Kenneth E. Gilmore - Page 14

                                       - 13 -                                         
          U.S.C. sec. 1408(c)(1) (2004).  Under Colorado law, “vested and             
          matured military retirement pay, which has accrued during all or            
          part of a marriage, constitutes marital property subject to                 
          equitable division in a dissolution proceeding.”  In re Marriage            
          of Gallo, 752 P.2d 47, 54 (Colo. 1988).                                     
               Turning to the Amended Order, the Colorado court did not               
          divide petitioner’s military retirement pension, but rather                 
          awarded Ms. Warriner “spousal maintenance”.  The Colorado court             
          clearly contemplated the division of petitioner’s military                  
          retirement pension, as first effectuated in the Final Orders.               
          Additionally, paragraph 6 of the Final Orders awarded Ms.                   
          Warriner a $171,575 property settlement as a recovery of wasted             
          marital assets, notably the same amount the Colorado court                  
          ultimately awarded Ms. Warriner as alimony in gross8 in paragraph           
          3b of the Amended Order.  However, as expressed in paragraphs 4             
          and 8 of the Final Orders, the Colorado court found it necessary            
          to provide for direct payments to Ms. Warriner from petitioner’s            
          military retirement pension.  The only method available for                 
          direct payments to Ms. Warriner was pursuant to 42 U.S.C. section           

               8  The Colorado court has the discretion to award periodic             
          alimony or alimony in gross (lump-sum alimony).  Alimony in gross           
          can only be awarded when special circumstances or a compelling              
          reason necessitates such an award.  Carlson v. Carlson, 497 P.2d            
          1006, 1010 (Colo. 1972).  Alimony in gross is not unacceptable              
          per se.  Moss v. Moss, 549 P.2d 404, 406 (Colo. 1976).  The                 
          Colorado court presumably considered the special circumstances of           
          petitioner’s problematic financial history, as explained in                 
          paragraphs 4, 8, and 17 of the Final Orders.                                





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011