Curl v. Curl

• Decision Date: 05 April 1989
• Docket Number: No. 16395,16395
• Citation: 115 Idaho 997,772 P.2d 204
• Parties: James Lloyd CURL, Plaintiff-appellant, v. Carol Ann CURL, Defendant-respondent.
• Court: Idaho Supreme Court

Page 204

772 P.2d 204

115 Idaho 997

James Lloyd CURL, Plaintiff-appellant, v. Carol Ann CURL, Defendant-respondent.

No. 16395.

Supreme Court of Idaho.

April 5, 1989.

[115 Idaho 998] Michael R. McLaughlin, Mountain Home, for plaintiff-appellant.

Francis H. Hicks, Mountain Home, for defendant-respondent.

BAKES, Justice.

Plaintiff husband appeals from the district court's order allowing modification of a divorce decree and remanding to the magistrate for further proceedings regarding awarding a portion of husband's military retirement benefits to his former spouse pursuant to the Uniform Services Former Spouses Protection Act (USFSPA). The divorce decree became final post-McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (ruling military retirement pay was the separate property of the military spouse), but pre-USFSPA, 10 U.S.C.A. 1408 (enacted February 1, 1983, retroactively allowing military retirement pay to be classified in conformance with state law).

The sole dispositive issue in this appeal, as acknowledged by both parties, is whether the district court erred in ruling that the instant divorce decree should be reopened in order to allow a modification of the distribution of appellant's military retirement benefits. ¹ We conclude that the district court erred in allowing the decree of divorce in this case to be reopened.

I

Plaintiff appellant, James L. Curl, and defendant respondent, Carol A. Curl, were married on June 25, 1966. While appellant and respondent were married, appellant was a member of the United States Air Force. After 15 years of marriage the parties were divorced on November 10, 1981. Both were represented by legal counsel during all stages of the divorce proceeding. Appellant subsequently retired from the Air Force in February, 1985.

Plaintiff appellant James L. Curl filed his complaint seeking divorce on August 12, 1981. In his complaint he alleged that all the property of the parties, including the "military retirement benefits of [plaintiff], if any," was community property. The defendant Carol Curl did not appear or file an answer in the action, and the divorce was granted by default. However, the defendant respondent Carol Curl was represented by counsel while the divorce was pending. At the time of the default hearing wherein plaintiff was awarded his divorce [T]he Court did proceed to hear stipulations between the parties hereto and counsel and evidence submitted.

[115 Idaho 999] counsel for Carol A. Curl appeared and orally stipulated into the record the property settlement which the parties had agreed to, which agreement is reflected in the stipulated decree of divorce as follows:

....

The parties hereto stipulated and agreed that the community property of the parties be divided as follows:

To the Plaintiff [James L. Curl]:

1966 Chevrolet Pickup

Miscellaneous personal items and effects

Military Retirement Benefits of Plaintiff, if any

Home located at 340 Morris Drive, Mountain Home, Idaho

To the Defendant [Carol A. Curl]:

1980 Dodge Aspen Automobile

Furniture in the possession of the defendant

Miscellaneous personal items and effects of the defendant and minor children.

(Emphasis added).

Upon hearing the evidence and the stipulations of counsel, the court granted the parties a divorce and, pursuant to the stipulation, divided the property as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the plaintiff shall receive as his sole and separate property, the following described items, to-wit:

1966 Chevrolet Pickup

Home located at 340 Morris Drive, Mountain Home, Elmore County, Idaho

Miscellaneous personal items and effects

Military Retirement Benefits of Plaintiff, if any

IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the defendant shall receive as her sole and separate property, the following described items, to-wit:

1980 Dodge Aspen Automobile

Furniture now in defendant's possession

Miscellaneous personal items and effects of the defendant and minor children.

(Emphasis added). Plaintiff appellant was also ordered to pay child support.

On September 6, 1984, nearly three years later, respondent became dissatisfied with her original stipulation and property settlement agreement and filed a motion to modify the divorce decree in order to award her a portion of appellant's military retirement benefits. Respondent's motion was "filed under Rule 60(b)(5) I.R.C.P. on the grounds that the prior Judgment upon which the previous Decree is based has been reversed or otherwise vacated and on the further grounds that it is no longer equitable that the Judgment should have prospective application."

On November 5, 1984, the magistrate ruled that the divorce decree could not be reopened under I.R.C.P. 60(b)(5). The magistrate stated that he was not persuaded, either by the stipulation or the decree of divorce, that the property distribution was based on the ruling in McCarty; therefore no prior judgment upon which the previous decree was based had been reversed. I.R.C.P. 60(b)(5). Respondent appealed the magistrate's decision to the district court on December 7, 1984. When the district court affirmed the magistrate's decision, respondent filed a motion for reconsideration. Finally, on January 21, 1986, the district court issued a revised decision allowing the original decree to be reopened and modified and remanded the case to the magistrate for further proceedings regarding division of appellant's military retirement benefits. Appellant has appealed the district court's order allowing the original decree to be reopened. We reverse.

II

Respondent based her motion to modify the divorce decree on I.R.C.P. 60(b)(5), relying expressly on the following language:

Rule 60(b). Mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud, grounds for relief from judgment on order.--On motion and upon such terms as are just, the court may relieve a party or his legal repre sentative "A party seeking relief from a final judgment under the provisions of I.R.C.P. 60(b) must bring a motion therefor within the applicable time period and assert facts which bring the case within the purview of the rule." Catledge v. Transport Tire Co., Inc., 107 Idaho 602, 606, 691 P.2d 1217, 1221 (1984). "[T]o be entitled to relief under I.R.C.P. 60(b), the moving party must allege grounds and plead facts bringing it within the terms of the rule." Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983). Here, however, respondent has not "allege[d] grounds and plead facts bringing [her case] within the terms of the rule." Id.

from a final judgment, order, or proceeding for the following reasons: ... (5) ... a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application....

A.

Defendant respondent first relies on that portion of I.R.C.P. 60(b)(5) which permits relief from a judgment when a "prior judgment upon which it is based has been reversed or otherwise vacated." She alleged in her affidavit in support of motion for modification of decree that:

[The original divorce] Decree and the underlying Stipulation were based upon the ruling of the Supreme Court of the United States of America in the case of McCarty vs. McCarty, entered June 26, 1981. On September 8, 1982, the Congress of the United States enacted the Uniformed Services Former Spouses Protection Act, which became effective on February 1, 1983. This Congressional Act repealed the effect of McCarty vs. McCarty and rendered it ineffectual from the date of its ruling.

Thus, respondent argues that the "prior judgment" referenced in I.R.C.P. 60(b)(5) is the McCarty case in her situation and that it has been reversed by the act of Congress, and therefore she is entitled to relief from the original divorce decree under I.R.C.P. 60(b)(5). However, that argument misconstrues the "prior judgment" language of I.R.C.P. 60(b)(5). As succinctly stated by Professors Wright and Miller in their treatise on the Federal Rules of Civil Procedure (after which the Idaho rules were patterned):

This ground [that a prior judgment upon which the present judgment is based has been reversed or otherwise vacated] is limited to cases in which the present judgment is based on the prior judgment in the sense of res judicata or collateral estoppel. It does not apply merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.

11 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2863 (1973) (emphasis added). Accord Marshall v. Bd. of Education, Bergenfield, N.J., 575 F.2d 417, 424 (3d Cir.1978) ("Reliance on a judgment in an unrelated case, however, does not make the original judgment vulnerable within the 'prior judgment' clause of subsection 5 [of F.R.C.P. 60(b) ]."); Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F.Supp. 393, 395 (S.D.N.Y.1975), aff'd, 532 F.2d 846 (2d Cir.1976), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 reh'g denied, 427 U.S. 908, 96 S.Ct. 3194, 49 L.Ed.2d 1200 (1976) ("Rule 60(b)(5) does not apply where a case relied on as precedent by the court in rendering the present judgment has since been reversed.").

Thus, the first prong of I.R.C.P. 60(b)(5) relied on by respondent, i.e., the "prior judgment upon which it is based has been reversed or otherwise vacated" prong, is inapplicable. There was no prior judgment "in the sense of res judicata or collateral estoppel," upon which the final divorce decree of November 10, 1981, was based. Rather, as respondent recognizes, the only "prior judgment" applicable to the final divorce decree was McCarty, and McCarty was arguably only used for its precedential value. ² Accordingly, respondent's motion Our prior Idaho cases are in accord. In Merrick v. Pearce, 97 Idaho 250, 542 P.2d 1169 (1975), relief was granted under I.R.C.P. 60(b)(5) because the prior judgment, relied on...