Marriage of Schoning, Matter of

• Decision Date: 20 March 1991
• Citation: 106 Or.App. 399,807 P.2d 820
• Parties: In the Matter of the MARRIAGE OF Robert W. SCHONING, Appellant, and Barbara A. Schoning, Respondent. D8006-65003; CA A63523.
• Court: Oregon Court of Appeals

Page 820

807 P.2d 820

106 Or.App. 399

In the Matter of the MARRIAGE OF Robert W. SCHONING, Appellant and Barbara A. Schoning, Respondent.

D8006-65003; CA A63523.

Court of Appeals of Oregon.

Argued and Submitted Oct. 8, 1990.

Decided March 20, 1991.

R. Tim Willis, Corvallis, argued the cause, for appellant. With him on the brief, was Fenner, Barnhisel, Willis & Barlow, Corvallis.

John A. Berge, Bend, argued the cause, for respondent. With him on the brief, were Bradley D. Fancher and Gray, Fancher, Holmes, Hurley, Bryant & Lovlien, Bend.

Before BUTTLER, P.J., and ROSSMAN and De MUNIZ, JJ.

ROSSMAN, Judge.

Husband appeals a supplemental dissolution judgment awarding wife 22 percent of his military pension. On de novo review, ORS 19.125(3), we modify the judgment.

Husband enlisted in the Marine Corps Reserve in 1942 and served an extended term of active duty until January, 1952, after which he continued reserve duty, while also maintaining civilian employment. The parties were married on October 4, 1952. Husband retired from the reserves in 1975, and the parties' marriage was dissolved in early 1982. Under the judgment, the parties each received substantially one-half of the marital assets subject to division, including husband's civilian pensions. However, the court did not consider his military pension because, under the federal law as it then existed, it was not subject to division. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Husband started receiving his military pension in September, 1983.

On September 8, 1982, Congress passed the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1401 et seq., which became effective February 1, 1983. ¹ USFSPA nullified McCarty v. McCarty, supra, so that the inequities of that decision could be rectified. See 3 U.S.Code Cong. & Adm.News 1596 et seq. (1982). On December 31, 1985, wife moved to modify the dissolution judgment to divide the military pension. After a hearing, the trial court denied the motion, and we affirmed without opinion. Schoning and Schoning, 83 Or.App. 272, 730 P.2d 44 (1986), rev. den. 303 Or. 74, 734 P.2d 354 (1987).

In 1987, the Oregon legislature reconciled state and federal law by passing former Oregon Laws 1987, chapter 188, which provided, in part:

"(1) A decree of marital annulment, dissolution or separation that became final on or after June 25, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983. The decree shall be modified in a manner consistent with federal law and the laws of this state as they have existed since February 1, 1983.

"(2) Modification of a decree under this section may be granted whether or not the decree * * * assumed in any manner that military pension benefits were not, as of the date on which the decree became final, divisible marital property.

"(3) Any proceeding to modify a decree of marital annulment, dissolution or separation under this section shall be commenced before January 1, 1989.

"(4) This section shall remain in effect only until January 1, 1989." (Emphasis supplied.)

In 1988, wife again moved to divide the military pension, and the trial court granted the motion. The court determined that 44 percent of the pension was accumulated during the marriage and was, therefore, a marital asset under Richardson v. Richardson, 307 Or. 370, 769 P.2d 179 (1989). Pursuant to chapter 188, the court awarded wife 22 percent of the pension, retroactive to September, 1983.

Husband appeals on several grounds. He concedes that, under chapter 188, the trial court had the authority to modify the original dissolution judgment to include a division of a military pension. However, he argues that the statute applies only to situations in which the military pension was the only or primary asset of the marriage, so that failure to divide the pension denied the non-military spouse economic security. According to husband, because the original dissolution judgment provided for a division of significant assets other than the military pension, it does not present the type of inequitable situation intended to be covered by the statute. He contends that, because the statute fails to state the equitable factors that a court must consider in deciding whether to modify a decree, there is an ambiguity requiring construction on the basis of legislative history.

Courts are not at liberty to reevaluate a statutory scheme and fill in perceived legislative omissions. ORS 174.010; Portland Adventist Medical Center v. Sheffield, 303 Or. 197, 200, 735 P.2d 371 (1987). The statute unequivocally applies to any "decree of marital annulment, dissolution or separation that became final on or after June 25, 1981, and before February 1, 1983." That is consistent with 10 U.S.C. § 1408(c)(1), which authorizes a court to divide military pensions payable after June 25, 1981. Both statutes give courts discretion to determine whether division of a military pension is appropriate in a given case, and the sole limitation is that only judgments that became final after the decision in McCarty v. McCarty, supra, may be modified.

Neither statute contains a limitation as to which situations are appropriate, or what other types of assets must be involved, for modification of previous property divisions. If the Oregon legislature had intended that the statute apply only to specific situations other than those generally identified in chapter 188, it could have so provided. Because the statute is clear and unambiguous and literal application would not produce an absurd or unreasonable result, we need not resort to extrinsic evidence of legislative intent or rules of statutory construction. Satterfield v. Satterfield, 292 Or. 780, 782-83, 643 P.2d 336 (1982).

Husband also concedes that the statute provides for retroactive division of military pensions. However, he argues that, even if the modified division were equitable, the trial court had no authority to apply the statute retroactively to September, 1983, the date on which he started receiving pension payments. According to him, the division should apply only to payments made after the date on which the motion to modify was filed. ²

ORS 107.135 provides, in part:

"(4) Any termination or reduction of spousal support * * * shall not be retroactive, but shall be prospective from the date such order is issued by the court.

"(5) The decree is a final judgment as to any instalment or payment of money which has accrued up to the time either party makes a motion to set aside, alter or modify the decree, and the court does not have the power to set aside, alter or modify such decree, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion." (Emphasis supplied.)

Husband analogizes the prohibitions in those sections against retroactive modification of support orders to argue that chapter 188 does not authorize a court to modify property divisions made before the filing date of the motion to modify. That claim is without any merit whatsoever.

In the alternative, husband contends that the division of his military pension should be retroactive only to 1988, because he relied on the finality of the dissolution judgment and, therefore, was not put on notice of the possibility of a division until the motion to modify was filed. Although a dissolution had become "final," chapter 188 authorized a court to modify a property division retroactively to include military pensions. Res judicata operates as a bar only to matters actually raised or that could have been raised in the previous litigation. As to matters that arise subsequently, the judgment is not res judicata. ORS 43.130(2); ³ State v. Ratliff, 304 Or. 254, 257 n. 4, 744 P.2d 247 (1987). Husband admits that chapter 188 "creates a new action to consider the...