Bullock v. Bullock, 10537

• Decision Date: 13 August 1984
• Docket Number: No. 10537,10537
• Citation: 354 N.W.2d 904
• Parties: Patricia Louise BULLOCK, Plaintiff and Appellee, v. Gerald Earl BULLOCK, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 904

354 N.W.2d 904

Patricia Louise BULLOCK, Plaintiff and Appellee, v.Gerald Earl BULLOCK, Defendant and Appellant.

Civ. No. 10537.

Supreme Court of North Dakota.

Aug. 13, 1984.

Alan J. Larivee, Grand Forks, for plaintiff and appellee; argued by Thomas Dickson, Bismarck.

Kuchera, Stenehjem & Wills, Grand Forks, for defendant and appellant; argued by Karen Wills, Grand Forks, Appearance by Joyce Hagen.

ERICKSTAD, Chief Justice.

Gerald E. Bullock appeals from a judgment of the district court, Grand Forks County, granting both Gerald and Patricia L. Bullock a divorce on the ground of irreconcilable differences.Gerald contends the district court clearly erred by ordering an apportionment of his future military retirement pay as part of the property division and by awarding alimony to Patricia.We affirm.

Patricia and Gerald were married in June, 1966, and were granted a divorce in August, 1983.At the time of trial Gerald was a Lieutenant Colonel in the United States Air Force while Patricia, a homemaker for most of her married life, was unemployed.In distributing the property of the parties, the district court specifically enumerated the Ruff-Fischer guidelines, then made the following findings of fact:

"Virtually all the property of the parties was acquired during the marriage.

"Gerald is 40 years of age and Patricia is approximately that age too.

"Gerald has a monthly income of $3,679.02 and nets about $1,662.59 after payments are taken out for the house, land, and '82 Toyota.His direct and indirect compensation amounts to approximately $50,000 a year.Gerald has a Bachelor's Degree plus Air Force Courses.

"Patricia is not working although she does have a Bachelor's degree in education.She has taught in the past.She will have to take some more courses to teach full time.The Court will take judicial notice of the fact that declining enrollments in this area have caused a decrease in the numbers of teaching positions in this area."

Pertinent findings of the district court concerning its distribution of Gerald's military retirement pay and award of alimony to Patricia read as follows:

"Retirement Pay

"The Court has reviewed the Uniform[ed] Services Former Spouses' Protection Act, 10 U.S.C.S. Sec. 1408.

* * *

* * * "The Court finds that Patricia was a good military wife and helped significantly to further her husband's career.

"Based on this finding and the applicable law the Court shall provide that as and part of the property division the Defendant shall pay the following to the Plaintiff according to the following formula:

17 years divided by number of years Defendant puts in the military times one-half of the Defendant's retirement benefit when he retires.Such property division shall be paid in monthly installments on the same basis that the Defendant is entitled to receive his military retirement benefits.Such payments shall be paid directly to the Plaintiff and not by the Defendant.Such payments shall continue until either the Plaintiff or Defendant dies.

"Alimony

"Alimony is a 'method for rehabilitating the party disadvantaged by the divorce.'Williams v. Williams, 302 N.W.2d 754(1981).

"It appears that Patricia is definitely disadvantaged by the divorce.Before she was an officer's wife with a nice home to live in and never had to scrimp to make ends meet.If she needed clothes or shoes for the boys or herself she was able to go out and buy such items.

"The Court will award the Plaintiff alimony in the amount of $1,200 per month.

"Such alimony shall continue until Patricia dies.This amount shall be subject to the continued jurisdiction of this Court and may be altered based on the financial position of the parties.If she had not been a military wife and mothershe could have been an established teacher.

"The Plaintiff's alimony shall cease when she starts to receive her share of the Defendant's retirement provided that her share of the retirement is at least as great as the alimony payment; or when she dies, whichever occurs first."

In addition, the district court directed that Gerald pay Patricia $17,795 for her share of a house owned by the parties in Parker, Colorado.This amount was calculated based on the court's distribution of the remainder of the marital estate:

To Patricia
                Land in Littleton, Colorado  $14,530  (net)
                  (subject to indebtness)
                Toyota '82 automobile          4,000  (net)
                  (subject to indebtedness)
                Household property            11,700
                Tax refund                     3,430
                All-Savers Certificate         2,180
                Savings Bonds                     60
                                             -------
                                             $35,900
                Cash payment                  17,795
                                             -------
                                             $53,695
                                             -------
                To Gerald
                Parker, Colorado house        $66,600  (net)
                  (subject to indebtedness)
                Toyota '71 automobile             300
                Household property              7,800
                Less: Patricia's share of
                 joint bills paid by Gerald   (3,210)
                                             --------
                                              $71,490
                Less: Cash payment           (17,795)
                                             --------
                                              $53,695
                                             --------
                

The court awarded the parties joint custody of their two children, Andrew, born August 29, 1969, and Thomas, born September 9, 1971; however, Gerald was granted physical custody of the children for a greater part of the year.Patricia was limited to "visitation" including ten weeks during summer months and one week over the Christmas holiday.

Military Retirement Pay

The issue of primary importance in this case is the effect of the "Uniformed Services Former Spouses' Protection Act,"Pub.L. No. 97-252,96 Stat. 730(1982)[codified at 10 U.S.C. Sec. 1408(1982) ] on the United States Supreme Court's holding in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589(1981), that federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws.This Court, in Webber v. Webber, 308 N.W.2d 548, 549(N.D.1981), remanded for the trial court's reconsideration, in light of the McCarty decision, of its conclusion that the plaintiff's military retirement benefits were property rights constituting marital assets subject to distribution upon dissolution of the marriage.In Rust v. Rust, 321 N.W.2d 504, 507(N.D.1982), we said that "Webber makes it clear that a military-retirement pension is not a divisible asset for purposes of a property division."

In McCarty, the Court examined the language, structure and legislative history of the applicable federal statutes and concluded "that the application of community property principles to military retired pay threatens grave harm to 'clear and substantial' federal interests."453 U.S. at 232, 101 S.Ct. at 2741.The Court acknowledged, however, that the plight of an ex-spouse of a retired service member is often a serious one, and said:

"Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member.This decision, however, is for Congress alone.We very recently have re-emphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs....Thus, the conclusion that we reached in Hisquierdo [ v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1(1979) ] follows a fortiori here: Congress has weighed the matter, and '[i]t is not the province of state courts to strike a balance different from the one Congress has struck.'439 U.S., at 590[99 S.Ct. at 813]."McCarty, 453 U.S. at 235-36, 101 S.Ct. at 2743[citation omitted].

Congress has since enacted the Uniformed Services Former Spouses' Protection Act [Act], effective February 1, 1983, pertinent provisions of which read as follows:

"(a) In this section:

(1)'Court' means--

(A) any court of competent jurisdiction of any State, ...

* * *

* * *

(4)'Disposable retired or retainer pay' means the total monthly retired or retainer pay to which a member is entitled (other than the retired pay of a member retired for disability under chapter 61 of this title) less amounts which--[six "amounts" are specified.]

* * *

* * *

(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court."

Congress' intent in enacting subsection (c)(1) was to reverse the effect of the McCarty decision.H.R.Conf.Rep. No. 97-749, 97th Cong., 2d Sess. 165(1982), reprinted in 1982 U.S.Code Cong. & Ad.News 1569, 1570.

"The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay.The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court 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 divisible.Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.This power is returned to the courts retroactive to June 26, 1981."S.Rep. No. 97-502, 97th Cong., 2d Sess. 16(1982), reprinted in 1982 U.S.Code Cong. & Ad.News 1596, 1611.

Numerous states have recently ruled that the effect of the Act is to leave to the states the final decision concerning the divisibility of military non-disability retirement pay.SeeChase v....