Family Law & the Military

Family Law & the Military Colorado Legal Services CLE July 30, 2019

Carl O. Graham Graham.Law 2 N. Cascade Ave Ste 1100 Colorado Springs, CO 80903 (719) 630-1123 [email protected] www.military-divorce-guide.com

I. JURISDICTION A. Subject Matter Jurisdiction to Grant Dissolution 1. C.R.S. 14-10-106(1)(a)(I) requires one party be resident 91 days prior to filing

2. Being stationed in CO pursuant to military orders, without more, insufficient for jurisdiction. Viernes v. District Court, 509 P.2d 306 (Colo. 1973)

3. “State Taxes” section of LES (EXH 1) shows state of residence as reported to military & IRS

4. Civilian spouse residing in CO usually means jurisdiction unless no footprint. Note per Military Spouses Residency Relief Act, for purposes of taxes (10 U.S.C. § 4001(a)(2)) and voting ((10 U.S.C. § 4025(b)), if spouse and member have same state of residence, spouse’s residence does not change by virtue of accompanying the member for military duties B. Personal Jurisdiction over Member. Same as civilian, except for retirement. No special service of process requirements

C. Jurisdiction to Divide Military Retirement 1. Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408(c)(4), enacted in 1982, overruled McCarty v. McCarty, 453 U.S. 210 (1981) which held military retirement not divisible

2. In re: Marriage of Gallo, 752 P.2d 47 (Colo. 1988). Military retirement is divisible property interest. Gallo is not retroactive, and only applies to

1 decrees entered after case decided. In re: Marriage of Booker, 833 P.2d 734 (Colo. 1992)

3. Personal jurisdiction over servicemember alone insufficient to divide military retirement. USFSPA requires: a) Residence not due to military orders, b) Domicile, or c) Consent

4. USFSPA preempts state law, and CO lacks subject-matter jurisdiction to divide retirement absent domicile or affirmative conduct demonstrating express or implied consent. In re: Marriage of Booker, 833 P.2d 734 (Colo. 1992), In re: Marriage of Akins, 932 P.2d 863 (Colo. App. 1997) 5. “Consent” includes filing, owning a house, and may include, anecdotally, actively participating in dissolution proceeding D. UCCJEA Jurisdiction over Military Child. UCCJEA jurisdiction required before any parenting proceeding, including dissolution, legal separation, grandparent visitation, guardianship, dependency & neglect, paternity, etc. C.R.S. 14-13-102(4) 1. Home state of child (182 days residence) at commencement, or within 182 days of commencement if one parent remains in CO. C.R.S. 14-13-201(1)(a)

2. No other state has jurisdiction, or other state with jurisdiction declined to exercise on grounds that CO is more appropriate, AND child and at least one parent has significant connection with CO other than presence. C.R.S. 14-13-201(1)(b)

3. All other courts with jurisdiction have declined to exercise it. C.R.S. 14-13-201(1)(c)

4. No other state has jurisdiction. C.R.S. 14-13-201(d).

5. Temporary emergency jurisdiction. Child is present in CO, and been abandoned, or necessary to protect child due to abuse against child, sibling or parent. C.R.S. 14-13-204(1). Duration - only until such time state with jurisdiction has opportunity to issue order

6. Personal Jurisdiction Over Respondent. N/A. Can be served anywhere, as long as there’s UCCJEA jurisdiction. C.R.S. 14-13-201(3)

7. In re: Marriage of Brandt, 268 P.3d 406 (Colo. 2012) a) 2006 MD divorce, H & W lived in MD with child until H PCS’d to Fort Carson in 2008. W commissioned in Army 2009, stationed in 2 TX with child. W deployed 2010, parties agreed child spend 2010-11 school year in CO, then return to W. H registered action in CO

b) Trial court assumed jurisdiction after finding no parent/child presently resided in MD. H got writ to pick up child from W, brought back to CO. Both CO and MD asserted UCCJEA jurisdiction, scheduled hearings, etc

c) Supreme Ct - Being absent from state in itself not deprive state of UCCJEA jurisdiction. “Presently reside” \= “currently reside” or “physical presence”, but “necessitates an inquiry broader than ‘technical domicile’ into the totality of the circumstances that make up domicile”

d) Factors include: parent’s permanent home where intends to return, lengthy & reasons for absence, intent in departing state and returning to it, military assignments, where maintain home, car driver’s license, voter registration, pay state taxes, etc II. TYPES OF MILITARY RETIREMENT A. High 3 (Most common, so far...) 1. Service commenced 9/8/1980 or later 2. Each year of service worth 2.5% of average of highest 36 months of base pay 3. Annual COLA based upon CPI

B. Final Pay

1. Service commenced before 9/8/1980 2. Each year of service worth 2.5% of final base pay 3. Annual COLA based upon CPI

C. Redux

1. Service after 8/1/1986 AND member selected career status bonus at 16 yrs service 2. 1st 20 years of service worth 2% of average of highest 36 months of base pay 3. Each year of service beyond 20 worth 3.5%, up to 75% 4. Annual COLA 1% below CPI, with “catch-up” recalculation at age 62

3 D. Blended Retirement (NEW in 2018). Combines defined benefit plan with TSP 1. Active Duty

a) Legacy mandatory for members who joined before 12/31/2005

b) Blended mandatory for members who first join after 1/1/2018. Prior service who join after 1/1/2018 must elect within 30 days

c) Members who joined between 1/1/2006 - 12/31/2017 made election during 2018. Most chose legacy

2. Reserves

a) Over 4320 points must remain in legacy

b) Under 4320 points made election during 2018

3. TSP Contribution Limit: up to $18.5K/yr into Roth or Traditional TSP 4. Government Match. a) 1% to everyone after 60 days (vests at 2 yrs), even if no member contribution,

b) Up to another 4% match (so 5% total) after 2 yrs 5. Continuation Pay at 12 yrs service, 2.5-13x monthly base pay (0.5-6.5x for reserves), depending upon duty position

6. Defined benefit plan reduced, receive multiplier of 2% x yrs service x High 3, instead of 2.5%

7. Lump Sum Election. At retirement, can elect lump sum of 25% or 50% of present value of retirement at 20 yrs, in return for reduced monthly payments

8. No spousal consent required

9. More Information: http://militarypay.defense.gov/BlendedRetirement/ E. Thrift Savings Plan (TSP). Defined contribution plan, same as civilian federal employees. More Information: https://www.tsp.gov/index.html III. MILITARY RETIREMENT CALCULATION A. Retired Pay Subject to Division. USFSPA authorizes, but does not require, states to divide “disposable retired pay”, which is total retired pay minus amounts: 1. Owed to U.S. due to previous retired pay overpayments

4 2. Deducted from retired pay as result of court-martial forfeiture

3. Waived to receive VA disability

4. Survivor Benefit Plan (SBP) premiums for benefit of former spouse

B. “Frozen Benefit Rule” 1. 2017 National Defense Authorization Act, enacted on 12/23/2016 2. Freezes Former Spouse Share of Retirement at Decree. Act modifies & restructures definition of “disposable retired pay” in 10 U.S.C. §1408(a)(4) to add a new (a)(4)(B) which reads: “For purposes of subparagraph (A), the total monthly retired pay to which a member is entitled shall be— the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order, as increased by each cost-of-living adjustment that occurs under section 1401a(b) of this title between the time of the court order and the time of the member’s retirement using the adjustment provisions under that section applicable to the member upon retirement.’’

3. Applicable Date. Section 641(b) of the Act states: “The amendments made by subsection (a) shall apply with respect to any division of property as part of a final decree of divorce, dissolution, annulment, or legal separation involving a member of the Armed Forces to which section 1408 of title 10, United States Code, applies that becomes final after the date of the enactment of this Act.”

4. Applies When Still Serving. When already retired, use traditional coverture formula, as there would be no post-dissolution enhancements to pay to exclude

5. New Formula. Requires calculation of hypothetical share servicemember would be entitled to receive at time of dissolution given rank & time of service when decree is issued, so it’s a two-step process

a) Calculate hypothetical retirement at time of decree, ignoring inability to retire with < 20 yrs service cannot yet retire. So member with 12 yrs receives 24% or 30% of the high-three of his base pay at the time of dissolution (12 years x 2% (blended retirement) or 2.5% (legacy retirement))

5 b) Modified Coverture Formula to calculate spousal share based upon service through decree, NOT through retirement. Marital share, to be applied against the hypothetical retirement from step 1, is therefore:

Months of marriage overlapping service ------Months of service at time of decree

6. Effect. Reduces spouse’s share of retirement when servicemember still on active duty Following examples are simplified to show effects, and do not have a precise high-three calculation nor factor in SBP costs.

7. Spreadsheet to Calculate Frozen Benefit Share. See sample at EXH 2. Working Google Sheets copy (read only, will need to copy locally, see 3rd tab for directions): https://tinyurl.com/y7bohdsv 8. More Information https://www.dfas.mil/garnishment/usfspa/NDAA--17-Court-Order-Requir ements.html

C. Hunt Coverture Formula 1. In re: Marriage of Hunt, 909 P.2d 525 (Colo. 1995). "Time Rule" formula, or "coverture" fraction. Spouse's share is one-half of months of marriage overlapping military service, divided by total months of creditable service at time of retirement 2. Applicability:

a) Decree before 12/23/2016,

b) Already retired at time of decree (as no post-divorce enhancements possible), or

c) Civilian defined benefit plans

3. Net Present Value. Authorized by Hunt, presumably still permitted. Court may use NPV even when pension is not yet vested (i.e. before 20 yrs), per In re: Marriage of Riley-Cunningham, 7 P.3d 992 (Colo. App. 1999). 4. Deferred Distribution. Calculate marital share, defer distribution until retirement

5. Reserve Jurisdiction. Wait until actual retirement

6 D. Reserves/National Guard. Similar formula applies - substitute reserve points for months. Per In re Marriage of Beckman, 800 P.2d 1376 (Colo. App. 1990), unvested reserve points are divisible

E. Examples. Example #1: Major with 20 yrs marriage & service at dissolution, after dissolution, serves another 10 yrs and is promoted to Colonel, retiring with 30 yrs of service. Former spouse loses $909/mo, or $327K over 30 years of retirement

Coverture: 66.67% marital share (20/30 yrs) $11,328 base pay of Colonel at 30 yrs $8496 retirement (2.5% x 30 yrs, or 75%) x $11,328 $2831 Former spouse share (33.33%, or 1/2 of marital share)

Frozen Benefit: 100% marital share (20 yrs / 20 yrs) $7865 base pay of Major at 20 yrs $3843 retirement (2.5% x 20 yrs, or 50%) x $7685 $1922 former spouse share (50% of total, or 1/2 of marital share)

Example #2: Sergeant (E-5) with 5 yrs of marriage & service at dissolution, after dissolution serves another 23 yrs, being promoted to Sergeant Major (E-9), retires with 28 yrs of service. Former spouse loses $257/mo, or $93K over 30 years of retirement

Coverture: 17.86% marital share (5/28 yrs). $6776 base pay of Sergeant Major at 28 yrs $4743 retirement (2.5% x 28 yrs, or 70%) x $6776 $424 Former spouse share (8.93%, or 1/2 of marital share).

Frozen Benefit: 100% marital share (5 yrs / 5 yrs) $2669 base pay of Sergeant at 5 yrs $334 retirement (2.5% x 5 yrs, or 12.5%) x $2669 $167 former spouse share (50% of total, or 1/2 of marital share)

IV. DIRECT RETIREMENT PAYMENT FROM DFAS A. 10/10 rule. Requires at least 10 years of marriage overlapping military service B. Order needs:

7 1. SCRA. Indication that rights under Servicemembers Civil Relief Act were respected or waived,

2. Jurisdiction. Indication of basis of jurisdiction over servicemember (residence, domicile, or consent),

3. Marriage date, and indication that 10/10 rule met, 4. “Frozen Benefit” Data: Current rank, years of service, and High-3 pay. If don’t have 36 mos LES’s, use pay chart at:

https://www.dfas.mil/militarymembers/payentitlements/Pay-Tables.html

C. Sample Language to Divide Military Retirement. EXH 3. D. Send to DFAS with DD Form 2293 and certified copies of decree & order dividing retirement

E. No Deadline, but DFAS only pays prospectively after processed (takes about 90 days after retirement), so need mechanism for payment in interim

F. Maximum amount DFAS pays is 50% of disposable retired pay V. SURVIVOR BENEFIT PLAN (SBP) A. "Insurance policy" on retirement. Without SBP, retirement ends when retiree dies. SBP pays surviving beneficiary monthly amount of 55% of “designated base amount”

B. Maximum “designated base amount” is base pay. Required to elect maximum spousal coverage if married, unless spouse consents. 10 U.S.C. § 1448(a)(3)(A). No consent required if member already divorced at retirement.

C. Beneficiaries: 1. Spouse

2. Former spouse (as long as not in marriage which happened when under 55), as long as at least one yr of marriage or a child. 10 U.S.C. § 1447. Can only have one primary beneficiary, cannot allocate payments between multiple beneficiaries

3. Children if under 18 or in college and under 22

4. Disabled children, if disability happened while under 18 or in college under 22

D. Premiums. Spouse coverage is 6.5% of designated base amount. Stop once retiree is 70 and paid 360 months of premiums. 10 U.S.C. § 1452(j)

8 E. Premium Responsibility. DFAS deducts premium from retirement pre-division, when SBP for benefit of former spouse. Though DFAS will not honor, so separate reimbursement mechanism required, court has discretion to allocate premium costs. In re: Marriage of Payne, 897 P.2d 888 (Colo. App. 1995). Typically divided equally in El Paso County, have heard second-hand of cases where courts required spouse to pay it all

F. Deemed Election. Rather than relying upon servicemember to opt for SBP coverage, or to convert spouse to former spouse coverage, former spouse can request election directly from DFAS. Use DD Form 2656-10. Must use to protect former spouse

G. Deadline. DEEMED ELECTION REQUEST, OR CONVERSION OF SPOUSE TO FORMER SPOUSE COVERAGE, MUST BE WITHIN ONE YEAR OF ORDER REQUIRING SBP COVERAGE. H. Failure to Elect. 1. If SBP not selected at retirement, cannot add it later. Will need life insurance

2. Failure to change beneficiary from spouse to former spouse. May be able to fix by submitting DD Form 149, Application for Correction of Military Record to applicable Board for Correction of Military Records VI. VA DISABILITY. Member with service-connected disability entitled to receive disability payments after leaving service A. Disability Ratings

1. Rating 10-40%, waive retired pay dollar for dollar

2. Rating 50% or higher, no waiver, 10 U.S.C. § 1414, unless under 20 yrs of service, in which case VA waiver still in effect (See PDRL below)

3. VA payment based solely upon disability and dependents, not rank. Disabled SGT receives same as 2-star general). Rate Tables at https://www.benefits.va.gov/COMPENSATION/resources_comp01.asp

B. Sample 2019 Amounts

1. 30% no dependents = $429 (waiver) 2. 40% spouse & child = $736 (waiver) 3. 80% spouse & child = $1868 (no waiver) 4. 100% spouse & child = $3352 (no waiver)

C. Indemnity for VA Waiver

9 1. Prejudgment VA waiver, which existed at time of divorce, never divisible, no indemnity could be ordered. Mansell v. Mansell, 490 U.S. 581 (1989), In re: Marriage of Franz, 831 P.2d 917 (Colo.App. 1992) 2. Post-Judgment - Prior law. Majority rule required indemnity for post-decree conversions of retirement to disability, theory was retiree was frustrating former spouse’s vested retirement interest. In re: Marriage of Warkocz, 141 P.3d 926 (Colo.App. 2006) 3. New Law - No Distinction, indemnity precluded. Howell v. Howell, 137 S.Ct 1400 (2017). Court applied Mansell to all VA waivers, termed “semantic” distinction between pre-decree and post-decree waiver. Recognized potential for hardship: “a family court, when it first determines the value of a family's assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support.”

D. In re: Marriage of Tozer, 2017 COA 151 1. At dissolution, H on active duty, trial Ct divided retirement, reserved jurisdiction over maintenance in case of VA waiver

2. H later put on PDRL, received disability retirement & VA disability

3. W argued H defeated her share by electing disability, first sought legal relief to enforce division by dividing disability - denied. W then sought equitable relief of indemnity - denied. W had remarried, so court denied req for maintenance in lieu of retirement

4. Ct - trial court properly denied relief, Howell overrules Warkocz. “The Howell takeaway is clear. Military retirement disability benefits may not be divided as marital property, and orders crafted under a state court’s equitable authority to account for the portion of retirement pay lost due to a veteran’s post-decree election of disability benefits are preempted. (¶ 21)

E. In re: Marriage of Longmire (Unpublished). EXH 4. 1. 21-yr marriage, separation agreement had provision requiring indemnity for VA waiver. H received medical retirement and VA disability instead of 20-yr retirement

2. Trial court ordered indemnity, finding separation agreement was contract, so Howell not apply 3. Court of Appeals reversed: “Howell effectively overruled cases relying on the sanctity of contract to escape federal preemption.” ¶ 21, and Howell

10 itself stated courts relying upon agreements to enforce indemnity were in error

F. Other States. Every cited case since Howell has held no indemnity, with or without separation agreement

G. Disability is income for maintenance & child support. In re: Marriage of Nevil, 809 P.2d 1122 (Colo.App. 1991). Rose v. Rose, 481 U.S. 619 (1987) H. Temporary Disability Retired List (TDRL). 10 U.S.C. § 1202 & § 1205 1. Servicemember with condition which may be temporary.

2. Reviewed every 18 months, and by 5 yrs, must be either (1) returned to duty, (2) PDRL if under 20 yrs, or (3) retired if eligible.

3. Payment greater of (1) 2.5% x base pay x years of service, or (2) base pay x disability %. 10 U.S.C. §1401

4. Under 20 yrs, not divisible, since would receive no payments but-for disability. In re: Marriage of Williamson, 205 P.2d 538 (Colo.App. 2009) 5. Over 20 yrs, divisible to extent payment based on longevity and exceeds normal VA disability payment. In re: Marriage of Poland, 264 P.3d 647 (Colo.App. 2011)

I. Permanent Disability Retired List (PDRL). 10 U.S.C, § 1201 & § 1204 1. Member not returned to duty due to permanent medical condition.

2. Disability rating at least 30%

3. Under 20 years of service

4. Payments: High 3 pay x greater of (1) disability rating (max 75%), or (2) 2.5% x yrs service

5. Must waive disability dollar-for-dollar to receive VA disability, even for ratings of 50% or higher. 10 U.S.C. § 1414(b)(2)

6. Williamson but-for test suggests not divisible VII. OTHER RECEIPTS IN LIEU OF RETIREMENT A. Career Status Bonus at 16 yrs service B. Lump-Sum Payment at Retirement if elect in Blended Retirement System

11 C. VSI/SSB. Divisible asset. In re: Marriage of Heupel, 936 P.2d 561 (Colo. 1997). Must repay if reenter active duty

D. Disability Severance Pay. Yrs of active service (max 12) x 2 x highest base pay. Available if not returned to service after TDRL, and disability rating 30% or lower. 10 U.S.C. § 1212

E. Administrative Separation. Full or partial separation pay may be available VIII. CHILD & FAMILY SUPPORT A. Understanding Military Pay. LES at EXH 1. 1. Basic Pay. Affected by pay grade (i.e. rank) & years of service. See 2019 pay chart at EXH 5 & historic pay tables back to 1949) at: https://www.dfas.mil/militarymembers/payentitlements/Pay-Tables.html

2. BAH (Basic Allowance for Housing). Eligible if not in military housing. Affected by rank, marital status, and locality. Sample BAH Lookup at EXH 6. See https://www.defensetravel.dod.mil/site/bahCalc.cfm for BAH Lookup. Types of BAH:

a) BAH-With. When married or at least 50% custody.

b) BAH-Without. Single and no child living with member.

c) BAH-Diff. When paying court-ordered child support. Joint Travel Regulation 100404. Rates on military pay chart.

3. BAS (Basic Allowance for Subsistence). See chart at EXH 7. 2019 Rates Officers $254.39, Enlisted $369.69

4. Overseas (“OCONUS”) Allowances (Includes AK & HI) a) See https://www.defensetravel.dod.mil/site/perdiemCalc.cfm, which includes both a lookup and a chart for each locality and each month

b) Overseas COLA. Depends upon rank, years of service, and no. of dependents

c) Overseas Housing Allowance (OHA). Reduced by 10% if no dependents

d) Per Diem. Standard on-base incidental per diem is $3.50 per day

e) Hardship Duty Pay (HDP). Typically $50 - $150, depending upon location

12 5. Deployments

a) Hostile Fire Pay $225

b) Family Separation Allowance. $250 if away from family at least 30 days

c) HDP. $100 Iraq/Afghanistan

d) Per Diem

6. Other. Jump pay, flight pay, professional pay, annual bonuses, reenlistment bonuses, etc

7. Colorado Law

a) Gross income per C.R.S. 14-10-115 includes all pay & allowances, even if not taxable

b) Impute Income for in-kind benefits. E.g. if servicemember lives in military housing, impute BAH. In re: Marriage of Long, 921 P.2d 67 (Colo. 1996)

B. Temporary Family Support

1. Applicability. Physical separation, including deployment, without court order or agreement. Important if member deploys before hearing

2. Army

a) Army Regulation 608-99 https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r608_9 9.pdf

b) Amounts (para. 2-6) (All references to BAH are the non-locality rates at EXH 8): Spouse/children in military housing: None Civilian spouse/children: BAH-With Civilian spouse/children living separately: Pro rata share of BAH-With Military spouse, no children: None Military spouse, split custody of children: None Military spouse with children: BAH-Diff c) No in-kind payments, with limited exceptions (e.g. rent/mortgage or essential utilities). Para. 2-9.

d) Relief. Battalion/Squadron commander may relieve soldier of spousal obligation (not children) if civilian spouse has higher

13 income, is in jail, has committed physical abuse against soldier, or soldier has already paid support per regulation for 18 months. Para. 2-14.

e) Examples:

E-5 (Sergeant): $972 O-3 (Captain): $1330.20 O-6 (Colonel): $1892.10

3. Air Force

a) Air Force Instruction 36-2906, Personal Financial Responsibility. http://static.e-publishing.af.mil/production/1/af_a1/publication/afi3 6-2906/afi36-2906.pdf

b) Members “are expected to provide adequate financial support to family members.”

c) In-kind payments are allowed

4. Navy

a) MILPERSMAN 1754-030, Chapter 15, Support of Family Members https://www.public.navy.mil/bupers-npc/reference/milpersman/100 0/1700Morale/Documents/1754-030.pdf

b) Amounts. Support is fraction of sailor's "gross pay" (defined as base pay + BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc)

Spouse only: 1/3 Spouse & 1 minor child: 1/2 Spouse & 2 or more children: 3/5 1 minor child: 1/6 2 minor children: 1/4 3 minor children: 1/3 c) Relief. Servicemember may request waiver of spousal portion only (not children) on grounds of desertion without cause, physical abuse or adultery.

5. Marine Corps. a) MCO P5800.16A, Marine Corps Manual for Legal Administration, Chapter 15

14 https://www.marines.mil/Portals/59/MCO%20P5800.16A%20W% 20CH%201-7.pdf

b) Amount. Greater of specific dollar amount or a pro rata share of BAH/OHA, up to maximum of 1/3 full gross pay:

1 family member: 1/2 BAH/OHA, minimum $350 each 2 family members: 1/3 BAH/OHA, minimum $286 each 3 family members: 1/4 BAH/OHA, minimum $233 each 4 family members: 1/5 BAH/OHA, minimum $200 each 5 family members: 1/6 BAH/OHA, minimum $174 each 6 or more family members: 1/7 BAH/OHA, minimum $152 each c) Relief: Commanding officer may relieve marine of obligation where marine cannot determine "whereabouts and welfare of the child concerned", civilian spouse committed documented physical abuse against marine, or is in jail

6. Coast Guard

a) COMDINST M1000.2, Chapter 2E https://media.defense.gov/2018/Oct/31/2002057802/-1/-1/0/CIM_1 600_2.PDF

b) Amounts (para 2.E.3.c.)

Spouse only: BAH-Diff, plus 20% of base pay Spouse & 1 child: BAH-Diff, plus 25% of base pay Spouse & 2 or more children: BAH-Diff, plus 30% of base pay 1 child: 1/6 of base pay 2 children: 1/4 of base pay 3 or more children: 1/3 of base pay 7. Enforcement

a) Violation of Lawful General Regulation is UCMJ Article 92 offense

b) No ability to divert money, just disgorge it

c) Enforcement of civilian orders. E.g. AR 608-99 – must comply with support (para. 2-4a) & custody orders (para. 2-10b)

d) Contact installation Inspector General or Legal Assistance Office

C. Garnishment of Military Pay

15 1. Active Duty. Send Notice to Withhold Income via certified mail to: DFAS-GAG/CL PO Box 998002 Cleveland, Ohio 44199-8002 Fax: (216) 522-6960

2. Retiree. Utilize DD Form 2293 & certified copy of support order a) Income Subject to Garnishment. 5 CFR § 581.105. Subtract debt to U.S., taxes, life & health insurance premiums, normal retirement contributions

b) Maximum Garnishment Percentages. 5 CFR § 581.402 50% if providing support to dependents not covered by order 55% if providing support to other dependents, but has arrearage 60% if not providing support to other dependents 65% if no support to other dependents, and has arrearage

3. VA Disability

a) Subject to garnishment for support/maintenance, to extent of VA waiver. 42 U.S.C. § 659(h)(1)(A)(v), Rose v. Rose, 481 U.S. 619 (1987)

b) Not simple process – contact VA Regional Office for apportionment application, then send VA Form 21-4138, Statement in Support of Claim, with copy of the current support order and any other pertinent documents

(1) Call (800) 527-1000 to determine appropriate regional office

(2) In Colorado, contact:

VA Regional Office 155 Van Gordon St. Lakewood CO 80228 Tel. (800) 827-1000 Fax (303) 914-5879

(Mailing Address) VA Regional Office Box 25126 Denver CO 80225

16 IX. SERVICEMEMBERS CIVIL RELIEF ACT A. Stay of Proceedings When Notice. 50 U.S.C. § 3932

1. Court may, on own motion, and shall, upon application by a servicemember which meets these criteria, stay the proceedings for at least 90 days:

a) Applicant is in military service, or within 90 days after it ended,

b) Applicant has actual notice of the proceeding,

c) Application is written, and includes facts stating (i) how service materially affects ability to appear, and (ii) date when servicemember may appear, and

d) Application includes communication from commander that military duty prevents appearance, and military leave not authorized.

2. Initial 90-day stay is mandatory. Thereafter, servicemember may apply for additional stay, using same criteria. Court must grant application unless appoints attorney to represent servicemember.

3. Simply being stationed overseas, thereby making it harder to appear, does not materially affect ability to appear. Telephonic testimony, 30 days annual leave, cooperative military.

4. If request for stay denied, member cannot then seek to set aside default judgment..

B. Protection Against Default Judgment. 50 U.S.C. § 3931

1. Provides respondent member in civil action with relief against default judgment if member has never appeared. Not apply to post-decree, co-petitioner, etc

2. Petitioner seeking default judgment must first submit affidavit stating whether Respondent is in military, or whether Petitioner does not know. Judgment obtained without affidavit is voidable if servicemember later shows that military service prejudiced the presentation of a defense

3. If cannot determine status of military service from affidavit, Court may require bond to indemnify Respondent against any loss

4. Court shall reopen default judgment and allow servicemember to defend when:

17 a) Judgment entered during military service or within 60 days thereafter

b) Servicemember's ability to defend materially affected by service

c) Servicemember has meritorious or legal defense, and

d) Application to reopen is made during the military service, or within 90 days after it ended. Technically, this means total military service, not just the specific contingency which prevented servicemember from appearing

C. El Paso County in process of introducing SCRA affidavit, request for stay, and will be appointing attorneys if respondent cannot be located

X. POST-9/11 GI BILL A. Veterans Educational Assistance Act of 2008, codified at 38 U.S.C. § 3301, et seq, introduced Post-9/11 GI Bill as complete revamp of the traditional Montgomery GI Bill.

B. Benefits (total value $160K over 4-yr period in Colorado Springs) 1. Tuition & Fees (4 yrs), per 38 U.S.C. § 3313(c)(1)(A). Full cost of in-state public school, or up to $24,477/yr at a private school (rate effective August 1, 2019)

2. Monthly Stipend (36 mos), equivalent to E-5 BAH-With, per 38 U.S.C. § 3313(c)(1)(B)(i). BAH based upon zip code where the college is located - typically about $1500 (in Colorado Springs, 2019 rate is $1605/mo). a) Not available to active member or spouse, since family already receiving BAH

b) Online/correspondence receive 1/2. 38 U.S.C. §3313(c)(1)(B)(iii)

c) Part-time receive prorated share. 38 U.S.C. § 3813(c)(1)(B) 3. Books & Supplies (4 yrs) stipend of $41.56 per credit hour, up to maximum $1000/yr for 24 credit hours, per 38 U.S.C. §3313(c)(1)(B)(iv). C. Benefits Transferable 1. Spouse. 18 U.S.C. § 3319(c)(1). No automatic revocation upon divorce

2. Children under 26. 18 U.S.C. § 3319(c)(2)

3. Member may revoke transfer at any time. 18 U.S.C. § 3319(f)(2)

18 D. Not Divisible Property at Dissolution 1. “Entitlement transferred under this section may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S.C. § 3319(f)(3).

2. No prohibition on agreeing to transfer E. Monthly Housing Stipend Counts as Income. 1. In re: Marriage of Tooker, 2019 COA 83. Monthly BAH stipend is income for purposes of child support/maintenance, but not tuition reimbursement or book/supply stipend.

2. “Because the tuition assistance benefit was not available to Mark for general living expenses and would in no discernable way assist him in paying maintenance or child support, we conclude that the district court properly excluded the tuition assistance benefit as gross income for purposes of calculating maintenance and child support.” ¶ 20. XI. FORMER SPOUSE BENEFITS AFTER DECREE A. Legal Separation. Treated as married for purposes of ID card, so retain full benefits as if married. See para. 3.2, and table 8.3 of joint regulation, Identification Cards For Members Of The Uniformed Services, Their Eligible Family Members, And Other Eligible Personnel, published under Air Force Instruction 36-3036.

B. Full 20/20/20 Benefits. Per 10 U.S.C. § 1072(2)(F), former spouse is entitled to all military benefits & installation privileges, including medical, commissary, military exchanges (PX/BX), etc. Criteria: 1. Married at least 20 years,

2. Member had at least 20 years of creditable service, and

3. At least 20 years overlap between marriage and military service C. Transitional 20/20/15 Benefits. Per 10 U.S.C. § 1072(2)(G) & (H), former spouse is entitled to military medical care only for 1 year. Criteria: 1. Married at least 20 years,

2. Member had at least 20 years of creditable service, and

3. At least 15 years overlap between marriage and military service D. Remarriage terminates health, and suspends all other 20/20/20 benefits

19 E. Continued Health Care Benefit Program (CHCBP) 1. Similar to COBRA for private health insurance programs, Tricare will provide CHCBP to unremarried former spouses

2. CHCBP not cheap - as of 1/2019, premium cost per quarter is $1453 (individual) or $3273 (family)

3. Per 10 U.S.C. § 1078a(d), must elect CHCBP within 60 days of losing Tricare, using DD Form 2837

4. 10 U.S.C. § 1078a(g)(4), coverage available for 36 mos, except indefinite for former spouse who meets this criteria: a) Did not remarry under the age of 55,

b) Was enrolled as a family member in an approved health care benefits program (i.e. Tricare/DEERS) at any time in the 18 months before dissolution or annulment, and

c) Is receiving a share of the member's military retirement OR has a court order or written agreement for a share of the retirement or for SBP coverage. F. More Information: https://tricare.mil/chcbp XII. PARENTING A. Paternity. Court order required for temporary family support. 32 C.F.R. § 81.3. However, voluntary acknowledgment of paternity sufficient for child to receive ID card & benefits. Air Force Instruction 36–3026, para. 4-9

B. Family Care Plans. Applies to single parents, dual military with children. Must have plan in place for care of children if deploy. Not binding on DR court

1. Army Regulation 600-20, para 5-5

2. Air Force Instruction 36-2908.

C. In re: Marriage of DePalma, 176 P.3d 829 (Colo.App. 2007). Reservist father deployed, sought to delegate his equal parenting time to stepmother despite first right of refusal provision

1. Parent has presumptive right to control children’s upbringing, including making decisions on who cares for children during parenting time

2. Court determines best interests if dispute, but fit parent presumed to act in best interests of children

20 3. Stepmother had no independent right to children. However, analogize to other third parties providing care to children, such as teachers, day care

4. Stepmother has no right to make decisions, so mother makes day-to-day decisions while father gone

5. First right of refusal essentially set aside in that case

D. Uniform Deployed Parents Custody & Visitation Act

1. Approved July 2012 by National Conference of Commissioners on Uniform State Laws.

2. HB 13-1200, codified at C.R.S. 14-13.7-xxx. (EXH 9) 3. Definitions

a) Deployment. Movement/mobilization for 90 days – 18 mos where family members not authorized. §102(8). Not limited to hostile fire zone, so technically includes Korea, TDY, etc

b) “Caretaking authority means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation.” §102(2)

c) “Custodial Responsibility includes all powers and duties relating to caretaking authority and decision-making authority for the child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.” §102(5)

d) “Decision-Making Authority means the power to make major decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority.” §102(6)

e) “Limited Contact means the authority of a nonparent to visit a child for a limited time. The term includes the authority to take the child to a place other than the residence of the child.” §102(10)

4. Procedure

a) Deploying parent must provide notice within 12 days of orders unless circumstances prohibit, else as soon as possible. §105(1)

21 b) Parents exchange parenting proposals “as soon as reasonably possible after notification of deployment.” §105(2)

c) Relevance of Deployments for Parenting Orders. “In a proceeding for custodial responsibility of a child of a service member, a parent’s past deployment or possible future deployment in itself may not serve as the sole basis in determining the best interest of the child. Nothing in this section shall be construed as prohibiting the court from applying section 14-10-124 in determining the best interest of the child.” §107

5. Agreement During Deployment

a) Parents may enter interim agreement during deployment. §201(1)

b) Must be in writing & signed. §201(2)

c) Must specify §201(3) (but omission not invalidate agreement):

(1) Facts surrounding deployment

(2) Caretaking authority between parents, and if applicable, nonparent

(3) Decision-making which may accompanying caretaking

(4) Any limited contact granted to nonparent

(5) Dispute resolution process if nonparents involved

(6) Deployed parent’s contact with child during deployment

(7) Deployed parent’s contact with child while on leave or available

(8) Acknowledgment that support change requires court order

(9) Termination after deployment

6. Interim Court Order

a) Interim Order. After notice, either parent may file motion, and court may issue interim custodial responsibility order during deployment, unless prohibited by Servicemembers Civil Relief Act. §302.

b) Expedited hearing. §303

22 c) Prior order/agreement designating custodial responsibility in case of deployment is binding unless standard for modification is met. §305(1)

d) Caretaking Authority. “A court may grant caretaking authority to nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.” §306(1)

e) Close and substantial relationship means physical care for more than 182 days. §301

f) Nonparent Schedule. Absent agreement, time granted to nonparent is limited to time deploying parent has, including unusual travel time. §306(2)

g) Decision-Making Authority. Court may grant nonparent specific part of deploying parent’s decision-making powers. §306(3)

h) Limited Contact. “Unless the court finds that the contact would not be in the best interests of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship.” §307

i) Child Support. Court may enter interim support order if UIFSA jurisdiction. §310

j) Terminates Upon Redeployment. §311 7. Return from Deployment

a) Termination of Interim Agreement. Agreement terminates upon date specified, or 35 days after notice that has returned from deployment. §401

b) Termination of Interim Order. 35 days after notice that returned from deployment. §404

c) Interim Contact. Absent agreement, between return from deployment and termination of interim court order, court shall immediately issue an interim order granting deploying parent reasonable contact unless not in best interests of child. §403

8. UCCJEA Jurisdiction

a) Court Must Have UCCJEA Jurisdiction to issue interim order. §104(1), absent emergency jurisdiction

23 b) Parent Residence not changed by virtue of deployment. §104 c) Child Home State not changed by interim parenting schedule. C.R.S. 14-13-102(7)(b)

24 1

Page 1 of 1 ActutltrRtrmnt (ComleteShadedBoxes) SousShr(AllCases) DatenteredActeDuthserm 3/20/13 DasotalSerceBeforehserm 730 1/1/1991throgh12/1/1992 DasMartalOerlaBeforehserm ates,falcable DateofMarrage 5/28/14 DasBreaknSerceDurngMarrage ates,falcable DateofarlerofDecree/Retrement 11/21/2018 AnnualCredt(0.020or0.025) 0.025 0.02Blended,or0.02egacyetrement otlSrc(s 10107 rtlOrl(s 8943 Martal 88.48 Sous 44.24

CurrntlRtrd (clck+toleft DsosableRetreda MartalAmount(RetrementxMartal) $0.00 RetreeAmount $0.00 SousAmount

Currntlnltr (Clck+toleft CurraGraders O6oer26

LastromotedDate atestotheleftarenformatonalonlytoensre LastLongetDate O6oer26 6/10/2018 sngcorrectdata,andarenotdrectlytled nanyformlas. rorLongetDate O6oer24 6/10/2016 rorLongetDate O6oer22 6/10/2014 Bs #onths otl ts Grd/rs 11,372.40 5 56,862.00 ul-No2018 O6oer26 10,841.10 6 65,046.60 an-un2018 O6oer24 10,587.00 12 127,044.00 an-Dec2017 O6oer24 10,36.20 6 62,215.20 ul-Dec2016 O6oer24 10,106.70 6 60,640.20 an-un2016 O6oer22 ,77.10 1 ,77.10 Dec2015 O6oer22 OAL 36 381,785.10 gh3 $10605.14 earsofSerce(das/365) 27.6 RetrementMultler(earsxAnnualCredt) 6.23 Retrementatdecree(Multlerxgh3) $7,341.52 MartalAmount(RetrementxMartal) $6,46.01 SousAmountlusCOLAs $3248.01 SBBaseAmountNeeded(Souse$/0.55) $5,05.47 SBremum(BaseAmount0.065) $383.86 storcayCharts htts//.dfas.ml/mltarymembers/ayenttlements/mltary-ay-charts.html

2 Page 1 of 1 1. Hsand/We(hereinafter“memberforthepurposesofthissectionhasservedinthe U.S.armedforces,andmaybeentitledtoreceiveamilitaryretirement,whichissubject to division perColorado lawand10U.S.Code1408(a.ThisCourthasjurisdictionto divide the retirement because member consented to jurisdiction OR resides in and maintainsColoradoaslegaldomicile. Atalltimesmembersapplicablerightsunderthe ServicemembersCivilReliefActhavebeenrespected.

2. Themaritalshareofthemilitaryretirementis%,calculatedasfollows

das/months/ontsoverlappingmarriagemilitaryservice ------ das/months/ontsofmilitaryservicethroughdateofdecree

3. Hsand/We (hereinafter “former spouse for purposes of this section is awarded one-half of the marital share, or %, plus COLAs. ormer spouse is awarded a rngsr oftheretirement,andanyreferenceshereintospecificdollaramount are solely estimatesfor planningpurposes,andshall nobeconstruedasanawardofa fixeddollaramount.

4. ormerspouseisentitledtoashareoftheactualdisposableretiredpayreceived,whether active duty or reserve, and is not entitled to retirement ifnone isreceived. Daysand reserveretirement pointsareinterchangeableonapoint-per-daybasis,andtotheextent pointsarereferencedbutmemberreceivesanactivedutyretirement,suchpointsshallbe treated as days, and to the extent days are referenced but member receives areserve retirement,suchdaysshallbetreatedaspoints.

FNOTETRETRED

5. On the date of the decree, members high-3 pay was $ and member had the rank/pay grade of , with years/months of creditable service. ormer spousesshareisthe percentagedefinedabovemultipliedbythedisposableretiredpay member would be entitled to receive if member retired with this pay and creditable service,plusCOLAs.

6. ember shall advise former spouse of aretirement or separationfromthemilitaryor from activeduty atleast 90daysinadvance. ithin14daysofreceipt,membershall provideformerspousewith acopyofallpertinentdocuments,including20-yearletter, retirement/separation orders, memorandum ofrelease fromactiveduty,DD214,Retiree AccountStatement,StatementofService, chronologicalstatementofretirementpoints, VA disability determinations, retirement estimates, documents reflecting separationor otherpayreceivedinlieuofretirement,etc.

FALREADRETRED

7. ormer spouses share of the military retirement is calculated by multiplying former spouses percentage defined above by members disposable retired pay, which is presently$/mo.ormerspousesshareisabout$/mo.

3 Page 1 of 3 ALLCASES

8. ormer spouses share of the military retirement is reportable as income to former spouse, and deductible from members income for tax purposes. Any retirement payments which member makes directlyto the formerspouseshallbe based uponthe pre-taxdisposableretiredpay.

SELECTFMORETHAN10RSOVERLAP

9. Because thepartiesweremarriedon,theyhavemorethan10yearsof marriageoverlappingthemilitaryserviceandformerspouseshallreceivedirectpayment fromDAS,pursuantto10U.S.C.1408(d. ormerspouseshallpromptlyapplytothe Defense inance andAccounting Service(DAS forhhr shareofthemilitary retirement, utiliing DD orm 2293, or any other necessary form. ayment of the retirementremainsmembersobligation,andmembershallpayformerspousesshareof thedisposableretiredpaytoformerspousewithin5daysofmemberreceiptofapayment whichincludesthesharethatwasowingtoformerspouse.

SELECTFFEWERTHAN10RSOVERLAP

10. Because the partiesdonot have more than10yearsofmarriageoverlappingmembers militaryservice,membershallpayformerspousessharedirectlytoformerspousewithin 5daysofreceiptofeachpayment.

ALLCASES

11. ithin14daysofanychangetothedisposableretiredpay,membershallprovideformer spouse with the Retiree Account Statement, VA documents, or any other documents relevanttothechange. ThisdoesnotapplytoannualCOLAsifDASisdirectlypaying formerspousesshareoftheretirement.

12. ursuantto5U.S.C.552a(b(11,thisOrderisacontinuingcourtorderdirectingDAS to provide to former spouse upon request all information pertaining to members retirement,includingamounts,datesofservice,andperiodicRetireeAccountStatements. Should DAS or another agency require any further release for such information, member shall provide an executed release to formerspousewithin14days of former spousesendingsuchreleasetomember.

13. All retirement payments due to former spouse shall be deemed a nondischargeable “domesticsupportobligationincidenttodivorcepursuantto11U.S.C.523(a(15.

14. The Court retains jurisdiction to implement and enforce the allocation of military retirement, including entering appropriate orders should member receive financial benefitsinlieuof someorallofthemilitaryretirement,mergesthemilitaryretirement credit into another retirement such asERS,participatesin anyprogramwhicheither makes lump sum payments, or reduces the retirement available for division, such as

Page 2 of 3 receiptoftheCareerStatusBonusorBlendedRetirement,orforanyotherreasonwhere indemnityisnotprohibitedbylaw.

EDT FOLLOWNG SBP PARAS AS APPROPRATE DEPENDNG UPON AGREEMENTSREACHEDANDRETREDVSACTVESTATUS.

USE F ALREAD RETRED AND MEMBER SELECTED “SPOUSE SBP COVERAGE. NOTE THAT F SBP WAS NOT SELECTEDATRETREMENT(SUCHWAVERWOULDREQURE SPOUSAL CONSENT) T S TOO LATE NOW AND PARTES SHOULDCONSDERPRVATELFENSURANCE

15. ember previously elected Survivor Benefit lan or Reserve Component Survivor Benefitlan(hereinafter“SBtoprotectformerspousesshareoftheretirementinthe event of members death. ithin 60 days, member shall convert such coverage by designatingformerspouseas“formerspousebeneficiary,andprovidetoformerspouse proof ofenrollment,andanyotherformspertainingtoSBwithin30daysofreceiptor execution.

USEFNOTETRETRED

16. rior to retirement, member shall make an irrevocable election to participate in the Survivor Benefit lan (SB, designating former spouse as the “former spouse beneficiaryforanannuitywhichpaysanamountnotlessthanformerspousesshareof the retirement. fin the reserves,membershall participatein the ReserveComponent Survivor Benefit lan, electing Option C (mmediate Annuity within 90 days of receiving the “20-year letter of entitlement to Reserve retirement pay. embershall provideformerspouseproofofenrollment,andanyotherformspertainingtoSBwithin 30daysofreceiptorexecution.

17. The parties shall divide equally the costs of the SB, and to the extent member is assessedanygreaterportionbyDAS,formerspouseshallcompensatememberforthe differenceeverysixmonths.

NOTE N PARA. BELOW DVDE (NOT MULTPL) SPOUSES ESTMATEDDOLLAR AMOUNTB0.TODETERMNETHEDESGNATED BASE AMOUNT. EXAMPLE F SPOUSE SHARE S 100/MO DESGNATED BASEAMOUNTS1(100/0.).

18. The estimated current monthly payment of the retirement is $, and former spousewillreceive%ofthat,orabout$/moplusCOLAs.AsSBpays55% of the “designated base amount, that amount necessary to protect former spouse is currentlyestimatedtobe$,plusCOLAs.

Page 3 of 3 17CA1294 Marriage of Longmire 08-30-2018

COLORADO COURT OF APPEALS DATE FILED: August 30, 2018 CASE NUMBER: 2017CA1294

Court of Appeals No. 17CA1294 El Paso County District Court No. 08DR4695 Honorable Jill M. Brady, Judge

In re the Marriage of

Suzanne Longmire, n/k/a Morrison,

Appellee, and

Travis Longmire,

Appellant.

ORDER REVERSED

Division V Opinion by JUDGE LICHTENSTEIN Román and Furman, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 30, 2018

Gill & Ledbetter, LLP, Anne Whalen Gill, Castle Rock, Colorado, for Appellee

Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant

Page 1 of 16 ¶ 1 In this post-dissolution of marriage case, Travis Longmire

(husband) appeals the district court’s order requiring him, as part

of a separation agreement, to pay Suzanne Longmire, now known as

Suzanne Morrison (wife), her portion of his military disability

retirement benefits. We reverse.

I. Pertinent Facts

¶ 2 At the time the district court dissolved the parties’ twenty-

one-year marriage, husband was on active duty with the United

States Air Force. The dissolution decree incorporated the parties’

separation agreement, which provided that they would divide

husband’s “future disposable military retired pay” or “any related

service related benefits” according to the “time rule” formula set

forth in In re Marriage of Hunt, 909 P.2d 525, 531-32 (Colo. 1995).

The separation agreement also included the following provisions:

Husband agrees not to merge or diminish his retired or retainer pay with any other pension and he agrees not to pursue any course of action that would defeat or diminish [w]ife’s rights to her portion of [h]usband’s retired or retainer pay. If [h]usband’s retired pay is diminished, wherein [w]ife’s interests are detrimentally affected, the [c]ourt shall reserve jurisdiction to compensate [w]ife for such diminution.

Page 2 of 16 . . . .

[Husband] will be personally liable for any costs, including attorneys’ fees that may be incurred by [wife] in enforcing her rights or collecting such benefits from [him].

[Husband] will not pursue any course of action that would defeat, reduce or limit [wife’s] right to receive the share of his military retired pay awarded herein. [Husband] shall indemnify and hold harmless [wife] for any breach of this provision from funds of whatever source

¶ 3 Nearly seven years later, as a result of a physical disability

incurred “in the line of duty as a direct result of armed conflict or

caused by an instrumentality of war” and “during a period of war,”

husband was separated from the Air Force under Chapter 61, 10

U.S.C. § 1201 (2012), with a physical disability rating of 100%. See

10 U.S.C. § 1201(a) (“Upon a determination . . . that a member . . .

is unfit to perform the duties of the member’s office, grade, rank, or

rating because of physical disability incurred while entitled to basic

pay . . ., the Secretary may retire the member, with retired pay

computed under [10 U.S.C. § 1401 (2012)] . . . .”); see also In re

Marriage of Tozer, 2017 COA 151, ¶ 3 (“This form of military

retirement — where the military itself retires a member who is ‘unfit

to perform’ his duties due to a service-related physical disability —

Page 3 of 16 is commonly referred to as ‘Chapter 61’ disability retirement.”)

(citation omitted). During a medical examination associated with

his separation, husband was diagnosed with Ankylosing

Spondylitis, an arthritic disease affecting his back and neck.

¶ 4 The Defense Department then provided husband the option to

receive either disability retirement benefits or regular military

retired pay. See 10 U.S.C. § 1401; see also Tozer, ¶ 3 (a veteran

retired under Chapter 61 may opt to receive monthly payments

based on his disability rating instead of military retirement pay).

Husband opted for disability retirement benefits.

¶ 5 In addition to his Chapter 61 disability retirement benefits,

husband also received disability benefits from the Veteran’s

Administration and Social Security. Thus, all of husband’s benefits

from the military were based on disability.

¶ 6 When wife became aware of the situation, she moved to

enforce the terms of the separation agreement and in the alternative

for equitable relief. She alleged that husband voluntarily elected to

receive only disability retirement benefits and that he defeated any

retirement benefits she would have been entitled to under the

agreement. She sought indemnification for her lost interest.

Page 4 of 16 ¶ 7 Following a hearing, the district court, based on contract

theory, found that husband breached the separation agreement by

“pursu[ing] a course of action” that defeated wife’s portion of his

disposable military retired pay. Because the separation agreement

also included the language “service related benefits,” the district

court rejected husband’s argument that there “[was] no ‘disposable

military retired pay’ here since Chapter 61 [disability] benefits are

expressly excluded from the definition of ‘disposable retired pay’

under the Uniform Services Former Spouses’ Protection Act.”

Additionally, the district court distinguished a recent United States

Supreme Court decision, Howell v. Howell, 581 U.S. ___, 137 S. Ct.

1400 (2017), stating that the case “did not involve a Separation

Agreement where the parties’ specifically contracted for the

non-military spouse to receive her share of military retirement or

any service related benefits.” In the end, the court ordered

husband to indemnify wife by paying her approximately 40% of his

monthly disability benefits. It also ordered him to pay her attorney

fees incurred in connection with his breach of the separation

agreement.

Page 5 of 16 II. Husband’s Military Disability Retirement Benefits Cannot Be Divided Under Federal Law

¶ 8 Husband contends that the district court was preempted from

ordering him to indemnify wife for the amount of military retirement

pay that she would have received under the separation agreement.

We agree.

¶ 9 Although state law historically controls domestic relations,

Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979), the Uniformed

Services Former Spouses’ Protection Act (USFSPA) represents “one

of those rare instances where Congress has directly and specifically

legislated in the area of domestic relations,” Mansell v. Mansell, 490

U.S. 581, 587 (1989). Thus, the USFSPA raises the question of

preemption.

¶ 10 Under the Supremacy Clause, article VI, clause 2 of the United

States Constitution, state law must yield to federal law when

application of the two conflict. Wos v. E.M.A., 568 U.S. 627, 636

(2013); see Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478

(1981) (Federal law preempts state jurisdiction where Congress so

provides “by an explicit statutory directive, by unmistakable

Page 6 of 16 implication from legislative history, or by a clear incompatibility

between state-court jurisdiction and federal interests.”).

¶ 11 Federal preemption is a question of law that we review de

novo. Timm v. Prudential Ins. Co. of Am., 259 P.3d 521, 525 (Colo.

App. 2011); see also In re Marriage of Anderson, 252 P.3d 490, 493

(Colo. App. 2010) (“We review de novo . . . whether the decree

provision requiring husband to pay part of his future Social

Security benefits to wife conflicts with the Social Security Act and

thereby violates the Supremacy Clause of the United States

Constitution.”).

¶ 12 State courts are limited in how they may divide military

benefits in dissolution cases. In Mansell, a husband and wife

entered into a property settlement agreement in which the husband

agreed to pay the wife 50% of his total military retired pay,

“including that portion of retirement pay waived so that [he] could

receive disability benefits.” 490 U.S. at 586. Four years later, the

husband moved to modify the divorce decree, arguing that the

waived retirement benefits could not be divided under the USFSPA.

California, determining that the USFSPA allowed state courts to

treat disability benefits as community property, denied husband

Page 7 of 16 relief. Id. at 586-87. The United States Supreme Court reversed.

The Court recognized the hardship that congressional preemption

can sometimes work on divorcing spouses. Id. at 594. Yet, it held

that the USFSPA, 10 U.S.C. § 1408 (2012), explicitly excludes

military disability benefits from the definition of disposable retired

pay. Thus, in divorce cases where military retirement pay has been

waived to receive veterans’ disability benefits, the USFSPA does not

grant state courts the power to treat these disability benefits as

property divisible on dissolution. Mansell, 490 U.S. at 595.

¶ 13 In Howell, the United States Supreme Court again recognized

the USFSPA’s preemptive effect on divorcing spouses. Nonetheless,

the Court reaffirmed and clarified the holding in Mansell. Howell,

581 U.S. at ___, 137 S. Ct. at 1405-06.

¶ 14 In Howell, the dissolution decree provided that the wife would

receive 50% of the husband’s future military retirement benefits as

her sole and separate property along with spousal maintenance.

581 U.S. at ___, 137 S. Ct. at 1404. One year later, the husband

retired from the Air Force. Id. The wife then began receiving half of

his military retirement pay, which she continued to receive for the

next thirteen years until he was found to be partially disabled. Id.

Page 8 of 16 In order to receive disability benefits, the husband elected to waive

part of his retirement pay, which, in turn, decreased the wife’s

share of his retirement pay. Id. As a result, the wife moved to

enforce the divorce decree so that she would again receive her

original share. Id. The Arizona family court concluded that the

divorce decree had given the wife a “vested” interest in the

prewaiver amount of the husband’s military retirement pay and

ordered him to ensure that she receive her full 50% share “without

regard for the disability.” Id.

¶ 15 The Arizona Supreme Court agreed. Id. It concluded that

Mansell did not control because, unlike the veteran there, the

husband made his waiver after, rather than before, the court

divided his military retirement pay. Id. And thus federal law did

not preempt the reimbursement order. Id.

¶ 16 In reversing, the United States Supreme Court held that even

though the military spouse unilaterally waived a portion of his

retirement pay for disability benefits, federal law preempts state

courts from ordering the military spouse to indemnify their former

spouse for the loss of that spouse’s portion of retirement pay. See

id. at 1406. The Court explained:

Page 9 of 16 Neither can the State avoid Mansell by describing the family court order as an order requiring [the husband] to “reimburse” or to “indemnify” [the wife], rather than an order that divides property. The difference is semantic and nothing more. The principal reason the state courts have given for ordering reimbursement or indemnification is that they wish to restore the amount previously awarded as community property, i.e., to restore that portion of retirement pay lost due to the postdivorce waiver. And we note that here, the amount of indemnification mirrors the waived retirement pay, dollar for dollar. Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. All such orders are thus pre-empted.

Id.

¶ 17 In the wake of Howell and during the pendency of this appeal,

a division of this court in Tozer held that if a veteran’s retired pay

consists of Chapter 61 disability retirement benefits, it is not

disposable retired pay under the USFSPA. See Tozer, ¶ 13; see also

10 U.S.C. § 1408(a)(4)(A)(iii); Guerrero v. Guerrero, 362 P.3d 432,

442 (Alaska 2015) (A military “member does not unilaterally choose

to become Chapter 61 retired.”). The division also concluded that

“orders crafted under a state court’s equitable authority to account

Page 10 of 16 for the portion of retirement pay lost due to a veteran’s post-decree

election of disability benefits are preempted.” Tozer, ¶ 21.

¶ 18 In light of these cases, we conclude that wife is not entitled to

any portion of husband’s military disability benefits, and, therefore,

the district court was precluded under the USFSPA from directing

him to pay her nearly 40% of such benefits per month. See Howell,

581 U.S. at ___, 137 S. Ct. at 1406; see also Tozer, ¶ 21.

¶ 19 Wife nonetheless asserts the present case is distinguishable

because the parties specifically contemplated that husband’s

disposable military retired pay may cease to exist and included

indemnity language in their separation agreement reflecting the

parties’ intent that wife would still receive her share of his

retirement pay. We are not persuaded.

¶ 20 First, as discussed above, state courts are preempted from

ordering military veterans receiving Chapter 61 disability benefits to

indemnify their former spouses. See Tozer, ¶ 13. Here, the record

reflects that husband was separated from the Air Force with a

physical disability rating of 100% and his “disposable military

retired pay” consisted entirely of disability retirement benefits.

Thus, the district court was preempted from dividing such benefits

Page 11 of 16 under the USFSPA and ordering husband to indemnify wife for her

lost portion. See 10 U.S.C. § 1408(a)(4)(A)(ii), (iii); see also Howell,

581 U.S. at ___, 137 S. Ct. at 1406; Tozer, ¶¶ 13, 21.

¶ 21 Second, state courts may not rely on contract theory to avoid

federal preemption. True, in Howell the parties did not specifically

contract for indemnification to ensure that the nonmilitary spouse

would receive his or her share of retirement pay. But, as recognized

in Mattson v. Mattson, 903 N.W.2d 233, 241 (Minn. Ct. App. 2017),

“Howell effectively overruled cases relying on the sanctity of

contract to escape federal preemption.” Id.

¶ 22 Indeed, in Howell, the United States Supreme Court

recognized that some state courts were enforcing separation

agreements that treated military retirement pay as divisible

community property. But it determined that those state courts

were acting in error. For example, it cited Krapf v. Krapf, 786

N.E.2d 318, 324 (Mass. 2003) (army veteran breached separation

agreement when parties expected and intended that his wife would

receive one-half of his full military retirement benefits and he

unilaterally executed a waiver reducing his military retirement

benefits for disability payments), as a state court decision that

Page 12 of 16 failed to properly interpret Mansell. See Howell, 581 U.S. at ___,

137 S. Ct. at 1404-05; see also Roberts v. Roberts, No.

M2017-00479-COA-R3-CV, 2018 WL 1792017, at *7 (Tenn. Ct.

App. Apr. 16, 2018) (unpublished opinion) (“[T]he holding in Howell

casts substantial doubt as to whether state courts may enter

divorce decrees of any kind in which the parties seek to divide any

service related benefit other than disposable retired pay.”).

¶ 23 Recently, the Alabama Court of Appeals stated that, based on

Howell, it was compelled to determine that despite an express

indemnity provision in the parties’ settlement agreement, husband’s

temporary disability retired list pay was not disposable retired pay

under the USFSPA and cannot be treated as marital property

subject to division. Brown v. Brown, ___ So. 3d ___, 2018 WL

1559790, at *4-6 (Ala. Civ. App. March 30, 2018).

¶ 24 We likewise are compelled to conclude, based on Howell, that

the court here was preempted from ordering husband to indemnify

Page 13 of 16 wife for the amount of military retired pay that she would have

received under the separation agreement.1

¶ 25 In her answer brief, wife argues that to reverse the district

court’s order would constitute the taking of a property interest in

violation of the United States Constitution. However, we decline to

address this issue because it was raised for the first time on appeal.

See In re Marriage of Ensminger, 209 P.3d 1163, 1167 (Colo. App.

2008) (arguments not raised to the district court will not be

addressed for the first time on appeal).

III. Because Husband Did Not Breach the Separation Agreement Wife Is Not Entitled to District Court Attorney Fees or Appellate Attorney Fees

¶ 26 Husband contends that the district court erred in awarding

wife her attorney fees under the separation agreement. Again, we

agree.

¶ 27 Because the district court was preempted from enforcing the

separation agreement’s provision that would divide husband’s

disability benefits, husband did not breach the separation

agreement and therefore is not liable for wife’s attorney fees.

1 Given our disposition, we need not address husband’s alternative arguments.

Page 14 of 16 Accordingly, we reverse this portion of the order as well. See In re

Marriage of Williams, 2017 COA 120M, ¶ 25 (reversing attorney fee

award under the prevailing party provisions of the parties’

agreements when the district court erroneously decided that the

agreements required the former husband’s estate to continue

paying maintenance to the wife).

¶ 28 Likewise, we deny wife’s request for appellate attorney fees.

See id. at ¶ 27.

IV. Conclusion

¶ 29 The order is reversed.

JUDGE ROMÁN and JUDGE FURMAN concur.

Page 15 of 16

STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203 (720) 625-5150

PAULINE BROCK CLERK OF THE COURT

NOTICE CONCERNING ISSUANCE OF THE MANDATE

Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three days after entry ofthejudgment.Inworker’scompensationandunemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect.

Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the mandate until the Supreme Court has ruled on the Petition.

BY THE COURT: Alan M. Loeb Chief Judge

DATED: October 19, 2017

Notice to self-represented parties: The Colorado Bar Association provides free volunteer attorneys in a small number of appellate cases. If you are representing yourself and meet the CBA low income qualifications, you may apply to the CBA to see if your case may be chosen for a free lawyer. Self-represented parties who are interested should visit the Appellate Pro Bono Program page at http://www.cba.cobar.org/repository/Access%20to%20Justice/AppelatePr oBono/CBAAppProBonoProg_PublicInfoApp.pdf

Page 16 of 16 FY19 NDAA 2.6% increase; zero increase in the Executive Schedule ceilings Pursuant to Executive Order 13856, dated December 28, 2018; and Executive Order 13866 dated, March 28, 2019 M O N T H L Y B A S I C P A Y T A B L E EFFECTIVE 1 JANUARY 2019

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 15078.60 15296.40 15610.20 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 16025.10 10668.90 11018.70 11250.60 11315.40 11604.90 12088.20 12200.70 12659.70 12791.70 13187.10 13759.50 14287.20 14639.40 14639.40 14639.40 14639.40 15006.00 15006.00 15380.70 15380.70 15380.70 15380.70 8865.30 9276.90 9467.70 9619.20 9893.40 10164.60 10477.80 10790.10 11103.60 12088.20 12919.20 12919.20 12919.20 12919.20 12985.50 12985.50 13245.30 13245.30 13245.30 13245.30 13245.30 13245.30 6722.70 7385.70 7870.50 7870.50 7900.50 8239.20 8283.90 8283.90 8754.30 9586.80 10075.20 10563.30 10841.40 11123.10 11668.20 11668.20 11901.30 11901.30 11901.30 11901.30 11901.30 11901.30 5604.30 6313.50 6750.00 6832.50 7105.50 7268.40 7627.20 7890.90 8230.80 8751.30 8998.50 9243.60 9521.40 9521.40 9521.40 9521.40 9521.40 9521.40 9521.40 9521.40 9521.40 9521.40 4835.40 5597.40 5971.20 6054.00 6400.80 6772.80 7236.00 7596.30 7846.50 7990.50 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 8073.90 4251.60 4819.20 5201.40 5671.50 5943.60 6241.50 6434.40 6751.20 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 6916.80 3673.50 4183.80 4818.30 4981.20 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 5083.80 3188.40 3318.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90 4011.90

0.00 0.00 0.00 5671.50 5943.60 6241.50 6434.40 6751.20 7018.80 7172.70 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 7381.80 0.00 0.00 0.00 4981.20 5083.80 5245.50 5518.80 5730.00 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 5887.20 0.00 0.00 0.00 4011.90 4284.00 4442.40 4604.40 4763.40 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20 4981.20

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 7812.60 8208.60 8503.80 8830.50 8830.50 9272.70 9272.70 9735.60 9735.60 10223.40 10223.4 4393.80 4726.20 4861.80 4995.30 5225.10 5452.80 5683.20 6029.10 6333.00 6621.90 6858.60 7089.30 7428.00 7706.40 8024.10 8024.10 8184.00 8184.00 8184.00 8184.00 8184.00 8184.00 4012.50 4179.60 4351.20 4407.60 4586.70 4940.40 5308.50 5482.20 5682.90 5889.00 6261.00 6511.80 6661.80 6821.10 7038.60 7038.60 7038.60 7038.60 7038.60 7038.60 7038.60 7038.60 3550.50 3886.20 3989.70 4060.50 4290.90 4648.80 4826.10 5000.40 5214.00 5381.10 5532.00 5713.20 5832.00 5926.20 5926.20 5926.20 5926.20 5926.20 5926.20 5926.20 5926.20 5926.20 3116.40 3452.10 3542.10 3732.60 3957.90 4290.30 4445.10 4662.00 4875.30 5043.30 5197.50 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30 5385.30

0.00 0.00 0.00 0.00 0.00 0.00 5308.20 5428.50 5580.30 5758.20 5938.80 6226.50 6470.70 6726.60 7119.30 7119.30 7474.80 7474.80 7848.90 7848.90 8241.90 8241.90 0.00 0.00 0.00 0.00 0.00 4345.50 4537.50 4656.60 4798.80 4953.60 5232.30 5373.60 5613.90 5747.40 6075.60 6075.60 6197.70 6197.70 6197.70 6197.70 6197.70 6197.70 3020.70 3296.70 3423.30 3590.10 3720.90 3945.00 4071.60 4295.70 4482.60 4609.80 4745.40 4797.60 4974.30 5068.80 5429.10 5429.10 5429.10 5429.10 5429.10 5429.10 5429.10 5429.10 2612.70 2875.20 3002.10 3125.40 3254.10 3543.30 3656.40 3874.80 3941.40 3990.00 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 4046.70 2393.40 2554.80 2678.10 2804.40 3001.50 3207.00 3376.20 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 3396.60 2194.50 2307.00 2431.80 2555.40 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 2664.00 1981.20 2105.70 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 2233.50 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1884.00 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1680.90 1554.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

15800.10 8578.50 Cadet 1116.00

Page 1 of 2 RESERVE COMPONENT DRILL PAY TABLE Effective 1 January 2019 Pay Grade 2 or less Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over Over 2 3 4 6 8 10 12 14 16 18 20 22 24 26 28 30 32 34 36 38 40 COMMISSIONED OFFICERS O-7 8,865.30 9,276.90 9,467.70 9,619.20 9,893.40 10,164.60 10,477.80 10,790.10 11,103.60 12,088.20 12,919.20 12,919.20 12,919.20 12,919.20 12,985.50 12,985.50 13,245.30 13,245.30 13,245.30 13,245.30 13,245.30 13,245.30 1 Drill 295.51 309.23 315.59 320.64 329.78 338.82 349.26 359.67 370.12 402.94 430.64 430.64 430.64 430.64 432.85 432.85 441.51 441.51 441.51 441.51 441.51 441.51 4 Drills 1,182.04 1,236.92 1,262.36 1,282.56 1,319.12 1,355.28 1,397.04 1,438.68 1,480.48 1,611.76 1,722.56 1,722.56 1,722.56 1,722.56 1,731.40 1,731.40 1,766.04 1,766.04 1,766.04 1,766.04 1,766.04 1,766.04 O-6 6,722.70 7,385.70 7,870.50 7,870.50 7,900.50 8,239.20 8,283.90 8,283.90 8,754.30 9,586.80 10,075.20 10,563.30 10,841.40 11,123.10 11,668.20 11,668.20 11,901.30 11,901.30 11,901.30 11,901.30 11,901.30 11,901.30 1 Drill 224.09 246.19 262.35 262.35 263.35 274.64 276.13 276.13 291.81 319.56 335.84 352.11 361.38 370.77 388.94 388.94 396.71 396.71 396.71 396.71 396.71 396.71 4 Drills 896.36 984.76 1,049.40 1,049.40 1,053.40 1,098.56 1,104.52 1,104.52 1,167.24 1,278.24 1,343.36 1,408.44 1,445.52 1,483.08 1,555.76 1,555.76 1,586.84 1,586.84 1,586.84 1,586.84 1,586.84 1,586.84 O-5 5,604.30 6,313.50 6,750.00 6,832.50 7,105.50 7,268.40 7,627.20 7,890.90 8,230.80 8,751.30 8,998.50 9,243.60 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 9,521.40 1 Drill 186.81 210.45 225.00 227.75 236.85 242.28 254.24 263.03 274.36 291.71 299.95 308.12 317.38 317.38 317.38 317.38 317.38 317.38 317.38 317.38 317.38 317.38 4 Drills 747.24 841.80 900.00 911.00 947.40 969.12 1,016.96 1,052.12 1,097.44 1,166.84 1,199.80 1,232.48 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 1,269.52 O-4 4,835.40 5,597.40 5,971.20 6,054.00 6,400.80 6,772.80 7,236.00 7,596.30 7,846.50 7,990.50 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 8,073.90 1 Drill 161.18 186.58 199.04 201.80 213.36 225.76 241.20 253.21 261.55 266.35 269.13 269.13 269.13 269.13 269.13 269.13 269.13 269.13 269.13 269.13 269.13 269.13 4 Drills 644.72 746.32 796.16 807.20 853.44 903.04 964.80 1,012.84 1,046.20 1,065.40 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 1,076.52 O-3 4,251.60 4,819.20 5,201.40 5,671.50 5,943.60 6,241.50 6,434.40 6,751.20 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 6,916.80 1 Drill 141.72 160.64 173.38 189.05 198.12 208.05 214.48 225.04 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 230.56 4 Drills 566.88 642.56 693.52 756.20 792.48 832.20 857.92 900.16 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 922.24 O-2 3,673.50 4,183.80 4,818.30 4,981.20 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 5,083.80 1 Drill 122.45 139.46 160.61 166.04 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 169.46 4 Drills 489.80 557.84 642.44 664.16 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 677.84 O-1 3,188.40 3,318.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 4,011.90 1 Drill 106.28 110.63 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 133.73 4 Drills 425.12 442.52 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92 534.92

COMMISSIONED OFFICERS WITH OVER 4 YEARS ACTIVE DUTY SERVICE OR MORE THAN 1,460 RESERVE POINTS AS AN ENLISTED MEMBER OR WARRANT OFFICER O-3E 5,671.50 5,943.60 6,241.50 6,434.40 6,751.20 7,018.80 7,172.70 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 7,381.80 1 Drill 189.05 198.12 208.05 214.48 225.04 233.96 239.09 246.06 246.06 246.06 246.06 246.06 246.06 246.06 246.06 246.06 246.06 246.06 246.06 4 Drills 756.20 792.48 832.20 857.92 900.16 935.84 956.36 984.24 984.24 984.24 984.24 984.24 984.24 984.24 984.24 984.24 984.24 984.24 984.24 O-2E 4,981.20 5,083.80 5,245.50 5,518.80 5,730.00 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 5,887.20 1 Drill 166.04 169.46 174.85 183.96 191.00 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 196.24 4 Drills 664.16 677.84 699.40 735.84 764.00 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 784.96 O-1E 4,011.90 4,284.00 4,442.40 4,604.40 4,763.40 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 4,981.20 1 Drill 133.73 142.80 148.08 153.48 158.78 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 166.04 4 Drills 534.92 571.20 592.32 613.92 635.12 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16 664.16

WARRANT OFFICERS W-5 7,812.60 8,208.60 8,503.80 8,830.50 8,830.50 9,272.70 9,272.70 9,735.60 9,735.60 10,223.40 10,223.40 1 Drill 260.42 273.62 283.46 294.35 294.35 309.09 309.09 324.52 324.52 340.78 340.78 4 Drills 1,041.68 1,094.48 1,133.84 1,177.40 1,177.40 1,236.36 1,236.36 1,298.08 1,298.08 1,363.12 1,363.12 W-4 4,393.80 4,726.20 4,861.80 4,995.30 5,225.10 5,452.80 5,683.20 6,029.10 6,333.00 6,621.90 6,858.60 7,089.30 7,428.00 7,706.40 8,024.10 8,024.10 8,184.00 8,184.00 8,184.00 8,184.00 8,184.00 8,184.00 1 Drill 146.46 157.54 162.06 166.51 174.17 181.76 189.44 200.97 211.10 220.73 228.62 236.31 247.60 256.88 267.47 267.47 272.80 272.80 272.80 272.80 272.80 272.80 4 Drills 585.84 630.16 648.24 666.04 696.68 727.04 757.76 803.88 844.40 882.92 914.48 945.24 990.40 1,027.52 1,069.88 1,069.88 1,091.20 1,091.20 1,091.20 1,091.20 1,091.20 1,091.20 W-3 4,012.50 4,179.60 4,351.20 4,407.60 4,586.70 4,940.40 5,308.50 5,482.20 5,682.90 5,889.00 6,261.00 6,511.80 6,661.80 6,821.10 7,038.60 7,038.60 7,038.60 7,038.60 7,038.60 7,038.60 7,038.60 7,038.60 1 Drill 133.75 139.32 145.04 146.92 152.89 164.68 176.95 182.74 189.43 196.30 208.70 217.06 222.06 227.37 234.62 234.62 234.62 234.62 234.62 234.62 234.62 234.62 4 Drills 535.00 557.28 580.16 587.68 611.56 658.72 707.80 730.96 757.72 785.20 834.80 868.24 888.24 909.48 938.48 938.48 938.48 938.48 938.48 938.48 938.48 938.48 W-2 3,550.50 3,886.20 3,989.70 4,060.50 4,290.90 4,648.80 4,826.10 5,000.40 5,214.00 5,381.10 5,532.00 5,713.20 5,832.00 5,926.20 5,926.20 5,926.20 5,926.20 5,926.20 5,926.20 5,926.20 5,926.20 5,926.20 1 Drill 118.35 129.54 132.99 135.35 143.03 154.96 160.87 166.68 173.80 179.37 184.40 190.44 194.40 197.54 197.54 197.54 197.54 197.54 197.54 197.54 197.54 197.54 4 Drills 473.40 518.16 531.96 541.40 572.12 619.84 643.48 666.72 695.20 717.48 737.60 761.76 777.60 790.16 790.16 790.16 790.16 790.16 790.16 790.16 790.16 790.16 W-1 3,116.40 3,452.10 3,542.10 3,732.60 3,957.90 4,290.30 4,445.10 4,662.00 4,875.30 5,043.30 5,197.50 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 5,385.30 1 Drill 103.88 115.07 118.07 124.42 131.93 143.01 148.17 155.40 162.51 168.11 173.25 179.51 179.51 179.51 179.51 179.51 179.51 179.51 179.51 179.51 179.51 179.51 4 Drills 415.52 460.28 472.28 497.68 527.72 572.04 592.68 621.60 650.04 672.44 693.00 718.04 718.04 718.04 718.04 718.04 718.04 718.04 718.04 718.04 718.04 718.04

ENLISTED MEMBERS E-9 5,308.20 5,428.50 5,580.30 5,758.20 5,938.80 6,226.50 6,470.70 6,726.60 7,119.30 7,119.30 7,474.80 7,474.80 7,848.90 7,848.90 8,241.90 8,241.90 1 Drill 176.94 180.95 186.01 191.94 197.96 207.55 215.69 224.22 237.31 237.31 249.16 249.16 261.63 261.63 274.73 274.73 4 Drills 707.76 723.80 744.04 767.76 791.84 830.20 862.76 896.88 949.24 949.24 996.64 996.64 1,046.52 1,046.52 1,098.92 1,098.92 E-8 4,345.50 4,537.50 4,656.60 4,798.80 4,953.60 5,232.30 5,373.60 5,613.90 5,747.40 6,075.60 6,075.60 6,197.70 6,197.70 6,197.70 6,197.70 6,197.70 6,197.70 1 Drill 144.85 151.25 155.22 159.96 165.12 174.41 179.12 187.13 191.58 202.52 202.52 206.59 206.59 206.59 206.59 206.59 206.59 4 Drills 579.40 605.00 620.88 639.84 660.48 697.64 716.48 748.52 766.32 810.08 810.08 826.36 826.36 826.36 826.36 826.36 826.36 E-7 3,020.70 3,296.70 3,423.30 3,590.10 3,720.90 3,945.00 4,071.60 4,295.70 4,482.60 4,609.80 4,745.40 4,797.60 4,974.30 5,068.80 5,429.10 5,429.10 5,429.10 5,429.10 5,429.10 5,429.10 5,429.10 5,429.10 1 Drill 100.69 109.89 114.11 119.67 124.03 131.50 135.72 143.19 149.42 153.66 158.18 159.92 165.81 168.96 180.97 180.97 180.97 180.97 180.97 180.97 180.97 180.97 4 Drills 402.76 439.56 456.44 478.68 496.12 526.00 542.88 572.76 597.68 614.64 632.72 639.68 663.24 675.84 723.88 723.88 723.88 723.88 723.88 723.88 723.88 723.88 E-6 2,612.70 2,875.20 3,002.10 3,125.40 3,254.10 3,543.30 3,656.40 3,874.80 3,941.40 3,990.00 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 4,046.70 1 Drill 87.09 95.84 100.07 104.18 108.47 118.11 121.88 129.16 131.38 133.00 134.89 134.89 134.89 134.89 134.89 134.89 134.89 134.89 134.89 134.89 134.89 134.89 4 Drills 348.36 383.36 400.28 416.72 433.88 472.44 487.52 516.64 525.52 532.00 539.56 539.56 539.56 539.56 539.56 539.56 539.56 539.56 539.56 539.56 539.56 539.56 E-5 2,393.40 2,554.80 2,678.10 2,804.40 3,001.50 3,207.00 3,376.20 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 3,396.60 1 Drill 79.78 85.16 89.27 93.48 100.05 106.90 112.54 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 113.22 4 Drills 319.12 340.64 357.08 373.92 400.20 427.60 450.16 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 452.88 E-4 2,194.50 2,307.00 2,431.80 2,555.40 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 2,664.00 1 Drill 73.15 76.90 81.06 85.18 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 88.80 4 Drills 292.60 307.60 324.24 340.72 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 355.20 E-3 1,981.20 2,105.70 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 2,233.50 1 Drill 66.04 70.19 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 74.45 4 Drills 264.16 280.76 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 297.80 E-2 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1,884.00 1 Drill 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 62.80 4 Drills 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 251.20 E-1 1,680.90 1 Drill 56.03 4 Drills 224.12 E-1<4 mo 1,554.00 1 Drill 51.80 4 Drills 207.20

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Page 1 of 1 ageupdatedecember102018 htts//.das.ml/mltarmembers/aenttlements/a-ables/bas.html 1/1 2019 Non-Locality BAH Rates Effective 1 January 2019 BAH RC/T*

Pay Grade Partial Differential* Without Dependents With Dependents

O-10 $ 50.70 $ 1,708.80 $ 2,102.10 $ 357.60 O-9 $ 50.70 $ 1,708.80 $ 2,102.10 $ 357.60 O-8 $ 50.70 $ 1,708.80 $ 2,102.10 $ 357.60 O-7 $ 50.70 $ 1,708.80 $ 2,102.10 $ 357.60 O-6 $ 39.60 $ 1,566.60 $ 1,892.10 $ 304.20 O-5 $ 33.00 $ 1,508.70 $ 1,824.00 $ 294.00 O-4 $ 26.70 $ 1,398.00 $ 1,607.70 $ 195.90 O-3 $ 22.20 $ 1,120.80 $ 1,330.20 $ 195.60 O-2 $ 17.70 $ 888.00 $ 1,135.20 $ 230.40 O-1 $ 13.20 $ 762.30 $ 1,016.10 $ 249.00 O3E $ 22.20 $ 1,209.60 $ 1,429.80 $ 204.60 O2E $ 17.70 $ 1,029.00 $ 1,290.30 $ 245.10 O1E $ 13.20 $ 894.90 $ 1,192.50 $ 287.10 W-5 $ 25.20 $ 1,420.80 $ 1,552.80 $ 122.10 W-4 $ 25.20 $ 1,261.20 $ 1,423.50 $ 150.60 W-3 $ 20.70 $ 1,060.50 $ 1,304.70 $ 227.10 W-2 $ 15.90 $ 941.10 $ 1,198.50 $ 240.00 W-1 $ 13.80 $ 789.30 $ 1,037.70 $ 232.50 E-9 $ 18.60 $ 1,035.30 $ 1,365.60 $ 306.60 E-8 $ 15.30 $ 951.60 $ 1,259.40 $ 287.40 E-7 $ 12.00 $ 876.90 $ 1,168.80 $ 332.70 E-6 $ 9.90 $ 810.30 $ 1,080.00 $ 321.90 E-5 $ 8.70 $ 729.00 $ 972.00 $ 273.90 E-4 $ 8.10 $ 634.20 $ 844.80 $ 236.40 E-3 $ 7.80 $ 589.50 $ 785.40 $ 194.10 E-2 $ 7.20 $ 562.20 $ 748.80 $ 259.20 E-1 >4 $ 6.90 $ 562.20 $ 748.80 $ 306.60 E-1 <4 $ 6.90 $ 562.20 $ 748.80 $ 306.60

*BAH RC/Transit rates are adjusted by the average change in housing costs; BAH-DIFF rates are adjusted by the amount of the basic pay raise.

Page 1 of 1 NOTE: The governor signed this measure on 5/10/2013.

HOUSE BILL 13-1200

BY REPRESENTATIVE(S) Gardner, Fields, Gerou, Kagan, Labuda, Lee, Mitsch Bush, Pabon, Rosenthal, Salazar, Young, Murray, Singer; also SENATOR(S) Roberts, Aguilar, Grantham, Guzman, Heath, King, Newell.

CONCERNING THE "UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT".

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. In Colorado Revised Statutes, repeal 14-10-131.3.

SECTION 2. In Colorado Revised Statutes, add article 13.7 to title 14 as follows:

ARTICLE 13.7 Uniform Deployed Parents Custody and Visitation Act 9 PART 1 GENERAL PROVISIONS

14-13.7-101. Short title. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS THE "UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION

______Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act. Page 1 of 17 ACT".

14-13.7-102. Definitions. IN THIS ARTICLE:

(1) "ADULT" MEANS AN INDIVIDUAL WHO HAS ATTAINED EIGHTEEN YEARS OF AGE OR WHO IS AN EMANCIPATED MINOR.

(2) "CARETAKING AUTHORITY" MEANS THE RIGHT TO LIVE WITH AND CARE FOR A CHILD ON A DAY-TO-DAY BASIS. THE TERM INCLUDES PHYSICAL CUSTODY, PARENTING TIME, RIGHT TO ACCESS, AND VISITATION.

(3) "CHILD" MEANS:

(a) AN UNEMANCIPATED INDIVIDUAL WHO HAS NOT ATTAINED EIGHTEEN YEARS OF AGE; OR

(b) AN ADULT SON OR DAUGHTER BY BIRTH OR ADOPTION, OR UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE, WHO IS THE SUBJECT OF A COURT ORDER CONCERNING CUSTODIAL RESPONSIBILITY.

(4) "COURT" MEANS A TRIBUNAL, INCLUDING AN ADMINISTRATIVE AGENCY, AUTHORIZED UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE TO MAKE, ENFORCE, OR MODIFY A DECISION REGARDING CUSTODIAL RESPONSIBILITY.

(5) "CUSTODIAL RESPONSIBILITY" INCLUDES ALL POWERS AND DUTIES RELATING TO CARETAKING AUTHORITY AND DECISION-MAKING AUTHORITY FOR A CHILD. THE TERM INCLUDES PHYSICAL CUSTODY, LEGAL CUSTODY, PARENTING TIME, RIGHT TO ACCESS, VISITATION, AND AUTHORITY TO GRANT LIMITED CONTACT WITH A CHILD.

(6) "DECISION-MAKING AUTHORITY" MEANS THE POWER TO MAKE MAJOR DECISIONS REGARDING A CHILD, INCLUDING DECISIONS REGARDING THE CHILD'S EDUCATION, RELIGIOUS TRAINING, HEALTH CARE, EXTRACURRICULAR ACTIVITIES, AND TRAVEL.THE TERM DOES NOT INCLUDE THE POWER TO MAKE DECISIONS THAT NECESSARILY ACCOMPANY A GRANT OF CARETAKING AUTHORITY.

(7) "DEPLOYING PARENT" MEANS A SERVICE MEMBER WHO IS DEPLOYED OR HAS BEEN NOTIFIED OF IMPENDING DEPLOYMENT AND IS:

PAGE 2-HOUSE BILL 13-1200

Page 2 of 17 (a) A PARENT OF A CHILD UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE; OR

(b) AN INDIVIDUAL WHO HAS CUSTODIAL RESPONSIBILITY FOR A CHILD UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE.

(8) "DEPLOYMENT" MEANS THE MOVEMENT OR MOBILIZATION OF A SERVICE MEMBER FOR MORE THAN NINETY DAYS BUT LESS THAN EIGHTEEN MONTHS PURSUANT TO UNIFORMED SERVICE ORDERS THAT:

(a) ARE DESIGNATED AS UNACCOMPANIED;

(b) DO NOT AUTHORIZE DEPENDENT TRAVEL; OR

(8.5) "DEPLOYMENT ORDER" MEANS A RECORD PROVIDED BY A UNIFORMED SERVICE TO A SERVICE MEMBER DIRECTING A DEPLOYMENT.

(9) "FAMILY MEMBER" MEANS A SIBLING, AUNT, UNCLE, COUSIN, STEPPARENT, OR GRANDPARENT OF A CHILD OR AN INDIVIDUAL RECOGNIZED TO BE IN A FAMILIAL RELATIONSHIP WITH A CHILD UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE.

(10) "LIMITED CONTACT" MEANS THE AUTHORITY OF A NONPARENT TO VISIT A CHILD FOR A LIMITED TIME. THE TERM INCLUDES AUTHORITY TO TAKE THE CHILD TO A PLACE OTHER THAN THE RESIDENCE OF THE CHILD.

(11) "NONPARENT" MEANS AN INDIVIDUAL OTHER THAN A DEPLOYING PARENT OR OTHER PARENT.

(12) "OTHER PARENT" MEANS AN INDIVIDUAL WHO, IN COMMON WITH A DEPLOYING PARENT, IS:

(a) A PARENT OF A CHILD UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE; OR

(b) AN INDIVIDUAL WHO HAS CUSTODIAL RESPONSIBILITY FOR A CHILD UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE.

PAGE 3-HOUSE BILL 13-1200

Page 3 of 17 (13) "RECORD" MEANS INFORMATION THAT IS INSCRIBED ON A TANGIBLE MEDIUM OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND IS RETRIEVABLE IN PERCEIVABLE FORM.

(14) "RETURN FROM DEPLOYMENT" MEANS THE CONCLUSION OF A SERVICE MEMBER'S DEPLOYMENT AS SPECIFIED IN UNIFORMED SERVICE ORDERS.

(15) "SERVICE MEMBER" MEANS A MEMBER OF A UNIFORMED SERVICE.

(16) "SIGN" MEANS, WITH PRESENT INTENT TO AUTHENTICATE OR ADOPT A RECORD:

(a) TO EXECUTE OR ADOPT WITH A TANGIBLE SYMBOL; OR

(b) TO ATTACH TO OR LOGICALLY ASSOCIATE WITH THE RECORD AN ELECTRONIC SYMBOL, SOUND, OR PROCESS.

(17) "STATE" MEANS A STATE OF THE UNITED STATES, THE DISTRICT OF COLUMBIA,PUERTO RICO, THE UNITED STATES VIRGIN ISLANDS, OR ANY TERRITORY OR INSULAR POSSESSION SUBJECT TO THE JURISDICTION OF THE UNITED STATES.

(18) "UNIFORMED SERVICE" MEANS:

(a) ACTIVE AND RESERVE COMPONENTS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES;

(b) THE UNITED STATES MERCHANT MARINE;

(d) THE COMMISSIONED CORPS OF THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION OF THE UNITED STATES; OR

(e) THE NATIONAL GUARD OF A STATE.

14-13.7-103. Reserved.

PAGE 4-HOUSE BILL 13-1200

Page 4 of 17 14-13.7-104. Jurisdiction. (1) A COURT MAY ISSUE AN ORDER REGARDING CUSTODIAL RESPONSIBILITY UNDER THIS ARTICLE ONLY IF THE COURT HAS JURISDICTION UNDER ARTICLE 13 OF THIS TITLE.

(2) IF A COURT HAS ISSUED AN INTERIM ORDER REGARDING CUSTODIAL RESPONSIBILITY PURSUANT TO PART 3 OF THIS ARTICLE, THE RESIDENCE OF THE DEPLOYING PARENT IS NOT CHANGED BY REASON OF THE DEPLOYMENT FOR THE PURPOSES OF ARTICLE 13 OF THIS TITLE.

(3) IF A COURT HAS ISSUED A PERMANENT ORDER REGARDING CUSTODIAL RESPONSIBILITY BEFORE NOTICE OF DEPLOYMENT AND THE PARENTS MODIFY THAT ORDER TEMPORARILY BY AGREEMENT PURSUANT TO PART 2 OF THIS ARTICLE, THE RESIDENCE OF THE DEPLOYING PARENT IS NOT CHANGED BY REASON OF THE DEPLOYMENT FOR THE PURPOSES OF ARTICLE 13 OF THIS TITLE.

(4) IF A COURT IN ANOTHER STATE HAS ISSUED AN INTERIM ORDER REGARDING CUSTODIAL RESPONSIBILITY AS A RESULT OF IMPENDING OR CURRENT DEPLOYMENT, THE RESIDENCE OF THE DEPLOYING PARENT IS NOT CHANGED BY REASON OF THE DEPLOYMENT FOR THE PURPOSES OF ARTICLE 13 OF THIS TITLE.

(5) THIS SECTION DOES NOT PREVENT A COURT FROM EXERCISING EMERGENCY JURISDICTION UNDER ARTICLE 13 OF THIS TITLE.

14-13.7-105. Notification required of deploying parent. (1) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (4) OF THIS SECTION AND SUBJECT TO SUBSECTION (3) OF THIS SECTION, IN CASES WHERE THERE HAS BEEN A PRIOR DETERMINATION OF CUSTODY, A DEPLOYING PARENT SHALL NOTIFY IN A RECORD THE OTHER PARENT OF A PENDING DEPLOYMENT NOT LATER THAN TWELVE CALENDAR DAYS AFTER RECEIVING DEPLOYMENT ORDERS UNLESS REASONABLY PREVENTED FROM DOING SO BY THE CIRCUMSTANCES OF SERVICE. IF THE CIRCUMSTANCES OF SERVICE PREVENT GIVING NOTIFICATION WITHIN TWELVE CALENDAR DAYS, THE DEPLOYING PARENT SHALL GIVE THE NOTIFICATION AS SOON AS REASONABLY POSSIBLE.

(2) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (4) OF THIS SECTION AND SUBJECT TO SUBSECTION (3) OF THIS SECTION, EACH PARENT SHALL PROVIDE IN A RECORD TO THE OTHER PARENT A PLAN FOR FULFILLING THAT PARENT'S SHARE OF CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT.

PAGE 5-HOUSE BILL 13-1200

Page 5 of 17 EACH PARENT SHALL PROVIDE THE PLAN AS SOON AS REASONABLY POSSIBLE AFTER NOTIFICATION OF DEPLOYMENT IS GIVEN UNDER SUBSECTION (1) OF THIS SECTION.

(3) IF A COURT ORDER CURRENTLY IN EFFECT PROHIBITS DISCLOSURE OF THE ADDRESS OR CONTACT INFORMATION OF THE OTHER PARENT, NOTIFICATION OF DEPLOYMENT UNDER SUBSECTION (1) OF THIS SECTION OR NOTIFICATION OF A PLAN FOR CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT UNDER SUBSECTION (2) OF THIS SECTION MAY BE MADE ONLY TO THE ISSUING COURT. IF THE ADDRESS OF THE OTHER PARENT IS AVAILABLE TO THE ISSUING COURT, THE COURT SHALL FORWARD THE NOTIFICATION TO THE OTHER PARENT. THE COURT SHALL KEEP CONFIDENTIAL THE ADDRESS OR CONTACT INFORMATION OF THE OTHER PARENT.

(4) NOTIFICATION IN A RECORD UNDER SUBSECTION (1) OR (2) OF THIS SECTION IS NOT REQUIRED IF THE PARENTS ARE LIVING IN THE SAME RESIDENCE AND BOTH PARENTS HAVE ACTUAL NOTICE OF THE DEPLOYMENT OR PLAN.

14-13.7-106. Duty to notify of change of address. (1) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (2) OF THIS SECTION, AN INDIVIDUAL TO WHOM CUSTODIAL RESPONSIBILITY HAS BEEN GRANTED DURING DEPLOYMENT PURSUANT TO PARTS 2 OR 3 OF THIS ARTICLE SHALL NOTIFY THE DEPLOYING PARENT AND ANY OTHER INDIVIDUAL WITH CUSTODIAL RESPONSIBILITY OF A CHILD OF ANY CHANGE OF THE INDIVIDUAL'S MAILING ADDRESS OR RESIDENCE UNTIL THE GRANT IS TERMINATED. THE INDIVIDUAL SHALL PROVIDE THE NOTICE TO ANY COURT THAT HAS ISSUED A CUSTODY OR CHILD SUPPORT ORDER CONCERNING THE CHILD WHICH IS IN EFFECT. THIS NOTICE PROVISION DOES NOT ALTER THE PROVISIONS OF SECTION 14-10-129.

(2) IF A COURT ORDER CURRENTLY IN EFFECT PROHIBITS DISCLOSURE OF THE ADDRESS OR CONTACT INFORMATION OF AN INDIVIDUAL TO WHOM CUSTODIAL RESPONSIBILITY HAS BEEN GRANTED, A NOTIFICATION UNDER SUBSECTION (1) OF THIS SECTION MAY BE MADE ONLY TO THE COURT THAT ISSUED THE ORDER. THE COURT SHALL KEEP CONFIDENTIAL THE MAILING ADDRESS OR RESIDENCE OF THE INDIVIDUAL TO WHOM CUSTODIAL RESPONSIBILITY HAS BEEN GRANTED.

14-13.7-107. General consideration in custody proceeding of

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Page 6 of 17 parent's military service. IN A PROCEEDING FOR CUSTODIAL RESPONSIBILITY OF A CHILD OF A SERVICE MEMBER, A PARENT'S PAST DEPLOYMENT OR POSSIBLE FUTURE DEPLOYMENT IN ITSELF MAY NOT SERVE AS THE SOLE BASIS IN DETERMINING THE BEST INTEREST OF THE CHILD. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE COURT FROM APPLYING SECTION 14-10-124 IN DETERMINING THE BEST INTEREST OF THE CHILD.

PART 2 AGREEMENT ADDRESSING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT

14-13.7-201. Form of agreement. (1) THE PARENTS OF A CHILD MAY ENTER INTO AN INTERIM AGREEMENT UNDER THIS ARTICLE GRANTING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT.

(2) AN AGREEMENT UNDER SUBSECTION (1) OF THIS SECTION MUST BE:

(a) IN WRITING; AND

(b) SIGNED BY BOTH PARENTS AND ANY NONPARENT TO WHOM CUSTODIAL RESPONSIBILITY IS GRANTED.

(3) SUBJECT TO SUBSECTION (4) OF THIS SECTION, AN AGREEMENT UNDER SUBSECTION (1) OF THIS SECTION, IF FEASIBLE, MUST:

(a) IDENTIFY THE DESTINATION, DURATION, AND CONDITIONS OF THE DEPLOYMENT THAT IS THE BASIS FOR THE AGREEMENT;

(b) SPECIFY THE ALLOCATION OF CARETAKING AUTHORITY AMONG THE DEPLOYING PARENT, THE OTHER PARENT, AND ANY NONPARENT;

(d) SPECIFY ANY GRANT OF LIMITED CONTACT TO A NONPARENT;

(e) IF, UNDER THE AGREEMENT, CUSTODIAL RESPONSIBILITY IS SHARED BY THE OTHER PARENT AND A NONPARENT, OR BY OTHER

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Page 7 of 17 NONPARENTS, PROVIDE A PROCESS TO RESOLVE ANY DISPUTE THAT MAY ARISE;

(f) SPECIFY THE FREQUENCY, DURATION, AND MEANS, INCLUDING ELECTRONIC MEANS, BY WHICH THE DEPLOYING PARENT WILL HAVE CONTACT WITH THE CHILD, ANY ROLE TO BE PLAYED BY THE OTHER PARENT IN FACILITATING THE CONTACT, AND THE ALLOCATION OF ANY COSTS OF CONTACT;

(g) SPECIFY THE CONTACT BETWEEN THE DEPLOYING PARENT AND CHILD DURING THE TIME THE DEPLOYING PARENT IS ON LEAVE OR IS OTHERWISE AVAILABLE;

(h) ACKNOWLEDGE THAT ANY PARTY'S CHILD-SUPPORT OBLIGATION CANNOT BE MODIFIED BY THE AGREEMENT ALONE, AND THAT CHANGING THE TERMS OF THE OBLIGATION DURING DEPLOYMENT REQUIRES MODIFICATION BY COURT ORDER;

(i) PROVIDE THAT THE AGREEMENT WILL TERMINATE ACCORDING TO THE PROCEDURES UNDER PART 4 OF THIS ARTICLE AFTER THE DEPLOYING PARENT RETURNS FROM DEPLOYMENT; AND

(j) IF THE AGREEMENT MUST BE FILED PURSUANT TO SECTION 14-13.7-205, SPECIFY WHICH PARENT IS REQUIRED TO FILE THE AGREEMENT.

(4) THE OMISSION OF ANY OF THE ITEMS SPECIFIED IN SUBSECTION (3) OF THIS SECTION DOES NOT INVALIDATE AN AGREEMENT UNDER THIS SECTION.

(5) THE AGREEMENT MAY BE SUBMITTED TO THE COURT FOR APPROVAL TO BECOME AN ENFORCEABLE ORDER.

14-13.7-202. Nature of authority created by agreement. (1) AN AGREEMENT UNDER THIS PART 2 IS AN INTERIM AGREEMENT AND TERMINATES PURSUANT TO PART 4 OF THIS ARTICLE AFTER THE DEPLOYING PARENT RETURNS FROM DEPLOYMENT, UNLESS THE AGREEMENT HAS BEEN TERMINATED BEFORE THAT TIME BY COURT ORDER OR MODIFICATION UNDER SECTION 14-13.7-203.THE AGREEMENT DOES NOT CREATE AN INDEPENDENT, CONTINUING RIGHT TO CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT IN AN INDIVIDUAL TO WHOM CUSTODIAL

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Page 8 of 17 RESPONSIBILITY IS GIVEN.

(2) A NONPARENT WHO HAS CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT BY AN AGREEMENT UNDER THIS PART 2 HAS STANDING TO ENFORCE THE AGREEMENT UNTIL IT HAS BEEN TERMINATED BY COURT ORDER, BY MODIFICATION UNDER SECTION 14-13.7-203, OR UNDER PART 4 OF THIS ARTICLE.

14-13.7-203. Modification of agreement. (1) BY MUTUAL CONSENT, THE PARENTS OF A CHILD MAY MODIFY AN AGREEMENT REGARDING CUSTODIAL RESPONSIBILITY MADE PURSUANT TO THIS PART 2.

(2) IF AN AGREEMENT IS MODIFIED UNDER SUBSECTION (1) OF THIS SECTION BEFORE DEPLOYMENT OF A DEPLOYING PARENT, THE MODIFICATION MUST BE IN WRITING AND SIGNED BY BOTH PARENTS AND ANY NONPARENT WHO WILL EXERCISE CUSTODIAL RESPONSIBILITY UNDER THE MODIFIED AGREEMENT.

(3) IF AN AGREEMENT IS MODIFIED UNDER SUBSECTION (1) OF THIS SECTION DURING DEPLOYMENT OF A DEPLOYING PARENT, THE MODIFICATION MUST BE AGREED TO IN A RECORD THAT IS SIGNED BY BOTH PARENTS AND ANY NONPARENT WHO WILL EXERCISE CUSTODIAL RESPONSIBILITY UNDER THE MODIFIED AGREEMENT, AND THE MODIFIED AGREEMENT MAY BE SUBMITTED TO THE COURT FOR APPROVAL TO BECOME AN ENFORCEABLE ORDER.

14-13.7-204. Power of attorney. A DEPLOYING PARENT, BY POWER OF ATTORNEY, MAY DELEGATE ALL OR PART OF HIS OR HER CUSTODIAL RESPONSIBILITY TO AN ADULT NONPARENT FOR THE PERIOD OF DEPLOYMENT IF NO OTHER PARENT POSSESSES CUSTODIAL RESPONSIBILITY UNDER LAW OF THIS STATE OTHER THAN THIS ARTICLE, OR IF A COURT ORDER CURRENTLY IN EFFECT PROHIBITS CONTACT BETWEEN THE CHILD AND THE OTHER PARENT.THE DEPLOYING PARENT MAY REVOKE THE POWER OF ATTORNEY BY SIGNING A REVOCATION OF THE POWER.

14-13.7-205. Filing agreement or power of attorney with court. AN AGREEMENT OR POWER OF ATTORNEY UNDER THIS PART 2 MUST BE FILED WITHIN A REASONABLE TIME WITH ANY COURT THAT HAS ENTERED AN ORDER ON CUSTODIAL RESPONSIBILITY OR CHILD SUPPORT THAT IS IN EFFECT CONCERNING THE CHILD WHO IS THE SUBJECT OF THE AGREEMENT OR POWER.

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Page 9 of 17 THE CASE NUMBER AND HEADING OF THE PENDING CASE CONCERNING CUSTODIAL RESPONSIBILITY OR CHILD SUPPORT MUST BE PROVIDED TO THE COURT WITH THE AGREEMENT OR POWER.

PART 3 JUDICIAL PROCEDURE FOR GRANTING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT

14-13.7-301. Definition. IN THIS PART 3, "CLOSE AND SUBSTANTIAL RELATIONSHIP" MEANS A RELATIONSHIP BETWEEN A CHILD AND A NONPARENT WHO HAS HAD PHYSICAL CARE OF THE CHILD FOR MORE THAN ONE HUNDRED EIGHTY-TWO DAYS.

14-13.7-302. Proceeding for interim custody order. (1) AFTER A DEPLOYING PARENT RECEIVES NOTICE OF DEPLOYMENT AND UNTIL THE DEPLOYMENT TERMINATES, A COURT MAY ISSUE AN INTERIM ORDER, CONSISTENT WITH THE BEST INTERESTS OF THE CHILD, GRANTING CUSTODIAL RESPONSIBILITY, UNLESS PROHIBITED BY THE "SERVICEMEMBERS CIVIL RELIEF ACT", 50 U.S.C. APPENDIX SECTIONS 521 AND 522. A COURT MAY NOT ISSUE A PERMANENT ORDER GRANTING CUSTODIAL RESPONSIBILITY WITHOUT THE CONSENT OF THE DEPLOYING PARENT.

(2) AT ANY TIME AFTER A DEPLOYING PARENT RECEIVES NOTICE OF DEPLOYMENT, EITHER PARENT MAY FILE A MOTION REGARDING CUSTODIAL RESPONSIBILITY OF A CHILD DURING DEPLOYMENT. THE MOTION MUST BE FILED IN A PENDING PROCEEDING FOR CUSTODIAL RESPONSIBILITY IN A COURT WITH JURISDICTION UNDER SECTION 14-13.7-104 OR, IF THERE IS NO PENDING PROCEEDING IN A COURT WITH JURISDICTION UNDER SECTION 14-13.7-104, IN A NEW ACTION FOR GRANTING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT.

14-13.7-303. Expedited hearing. IF A MOTION TO GRANT CUSTODIAL RESPONSIBILITY IS FILED UNDER SECTION 14-13.7-302 (2) BEFORE A DEPLOYING PARENT DEPLOYS, THE COURT SHALL CONDUCT AN EXPEDITED HEARING.

14-13.7-304. Testimony by electronic means. IN A PROCEEDING UNDER THIS PART 3, A PARTY OR WITNESS WHO IS NOT REASONABLY AVAILABLE TO APPEAR PERSONALLY MAY APPEAR, PROVIDE TESTIMONY, AND PRESENT EVIDENCE BY ELECTRONIC MEANS UNLESS THE COURT FINDS GOOD

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Page 10 of 17 CAUSE TO REQUIRE A PERSONAL APPEARANCE.

14-13.7-305. Effect of prior judicial order or agreement. (1) IN A PROCEEDING FOR A GRANT OF CUSTODIAL RESPONSIBILITY PURSUANT TO THIS PART 3, THE FOLLOWING RULES APPLY:

(a) A PRIOR JUDICIAL ORDER DESIGNATING CUSTODIAL RESPONSIBILITY IN THE EVENT OF DEPLOYMENT IS BINDING ON THE COURT UNLESS THE CIRCUMSTANCES MEET THE REQUIREMENTS OF LAW OF THIS STATE OTHER THAN THIS ARTICLE FOR MODIFYING A JUDICIAL ORDER REGARDING CUSTODIAL RESPONSIBILITY;

(b) THE COURT SHALL ENFORCE A PRIOR WRITTEN AGREEMENT BETWEEN THE PARENTS FOR DESIGNATING CUSTODIAL RESPONSIBILITY IN THE EVENT OF DEPLOYMENT, INCLUDING AN AGREEMENT EXECUTED UNDER PART 2 OF THIS ARTICLE, UNLESS THE COURT FINDS THAT THE AGREEMENT IS NOT IN THE BEST INTEREST OF THE CHILD.

14-13.7-306. Grant of caretaking or decision-making authority to nonparent. (1) ON MOTION OF A DEPLOYING PARENT AND IN ACCORDANCE WITH LAW OF THIS STATE OTHER THAN THIS ARTICLE, IF IT IS IN THE BEST INTEREST OF THE CHILD, A COURT MAY GRANT CARETAKING AUTHORITY TO A NONPARENT WHO IS AN ADULT FAMILY MEMBER OF THE CHILD OR AN ADULT WITH WHOM THE CHILD HAS A CLOSE AND SUBSTANTIAL RELATIONSHIP.

(2) UNLESS A GRANT OF CARETAKING AUTHORITY TO A NONPARENT UNDER SUBSECTION (1) OF THIS SECTION IS AGREED TO BY THE OTHER PARENT, THE GRANT IS LIMITED TO AN AMOUNT OF TIME NOT GREATER THAN:

(a) THE AMOUNT OF TIME GRANTED TO THE DEPLOYING PARENT UNDER A PERMANENT CUSTODY ORDER, BUT THE COURT MAY ADD UNUSUAL TRAVEL TIME NECESSARY TO TRANSPORT THE CHILD; OR

(b) IN THE ABSENCE OF A PERMANENT CUSTODY ORDER THAT IS CURRENTLY IN EFFECT, THE AMOUNT OF TIME THAT THE DEPLOYING PARENT HABITUALLY CARED FOR THE CHILD BEFORE BEING NOTIFIED OF DEPLOYMENT, BUT THE COURT MAY ADD UNUSUAL TRAVEL TIME NECESSARY TO TRANSPORT THE CHILD.

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Page 11 of 17 (c) IF A COURT FINDS THAT IT IS IN THE BEST INTERESTS OF THE CHILD, THE COURT MAY GRANT PART OF A DEPLOYING PARENT'S DECISION-MAKING AUTHORITY, IF THE DEPLOYING PARENT IS UNABLE TO EXERCISE THAT AUTHORITY, TO A NONPARENT WHO IS AN ADULT FAMILY MEMBER OF THE CHILD OR AN ADULT WITH WHOM THE CHILD HAS A CLOSE AND SUBSTANTIAL RELATIONSHIP. IF A COURT GRANTS THE AUTHORITY TO A NONPARENT, THE COURT SHALL SPECIFY THE DECISION-MAKING POWERS GRANTED, INCLUDING DECISIONS REGARDING THE CHILD'S EDUCATION, RELIGIOUS TRAINING, HEALTH CARE, EXTRACURRICULAR ACTIVITIES, AND TRAVEL.

14-13.7-307. Grant of limited contact. ON A MOTION OF A DEPLOYING PARENT, AND IN ACCORDANCE WITH LAW OF THIS STATE OTHER THAN THIS ARTICLE, UNLESS THE COURT FINDS THAT THE CONTACT WOULD NOT BE IN THE BEST INTEREST OF THE CHILD, A COURT SHALL GRANT LIMITED CONTACT TO A NONPARENT WHO IS A FAMILY MEMBER OF THE CHILD OR AN INDIVIDUAL WITH WHOM THE CHILD HAS A CLOSE AND SUBSTANTIAL RELATIONSHIP.

14-13.7-308. Nature of authority created by interim custody order. (1) A GRANT OF AUTHORITY UNDER THIS PART 3 IS AN INTERIM GRANT OF AUTHORITY AND TERMINATES UNDER PART 4 OF THIS ARTICLE AFTER THE RETURN FROM DEPLOYMENT OF THE DEPLOYING PARENT, UNLESS THE GRANT HAS BEEN TERMINATED BEFORE THAT TIME BY COURT ORDER. THE GRANT DOES NOT CREATE AN INDEPENDENT, CONTINUING RIGHT TO CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT IN AN INDIVIDUAL TO WHOM IT IS GRANTED.

(2) A NONPARENT GRANTED CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT UNDER THIS PART 3 HAS STANDING TO ENFORCE THE GRANT UNTIL IT IS TERMINATED BY COURT ORDER OR UNDER PART 4 OF THIS ARTICLE.

14-13.7-309. Content of interim custody order. (1) AN ORDER GRANTING CUSTODIAL RESPONSIBILITY UNDER THIS PART 3 MUST:

(a) DESIGNATE THE ORDER AS AN INTERIM ORDER; AND

(b) IDENTIFY TO THE EXTENT FEASIBLE THE DESTINATION, DURATION, AND CONDITION OF THE DEPLOYMENT.

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Page 12 of 17 (2) IF APPLICABLE, AN ORDER FOR CUSTODIAL RESPONSIBILITY UNDER THIS PART 3 MUST:

(a) SPECIFY THE ALLOCATION OF CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT AMONG THE DEPLOYING PARENT, THE OTHER PARENT, AND ANY NONPARENT;

(b) IF THE ORDER DIVIDES CARETAKING OR DECISION-MAKING AUTHORITY BETWEEN INDIVIDUALS, OR GRANTS CARETAKING AUTHORITY TO ONE INDIVIDUAL AND LIMITED CONTACT TO ANOTHER, PROVIDE A PROCESS TO RESOLVE ANY DISPUTE THAT MAY ARISE;

(c) PROVIDE FOR LIBERAL COMMUNICATION BETWEEN THE DEPLOYING PARENT AND THE CHILD DURING DEPLOYMENT, INCLUDING THROUGH ELECTRONIC MEANS, UNLESS THE COURT FINDS IT IS NOT IN THE BEST INTEREST OF THE CHILD, AND ALLOCATE ANY COSTS OF COMMUNICATIONS;

(d) PROVIDE FOR LIBERAL CONTACT BETWEEN THE DEPLOYING PARENT AND THE CHILD DURING THE TIME THE DEPLOYING PARENT IS ON LEAVE OR OTHERWISE AVAILABLE, UNLESS THE COURT FINDS IT IS NOT IN THE BEST INTEREST OF THE CHILD;

(e) PROVIDE FOR REASONABLE CONTACT BETWEEN THE DEPLOYING PARENT AND THE CHILD AFTER RETURN FROM DEPLOYMENT UNTIL THE INTERIM ORDER IS TERMINATED, EVEN IF THE TIME OF CONTACT EXCEEDS THE TIME THE DEPLOYING PARENT SPENT WITH THE CHILD BEFORE ENTRY OF THE INTERIM ORDER; AND

(f) PROVIDE THAT THE ORDER WILL TERMINATE PURSUANT TO PART 4 OF THIS ARTICLE AFTER THE DEPLOYING PARENT RETURNS FROM DEPLOYMENT.

14-13.7-310. Order for child support. IF A COURT HAS ISSUED AN ORDER GRANTING CARETAKING AUTHORITY UNDER THIS PART 3, OR AN AGREEMENT GRANTING CARETAKING AUTHORITY HAS BEEN EXECUTED UNDER PART 2 OF THIS ARTICLE, THE COURT MAY ENTER AN INTERIM ORDER FOR CHILD SUPPORT CONSISTENT WITH LAW OF THIS STATE OTHER THAN THIS ARTICLE IF THE COURT HAS JURISDICTION UNDER THE "UNIFORM INTERSTATE FAMILY SUPPORT ACT", ARTICLE 5 OF THIS TITLE.

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Page 13 of 17 14-13.7-311. Modifying or terminating grant of custodial responsibility to nonparent. (1) EXCEPT FOR AN ORDER UNDER SECTION 14-13.7-305, EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (2) OF THIS SECTION, AND CONSISTENT WITH THE "SERVICEMEMBERS CIVIL RELIEF ACT", 50 U.S.C. APPENDIX SECTIONS 521 AND 522, ON MOTION OF A DEPLOYING OR OTHER PARENT OR ANY NONPARENT TO WHOM CARETAKING AUTHORITY, DECISION-MAKING AUTHORITY, OR LIMITED CONTACT HAS BEEN GRANTED, THE COURT MAY MODIFY OR TERMINATE THE GRANT IF THE MODIFICATION OR TERMINATION IS CONSISTENT WITH THIS PART 3 AND IT IS IN THE BEST INTEREST OF THE CHILD. A MODIFICATION IS AN INTERIM MODIFICATION AND TERMINATES PURSUANT TO PART 4 OF THIS ARTICLE AFTER THE DEPLOYING PARENT RETURNS FROM DEPLOYMENT, UNLESS THE GRANT HAS BEEN TERMINATED BEFORE THAT TIME BY COURT ORDER.

(2) ON MOTION OF A DEPLOYING PARENT, THE COURT SHALL TERMINATE A GRANT OF LIMITED CONTACT, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD.

PART 4 RETURN FROM DEPLOYMENT

14-13.7-401. Procedure for terminating interim grant of custodial responsibility established by agreement. (1) AT ANY TIME AFTER RETURN FROM DEPLOYMENT, AN INTERIM AGREEMENT GRANTING CUSTODIAL RESPONSIBILITY UNDER PART 2 OF THIS ARTICLE MAY BE TERMINATED BY AN AGREEMENT TO TERMINATE SIGNED BY THE DEPLOYING PARENT AND THE OTHER PARENT.

(2) AN INTERIM AGREEMENT UNDER PART 2 OF THIS ARTICLE GRANTING CUSTODIAL RESPONSIBILITY TERMINATES:

(a) IF AN AGREEMENT TO TERMINATE UNDER SUBSECTION (1) OF THIS SECTION SPECIFIES A DATE FOR TERMINATION ON THAT DATE; OR

(b) IF THE AGREEMENT TO TERMINATE DOES NOT SPECIFY A DATE, ON THE DATE THE AGREEMENT TO TERMINATE IS SIGNED BY THE DEPLOYING PARENT AND THE OTHER PARENT.

(3) IN THE ABSENCE OF AN AGREEMENT TO TERMINATE UNDER SUBSECTION (1) OF THIS SECTION, AN INTERIM AGREEMENT GRANTING

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Page 14 of 17 CUSTODIAL RESPONSIBILITY TERMINATES UNDER PART 2 OF THIS ARTICLE THIRTY-FIVE DAYS AFTER THE DEPLOYING PARENT GIVES NOTICE TO THE OTHER PARENT THAT THE DEPLOYING PARENT RETURNED FROM DEPLOYMENT.

(4) IF AN INTERIM AGREEMENT GRANTING CUSTODIAL RESPONSIBILITY WAS FILED WITH A COURT PURSUANT TO SECTION 14-13.7-205, AN AGREEMENT TO TERMINATE THE INTERIM AGREEMENT MUST ALSO BE FILED WITH THAT COURT WITHIN A REASONABLE TIME AFTER THE SIGNING OF THE AGREEMENT. THE CASE NUMBER AND HEADING OF THE CASE CONCERNING CUSTODIAL RESPONSIBILITY OR CHILD SUPPORT MUST BE PROVIDED TO THE COURT WITH THE AGREEMENT TO TERMINATE.

14-13.7-402. Consent procedure for terminating interim grant of custodial responsibility established by court order. AT ANY TIME AFTER A DEPLOYING PARENT RETURNS FROM DEPLOYMENT, THE DEPLOYING PARENT AND THE OTHER PARENT MAY FILE WITH THE COURT AN AGREEMENT TO TERMINATE AN INTERIM ORDER FOR CUSTODIAL RESPONSIBILITY ISSUED UNDER PART 3 OF THIS ARTICLE.AFTER AN AGREEMENT HAS BEEN FILED, THE COURT SHALL ISSUE AN ORDER TERMINATING THE INTERIM ORDER EFFECTIVE ON THE DATE SPECIFIED IN THE AGREEMENT.IF A DATE IS NOT SPECIFIED, THE ORDER IS EFFECTIVE IMMEDIATELY.

14-13.7-403. Visitation before termination of interim grant of custodial responsibility. AFTER A DEPLOYING PARENT RETURNS FROM DEPLOYMENT UNTIL AN INTERIM AGREEMENT OR AN INTERIM ORDER FOR CUSTODIAL RESPONSIBILITY ESTABLISHED UNDER PARTS 2 OR 3 OF THIS ARTICLE IS TERMINATED, THE COURT SHALL IMMEDIATELY ISSUE AN INTERIM ORDER GRANTING THE DEPLOYING PARENT REASONABLE CONTACT WITH THE CHILD CONSISTENT WITH THE DEPLOYED PARENT'S POST DEPLOYMENT LEAVE, UNLESS THE COURT FINDS IT IS NOT IN THE BEST INTEREST OF THE CHILD, EVEN IF THE TIME OF CONTACT EXCEEDS THE TIME THE DEPLOYING PARENT SPENT WITH THE CHILD BEFORE DEPLOYMENT.

14-13.7-404. Termination by operation of law of interim grant of custodial responsibility established by court order. (1) IF AN AGREEMENT BETWEEN THE PARTIES TO TERMINATE AN INTERIM ORDER FOR CUSTODIAL RESPONSIBILITY UNDER PART 3 OF THIS ARTICLE HAS NOT BEEN FILED, THE ORDER TERMINATES THIRTY-FIVE DAYS AFTER THE DEPLOYING PARENT GIVES NOTICE TO THE OTHER PARENT AND ANY NONPARENT

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Page 15 of 17 GRANTED CUSTODIAL RESPONSIBILITY THAT THE DEPLOYING PARENT HAS RETURNED FROM DEPLOYMENT.

(2) A PROCEEDING SEEKING TO PREVENT TERMINATION OF AN INTERIM ORDER FOR CUSTODIAL RESPONSIBILITY IS GOVERNED BY SECTIONS 14-10-124 AND 14-10-129.

PART 5 MISCELLANEOUS PROVISIONS

14-13.7-501. Uniformity of application and construction. IN APPLYING AND CONSTRUING THIS UNIFORM ACT, CONSIDERATION MAY BE GIVEN TO THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT MATTER AMONG STATES THAT ENACT IT IF IT IS CONSISTENT WITH THE PUBLIC POLICY OF THE STATE.

14-13.7-502. Relation to electronic signatures in global and national commerce act. THIS ARTICLE MODIFIES, LIMITS, OR SUPERSEDES THE "ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT", 15 U.S.C. SECTION 7001, ET SEQ., BUT DOES NOT MODIFY, LIMIT, OR SUPERSEDE SECTION 101 (c) OF THAT ACT, 15 U.S.C. SECTION 7001 (c), OR AUTHORIZE ELECTRONIC DELIVERY OF ANY OF THE NOTICES DESCRIBED IN SECTION 103 (b) OF THAT ACT, 15 U.S.C. SECTION 7003 (b).

14-13.7-503. Savings clause. THIS ARTICLE DOES NOT AFFECT THE VALIDITY OF AN INTERIM COURT ORDER CONCERNING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT THAT WAS ENTERED BEFORE THE EFFECTIVE DATE OF THIS ARTICLE.

14-13.7-504. Effective date. THIS ARTICLE TAKES EFFECT JULY 1, 2013.

SECTION 3. In Colorado Revised Statutes, 14-13-102, amend (7) (b) as follows:

14-13-102. Definitions. As used in this article, unless the context otherwise requires:

(7) (b) Notwithstanding the provisions of paragraph (a) of this subsection (7), "home state" does not mean a state in which a child lived

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Page 16 of 17 with a parent or a person acting as a parent on a temporary basis as the result of an interim order entered pursuant to section 14-10-131.3 ARTICLE 13.7.

SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

______Mark Ferrandino John P. Morse SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES THE SENATE

______Marilyn Eddins Cindi L. Markwell CHIEF CLERK OF THE HOUSE SECRETARY OF OF REPRESENTATIVES THE SENATE

APPROVED______

______John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO

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