Marriage of Quintard, In re

Decision Date29 May 1985
Docket NumberNo. 13847,13847
Citation691 S.W.2d 950
PartiesIn re the MARRIAGE OF Jerry Lee QUINTARD, Petitioner-Respondent, and Donna Marie Quintard, Respondent-Appellant.
CourtMissouri Court of Appeals

James R. Spradling, Esterly, Spradling & Checkett, Carthage, for petitioner-respondent.

Ron Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent-appellant.

GREENE, Judge.

Respondent Donna Marie Quintard appeals from an order and judgment entered by the Jasper County Circuit Court on July 11, 1984, which sustained petitioner Jerry Lee Quintard's motion for summary judgment. The summary judgment motion challenged Donna's motion to modify certain provisions of a prior decree which had dissolved the marriage of the parties and granted other relief, including an award of maintenance to Donna, and a division of property.

Donna contends that the trial court erred in sustaining the motion for summary judgment because 1) it failed to reopen the issue of division of Jerry's military retirement benefits, which she was unable to raise at the time of the dissolution hearing because of existing federal law that prevented spouses from claiming an interest in military pensions, and 2) it failed to hold that her monthly maintenance award was subject to modification.

At the time of the dissolution hearing in August of 1981, Donna and Jerry had been married 24 years. In the final dissolution decree, which was filed January 15, 1982, the trial court, in addition to awarding Donna custody of the minor child of the parties and $80 a week child support, ordered Jerry to pay her "$750 per month for a period of thirty-six months or until further order of this court." In addition to dividing the marital property, whereby Jerry was awarded items valued at $28,010 and Donna was awarded items valued at $15,263, the trial court ordered Jerry to pay all debts of the parties totaling $24,189.97, plus all outstanding medical bills not covered by insurance that were incurred prior to the date of the dissolution hearing. In addition, the trial court found that Jerry's military retirement benefits, amounting to $1,617.49 a month, were his "sole and separate property," and that Donna had no right to, or interest in, those benefits.

Although the record indicates Donna filed a notice of her intention to appeal from that judgment, her appeal was not perfected. On June 22, 1982, Jerry filed a motion to modify the decree, seeking to be relieved of his maintenance obligation, claiming his income had decreased and that Donna was steadily employed. Donna filed a cross motion to modify, requesting that her maintenance award be raised from $750 a month to $1,000 a month. On September 14, 1982, both motions were overruled by the trial court. On October 4, 1983, Donna again filed a motion to modify alleging that her age and state of health mandated the need for continued maintenance past the 36 month limitation contained in the decree. She also alleged that she had been legally unable to make any claim to Jerry's retirement benefits at the time of the dissolution hearing, but could do so now, because of a change in federal law. In the prayer of her motion, Donna requested that the retirement benefits be divided equally between herself and Jerry, or, in the alternative, that her $750 a month maintenance award be extended indefinitely past the 36 month limitation period.

Jerry then filed a motion for summary judgment, contending that since the monthly maintenance award was to cease on a date certain, it legally amounted to a lump sum maintenance award, not subject to modification. He also claimed the trial court's declaration that the retirement benefits were his sole and separate property was a judgment which, since not appealed, was final, and therefore, the trial court could not, through a motion to modify the decree, subsequently divide those benefits between he and his former spouse. The trial court sustained the motion for summary judgment.

In her appeal, Donna correctly asserts that before June 26, 1981, Missouri courts held that military retirement benefits were marital property in which a spouse could claim an interest. See, Sink v. Sink, 669 S.W.2d 284, 285 (Mo.App.1984). She states that on that date, the Supreme Court of the United States, in the case of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), ruled that a military pension, under the statutory law at that time, was the sole and separate property of the person who had been in the military and could not be divided between spouses by a state court. Donna alleges that the McCarty decision, being in effect at the time of the dissolution hearing, barred her from making any claim to the retirement funds, but that after the dissolution decree was entered, the Congress of the United States, by enacting 10 U.S.C. § 1408 and 5 U.S.C. § 8345 on September 8, 1982, abrogated the doctrine of McCarty and provided that military retirement benefits were marital property, capable of division. She contends that the federal statutory sections were retroactive to the date of the McCarty decision and, therefore, it was error for the trial court to refuse to reopen the case for determination of the retirement benefit issue.

In pertinent part, 10 U.S.C. § 1408 (hereinafter "the Act") provides as follows:

(c)(1) 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.

The legislative history of the Act indicates that Congress intended that the Act be applied retroactively to divorces which occurred between McCarty and the effective date of the Act.

The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisable. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision. [Emphasis added.] S.Rep. No. 502, 97th Cong., 2d Session 16, reprinted in 1982 U.S.Code Cong. & Ad.News, 1555, 1596 1611; see also, House Conf.Rep. No. 749, 97th Cong., 2d Session 49, reprinted in 1982 U.S.Code Cong. & Ad.News, 1569, 1571.

Relying on the Act, this court has held that military retired pay is again to be considered marital property. Coates v. Coates, 650 S.W.2d 307, 312 (Mo.App.1983); see also Sink v. Sink, supra, 669 S.W.2d at 285.

Having determined the retroactivity of the Act and the characterization of military retired pay as marital property, the issue now becomes whether Missouri law allows the dissolution decree--some 21 months old when Donna instituted the present proceeding--to be reopened to address the military pension question. Despite her compelling arguments, Missouri law does not allow the reopening of the property division provisions of a final dissolution decree.

Donna bases her arguments on the case of Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983), in which the Delaware court sustained wife's motion to reopen the case for the purpose of reconsidering, in light of the Act, the award to husband of his military pension, as mandated by the McCarty decision. The military pension was by far the largest single asset involved in the proceeding. Although the court's original decision was over 18 months old, a Delaware procedural rule permits "relief from a final judgment where 'a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment have prospective application; or ... any other reason justifying relief from the operation of the judgment.' " As a consequence of this rule and the expressed congressional intent underlying the Act, the court concluded that "[a] decision to reopen this case is simply a decision to permit the Wife to come in and present her case under Delaware law as it existed before McCarty and as it has existed for litigants whose cases were heard after McCarty." Smith v. Smith, supra, 458 A.2d at 713-715. Although not cited by Donna, a similar procedural rule and like reasoning compelled the same result in the New Jersey case of Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (Ch.1984).

On the other hand, unlike Delaware and New Jersey, the Missouri Rules of Civil Procedure do not contain a comparable provision. Indeed, rather than providing a procedural mechanism by which a marital dissolution decree might be re-examined, Missouri law rigorously stresses the finality thereof. For example, under §§ 452.330.4 and 452.360.2, 1 a division of marital property, once final, is not subject to modification. Leventhal v. Leventhal, 629 S.W.2d 505, 507 (Mo.App.1981). Although these statutes, by...

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17 cases
  • Porter v. Porter
    • United States
    • South Dakota Supreme Court
    • October 19, 1995
    ...P.2d 258 (1987); Bishir v. Bishir, 698 S.W.2d 823 (Ky.1985); Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989); Marriage of Quintard, 691 S.W.2d 950 (Mo.Ct.App.1985); Allison v. Allison, 700 S.W.2d 914 (Tex.1985) (where divorce decree made express disposition of military retirement ben......
  • Kenny v. Kenny
    • United States
    • Connecticut Supreme Court
    • July 6, 1993
    ...P.2d 204 (1989); Bishir v. Bishir, 698 S.W.2d 823 (Ky.1985); Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989); In re Marriage of Quintard, 691 S.W.2d 950 (Mo.App.1985), on appeal after remand, 735 S.W.2d 388 (Mo.App.1987); Allison v. Allison, 690 S.W.2d 340 (Tex.Ct.App.1985). Moreover......
  • Major v. Major
    • United States
    • Pennsylvania Superior Court
    • December 18, 1986
    ... ... Clyde Major, appellant herein, had been a flight engineer in the Air Force from before the time of his marriage until his retirement in February 1981. On December 8, 1981 appellee Judith Major filed a complaint in divorce, alleging indignities to the person ... Two courts have refused to reopen decrees because of the doctrine of finality. In re Quintard, 691 S.W.2d 950 (Mo.Ct.App.1985); Allison v. Allison, 690 S.W.2d 340 (Tex.Ct.App.1985). However, in each case the court noted that finality was ... ...
  • Flannagan v. Flannagan
    • United States
    • Washington Court of Appeals
    • November 25, 1985
    ...favored reopening over finality. Two courts have refused to reopen decrees because of the doctrine of finality. In Re Marriage of Quintard, 691 S.W.2d 950, 953 (Mo.App.1985); Allison v. Allison, 690 S.W.2d 340, 345 (Tex.App.1985). However, in each case the court noted that finality was cons......
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1 books & journal articles
  • § 12.03 Military Longevity and Disability Retirement
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 12 Division of Federal Benefits
    • Invalid date
    ...v. Bishir, 698 S.W.2d 823 (Ky. 1985). Maryland: Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989). Missouri: Quintard v. Quintard, 691 S.W.2d 950 (Mo. App. 1985). Ohio: Hester v. Hester, 675 N.E.2d 63 (Ohio App. 1996); Alexander v. Alexander, 484 N.E.2d 1068 (Ohio App. 1985). Texas: Al......

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