Beltran v. Razo

• Decision Date: 13 March 1990
• Docket Number: No. 2,CA-CV,2
• Citation: 163 Ariz. 505,788 P.2d 1256
• Parties: Amparo C. BELTRAN, f.k.a. Amparo C. Razo, Petitioner/Appellant, v. John P. RAZO, Respondent/Appellee. 89-0204.
• Court: Arizona Court of Appeals

Page 1256

788 P.2d 1256

163 Ariz. 505

Amparo C. BELTRAN, f.k.a. Amparo C. Razo, Petitioner/Appellant, v. John P. RAZO, Respondent/Appellee.

No. 2 CA-CV 89-0204.

Court of Appeals of Arizona,

Division 2, Department A.

March 13, 1990.

[163 Ariz. 506] Ronald J. Kalish, Tucson, for petitioner/appellant.

Curtis & Cunningham by Marjorie Fisher Cunningham, Tucson, for respondent/appellee.

OPINION

HOWARD, Judge.

This is an appeal from the trial court's order denying the petitioner her share of respondent's military retirement pension. The parties were married on October 11, 1959 and divorced on September 4, 1981. The respondent was on active duty with the United States Army and the United States Air Force from June 6, 1957 to April 30, 1980. After his retirement in 1980, the respondent began receiving his military pension and there is no dispute that the parties were domiciled in a community property state at all times during the respondent's service with the military. The decree of divorce made no mention of respondent's retirement benefits which he has received in their entirety.

On January 12, 1989, petitioner filed an order to show cause requesting the division of previously undivided community property--her interest in her former husband's military retirement pay. A hearing was held at which both parties testified. Petitioner gave no explanation for waiting so long before seeking a division of the pension. The evidence shows that both parties had remarried. The respondent had remarried on December 26, 1981, and had adopted the minor child of his new wife.

In her final argument to the court, petitioner requested that if the court felt there was an unreasonable delay in bringing the petition, at least she should get her share of future retirement benefits. The trial court refused to award her any of the retirement pay, finding that the strong public policy of the state disfavors reopening decrees and further finding that the doctrine of laches applied.

On appeal the petitioner has abandoned her request for the division of retirement pay received prior to the date of the filing of her petition but contends that the trial court erred in not dividing the retirement benefits received and payable after such date. We agree.

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), decided June 26, 1981, the Court held that there were no community property rights in military retirement benefits. Congress responded to this decision by enacting the Uniform Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408, effective February 1, 1983, which made military retirement benefits subject to state community property laws. The act wipes out the effects of McCarty on persons divorced in the interim period.

Arizona addressed the retroactivity of USFSPA in Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895 (1984), holding that the trial court can modify a decree of dissolution based on a negotiated settlement agreement finalized after McCarty but before the effective date of USFSPA.

Both the trial court and respondent rely on Kelly v. Kelly, 160 Ariz. 487, 774 P.2d 226 (App.1989) for the public policy and laches theories. This reliance is misplaced because Kelly involved a property settlement agreement and decree finalized prior to McCarty. The present case presents a fact situation that not only differs from Kelly but also differs from Edsall in that here neither the stipulation of the parties as to the...