Andresen v. Andresen

• Decision Date: 10 October 1989
• Parties: Ruth M. ANDRESEN v. Ralph E. ANDRESEN. 111 Sept. Term 1987.
• Court: Maryland Court of Appeals

Page 380

317 Md. 380

564 A.2d 399

Ruth M. ANDRESEN v. Ralph E. ANDRESEN.

111 Sept. Term 1987.

Court of Appeals of Maryland.

Oct. 10, 1989.

Melvin G. Bergman, Lanham (Ronald S. Goldberg, Gaithersburg, both on brief), for appellant.

Charles Sures (Sures, Dondero & McCarron, on brief), Silver Spring, for appellee.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

COLE, Judge.

Ruth Andresen seeks to share in her husband Ralph's military retirement pay. She was denied this relief when the trial court dismissed her motion to modify a decree of divorce.

Ruth and Ralph were divorced in Maryland on November 13, 1981, after some forty years of marriage. The decree of divorce incorporated a handwritten settlement agreement between the parties which provided the following: Ralph would pay Ruth $500 in alimony per month for five years, Ralph would contribute $425 toward Ruth's attorney's fee, and the parties would divide the cost of the divorce action. Neither the settlement agreement nor the divorce decree contained any provisions relating to Ralph's military pension.

On June 26, 1981, the United States Supreme Court ruled that, as a matter of federal law, courts could not subject military retirement pay to division upon divorce. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). We applied this ruling in Hill v. Hill, 291 Md. 615, 621, 436 A.2d 67, 70 (1981). On the other hand, in Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981), we held that, as a matter of Maryland law, all pensions and retirement benefits accruing during the marriage were marital property. In the Deering opinion, 292 Md. at 117 n. 2, 437 A.2d at 884-885 n. 2, we specifically noted that military pensions were controlled by federal law, citing the Supreme Court decision in McCarty v. McCarty, supra and our own decision in Hill v. Hill, supra.

Thus, at the time the Andresens divorced, had the trial court been asked to consider the status of Ralph's military pension, both the Hill and McCarty decisions would have mandated awarding the pension entirely to Ralph under the controlling federal law.

Shortly after the Andresens' divorce became final, changes in federal statutory law permitted courts to consider military pensions as marital assets for distribution in divorce proceedings. About four years later, on March 12, 1986, Ruth, based solely on these changes in the law, filed in the Circuit Court for Montgomery County a motion to modify the 1981 divorce decree to allow her to share in Ralph's pension proceeds. Ruth's motion failed to specify what procedural mechanism, if any, authorized the court to disturb the finality of the more than four-year-old divorce decree.

Ralph moved to dismiss and after hearing argument Judge William M. Cave granted Ralph's motion. Ruth appealed this result to the Court of Special Appeals, but we granted certiorari prior to argument in the intermediate appellate court to consider whether the motion to dismiss was properly granted.

We shall set forth the changes in the law which Ruth asserts constitute sufficient justification to reopen the final divorce decree to allow her to share in Ralph's military pension benefits. As alluded to earlier in this opinion, in McCarty, the Supreme Court held that military retirement benefits could not be distributed as community or marital property in state court divorce proceedings. In response to the McCarty decision, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) on September 8, 1982, codified in pertinent part at 10 U.S.C. § 1408(c)(1), effective February 1, 1983. The USFSPA provides:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a [service] 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.

The purpose of this act was underscored by the Senate Report which stated:

The purpose of this [Act] is to place the courts in the same position they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The [Act] is intended to remove the federal preemption found to exist by the United States Supreme Court 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 divisible. Nothing in this [Act] requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.

Senate Report No. 97-502, July 22, 1982, reprinted in 1982 U.S.Code Cong. & Admin.News, 1555, 1596, 1611.

In essence, pursuant to the USFSPA, Maryland law was to determine whether military pensions were marital property. And, under Maryland law, as construed in Deering v. Deering, supra, pensions generally, including military pensions, are marital property. Moreover, this was confirmed by the General Assembly which, in Ch. 159 of the Acts of 1983, § 2, now codified as Maryland Code (1984), § 8-203(b) of the Family Law Article, stated that "[i]n this subtitle, a military pension shall be considered in the same manner as any other pension or retirement benefit."

Not only did Congress in the USFSPA intend to overrule the Supreme Court's McCarty decision and provide that state law should determine whether military pensions are marital property, but the legislative history reveals that Congress intended that the USFSPA be retroactive. ¹ Moreover, the legislative history indicates that Congress contemplated that divorce decrees, entered between the date of the McCarty decision and the effective date of the USFSPA, might be reopened. The previously quoted report of the Senate Committee on Armed Services stated (Senate Report No. 97-502, supra, 1599-1600) "Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have an opportunity to return to court to have their decrees modified in light of this legislation."

And later, the report explains (id. at 1611):

This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.

The congressional contemplation concerning the reopening of decrees comports with Rule 60(b) of the Federal Rules of Civil Procedure. ² Specifically, Rule 60(b) contains two subsections which allow a court great latitude to permit post-final judgment relief. First, in subsection (b)(5) a court may relieve a party from a final judgment if "it is no longer equitable that the judgment should have prospective application." This provision allows a court to employ its equity power to determine that a judgment should be vacated. Second, the rule provides in subsection (b)(6) that a court may relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment." Obviously this broad language vests a court with wide discretion. Some thirty five (35) states have adopted language substantially the same as in FRCP 60(b)(5) and/or 60(b)(6). ³ Eight states have reserved equity or other broad powers to revise a final judgment. ⁴ The remaining group of states, into which we believe Maryland properly fits, limits the right of the court to revise or vacate the judgment to the specific grounds set forth in the applicable statute or rule. ⁵

Consequently, unlike the law in the great majority of states, Maryland law contains no procedural mechanism which would allow a Maryland court to reopen a divorce decree finalized for more than four years. There is no authority under Maryland law which permits a court to redetermine marital property more than 30 days after the decree becomes enrolled except under specific circumstances. Subsection (b) and (d) of Maryland Rule 2-535 authorize a judgment to be revised only in case of fraud, mistake, irregularity or clerical errors. ⁶ Moreover, our cases have rigorously emphasized the finality of judgments. See generally Penn Cent. Co. v. Buffalo Spring & Equipment Co., 260 Md. 576, 273 A.2d 97 (1971) (emphasizing the desirability that there be an end to litigation).

For example, in Platt v. Platt, 302 Md. 9, 485 A.2d 250 (1984), we considered a husband's petition to amend a five-year-old enrolled divorce decree. Chief Judge Murphy, writing for the Court, held that the trial court lacked power to revise the decree. In so doing, he succinctly summarized the controlling principles:

The law governing the power and control of a circuit court over an enrolled decree is firmly established. In the context of this case in which "newly discovered evidence" is not a concern, it is spelled out by rule--former Maryland Rules 625a and 681; by statute--Maryland Code (1974, 1984 Repl.Vol.) § 6-408 of the Courts and Judicial Proceedings Article; and by judicial decision--e.g. Maryland Lumber v. Savoy Constr. Co., 286 Md. 98, 405 A.2d 741 (1979); Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A.2d 837 (1975). Read together, the rules, the statute and our decisions boil down to a dictate that for a period of thirty days from the entry of a law or equity judgment a circuit court shall have "unrestricted discretion" to revise it. Maryland Lumber, 286 Md. at 102, 405 A.2d 741. Thereafter, a circuit court has revisory power and control over a judgment only in case of fraud, mistake, irregularity or clerical error, provided that the person seeking the revision acts with ordinary diligence and in good faith upon a meritorious...