Harkins v. Harkins

• Decision Date: 29 May 1984
• Docket Number: No. 15035,15035
• Citation: 1984 NMSC 57,681 P.2d 722,101 N.M. 296
• Parties: Mary Fay HARKINS, Petitioner-Appellant, v. Michael J. HARKINS, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 722

681 P.2d 722

101 N.M. 296

Mary Fay HARKINS, Petitioner-Appellant, v. Michael J. HARKINS, Respondent-Appellee.

No. 15035.

Supreme Court of New Mexico.

May 29, 1984.

[101 NM 296] J. Ken Neundorf, Duran, Neundorf & Anderson, Albuquerque, for petitioner-appellant.

James K. Hansen, Thomas S. Watrous, P.A., Albuquerque, for respondent-appellee.

OPINION

FEDERICI, Chief Justice.

This is an appeal from the District Court of Bernalillo County, in which the trial court denied a motion filed by Mary Harkins (petitioner) to set aside a stipulated final divorce decree with respect to military retirement and alimony. In her motion, petitioner maintained that it was no longer equitable for the divorce decree to have prospective application. This contention was based on the fact that the decree was entered after the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), but prior to the enactment of the Uniformed Services Former Spouses' Protection Act (Act), 10 U.S.C. Section 1408 (1982). In McCarty, the Court held that military pay was not community property. The Act provided that state law would determine whether military retirement pay was community property. Based on the evidence, the trial court found that the original property settlement agreement and decree were equitable under the current status of the law. We affirm.

Final decrees may be reopened to correct inequities that would result should the judgment have prospective application. NMSA 1978, Civ.P.R. 60(b)(5) (Repl.Pamp.1980). The issue on this appeal is whether the trial court acted within its discretion in denying a motion to set aside a stipulated final decree which provided lifetime alimony in lieu of a division of military retirement. Cf. Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982); Espinda v. Espinda, 96 N.M. 712, 634 P.2d 1264 (1981).

In New Mexico, parties in a divorce may agree and stipulate to a division of property and payment of alimony upon dissolution of marriage. In most cases a stipulation and agreement entered into without fraud or imposition and approved by the trial court is generally enforced and should not be set aside. See Barker v. Barker, 93 N.M. 198, 598 P.2d 1158 (1979); Esquibel v. Brown Construction Co., Inc., 85 N.M. 487, 513 P.2d 1269 (Ct.App.), cert. denied, 85 N.M. 483, 513 P.2d 1265 (1973). If equitable, a stipulated agreement should not be vacated merely because an award may have been unwise or unfortunate in light of subsequent events. Herrera v. C & R Paving Co., 73 N.M. 237, 387 P.2d 339 (1963).

The stipulated final decree of divorce which the parties entered into in this case provided that Michael Harkins' (respondent's) military retirement in the amount of $509.00 per month would be deemed his sole and separate property. The trial court properly applied equity and entered a decree which provided for a division of the real and personal property and debts of the parties. The court also properly applied equity in providing for alimony to appellant in the amount of $600.00 per month for one year, $500.00 per month for six years, $400.00 per month for one year, and thereafter $250.00 per month for the remainder of petitioner's life. Petitioner's motion to modify the decree was not subject to automatic denial as a matter of law. Koppenhaver v....