Konzen v. Konzen

• Decision Date: 11 January 1985
• Docket Number: No. 50402-4,50402-4
• Citation: 693 P.2d 97,103 Wn.2d 470
• Parties: In re the Marriage of Joseph J. KONZEN, Petitioner, v. Geraldine H. KONZEN, Respondent.
• Court: Washington Supreme Court

Page 470

103 Wn.2d 470

693 P.2d 97

In re the Marriage of Joseph J. KONZEN, Petitioner, v. Geraldine H. KONZEN, Respondent.

No. 50402-4.

Supreme Court of Washington En Banc.

Jan. 11, 1985.

Shiers, Kamps, Love & Chrey, Wm. J. Kamps, Port Orchard, for petitioner.

Robert M. Sifferman, Bellevue, for respondent.

DIMMICK, Justice.

This appeal challenges the trial court's award of a portion of petitioner's military retired pay to his former spouse where that military retired pay accrued prior to their marriage and was his separate property. We hold that the trial court had the authority to make such an award and did not abuse its discretion in so doing.

Prior to Joseph and Geraldine Konzens' marriage on June 22, 1970, Mr. Konzen had retired from a 25-year career with the United States Navy. This was a second marriage for each party. At the time of trial, he was receiving $1,653 per month in military retired pay. Although both parties were unemployed at the time of trial, the trial court found that Mr. Konzen had a substantially and disproportionately greater earning capacity than Mrs. Konzen. Mr. Konzen holds an undergraduate degree and a masters degree. Until just prior to trial, he had worked as a manager for the Kitsap Golf & Country Club. Mrs. Konzen has not completed high school. She has worked occasionally as a waitress and a retail clerk. Both parties have health problems. Mr. Konzen suffers from a vascular problem which causes his right leg to bleed after prolonged sitting or standing. Mrs. Konzen is a recovering alcoholic.

A final decree of dissolution was entered on September 26, 1980. The trial court characterized Mr. Konzen's military retired pay as his separate property. The rest of the parties' property was characterized as community property. The trial court apportioned the Konzens' community property approximately equally. In addition, it awarded 30 percent of Mr. Konzen's military retired pay to Mrs. Konzen. The trial court based the property division on the economic circumstances of the parties. In its oral opinion, it stated that it had chosen to award a portion of Mr. Konzen's separate property, rather than a disproportionate share of the community property, to Mrs. Konzen because the military retired pay was a more liquid asset.

Mr. Konzen appealed the award of 30 percent of his military retired pay. The Court of Appeals modified the award to cut off Mrs. Konzen's interest at her death, but otherwise affirmed the property division made by the trial court.

Petitioner herein contends that the trial court lacked subject matter jurisdiction over his military retired pay. We disagree. The trial court acted within its authority when it awarded a portion of the petitioner's military retired pay to his former wife. Wilder v. Wilder, 85 Wash.2d 364, 366-67, 534 P.2d 1355 (1975). While the Konzens' appeal was pending, the United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that state courts could not divide military retired pay as part of a property division in a dissolution. However, nothing in McCarty indicates that it was intended to divest the state courts of jurisdiction over military retired pay. McCarty merely changed the rule of law to prohibit the division of military retired pay as community or marital property. In re Marriage of Brown, 98 Wash.2d 46, 49, 653 P.2d 602 (1982); In re Marriage of Smith, 98 Wash.2d 772, 774, 657 P.2d 1383 (1983). Accord In re Marriage of De Gryse, 135 Ariz. 335, 338, 661 P.2d 185 (1983).

Even under McCarty, the trial court would have had jurisdiction over Mr. Konzen's military retired pay as his separate property. RCW 26.09.080. In fact, the United States Supreme Court indicated that a state would be allowed to order the payment of spousal support or child support out of military retired pay. McCarty, at 230, 101 S.Ct. at 2740. In addition, a state court continued to be able to consider the effect of military retired pay on the economic circumstances of the parties when making an equitable division of their property. In re Marriage of Dessauer, 97 Wash.2d 831, 839, 650 P.2d 1099 (1982). The trial court had subject matter jurisdiction over Mr. Konzen's military retired pay and later changes in federal law did not affect that jurisdiction.

The Uniform Services Former Spouses' Protection Act (USFSPA) now allows state law to control the division of military retired pay as part of a property settlement in a dissolution. 10 U.S.C. § 1408(c) (1982). Congress intended that the USFSPA apply retroactively to eliminate all effects of the McCarty decision. 10 U.S.C.A. § 1408(c)(1); S.Rep. No. 502, 97th Cong., 2d Sess. 15, reprinted in 1982 U.S.Code Cong. & Ad.News 1596, 1611. In keeping with this intent, we review the award of Mr. Konzen's military retired pay in light of the requirements of the act. In re Marriage of Smith, 100 Wash.2d 319, 669 P.2d 448 (1983).

Petitioner next argues that the award was improper under the USFSPA. He interprets the USFSPA to allow state courts to award a portion of military retired pay as part of a property division only if the parties' marriage has lasted for more than ten years during the service member's military career. In dicta, this court has referred to such a limitation in the USFSPA. In re Marriage of Smith, at 323, 669 P.2d 448. See also In re Marriage of Wood, 34 Wash.App. 892, 893, 664 P.2d 1297 (1983).

However, this issue is raised directly for the first time in this case. In In re Marriage of Smith, the parties had been married for almost 20 years, most of which were during the husband's military career. The Konzens were married for slightly more than ten years, but were not married during any part of Mr. Konzen's service in the Navy.

Petitioner relies on language in § 1408(d)(2) of the USFSPA which states:

If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.

However, it is not clear from the structure of the statute whether this ten year requirement applies to every division of property authorized under § 1408(c) or only to direct payments by the government to a former spouse authorized under § 1408(d). When the language of a statute is ambiguous, this court will look to the legislative history to determine Congress' intent. Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wash.2d 748, 675 P.2d 592 (1984).

The legislative history clearly indicates that Congress did not intend to limit the application of the USFSPA to marriages lasting over ten years during the service member's military career.

The Department of Defense had urged the Senate to adopt such a 15-year requirement, but this recommendation was rejected in committee. S.R. No. 502, 97th Cong., 2d Sess. 9-10, reprinted in 1982 U.S.Code Cong. & Admin.News 1596, 1604-1605. The USFSPA as originally passed by the House had been amended to limit its application to marriages lasting more than ten years. 128 Cong.Rec. H 4726, H 4736 (daily ed. July 28, 1982) (Nichols amendment). Section 1408(c)(1) of the original House version stated:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning on or after June 26, 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 if the spouse was married to the member for a period of not less than 10 years during which the member performed at least 10 years of service which is creditable in determining the member's eligibility for retired or retainer pay, or equivalent pay, as a result of his service in any of the uniformed services.

128 Cong.Rec. H 4726.

The language in § 1408(c) limiting the application of the USFSPA to marriages lasting more than ten years during the service member's military career was deleted in the conference committee. H.Rep. No. 749, 97th Cong., 2d Sess. 166-67, reprinted in 1982 U.S.Code Cong. & Admin.News 1570, 1572. The conference report states:

The conferees agreed to remove the restriction that would require 10 years of marriage before military retired pay could be considered property by the courts. The conferees further agreed, however, that direct payments by the service finance centers to a former spouse from the member's retired pay based on a division of that retired pay as property would be limited to situations in which the former spouse was married to the member for at least 10 years while the member performed military service. The 10-year restriction would not apply to direct payments based on the award of child support or alimony.

Currently, there is no Federal enforcement mechanism for court-ordered property division of military retired pay available to former spouses of military personnel. The conferees agreed to a Federal enforcement provision as described above; however, jurisdiction of the courts to consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, legal separation or annulment would not be affected by the 10-year marriage requirement.

As passed, § 1408(c)(1) of the USFSPA states:

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...