Koppenhaver v. Koppenhaver, 7406

• Decision Date: 14 February 1984
• Docket Number: No. 7406,7406
• Parties: Joann KOPPENHAVER, Petitioner-Appellant, v. Donald KOPPENHAVER, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1180

678 P.2d 1180

101 N.M. 105

Joann KOPPENHAVER, Petitioner-Appellant, v. Donald KOPPENHAVER, Respondent-Appellee.

No. 7406.

Court of Appeals of New Mexico.

Feb. 14, 1984.

Certiorari Denied March 16, 1984.

Sandra Morgan Little, Atkinson & Kelsey, P.A., Albuquerque, for petitioner-appellant

Kenneth C. Leach, Popejoy, Leach & Silko, P.C., Albuquerque, for respondent-appellee.

OPINION

DONNELLY, Chief Judge.

Joann Koppenhaver, wife, appeals from an order of the trial court denying her motion to set aside a final decree of separation and to permit her to assert a claim against her husband's, Donald Koppenhaver's, military retirement benefits.

Two issues are presented on appeal: (1) claim of retroactivity of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C.A. Sec. 1408 (1983) (Former Spouses' Protection Act) and; (2) claim of error in denying post-judgment relief.

The following chronology details the significant events herein. On March 24, 1981, the wife filed a petition in the District Court of Bernalillo County, seeking legal separation. Three months later, on June 26, 1981, during the pendency of wife's action, the United States Supreme Court issued its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). On January 19, 1982, the final decree of legal separation was entered between the parties herein. Thereafter, on September 8, 1982, Congress enacted the Former Spouses' Protection Act.

One day less than a year following the entry of the final decree of legal separation, January 18, 1983, the wife filed a motion to set aside the decree and petitioned for dissolution of marriage. Following a hearing on August 29, 1983, the trial court denied the wife's motion to set aside the final decree of legal separation and specifically found that the Former Spouses' Protection Act should not be applied retroactively. The record before us does not indicate whether any action was taken on the wife's petition for dissolution of marriage.

I. Retroactivity of Statute

The wife contends that the Former Spouses' Protection Act should be given retroactive application to the date of the United States Supreme Court decision in McCarty (June 26, 1981). A brief historical review of the shifting law relating to the authority of a state court to allocate a spouse's interest in military retirement benefits is helpful to our analysis.

In LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969), it was recognized that an interest in military retirement benefits, acquired by the spouse in the military while a resident of New Mexico, could be divided as community property. Then, on June 26, 1981, the United States Supreme Court in McCarty, held that under the federal law governing military retirement benefits, the states were precluded from dividing those benefits between spouses pursuant to state community property laws. The Court in McCarty ruled that military retirement pay was the separate property of the spouse who had served in the military. The effect of the McCarty decision was recognized by the New Mexico Supreme Court in Espinda v. Espinda, 96 N.M. 712, 634 P.2d 1264 (1981) (holding that McCarty overruled prior New Mexico law which had allowed division of nondisability military retirement pay as community property upon divorce). See also Hughes v. Hughes, 96 N.M. 719, 634 P.2d 1271 (1981) (limiting the effect of McCarty to nondisability retirement benefits.)

The court in Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982), next examined the issue of whether the McCarty and Espinda decisions should be applied retroactively to decrees issued in New Mexico courts which became final prior to the United States Supreme Court ruling in McCarty. Whenry held that McCarty and Espinda should not be applied retroactively, recognizing the disturbing effect retroactive application would have upon the principal of giving finality to prior judgments.

On September 8, 1982, Congress passed the Former Spouses' Protection Act, in order to permit courts to treat military retirement benefits in accordance with their respective state's property laws. The Act provided that "a court may treat [retirement benefits] * * * either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction * * *." 10 U.S.C.A. Sec. 1408(c)(1). The Act also provided that upon receipt of a court order entered by a state court in a legal separation or dissolution of marriage proceeding which has allocated portions of a military veteran's retirement benefits, "the Secretary [of Defense] shall * * * make payments to the spouse or former spouse in the amount * * * provided for in the court order." 10 U.S.C.A., Sec. 1408(d)(1).

The wife, herein, while acknowledging the holdings in Espinda and Whenry with respect to the rule denying retroactive application of McCarty, contends that the intent of Congress by enacting the Former Spouses' Protection Act, was to abolish the effect of the ruling in McCarty. She argues that Congress intended this legislation to be remedial in nature and to be given retroactive effect.

The wife's argument was first addressed in Psomas v. Psomas, 99 N.M. 606, 661 P.2d 884 (1982), wherein the court held that the Former Spouses' Protection Act was not retroactive and that a wife's failure to appeal the question of her entitlement to an interest in her husband's military retirement benefits, resulted in a failure to properly preserve the issue for appellate review. However, in Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 (1983), our Supreme Court overruled its prior decision in Psomas insofar as it had denied retroactive application of the Former Spouses' Protection Act. Walentowski held in applicable part:

The legislative intent [of the Former Spouses' Protection Act] was to abrogate all applications of the McCarty decision and place the courts into a pre-McCarty position. * * * [W]e alter * * * Psomas and conclude that there is sufficient legislative intent shown to hold the Act retroactively applies beginning June 25, 1981.

672 P.2d at 659-60.

The court in Walentowski quoted with approval from In re Marriage of Hopkins, 142 Cal.App.3d 350, 191 Cal.Rptr. 70 (1983), noting that not to apply the act retroactively "would carve out of the many persons entitled to military pensions a fortunate or unfortunate few who had substantial rights determined by the vagaries of the calendar. * * * " Id. 672 P.2d at 660.

The clear import of Walentowski is that the Former Spouses' Protection Act is subject to retroactive application to June 25, 1981.

II. Post Judgment Relief

The wife contends the trial court erred in refusing to grant her motion under NMSA 1978, Civ.P.R. 60(b) (Repl.Pamp.1980), to modify the decree of legal separation, and to allow her an interest in her former husband's military retirement benefits. The wife also contends that due to her reliance upon the ruling in McCarty, she agreed that her former husband's military retirement benefits constituted his separate property. On appeal she argues that because the McCarty decision has been abrogated by the enactment of the Former Spouses' Protection Act, and because such legislation has been held to be retroactive to June 25, 1981, (prior to the entry of the decree of legal separation in her case), it was fundamentally unfair to deny her motion to modify the decree of legal separation entered January 19, 1982, depriving her of an interest in this substantial asset.

The husband counters with the argument that it would be inequitable to permit the reopening of the property settlement agreement when the wife has failed to preserve her claim by pursuing an appeal from the decree of legal separation. The husband contends that the recognition of the need for finality of judgments as noted in Whenry, outweighs the wife's claim that the former decree should be modified.

The wife's motion seeking modification of the decree of legal separation was predicated upon Rule 60(b), although silent as to which subsection of that rule was the specific basis for the motion. Rule 60(b) has been recognized as providing a reservoir of equitable power in order to accomplish justice. Phelps Dodge Corp. v. Guerra, 92 N.M. 47, 582 P.2d 819 (1978). Rule 60(b) seeks to carefully balance the competing principles of finality on the one hand, while permitting relief from unjust judgments on the other. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 modified on other grounds, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099 (1949). Precise nomenclature for the motion seeking relief from the finality of a judgment is not controlling; the court must look to the substance of the relief sought. Greenspahn v. Joseph E. Seagram &...