In August 2014 Carson J. Tucker and Lex Fori PLLC took up an appeal in a case for a disabled veteran who had been held in contempt in a 2014 proceeding in Dickinson County, Michigan for violating a 2008 judgment.
After two initial Court of Appeals opinions against the veteran, and two Michigan Supreme Court decisions (the first vacating the Court of Appeals, and the second, on a full grant unanimously reversing the judgment of the second Court of Appeals opinion and overruling over a decade of bad case law in Michigan), the Court of Appeals, on its third review on remand, has vacated the 2008 judgment and ruled for the veteran. Foster v. Foster III
The Court of Appeals ruled that federal law preempted all state law and the disabled veteran’s challenge to the 2008 judgment was NOT barred by res judicata or collateral estoppel because the trial court lacked subject matter jurisdiction to issue a judgment contrary to federal law.
The disabled veteran, suffering from traumatic brain injuries and PTSD, had been forced to enter into an agreement to dispossess himself of his disability pay, his only source of income, which he was awarded as a result of his combat-related injuries serving our country. This veteran, an Army infantryman and Platoon Leader, won a Bronze Star for his heroism and service during tours of duty in Iraq and Afghanistan. He was wounded when his unit’s convoy was struck by an improvised explosive device (IED). He lost several of his fellow troops in the explosion and during the ensuing firefight.
After he fell behind in his payments on the judgment, he was arrested and thrown in jail. Mind you this was a “property settlement” agreement, whereby he agreed to give up his disability pay, all his interest in the parties’ marital property, all his interest in his former spouse’s pension, all and his claim for potential alimony because he was making less money than her! Essentially, he was forced into an agreement in which he agreed to dispossess himself of his only income in exchange for giving up any interest or rights to anything from his former spouse, who has a full-time job as a registered nurse!
As the appeal was pending in state court, the United States Supreme Court took up the case of Howell v. Howell, to address the very issue that was being litigated in our appellate pleadings. Realizing the significance of this, I reached out to several veterans’ service organizations and volunteered pro bono to write and file an amicus curiae brief in which I argued that federal law has always preempted state law in this particular subject matter, and that federal statutory law prohibited the states from enforcing any type of agreement that dispossessed disabled veterans of their disability pay.
The Supreme Court agreed, unanimously, with every single argument presented in the brief. This, of course, resulted in our ability to leverage that opinion to achieve victory after 6 long years of fighting this in the state courts of Michigan.