Clifton v. Clifton
| Decision Date | 18 September 1990 |
| Docket Number | No. 70357,70357 |
| Parties | Catherine L. CLIFTON, Appellee/Petitioner, v. Homer R. CLIFTON, Appellant/Respondent. |
| Court | Oklahoma Supreme Court |
Paul G. Smith, Norman, for appellee/petitioner.
Jack Dempsey Pointer, Jr., Oklahoma City, for appellant/respondent.
The dispositive question presented on certiorari is whether, pursuant to 12 O.S. Supp.1987 § 1289(F), 1 a post-decree property settlement can be modified to award to the wife a proportionate share of military retirement benefits earned by the husband during the marriage. We find that, in the absence of fraud, a property settlement award, as opposed to an award for support alimony, cannot be modified in a post-decretal hearing. The wife relies on Nantz v. Nantz, 749 P.2d 1137, 1141 (Okla.1988), in which we held that 12 O.S. Supp.1987 § 1289(D) and (E) could be applied retroactively to modify an award for support. Here, the issue is the retroactive modification of a property settlement agreement included within a final divorce decree. Property division was not an issue in Nantz, and when the Clifton's were divorced, military retirement benefits were nondivisible under Baker v. Baker, 546 P.2d 1325-26 (Okla.1975). The Court of Appeals reversed the trial court's award of benefits. We granted certiorari on April 2, 1990 to consider an issue of first impression. We find that property settlement awards are not modifiable pursuant to § 1289(F), and that Nantz does not support the wife's position. Because the Clifton decree cannot be modified to divide the military pension, we need not address the issue of retrospective modification of vested property rights.
The appellee/petitioner, Catherine L. Clifton (wife), and the appellant/respondent, Homer R. Clifton (husband), were married on April 12, 1966. The husband served in the military for twenty years--sixteen of which occurred during the marriage. The wife filed for divorce on January 25, 1983. The parties entered into an agreed settlement which was approved by the court, and a divorce was granted on August 31, 1983. 2 At the time of the divorce, the husband had begun receiving $700.00 per month in military retirement pay. The trial court found the retirement On October 9, 1987, the wife filed a motion to modify the divorce decree to include 50% of the husband's gross military retirement pay as jointly acquired property, including cost of living increases. Citing 12 O.S.Supp.1987 § 1289(F), the trial court sustained the motion to modify on January 12, 1988. The wife was awarded 40% of the retirement pay 3 based upon a formula which took into consideration the number of years of marriage, and the number of years of military service. In an unpublished opinion, the Court of Appeals reversed. We granted certiorari on April 2, 1990, to consider a question of first impression in Oklahoma.
benefits were not subject to division, and the husband's military retirement was awarded to him under the terms of the decree. The decree did not provide for support payments to the wife, or for payments in lieu of a property award. Neither party appealed from the entry of the decree of divorce.
MODIFIED IN A POST-DECRETAL HEARING.
The wife asserts that pursuant to 12 O.S. Supp.1987 § 1289(F), trial courts may retroactively modify property settlement provisions of divorce decrees rendered after June 26, 1981, to divide military retirement pay. Complex and unique circumstances surround the law of division of military pensions. This Court first addressed the issue in Baker v. Baker, 546 P.2d 1325-26 (Okla.1975). We held in Baker that military retirement benefits were not property acquired during coverture subject to division between the parties. On June 26, 1981, in McCarty v. McCarty, 453 U.S. 210, 228, 101 S.Ct. 2728, 2739, 69 L.Ed.2d 589, 603 (1981), the United States Supreme Court ruled that, as a matter of federal law, state courts could not subject military retirement pay to division upon divorce. Congress responded to McCarty on June 26, 1981, by enacting the Uniformed Services Former Spouses' Protection Act (Spouses' Protection Act). The Spouses' Protection Act provides in 10 U.S.C. § 1408(c)(1) (1982) that:
"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."
In enacting § 1408, Congress intended to leave the issue of division of military retirement benefits to the states. Nothing in the enactment requires division. Under the Spouses' Protection Act, state courts are permitted to apply state divorce laws to military retirement pay. 4 The Baker teaching that military retirement benefits were not divisible, was the prevailing law in Oklahoma when this divorce was filed on January 25, 1983. It was not until 1987, with the promulgation of Stokes v. Stokes, 738 P.2d 1346, 1348 (Okla.1987), that we determined that military pensions may be divisible as jointly acquired property. 5 In Stokes, we referred to § 1289(F) as an indication that the Legislature intended for military retirement pensions to be subject to property division. However, unlike the situation here, Stokes did not involve the retroactive division of military retirement benefits. Stokes arose as an appeal from the trial court's finding that the husband's military pension was not divisible as jointly acquired property.
The Spouses' Protection Act does not compel the post-decree disposition of marital Section 1289(F) states that it shall have retrospective effect "for the purpose of obtaining support or payments pertaining to a division of property on divorce decrees which become final after June 26, 1981." On initial reading of the statute, the wife's position appears meritorious. However, this language cannot be read in isolation. 8 The determination of legislative intent is the goal of statutory construction. 9 To ascertain the intent of the Legislature in enacting § 1289(F), we must consider the other portions of § 1289, 10 and other enactments relating to property division. 11 Where possible, relevant portions of a statute and related enactments will be considered together to give force and effect to all of them. 12
property. 6 Therefore, the wife is entitled to division of the husband's military retirement benefits only if Oklahoma law provides a mechanism which allows the district court to reopen the final decree. 7 The wife contends that § 1289(F) provides such a procedure
Taken in isolation, the quoted portion of § 1289(F) 13 appears to support a conclusion that property divisions finalized after June 26, 1981, may be subject to retroactive redistribution. However, on closer inspection, it is apparent that the provision for retroactive reopening of divorce decrees relates only to modifications of payments of alimony as support. Subsection (F) refers the reader to subsection (E) 14 stating that "the provisions of subsection (E) of this section shall have retrospective ... application." Subsection (E) provides for the modification of alimony for support upon proof of changed circumstances. There is no reference in
subsection (E) to modification of a property division.
The conclusion that the Legislature intended for § 1289(F) to apply only to payments of support alimony is bolstered by other subsections found within § 1289, and by the statutory scheme relating to divorce. Subsection (A) of § 1289 15 directs the trial court to designate, at the time the original divorce decree is entered, the dollar Were we to conclude that subsection (F) controlled a readjustment of property division, an irreconcilable conflict would be created with subsection (A), which declares that payments pertaining to property cannot be modified. A reasonable reading of subsection (F) brings us to the conclusion that it must apply only to payments for support alimony. 17 Therefore, we adopt the construction which avoids conflict, 18 and hold that a divorce decree cannot be modified, pursuant to § 1289, to divide military retirement benefits, not divisible at the time of divorce, as jointly acquired property. The states which have considered retroactive division of military retirement benefits are almost equally divided on the issue. 19 However, the majority Our finding that § 1289(F) does not apply to modify the property divisions of a divorce decree to include military retirement benefits is supported by the language of 12 O.S.1981 § 1279. 20 Section 1279 provides that, except in cases of fraud, divorce is a bar to any claim of either party to the property of the other. 21 The wife does not assert that the military retirement benefits were not divided because of fraudulent concealment by her husband. On the contrary, the military retirement benefits were disclosed to the trial court at the time of divorce, and were set aside in the decree as the husband's separate property. The construction given § 1289(F) results in internal consistency within the statute, and allows the provisions within the same statutory scheme to be considered as a harmonious whole with effect given to each. 22
amount awarded as support and as property division. Subsection (A) also requires the trial court to specify that payments for property continue until completed. It further provides that "payments pertaining to a division of property are irrevocable and not subject to subsequent modification." 16
of the jurisdictions which allow parties to reopen final decrees to divide military retirement benefits allowed division before McCarty. This was not the law in Oklahoma before the United States Supreme Court's decision in McCarty, nor is it now
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