Field v. Redfield

• Decision Date: 12 January 1999
• Docket Number: No. 74271,74271
• Citation: 985 S.W.2d 912
• Parties: Mary Susan FIELD, f/k/a Redfield, Plaintiff/Respondent, v. Robert Allen REDFIELD, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 912

985 S.W.2d 912

Mary Susan FIELD, f/k/a Redfield, Plaintiff/Respondent, v. Robert Allen REDFIELD, Defendant/Appellant.

No. 74271.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 12, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 22, 1999.

Application for Transfer Denied March 23, 1999.

Deborah Benoit, Schlueter & Byrne, P.C., St. Louis, for Appellant.

David G. Waltrip, Seth A. Albin, Jones, Korum, Waltrip & Jones, Clayton, for Respondent.

PAUL J. SIMON, Presiding Judge.

Robert Allen Redfield (husband) appeals from a judgment entered by the Circuit Court of St. Louis County in favor of Mary Susan Field (wife) on her motion for summary judgment filed subsequent to the filing of her Petition for Declaratory Judgment and Award of Marital Property (petition).

On appeal, husband contends that the trial court "erred and misapplied the law" in granting wife's motion for summary judgment in that (1) the statute of limitations and the doctrine of laches bar her action to divide marital property allegedly not apportioned in their decree of dissolution of marriage; (2) Missouri law did not treat husband's "military retirement benefit" as marital property or as divisible property when the trial court entered their decree of dissolution in December 1981; moreover, at that time, husband's benefit had not vested in that he had served in the military only ten years and could receive no military retirement benefit until he served twenty years; additionally, although the federal law regarding the divisibility of military retirement benefits changed in 1983, it provides that state law determines whether such benefits are divisible; (3)(a) her motion did not comply with Rule 74.04 in that it did not refer to specific portions of pleadings and discovery and lacked the support of affidavits; (b) a dispute existed regarding genuine issues of material fact in that husband denied several "critical" portions of wife's motion, including allegations concerning the dates of husband's service in the military; and (c) wife was not entitled to judgment as a matter of law because (i) the statute of limitations and the doctrine of laches bar her action, which she instituted sixteen years after the entry of their decree of dissolution; and (ii) Missouri law in December 1981 did not treat husband's military retirement benefit as marital property or divisible property; and (4) with respect to the award of $6500 in attorney fees, (a) wife did not request such fees in her motion and did not submit statements or affidavits supporting such a request; (b) no statute or contract here authorizes such fees; (c) the facts present no unusual circumstance necessitating an award of attorney fees "to balance benefits" in an equity case; and (d) there is no basis in the record for an award of $6500 in attorney fees. We reverse.

We review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record. Furthermore, our review is essentially de novo. On appeal, the criteria for testing the propriety of summary judgment are no different from the criteria which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. Id. Summary judgment is appropriate if a motion for summary judgment and the response thereto demonstrate that no genuine issue exists concerning any material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(3). If the record contains competent materials which evidence two plausible but contradictory accounts of a fact underlying the movant's right to judgment, summary judgment is not proper because the fact is material to the movant's right to judgment and because a genuine issue exists concerning that fact. ITT, 854 S.W.2d at 382. Because the trial court's judgment is founded on the record submitted and the law, we need not defer to the trial court's order granting summary judgment. Id. at 376.

The record, viewed in a light most favorable to husband, reveals that husband and wife were married in Carbondale, Illinois on April 17, 1970. A son was born of the marriage on November 30, 1970, and husband entered the United States Army on June 3, 1971, in Chicago, Illinois.

During the succeeding years, the marriage became "irretrievably broken," leading husband and wife to consult attorneys and begin "negotiations." On April 30, 1981, in Heidelberg, Germany, husband and wife signed a separation agreement in which, inter alia, (1) wife agreed to release and waive any claims to husband's military retirement benefit in consideration of husband's agreement to pay spousal support; and (2) husband and wife agreed to a mutual release and waiver of claims against each other's estates. The parties separated on or about May 2, 1981.

In December 1981, husband and wife signed another separation agreement in consideration of, inter alia, their desire to "[agree] upon and [adjust] all matters of custody, support, maintenance and all other property rights arising out of the marriage." The parties agreed, inter alia, that (1) the trial court incorporate the separation agreement into the decree of dissolution if the trial court entered such a decree; and (2) they would waive maintenance. The agreement did not mention husband's military retirement benefit and did not contain numbered paragraphs concerning a mutual release or waiver of claims against the parties' estates. On December 18, 1981, the Circuit Court of St. Louis County entered a decree of dissolution incorporating the separation agreement.

On June 1, 1995, husband retired from the United States Army after having served on active duty for twenty-three years, eleven months, and twenty-eight days and on inactive duty for one month and eleven days. On January 16, 1997, wife filed her petition, in which she alleged, inter alia, that (1) the Circuit Court of St. Louis County dissolved their marriage by decree, which was attached, on December 18, 1981; (2) also on December 18, 1981, the parties entered into a separation agreement which was attached but did not address husband's military retirement benefit; (3) when the court entered the decree, husband was on active duty in the United States Army, was stationed in St. Louis, Missouri, and had consented to the court's jurisdiction; (4) the parties married each other on April 17, 1970 and remained married more than ten years; (5) husband entered active duty in the United States Army in June 1971; (6) the court in its decree made no orders concerning husband's military retirement benefit; (7) until the United States Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), Missouri law held that "military retired pay" was marital property which a court granting a decree of dissolution could divide; (8) after the Court's decision in McCarty, the United States Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. section 1408, which "was made retroactive to the date immediately prior to" the McCarty decision; and (9) husband retired from the United States Army in June 1995, as wife learned in July 1995.

Furthermore, she alleged that (10) military retirement benefits do not vest until one who has served on active duty for at least twenty years retires; thus, husband had no vested military retirement benefit until he officially retired; (11) because the court granting the decree did not make orders concerning husband's military retirement benefit, there exists a justiciable controversy in which wife has a substantial and significant pecuniary interest; and (12) because wife's interest in husband's military retirement benefit did not "bec[o]me a certainty" until husband successfully retired in June 1995, her interest in this benefit did not "bec[o]me ripe for determination" until June 1995.

Wife prayed that the trial court enter a declaratory judgment granting (1) "her marital interest in" husband's military retirement benefit, "retroactive to the date of [husband's] retirement from the United States Army"; (2) "nine percent (9.00%) interest on the retroactive sums"; (3) attorney fees "as authorized by" section 527.010 RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted) and "her costs"; and (4) other relief which the trial court deemed just, proper, and appropriate.

Husband filed a Motion for Transfer to Family Court. In her response, wife argued, inter alia, that her action should remain in the equity division because she sought to determine the nature and proper disposition of property omitted from distribution in a dissolution action in which the judgment had become final.

Later, husband filed a motion to dismiss wife's petition, arguing, inter alia, that (1) the statute of limitations, section 516.120(4), prohibits an action such as wife's after five years; (2) when the court entered the decree of dissolution, husband had served in the military for ten years but had no partial or vested military retirement benefit because he had not served for at least twenty years; (3) the court entering the decree had jurisdiction to divide only that property which the parties owned at the time of dissolution; (4) in December 1981, Missouri law held that husband's military retirement benefit "was not marital property because it was not yet vested and too speculative to be considered marital property"; and (5) any interest husband held in his military retirement benefit in December 1981 was not...