Forney v. Minard

• Decision Date: 24 March 1993
• Docket Number: No. 92-199,92-199
• Citation: 849 P.2d 724
• Parties: James R. FORNEY, Appellant (Defendant), v. Dorothy A. MINARD, formerly Dorothy A. Forney, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 724

849 P.2d 724

James R. FORNEY, Appellant (Defendant), v. Dorothy A. MINARD, formerly Dorothy A. Forney, Appellee (Plaintiff).

No. 92-199.

Supreme Court of Wyoming.

March 24, 1993.

James R. Forney, pro se.

William L. Hiser, Brown, Erickson & Hiser, Rawlins, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

TAYLOR, Justice.

In this appeal, from a post-judgment proceeding, appellant asks this court to determine if relief from the terms of a divorce decree was improperly denied. Appellant maintains the district court violated federal law by ordering the payment or assignment of 100 percent of his disposable military retirement income to his former wife. Appellant also contends the district court abused its discretion in ruling that the property disposition was not obtained by fraud and misrepresentation. We affirm the decision of the district court.

I. ISSUES

Appellant frames the following issues for review:

1. The district court exceeded its jurisdiction under 10 U.S.C. § 1408 and abused its discretion when it ordered that appellant (defendant below) pay over one hundred percent of his U.S. Army retirement pay to the appellee (plaintiff below) as child support.

2. The district court abused its discretion when it ruled that the appellant (defendant below) had failed to show fraud or misrepresentation by the appellee (plaintiff below) under Rule 60(b), W.R.C.P.

3. The district court erred and abused its discretion when it ordered property distribution as a subterfuge for awarding the appellee a money judgment against the appellant for acts which were resolved in an earlier and separate criminal action.

Appellee styles her statement of the issues differently:

I. Does a Wyoming district court have jurisdiction over all of a divorce litigant's military disposable retired pay?

II. Did the district court abuse its discretion when it denied the Appellant's motion under Rule 60(b) when clear and convincing proof of fraud and misrepresentation was not presented and when the issues raised were not material to the court's original decision?

III. May the appellant raise issues concerning the property distribution made in the judgment and decree under the guise of a Rule 60(b) motion which have not previously been raised in any proceeding, and if so, may the district court consider the effect of the criminal activities of the appellant in making a fair and equitable property distribution?

II. FACTS

Dorothy Minard (Minard) was granted a divorce from James Forney (Forney) in a contested proceeding on August 2, 1991. ¹ Minard generally received "all personal property accumulated by the parties during their marriage except for that property which is particularly unique to [Forney]." The district court specifically awarded Minard "one hundred percent (100%) of [Forney's] United States Army Retirement Benefits." The district court stated it "intended" that the Army make direct payments to Minard of 100% of the benefits.

Under terms of the judgment and decree, Minard maintained custody of the couple's two minor children, then ages seventeen and eleven. No provisions were made for a third child of the marriage, who was an adult at the time of the divorce. Forney was denied any rights of visitation and was ordered not to have any contact with the two minor children. While no support or alimony obligations were stated, Forney was ordered to provide major medical insurance coverage for the minor children until their emancipation and pay one-half of all the children's medical costs not covered by insurance. ²

After an initial period of compliance with the terms of the judgment and decree, Forney canceled the assignment of United States Army Retirement Benefits he had executed in favor of Minard. Minard responded with a petition for an order to show cause. Forney countered with a motion requesting the judgment and decree be vacated and set for a retrial. Forney contended the portion of the judgment awarding military retirement pay exceeded the jurisdiction permitted by the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (hereinafter USFSPA or 10 U.S.C. § 1408), and was therefore void under W.R.C.P. 60(b)(4). He also claimed the terms of the property disposition had been based upon misrepresentations and fraud and should be set aside under W.R.C.P. 60(b)(3).

Following a hearing on the various motions, the district court determined that "some confusion" regarding the military retirement payments existed following the original judgment and decree. In reviewing the divorce action, the district court noted that the military retirement pay had been treated as property of the marriage and was awarded to Minard as part of the property disposition. The district court acknowledged that the language of the original judgment required clarification. Forney had waived ten percent of his total military retirement pay to receive disability payments. The district court said the intent of the original judgment and decree was to award 100% of the "disposable retirement pay." Finding jurisdiction existed, the district court denied Forney's W.R.C.P. 60(b)(4) motion, but ordered an amendment to the judgment and decree which was filed on September 1, 1992:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judg[ ]ment and decree entered herein on August 2, 1991, be, and hereby is, amended to order that fifty percent (50%) of the Army Disposable Retirement Pay of [Forney] be paid directly by the Army to [Minard]; the remainder of [Forney's] Disposable Retirement Pay shall be paid to [Minard] directly by [Forney] by assignment or by direct deposit into her account. [Forney] shall execute said assignment or complete arrangements for direct deposit into [Minard's] account within ten days of the date of this order.

The district court determined the misrepresentation and fraud contentions of Forney were of no merit and denied any other relief.

III. DISCUSSION

W.R.C.P. 60(b) (hereinafter Rule 60(b)) permits a court to grant relief from a final judgment or order under specific circumstances, which include, in part:

(b) Other reasons.--On motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; * * * or (6) any other reason justifying relief from the operation of the judgment.

Rule 60(b) should not be used as a substitute for appeal. Paul v. Paul, 631 P.2d 1060, 1066 (Wyo.1981). However, an order denying relief under Rule 60(b) may be appealed. McBride v. McBride, 598 P.2d 814, 816 (Wyo.1979). Appellate review of a district court's decision on a Rule 60(b) motion is generally limited to the question of whether there has been an abuse of discretion. State ex rel. TRL by Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989). The exercise of judicial discretion is not disturbed on appeal without a sufficient demonstration that discretion has been abused and the district court was clearly wrong. Claassen v. Nord, 756 P.2d 189, 193 (Wyo.1988). Judicial discretion is not questioned with regard to a judgment attacked under Rule 60(b)(4) which is either void or valid requiring the court to act accordingly. Id. The district court possesses the power to amend a judgment granting a divorce to reflect the proper value of an asset and the subsequent distribution of the property. Dice v. Dice, 742 P.2d 205, 206-07 (Wyo.1987).

Upon the dissolution of a marriage in Wyoming, the district court is required to divide the property of the parties.

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

Wyo.Stat. § 20-2-114 (1987). Considering the respective merits of the parties, the requirement for a "just and equitable" disposition of property does not require equal distribution to each spouse. Williams v. Williams, 817 P.2d 884, 886 (Wyo.1991). The determination of whether retirement benefits, vested or non-vested, constitute marital property is a matter for the district court's discretion. Broadhead v. Broadhead, 737 P.2d 731, 737 (Wyo.1987).

Property distribution as a result of the dissolution of a marriage is generally a matter for state law. McCarty v. McCarty, 453 U.S. 210, 220, 101 S.Ct. 2728, 2735, 69 L.Ed.2d 589 (1981). However, federal law, especially regarding military retirement pay, has stated some limitations. In McCarty, the United States Supreme Court expressly held federal law, at the time, precluded state courts from dividing military retirement pay under community property laws. Id. at 232-33, 101 S.Ct. at 2741. Noting the serious plight of some former spouses of military retirees, the court invited Congressional intervention to protect the former spouses. Id. at 235-36, 101 S.Ct. at 2743. In a direct response to McCarty, Congress enacted the USFSPA restoring certain rights to former spouses of military members. See Parker v. Parker, 750 P.2d 1313, 1314 (Wyo.1988).

The USFSPA authorizes states to treat "disposable retired or retainer pay" as marital property subject to the state court's determination of equitable distribution. Mansell v. Mansell, 490 U.S. 581, 584-85, 109 S.Ct. 2023,...