Armstrong v. Armstrong

• Decision Date: 07 April 1987
• Docket Number: No. 864DC748,864DC748
• Parties: Martha G. ARMSTRONG v. Ivan O. ARMSTRONG.
• Court: North Carolina Court of Appeals

Page 350

354 S.E.2d 350

85 N.C.App. 93

Martha G. ARMSTRONG v. Ivan O. ARMSTRONG.

No. 864DC748.

Court of Appeals of North Carolina.

April 7, 1987.

Charles William Kafer, New Bern, for defendant-appellant.

Merritt & Stroud by Timothy E. Merritt, Jacksonville, for plaintiff-appellee.

GREENE, Judge.

After a one-year separation, plaintiff brought this action on 14 May 1984 for divorce and equitable distribution of the parties' marital property. Defendant also requested absolute divorce but asserted, among other things, that N.C.Gen.Stat. Sec. 50-20(b)(1) was unconstitutionally amended in 1983 to reclassify his vested military pension as marital property. Defendant's motion to dismiss the suit because of such unconstitutionality was denied by the trial court.

The trial court heard the case without a jury. In connection with its grant of absolute divorce, the court stated in its conclusions of law that "after consideration of the evidence presented and the factors enumerated in North Carolina General Statute 50-20, the court concludes that an equal division of marital property is equitable." Based in part on his constitutional arguments and the trial court's failure to make findings on the parties' health or their relative incomes and property, defendant appealed the court's awarding plaintiff 43.5% of defendant's Marine Corps retirement pay. In connection with defendant's appeal, the trial judge required a secured performance bond in addition to an appeal bond of $250.00.

The evidence tended to show that defendant entered the Marine Corps in June 1948 where he served until his retirement in January 1969. Plaintiff and defendant married in February 1951. The parties separated on 1 April 1983 and did not reside together after that date. The parties stipulated they were married 87% of the time during which defendant's entitlement to retirement pay accrued. After his retirement, defendant went into several different businesses; however, he was eventually hospitalized in Dorothea Dix and Cherry Hospitals in 1978. The parties also stipulated defendant suffered from the psychotic disorder known as paranoid schizophrenia. Defendant was unemployed at the time of trial. Defendant's only income was his military retirement check in the gross amount of $789.00 per month. At trial, defendant had an injured hand and had hearing aids in both ears. A psychologist testified that defendant's ability to maintain full-time employment was questionable. Defendant was 55 years old and had living expenses in the approximate amount of $1,200 each month.

At trial, plaintiff was employed and had a gross income of approximately $1,550.00 per month. Her 1984 gross income was approximately $29,000.00, out of which she testified she paid two employees' salaries. She had a checking account balance of $1,292.22 and a savings account balance of $342.82. Plaintiff also had $4,000.00 in an IRA account. Plaintiff had had bladder surgery three times. She will possibly need additional surgery resulting in her wearing an external bladder device. Her last surgery was in 1979 or 1980. Plaintiff claimed to suffer from a rare eye nerve disorder which caused her to lose vision in both eyes if she looked in a direction other than straight ahead. Her eyes were checked every three months and seemed normal at the time of trial.

The trial court found the parties' marital property included various items of personal and real property having a value of $54,511.07 on the date of their separation. In addition, the trial court equally divided, but did not value, a silver collection. Defendant's military retirement pay was neither included in the $54,511.07 valuation nor otherwise valued by the trial judge. Since the parties stipulated they were married 87% of the time defendant's entitlement to retirement pay accrued, plaintiff's marital share of defendant's retirement pay was 43.5%.

The issues before this Court are: (1) whether defendant's failure to post a secured performance bond requires dismissal of this appeal; (2) whether the Legislature's re-classification of defendant's military retirement pay as marital property unconstitutionally: (a) deprived defendant of vested property without compensation or (b) denied defendant the equal protection of the laws because of gender; and (3) whether the trial court erred in entering its equitable distribution judgment.

I

In his appeal entry, the trial judge required the defendant post a secured performance bond in the amount of $7,000.00. Plaintiff has moved to dismiss this appeal for defendant's failure to comply with the trial court's bond requirement. Defendant does not dispute his failure to post the secured performance bond.

In a civil action, Rule 6(a) of the Rules of Appellate Procedure provides that an appellant "must provide adequate security for the cost of appeal in accordance with the provisions of G.S. 1-285 and 1-286." N.C.Gen.Stat. Sec. 1-285 states in part:

To render an appeal effectual for any purpose in a civil cause or special proceeding, a written undertaking must be executed on the part of the appellant, with good and sufficient surety, in the sum of two hundred fifty dollars ($250.00) or any lesser sum as might be adjudged by the court....

N.C.Gen.Stat. Sec. 1-286 simply requires an affidavit of worth from the surety. An appeal must be dismissed when a party does not provide the appeal bond ordered by the trial judge. Lunsford v. Alexander, 162 N.C. 528, 78 S.E. 275 (1913); Appellate Rule of Procedure 6(d). Defendant has posted his appeal bond of $250.00 as provided under N.C.Gen.Stat. Sec. 1-285. However, posting a "secured performance bond" is not a condition precedent to appeal under statute or appellate rules. We therefore refuse to dismiss defendant's appeal.

II

As enacted in 1981, N.C.Gen.Stat. Sec. 50-20(b)(2) provided that "vested pension or retirement rights ... shall be considered separate property." Effective 1 August 1983, that provision was deleted and Section 50-20(b)(1) was amended to provide that "marital property includes all vested pension or retirement rights, including military pensions eligible under the Uniform Services Former Spouse's Protection Act [hereinafter, the "USFSPA"]." The definition of marital property in Section 50-20(b)(1) was again amended effective 9 July 1985 to include "other deferred compensation rights." The USFSPA is set forth at 10 U.S.C.A. Sec. 1408 (West 1983 & Supp.1986) and states in relevant part:

(c)(1) 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 25th, 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. [emphasis added]

(c)(2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse.

Section 1408(c)(1) of the USFSPA simply demonstrates Congressional intent that the states legislate the marital classification of military retirement pay. Cf. McCarty v. McCarty, 453 U.S. 210, 223, 101 S.Ct. 2728, 2736, 69 L.Ed.2d 589 (1981) (whether military retirement is current or deferred compensation, federal interest pre-empts state community property law). That Section 1408(c)(1) allows state regulation after June 25th, 1981 (the date of McCarty ) demonstrates Congressional intent that states regulate the marital character of military retirement pay. Given this Congressional authorization, our General Assembly chose in 1983 to re-classify retirement pay as marital property if the pay was otherwise eligible under the USFSPA.

A

Defendant first contends the 1983 amendment to N.C.Gen.Stat. Sec. 50-20(b)(1) constitutes a retroactive law which "deprived" him of a "vested property right" without compensation in violation of N.C.Const. art. I, sec. 19 which states in part:

No person shall be ... in any manner deprived of his ... property but by the law of the land. No person shall be denied the equal protection of the laws [.] [emphasis added]

Defendant contends the classification of his retirement pay as marital deprived him of vested property without compensation since defendant's benefit level would be reduced by any spousal share allowed under Section 1408(c)(1) of the USFSPA.

"Law of the land" is equivalent to the federal Fourteenth Amendment "due process of law" and federal court interpretations of the latter, though not binding, are highly persuasive in construing our own amendment. See Bulova Watch Co., Inc. v. Brand Distr. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974). While Article I, Section 19 does not expressly prohibit taking property without compensation, this right is nevertheless considered a part of the "law of the land" under the amendment. See Long v. City of Charlotte, 306 N.C. 187, 195-96, 293 S.E.2d 101, 107 (1982).

Defendant's contention that his right to military retirement pay is a constitutionally protected "vested property right" is simply incorrect. Defendant's right to retirement pay is a creature of federal statute, not private contract. See Phillips v. Phillips, 34 N.C.App. 612, 613, 239 S.E.2d 743, 744 (1977). The entitlement and requirements for Marine Corps retirement pay are generally set forth at 10 U.S.C.A. Secs. 6321-27 (West 1959 & Supp.1986). Such pay is computed under 10 U.S.C.A. Sec. 1401 et seq. (West Supp.1986). In U.S. v. Teller, 107 U.S. (17 Otto) 64, 68, 2 S.Ct. 39, 43, 27 L.Ed. 352 (1883), the U.S. Supreme Court specifically considered military pensions and held:

No pensioner has a vested legal right to his pension. Pensions are the bounty of the Government, which Congress has the right to give, withhold, distribute or recall, at its discretion.

Accord, Goodley v. U.S., 441 F.2d 1175, 1178 (Ct.Cl.19...