1998 -NMCA- 36, Hennessy v. Duryea

• Decision Date: 14 January 1998
• Docket Number: No. 17317,17317
• Citation: 1998 NMCA 36,955 P.2d 683,124 N.M. 754
• Parties: , 1998 -NMCA- 36 Dora D. HENNESSY, F/K/A Dora D. Duryea, Petitioner-Appellee, v. George W. DURYEA, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 683

955 P.2d 683

124 N.M. 754, 1998 -NMCA- 36

Dora D. HENNESSY, F/K/A Dora D. Duryea, Petitioner-Appellee, v. George W. DURYEA, Respondent-Appellant.

No. 17317.

Court of Appeals of New Mexico.

Jan. 14, 1998.

Certiorari Denied Feb. 18, 1998.

Robert Marcotte, Albuquerque, for Petitioner-Appellee.

Eileen Mallon, Clara Ann Bowler, Travis M. Scott, Jr., Albuquerque, for Respondent-Appellant.

OPINION

PICKARD, Judge.

¶1 George Duryea (Husband) appeals from the trial court's order of February 16, 1996, awarding a share of his military retirement pay to his former wife, Dora Hennessy (Wife). Husband asserts that the trial court erred in making this award because: (1) Husband and Wife were not residents of New Mexico during the time he earned most of his pension benefits; (2) the military retirement pay was not divisible under the laws of New Jersey or New Mexico at the time of the parties' 1973 divorce decree; (3) such an award is preempted by the Uniformed Services Former Spouses' Protection Act (USFSPA); and (4) Wife's claim is barred by the statute of limitations and the doctrine of laches. We hold that the award is preempted and therefore do not reach the other issues.

I. BACKGROUND

¶2 Husband enlisted in the Navy in 1958 and retired from military service in September 1988. Husband and Wife were married in New Mexico on January 30, 1960, and divorced in New Mexico on April 27, 1973. The 1973 divorce decree states that the parties have consented to the jurisdiction of the Bernalillo County district court and adopts as its findings of fact the material allegations of the complaint. The 1973 divorce decree divided household effects and two vehicles. The decree is silent with respect to military retirement benefits.

¶3 On March 7, 1991, approximately two and one-half years after Husband retired from the military and eighteen years after the divorce, Wife filed a petition in Bernalillo County district court to divide what she alleged was her undivided community interest in the military retirement pay that Husband was then receiving. Wife brought her petition pursuant to the provisions of NMSA 1978, Section 40-4-20(A) (1993), which provides to a party the right to seek division and distribution of previously undivided property in a separate proceeding after a divorce. Husband objected to the application of this statute on the grounds that it does not satisfy the reservation-of-jurisdiction requirement in Paragraph 1408(c)(1) of USFSPA, 10 U.S.C. § 1408(c)(1) (1994).

¶4 On February 19, 1996, the trial court granted Wife's petition, ordering Husband to pay Wife 22% of Husband's future retirement pay and arrearages of $52,235.52. The trial court found that the parties resided in New Mexico during their marriage and concluded that Wife would be entitled to a portion of Husband's military retirement pay under the laws of either New Mexico or New Jersey. This appeal followed.

II. DISCUSSION

Federal Preemption

¶5 Husband asserts that Paragraph 1408(c)(1) of USFSPA bars the application of state law in cases where a pre-McCarty divorce decree does not contain specific language that treats (or reserves jurisdiction to treat) military retirement pay as the property of a service member and his former spouse. The 1973 divorce decree at issue in this case does not contain such specific language. We agree with Husband.

¶6 Under the Supremacy Clause of the United States Constitution, U .S. Const. Art. VI, cl. 2, federal preemption of state law may be "explicitly mandated by Congress, compelled due to an unavoidable conflict between the state law and the federal law, or compelled because the state law is an obstacle to the full accomplishment of congressional objectives." In re Timberon Water Co., 114 N.M. 154, 158, 836 P.2d 73, 77 (1992) (citations omitted). "When Congress has considered the issue of preemption and has included in the legislation a provision expressly addressing the issue," we need only identify the domain expressly preempted by the federal statute and may infer that matters beyond that domain are not preempted. Montoya v. Mentor Corp., 1996 NMCA 067, p 8, 122 N.M. 2, 919 P.2d 410.

¶7 Insofar as federal preemption presents a question of statutory interpretation, that question is reviewed de novo and does not require us to defer to the statutory interpretation of the district court. Cf. Cox v. Municipal Boundary Comm'n, 120 N.M. 703, 705, 905 P.2d 741, 743 (Ct.App.1995) (stating standard of review for question of statutory interpretation). "To understand a statute's meaning, we must examine the words used, the context within which the words are used, the purpose of the statute and its legislative history." Montoya, 1996 NMCA 067, p 17, 122 N.M. 2, 919 P.2d 410.

¶8 The context in which the statutory words are used is particularly important here. Because domestic relations provide a context in which state law is preeminent, the United States Supreme Court has "consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area." Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 2028, 104 L.Ed.2d 675 (1989); see also Boggs v. Boggs, 520 U.S. 833, ----, 117 S.Ct. 1754, 1760, 138 L.Ed.2d 45 (1997) (noting that "community property laws ... implement policies and values lying within the traditional domain of the States"). Hence, in the context of domestic relations, courts "will not find pre-emption absent evidence that it is positively required by direct enactment." Mansell, 490 U.S. at 587, 109 S.Ct. at 2028 (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979)).

¶9 Examining the language and legislative history of USFSPA in this context, we find that Congress "positively required" state law to be preempted in this case. We begin our analysis by placing Paragraph 1408(c)(1) in historical context. Prior to 1981, several community property states had held that military retirement benefits are community property, so that after divorce the non-military spouse would be entitled to a share of the benefits. The New Mexico Supreme Court so held in 1969. See LeClert v. LeClert, 80 N.M. 235, 236, 453 P.2d 755, 756 (1969). In 1981, however, the United States Supreme Court ruled that those decisions were wrong. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the Court held that as a matter of federal law, military retirement benefits were the property of solely the military spouse. In the language of community-property law, McCarty meant that military retirement benefits were, and always had been, the separate property of the military spouse. Despite the presumption against pre-emption in the context of domestic relations, the United States Supreme Court found that state law with respect to the division of military retirement benefits was preempted.

¶10 Even though McCarty overturned LeClert, pension benefits that had been divided in reliance on LeClert were, for the most part, not affected. Changes in the law ordinarily are not grounds for setting aside final decisions. See Deerman v. Board of County Commissioners, 116 N.M. 501, 505-06, 864 P.2d 317, 321-22 (Ct.App.1993). Accordingly, final decisions that had awarded part of the military pension to the non-military spouse were not set aside. See Whenry v. Whenry, 98 N.M. 737, 738, 652 P.2d 1188, 1189 (1982). In other words, McCarty would apply only to future cases or cases still pending, either in the trial court or on appeal.

¶11 In response to McCarty, the United States Congress in 1982 enacted the USFSPA. Paragraph 1408(c)(1) originally stated in its entirety:

A court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, [the day prior to the McCarty decision] either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

The purpose of USFSPA is " 'to remove the federal pre-emption found to exist by the United States Supreme Court [in McCarty, 453 U.S. 210, 101 S.Ct. 2728], and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisable [sic].' " Walentowski v. Walentowski, 100 N.M. 484, 486, 672 P.2d 657, 659 (1983) (quoting S.Rep. No. 97-502, at 16 (1982)), reprinted in 1982 U.S.C.C.A.N. 1596, 1611; see also H.R.Conf.Rep. No. 97-749, at 165 (1982), reprinted in 1982 U.S.C .C.A.N. 1569, 1570 (stating that the legislation "would have the effect of reversing the decision of the United States Supreme Court in the case of McCarty ").

¶12 The question arises as to the effect of this statute on final judgments. Some jurisdictions interpreted the USFSPA as authorizing the reopening of final divorce decrees entered during the eighteen-month period between the McCarty decision and the effective date of the USFSPA. See Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895, 897-901 (1984) (en banc) (noting "extraordinary circumstances" justifying relief and the small number of cases in the interim period); cf. Koppenhaver v. Koppenhaver, 101 N.M. 105, 108-09, 678 P.2d 1180, 1183-84 (Ct.App.1984) (remanding denial of post-judgment motion for consideration on similar grounds); but cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (separation-of-powers principles prohibited Congress from enacting a statute extending the limitations period for actions that had become final prior to enactment of the statute). But final judgments can be reopened only in very limited circumstances, see Rule 1-060, NMRA 1997, and courts apparently did not routinely reopen pre-McCarty final decrees after enactment of the USFSPA. See generally Johnson v. Johnson, 824 P.2d 1381, 1382 n. 2 (Alaska 1992) (noting obstacles to seeking relief under Alaska counterpart to...