awarding Wife an interest in Husband s TDRL benefits.13 ¶27 of Husband also argues he should be refunded the amount TDRL benefits he argument is waived. has paid to Wife. Wife contends this According to the record, the issue was raised, but not addressed. See Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970) (explaining a court must have the opportunity to rule on an issue). Because this argument was raised below, but not addressed by the family court, we will not address it on appeal. Chalpin v. Snyder, 220 Ariz. 413, 418 n.4, ¶ 16, 207 P.3d 666, 671 n.4 (App. 2008); see also Stewart v. Mut. of Omaha Ins. Co., 169 Ariz. 99, 108, 817 P.2d 44, 53 (App. 1991) (finding it inappropriate to address an issue on appeal when the court did not rule on the merits of the issue). 13 Because we vacate the award of TDRL benefits to Wife, we need not address Husband s remaining arguments concerning additional errors in the special master s report, the calculation of Wife s benefits or the special master s alleged partiality. 21 ¶28 This argument also presents issues necessitating factual determinations including, but not limited to, the amount Husband paid Wife, when such payments were made and whether such payments could be considered a gift. Accordingly, we remand this issue to the family court to determine whether Husband is entitled to a refund for payments he made to Wife. Attorney fees ¶29 Wife A.R.S. § frivolous. requests 12-341.01.C attorney (2003) fees on contending appeal pursuant to appeal is Husband s See Cordova v. Parrett, 146 Ariz. 79, 83, 703 P.2d 1228, 1232 (App. 1985) (awarding attorney fees under A.R.S. § 12-341.01.C for filing a frivolous appeal). We do not find this appeal an to be frivolous impression in Arizona. as it presented issue of first Accordingly, we deny Wife s fee request pursuant to A.R.S. § 12-341.01.C. ¶30 Wife also requests attorney fees for Husband s failure to follow the rules for filing an appeal. See Jhagroo v. City of Phoenix Municipal Court, 143 Ariz. 595, 598, 694 P.2d 1209, 1212 (App. 1984) (awarding attorney fees for a party s failure to cite to the record). Husband violated Arizona Rules of Civil Appellate Procedure (ARCAP) 13(a)3, 4 and 6 by failing to cite to the record in his opening brief, failing to set forth authority for this court s jurisdiction and failing to set forth 22 the applicable standard of review for his arguments. Husband filed a defective supersedeas bond. Further, ARCAP 7(a)(1). our discretion, we decline to award Wife fees. In However, in the future we anticipate Husband s compliance with our rules. See Bird v. State, 170 Ariz. 20, 24, 821 P.2d 287, 291 (App. 1991) (declining to award fees for a failure to comply with Rule Husband s TDRL 13(a)4). CONCLUSION ¶31 benefits For are the his foregoing sole and reasons, separate we find property not subject to apportionment. Accordingly, we vacate the portion of the family court s awarding order Wife an interest in Husband s TDRL benefits and remand for further proceedings consistent with this opinion. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ___________________________________ PHILIP HALL, Presiding Judge /S/ ____________________________________ DONN KESSLER, Judge 23

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