In a case of first impression California’s Fourth District Court of Appeal has held that military housing and food allowances are to be taken into consideration when calculating child and spousal support.  In the case, entitled In re Marriage of Stanton 190 Cal.App.4th 547 (4th Dist., Div. 1 Nov. 24, 2010), the court held this to be true even though such allowances are neither taxable nor subject to wage garnishment.

The facts of the case are as follows:

Husband Soloman Stanton had sought to reduce his temporary child support and spousal support orders to his wife, Carol.  Upon divorce, the court had ordered Soloman to pay his wife temporary support for both her and their son.  Soloman was a member of the United States Navy, and, at the time, the court had calculated the amount of support based in part on Soloman’s military allowances for housing and food.

In his request for a reduction, Soloman had argued that because federal law exempts a military allowance from federal tax and wage garnishment, the court had violated the federal preemption doctrine by including his allowances in its calculation.  Under the federal preemption doctrine, Congress can preempt state laws.

However, after the hearing, the San Diego County Superior Court denied Soloman’s request for a reduction.  The Court of Appeal affirmed the trial courts decision.  It held that the federal preemption doctrine does not prohibit the inclusion of a military allowance when calculating either child support or spousal support.  The court opined that the doctrine is inapplicable to family law unless Congress’s intent is clearly contrary to state law.

The Court of Appeal further determined that Congress had not intended for a military allowance to be excluded from child support or spousal support.  In conclusion, the court stated that “the nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support.”

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