542 N.W.2d 448 (S.D. 1996), 19074, Porter v. Porter

Docket Nº:19074.
Citation:542 N.W.2d 448, 1996 SD 6
Opinion Judge:The opinion of the court was delivered by: Gilbertson
Party Name:Paul F. PORTER, Plaintiff and Appellee, v. Edna K. PORTER, now known as Kay Subbert, Defendant and Appellant.
Attorney:Richard L. Bode, Rapid City, South Dakota, Attorney for plaintiff and appellee.
Case Date:January 10, 1996
Court:Supreme Court of South Dakota

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542 N.W.2d 448 (S.D. 1996)

1996 SD 6

Paul F. PORTER, Plaintiff and Appellee,


Edna K. PORTER, now known as Kay Subbert, Defendant and Appellant.

No. 19074.

Supreme Court of South Dakota.

January 10, 1996

       Considered on Briefs Oct. 19, 1995.

       Richard L. Bode, Rapid City, for plaintiff and appellee.

       John K. Nooney, Timothy L. Thomas, Morrill Brown, Thomas & Nooney, Rapid City, for defendant and appellant.

       GILBERTSON, Justice.

       ¶1 Kay Subbert, f/k/a Edna K. Porter, appeals from an amended order denying her motion to modify her divorce decree to allow her a portion of her former husband's military pension benefits. She also appeals from the original divorce decree dated September 14, 1981. We affirm the trial court's denial of the motion to modify. We are without jurisdiction to entertain Subbert's appeal from the original judgment.


       ¶2 The parties herein were married June 1971. In August 1971, Husband entered the United States Air Force. The parties were divorced on September 14, 1981. The judgment

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and decree of divorce incorporated the parties' stipulation which did not address Husband's military pension benefits but included the following provision: "It is agreed that this Stipulation, upon approval of the Court, shall constitute settlement of all issues arising between the parties in this action." The stipulation further provided that "[i]t is stipulated and agreed that this agreement is entered into for the purpose of determining ... property division, and other matters arising out of this action[.]" Husband remained in the military service at least twenty years and began receiving a military pension benefit following his retirement from the service.

       ¶3 In October 1994, Wife filed a motion for modification of child support and the divorce decree as it affects Husband's military pension. Husband did not resist modification of child support. Following oral argument on Wife's motion requesting a portion of Husband's military pension benefits, the trial court denied the motion. The trial court stated that granting Wife's motion would constitute a new judgment since the parties' divorce decree did not address Husband's military pension benefits and may also be beyond the rule provided in SDCL 15-6-60(b). The court entered an order denying the motion and subsequently, entered an amended order which reflected a date correction. Following entry of the amended order, Wife filed a notice of appeal on February 7, 1995. On April 4, 1995, Wife filed an amended notice of appeal appealing both the trial court's amended order and the September 1981 judgment and decree of divorce.


       ¶4 The decision to grant or deny a motion under SDCL 15-6-60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion. Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994); Clarke v. Clarke, 423 N.W.2d 818, 820 (S.D.1988).


       ¶5 I. "McCarty Window"

       ¶6 On June 26, 1981, the United States Supreme Court handed down its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In McCarty, the Court determined that military retirement benefits were the sole property of the retiree and held that the federal law precluded a state court from dividing military retirement benefits pursuant to state property laws. When the Porters were divorced on September 14, 1981, McCarty prohibited the trial court's consideration of Husband's potential military retirement benefits in making a marital property division. The stipulation incorporated into the Porters' divorce decree is silent on this subject.

       ¶7 On September 8, 1982, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA), 10 USC 1408 et seq. declaring that whether military retirement benefits should be considered in marital property division is a question of state law. 10 USC 1408(c)(1). The USFSPA was made retroactive to June 26, 1981, in order to undo the effects of the United States Supreme Court's decision in McCarty. See Johnson v. Johnson, 824 P.2d 1381, 1383 (Alaska 1992). In November 1990, Congress amended the USFSPA, explicitly prohibiting reopening divorce decrees entered prior to June 25, 1981 for the purpose of equitably distributing previously undivided military retirement benefits.

       ¶8 The Porters were divorced in this "window" period between the issuance of McCarty holding military retirement benefits were not divisible as marital property and the retroactive effectiveness date of the USFSPA which again made military retirement benefits subject to state property laws. We recognized this "window" period in Moller v. Moller, 356 N.W.2d 909 (S.D.1984):

The real effect of the Uniformed Services Former Spouses Protection Act is on divorce decrees granted or modified during the McCarty reign, June 26, 1981 to September 8, 1982. Those decrees certainly may now be modified in accordance with the new law[.]

       Id. at 911 (citations omitted). See also Wright v. Wright, 427 N.W.2d 372 (S.D.1988) (recognizing no retroactive effect of the

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USFSPA on divorce finalized prior to June 26, 1981).

       ¶9 Our state law prior to McCarty was that military retirement benefits were treated like any other asset of the marriage and were subject to equitable distribution. See SDCL 25-4-44. Moller, decided after the USFSPA was passed, reaffirmed that military retirement pay constituted a marital asset. Couples who divorced prior to McCarty or after the enactment of the USFSPA were entitled to division of their spouses' military retirement pensions. However, spouses whose divorces were finalized during the "window" period between McCarty and the USFSPA were denied that right during that interval prior to McCarty's reversal by the USFSPA.

       ¶10 Some jurisdictions have barred reopening of pre-USFSPA divorce decrees under the doctrine of res judicata. See McBride v. McBride, 112 Idaho 959, 739 P.2d 258 (1987); Bishir v. Bishir, 698 S.W.2d 823 (Ky.1985); Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989); Marriage of Quintard, 691 S.W.2d 950 (Mo.Ct.App.1985); Allison v. Allison, 700 S.W.2d 914 (Tex.1985) (where divorce decree made express disposition of military retirement benefits).

       ¶11 The majority of states having considered this issue, however, whether by caselaw or by statute, permit reopening divorce decrees which fall within the "window" period. See Beltran v. Razo, 163 Ariz. 505, 788 P.2d 1256 (1990); 1983 CalStat ch. 775 § 1; Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct. 1983); IllRevStat ch. 750 para 5/510.1; Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986); Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984); Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (Ct.App.1984); In re Marriage of Valley and Valley, 97 Or.App. 95, 775 P.2d 332 (1989), modified, 99 Or.App. 252, 781 P.2d 1219 (1989), cert. denied, 498 U.S. 920, 111 S.Ct. 296, 112 L.Ed.2d 250 (1990), Koepke v. Koepke, 732 S.W.2d 299 (Tex.1987) (where divorce decree did not expressly award military retirement benefits), Flannagan v. Flannagan, 42 Wash.App. 214, 709 P.2d 1247 (1985). We now join this majority and hold that applying the doctrine of res judicata here would subvert the intent of Congress and the plain meaning of the USFSPA which is to restore state law to what it was prior to the McCarty decision.

       ¶12 II. Timeliness of Wife's Motion

       ¶13 Husband argues that Wife's motion to modify the parties' divorce decree to provide her with a portion of Husband's military pension benefits is untimely and should not, therefore, be considered. SDCL 15-6-60(b)(6) permits relief from the operation of a final judgment for reasons justifying relief but requires that the motion be made within a reasonable time after the judgment was entered. Husband and Wife were divorced on September 14, 1981. At that time Husband had been in the military service for over ten years; almost the entire time the parties had been married. Husband was not, however, eligible to receive military...

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