Guffey v. LaChance
| Decision Date | 26 August 1980 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 618 P.2d 634,127 Ariz. 140 |
| Parties | In re the Marriage of Judith LaChance GUFFEY, Petitioner-Appellant, v. James G. LaCHANCE, Respondent-Appellee. 4581. |
| Court | Arizona Court of Appeals |
This is an appeal by a former wife of a retired Air Force officer from an adverse ruling involving her rights in his Air Force Retirement Pension which was not disposed of in the original decree of divorce.
Appellant/former wife filed a petition to modify the divorce decree which had been entered some 71/2 years previously. The petition sought to have the trial court declare that she was entitled to a proportionate share of her former husband's military retirement benefits. 1
The parties were married on September 18, 1954 and were divorced by decree filed on December 22, 1969. At all times during their marriage appellee/husband was an officer in the United States Air Force, and they were domiciled in a community property state. No reference was made in the divorce decree to the retirement pension, nor did appellant assert any claim to the pension until her petition to modify was filed herein. The retirement pension had not vested at the time of the divorce, and the husband had expressly stated that it was his intention to remain in the Air Force until his pension vested. Appellee retired on April 30, 1973 after 20 years service and has since regularly received his monthly pension check.
Appellant's petition for modification asserts that at the time of the entry of the divorce decree the parties owned, as community property, a non-vested pension right by reason of the appellee's employment in the Air Fore for over 15 years during their married life; that thereafter, he completed his term of 20 years; that he received and is receiving the military pension; and that she is entitled to her proportionate share which is one-half of 75% of what he receives. Her claim is based under A.R.S. § 25-318(D) (now repealed), as it existed at the time of the divorce. The section provided:
She claims that the Arizona courts have interpreted this statute to require, by operation of law, that, "(W)hen there is no decree or judgment on the point (distribution of a property interest), the decided weight of authority is that the former spouses hold the property as tenants in common ...." Le Baron v. Le Baron, 23 Ariz. 560 at 564, 205 P. 910 at 912 (1922), and that in Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977), our Supreme Court stated:
"... (a)n employee, and thereby the community, does indeed acquire a property right in unvested pension benefits upon performance under the contract. Thus, to the extent that such a property right is earned through community effort, it is property divisible by the court upon dissolution of the marriage, 116 Ariz. at 274, 569 P.2d at 216.
Based upon this reasoning, appellant contends that since the pension benefits earned during the marriage were community property that could have been divided by the court, and since there was no express provision in the decree at the time dividing same, the pension benefits were divided by operation of law and thereafter held by the parties as tenants in common, each possessing an undivided 1/2 interest under A.R.S. § 25-318(D).
Our analysis of this case reveals that one crucial question is determinative of the appeal, whether the rule in Van Loan that the community acquires a property right in unvested pension benefits should be given retrospective effect. This issue was ruled upon by Division Two of this court in the case of Reed v. Reed, 124 Ariz. 384, 604 P.2d 648 (App.1979). 2
In Reed, supra, the...
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Carpenter v. Carpenter, 1
...239, 537 P.2d 625 (1975). She reasons that because Reed v. Reed, 124 Ariz. 384, 604 P.2d 648 (App.1979) and Guffey v. LaChance, 127 Ariz. 140, 618 P.2d 634 (App.1980), held Everson was not to be applied retroactively, the Everson rule cannot be applied in this case to disturb the finality o......
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...both divisions of the Arizona Court of Appeals have held that Van Loan should not be applied retroactively. Guffey v. LaChance, 127 Ariz. 140, 618 P.2d 634 (Ct.App.1980); Reed v. Reed, 124 Ariz. 384, 604 P.2d 648 (Ct.App.1979). This might explain why, in 1965, the parties, each separately r......
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