Bottiggi v. Wall

• Decision Date: 10 April 2002
• Docket Number: No. 99-P-1737.,99-P-1737.
• Citation: 765 NE 2d 819,54 Mass. App. Ct. 430
• Parties: DOLORES G. BOTTIGGI v. ROBERT A. WALL, SR.
• Court: Appeals Court of Massachusetts

54 Mass. App. Ct. 430

765 NE 2d 819

DOLORES G. BOTTIGGI v. ROBERT A. WALL, SR.

No. 99-P-1737.

Court of Appeals of Massachusetts, Plymouth.

November 9, 2001.

April 10, 2002.

Present: BROWN, GREENBERG, & MCHUGH, JJ.

Robert G. Wilson, IV, for the plaintiff.

Kevin M. Flannigan for the defendant.

McHUGH, J.

Dolores Bottiggi was divorced from her husband, Robert Wall, by a final decree entered in 1976. In 1991, she filed a complaint seeking an equitable division of Wall's United States Navy retirement pension. A judge of the Probate Court dismissed Bottiggi's complaint on grounds of res judicata and on grounds that, even if the merits were open for consideration, the Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(1) (1990) (USFSPA), prohibited the pension division she sought. From that dismissal, Bottiggi appeals.¹ The judge's dismissal of the case on grounds of res judicata was error and, although we agree with his resolution of the USFSPA issue, resolution of that issue left another issue open. We therefore reverse.

The essential facts begin with the complaint for divorce Bottiggi filed in 1976 to dissolve her seventeen-year marriage to Wall, a marriage that had produced two children. In her complaint, Bottiggi sought custody of, and support for, the children, plus sole ownership of the former marital home in Kingston. Wall responded with a cross complaint for divorce in which he also sought custody of the children and ownership of the Kingston property. As the litigation proceeded, both Wall and Bottiggi filed financial statements disclosing their assets, including a $125 weekly payment Wall received as his Navy pension. At some point before the divorce decree entered, Wall and Bottiggi sold the Kingston property and divided the proceeds.²

On January 13, 1977, the court awarded a divorce to Bottiggi, nunc pro tunc as of October 27, 1976, and entered a decree granting her child custody and support. The decree, however, contained no provision for alimony or property division, made no mention of the pension, and said nothing about retaining jurisdiction to deal with any aspect of the marital estate later.³

On November 19, 1991, nearly fifteen years after the divorce decree, Bottiggi filed a complaint pursuant to G. L. c. 208, § 34, seeking alimony.⁴ After delays for reasons here immaterial, the complaint came on for trial. By that time, Bottiggi had waived her alimony claim in favor of a claim for a share of Wall's pension. Moreover, she and Wall had reduced the live issues the case presented to two, i.e., whether the doctrine of res judicata prevented the court from dividing Wall's pension and, if not, whether the court had the power to divide the pension, or to consider that pension as Wall's asset when dividing other marital property,⁵ given the provisions of the USFSPA.

After trial, the judge found⁶ that Wall had disclosed the existence of his pension on the financial statement he filed during the 1976 divorce proceedings but that he and Bottiggi "through counsel considered the pension and litigated its division or declined to do so at the time of the divorce" (emphasis added). He also found that, at the time of the divorce, Bottiggi had not asked the court to retain jurisdiction over Wall's pension or to treat it as a divisible marital asset. From those findings, the judge concluded that the doctrine of res judicata barred consideration of the pension in Bottiggi's new action. He also concluded that "under the USFSPA, the parties' October 27, 1976 divorce judgment may not be modified to provide for division of Wall's military pension. 10 U.S.C. § 1408(c)(1), amended by Pub. L. 101-510, § 555(e) (1990)." A resulting judgment dismissed Bottiggi's complaint and this appeal followed.

The recited facts show the error of dismissing Bottiggi's complaint on grounds of res judicata. As the trial judge correctly noted, G. L. c. 208, § 34, permits the Probate Court to divide marital property "upon divorce or upon a complaint in an action brought at any time after a divorce." Before res judicata will impose a limitation on the postdivorce dispositional power § 34 creates, the party seeking the limitation⁷ must prove that division of marital property was necessarily involved, litigated, and determined as part of the divorce proceedings themselves. See Maze v. Mihalovich, 7 Mass. App. Ct. 323, 326 (1979); Davidson v. Davidson, 19 Mass. App. Ct. 364, 367 (1985).⁸ Here the judge found simply that the parties either litigated the property division issue or declined to do so.⁹ That is not enough. Only actual litigation and determination, or a competent release of all rights to the undivided property, will suffice.

We thus turn to the USFSPA, a statute Congress enacted to remedy a problem created by an earlier effort it had undertaken to solve a different problem. From the Congressional standpoint, the Supreme Court of the United States created the original problem when it held in McCarty v. McCarty, 453 U.S. 210, 223 (1981) (McCarty), that "the application of community property law conflicts with the federal military retirement scheme" and, as a result, that Federal law prohibited State courts from dividing military retirement pay pursuant to State community property laws.

Congress thought that retirement pay should not be exempt from division under State laws and acted promptly to undo McCarty by passing the USFSPA, 10 U.S.C. § 1408 (1982). According to the Senate Report that accompanied the bill to the floor,

"the USFSPA was intended to remove the federal preemption found to exist in McCarty 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 divisable."

S. Rep. No. 97-330, 97th Cong., 2d Sess. 16 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1611.

With the USFSPA's adoption, military pensions became divisible in the same manner as other marital assets. Mansell v. Mansell, 490 U.S. 581, 589 (1989).¹⁰ Soon, however, State courts began permitting litigants to reopen divorce judgments that had become final before the USFSPA's enactment in order to divide pensions in accordance with the power the Act conferred. To Congress, those reopenings were undesirable and, in a series of nonlegislative measures, it made its feelings known. When the message embodied in those measures did not sink in, Congress turned to remedial legislation. As explained in the House Report dealing with that legislation, "some state courts have been less than faithful in their adherence to the spirit of the USFSPA. The reopening of divorce cases finalized before the Supreme Court's decision in McCarty ... that did not divide retired pay continues to be a significant problem. Years after final divorce decrees have been issued, some state courts, particularly those in California, have reopened cases (through partition actions or otherwise) to award a share of retired pay. Although Congress has twice stated in report language that this result was not intended, the practice continues unabated. Such action is inconsistent with the notion that a final decree of divorce represents a final disposition of the marital estate."

H.R. Rep. No. 101-665, 101st Cong., 2d Sess. 279 (1990), reprinted in 1990 U.S.C.C.A.N. 2931, 3005.

The remedial legislation was enacted as an amendment to 10 U.S.C. § 1408(c)(1). As amended, the section continued to provide that, with limitations having no impact on this case, State courts had the power to divide military pensions in accordance with State laws governing division of other marital property, except that a State court could not divide military pensions

"if a final decree of divorce ... affecting the former member of the military and the member's spouse ... (A) was issued before June 25, 1981,¹¹ and (B) that decree did not treat (or reserve jurisdiction to treat) any amount of retirement pay of the member as property of the member and the member's spouse ...."¹²

As noted earlier, the 1976 decree dissolving Bottiggi's marriage to Wall neither "treated" nor "reserved jurisdiction to treat" Wall's Navy pension. Moreover, apart from the appearance of that pension as an income source on Wall's financial statement, nothing in the present record suggests that the court "treated" that pension in the proceedings before entry of the decree. Absent some escape hatch, the USFSPA therefore precludes the pension division Bottiggi now seeks.

Bottiggi proposes that G. L. c. 208, § 34, itself provides her with the necessary means of escape. She argues that, by empowering the Probate Court to divide property after a divorce, § 34 gives the court "continuing jurisdiction" to divide any property in the marital estate. That continuing jurisdiction, she argues, should be viewed as the kind of reservation of jurisdiction 10 U.S.C. § 1408(c)(1)(B) describes.

Primarily for two reasons, Bottiggi's argument is unpersuasive. First, the argument is wholly eroded by § 34's express language. Section 34 states that property may be divided "upon a complaint in an action brought at any time after a divorce" but only if there is, at the time the new complaint is filed, "personal jurisdiction over both parties." A property division under § 34 thus is not simply a continuation of the original proceeding. See Cherrington v. Cherrington, 404 Mass. 267, 269-271 (1989). Instead, it requires a new complaint accompanied by a new jurisdictional assessment. Vangel v. Martin, 45 Mass. App. Ct. 76, 78-79 (1998). Requiring a new assessment of jurisdiction is fundamentally inconsistent with the notion that the new proceedings are "jurisdictionally" dependent on, or "jurisdictional" extensions of, the old.

Second, the continuing jurisdiction theory, in a variety of guises, has been tried elsewhere and almost universally rejected in favor of reading the USFSPA in the manner its words quite plainly require, i.e.,...