Berry v. Meadows

• Decision Date: 07 January 1986
• Docket Number: No. 8237,8237
• Citation: 1986 NMCA 2,713 P.2d 1017,103 N.M. 761
• Parties: , 54 USLW 2467 Beverly I. BERRY, formerly Beverly I. Meadows, Petitioner-Appellant, v. Willie v. MEADOWS, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1017

713 P.2d 1017

103 N.M. 761, 54 USLW 2467

Beverly I. BERRY, formerly Beverly I. Meadows, Petitioner-Appellant, v. Willie v. MEADOWS, Respondent-Appellee.

No. 8237.

Court of Appeals of New Mexico.

Jan. 7, 1986.

[103 N.M. 763] Sandra Morgan Little, Atkinson & Kelsey, P.A., Albuquerque, for petitioner-appellant.

Jerome D. Matkins, Matkins & Davis, Carlsbad, for respondent-appellee.

OPINION

DONNELLY, Chief Judge.

Wife appeals from the trial court's order dismissing her petition to divide previously undivided community property interests in her former husband's military retirement and his retirement from the Potash Company of America (PCA). There are five issues: (1) whether substantial evidence exists to support the trial court's finding of an oral agreement for disposition of military retirement benefits; (2) failure of trial court to divide wife's interest in the PCA retirement; (3) whether the statute of limitations or laches bars wife's right to past military retirement benefits; (4) wife's right to future military retirement benefits; and (5) wife's right to attorney's fees. Reversed and remanded.

The parties were married from 1952 to 1977, with the exception of a three-month period in 1963, during which husband and wife were divorced and then remarried. Husband served in the military service from 1951 to 1972, when he retired with twenty-one years of credit. The parties were divorced on November 14, 1977, in Eddy County, New Mexico. At the time of the divorce, husband received a net monthly military retirement payment of $524.00 per month. On January 31, 1984, at the time of the hearing wife's petition to divide additional assets, husband's net monthly military retirement payment was $772.00.

In 1973, after his discharge from the military in May, 1972, and prior to the divorce of the parties, husband began to work for PCA. The PCA retirement vests after ten years of employment, but retirement benefits do not mature until the employee attains sixty-five years of age. At the time of the divorce, husband was not receiving PCA retirement.

In his petition for divorce, husband alleged that his military retirement benefits and the PCA retirement were community property. Husband and wife, through their respective counsel, entered into a written marital settlement agreement. However, no express reference was made in the settlement agreement to either the PCA or military retirement benefits. In Pacheco v. Quintana, Ct.App.No. 8181 (Filed December 23, 1985), we rejected wife's argument that military retirement benefits had not previously been divided and were now subject to division. While Pacheco was in part similar to the instant case, the property settlement agreement in Pacheco compelled a different result. The parties in Pacheco agreed that husband would retain the balance of the community property, mutually released each other from further claims and agreed that the division was a full and complete settlement. In the present case, retirement benefits were not previously divided.

On July 11, 1983, wife filed a petition in the District Court of Eddy County, New Mexico, alleging that when the parties were divorced in 1977, the interests of the parties in husband's military retirement and in the PCA retirement were left undivided and that husband had been receiving military retirement pay since 1972.

Husband answered wife's petition for division of the undivided community property and admitted that the written property settlement agreement and final decree of divorce failed to divide all the interests of the parties, but alleged that since husband had had no vested right in the pension from PCA, wife was not entitled to any interest in the PCA retirement benefits. Husband denied generally that wife had any interest in his military retirement. No affirmative defenses were expressly pled by husband in response to wife's petition.

The trial court adopted findings of fact and conclusions of law, stating inter alia:

3. * * * Included in [his] Petition in said divorce cause [Husband] plead [sic] the existence of possible community interests in Potash Company of America retirement plan and retirement from the United States as a result of his naval service. Answer to the Petition was duly filed by the attorney for [wife]. On November 8, 1977, [the] parties entered into a Property Settlement Agreement [in the divorce action], wherein the parties agreed as to custody of a child, child support and division of community assets and temporary alimony * * *.

4. At the time of the Agreement and entry of the Decree, both parties and their attorneys knew of the existence of the retirement benefits with the Navy and the possible existence of retirement benefits with Potash Company of America as shown by the pleadings of the record * * *.

5. Both parties and their attorneys knew of the existence of the military retirement and agreed that said retirement would be paid to [husband], as a part of their Agreement, although this matter was not mentioned specifically in the Agreement or the Decree.

6. [Wife] had full knowledge of the existence of the military retirement benefits both at the time of the Decree in November of 1977, and through the time of the filing of the Petition in this cause.

7. There was no value as to the Potash Company of America Retirement Fund at the time the parties were divorced in 1977.

The trial court concluded that wife was "barred from maintaining this action because it [the military retirement] is not a community asset that was [unknown to the parties] at the time [they] were divorced, but on the contrary was fully known to [wife] and taken into account by consent." The court also concluded that wife was barred from asserting any interest in the military retirement under the statute of limitations, laches, and waiver.

I. SUBSTANTIAL EVIDENCE

Wife's petition for division and distribution of her interest in the undistributed community assets was based upon statutory grounds. NMSA 1978. Section 40-4-20 (Repl.Pamp.1983), provides:

The failure to divide the property on dissolution of marriage shall not affect the property rights of either the husband or wife, and either may subsequently institute and prosecute a suit for division and distribution, or with reference to any other matter pertaining thereto, which could have been litigated in the original proceeding for dissolution of the marriage.

On appeal, wife asserts that there is no substantial evidence in the record to support the trial court's finding of an express agreement between the parties of wife's relinquishment of all her rights in husband's military benefits. We agree.

Husband's petition for divorce in Eddy County alleged that the military retirement benefits were community property. The final decree of divorce entered by the court found all of the allegations of husband's petition to be true. Wife argues on appeal that the trial court could not properly consider extrinsic evidence to change the meaning of the decree, where the decree was clear and unambiguous. See Parks v. Parks, 91 N.M. 369, 574 P.2d 588 (1978). Husband contends that even though the divorce decree found all of the allegations of his petition to be true, including the allegation that the military retirement was community property, nevertheless the decree omitted any division of this asset. Husband implies that these facts raise an ambiguity in the decree, and consequently, to explain the ambiguity, parties should be permitted to present testimony and evidence outside the decree. E.g., Parks v. Parks. Wife failed to assert in the trial court the argument now raised for the first time on appeal. Issues not properly raised in the trial court will not be considered on appeal. Eichel v. Goode, Inc., 101 N.M. 246, 680 P.2d 627 (Ct.App.1984). In light of wife's failure to object at trial, we find no error on the part of the trial court in its consideration of extrinsic evidence concerning the existence, if any, of an agreement between the parties concerning the disposition of husband's military retirement benefits.

Husband, wife, and husband's attorney testified that, at the time of divorce, they believed the military retirement was husband's separate property. Husband also testified that the only agreement entered into between the parties during their divorce was the marital settlement agreement dated November 8, 1977, and that there were no outside agreements. Husband testified further that he was not claiming that wife had no interest in the retirement; rather, he believed that the division of property between the parties had been settled. He stated that: (1) at the time of the divorce, the parties were under the impression that the military retirement belonged to the retiree; and (2) he "believed" that his former wife did not want the retirement.

After the divorce, wife testified that she learned that under New Mexico law she was entitled to her community property share of husband's military retirement. See Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 (1983) (upholding the LeClert rule that military retirement is community property subject to division on dissolution of marriage); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969) (holding that the portion of military retirement earned during marriage became part of the community property subject to division in the divorce proceeding).

Even when viewed in a light most favorable to the trial court's finding together with all reasonable inferences, the trial court's finding that wife orally agreed to relinquish her interest in the retirement benefits is not supported by substantial evidence. At most there is an inference that wife and her attorney were mistaken in their belief that wife could not assert a right to husband's military retirement benefits.¹ Substantial evidence is relevant evidence which a reasonable mind might accept as sufficient to support a conclusion. Schober v....