Marriage of Waters, In re

• Citation: 724 P.2d 726,223 Mont. 183
• Decision Date: 10 September 1986
• Docket Number: No. 85-621,85-621
• Parties: In re the MARRIAGE OF Doris V. WATERS, Petitioner and Respondent, and Duane R. Waters, Respondent and Appellant.
• Court: United States State Supreme Court of Montana

Page 726

724 P.2d 726

223 Mont. 183

In re the MARRIAGE OF Doris V. WATERS, Petitioner and Respondent,

and

Duane R. Waters, Respondent and Appellant.

No. 85-621.

Supreme Court of Montana.

Submitted on Briefs May 30, 1986.

Decided Sept. 10, 1986.

Strause & Anderson, Lawrence A. Anderson, Great Falls, for respondent and appellant.

Swanberg, Koby, Swanberg & Matteucci, Gorham Swanberg, Great Falls, for petitioner and respondent.

TURNAGE, Chief Justice.

This case concerns the narrow question whether the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. Sec. 1408, should be applied retroactively to final decrees of dissolution which were entered subsequent to the United States Supreme Court decision in McCarty v. McCarty but prior to the aforementioned federal statute. Although a number of states have already considered this question, it is one of first impression before this Court.

Doris Waters filed a petition in the District Court of the Eighth Judicial District to modify the dissolution decree entered in that court on October 20, 1981. The petition was filed May 24, 1985, pursuant to Rule 60(b)(5) or (6) of the Montana Rules of Civil Procedure, or, in the alternative, Sec. 40-4-208, MCA. Duane Waters moved to dismiss the petition. The court denied his motion and entered judgment awarding Doris Waters one-half of Duane Waters' military pension and relieving the latter of his obligation to pay maintenance. We affirm that judgment.

Duane Waters, appellant, and Doris Waters, respondent, were married in Wray, Colorado, on May 23, 1954. Duane joined the armed forces of the United States approximately eighteen months before marrying Doris. In 1975 he retired from the United States Air Force and began receiving his military pension. On October 20, 1981, the parties obtained a dissolution of their marriage.

At the time of the initial hearing, the law in Montana treated military pensions as a marital asset which was subject to equitable distribution. In Re Marriage of Miller (1980), 187 Mont. 286, 609 P.2d 1185, 37 St.Rep. 556. However, before the final decree of dissolution was entered, the United States Supreme Court held, in effect, that federal law precluded state courts from dividing military retirement pay pursuant to state community property or equitable distribution laws. McCarty v. McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589. As a result, the District Court found that Duane's military pension was not a marital asset, and it awarded Doris $300 per month in maintenance in lieu thereof. She did not appeal from that judgment.

Effective February 1, 1983, Congress passed the "Uniformed Services Former Spouses' Protection Act" (USFSPA) which provides:

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, 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. Sec. 1408(c)(1). This Act specifically overruled McCarty and allowed state courts to once again consider military retirement pay when making a distribution of property upon divorce. Some twenty-seven months after the Act was passed, Doris filed her petition to modify the decree of dissolution.

Appellant has raised three issues on appeal:

1. Has Doris Waters waited an unreasonable length of time to petition for modification of the judgment?

2. Is the petition to modify the judgment barred by laches?

3. Does a change in the applicable law after a final judgment has been rendered establish "changed circumstances so substantial and continuing as to make the terms unconscionable" under Sec. 40-4-208, MCA?

I

Respondent filed her petition under Rule 60(b)(5) or (6), M.R.Civ.P., and the District Court found that the action was proper under Rule 60(b)(6). Appellant contends that the action was not brought within a reasonable time, but he does not raise the issue whether Rule 60(b) can properly be used in this case as a means for reopening the final judgment. Nevertheless, we must consider this question since it involves the subject matter jurisdiction of this Court and of the lower court.

A

Respondent contends and the District Court found that the USFSPA should be applied retroactively so as to allow her to begin receiving a share of appellant's military pension. In order to prevail on this argument, respondent must overcome two formidable obstacles. First, as a general rule, statutes are presumed to operate prospectively only. Penrod v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325; Sullivan v. City of Butte (1922), 65 Mont. 495, 211 P. 301. Second, the doctrine of finality of judgments is an important concept in our law, and it is entitled to great weight. There must be some point at which litigation ends and the respective rights between the parties are forever established. Under ordinary circumstances, once this point is reached a party will not be allowed to disturb that judgment. However, Rule 60(b) is an exception to the finality of judgments doctrine.

Rule 60(b)(6), M.R.Civ.P., provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

* * *

(6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time ...

The source of this rule is Rule 60(b) of the Federal Rules of Civil Procedure. Our rule is identical to the federal rule except in certain respects not pertinent to this decision.

In determining what the ambiguous phrase "any other reason" means, the United States Supreme Court has stated:

In simple English, the language of the "other reason" clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.

Klapprott v. United States (1949), 335 U.S. 601, 614-615, 69 S.Ct. 384, 390, 93 L.Ed. 266, 277. Subsequent to Klapprott, the Court set up the "extraordinary circumstances" test in Ackermann v. United States (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207. Thus, before a party will be allowed to modify a final judgment under Rule 60(b)(6), he must first show that none of the other five reasons in Rule 60(b) apply, and he must also demonstrate extraordinary circumstances in his case which justify relief.

We find that respondent has met both of these requirements. None of the other five reasons listed in the rule apply to this case. Likewise, respondent has shown extraordinary circumstances sufficient to allow reopening of the dissolution decree.

Appellant is correct in his assertion that a change in the decisional law subsequent to a final judgment does not represent extraordinary circumstances under Rule 60(b) so as to allow reopening of that judgment. Most federal courts considering that issue have so held. See e.g., McKnight v. United States Steel Corp. (7th Cir.1984), 726 F.2d 333, 336, holding that "a change in the applicable law after entry of judgment does not, by itself, justify relief under 60(b)," and DeFilippis v. United States (7th Cir.1977), 567 F.2d 341, 343, stating at Fn. 5 that the "courts are generally agreed that a change in the law after entry of judgment does not alone justify relief under [Rule 60](b)(6)." Additionally, this Court has previously held that a change in the decisional law after a final judgment does not provide a sufficient basis for modifying that judgment under Rule 60(b). Fiscus v. Beartooth Elec. Cooperative, Inc. (1979), 180 Mont. 434, 591 P.2d 196. However, the circumstances of this case go far beyond a mere change in the law.

The law in Montana prior to McCarty was such that military pensions were treated like any other asset of the marriage and were subject to equitable distribution. After the USFSPA was passed, this Court decided In Re Marriage of Kecskes (Mont.1984), 683 P.2d 478, 41 St.Rep. 1170, which reaffirmed that military retirement pay constituted a marital asset. Thus, those spouses of members of the armed forces who obtained dissolutions prior to McCarty were entitled to share in their spouses' military pension. Likewise, those spouses who obtain dissolutions after Kecskes will be entitled to have their spouses' military pensions treated as a marital asset. However, those spouses who were divorced during the period between McCarty and Kecskes were denied this right. To forbid those spouses who were divorced during this period from obtaining a modification of their decrees would create a category of people who were denied substantial rights solely because of the unfortunate time within which their decrees happened to be made final. This fate does not befall others similarly situated whose decrees were not or will not be made final during that period.

The legislative history of the USFSPA indicates that the Act was meant to apply to those spouses who were divorced during the period between McCarty and the Act. "The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981)." 1982 U.S.Code Cong. & Ad.News 1555, 1596. It is also clear that Congress meant for the law to apply retroactively. The Committee Report states at p. 5:

The provisions of S.1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that...