Johnson v. Johnson

• Decision Date: 19 August 1992
• Docket Number: No. 23814-CA,23814-CA
• Citation: 605 So.2d 1157
• Parties: Paul James JOHNSON, Plaintiff-Appellee, v. Barbara Ann JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1157

605 So.2d 1157

Paul James JOHNSON, Plaintiff-Appellee, v. Barbara Ann JOHNSON, Defendant-Appellant.

No. 23814-CA.

Court of Appeal of Louisiana Second Circuit.

Aug. 19, 1992.

Writ Denied Oct. 30, 1992.

Arax T. Brumfield, Baton Rouge, for defendant-appellant.

Francis M. Gowen, Jr., Shreveport, for plaintiff-appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

Barbara Ann Johnson appeals from a trial court judgment finding that she was not entitled to a portion of her former spouse's military retirement benefits. On appeal, Mr. Johnson has filed a peremptory exception, claiming that federal law precludes division of the retirement benefits under the facts of this case. For the following reasons, we affirm the trial court judgment denying a portion of Mr. Johnson's military retirement benefits to his former spouse.

FACTS

Paul Johnson, a resident and domiciliary of West Virginia, joined the Air Force in 1955. Paul and Barbara Johnson were married May 1, 1958 in South Hampton, Massachusetts. Mr. Johnson remained in the Air Force throughout the marriage. Even though Mr. Johnson was stationed at various locations during his military career, he asserted that he maintained his domicile in the state of West Virginia.

In 1972, Mr. Johnson was stationed at Barksdale Air Force Base in Bossier Parish. Mr. and Mrs. Johnson moved to the Shreveport-Bossier area at that time with their four children.

On January 17, 1975, Mr. Johnson filed for separation in Bossier Parish. A judgment of separation was signed on January 30, 1975. A judgment of divorce was entered May 5, 1976. Although, the community was not formally partitioned, the parties stipulated, at the trial of these proceedings, that the community was settled subsequent to the separation and divorce. However, no settlement occurred with respect to Mr. Johnson's military retirement benefits.

Mr. Johnson retired from the Air Force on July 31, 1985. On December 14, 1987 Mrs. Johnson filed a petition to partition the community property, alleging that the only asset of the former community was Mr. Johnson's military pension. Mrs. Johnson claimed that, under Louisiana law, she was entitled to a share of her former husband's retirement benefits.

Trial was held on June 28, 1990. On February 28, 1991, the trial court signed a judgment in favor of Mrs. Johnson, awarding her 5/18 of Mr. Johnson's monthly military retirement benefits.

In reasons for judgment, the court stated that the issue was whether to apply Louisiana or West Virginia law. The court found that Mr. Johnson was domiciled in Louisiana for three years before the divorce and that he consented to the jurisdiction of the Louisiana court when he filed for divorce in Bossier Parish. Using the formula established in Sims v. Sims, 358 So.2d 919 (La.1978), the trial court found that Mrs. Johnson was entitled to 5/18 of Mr. Johnson's monthly retirement benefits.

On March 4, 1991, Mr. Johnson filed a motion for new trial. On May 22, 1991, judgment was entered granting the motion for new trial. The trial court rescinded its prior judgment, finding that Mr. Johnson was not a domiciliary of Louisiana, but was a domiciliary of West Virginia. Therefore, the court found that Louisiana law was not applicable to a partition of the retirement benefits. The court found that West Virginia law was the proper law to apply in distributing the former community and under West Virginia law, at the time of the dissolution of the community, Mrs. Johnson was not entitled to a share of Mr. Johnson's military retirement benefits. The court then rendered a new judgment denying Mrs. Johnson's claim for a portion of the retirement benefits.

On May 28, 1991, Mrs. Johnson filed a motion for new trial seeking to nullify the court's most recent judgment. Mrs. Johnson argued that it was error to find that West Virginia was Mr. Johnson's domicile. Mrs. Johnson also contended, however, that even if West Virginia was his domicile, it was error to conclude that she was not entitled to a share of the military retirement benefits, because West Virginia is an equitable distribution state. Also, Mrs. Johnson claimed to have new evidence ostensibly refuting Mr. Johnson's claim of domicile in West Virginia. Mrs. Johnson alleged that Mr. Johnson did not vote absentee in West Virginia as he contended. Further, she argued that Mr. Johnson did not pay income tax in West Virginia as the trial court found.

On September 19, 1991, the trial court denied Mrs. Johnson's motion for new trial.

Mrs. Johnson subsequently filed the present appeal. She contends that the trial court erred in denying her claim for a portion of Mr. Johnson's retirement benefits. Specifically, she contends that the trial court erred in finding that Mr. Johnson was domiciled in West Virginia and that he paid income tax in that state.

PEREMPTORY EXCEPTION

After the appeal was lodged in this court, Mr. Johnson, for the first time, filed a peremptory exception of prescription, no cause of action, and federal preemption. In his exception, he argued that, effective November 5, 1990, a federal preemption with respect to retirement benefits was created by 10 U.S.C. Sec. 1408(c)(1) for any divorce, dissolution, annulment, or legal separation decree affecting a member of the military and his spouse or former spouse, issued before June 25, 1981. Mr. Johnson argues that the rationale of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) was reinstated to apply to any decree of separation or divorce issued before June 25, 1981 which did not treat or reserve jurisdiction to treat any amount of retired pay of the member as property of the member and the member's spouse or former spouse.

Mr. Johnson contends that because the separation and divorce judgments in this case did not reserve jurisdiction to treat military retirement as property of Mr. and Mrs. Johnson, an action to divide such benefits would not be proper at this late date.

When Mr. Johnson's exception was filed in this court, we directed that a ruling on the exception would be referred to a decision on the merits of the case. Having now fully considered the exception, we find that the provisions of 10 U.S.C. Sec. 1408(c)(1) operate to preclude division of Mr. Johnson's military retirement benefits. Accordingly, the peremptory exception will be sustained and Mrs. Johnson's suit dismissed.

The function of a peremptory exception is to have the plaintiff's action declared legally nonexistent or barred by the effect of law, and hence the exception tends to dismiss or defeat the action. LSA-C.C.P. Art. 923. Because Mr. Johnson's exception is in the nature of an exception of no cause or right of action, due to his claim of federal preemption, the exception may be raised for the first time on appeal. LSA-C.C.P. Art. 927.

In this case, a judgment of separation was signed January 30, 1975. In that judgment, the community was dissolved and the plaintiff and defendant were recognized and decreed to be the owners of an undivided one-half interest in and to any and all of the property acquired during the existence of the community. A divorce judgment was signed May 5, 1976. Neither judgment included a partition of the community property or other adjudication as to what property was contained in the community. Further, neither the separation nor the divorce judgment specifically reserved jurisdiction to treat retirement benefits as community property.

At the time of this separation and divorce, some states were treating military retirement benefits as community property and were applying community property law to the division of the benefits between the former spouses. In fact, Louisiana courts had held that a former spouse was entitled to a community share of the other spouse's military retirement pay when the right to such benefits was acquired during the marriage. See for example, Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975). However, on June 26, 1981, the United States Supreme Court announced, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that military retirement was not subject to division under state community property regimes.

In 1982, in response to McCarty, supra, the Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) which legislatively overruled McCarty, supra. 10 U.S.C. Sec. 1408(c)(1) provided that:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, 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.

Following the passage of this statute, in numerous cases, former spouses came into court seeking to apply the new provision to the partition of military retirement benefits after the parties had been divorced. These efforts met with varied responses from courts around the country.

In some states, efforts to reopen divorce cases to apply the new statute were found to be barred by res judicata or laches. In Tomlinson v. Tomlinson, 102 Nev. 652, 729 P.2d 1363 (1986), the parties were divorced in 1981. The judgment providing for distribution of property made no mention of the military pension. In 1986, the wife filed to obtain a partition of the pension. The Nevada court held that the wife's claim was barred by res judicata. The court held that because the wife did not raise the issue of the pension in 1971, she was precluded from the raising of the issue in 1986. ¹

Similarly, in Newman v. Newman, 558 So.2d 821 (Miss.1990), the husband retired in 1978. The parties divorced in 1982 and a property settlement was executed in 1983 which did not mention the military pension. The court held that a former wife who sought partition of a military pension six years after settlement of the community was barred by the doctrine of...