Evans v. Evans

• Decision Date: 01 September 1988
• Docket Number: No. 88,88
• Citation: 541 A.2d 648,75 Md.App. 364
• Parties: Irene EVANS v. Robert J. EVANS. ,
• Court: Court of Special Appeals of Maryland

Page 364

75 Md.App. 364

541 A.2d 648

Irene EVANS v. Robert J. EVANS.

No. 88, Sept. Term, 1988.

Court of Special Appeals of Maryland.

June 3, 1988.

Thomas F. Ellis, III, Annapolis, for appellant.

Margaret L. Demedis, Dunkirk, for appellee.

Argued before MOYLAN, WILNER and ALPERT, JJ.

ALPERT, Judge.

In this expedited appeal, we revisit the nagging problem of defining subject matter jurisdiction. On March 29, 1985, Judge Perry G. Bowen, Jr. of the Circuit Court for Calvert County signed an order for absolute divorce dissolving the marriage of Irene Evans (appellant) and Robert J. Evans (appellee). One provision of the order was "that Robert Evans is to forward to Irene Evans, the sum of $200.17 per month representing a one-half interest in a vested Air Force retirement plan." ¹ No appeal was taken from this order.

In March of 1986, Irene Evans filed a petition to cite Robert Evans for contempt of court. Robert responded to the petition with the following answer on April 1, 1986:

By Order dated March 29, 1985, this Court ordered division of Air Force Disability payments. The amount ordered to Mrs. Evans was $200.17. The parties have subsequently learned that because this is an Air Force disability payment it is not divisible and not within the subject matter jurisdiction of this Court.

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Because the Court lacks subject matter jurisdiction to award these funds, the prior Order is null and void.

A hearing was held on April 18, 1987 during which the disability pension and several other issues were discussed. Insofar as the disability pension was concerned, the judge noted:

My recollection is that [$200.17] was part of an entire scheme of dividing their property. And so it may well be that if it cannot be done or ought not to be done, then we might have to go back and restudy the whole arrangement that we made, because that was a part of it.

But in any event, the order is going to have to be obeyed until it is changed.

On August 11, 1987, Irene again filed a petition to cite Robert for contempt for his failure to remit to her the $200.17 a month from his military disability retirement pay. Robert responded on August 31, 1987 with an answer and a motion to amend or revise judgment which again raised the argument that the court lacked subject matter jurisdiction over the military disability pension.

A second hearing was held in September of 1987. In an oral opinion, the judge noted that under 10 U.S.C. § 1408(c)(1), military disability retirement pay is not marital property. He then held he had no jurisdiction to divide the military disability pension as marital property. He further ruled that a jurisdictional matter "can be dealt with at any time" and "that at any point when it is enforced, you can object to it." The judge subsequently signed an order granting the motion to amend or revise judgment, and deleted the provision of the previous order that Robert was to pay Irene $200.17 per month from his Air Force retirement plan.

Irene then noted this appeal, raising the following issue: did the trial judge have authority to revise the order sub judice? We hold that he did not.

Under the rules, a judgment may be revised "[o]n motion of any party filed 30 days after entry of judgment...." Md.Rule 2-535(a). After expiration of that 30 day period, a judgment becomes enrolled and the court may exercise revisory power and control over the judgment only in case of fraud, mistake or irregularity. Md. Rule 2-535(b); see also Office of People's Counsel v. Advance Mobilehome Corp., 75 Md.App. 39, 540 A.2d 151 (1988).

This court has explained that "mistake" as it is used in Rule 2-535(b) is limited to a jurisdictional mistake. Bernstein v. Kapneck, 46 Md.App. 231, 239, 417 A.2d 456 (1980); Hamilos v. Hamilos, 52 Md.App. 488, 497, 450 A.2d 1316 (1982), aff'd, 297 Md. 99, 465 A.2d 445 (1983), aff'd sub nom, Johnston v. Johnston, 297 Md. 48, 465 A.2d 436 (1983). Thus, the parties concede the trial judge could revise the judgment only if the erroneous categorization of a military disability pension as marital property was a jurisdictional mistake. We hold that the mistake was not jurisdictional.

Appellee, relying on the Supreme Court case of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), contends that the award of the military disability pension was a jurisdictional error that rendered that portion of the divorce decree null and void. Appellant asserts, however, that the error was simply a legal mistake that could not be elevated to a jurisdictional question.

In order to explain clearly our decision, we must examine McCarty, its background, its past and its present. In 1981, the Supreme Court of the United States held that military retirement pay could not be considered community property upon the dissolution of a marriage. See McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728. ² The Court reasoned that "it is manifest that the application of community property principles to military retired pay threatens grave harm to 'clear and substantial' federal interests." Id. at 232, 101 S.Ct. at 2741 ( citing United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507 (1966)). The Court explained that the application of community property laws to military pensions would "diminish that portion of the benefit Congress has said should go to the retired [service member] alone." Id. 453 U.S. at 233, 101 S.Ct. at 2741. The Court also feared that enforcement of the community property law would create "[t]he potential for disruption of military personnel management" because it would decrease the attractiveness of the military retirement system which "is designed to serve as an inducement for enlistment and re-enlistment, to create an orderly career path and to ensure 'youthful and vigorous' military forces." Id. at 234, 101 S.Ct. at 2742. While the Court recognized the plight of an ex-spouse of a retired service member, the Court held that the protection of those former spouses should be left to Congress. Id. at 235-36, 101 S.Ct. at 2742-43. Federal law as it existed at that time, the Court held, did not permit a state to classify a military pension as community property.

In response to McCarty, Congress enacted in September of 1982 the "Uniform Services Former Spouses' Protection Act." Pub.L. No. 97-252, § 1001-1002, codified at 10 U.S.C. § 1408 (September 8, 1982). ³ Senator Jeremiah Denton explained the need for the USFSPA this way:

Those wives who have loved and served as wives and mothers for many years deserve more than mere recognition. They are entitled to a degree of security.

S.Rep. No. 97-502 on Title X of Pub.L. 97-252, 97th Cong., 2d Sess. 43, reprinted in 1982 U.S.Code Cong. & Ad.News 1626. The statute permitted a court, under certain circumstances, to treat "disposable retired or retainer pay" 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." 10 U.S.C. § 1408(c)(1). The statute, however, specifically excepted from the term "disposable retired or retainer pay" money paid as disability retirement pay under Chapter 61 of Title 10. See 10 U.S.C. § 1408(a)(4) (1982).

The exemption of military disability pensions from the states' marital and community property laws was limited somewhat in 1986. ⁴ On November 14, 1986, Congress amended 10 U.S.C. § 1408 to provide:

(4) "Disposable retired or retainer pay" means the total monthly retired or retainer pay to which a member is entitled less amounts which--

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(E) in the case of a member entitled to retired pay under chapter 61 of this title [disability retirement pay], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list)[.]

10 U.S.C. § 1408(a)(4)(E). This amendment limits the exemption of military disability retirement pay from marital property laws in an amount related to the retired person's percentage of disability on the date of retirement.

It is clear under 10 U.S.C. § 1408 that classification of a military disability pension as marital property is in error. ⁵ The question that we must decide is whether the alleged error was one of subject matter jurisdiction, in which case the subject order could be void, or if the error was one of law, in which case the order would merely be voidable. As explained in Freeman on Judgments:

The legitimate province of collateral impeachment is void judgments. There and there alone can it meet with any measure of success. Decision after decision bears this import: In every case the field of collateral inquiry is narrowed down to the single issue concerning the void character of the judgment and the assailant is called upon to satisfy the court that such is the fact. To compass his purpose of overthrowing the judgment, it is not enough that he show a mistaken or erroneous decision or a record disclosing nonjurisdictional irregularities in the proceedings leading up to the judgment. He must go beyond this and show to the court, generally from the face of the record itself, that the judgment complained of is utterly void. If he can do that his attack will succeed for the cases leave no doubt respecting the right of a litigant to collaterally impeach a judgment that he can prove to be void.

A.C. Freeman, 1 Freeman on Judgments, § 322 at 642 (5th ed. 1925) (footnotes omitted). As Freeman explains, collateral attack cannot successfully affect an enrolled judgment that is merely voidable rather than void. The rationale for this rule was explained:

The law provides adequate remedies for obtaining direct relief from erroneous or irregular decisions. It is not the policy of the law to permit a party to such judgments to stand idly by without availing himself of the opportunity given him...