Bishir v. Bishir

Decision Date31 October 1985
PartiesJuanita June BISHIR and William J. Britt, Esquire, Movants, v. Donald Eugene BISHIR, Respondent.
CourtUnited States State Supreme Court — District of Kentucky
OPINION OF THE COURT

We granted discretionary review in this case to consider the effect of the Act of Congress of 1982 giving courts the right to consider military retirement pay as marital property. We have examined the briefs and the record and have heard oral argument. It is our considered judgment that the opinion of the Court of Appeals by Judge Wilhoit portrays the law of the case:

The opinion states:

"This is an appeal from an order of the Jefferson Circuit Court directing the appellant to pay to the appellee one-half of the military retirement pay that he receives each month and to pay her attorney a fee of $500.00.

"The marriage of the appellant, Donald Eugene Bishir, and the appellee, Juanita June Bishir, was dissolved by decree of the Jefferson Circuit Court entered on July 7, 1981. The decree incorporated by reference a property settlement and support agreement which the parties had signed on May 27, 1981. The agreement provided, among other things, that the appellant should pay the appellee $200.00 per month for the support of their seventeen-year-old child and that the appellant would transfer his interest in the parties' residence to the appellee as 'lump sum maintenance' in return for which 'she specifically waive[d] any other claims of maintenance she may have.' The agreement further provided for the disposition of other marital property and assigned which of the marital debts were to be paid by each of the parties. Each of the parties was to receive all funds in his or her checking, savings, and credit union accounts, the amounts of which do not appear in the record. The agreement set out that in consideration for it the parties agreed that 'as there is no other property to be divided,' the agreement 'shall forever settle any and all differences that have arisen or may arise in the future concerning the property rights of the parties hereto.' No mention was made of retirement pay.

"On April 25, 1983, the appellee filed a motion in the trial court requesting that court, 'pursuant to CR 60.02, to make an equitable division of the property not disposed of in the original divorce decree.' In support of this motion the appellee filed her affidavit stating that at the time that the divorce decree was entered, the appellant was entitled to military retirement pay which had been earned and vested during their marriage. She stated that at the time of the decree Kentucky courts 'were unwilling and unable to decide military retirement pay as marital property,' but that since that time the Congress had enacted the Uniformed Services Former Spouses Protection Act, 10 U.S.C. Sec. 1408 et seq. which gave her an interest in the appellant's retirement pay and made such interest applicable to divorce decrees entered on or after June 26, 1981.

"After an evidentiary hearing on the motion, the court found that at the time that the property settlement between the parties had been made, the appellee was not represented by counsel as she had previously dismissed her counsel, and that she believed and was advised by the appellant's counsel that it was not possible to reach the appellant's military retirement pay of $700.00 per month in any part so the retirement pay was not taken into consideration for any purpose in the agreement. It found that at the time of the agreement the appellant was employed, while the appellee was not, and that the appellee was now working as a part-time waitress, while the appellant was 'gainfully employed' and continuing to receive his military retirement pay. The court also found that when the agreement was made, the parties' residence had a net value of $1,000.00 over the mortgage debt owed on it, which was to be paid by the appellee. No other finding was made as to the complete financial resources of the parties either at the time of the original decree or later. The record does not disclose what that might be.

"The court concluded that it had jurisdiction to reopen its original decree under KRS 403.250(1), CR 60.02(f), and the Uniformed Services Former Spouses Protection Act; that the appellee had received inadequate consideration for her waiver of maintenance; and that the subsequent enactment of the Act coupled with the appellee's belief at the time of the execution of the agreement as to the status of the appellant's retirement pay demonstrated a reason of extraordinary nature justifying relief from the decree. The court then entered the order appealed from. It did not indicate whether the award to the appellee was as maintenance or as a division of marital property.

"The appellant contends that the circuit court was not authorized to grant the relief which it did because neither state or federal statute nor CR 60.02(f) authorized modification of the original decree as was done by that court.

"The Uniformed Services Former Spouses Protection Act permits military retirement pay which is payable after June 25, 1981, to be treated as marital property in accordance with state law. Its effect was to reverse by legislation the contrary holding of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). This Act did not become effective until February 1, 1983, over a year and a half after the decree here became final. The language of the Act does not appear to compel the opening of any final decree disposing of marital property apart from whatever might be the requirements of the various state jurisdictions for opening a decree. The Act has nothing to do with maintenance payments, nor did it need to because since 1975 'all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub.L. 93-647 Sec. 101(1), 88 Stat. 2357, 42 U.S.C. Sec. 659.' McCarty, 453 U.S. at 230, 101 S.Ct. at 2740.

"KRS 403.250(1...

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