McGinn v. McGinn

• Decision Date: 18 August 1983
• Docket Number: Docket No. 62018
• Parties: Valaree J. McGINN, Plaintiff-Appellant, v. Robert N. McGINN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 632

337 N.W.2d 632

126 Mich.App. 689

Valaree J. McGINN, Plaintiff-Appellant, v. Robert N. McGINN, Defendant-Appellee.

Docket No. 62018.

Court of Appeals of Michigan.

Submitted Oct. 2, 1982.

Decided June 22, 1983.

Released for Publication Aug. 18, 1983.

Joseph J. Mellon, Cheboygan, for plaintiff-appellant.

Lindsay & Lindsay by Christopher F. Lindsay, Cheyboygan, for defendant-appellee.

Before R.B. BURNS, P.J., and MacKENZIE and BROWN ^*, JJ.

PER CURIAM.

The issue in this appeal is whether the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), applies to a divorce judgment entered prior to the decisional date of McCarty, June 26, 1981.

The parties were divorced on April 23, 1976, after 21 years of marriage. The judgment expressly reserved the question of property settlement in anticipation that the parties would eventually reach an agreement. The parties did subsequently agree upon a property settlement which was incorporated into a supplemental divorce judgment entered on December 6, 1976.

The property settlement provided that defendant's military pension would remain his sole and separate property, in exchange for which defendant agreed to pay a total of $25,000 to the plaintiff in monthly installments. The installments were to be made by automatic allotment directly from the government. In addition, defendant was required to obtain life insurance with death benefits payable to plaintiff in an amount equal to the balance due under the property settlement.

On July 13, 1981, defendant petitioned the trial court for modification of the divorce judgment, seeking to vacate the property settlement provision awarding $25,000 to plaintiff. Following a hearing, the trial court found the McCarty decision applicable to the prior judgment and granted defendant's motion pursuant to GCR 1963, 528.3(5). Plaintiff appeals as of right.

The Supreme Court in McCarty held that a military nondisability pension was the property of the serviceman only, and not a marital asset subject to division under the state's community property laws. ¹ In Grotelueschen v. Grotelueschen, 113 Mich.App. 395, 318 N.W.2d 227 (1982), this Court held that McCarty applies in Michigan even though that decision involved a community property state.

Plaintiff contends that the property settlement herein did not divide the military pension, but rather, awarded the entire pension to defendant. We need not address this contention because we find that McCarty does not apply to a final judgment entered prior to its decisional date.

The doctrine of res judicata operates to prevent the relitigation of facts and law between the same parties or their privies. Socialist Workers Party v. Secretary of State, 412 Mich. 571, 583-584, 317 N.W.2d 1 (1982). The doctrine applies to bar not only issues previously litigated and decided but also matters which might have been presented in the first action but were not. Jones v. Chambers, 353 Mich. 674, 680, 91 N.W.2d 889 (1958); Annabel v. C.J. Link Lumber Co., 115 Mich.App. 116, 123, 320 N.W.2d 64 (1982). Shortly after deciding McCarty, the United States Supreme Court reaffirmed the doctrine of res judicata in Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103, 109 (1981):

"Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case." (Citations omitted.)

While the appellate courts of this state have not previously considered this issue in a reported opinion, jurisdictions which have considered the question have almost uniformly declined to give McCarty retroactive effect. See e.g., In re Marriage of Allcock, 107 Ill.App.3d 150, 62 Ill.Dec. 865, 437 N.E.2d 392 (1982); Rodriquez v. Rodriquez, 133 Ariz. 88, 649 P.2d 291 (1982); In re Marriage of Vinson, 57 Or.App. 355, 644 P.2d 635 (1982); Ex parte Hovermale, 636 S.W.2d 828 (Tex.Civ.App., 1982); Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982); Ex parte Gaudion, 628 S.W.2d 500 (Tex.Civ.App., 1982); In re Marriage of Fellers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981); In re Marriage of Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981), and Erspan v. Badgett, 659 F.2d 26 (CA 5, 1981). ²

The substantial inequitable results which could occur from a retroactive application of McCarty were summarized in Ex parte Gaudion, supra, p. 502:

"The rationale in McCarty for protecting military retirement was to make the military more attractive to those persons enlisting in the future. To apply the ruling to those now retired would in no way further the purpose of the decision. Moreover, in relitigating previous divorces, the Texas courts would be faced with piecing together lost, dispersed, used and possibly wasted assets, in an attempt to decide how best to redistribute the marital property. Finally, those cases in which the military retirement benefits were the sole substantial asset of the marriage would need to be handled by money judgments, assuming such would ever be collectible by the non-military ex-spouse."

Public policy demands finality of litigation in the area of family law to preserve surviving family structure. Hovermale, supra, p. 836. To permit divorce judgments which have long since become final to be reopened so as to award military pensions to the husband as his separate property would flaunt the rule of res judicata and upset settled property distributions upon which parties have planned their lives. The consequences would be devastating, not only from the standpoint of the litigants, but also in terms of the work load of the courts. In re Fellers, supra, 178 Cal.Rptr. p. 37.

The divorce judgment...