Edsall v. Superior Court In and For Pima County, 2

• Decision Date: 28 March 1984
• Docket Number: CA-SA,No. 2,2
• Citation: 143 Ariz. 287,693 P.2d 942
• Parties: Phillip V. EDSALL, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; Hon. Norman S. Fenton, a judge thereof, and Ruth E. EDSALL, the real party in interest, Respondents. 0032.
• Court: Arizona Court of Appeals

Page 942

693 P.2d 942

143 Ariz. 287

Phillip V. EDSALL, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; Hon. Norman S. Fenton, a judge thereof, and Ruth E. EDSALL, the real party in interest, Respondents.

No. 2 CA-SA 0032.

Court of Appeals of Arizona Division 2.

March 28, 1984.

Waterfall, Economidis, Caldwell & Hanshaw, P.C. by W. Patrick Traynor, Tucson, for petitioner

Whitehill, Stolkin, Karp, West, Weiss & Berger, P.C. by Leonard Karp, Tucson, for respondents.

OPINION

HOWARD, Judge.

Petitioner has brought this special action to challenge the trial court's denial of his motion to dismiss part of a petition for an order to show cause relating to the disposition of military retirement benefits. We believe the trial court exceeded its jurisdiction and, because of the statewide interest in the effect of recent federal legislation, we assume jurisdiction and grant relief.

Petitioner Philip Edsall and respondent Ruth Edsall were married on September 25, 1959. Petitioner had been on active duty in the United States Air Force prior to the marriage, remained in the Air Force during the marriage and is still on active duty. In June 1981 petitioner filed a petition for dissolution of marriage. A separation agreement was entered into by the parties on November 23, 1981, and a decree of dissolution incorporating the separation agreement was entered on December 7, 1981. The dates during which these proceedings occurred are significant because they fall within the period following the decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), decided June 26, 1981, which held that federal law precluded a state court from dividing military retirement pay pursuant to state community property laws, and prior to the February 1, 1983, effective date of the Uniform Services Former Spouses Protection Act, (amending 10 U.S.C., subtitle A, Part II), which legislatively overruled McCarty.

At the time the separation agreement was negotiated and executed by petitioner and respondent, McCarty precluded the award to respondent of any interest in petitioner's military retirement pay. Paragraph 4c of the Separation Agreement awarded to the wife:

"All benefits incident to or in connection with PHIL'S service in the military which RUTH may hereinafter become entitled to as a result of future or pending legislation by the Congress or any other legislative body, except that RUTH shall not have any right to any portion of PHIL'S military retirement income, the entirety of which PHIL shall receive as his sole and separate property pursuant to the terms of Exhibit B herein."

Included in the Act is 10 U.S.C. § 1408(c)(1) which provides:

"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."

There are two reasons why the trial court erred. The respondent wife argues here, and apparently successfully argued below, that the agreement only referred to that portion of the retirement income that was acquired by him as his separate property both before and after the marriage since it referred to "Phil's military retirement income." The agreement negates this argument. Paragraph 5 of Exhibit "B" to the agreement originally awarded to petitioner, "All PHIL'S sole and separate military retirement income," but was subsequently changed to read, "All rights to PHIL'S military retirement income," and the change was initialed by respondent wife. The language shows the parties intended that all of the military retirement income would be petitioner's, regardless of any change in the law.

The second reason turns on whether the retroactivity provision of the federal legislation will affect those individuals who were...