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CourtListener opinion 11102129
Date unknown · US
- Extracted case name
- pending
- Extracted reporter citation
- 444 P.3d 165
- Docket / number
- pending
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 11102129 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to QDRO procedure / domestic relations order issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
Retrieval annotation
Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: QDRO procedure / domestic relations order issues
Evidence quotes
QDRO“l Thomas Iozzo Jr., pro se, Round Rock, Texas, Appellant. Amanda M. Lancaster, Turnagain Law, LLC, Anchorage, for Appellee. Before: Maassen, Chief Justice, and Carney, Borghesan, Henderson, and Pate, Justices. INTRODUCTION The superior court entered a Qualified Domestic Relations Order (QDRO) in a divorce action awarding a portion of the ex-husband's "disposable military retired pay" to the ex-wife upon his retirement. Seven years later the ex-husband retired, and the ex-wife began receiving her portion of his retirement pay. * Entered under Alaska Appellate Rule 214. The following year the ex-husband was approved for a form of milita”
retirement benefits“former spouse's share of retirement payments caused by a veteran's post-divorce waiver."). 23 Cf. Jones v. Jones, 505 P.3d 224, 233 (Alaska 2022) (upholding divorce agreement that "expressly provide[d] for indemnification in the event that [the ex- wife's] retirement benefits [were] affected by [the ex-husband's] receipt of disability pay"). 24 581 U.S. at 221. 25 10 U.S.C. § 1414 (2001); 10 U.S.C. § 1413a (2002); see also Guerrero v. Guerrero, 362 P.3d 432, 439 (Alaska 2015) ("[CRSC] allows veterans disabled in combat to receive compensation in lieu of retirement payments up to the amount waived to receive VA disability be”
domestic relations order“ozzo Jr., pro se, Round Rock, Texas, Appellant. Amanda M. Lancaster, Turnagain Law, LLC, Anchorage, for Appellee. Before: Maassen, Chief Justice, and Carney, Borghesan, Henderson, and Pate, Justices. INTRODUCTION The superior court entered a Qualified Domestic Relations Order (QDRO) in a divorce action awarding a portion of the ex-husband's "disposable military retired pay" to the ex-wife upon his retirement. Seven years later the ex-husband retired, and the ex-wife began receiving her portion of his retirement pay. * Entered under Alaska Appellate Rule 214. The following year the ex-husband was approved for a form of milita”
Source and provenance
- Source type
- courtlistener_qdro_opinion_full_text
- Permissions posture
- public
- Generated status
- machine draft public v0
- Review status
- gold label pending
- Jurisdiction metadata
- US
- Deterministic extraction
- reporter: 444 P.3d 165
- Generated at
- May 14, 2026
Related public corpus pages
Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite
such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL THOMAS IOZZO JR., )
) Supreme Court No. S-18986
Appellant, )
) Superior Court No. 3AN-15-05747 CI
v. )
) MEMORANDUM OPINION
KIMBERLY CHELSIE ) AND JUDGMENT*
TARPENNING, )
f/k/a Kimberly Iozzo, ) No. 2081 – March 19, 2025
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Una S. Gandbhir, Judge.
Appearances: Michael Thomas Iozzo Jr., pro se, Round
Rock, Texas, Appellant. Amanda M. Lancaster, Turnagain
Law, LLC, Anchorage, for Appellee.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
INTRODUCTION
The superior court entered a Qualified Domestic Relations Order (QDRO)
in a divorce action awarding a portion of the ex-husband's "disposable military retired
pay" to the ex-wife upon his retirement. Seven years later the ex-husband retired, and
the ex-wife began receiving her portion of his retirement pay.
*
Entered under Alaska Appellate Rule 214.
The following year the ex-husband was approved for a form of military
disability pay which by law replaced the retirement pay, and the payments to the ex-
wife ceased. She filed a motion for an order to show cause and to enforce the QDRO.
The ex-husband failed to respond and the court granted the ex-wife's motion, ordering
him to reinstate the retirement pay, reimburse the ex-wife for all missed payments, and
pay the ex-wife's attorney's fees and costs. The ex-husband moved for reconsideration,
which the court denied.
The ex-husband appeals, arguing both that he was not given proper notice
of the ex-wife's motion and that federal law forbids the marital division of his disability
pay. We conclude that the failure to provide notice was harmless, but that the ex-
husband's legal argument is correct: under federal law his disability benefits are not
subject to division in a state divorce action. We therefore reverse the superior court's
order.
FACTS AND PROCEEDINGS
A. Facts
Michael Iozzo Jr. and Kimberly Tarpenning married in 2002 and divorced
in 2015. As part of their property settlement, the court entered a QDRO which "entitled
[Tarpenning] to a portion of [Iozzo's] United States military retired pay."
Iozzo retired from the military in July 2022 and received his first
retirement payment in August. Payments to Tarpenning, governed by the Uniformed
Services Former Spouses' Protection Act (USFSPA), 1 apparently commenced a few
months later.
Iozzo asserts that in September 2022 he applied to the Department of
Veterans Affairs (VA) for disability benefits and in March 2023 he was given a
disability rating of 100%. He then applied for Combat-Related Special Compensation
1
10 U.S.C. § 1408 (2017).
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(CRSC), a form of disability pay, which was approved in August 2023. Shortly
thereafter Iozzo began receiving CRSC pay, which replaced his retirement pay entirely.
Accordingly, by letter dated August 31, 2023, the Defense Finance and Accounting
Service notified Tarpenning that her payments under the USFSPA were being
terminated "since the member is in a non-pay status."
B. Proceedings
1. Motion to show cause and enforce the QDRO
Tarpenning filed a motion to show cause and to enforce the QDRO in
October 2023. She asked "the Court to order [Iozzo] to show cause as to why he should
not be found in contempt of court for violating the [QDRO]," for the court to "enforce
the QDRO," and for associated attorney's fees and costs pursuant to Alaska Civil Rule
82(a). Tarpenning argued that because Iozzo "willfully elected to change his retirement
benefit," his actions amounted to a "willful failure to comply with the standing QDRO"
and he should be found in contempt of court.
Iozzo did not timely respond, and the superior court granted the motion to
show cause. Iozzo was ordered to "reinstate the retirement pay" and was made
"responsible for all back payments from the date of termination" and "attorney's fees
and costs for having to litigate this issue."
2. Iozzo's motion for reconsideration
Iozzo timely sought reconsideration on grounds that the court had
overlooked relevant law and important facts.2 First, he argued that Tarpenning's motion
to show cause failed to comply with the notice requirements of Alaska Civil Rule
5(g)(2).3 Second, he argued that his current form of military benefits was not subject
2
See Alaska R. Civ. P. 77(k)(1)(i)-(ii).
3
The rule provides: "[I]f a party appeared in his or her own behalf in the
prior action or proceeding, the paper served shall include notice to the party of the
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to division in divorce. He explained that upon retirement he had received "Concurrent
Retired and Disability Pay (CRDP)" 4 — a taxable reimbursement "classified as
‘disposable military retired pay' " and "subject to division for a former spouse" in
accordance with the USFSPA — but that the disability pay he later received in lieu of
CRDP was not "categorized as retirement pay" and therefore not covered by the QDRO.
He also asserted that the QDRO, which he noted was drafted by Tarpenning "with the
aid of legal counsel," does not include any provision for indemnification "in the event
that [he opted] to receive disability benefits instead of ‘disposable military retired
pay.' "
The superior court vacated its order granting the motion to show cause
and invited Tarpenning to file an opposition to Iozzo's motion for reconsideration,
which she did. The court then denied Iozzo's motion for reconsideration, again ordering
him to "reinstate the retirement pay, . . . [repay] all back payments from the date of
termination," and pay Tarpenning's "attorney's fees and costs for having to litigate this
issue." Iozzo appeals.
STANDARD OF REVIEW
"We interpret ‘our civil and appellate rules de novo, adopting the rule of
law which is most persuasive in light of precedent, policy, and reason.' "5 "[W]e review
a trial court's rulings on questions of law, and the application of law to fact, de novo
party's right to file written opposition or response, the time within which such
opposition or response must be filed, and the place where it must be filed."
4
See 10 U.S.C. § 1414(a) ("Payment of both retired pay and
compensation . . . (1) . . . Subject to subsection (b), a member or former member of the
uniformed services who is entitled for any month to retired pay and who is also entitled
for that month to veterans' disability compensation for a qualifying service-connected
disability . . . is entitled to be paid both for that month without regard to sections 5304
and 5305 of title 38.").
5
D&D Servs. v. Cavitt, 444 P.3d 165, 168 (Alaska 2019) (alteration
omitted) (quoting Licht v. Irwin, 292 P.3d 915, 918 (Alaska 2013)).
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and adopt the rule of law that is most persuasive in light of precedent, reason, and
policy." 6
DISCUSSION
Iozzo makes two arguments on appeal, one procedural and one
substantive. First, he argues that the superior court erred by granting Tarpenning's
motion for an order to show cause when the motion failed to comply with the notice
requirements of Alaska Civil Rule 5(g)(2). Second, he argues that the court's order
conflicts with controlling federal law, which provides that his CRSC benefits are not
retirement pay that is subject to division in state divorce proceedings. Though Iozzo's
procedural argument has merit, we conclude that it does not require reversal because
the failure of notice was ultimately harmless. But Iozzo is correct that the court's order
that he reinstate his retirement pay and repay Tarpenning for past amounts conflicts
with controlling federal law and must be reversed.
A. Tarpenning's Failure To Comply With Civil Rule 5(g)(2) Was
Ultimately Harmless.
Iozzo contends that Tarpenning's motion to show cause did not comply
with Civil Rule 5(g)(2), meaning that he lost the opportunity for input before the motion
was granted. Rule 5(g)(2) governs service after a final judgment on a party who
"appeared in his or her own behalf" in the prior proceeding. 7 It requires that if a paper
is served on the party a year or more after the last time any paper was filed in the action,
"the paper served shall include notice to the party of the party's right to file written
6
Gross v. Wilson, 424 P.3d 390, 395 (Alaska 2018) (quoting Rockstad v.
Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).
7
Alaska R. Civ. P. 5(g)(2). The final judgment here was the parties' prior
divorce decree.
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opposition or response, the time within which such opposition or response must be filed,
and the place where it must be filed." 8
Tarpenning's motion did not comply with Rule 5(g)(2). The motion itself
did not contain any of the required information, and the email from Tarpenning's lawyer
transmitting the motion merely read "Good Morning, Please see attached."
But a failure to comply with service rules does not warrant reversal if it
was harmless.9 Here, after the motion to show cause was granted without proper notice,
Iozzo moved for reconsideration. The court vacated the order granting the motion to
show cause and invited Tarpenning to file an opposition, which she did. Although the
court ultimately denied Iozzo's motion, it appears to have considered its substance and
reached a decision on the merits. Because the remedy for a failure to provide Rule 5(g)
notice would be to hear the arguments that would have been presented had proper notice
been given — and because the court did that — the Rule 5(g) violation was harmless.10
8
Id. (emphasis added).
9
Cf. Murat v. F/V Shelikof Strait, 793 P.2d 69, 73 (Alaska 1990) (noting
that "mere service on a party rather than on a party's attorney in violation of the civil
rules [including Rule 5(e)] will not render a judgment void, but will instead subject it
to possible reversal based on the particular circumstances of the individual case");
Kenai Peninsula Borough v. Eng. Bay Vill. Corp., 781 P.2d 6, 10 (Alaska 1989)
(explaining that issuing default judgment without adequate notice "should not
ordinarily be regarded as rendering the underlying judgment void," but rather that error
"should be considered in the light of the surrounding circumstances," potentially
rendering it harmless (quoting 7 J. MOORE ET. AL., MOORE'S FEDERAL
PRACTICE ¶ 60.25[2], at 60–237 to –238 (2d ed. 1985))), overruled on other grounds
by Hatten v. Hatten, 917 P.2d 667, 671 (Alaska 1996).
10
The obligation to comply with Rule 5(g)(2) falls on the party serving the
paper, but courts should take reasonable steps to ensure compliance.
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B. State Courts Cannot Mandate Selection Of Military Retirement Pay
Or Repayment Of Waived Retirement Pay.
Iozzo's substantive argument on appeal is that it was contrary to
controlling federal law for the superior court to mandate termination of the CRSC,
reinstatement of divisible retirement pay, and repayment of past amounts to Tarpenning.
He argues that the United States Constitution's Supremacy Clause, the USFSPA, and
federal case law all make different aspects of the order improper. His claims have merit;
not only federal statutes and case law but also our own case law require reversal of the
superior court's order.
The USFSPA provides that "a court may treat disposable retired pay . . .
as property of the [former service] member and his spouse" upon divorce. 11 But the
statute expressly excludes amounts "deducted from the retired pay . . . [that were]
waive[d]" to receive combat-related disability pay.12 In Howell v. Howell the United
States Supreme Court interpreted this language from the USFSPA to hold that any
attempt to circumvent the statute and effectively divide property by nominally ordering
"reimbursement [or] indemnification" would "displace the federal rule and stand as an
obstacle to the accomplishment and execution" of federal objectives. 13
The facts of Howell are similar to those of Iozzo's case. In Howell, an ex-
wife was awarded and received half of her ex-husband's military retirement pay.14 The
ex-husband later "elected to receive disability benefits and consequently had to waive
about $250 per month of the roughly $1,500 of military retirement pay he shared."15
Arizona courts held that the ex-wife was entitled to the waived portion because the
11
10 U.S.C. § 1408(c)(1).
12
10 U.S.C. § 1408(a)(4)(A)(ii); 38 U.S.C. §§ 1101–76.
13
581 U.S. 214, 222 (2017).
14
Id. at 218-19.
15
Id. at 219.
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amount she was owed had "vested" at the time of divorce — prior to the ex-husband's
election of disability pay. 16 They further ordered the ex-husband "to indemnify [his ex-
wife] for the reduction." 17 But the Supreme Court disagreed, explaining that post-
divorce waiver was irrelevant because the ex-wife's interest had not yet vested; the ex-
husband's "military retirement pay at the time it came to [the ex-wife] was subject to
later reduction (should [the ex-husband] exercise a waiver to receive disability benefits
to which he [was] entitled)." 18 The Supreme Court also expressly rejected any attempt
to circumvent the law by relabeling the order "as [one] requiring [the ex-husband] to
‘reimburse' or ‘indemnify' [the ex-wife], rather than an order that divides property,"
noting that "[t]he difference is semantic and nothing more."19 It therefore reversed the
Arizona decision, concluding that federal law preempted any state-imposed division of
waived retirement pay. 20
In short, it is settled law that military retirement pay waived to receive
disability pay is not divisible marital property. The order now under review — that
Iozzo "reinstate the retirement pay and [reimburse Tarpenning] for all back payments
from the date of termination" — is what Howell expressly prohibits: requiring a
disabled veteran who elected to take disability after the divorce to "reimburse" a former
16
Id.
17
Id.
18
Id. at 221-22 ("Accordingly, while the divorce decree might be said to
‘vest' [the ex-wife] with an immediate right to half of [the ex-husband's] military
retirement pay, that interest is, at most, contingent, depending for its amount on a
subsequent condition: [the ex-husband's] possible waiver of that pay.").
19
Id. at 222 ("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.").
20
Id. at 223.
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spouse for the retirement pay given up in exchange.21 We have necessarily followed
Howell. 22 And as Iozzo points out, the QDRO — which was drafted by Tarpenning
and her counsel — entitles Tarpenning only to "a portion of [Iozzo's] United States
military retired pay." While divorcing spouses may contract to receive reimbursement
for waived retirement pay, the parties do not appear to have made such a contract here.23
The QDRO entitles Tarpenning only to a share of Iozzo's "military retirement pay" —
an amount Howell makes clear is "subject to later reduction" and excludes any amount
waived to receive disability pay instead.24
Tarpenning's arguments are not persuasive. First, she asserts that "when
the parties['] QDRO was drafted and signed [in 2015] CRDP and CRSC did not exist."
This is simply not true, as CRDP was created in 2001 and the CRSC in 2002.25
21
Id. at 222.
22
Gross v. Wilson, 424 P.3d 390, 400 (Alaska 2018) ("[Howell's] holding
abrogates our decisions to the extent they authorize indemnification for reductions in a
former spouse's share of retirement payments caused by a veteran's post-divorce
waiver.").
23
Cf. Jones v. Jones, 505 P.3d 224, 233 (Alaska 2022) (upholding divorce
agreement that "expressly provide[d] for indemnification in the event that [the ex-
wife's] retirement benefits [were] affected by [the ex-husband's] receipt of disability
pay").
24
581 U.S. at 221.
25
10 U.S.C. § 1414 (2001); 10 U.S.C. § 1413a (2002); see also Guerrero v.
Guerrero, 362 P.3d 432, 439 (Alaska 2015) ("[CRSC] allows veterans disabled in
combat to receive compensation in lieu of retirement payments up to the amount waived
to receive VA disability benefits. [CRDP] is a phase-in program allowing qualifying
disabled veterans to receive VA disability pay while waiving incrementally smaller
amounts of retirement pay and providing for receipt of full retirement for all qualified
disabled veterans pay by 2014." (footnote omitted)); and see Jordan v. Jordan, 480 P.3d
626, 635 (Alaska 2021) ("But in 2004 Congress modified the VA waiver requirements
and its consequences by providing for concurrent receipt of retired pay and disability
benefits for certain classes of eligible retirees." (quotation marks, alterations, and
citation omitted)).
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Tarpenning next argues that "[t]he crux of the issue . . . is whether [Iozzo]
maliciously elected to change" his retirement pay to prevent her from "receiving the
pay outlined in the QDRO" and whether doing so "violated the QDRO." But she does
not identify any evidence that Iozzo was motivated by malice rather than financial
considerations, nor does she point to any legal authority suggesting that a valid election
of disability benefits may be invalidated by subjective intent. And Iozzo's election did
not "violate[] the QDRO." The QDRO entitles Tarpenning only to Iozzo's "disposable
military retirement pay"; it does not mandate that he elect such pay over other available
options.
Next, Tarpenning argues that "[u]nder contract theory" and promissory
estoppel we should enforce the parties' QDRO and divorce agreement. While
Tarpenning likely waived this argument by not raising it below,26 even if properly raised
it is not persuasive. First, as just explained, the QDRO remains subject to enforcement
— there is simply no retirement pay to distribute. And second, Tarpenning merely lists
the elements of promissory estoppel and, without factual support, asserts that "all [the]
elements . . . have been met." Even if there were a contract enforcement issue, this
conclusory legal assertion does not resolve it.
Finally, Tarpenning attempts to mischaracterize Iozzo's arguments,
claiming that he "cites Howell v. Howell but again he does not fully brief the issues in
before [sic] the Court." But Iozzo sufficiently and persuasively briefs Howell, and
Tarpenning makes no argument — nor does one seem to exist — that the case does not
control. The order mandating the reinstatement of retirement pay and reimbursement
of past amounts was therefore erroneous.
26
See Jones, 505 P.3d at 233 ("A party may not raise an issue for the first
time on appeal." (quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska
2001))).
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CONCLUSION
The superior court's order mandating reinstatement of retirement pay,
reimbursement of back payments, and payment of attorney's fees is REVERSED.
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