Brown v. Brown, 90-CA-0071

• Decision Date: 27 December 1990
• Docket Number: No. 90-CA-0071,90-CA-0071
• Citation: 574 So.2d 688
• Parties: Betty Louise BROWN v. Ralph Nayland BROWN.
• Court: Mississippi Supreme Court

Page 688

574 So.2d 688

Betty Louise BROWN v.Ralph Nayland BROWN.

No. 90-CA-0071.

Supreme Court of Mississippi.

Dec. 27, 1990.

Keith R. Raulston, Heidelberg & Woodliff, Jackson, Darryl A. Hurt, Jr., Hurt & Hurt, Lucedale, Michael E. Wright, Akerman Senterfitt & Eidson, Orlando, Fla., for appellant.

Karl R. Steinberger, Bryant Colingo Williams & Clark, Pascagoula, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BLASS, JJ.

ROBERTSON, Justice, for the Court:

I.

In this case, the ex-wife of a retired Naval officer belatedly seeks an equitable division of her former husband's military retirement pension and claims she can avoid the bar of res judicata by an express reservation written into the 1982 consent decree of divorce.We have examined the reservation and find that, in light of Mississippi law, it preserved to the wife no rights she may enforce at this time.

The Chancery Court summarily rejected her claim.We affirm.

II.

Betty Louise Brown was born June 21, 1938, and presently lives in Winter Park, Florida.Betty was the plaintiff below and is the appellant here.

Ralph Nayland Brown was born April 10, 1936, and is an adult resident citizen of George County, Mississippi, residing out from Lucedale.Ralph was the defendant below and is the appellee here.

On June 26, 1956, Ralph and Betty were married and for the better part of the next twenty-five years, Ralph served as an officer in the United States Navy.Four children were born of the marriage.In time Ralph and Betty separated, and in 1982--the year of Ralph's retirement from the Navy--the parties found themselves in a contested divorce proceeding before the Chancery Court of George County, Mississippi, with each party claiming substantial rights in the property of the other.Particularly, Betty sought alimony and the grant of an equitable interest in various items of real and personal property Ralph owned, including by inference his military retirement pension.The case was called for trial, and, after three witnesses testified, the parties began to talk and soon agreed upon the terms of the divorce.They presented to the Chancery Court an "Agreed Final Decree," approved by each, and formally entered by the Court on May 14, 1982.In relevant part, this decree provided:

Betty Louise Brown shall execute a Deed of Conveyance on her interest in the twenty acres of land in George County to Ralph Nayland Brown.Ralph Nayland Brown shall pay to Betty Louise Brown the sum of $6,000.00 in cash as lump sum alimony and said payment to be made within five days of the date hereof, the said Ralph Nayland Brown not be responsible for any further alimony except such rights as may now or hereafter be vested by law in Betty Louise Brown as to the Military retirement of Ralph Nayland Brown.

The above-quoted reservation may only be understood against the backdrop of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589(1981).McCarty held that the Supremacy Clause prohibited the states using their property laws to decree rights in a serviceman's pension, apparently on the view that then-extant federal statutory law controlled the matter.At the time of the Browns' divorce, the Congress had before it various bills designed to overrule or modify McCarty.Effective February 1, 1983, the Congress enacted the Federal Uniformed Services Former Spouses Protection Act, 10 U.S.C. Sec. 1408(hereinafter "FUSFSPA") which ended McCarty's reign and provided that states could enforce their property laws with respect to a serviceman's pension, retroactive to June 25, 1981.

On August 11, 1988, Betty returned to the Chancery Court of Jones County and filed her present complaint seeking an interest in Ralph's military retirement pension.She claimed that she was a faithful and dutiful wife for some twenty-five plus years and under Mississippi law was entitled to an equitable division of property jointly accumulated during the marriage.She alleged, specifically, that Ralph's military retirement pension was jointly accumulated personal property.She pointed to the reservation of the 1982 decree and said she was exempted from the res judicata effect that decree would otherwise have.On agreed facts, and cross-motions for summary judgment, the Chancery Court rejected Betty's claim.She now appeals to this Court.

III.

The 1982 divorce decree would ordinarily preclude Betty asserting today any claims that were or may reasonably have been brought in the original action.Bowe v. Bowe, 557 So.2d 793, 794(Miss.1990).In 1982, the Chancery Court had no authority to employ state law and declare rights and interests in and to a serviceman's retirement pension.McCarty v. McCarty, supra.In this setting the parties presented to the Court a consent decree awarding Betty the marital home, certain stocks, lump-sum alimony of $6,000.00, but leaving open

... such rights as may now or hereafter be vested by law in Betty Louise Brown as to the military retirement of Ralph Nayland Brown.[Emphasis supplied]

It is significant that this was an agreed decree, for rules of contracting come into play.SeeEast v. East, 493 So.2d 927, 931-32(Miss.1986).We are seldom much inclined on appellate review to read into judgments and decrees terms which are not there, and this is particularly so where the parties themselves wrote the decree.Roberts v. Roberts, 381 So.2d 1333(Miss.1980);Guthrie v. Guthrie, 233 Miss. 550, 556-57, 102 So.2d 381, 383-84(1958).On the other hand, the reservation the Browns wrote is clearly an exception to the normal rules of res judicata, and we should not be grudging in enforcement.

The exception applies to but a single item of personalty, Ralph's military retirement pay, and only to rights therein "vested by law in Betty Louise Brown.""Law," however, is certainly broad enough to include federal and state, statutory or otherwise.

As we perceive FUSFSPA, it did not vest any rights in anyone.It merely removed a federal bar and allowed the states to treat the military retirement pensions of their domiciliaries as personal property subject to state property laws.Powers v. Powers, 465 So.2d 1036, 1037(Miss.1985).Insofar as we are aware, the parties hereto were at all relevant times Mississippi domiciliaries.We encounter none of the choice of law problems which led to our decisions in Southern v. Glenn, 568 So.2d 281(Miss.1990);andNewman v. Newman, 558 So.2d 821(Miss.1990).

Turning to Mississippi law, we read "vested" to include "re-vested."Upon FUSFSPA's removal of the federal bar, did state law operate to (re)vest in Betty any rights in Ralph's pension?We have long recognized that, incident to a divorce, the Chancery Court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties.See, e.g.Brendel v. Brendel, 566 So.2d 1269, 1273(Miss.1990);Jones v. Jones, 532 So.2d 574, 580-81(Miss.1988);Regan v. Regan, 507 So.2d 54, 56(Miss.1987);Watts v. Watts, 466 So.2d 889, 891(Miss.1985);Clark v. Clark, 293 So.2d 447, 450(Miss.1974).We have never thought of this authority as a source of vested rights.Our cases hold that a spouse is not automatically entitled to an equal division of jointly-accumulated properties, Dillon v. Dillon, 498 So.2d 328, 330(Miss.1986);Rives v. Rives, 416 So.2d 653, 657(Miss.1982).The matter rather is committed to the discretion and conscience of the Court, having in mind all of the equities and other relevant facts and circumstances.SeeRobinson v. Irwin, 546 So.2d 683, 685(Miss.1989).

After McCarty and until FUSFSPA--a period of some nineteen months--it is true that federal law pre-empted state authority to apply state equitable division principles to divide military retirement pay.FUSFSPA removed the pre-emption bar but that is all.This is not what we normally think of as a (re)vesting of rights in parties....