I have submitted the Appellee’s Brief in Foster v. Foster. The Michigan Supreme Court is once again considering the impact of its April 2020 unanimous decision in Foster v. Foster, ruling that federal law preempted state law in the area of the division of military disability pay as property, and that 38 USC 5301 prohibited consent agreements whereby veterans agreed to dispossess themselves of their protected disability pay. The Court of Appeals, in its third opinion, (and on a second remand) from the Michigan Supreme Court’s unanimous opinion, ruled that where federal law preempts state law, the state courts lack subject matter jurisdiction and therefore the trial court’s 2008 judgment could be collaterally attacked. The Court of Appeals vacated and reversed the trial court’s 2008 judgment to the extent it violated the rule of federal preemption by requiring the veteran to dispossess himself of his protected disability pay.
Now the Supreme Court has granted an appeal by the former spouse and has asked the parties to consider whether the federal preemption principle that it unanimously held applied in this case removes the subject matter jurisdiction of the state court such that the 2008 judgment (or that part of it that violated federal law) could be subjected to collateral attack or does the state law principle of res judicata forever bar Appellee from vindicating his constitutional and statutory rights in his federally protected veterans’ disability pay.
I’ll do a longer summary later because this case has a long and tortured history 3 Court of Appeals Opinions, an interim US Supreme Court Opinion in another case directly applicable to this case, a Supreme Court remand, a unanimous Supreme Court opinion, a trial court order of restitution in the veteran’s favor for $72,000, a new parallel appeal from that ruling in the Court of Appeals and this full calendar grant. The disabled veteran has been fighting this since the day he realized that federal law prohibited the states from taking his disability and he had been wrongfully convinced to part with them in a one-sided “bargain” in which he gave up all his financial rights and his VA disability pay! This case is one of those that teaches the benefit of not giving up, ever. Round III coming up.