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Child Support and the Absurd Mythology of Rose

Copyright © July 2, 2018
by Robert Terrien

Contact the AuthorDownload PDF copy of report.

November 18, 2018 marks the 30th anniversary of the Veterans Judicial Review Act in which Congress fixed the loophole revealed by the US Supreme Court in Rose v. Rose.



First Word: Summary

In the day or two it takes you to read this report and actually verify all the facts, at least 20 more veterans will have committed suicide. 1 Even more will have died from the side effects of poverty and homelessness, because many of these veterans are illegally stripped of their disability benefits. When that happens, the benefits die with the veteran and the dependents suffer loss and hardship, all over again.

Veterans with disability are the most common, most vulnerable, and thanks to the Absurd Mythology of Rose, they are the most lucrative targets of predatory legal and financial discrimination and fraud in America.

Predators and parasites have used Rose v. Rose, 481 U.S. 619 (1987) to line their pockets with veteran benefits for over 30 years. These particular attorneys create an illusion of jurisdiction to hide the illegal use of veteran disability compensation benefits to make defacto alimony orders, wrapped up as child support orders, with piggy-back judgment of attorney fees and a cherry on top. Family courts gobble that up without consideration of the long-term effect on families or the immediate effect upon veterans.

Children always get caught in the crossfire. They are used as meal tickets or bargaining chips. Custodial interference and parental alienation are the standards, but false claims of domestic abuse are frequent as well. This is not the only reason veterans become homeless and suicidal, but it is one of the most common. Families, the fabric of our nation, are being torn apart at a cost in the millions of dollars.

I am not an attorney and this is not legal advice. It is the product of investigative journalism to save lives and help families. The chances of any disabled veteran finding competent legal protection are slim to none because attorneys are creatures of profit. There is no money in protecting disabled veterans, so they just don’t bother. Almost all of them believe in the Mythology of Rose, so none of them lift a finger to verify the facts or law. As a result, most disabled veterans end up in family court without protection and former spouses always seem to have parasites.

The fraud has become such a routine that most judges do not even notice their own acts of discrimination against these disabled people, just because they are veterans. They simply regurgitate Rose to evade their responsibility to take judicial notice of the fact that veteran benefits have not come under state jurisdiction since 1988.

I am not disputing the natural fact of our responsibility to provide support for our children regardless of veteran or disability status. I am simply addressing what has become 30 years of fraud concealed by the rhetoric of child support and Rose Mythology.

Having a child support order is fine. It goes with the territory. State courts obviously hold jurisdiction to enforce VALID child support orders, even with contempt for willful disobedience. On the other hand, states do not have jurisdiction to use veterans benefits for support orders because they are preempted entirely by positive law. State orders using veteran benefits or violating due process to hide discrimination with are NOT VALID or enforcible. The problem is they use elaborate rituals based on Rose to hide the fact they are depleting veteran benefits without jurisdiction.

The entire foundation of Rose Mythology is that ‘Congress could not possibly have the power to enact a law which takes the payment of veterans benefits out of the state jurisdiction of domestic relations.’ That concept is patently absurd and ignorant. Veterans benefits are not part of domestic relations, so they do not have to be removed.

Congress did not have to enter domestic relations to prevent veterans benefits from coming under state jurisdiction. In 1988, they simply removed all of Title 38 from state jurisdiction by amending §211. This amendment is preemptive of all state law and jurisdiction to control veteran benefits directly or indirectly, regardless of the arguments presented in Rose. The Supreme Court pointed out that sections §211, §3101 and §3107 did not happen to preempt state jurisdiction as written at the time, so IF Congress had intended to do so, it was up to them to enact positive law to fix it. They did.

Section 101 of the “Veterans Judicial Review Act” (VJRA) 2 opens with the answer to Rose where House Bill 5288 3 was incorporated into Senate Bill 11. 4 Congress responded to Rose by the ‘direct enactment of positive law’ to supersede the Supreme Court, just like they did after the Hisquierdo 5 and McCarty 6 decisions. Ever since then, veteran benefits are totally off limits to state jurisdiction, even for alimony or child support orders. They cannot be used as income for "any legal or equitable purpose whatever." The case of Rose has no precedent to allow states to control the distribution of veteran benefits or to leverage those benefits by holding the veteran in contempt. It is absolutely clear that veteran benefits do not come under state jurisdiction, therefore do not enter domestic relations at all. The only way for states to continue to deplete veteran benefits was to commit fraud, so they have.
That’s it in a nutshell.

For The Past 30 Years, Every Single Order Based On Rose Is A Fraud.



Law and Jurisdiction

Decisions made by the U.S. Department of Veterans Affairs (VA) are qualified legal determinations of employment disability, based upon the documented medical facts. VA holds exclusive jurisdiction of all law and fact regarding veteran benefits, to include eligibility of beneficiaries, evaluation of employment disability of medical conditions, control of the payment and/or apportionment of benefits. States have no authority to interfere with VA jurisdiction by redirecting veteran benefits or interpret the meaning of positive law, no matter what state laws says.

Family support proceedings are not disability proceedings, so they have no inherent jurisdiction on the subject of disability. Once employment disability is determined by any qualified state or federal authority with proper jurisdiction, the family court has no authority to question or contradict it. The fact of employment disability must be taken at face value and respected as binding legal determination.

In other words, the legally established fact of disability cannot be disputed in state courts because they have absolutely no jurisdiction to review VA decisions. Likewise, the medical conditions in VA claims cannot be discussed or disputed in state courts.

Ever since Congress enacted the VJRA to supersede Rose, the states have NO personal jurisdiction to seize the benefits by holding veterans in contempt or in jail and they have no subject matter jurisdiction to use veteran benefits as “income” for support or legal fees. All state actions to collect from veteran benefits by “attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary” are prohibited by §5301 and §511 preempts state jurisdiction to say otherwise. The payment of veteran benefits cannot be touched by states because they do not come under the state jurisdiction of domestic relations. No matter how cleverly disguised the state orders or actions may be, the veteran benefits are simply off limits.

Contrary to popular belief, the Americans with Disabilities Act (ADA) 7 and the Health Insurance Portability and Accountability Act (HIPAA) 8 DO apply to veterans, along with various other state laws for the protection of vulnerable citizens. The Rose decision cannot grant state courts jurisdiction they do not already have. Judges forfeit all other jurisdiction when they deliberately violate due process by using fraud under Rose Mythology to act with discrimination against disabled veterans.

For the last 30 years, states have had no jurisdiction to touch veteran benefits directly or indirectly. So, why do they do this without a speck of jurisdiction?


Fun and Profit

Over the years, certain attorneys have developed training manuals and internet videos on how to use Rose to create the illusion of jurisdiction. Their paychecks depend on this predatory fraud, so they systematically destroy families for fun and profit.

Unfortunately, many of these parasites grow up to become judges who still hate veterans. They routinely use creative solutions to cover-up the fact that they are just harvesting veterans benefits under a disguise of child support. The orders are carefully structured to make them appear legitimate, but they are not. They are VOID ab initio, which means “from the beginning” because they are tainted by constitutional violations of due process and because the state courts have no jurisdiction to touch veteran benefits, regardless of state law.

These crafty court officials say that disabled veterans are “voluntarily unemployed,” instead of disabled, and that VA decisions are just eligibility for benefits. Once the payment is made, it is just “income” subject to state law. Veterans are treated as 100% employable until they are 100% totally and completely disabled. Even then, Rose Mythology is used to garnish and extort benefits from veterans, often leaving them well below poverty and subject to further abuse. When judges gain access to veteran medical files, they usually humiliate the veteran on public record, which is further violation of both ADA and HIPAA as well.

While veterans are waiting years for VA decisions, divorce attorneys craft the initial use of Rose for personal profit. Later, when the VA decision comes in, the Office of Child Support Enforcement (OCSE) comes right behind. Whatever benefits the veterans may have received get taken away to enforce the VOID support orders without due process. OCSE usually collects until the veterans are homeless then the local Prosecuting Attorney will step in to take them from contempt to incarceration, also known as “debtors prison.”

Veterans are illegally stripped of their benefits and simply imprisoned in poverty by never-ending legal abuse. This is a life sentence to punish them for becoming disabled. As a result, many of these veterans never see their children again and that is why some resort to suicide. They have no hope, no justice, no family and no protection from the abuse of law. After a while, they get tired of waiting to die alone and forgotten.

By the way, death by poverty is not a service-connected death, so the children have NO claim for DIC. Dependency and Indemnity Compensation:
The continued benefit paid to the surviving spouse and/or children and/or parents of the veterans who die as a result of service-connected medical conditions for which they received disability benefit payments.

More ...
The VA benefits just die with the veteran. All that child support money is gone.

State and federal agencies are flooded with disabled veterans and their families every day. Many of these same families return when the veteran dies and disability benefits are lost. The gigantic cost burden shifts from one agency to another as these veterans and their families struggle to survive the financial hardship of veteran disability, only to be trapped in greater hardship by the discrimination caused by fraud.


Facts Before Dogma

September 2, 2018 marks the 60th anniversary of Pub. L. 85-857, §1, Sep. 2, 1958, 72 Stat. 1105. in which Congress "Revised, codified, and enacted" U.S.C. Title 38 Veterans' Benefits; and Appendix. into Positive Law.

Almost every single veteran who ends up in proceedings for alimony or child support will encounter some discrimination under the Mythology of Rose, so before we get stuck in the dogma, here are the brutal facts;

1 On May 18, 1987, the U.S. Supreme Court framed the question as “In this case, we are asked to decide whether a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, where the veteran's only means of satisfying this obligation is to utilize benefits received from the Veterans' Administration under 38 U.S.C. 314 as compensation for a service-connected disability.”

Rose v. Rose, 481 U.S. 619 (1987) 9

Their answer was “yes.” There was a tiny loophole in 38 U.S.C. §211 which left an opening for state courts to assign veteran benefits for child support and to seize those benefits by holding the disabled veterans in contempt and putting them in jail. At that time, §211 clearly preempted federal courts, but not state courts.

38 U.S.C. §211 as it was in 1987 10

2 On November 18, 1988, Congress responded by amending §211 with the absolutely clear and unmistakable intent to protect veterans. Every argument from Rose is superseded by Section 101 of the VJRA, to include the use of benefits as income, along with garnishment actions, contempt or jail to seize the benefits.

Section 101, of Public Law 100-687 (VJRA) 11

3 U.S. Code Title 38 is a “Positive Law Title 12 ” which means it is written as enacted by Congress, word for word. 13 Positive law is “legal evidence of the law.” It means what it says and must be read strictly, with plain meaning, not interpretation or imagination. Section §211 was amended in 1988 ‘to occupy the field’ of veteran benefits and separate them from state jurisdiction by preemption. This put the entire body of Title 38 under the Supremacy Clause found in Article VI of the U.S. Constitution.

1 U.S. Code §204 14
U.S. Const. Art. VI, Cl. 2 15

4 The amendment of §211 brought §3101 and §3107 under the preemption, which means that there are no exceptions to the anti-garnishment clause, not even for child support or alimony claims.

38 U.S.C. §211 as in the laws of 1988 16

5 State law has no effect on the preemption of state jurisdiction. State courts have absolutely no jurisdiction, which means no judicial immunity. The illegal practice of violating due process by discrimination against disabled, indigent and other vulnerable people, is a very serious national issue.

March 14, 2016 US Dept. of Justice Letter 17 18

6 This preemption continues today under 38 U.S.C. §511 and §5301 covers all of the “creative solutions” used to hide the fraud upon the court. Section §5301 does not contain the preemptive language by itself, but it comes under §511, which also locks states out of apportionment and control of dependent benefits.

38 U.S.C §511 19 and §5301 20


Result:   Rose is dead.
There is no precedent remaining after the VJRA.

The direct enactment of positive law takes precedent over the Rose decision and since then, every single order based on Rose is Void for the total lack of jurisdiction. Every single dishonest, underhanded trick that is used to attack veterans is just another act of discrimination to hide fraud upon the Court because veteran benefits do not ever come under state jurisdiction or domestic relations.

Anybody who is inclined to disagree with this conclusion must read all of the source documents and verify the facts above before wasting any time on argument and before the useless regurgitation of Rose. Case law will reveal a wide variety of creative solutions used to get around preemption, but it all boils down to the Rose case identified the loophole and Congress closed it. Everything else is fraud without jurisdiction and violation of due process to hide disability discrimination reserved just for veterans.

Dogma

Almost every single veteran who ends up in proceedings for alimony or child support will hear the same arguments leftover from Rose. All of these arguments are stinky dead dogma taken out of the context of one key element: Jurisdiction.

  • - “VA benefits are to provide compensation for disabled veterans and families ,”
  • - “VA benefits are protected from ordinary creditors, not support obligations ,”
  • - “VA jurisdiction is only on eligibility,”
  • - “VA jurisdiction has no effect on state jurisdiction to use veteran benefits,”
  • - “A child support order is not a “review” of VA benefit eligibility decision.”
  • - “Veteran benefits are only exempt from garnishment while in the hands of VA ,”
  • - “Veterans may be incarcerated in contempt to enforce collection from benefits,”
  • - “The dependent benefit is not enough money to live on,”
  • - “Alimony and child support are exceptions to anti-garnishment statutes ,”

Veteran benefits exist only in federal law, based on a well defined relationship between the veteran and the U.S Government. Spouses are not party to that relationship and have no interest in the benefits based on that relationship. Veteran benefits do not exist within domestic relations and state law cannot grant state courts jurisdiction they do not already have, therefore states have no jurisdiction to interfere with veteran benefits.

Domestic relations exist under the jurisdiction of state courts as defined within state law, based on the relationship between spouses and such. Veteran benefits are not part of that relationship or under that jurisdiction. Regardless of state law, and Rose dogma, the states have no authority to take or use veteran benefits in any way.

The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. 1408, superseded the McCarty decision to specify exactly what part of military retirement pay the states may treat as community property in divorce. This allows jurisdiction on the retirement pay only and it clearly points out that disability benefits are for the veteran, not subject to state jurisdiction.

The purpose of all dogma is to hide something like fraud. Rose Dogma creates an illusion of jurisdiction where there is none. This undermines the intent of Congress; to protect veterans from the depletion of their benefits and to protect the VA from being misused as a (child support) collection agency.

Who are we to believe? Attorneys are the only ones who seem to benefit from veteran disability, so it is easier to see that Rose Mythology really exists to protect the income and lifestyle of attorneys, obviously not the former spouses or children.

The Rose Case Itself

Mr. Rose was a seriously disabled veteran. After 3 tours in Vietnam, he had lost both legs, his right hand and right eye. In addition to his 100% total and permanent disability benefit, he received Aid & Attendance benefit because he had to pay someone to take care of him every day by providing “regular assistance to perform essential personal functions.” The state ordered $895 per month in child support, leaving him with only $682 for living expenses. As a result, he had to use the A&A benefit to make up for living costs, which left him in need of daily personal care he could no longer afford.

Mr. Rose believed in supporting his children, but the court order was excessive and depleted his benefits causing undue hardship. The court used all of his benefit payments as if he was just an ordinary person, not a catastrophically disabled veteran. The difference between “veterans rights,” and the “enforcement of child support.” was the underlying support order itself. If the state was not prevented from using veteran benefits to make the support order, then it was not prevented from enforcing that order.

In support of Mr. Rose, the U.S. Solicitor General pointed out that “The very specificity with which Congress has defined the sums to be provided for the support of the disabled veteran strongly suggests that it did not intend to permit those sums to be reduced by the states.” He went on to describe how “veterans' benefits are gratuities and establish no vested rights in the recipients so that they may be withdrawn by Congress at any time and under such conditions as Congress may impose” quoting from Milliken v. Gleason. 21 Also, “it is clear, however, that Congress could not have intended to permit review of the Administrator's decision in state courts.”

Amicus Brief from U.S. Solicitor General 22

On the other hand, the Tennessee courts only saw that Mr. Rose was “making $43,000 tax-free.” The state’s position was that his obligation to pay child support proportional to his “income” was obviously greater than his actual need for the benefits. State jurisdiction was not blocked by federal law, so they enforced the order by putting Mr. Rose in jail for 10 days until he agreed to pay. Speaking for the state of Tennessee, Mr. Cody described the Apportionment statute (38 U.S.C.) §3107, as “an administrative aid in child support enforcement.” He said “It is an alternative and a parallel proceeding which is compatible with state court enforcement.” This was a ridiculous interpretation, but he presented it that way.

Transcript of oral arguments in Rose 23

The Supreme Court followed the established rule that positive law statutes must be read strictly and taken at face value. Therefore, §211 did not happen to protect Mr. Rose from the application of state law to his VA benefits. The expressed opinions of the Justices revealed a loophole in the law which states could take advantage of, so they did. It was up to Congress to fix the problem, so they did. Reality Check

The same rule of strict reading applied to §211 as amended by Congress in 1988 and applies to §511 today. They closed the loophole by removing veteran benefits from state jurisdiction entirely. This is really not open to creative interpretation or speculation.

The VJRA amendment of §211 should have worked, but 30 years predatory fraud and discrimination have still caused millions of dollars in damages to state and federal resources, not to mention countless deaths aggravated by poverty and suicide. This is exactly the “major damage to clear and substantial federal interests” Congress was trying to prevent. 24

Remember back in the day when there were no veterans benefits? There was no opportunity for gold-digging or predatory legal fraud. The spouse had only 2 choices, honor the marriage vows “to have and hold in sickness and in health, rich and poor, etc...” or PAY alimony TO the disabled veteran. These federally established benefits exist to protect both the veteran and former spouse from having to pay alimony.

Being injured in military service is a risk we all take to protect and support our families and country. Disability benefits are not some kind of indemnity insurance against the loss of specific income or lifestyle for the disabled person, so they cannot be used to protect the income and lifestyle of the former spouse, even pretending it could be “for the sake of the children.”

We all need to recognize that fact that predators and parasites have been using fraud under this mythology to steal a lot of money from our veterans, our children and from our country. Once everyone can see the real issue and understand it, we can put a stop to the abuse and discrimination itself.

The Real Question

“What is more important to Congress?

A) Protecting the honorable veterans who became disabled while in the service of supporting and defending our families and country? … or

B) Protecting the income and lifestyle of the able-bodied former spouses who are using children as meal tickets? … or

C) Protecting the income and lifestyle of the parasitic attorneys who use fraud by Rose Mythology to convert veteran benefits into their paychecks?

Judicial Notice

Congress changed the law to protect veterans from the state depletion of federal benefits, but most attorneys and officials have continued to live by the ridiculous myth that Rose takes precedent over anything Congress might have to say.

Image: scales-of-justice Every judge has a professional obligation to take judicial notice of the current law and uphold the supreme law of the land. Most family court judges are so accustomed to the mythology, they have never questioned the possibility that there was an important reason veteran benefits were excluded from state law and jurisdiction.

For the last 30 years, every state order to deplete veteran benefits directly, or indirectly, is VOID ab initio for the total lack of jurisdiction and for constitutional violations of due process. This includes any order for alimony or child support and all related actions for garnishment, contempt, incarceration and attorney feces.

State courts have no jurisdiction to contradict the legally established fact of veteran disability and no jurisdiction to impute, imply or imagine income to a disabled veteran where it infringes upon the exclusive jurisdiction of the VA.

State law has no effect and state courts have no voice in the matter of preemption. Even the state supreme court has only one thing to say, which is “The state has no jurisdiction to touch any veteran benefits directly and no jurisdiction to touch the veterans to get the benefits indirectly.” The case must be resolved by protecting the veteran.

Any order made without jurisdiction is VOID. They are not protected by res judicata or laches. Void is VOID forever and justice cannot possibly be served by the perpetual act of discrimination.

Veterans & Former Spouses: DO NOT BE GREEDY

Family support is a mutual commitment to support each other as well as the children. Congress specified the amount of additional benefit for dependent support and created a claim process to obtain direct payment when the veteran is unable or unwilling to make the payment.

Children need regular contact with BOTH parents and there is absolutely no excuse for parents to use the children as a weapons to hurt each other emotionally or financially. That will always hurt the children so much worse.

Disability is no excuse for greed. Any veteran refusing to forward the proper amount of dependent benefits to the children should expect the VA to do an apportionment.

Greed is no excuse to be hurtful. Anyone using children for meal tickets or making false accusations of domestic abuse should expect to face criminal charges of custodial interference and parental alienation and family abandonment.

The point is, disabled veterans are not excused from child support, but state jurisdiction on domestic relations stops cold at the boundary of VA jurisdiction over benefits. States have no authority to touch veteran benefits, even for support orders. “The former spouse is not entitled to indemnity from the disability benefits which Congress has specified are for the veteran.”

Howell v. Howell, 581 U.S. ___ (2017) 25

No court or official has jurisdiction to change how much, of what VA benefit, goes to whom. Only the VA can do that. Even the use of other income and resources to offset the veteran disability benefits would be an intrusion into VA jurisdiction by fraud.

Last word: Hope

We all know it is a waste of time to argue with judges. Nothing will change a prejudice they believe in. Most of them already know they have no jurisdiction here, but they also know the veterans will die long before they can get any help or any protection.

Every veteran who begins with §5301 has lost already because it does not contain preemptive language, only anti-garnishment and collection language. Section §511 is preemptive of state jurisdiction. It demonstrates the clear and unmistakable intent of Congress to prevent veteran benefits from being depleted by state courts in a direct response to the Rose decision. There is no room for doubt, or question, or wild state misinterpretation of Congressional intent expressed in positive law. The benefits never come under state jurisdiction therefore never enter domestic relations.

This problem of discrimination and fraud will not be resolved in state courts. Federal courts will have to bring it to light because it deals with the federal issue of supremacy on veteran benefits, not the state issue of domestic relations.

We have seen some interesting results from a new approach in family court which explained why certain enforcement orders are null and void for constitutional violations of due process and lack of jurisdiction. Things should begin to change as more veterans challenge their void orders and proceed to misconduct claims against the attorneys who used fraud upon the court based on Rose. Violations of due process, ADA, HIPAA and various state laws against discrimination, open the door to fight back against prejudice.

Remember, this report is about fulfilling the expressed congressional intent to protect veterans from the depletion of the benefits earned with honorable military service. This is about saving lives and protecting families from loss and hardship, and it is about saving our country millions of dollars by preventing legal and financial discrimination and fraud under the Absurd Mythology of Rose.

- §§ -

Contact the AuthorDownload PDF copy of report.


Note from the Author:

Since Congress enacted the VJRA in 1988,

  • Every single order, to make or enforce alimony or child support from veterans benefits is totally ILLEGAL, therefore NULL and VOID, for lack of subject matter jurisdiction on Title 38 benefits, and for lack of personal jurisdiction to enforce payment out of VA benefits.
  • and ...
  • Every single violation of Equal Protection and Due Process of Law, which are often used to sneak around the preemption of state jurisdiction, are simply acts of fraud by disability discrimination, the abuse of discretion to hide other violations of constitutionaly protected civil rights.
I do not expect anyone to take my word for it.

I trust you to take personal, professional and judicial notice of the facts which I have respectfully presented in the following report "Child Support and the Absurd Mythology of Rose." Once you have checked all the facts, which is really easy from this web page, please contact me to support this project. I am raising money to help veteran families prevent further discrimination through legal intervention and to provide more information through community outreach.

Please share this with everyone who helps veterans and their families.

United we stand
to help our veterans,
protect our families
and defend our country.

Sources