Flannagan v. Flannagan

Decision Date25 November 1985
Docket Number7684-5-II,Nos. 7591-1-I,s. 7591-1-I
Citation42 Wn.App. 214,709 P.2d 1247
PartiesIn re the Marriage of John T. FLANNAGAN, Appellant, v. Beatrice A. FLANNAGAN, Respondent. In re the Marriage of Edmund Belfour BOSSART, Jr., Respondent, v. Lillian Schmidt BOSSART, Appellant.
CourtWashington Court of Appeals

James K. Sells, McCluskey, Sells, Ryan, Olbertz & Haberly, Bremerton, Ronald T. Schaps, Robert A. Stewart, Bogle & Gates, Seattle, for appellants.

Marcia A. Mellinger, Seattle, Thurman W. Lowans, Soriano, Soriano, Lowans & Peterson, Bremerton, for respondents.

ALEXANDER, Judge.

The issue presented in these consolidated cases is whether the Uniform Services Former Spouses Protection Act (USFSPA) may be applied retroactively to dissolution decrees that were final and were not appealed after the Supreme Court decision in McCarty v. McCarty and before enactment of the USFSPA. While we recognize the importance of finality of judgments, some situations justify an exception to this "doctrine of finality." We hold that the circumstances presented in these cases are sufficiently extraordinary to permit the use of a CR 60(b)(11) motion to reexamine the final decrees in light of the USFSPA.

The United States Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, (1981), on June 26, 1981. The Court held that state courts were prohibited from distributing military retirement payments as part of community property. 1 In response to McCarty, Congress passed the Uniform Services Former Spouses Protection Act, 10 U.S.C. § 1408. The USFSPA

                took effect on February 1, 1983.   We will refer to the interval between these events as the "McCarty period."
                

Flannagan Dissolution

John and Beatrice Flannagan were married in 1960 and were separated in 1981, two years after John retired from the Navy. They jointly petitioned for dissolution in Kitsap County Superior Court on January 15, 1982, without assistance of counsel. The Flannagans ultimately agreed to a property settlement, although it was not preceded by a written separation agreement. The decree of dissolution was entered on May 21, 1982. In the decree, John was awarded "[a]ny and all interest in his Navy retirement." Beatrice did not appeal from the entry of the decree. In April 1983, she filed a motion to reopen the decree under CR 60(b), claiming that the USFSPA overturned McCarty and allowed for division of military retirement payments in final decrees entered during the McCarty period. The trial court granted the motion pursuant to CR 60(b)(11), stating that "for [the court] not to at least consider the community nature of the pension in this case would be grossly inequitable." John Flannagan appeals from that order. 2

Bossart Dissolution

Edmund and Lillian Bossart were married in 1959, separated in 1978, and commenced an action for dissolution in Kitsap County in 1981. Although they did not enter into a written separation agreement, each was represented by counsel and agreed to a property settlement. The decree of dissolution was entered on August 26, 1981, and a supplemental decree containing the property distribution scheme was entered on June 9, 1982. The trial court awarded Edmund "[a]ny and all right, title or interest in the retirement from government service through the U.S. Navy in accordance with the decision of McCarty of the United

                States Supreme Court decided in June of 1981."   However, the judge struck out the next clause of the proposed decree that stated "said award also being fair and equitable under the circumstances of this agreed division of the assets."   Edmund was still in active Navy service at this time and was not receiving retirement benefits.   Lillian did not appeal from the decree.   She filed a motion to reopen under CR 60(b) on June 8, 1983, making a claim similar to that of Mrs. Flannagan.   A judge pro tem denied the motion, stating that "to allow a subsequent enactment to have retroactive effect on otherwise final judgments of courts could, and most likely would, have chaotic results."   Lillian Bossart appeals from the denial of the motion to reopen. 3
                
USFSPA

The USFSPA was enacted in response to the McCarty decision. The provision that defines its potential retroactive effect reads as follows:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981 [the date of 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.

10 U.S.C. § 1408(c)(1).

The Washington Supreme Court has stated that this subsection and its legislative history mean that "[C]ongress intended that the USFSPA apply retroactively to eliminate all effects of the McCarty decision...." In Re Marriage of Konzen, 103 Wash.2d 470, 473-74, 693 P.2d 97, cert. denied, --- U.S. ----, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). However, the decree in Konzen was entered before McCarty and was subject to appellate review throughout the McCarty period. The question of finality did not arise.

Division One of the Court of Appeals has recently applied the USFSPA retroactively to a decree that was final and not appealed during the McCarty period. In Re Marriage of Giroux, 41 Wash.App. 315, 322, 704 P.2d 160 (1985). The court emphasized what it believed was the Congressional intent for retroactive application 4 and allowed the use of CR 60(b)(6) or CR 60(b)(11) to reopen the final decree. 5 However, the court did not discuss the potential conflict with the doctrine of finality. We believe the doctrine of finality of judgments is of great importance, and must be considered in any analysis of the retroactive application of the USFSPA to final decrees. While we also conclude that these final decrees may be reopened under CR 60(b)(11), we emphasize the importance of finality and the limited nature of our deviation from the doctrine.

Finality in Dissolution Decrees

The divisibility of military retirement payments in a dissolution has had a turbulent history. The rules for considering such payments upon dissolution have been modified three times in the past 12 years. After each change, attempts have been made to apply the new rule retroactively. The first two attempts were rejected on the grounds of finality. In 1973, the Supreme Court clearly stated that military retirement payments were subject to division in a dissolution. Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973). Subsequently, this court rejected an attempt to apply Payne retroactively in Martin v. Martin, 20 Wash.App. 686, 581 P.2d 1085 (1978). We held that the policy interest favoring finality in property settlements would be undermined by reexamination of every military divorce before Payne and concluded that "[t]he parties ought to be bound to the rules as they were generally understood at the time of the divorce...." Martin, 20 Wash.App. at 690, 581 P.2d 1085.

In the second attempt, the Washington Supreme Court refused to apply McCarty retroactively. In Re Marriage of Brown, 98 Wash.2d 46, 653 P.2d 602 (1982). The court began by stating "in the conflict between the principles of finality in judgments and the validity of judgments, modern judicial development has been to favor finality rather than validity...." Brown, 98 Wash.2d at 49, 653 P.2d 602. It concluded that the inequity of applying McCarty retroactively exceeded the inequity of solely prospective application. Brown, 98 Wash.2d at 52, 653 P.2d 602. The court refused to allow reopening of the petitions under CR 60(b).

In this third attempt, the former Mrs. Flannagan and Mrs. Bossart ("the wives") seek retroactive application of the USFSPA. The language of the act does not require retroactive application by the state courts, but it is allowed and appears to be anticipated. However, the desire to apply the act retroactively must be weighed against the damage that would be inflicted on individuals' reliance on the finality of dissolution decrees. These prior Washington cases demonstrate the importance of finality and appear to lead to a conclusion that the USFSPA should not be applied retroactively to final decrees. We now examine how other states have reconciled the conflict between finality and retroactivity under the USFSPA.

Retroactivity in Other States

Most courts in other jurisdictions that have considered the retroactive application of the USFSPA to final decrees have allowed reopening, when a procedural mechanism existed for such reopening. Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895, 898 (1984); Smith v. Smith, 458 A.2d 711, 714 (Del.Fam.Ct.1983); Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809, 811 (1984); Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180, 1184 (N.M.App.1984); Thorpe v. Thorpe, 123 Wis.2d 424, 367 N.W.2d 233, 234 (Wis.App.1985). Edsall, Smith, and Koppenhaver discussed the finality doctrine and concluded that the balance of equities favored reopening over finality.

Two courts have refused to reopen decrees because of the doctrine of finality. In Re Marriage of Quintard, 691 S.W.2d 950, 953 (Mo.App.1985); Allison v. Allison, 690 S.W.2d 340, 345 (Tex.App.1985). However, in each case the court noted that finality was considered such an important doctrine in their state that no CR 60(b)(11)-type rules had been created. Other courts have refused to open specific final decrees because of an insufficient showing of inequity. In Re Marriage of Habermehl, 135 Ill.App.3d 105, 89 Ill.Dec. 939, 481 N.E.2d 782 (Ill.App.1985); Harkins v. Harkins, 101 N.M. 296, 681 P.2d 722, 723 (1984). We have found no cases where the doctrine of finality prevailed over the inequity of denying retroactivity, so long as a procedural mechanism such as CR 60(b)(11) existed for retroactive application.

The weight of authority from other states leads to a conclusion...

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