GERALD E. MANSELL, APPELLANT V. GAYE M. (MANSELL) FORBES No. 87-201 In the Supreme Court of the United States October Term, 1987 On Appeal From the Court of Appeal of California, Fifth Appellate District Brief for the United States as Amicus Curiae This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. TABLE OF CONTENTS Question Presented Statement Discussion Conclusion QUESTION PRESENTED The parties are former spouses. Appellant, a retired member of the Air Force, receives Air Force retirement pay and Veterans Administration (VA) disability benefits. In order to receive VA benefits, he has waived a portion of his Air Force retirement pay equal to the amount of the payments he receives from the VA. The question is whether either the Federal Uniformed Services Former Spouses Protection Act, 10 U.S.C. (& Supp. IV) 1408, or the anti-attachment provision that applies to VA benefits, 38 U.S.C. 3101(a), requires that appellant's VA benefits be excluded in calculating appellee's community property interest in appellant's Air Force retirement pay. STATEMENT 1. a. This case involves the relationship between California community property law and two kinds of federal benefits: military retirement pay based on length of service, and veterans disability benefits. Under various provisions of title 10 of the United States Code, members of the military services who have served the required length of time may retire from active duty and receive retirement pay. 10 U.S.C. 3911 et seq. (Army); 10 U.S.C., (& Supp. IV) 6321 et seq. (Navy and Marine Corps); 10 U.S.C. 8911 et seq. (Air Force); see generally McCarty v. McCarty, 453 U.S. 210, 213-215 (1981). /1/ In addition, veterans who become partially or totally disabled as a result of military service may be eligible for disability benefits from the Veterans Administration (VA) (38 U.S.C. 310 (wartime disability); 38 U.S.C. 331 (peacetime disability)). A military retiree may receive VA disability benefits only to the extent that he waives a corresponding amount of his military retirement pay (38 U.S.C. 3104(a)(1), 3105). Because VA disability benefits, unlike military retirement pay, are exempt from taxation, such waivers are common. Under the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA), 10 U.S.C. (& Supp. IV) 1408, disposable military retirement pay may be regarded under state law as community property subject to division upon divorce (10 U.S.C. 1408(c)(1)). FUSFSPA in fact provides that the federal government will garnish up to 50% of a former spouse's disposable military retirement pay to satisfy a court order dividing the retirement pay to satisfy a court order dividing the retirement pay as community property (10 U.S.C. (& Supp. IV) 1408(d)). VA disability benefits obtained pursuant to a waiver of a corresponding amount of military retirement pay, in contrast, are exempt from federal garnishment under under FUSFSPA (10 U.S.C. 1408(a)(4)(B)). /2/ In addition, VA disability benefits are protected by 38 U.S.C. 3101(a), which provides that such benefits "shall not be assignable except to the extent specifically authorized by law, and * * * shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable proceeding whatever, either before or after receipt by the beneficiary." See Rose v. Rose, No. 85-1206 (May 18, 1987); see also Bennett v. Arkansas, No. 86-6124 (Mar. 29, 1988) (Social Security Act anti-attachment clause). b. California, like seven other States, applies community property principles to certain property acquired by the spouses during marriage. When a marriage is dissolved, the court granting the divorce decree divides the community assets equally between the spouses, while each spouse retains full ownership of any separate (that is, non-community) property. See Cal. Civ. Code Section 4800(a) (West 1983); McCarty v. McCarty, 453 U.S. at 216-217; Hisquierdo v. Hisquierdo, 439 U.S. 572, 577-578 (1979) (application of California community property law to Railroad Retirement Act pension)). Under California law, vested rights to receive military retirement payments based on length of service are treated as community property to the extent that they derive from military service performed during the marriage. Military retirement pay received after a marriage is dissolved may therefore be subject to division between the former spouses on the theory that the right to receive those payments is a community asset that was acquired during the marriage. Casas v. Thompson, 42 Cal. 3d 131, 139, 228 Cal. Rptr. 33, 37, 720 P.2d 921, 925 (1986), cert. denied, No. 86-641 (Dec. 8, 1986); In re Marriage of Fithian, 10 Cal. 3d 592, 604, 111 Cal. Rptr. 369, 376, 517 P.2d 449, 456-457, cert. denied, 419 U.S. 825 (1974). Benefits based on disability, however, are considered to be compensation for the recipient's current impairment, not deferred compensation for prior services. California therefore treats disability payments received after the dissolution of a marriage as the separate property of the former spouse who receives them; this treatment as separate property applies to both military disability retirement pay and VA disability benefits. In re Marriage of Jones, 13 Cal. 3d 457, 462-463, 119 Cal. Rptr. 108, 111-112, 531 P.2d 420, 423-424(1975). 2. The parties to this appeal were married in 1954 and have six children. They separated in 1977. On May 29, 1979, the Merced County, California, Superior Court entered an interlocutory judgment dissolving the marriage. The dissolution order became final on June 4, 1979. J.S. App. D2. At the time of the divorce, appellant Mansell was retired from the Air Force on nondisability retirement, after having served the requisite time. He was also eligible for VA disability benefits based on a service-connected disability. He was then, and is now, receiving both Air Force retirement pay and, pursuant to a waiver of a portion of that pay, VA disability benefits. Ibid. /3/ On May 25, 1979, in preparation for the divorce, the parties entered into a property settlement agreement (J.S. App. D1). The agreement provided (id. at D2-D3) in part: (Appellant) shall make an allotment to (appellee) in an amount equalling fifty percent (50%) of the gross retirement pay and compensation from the Veterans' Administration accrued through (appellant's) employment with the United States Air Force, and shall increase such allotment from time to time in an amount necessary to equal fifty percent (50%) of the gross amount of any and all increases in such retirement pay and compensation from the Veterans' Administration that may occur in the future until the death of either party. The interlocutory divorce decree incorporated the property settlement agreement by reference (id. at A2), and also specifically required appellant to make the specified allotment of his gross retirement pay and VA disability benefits as provided for by the property settlement (id. at A3). The court that granted the divorce expressly reserved jurisdiction over the distribution of appellee's share of these benefits (ibid.). In addition, the decree noted that appellee had waived her right to receive any money or property from appellant as spousal support (id. at A2). In 1983, appellant requested the Merced County Superior Court to modify the decree by removing the provision that required him to make the allotment of retirement pay and disability benefits (J.S. App. D2-D3). The superior court denied that request without opinion on August 10, 1983 (id. at B2). Appellant appealed that decision to the California Court of Appeal, Fifth Appellate District, arguing that under FUSFSPA and 38 U.S.C. 3101(a), California could not include his VA disability benefits in the total retirement payments to be divided between him and appellee as community property. The Court of Appeal rejected the argument based on FUSFSPA, relying on the decision of the Supreme Court of California in Casas v. Thompson, 42 Cal. 3d 131 (1986) (J.S. App. D8-D11). Casas held that after the enactment of FUSFSPA there was no federal preemption of state community property law as it applies to military retirement pay, and that FUSFSPA's limited federal garnishment remedy did not imply any limits on the States' ability to subject military retirement pay to community property rights and to enforce those rights through remedies other than federal garnishment (42 Cal. 3d at 143-151). The Court of Appeal did not discuss the preemptive effect of 38 U.S.C. 3101(a). It affirmed the superior court's judgment on January 30, 1987 (J.S. App. D1-D14). Appellant sought review of the Court of Appeal's decision in the Supreme Court of California. Review was denied without opinion on April 29, 1987 (J.S. App. E1). DISCUSSION Appellant asserts two grounds of federal preemption: FUSFSPA and the VA benefits anti-attachment provision (38 U.S.C. 3101(a)). We agree with the Court of Appeal that FUSFSPA does not forbid the application of California community property law to the gross amount of appellant's Air Force retirement pay, that is, to the full amount of retirement pay he would receive absent a waiver in order to obtain VA disability benefits. Appellant's claim based on Section 3101(a) presents a more difficult question. In our view, Section 3101(a) prevents appellee from reaching appellant's VA benefits in order to enforce her community property rights in the gross amount of appellant's retirement pay. This does not mean, however, that California may not enforce appellee's community property interest in appellant's gross retirement pay out of income available to appellant other than his VA disability benefits -- including the balance of his military retirement pay not subject to federal garnishment. We think that the preemption claim based on FUSFSPA is at least arguably a substantial federal question, and that the preemption argument grounded in Section 3101(a) is more clearly such a question. Accordingly, we suggest that probable jurisdiction be noted. 1. This Court has decided a series of cases involving claimed federal preemption of state community property and family support obligations. In Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), the former spouse of a railroad retiree claimed that California community property law gave her an interest in the retiree's benefits under the Railroad Retirement Act (RRA), 45 U.S.C. 231 et. seq. When Hisquierdo was decided, RRA benefits were protected by 45 U.S.C. (1976 ed.) 231m, an anti-attachment clause very similar to Section 3101(a). /4/ The Court found that the RRA provided for "a specified beneficiary protected by a flat prohibition against attachment and anticipation" (439 U.S. at 582), and held therefore that the California courts could neither require the retiree to pay part of his benefits to his former spouse nor award her other property (in that case, the couple's house) as compensation for her right to RRA benefits (id. at 583-590). /5/ Subsequently, in McCarty v. McCarty, 453 U.S. 210 (1981), the Court concluded that federal law prevented California from applying its community property principles to nondisability military retirement pay. Although the military retirement statutes do not include an explicit preemption provision or anti-attachment clause, the Court found that Congress established military retirement pay as a personal entitlement of the retired service member and intended that retirement pay go to the retired member and to no one else (453 U.S. at 224-232). The Court accordingly determined that the application of California's community property law to military retirement pay was preempted (id. at 232-235). In direct response to McCarty, Congress enacted FUSFSPA, 10 U.S.C. (& Supp. IV) 1408. The Act provides that "(s)ubject to the limitations of this section, a court (with jurisdiction over a divorce decree) may treat disposable retired or retainer pay * * * either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court" (10 U.S.C. 1408(c)(1)). FUSFSPA further provides that the relevant uniformed service member's former spouse in order to satisfy a court order dividing the retirement pay as community property or requiring that the service member provide child support or alimony (10 U.S.C. (& Supp. IV) 1408(d)). Garnishment by the federal government is limited to a specified portion (generally 50%) of the member's "disposal retired or retainer pay" (10 U.S.C. (& Supp. IV) 1408(e)(1)); "disposable retired or retainer pay" is in turn defined as "the total monthly retired or retainer pay to which a member is entitled," minus certain deductions (10 U.S.C. (& Supp. IV) 1408(a)(4)). Among the amounts to be deducted from the gross entitlement in calculating disposable retired pay are amounts waived in order to receive VA benefits under title 38 (10 U.S.C. 1408(a)(4)(B)). /6/ The Court recently considered the preemptive effect of the anti-attachment clause that protects VA benefits (38 U.S.C. 3101(a)) in Rose v. Rose, No. 85-1206 (May 18, 1987). Rose involved a Tennessee court order, under which appellant Rose, a disabled veteran, was required to support his children from a former marriage. Rose's income consisted entirely of VA and social security benefits, and his social security payments were insufficient to meet his support obligations. He would thus have to make payments out of his VA benefits in order to comply with the support order. The Court rejected Rose's argument that Section 3101(a) prohibited the Tennessee courts from holding him in contempt in order to enforce his support obligations. The Court reasoned that VA disability benefits were "intended to support not only the veteran, but the veteran's family as well," and concluded on that basis that Section 3101(a) "does not extend to protect a veteran's disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support" (slip op. 13). The Court specifically noted, however, that it was dealing with a child support order, not a community property division (ibid.). 2. Appellant receives both Air Force retirement pay and VA disability benefits. The retirement pay he actually receives reflects his waiver, pursuant to 38 U.S.C. 3105, of an amount of retirement pay equal to his VA disability compensation. Appellee maintains that under California law she owns, as community property, 50% of the gross Air Force retirement pay that appellant is entitled to receive as a result of his military service, and that her community property interest is not affected by appellant's waiver of part of that entitlement in order to receive VA benefits instead. Appellee does not, however, assert any direct interest in appellant's VA disability benefits, which in any event are considered his separate property under California law (Mot. to Dis. 9-10, 13-14). She also recognizes (see id. at 13) that her garnishment remedy under FUSFSPA does not reach the portion of appellant's retirement pay that he has waived in order to receive VA disability benefits. Appellee nevertheless maintains (ibid.) that she may use other remedies to enforce her interest in one half of appellant's gross entitlement to retirement pay. Appellant argues that federal law preempts appellee's community property interest in his gross military retirement pay two ways. First he suggests (J.S. 7-9) that FUSFSPA, in addition to creating a federal garnishment right limited to 50% of disposable retired pay, also limits appellee's community property rights to the amount she can collect through federal garnishment. Next, appellant maintains (id. at 9-11) that, despite any interest appellee may have in his Air Force retirement pay, the antiattachment clause that protects VA disability benefits (38 U.S.C. 3101(a)) preempts California community property law to the extent that it would apply to the amount of Air Force retirement pay that he has waived in order to receive VA benefits. a. Appellant's first argument would directly limit appellee's community property interest in his Air Force retirement pay to the amount she could garnish under FUSFSPA. The argument rests on the premise that part of the federal preemption of state community property law recognized in McCarty v. McCarty, supra, survives the enactment of FUSFSPA. According to appellant (J.S. 7), FUSFSPA "did not give California the unlimited right to treat military retirement pay in accordance with its general community property laws. It merely provided for division of 'disposable retired pay,' as opposed to gross retired pay." In our view, the Supreme Court of California in Casas v. Thompson, supra, correctly rejected that contention. FUSFSPA provides (10 U.S.C. 1408(e)(6) (emphasis added)): Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support or other payments required by a court order on the grounds that payments made out of disposable retired or retainer pay under this section have been made in the maximum amount permitted ***. Any such unsatisfied obligation of a member may be enforced by any means available under law. * * *." FUSFSPA thus disclaims any preemptive effect of its own, while expressly contemplating state-law obligations in excess of those that may be enforced through federal garnishment. This express permission for enforcement of obligations in excess of those that can be collected through federal garnishment is inconsistent with the conclusion that any aspect of federal law other than FUSFSPA itself preempts the application of state community property law to federal military retirement. /7/ The legislative history confirms this view. FUSFSPA, which ultimately was adopted as part of a Department of Defense authorization statute (Department of Defense Authorization Act, 1983, Pub. L. No. 97-252, Tit. X, Section 1001, 96 Stat. 730), originated as a Senate bill. S. 1814, 97th Cong., 1st Sess. (1981). The report on S. 1814 explained (S. Rep. 97-502, 97th Cong., 2d Sess. 16 (1982)): "The provision is intended to remove the federal preemption found to exist by the United States Supreme Court (in McCarty) and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisable." The Senate Report also notes that the limitation on garnishment under FUSFSPA does not limit any other remedy available to enforce state-created rights (id. at 11). /8/ We conclude, therefore, that the military retirement statutes do not displace state community property law as it relates to military retirement pay based on length of service. b. Appellant also argues that Section 3101(a) prevents California from treating as community property that portion of his Air Force retirement pay that he has waived in order to receive VA disability benefits. This contention presents two questions: first, whether Section 3101(a) applies to claims arising out of community property rights, and second, if the provision does apply, whether it requires the result appellant urges. The Court held in Hisquierdo that the anti-attachment clause of the RRA prevented a former spouse from enforcing a community property interest in benefits protected by the anti-attachment clause. In Rose, however, the Court held that Section 3101(a) did not preclude the enforcement of a state order of child support. The Court concluded that claims based on such family obligations are not claims of the sort to which Section 3101(a) applies. Rose therefore raises the question whether Section 3101(a) has any application to appellee's claim, which arises out of her community-property interest in appellant's Air Force retirement pay. In our view, the rationale of Rose does not affect the application of Section 3101(a) to claims based on community property rights. Rose turned on the Court's conclusion that VA benefits "are intended to 'provide reasonable and adequate compensation for disabled veterans and their families.' S. Rep. No. 98-604, p. 24 (1984) (emphasis added)." Slip op. 10. The Court in Rose distinguished its prior cases, including Hisquierdo, involving federal preemption of state community property law (id. at 11-13), noting that those cases had expressly distinguished between "the moral imperative of family support obligations and the business-like justifications for community property division" (id. at 13; see also id. at 11). Community property rights and support obligations are different not only in form but in substance, as has been repeatedly recognized by both the Court (see e.g., Wissner v. Wissner, 338 U.S. 655, 659-660 (1950)) and Congress (see, e.g., 42 U.S.C. (& Supp. III) 659 (benefits attachable to satisfy child support and alimony, but not community property, obligations); 11 U.S.C. (& Supp. IV) 523(a)(5) (discharge in bankruptcy releases community-property, but not support, obligations)). Community property rights accrue automatically during a marriage and rest on certain assumptions concerning the creation of wealth and the use of that wealth to acquire property. Spousal and child support obligations, by contrast, rest on the legal and moral undertakings implicit in marriage and parenthood. The two kinds of rights thus differ in their origins, purposes and proper measure -- in particular, support obligations are calculated on the basis of need, which does not enter into the determination of community property interests. The distinction is genuine even though community property interests may to some extent reflect the need for support and may sometimes represent a substitute for support obligations. See Wissner, 338 U.S. at 660 n.4. However, the conclusion that Section 3101(a) applies to claims arising out of community property obligations, as opposed to family support obligations, does not dispose of this case. Unlike the former spouse in Hisquierdo, appellee does not assert a direct interest in appellant's protected benefits; she recognizes that California law gives her no such interest. Rather, appellee maintains (Mot. to Dis. 9-14) that under California law appellant's waiver of a portion of his Air Force retirement pay does not defeat her right to receive 50% of his gross entitlement to Air Force retirement pay, including the amount he has waived. /9/ This case therefore presents a novel question under Section 3101(a): whether the anti-attachment clause protects funds received from a specific source -- Veteran's disability payments -- or whether it also protects the beneficiary's total wealth, from whatever source it may be derived. In our view, Section 3101(a) protects funds derived from a specific source. The statute prevents appellee from invading appellant's VA benefits in order to satisfy her claim to a share of his Air Force retirement pay. By its terms Section 3101(a) exempts VA payments from the claims of creditors and shields them from any form of "attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary" (emphasis added). Accordingly, appellant's VA benefits themselves are unavailable to appellee, either directly or through the imposition of a constructive trust (see Ridgway v. Ridgway, 454 U.S. 46 (1981)), just as they are unavailable to any other creditor of appellant. See Bennett v. Arkansas, No. 86-6124 (Mar. 29, 1988) (anti-attachment provision of Social Security Act, 42 U.S.C. (& Supp. III) 407(a), prevents State from attaching social security benefits in order to pay expenses of state prisoner). This does not mean, however, that Section 3101(a) prevents appellee from recovering her asserted 50% interest in appellant's gross Air Force retirement entitlement out of other income or assets of appellant -- including his Air Force retirement pay. In this case, appellant's net Air Force retirement pay appears to be sufficient to satisfy appellee's entire claim to 50% of his gross entitlement, without requiring that he make any payment out of his VA benefits. See note 3, supra. Appellant contends that Section 3101(a) goes farther than protecting his VA payments themselves, and that it in effect insulates a certain portion of his wealth from the claims of his former spouse. Specifically, he maintains that because of the anti-attachment provision, the portion of his Air Force retirement pay which is subject to appellee's community property rights must be reduced by an amount equal to his VA disability benefits. However, neither the language nor the purpose of Section 3101(a) requires that appellee's rights be reduced because of appellant's waiver of some of his Air Force retirement pay. Calculation of appellee's interest on the basis of appellant's gross Air Force retirement entitlement does not in itself constitute an "attachment" of VA benefits or otherwise subject them to a creditors' claims, as long as the benefits themselves are protected. Moreover, the purpose of Section 3101(a) is fully achieved as long as appellant is able to receive the VA benefits tax-free and the benefits themselves are protected from diminution by the anti-attachment provision. /10/ Section 3101(a) is designed to ensure that the needs of the disabled veteran, as represented by the amount of his disability compensation, are met, without any interference from creditors. That design is effective as long as the full amount of VA benefits is available to the beneficiary. The approach we suggest is in keeping with that indicated by the Court in Ridgway v. Ridgway, supra. In Ridgway, a former service member was required by a state court order to maintain in force a military insurance policy which named his former wife and children as beneficiaries. The service member, however, remarried and named his new wife as beneficiary under the policy before he died. The Court held that because of the service member's unqualified federal right to name the beneficiary of the policy, reflected in an anti-attachment clause (38 U.S.C. 770(g)), his children could not attach the proceeds of the policy. The Court suggested, however, that the children might have a valid claim against any other assets in the estate as a result of the decedent's breach of his obligation to insure them (454 U.S. at 59). Similarly here, Section 3101(a) protects appellant's VA benefits but not his other income and assets, which are available to satisfy appellee's otherwise valid state-law claims. /11/ 3. Although the California Court of Appeal reached the correct result in this case, we believe that this appeal presents substantial federal questions and therefore should be given plenary consideration. /12/ The question whether FUSFSPA completely eliminates any and all federal preemption of state community property laws as they apply to military retirement pay is of considerable practical importance. While the Court might conclude that the decision of the Supreme Court of California in Casas v. Thompson, supra, on which the Court of Appeal in this case relied, was so clearly correct as to make the federal question insubstantial, the issue involves the construction of an Act of Congress which was passed in response to a decision of this Court, and which has not received an authoritative resolution at the federal level. Given the large number of persons affected by the statute, we think that such a resolution would be desirable. The effect of the VA anti-attachment clause on claims deriving from community-property rights is also a federal question of considerable practical importance, and is, in our view, somewhat more difficult. This Court's decision in Rose, holding that 38 U.S.C. 3101(a) does not prevent the enforcement through contempt proceedings of child support obligations, raises the question whether that statute affects the enforcement of community property rights. Moreover, the suggestion that Section 3101(a) in effect gives appellant the right to reduce appellee's community property entitlement, although we believe it to be incorrect, raises a difficult federal question. Appellee argues (Mot. to Dis. 14-17) that the Court should dismiss the appeal because the parties characterized appellant's gross Air Force retirement pay as community property in a stipulated judgment. That fact, however, does not appear to have any bearing on the jurisdiction of this Court. It certainly does not represent an independent and adequate state ground for the decision below, since the Court of Appeal rejected the argument that appellant could not seek review of the earlier stipulated judgment (J.S. App. D6-D8). The California court reached the merits of the federal claim and did not rely on a state ground. /13/ In sum, this case involves significant federal questions, at least one of which was not addressed by the state courts, which warrant full consideration by this Court. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General ANTHONY J. STEINMEYER CHRISTINE R. WHITTAKER Attorneys JUNE 1988 /1/ Separate provisions, not at issue in this case, govern retirement for disability. 10 U.S.C. (& Supp. IV) 1201 et seq. A member of the military service may become eligible for disability retirement before he is eligible to receive retirement pay based on length of service (see, e.g., 10 U.S.C. 1201(3)(B)). /2/ Such VA disability benefits are, however, subject to garnishment under 42 U.S.C. (& Supp. III) 659 in order to meet alimony and child support obligations. See 42 U.S.C. 662(f)(2). /3/ The VA informs us that appellant receives approximately $482 per month in VA disability benefits and approximately $1,200 per month in Air Force retirement benefits. /4/ The RRA anti-attachment clause, 45 U.S.C. (1976 ed.) 231m, provided: "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process * * * whatsoever, nor shall the payment thereof be anticipated ***." /5/ After Hisquierdo was decided, Congress amended the RRA to permit states to treat railroad retirement benefits as community property. Railroad Retirement Revenue Act of 1983, Pub. L. No. 98-76, Section 419(a), 97 Stat. 438; see 45 U.S.C. (Supp. III) 231m. /6/ The garnishment remedy under FUSFSPA is thus broader in its coverage than that provided by the Social Security Act, 42 U.S.C. (& Supp. III) 659, under which military retirement pay may be garnished in order to meet alimony and child support obligations but not in order to satisfy community property orders. See 42 U.S.C. 662(c). /7/ Appellant implies (J.S. 8 (emphasis in original)) that FUSFSPA has preemptive, as well as anti-preemptive, effect because it provides that "(s)ubject to the limitations in this section, a court may treat disposable retired or retainer pay * * * either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court" (10 U.S.C. 1408(c)(1) (emphasis added)). The limitations referred to, however, are spelled out in the remainder of Section 1408(c). They include the proviso that the FUSFSPA garnishment right, unlike a normal community property right, unlike a normal community property right, does not descend (10 U.S.C. 1408(c)(2)); there is no suggestion, however, that the limiting language in any way contradicts the express savings clause contained in Section 1408(e)(6). /8/ Appellant also suggests (J.S. 11) that his preemption argument finds support in the Social Security Act, which authorizes attachment of military retirement pay, including portions thereof waived in order to receive VA disability benefits, in order to satisfy alimony and child support obligations but not in order to satisfy community property obligations (42 U.S.C. (& Supp. III) 659, 662(f)(2)). Like FUSFSPA itself, however, those provisions reflect limits on the federal government's willingness directly to enforce state-created obligations, not affirmative preemption of state law. /9/ In In re Marriage of Jones, 13 Cal. 3d at 461-462, 119 Cal. Rptr. 111-112, 531 P. 2d 423-424, the Supreme Court of California held that military disability retirement pay, received by a service member who took disability retirement before he became eligible for retirement based on length of service, was the member's separate property, not community property. Jones stated that VA disability benefits, as well as military disability retirement pay, would be the separate property of a former spouse after the marriage was dissolved (13 Cal. 3d at 462 n.5, 119 Cal. Rptr. 112 n.5, 531 P.2d 424 n.5). Where the service member was able to elect either disability or nondisability retirement, however, the California courts have held that the election to take disability retirement does not defeat the former spouse's community-property interest in the vested right to receive non-disability retirement pay that the retired service member has waived. In order to enforce the former spouse's rights, a constructive trust is imposed on the disability retirements benefits. In re Marriage of Stenquist, 21 Cal. 3d 779, 148 Cal. Rptr. 9, 582 P.2d 96 (1978); see also In re Marriage of Mastropaolo, 166 Cal. App. 3d 953, 213 Cal Rptr. 26 (1985), cert. denied, 475 U.S. 1011 (1986). /10/ Because VA benefits are tax-free, appellant's waiver of Air Force retirement pay in favor of VA benefits increases his net income. Under the analysis we propose, this increase in appellant's net benefits does not affect appellee's interest, because it does not affect his gross entitlement to Air Force retirement; appellant therefore captures the full benefit of the tax exemption. /11/ This result is also consistent with Free v. Bland, 369 U.S. 663 (1962), in which the Court held that federal survivorship rules governing the descent of United States Savings Bonds preempted a Texas community-property rule that purported to control the descent of the money with which the bonds had been purchased. There, the Court held that in the absence of fraud, the use of community assets to purchase the bonds did not subject the bonds to the state rule of descent. The Court found preemption in Free, however, because of an irreconcilable conflict between state community property law and the rule of descent specifically provided by federal law. Here, as we have explained, Section 3101(a) can be fully effective without displacing state law. /12/ This case is properly within the Court's appellate jurisdiction. Appellant maintains in this Court, and represents (see J.S. 4-5) that he argued below, that both FUSFSPA and Section 3101(a) prevent the application of California community property law to a portion of his federal benefits. The Court of Appeal specifically addressed the question of preemption, albeit only under FUSFSPA (J.S. App. D8-D11). See McCarty, 453 U.S. at 219-220 n.12 (challenge to California community property law correctly reviewed on appeal, not certiorari); see also Rose v. Rose, supra (appeal from Court of Appeals of Tennessee). Appellee does not argue that this is not an appeal. /13/ Alternatively, appellee may mean to suggest that her claim to a portion of appellant's benefits rests on contract as well as on community property law, on the theory that a stipulated judgment, like a consent decree, is in part a contract. The Court of Appeal did not suggest that it had a considered any such approach. Moreover, in order to accept that argument it would be necessary to conclude that Section 3101(a) does not prevent the enforcement of a contractual obligation that is calculated on the basis of VA disability benefits; that conclusion would involve the resolution of a federal question and so would not be purely a matter of state law.