Keen v. Keen

• Decision Date: 26 December 1985
• Docket Number: Docket No. 71199
• Parties: Charles E. KEEN, Plaintiff-Appellee, v. Patricia E. KEEN, Defendant-Appellant. 145 Mich.App. 824, 378 N.W.2d 612
• Court: Court of Appeal of Michigan — District of US

Page 612

378 N.W.2d 612

Charles E. KEEN, Plaintiff-Appellee, v. Patricia E. KEEN, Defendant-Appellant.

Docket No. 71199.

145 Mich.App. 824, 378 N.W.2d 612

Court of Appeals of Michigan.

Submitted Jan. 10, 1985.

Decided Sept. 30, 1985.

Released for Publication Dec. 26, 1985.

[145 MICHAPP 825] Barr, Anhut & Sacks, P.C. by William F. Anhut, Ypsilanti, for plaintiff-appellee.

Shirley J. Burgoyne, Ann Arbor, for defendant-appellant.

Before ALLEN, P.J., and J.H. GILLIS and GIOVAN ^*, JJ.

GIOVAN, Judge.

Defendant appeals from a judgment of divorce entered September 24, 1982, and from the trial court's subsequent denial of her motion for a new trial, which the circuit judge treated as a motion for modification of the divorce decree.

[145 MICHAPP 826] Plaintiff and defendant were married September 27, 1958, and had five children. Plaintiff joined the army in October, 1958, received an officer's commission in 1965, and retired as a major on July 1, 1979.

Defendant claims on appeal that the property settlement of the divorce judgment was erroneously fashioned because the trial court did not consider plaintiff's nondisability military retirement pay as a marital asset. The defendant also claims error in the refusal of the trial court to continue her as a beneficiary under plaintiff's survivor benefit plan, in the court's valuation of the property awarded to her, in the amount of attorney fees awarded to her, and in the failure of the trial court to modify the judgment of divorce in order to render the defendant eligible for certain medical, commissary and exchange privileges available to former spouses of service personnel under federal law.

We first address the question whether the Uniformed Services Former Spouses' Protection Act, Pub.L.No. 97-252, Sec. 1002(a), 96 Stat. 730 (1982) (codified at 10 U.S.C. Sec. 1408 et seq.), (hereafter USFSPA), should be given retroactive effect so as to include nondisability retirement pay as a marital asset in the instant case.

The law applicable to the disposition of military pensions has undergone many changes in recent years.

In Chisnell v. Chisnell, 82 Mich.App. 699, 706, 267 N.W.2d 155 (1978), lv. den. 403 Mich. 844 (1978), cert. den. 442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310 (1979), this Court held that a military pension, viewed as deferred compensation for services rendered prior to retirement, was properly considered a marital asset by virtue of the spouse's contributions to the marriage.

[145 MICHAPP 827] In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), decided June 26, 1981, the United States Supreme Court held that federal law precludes a state court from awarding a nonmilitary spouse a portion of the military spouse's government pension. The Court pointed out that "the plight of an ex-spouse of a retired service member is often a serious one", 453 U.S. 235, but stated that it was up to Congress to devise a remedy.

Subsequently, Grotelueschen v. Grotelueschen, 113 Mich.App. 395, 318 N.W.2d 227 (1982), lv. den. 417 Mich. 940 (1983), this Court held that as a result of McCarty, supra, military pension benefits could no longer be treated as a marital asset.

Congress then passed the USFSPA, which was signed into law on September 8, 1982, and which became effective February 1, 1983. The act provides, in part:

"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." 10 U.S.C. 1408(c)(1).

The legislative history reveals:

"The provisions of [the USFSPA] reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to [145 MICHAPP 828] court to have their decrees modified in light of this legislation." (Emphasis supplied). S.Rep. No. 97-502, July 22, 1982, reprinted in 1982 U.S.Code Cong. & Ad.News 1555, 1596-1600.

Courts in other jurisdictions have held that Sec. 1408(c)(1) of USFSPA is retroactively effective to June 26, 1981. See, e.g. Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (N.M.App., 1984), cert. den. 101 N.M. 11, 677 P.2d 624 (1984), Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984), Menard v. Menard, 460 So.2d 751 (La.App., 1984), Harrell v. Harrell, 684 S.W.2d 118 (Tex.App., 1984), Faught v. Faught, 67 N.C.App. 37, 312 S.E.2d 504 (1984), rev. den. 311 N.C. 304, 317 S.E.2d 680 (1984), Coates v. Coates, 650 S.W.2d 307, 311 (Mo.App., 1983), and Smith v. Smith, 458 A.2d 711 (Del.Family Ct., 1983).

The trial court's findings of fact and determinations as to property division, alimony and attorney fees were contained in a written opinion dated August 18, 1982, and a judgment of divorce in conformity with the opinion was entered on September 24, 1982. On April 21, 1983, the trial court, in its opinion on defendant's motion for modification of the divorce judgment, held that Sec. 1408(c)(1) of the act was not retroactively effective to June 26, 1981.

We disagree. The object of the USFSPA was to retroactively subject the disposition of military pensions in divorce actions to state law as it existed prior to that date. Because the law in this jurisdiction prior to June 26, 1981, was that military retirement pay should be considered a marital asset and may be divided as part of a property settlement in a divorce, Chisnell, supra, plaintiff's pension in the instant case should have been considered a marital asset pursuant to the defendant's post-judgment motion.

[145 MICHAPP 829] Accordingly, the trial court on remand should reassess its distribution to the parties in the light of the eligibility of the pension to be divided as a marital asset. In so providing we do not intimate, however, that the trial judge must necessarily modify the overall distribution contained in the judgment. First, of course, the fact that a military pension is susceptible of being divided does not mean that it must be divided in any given case. ¹ The trial judge's opinion suggests, moreover, that he awarded alimony to the defendant in recognition of the value of the plaintiff's pension benefits: ²

"This Court realizes that it cannot skirt the mandates of McCarty [v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) ] and Grotelueschen [v. Grotelueschen, 113 Mich.App. 395, 318 N.W.2d 227 (1982) ], supra, in order to achieve justice in this case. However, the Court finds that the financial position of the parties would justify an alimony award. The amount of the alimony cannot be based on a flat percentage of the military pension, but there is some authority for the proposition that military pension benefits along with other income may be considered as one factor in awarding alimony, namely ability to pay."

Nevertheless, to insure that the discretion of the circuit court in awarding marital assets has been or will be exercised to its fullest legitimate extent, we remand this action to the trial court to determine whether any adjustment of the overall distribution to the parties is appropriate in the light of the status of plaintiff's pension as a marital asset.

[145 MICHAPP 830] The defendant claims that the trial court erred in declining to order that she be continued as the beneficiary under the plaintiff's survivor benefit plan. The plan, provided for under 10 U.S.C. Secs. 1447-1455, would award an annuity to a named beneficiary on plaintiff's death. During the marriage the plaintiff designated the defendant as beneficiary, and a sum was deducted yearly from his military retirement pay as premiums for the plan. At trial the plaintiff testified that he intended to name his daughter as beneficiary of the plan.

10 U.S.C. Sec. 1450(f)(4) provides:

"Nothing in this chapter authorizes any court to order any person to elect under 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such election."

We find no merit in defendant's claim that the plaintiff's original election to name her as beneficiary is irrevocable. The plain language of the statute withholds the authority of a court to order the plaintiff to provide...