IN THE SUPERIOR COURT FOR THE COUNTY OF COWETA
 STATE OF GEORGIA

DONNA DELANIE HOOPER BEERY, ] Plaintiff,           ]

]

v.                                                                     ]           Civil Action Number 02-V-1243

]

JERE ALDEN BEERY,                               ]

Defendant

 

 

MOTION FOR NEW TRIAL
and/or
MOTION FOR RECONSIDERATION
and

MOTION FOR PROTECTIVE ORDER

 

 

COMES NOW, the Defendant in the above styled action, and files this Motion" for New Trial and/or Motion for Reconsideration and Motion for Protective Order", and states the following:

1.

This Honorable Court entered a Final Judgment and Decree of divorce on or about March 11, 2004, upon legal principles.

 

2.

As part of the Order, the Defendant was directed to pay to the Plaintiff, the sum of $500.00 per month beginning April 1, 2004 and continuing until March 1, 2008, unless sooner paid in full.

                                                                                  3.

The Courts' Order for alimony to the Plaintiff was based totally upon the periodic benefits received by the Defendant from the United States Veteran's Administration for a service-connected disability, resulting from injuries received by the Defendant 19 (nineteen) years prior to this marriage.

4.

Pursuant to Title 42, United States Code, Section 659 (h)(1)(A)(ii)(V), compensation paid to a former member of the Armed Forces for a service-connected disability is not attachable unless part of that compensation is a result of a waiver of a portion of retired or retainer pay, rendering part of the disability compensation to be a replacement for retirement or retainer pay. This code clearly states, in part " [M]oneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States ... to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States... were a private person, to legal process brought for the enforcement, against such individual of his legal obligations ... to make alimony payments." Entitlement of an individual to any money shall be deemed to be " 'based upon remuneration for employment,' if such money consists of. .. periodic benefits ... or other payments to such individual under ... any other system or fund established by the United States ... which provides for the payment of. .. retirement or retired pay. ... (not including ... any payments by the Veteran's Administration as compensation for a service-connected disability..., except any compensation paid by the Veteran's Administration to a former member of the Armed Forces who is in receipt of retired or retainer pay if such former member has waived a portion of his retired pay in order to receive such compensation)..." [Mansell,v._ Mansell, 490 U.S. 581 (1989), United States v. Murray, 158 Ga. App. 781 (1981)]

 

5.

 

This code is designed and implemented to be congruent with State law where child support and alimony is concerned and where retirement or retainer pay is deemed to be income. The code further pre-empts State law. where periodic payments for a service-connected disability, which is not remuneration for services rendered, is not considered to be income, but rather compensation for injuries suffered in service to the United States. The Defendant has never been eligible for, received, nor waived any portion of any retirement or retainer pay, deemed to be income and therefore the compensation he receives for his total service-connected disability is exempt from consideration in the calculation of spousal support.

 

6.

 

The Court's Order inadvertently assumes that Defendant's periodic disability benefit is income and necessarily subject to standard attachments, taxation, seizure, garnishment, etc. The benefits paid to the Defendant are compensatory in nature and not remuneration for employment or prior services, and therefore not being income, is not subject to standard attachments, taxation, seizure, garnishment, etc. as established by Federal Law.

 

7.

 

Further, as grounds for a new trial, Defendant states as follows:

 

(a)        The verdict of the Court is contrary to the evidence, and lacks

evidence to support such finding.

(b)        The verdict is decidedly and strongly against the weight of the

evidence.

(c)        "The verdict is contrary to the law and principles of justice and equity.

(d)        The judgment is void for want of jurisdiction over subject matter under the doctrine of pre-emption and therefore warrants a new trial, [O.C.G.A. § 9-12-161

 

WHEREFORE, for the reasons stated, and other reasons which. shall be addressed at a hearing on this matter, the Defendant requests the following:

 

(a)       That a new trial be granted;

 

(b)      That, in the alternative, the Court reconsider its judgment regarding payment of spousal support (alimony)

(c)        That the Defendant be protected from any action seeking a contempt citation for failure to comply with the terms of the Final Judgment and Decree previously entered, while these matters are being considered, and until further order of the Court,

         (d)       That the Court grant any further relief to the Defendant as deemed just and proper.

John Frederick Nebl -------------

Law Offices of John Frederick NebI, P.C.                                 Attorney for Defendant

1097 Lake Oconee Pkwy, Suite 202B                         GA State Bar # 536125

Eatonton, GA 31024

706-485-3344

Fax 706-923-0029

 

 

 

Respectfully submitted. this 9th' day of April, 2004..