{ "contract_version": "1.0.0-draft.1", "data_as_of": "2026-08-06T02:50:22Z", "record": { "authority_type": "opinion", "body": "Judicial opinion", "canonical_key": { "content_hash": "306071073d64adcb", "source": "courtlistener" }, "citation_aliases": [ { "confidence": 0.7, "display_value": "Russ v. Russ", "normalized_value": "russ-v-russ-81eb260d", "scheme": "case-name", "source_id": "src:v1:us:opinion:courtlistener" } ], "court": null, "created_at": "2026-08-06T02:50:22Z", "heading": "Russ v. Russ", "identity_state": "complete", "jurisdiction": "us-federal", "kind": "authority_record", "record_id": "rec:v1:623b9b08-a16d-7f8a-8a72-3cd259087ee3", "schema_version": "1.0.0-draft.1", "slug": "russ-v-russ-81eb260d", "title": "Russ v. Russ" }, "verification": { "active_defect_ids": [], "as_of": "2026-08-05", "computed_at": "2026-08-06T02:50:22Z", "currentness": "2021-04-01", "grade": "B", "input_sha256": "306071073d64adcbd93bdd92123b3a2e4cf037a6c4d9138bff3f6ffa2620de0a", "kind": "verification", "limitations": [ "Text was ingested from CourtListener public full text.", "Not yet matched byte-for-byte to an official court/reporter PDF or HTML edition.", "Treat as researchable public law text with an open official-verification task." ], "official_receipts": [], "policy_version": "grade-policy-v1-bulk-courtlistener", "reason": "CourtListener public full text captured with content hash; not yet matched to an official court or reporter edition.", "reason_code": "courtlistener_public_full_text_unverified_against_official_reporter", "schema_version": "1.0.0-draft.1", "source_classes": [ "independent_structured_corpus" ], "verified_at": null, "version_id": "ver:v1:2aeddc6c-3ebe-7f84-8129-4a316f658748" }, "version": { "current_through": "2021-04-01", "decision_date": "2021-04-01", "effective_date": null, "finality_status": "public_full_text_unverified", "kind": "authority_version", "normalization_warnings": [ "Bulk CourtListener import; official reporter comparison pending." ], "normalized_text_sha256": "306071073d64adcbd93bdd92123b3a2e4cf037a6c4d9138bff3f6ffa2620de0a", "observed_at": "2026-08-06T02:50:22Z", "parser_id": "bulk-courtlistener-v1", "parser_version": "1", "primary_text": "Office of the Director New Mexico\n 13:44:27 2021.04.27 Compilation\n '00'06- Commission\n\n IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\n\nOpinion Number: 2021-NMSC-014\n\nFiling Date: April 1, 2021\n\nNo. S-1-SC-37962\n\nANGELA RUSS,\n\n Petitioner-Respondent,\n\nv.\n\nJEFFERY L. RUSS,\n\n Respondent-Petitioner,\n\nNEW MEXICO HUMAN SERVICES\nDEPARTMENT,\n\n Intervenor.\n\nORIGINAL PROCEEDING ON CERTIORARI\nDebra Ramirez, District Judge\n\nReleased for Publication May 4, 2021.\n\nL. Helen Bennett, P.C.\nLinda Helen Bennett\nAlbuquerque, NM\n\nCortez & Hoskovec, LLC\nM. Michelle Cortez\nAlbuquerque, NM\n\nfor Respondent-Petitioner\n\nNew Mexico Family Law, P.C.\nAmanda Ann Aragon\nAlbuquerque, NM\n\nfor Petitioner-Respondent\n\n OPINION\n\nTHOMSON, Justice\n {1} The Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408\n(2018), establishes that states \"may treat veterans' disposable retired pay as divisible\nproperty, i.e., community property divisible upon divorce.\" Howell v. Howell, ___ U.S.\n___, 137 S. Ct. 1400, 1403 (2017) (internal quotation marks and citation omitted).\nHowever, 10 U.S.C. § 1408(a)(4)(A)(ii) \"expressly exclude[s] from its definition of\n‘disposable retired pay' amounts deducted from that pay ‘as a result of a waiver . . .\nrequired by law in order to receive' disability benefits.\" Howell, 137 S. Ct. at 1403\n(alteration in original) (quoting 10 U.S.C. § 1408(a)(4)(A)).\n\n{2} The United States Supreme Court announced this rule in Mansell v. Mansell, 490\nU.S. 581 (1989), and \"held that federal law forbade [a state] from treating the waived\nportion as community property divisible at divorce.\" Howell, 137 S. Ct. at 1403. The\nHowell Court applied the Mansell rule and clarified that even if the waiver \"of the\nretirement pay in order to receive nontaxable disability benefits\" occurs \"[l]ong after the\ndivorce,\" a state may not \"subsequently increase, pro rata, the amount the divorced\nspouse receives each month from the veteran's retirement pay in order to indemnify the\ndivorced spouse for the loss caused by the veteran's waiver.\" Howell, 137 S. Ct. at\n1402.\n\n{3} When Angela Russ (Spouse) and Jeffery Russ (Veteran) divorced, they agreed\nto divide Veteran's military retirement pay as part of the community property.\nNonetheless, about eight years after their divorce, Veteran waived his retirement pay in\norder to receive a disability benefit from the federal government. His waiver occurred\nafter Mansell was issued, but before Howell was issued. The question presented to this\nCourt is whether the Court of Appeals correctly determined that Howell does not apply\nto this case.\n\n{4} If the Howell Court's application of the Mansell rule applies, Veteran may\nunilaterally change his federal benefit as he did. This change precludes Spouse from\nreceiving any of his retirement benefit from the federal government, regardless of what\nhe agreed to when they divorced. If the Howell Court's application of the Mansell rule\ndoes not apply, then Veteran must indemnify Spouse for her share of his waived\nretirement benefit. Although equitable principles may suggest that we should determine\nthat Howell does not apply in this case, the Supremacy Clause of the federal\nconstitution, U.S. Const. art. VI, cl. 2, precludes that application of equity.\n\n{5} \"The Supremacy Clause, U.S. Const., Art. VI, cl. 2, does not allow federal\nretroactivity doctrine to be supplanted by the invocation of a contrary approach to\nretroactivity under state law.\" Harper v. Virginia Dep't of Tax'n, 509 U.S. 86, 100 (1993).\nIn other words, a New Mexico court must apply federal law, not state law, to determine\nthe retroactivity of a federal rule announced by the United States Supreme Court.\nNonetheless, the Court of Appeals determined that Howell, 137 S. Ct. 1400, \"does not\napply retroactively in New Mexico.\" Russ v. Russ, 2020-NMCA-008, ¶ 20, 456 P.3d\n1100. Therefore, we reverse the Court of Appeals because that court based its decision\non New Mexico law instead of the applicable, controlling federal law.\n BACKGROUND\n\n{6} Veteran and Spouse married in 1993. They separated in 2006, and in May of that\nyear, they entered into a Marriage Settlement Agreement (Agreement), which became\npart of the district court's Final Decree of Dissolution of Marriage. The Agreement\nprovided that (1) Veteran had an interest in his \"retired military pay\" which \"is divisible in\ndivorce proceedings\"; and (2) \"as a compromise division of community assets [the\nparties] have stipulated and agreed that [Spouse] shall receive 50% of [Veteran's]\ndisposable retired pay which was earned during the term of [the parties'] marriage.\"\n\n{7} In 2014, Veteran waived his entitlement to retired military pay in order to instead\nreceive Combat Related Special Compensation (CRSC), a disability benefit. See 10\nU.S.C. §1408(a)(4)(A)(ii) (excluding from the definition of \"disposable retired pay\" that\namount of retired pay waived as \"required by law in order to receive compensation\" for a\nveteran's disability benefit); 10 U.S.C. § 1413a(b)(2) (2018) (establishing criteria for\ndetermining the amount of compensation due to an \"eligible combat-related disabled\nuniformed services retiree\" who elects such benefits in lieu of receiving \"retired pay\").\n\n{8} The Defense Finance Accounting Service notified Spouse that Veteran waived all\nof his retirement benefits to instead receive CRSC, which meant that she would no\nlonger receive a portion of his retired pay. Spouse filed an emergency motion to enforce\nthe Agreement with the district court and argued that Veteran's election to receive a\ndisability benefit in lieu of military retired pay and effectively reducing Spouse's benefits\nwas prohibited under New Mexico law. Spouse asked the district court to order Veteran\n\"to reimburse [her] for underpayment of her portion of his military retirement pay with\ninterest.\"\n\n{9} Following a trial on the matter, the district court entered a judgment in favor of\nSpouse and determined, relevant to this appeal:\n\n (1) on \"May 1, 2011, [Veteran] applied for and elected to receive the\n Veteran's Administration Waiver . . . and Concurrent Retirement and\n Disability Pay . . . or [CRSC]\";\n\n (2) on \"May 1, 2014, [Veteran] began receiving the military disability pay\n referred to as [CRSC]\";\n\n (3) \"military disability pay is not divisible as community property upon\n divorce\";\n\n (4) Veteran \"cannot escape the responsibility of paying [Spouse] what the\n parties agreed she earned during the time that he served in the military,\n no matter what name is attributed to that compensation or the source from\n which he pays her\"; and therefore,\n\n (5) Veteran \"owes [Spouse] a total in military retirement arrears of\n $22,243.09.\"\n Veteran appealed the determination that he must indemnify Spouse for the waived\namounts of retired military pay; Spouse cross-appealed other determinations that do not\nconcern the issue on appeal to this Court.\n\n{10} The Court of Appeals sought a solution in equity, framing the question as: \"what\nremains owed to [Spouse] after [Veteran] waived his [military retirement pay] in\nexchange for receiving disability-based Combat Related Special Compensation\n(CRSC).\" Russ, 2020-NMCA-008, ¶ 1. The Court of Appeals determined that the United\nStates Supreme Court in Howell permitted Veteran's unilateral election to receive CRSC\nin lieu of a retired pay and prohibited a district court from ordering a veteran who elects\nto receive CRSC to reimburse the veteran's spouse for waived retired pay. Id. ¶ 9.\nHowever, the Court of Appeals determined that the Howell Court announced a new rule\nof federal law, id. ¶ 17, and that there was \"sufficient reason under still-applicable New\nMexico precedent to deny retroactive application of Howell,\" id. ¶ 1. The Court of\nAppeals therefore affirmed the district court's judgment that ordered Veteran to\nreimburse Spouse. Id. ¶ 21. Veteran petitioned this Court for a writ of certiorari, which\nwe granted.\n\nANALYSIS\n\n{11} The Court of Appeals applied New Mexico law to determine that Howell does not\napply retroactively in New Mexico. Id. ¶¶ 15, 20. But federal law does not allow states to\napply their own law to supplant a rule of federal law in this instance. U.S. Const., art. VI,\ncl. 2; Harper, 509 U.S. at 100.\n\nA. Standard of Review\n\n{12} This Court reviews legal questions, for example, whether federal law preempts\nstate law, de novo. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126\nN.M. 396, 970 P.2d 582 (stating that \"[w]e review . . . legal questions de novo\").\n\nB. Howell Must Be Applied Retroactively\n\n{13} New Mexico generally presumes that a rule of law announced in a civil case\napplies retroactively. Beavers v. Johnson Controls World Servs, Inc., 1994-NMSC-094,\n¶ 21, 118 N.M. 391, 881 P.2d 1376. This presumption applies unless there is \"an\nexpress declaration, in the case announcing the new rule,\" that clarifies whether the rule\nis intended to operate retroactively or \"intended to operate with modified or selective (or\neven, perhaps pure) prospectivity.\" Id. ¶ 22. \"Absent such a declaration, the\npresumption may be overcome by a sufficiently weighty combination of one or more . . .\nfactors.\" Id. (recognizing the three-factor test adopted from Chevron Oil Co. v. Huson,\n404 U.S. 97, 106-107 (1971)).\n\n{14} However, Howell was issued by the United States Supreme Court and\nannounced or applied a rule of federal law. See 137 S. Ct. at 1405-06. In contrast to\nNew Mexico law, the United States Supreme Court abandoned the practice of\n presuming retroactivity and of the applicability of the Chevron Oil three-factor test.\nSpecifically, the United States Supreme Court stated:\n\n When [the United States Supreme Court] applies a rule of federal law to\n the parties before it, that rule is the controlling interpretation of federal law\n and must be given full retroactive effect in all cases still open on direct\n review and as to all events, regardless of whether such events predate or\n postdate [the Court's] announcement of the rule.\n\nHarper, 509 U.S. at 97; see also Beavers, 1994-NMSC-094, ¶ 22 (acknowledging the\nnew \"hard-and-fast rule\" that applies to federal cases). In other words, when a new\nfederal rule of law is announced by the United States Supreme Court in a civil case it\nalways applies retroactively. Harper, 509 U.S. at 97.\n\n{15} The rule announced by the Harper Court governs the retroactive effect of Howell\nand clearly establishes that Howell must be given full retroactive effect. Id. The Court of\nAppeals observed that \"[t]he United States Supreme Court did not explicitly state\nwhether its opinion in Howell should apply retroactively or prospectively\" and applied\n\"the three-factor Beavers test\" to conclude that \"Howell does not apply retroactively in\nNew Mexico.\" Russ, 2020-NMCA-008, ¶¶ 14-20. The Court of Appeals conclusion\nignores the federal rule announced in Harper.\n\n{16} The fact that the United States Supreme Court did not explicitly state that Howell\napplies retroactively is irrelevant to the analysis here. See Harper, 509 U.S. at 97;\naccord Beavers, 1994-NMSC-094, ¶ 22. The United States Supreme Court has\nexpressly stated that when it applies a rule of federal law it is the \"controlling\ninterpretation of federal law and must be given full retroactive effect.\" Harper, 509 U.S.\nat 97, 100 (\"The Supremacy Clause, U.S. Const., Art. VI, cl. 2, does not allow federal\nretroactivity doctrine to be supplanted by the invocation of a contrary approach to\nretroactivity under state law.\"). Howell must be given retroactive application.\n\nC. Howell Does Not Prohibit a District Court From Considering Deeply Rooted\n Moral Obligations Such as Familial Obligations\n\n{17} Federal law preempts any state from treating \"as property divisible upon divorce\nmilitary retirement pay that has been waived to receive veterans' disability benefits.\"\nMansell, 490 U.S. at 594-595. Federal law also preempts states from \"increas[ing], pro\nrata, the amount the divorced spouse receives each month from the veteran's\nretirement pay in order to indemnify the divorced spouse for the loss caused by the\nveteran's waiver,\" even when that waiver occurs \"[l]ong after the divorce.\" Howell, 137\nS. Ct. at 1402.\n\n{18} The rule applied in Howell may seem inequitable. It allows a veteran to\nunilaterally decide to convert a divisible community asset into a nondivisible personal\nasset long after an agreement was reached or an initial division of property rights was\ndetermined. See, e.g., In re Marriage of Cassinelli, 229 Cal. Rptr. 3d 801, 808 (2018)\n(\"Because CRSC is not retired pay—just as veteran's disability benefits are not retired\n pay—under [USFSPA] as construed in Mansell, a state court does not have jurisdiction\nto treat CRSC as community property.\"). The Howell Court \"recognize[d] . . . the\nhardship that congressional pre-emption can sometimes work on divorcing spouses.\"\n137 S. Ct. at 1406. Nevertheless, Howell is federal law, and our courts are bound by\nHarper, the Supremacy Clause, and the principles of federalism.\n\n{19} Yet, New Mexico courts are not powerless to seek a just result. \"[A] family court\n. . . remains free to take account of . . . reductions in value when it calculates or\nrecalculates the need for spousal support.\" Howell, 137 S. Ct. at 1406. The United\nStates Supreme Court has stated that \"[v]eterans' disability benefits compensate for\nimpaired earning capacity . . . and are intended to provide reasonable and adequate\ncompensation for disabled veterans and their families.\" Rose v. Rose, 481 U.S. 619,\n630 (1987) (internal quotation marks and citation omitted). In general, the amount of\ndisability benefits \"belies . . . that Congress intended these amounts alone to provide for\nthe support of the children of disabled veterans.\" See id. at 630-31 (discussing veterans'\nbenefits under another section of the United States Code).\n\n{20} Thus, the district court may address Spouse's contention that additional\ncontribution is required from Veteran depending on the circumstances presented. See\nHowell, 137 S. Ct. at 1406; see also Rule 1-060(B) NMRA (providing circumstances\nunder which, \"[o]n motion and on such terms as are just, the court may relieve a party or\nthe party's legal representative from a final judgment, order, or proceeding\"). The district\ncourt should not rest its decision on the need to indemnify Spouse or replace her portion\nof Veteran's retirement benefit. Instead, the district court should direct its attention\ntoward the \"family support obligations [which] are deeply rooted moral responsibilities\"\nrather than an agreement concerning the division of community property. 1 Rose, 481\nU.S. at 631-32 (identifying an exception for additional contribution when the\ndetermination is based on moral obligations rather than a \"business relationship\"\nbetween spouses for their mutual financial benefit).\n\nCONCLUSION\n\n{21} Based on the foregoing, we reverse the Court of Appeals determination that\nHowell is not given full retroactive effect in New Mexico and remand for further\nproceedings consistent with this opinion.\n\n{22} IT IS SO ORDERED.\n\n1See, e.g., Alwan v. Alwan, 830 S.E.2d 45, 48 (Va. Ct. App. 2019) (distinguishing Howell by concluding\nthat \"it said nothing about the propriety of a state court's consideration of military disability benefits as a\nsource of funds in making a child support award\" (emphasis added)); Matter of Braunstein, 236 A.3d 870,\n876 (N.H. 2020) (same) cert. denied, No. 20-267, ___ S. Ct. ___, 2020 WL 6551782 (Nov. 9, 2020); Lesh\nv. Lesh, 809 S.E.2d 890, 899 (N.C. Ct. App. 2018) (same); Phillips v. Phillips, 820 S.E.2d 158, 163-164\n(Ga. Ct. App. 2018) (vacating the trial court's order in part because it \"overstepped its authority\" by\nordering the husband to indemnify the wife if he elected to convert military retired pay to disability pay, but\nremanding and noting that \"the trial court has a broad discretion to make an equitable division of [the\nmarital property] upon consideration of all the relevant evidence\") (alteration in original) (internal quotation\nmarks and citation omitted).\n DAVID K. THOMSON, Justice\n\nWE CONCUR:\n\nMICHAEL E. VIGIL, Chief Justice\n\nBARBARA J. VIGIL, Justice\n\nC. SHANNON BACON, Justice", "publication_date": "2021-04-01", "publication_status": "public", "record_id": "rec:v1:623b9b08-a16d-7f8a-8a72-3cd259087ee3", "schema_version": "1.0.0-draft.1", "source_locators": [ { "artifact_id": "art:v1:eb74aab5-32fb-7f63-84ea-cd49663410bf", "locator": "full-text", "quote_sha256": "306071073d64adcbd93bdd92123b3a2e4cf037a6c4d9138bff3f6ffa2620de0a" } ], "status": "current", "structure_sha256": "306071073d64adcbd93bdd92123b3a2e4cf037a6c4d9138bff3f6ffa2620de0a", "text_scope": { "excludes": [ "footer", "navigation", "annotations", "headnotes", "summaries", "editorial_content" ], "includes": [ "opinion_body" ] }, "version_id": "ver:v1:2aeddc6c-3ebe-7f84-8129-4a316f658748" } }