McHugh v. McHugh

• Decision Date: 08 December 1988
• Docket Number: No. 16703,16703
• Citation: 766 P.2d 133,115 Idaho 198
• Parties: Berit Elizabet McHUGH, Plaintiff/Appellant, v. Richard Gregory McHUGH, Defendant/Respondent.
• Court: Idaho Supreme Court

Page 133

766 P.2d 133

115 Idaho 198

Berit Elizabet McHUGH, Plaintiff/Appellant, v. Richard Gregory McHUGH, Defendant/Respondent.

No. 16703.

Supreme Court of Idaho.

Dec. 8, 1988.

Schwam & Schwam, Moscow, for plaintiff/appellant. Andrew M. Schwam, argued.

Robert P. Tunnicliff, Moscow, for the defendant/respondent.

HUNTLEY, Justice.

Berit Elizabet McHugh appeals the trial court's order refusing to entertain her motion to award her a portion of respondent Richard McHugh's military retirement pension as community property, pursuant to the Uniformed Services' Former Spouses' Protection Act (USFSPA) 10 U.S.C. § 1408.

Berit and Richard McHugh were married in 1972. In 1979, Mrs. McHugh filed for divorce, while both parties were domiciled in Idaho, listing "Navy Retirement" as an asset to be divided which had been acquired during marriage. Richard McHugh filed an Answer and Counterclaim, section V of which Answer states in relevant part:

Defendant prays that the Court make an equal distribution of the community property of the parties after being fully advised of the values thereof and the debts related thereto.

Paragraph VI of his Counterclaim reads as follows:

VI

That during the marriage of these parties, numerous and extensive debts have been acquired. That Counterclaimant prays that the Court enter an Order transferring over and unto Counterclaimant all separate property and making an equal distribution of the community property of the parties, after being fully advised of the values thereof and the debts related thereto

In short, Mr. McHugh's Answer and Counterclaim expressly subjected himself and both the separate and community property to the jurisdiction of Idaho's court system.

Prior to the divorce trial, the U.S. Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), wherein it held that military retirement benefits were, pursuant to congressional statute, separate property. ¹ The divorce trial was held in November 1981, one year after Richard McHugh moved to Maine, and during the effective period of McCarty, supra. In April 1982, the district court entered its decree of divorce, making no division of Mr. McHugh's military retirement benefits because of the McCarty decision having withdrawn the military retirement benefits from the subject-matter jurisdiction of state courts. At no time throughout this proceeding has Mr. McHugh ever sought to withdraw his appearance in Idaho's court system.

The USFSPA, P.L. 97-252, 10 U.S.C. § 1408, enacted September 8, 1982, became effective February 1, 1983 and, by its terms, the act was made retroactive in effect to one day before the date of the McCarty decision, rendering McCarty void ab initio. The USFSPA returned to the states the right to consider the division of military retirement benefits in accordance with their own laws. The Idaho Supreme Court acknowledged the act's effectiveness by restoring the status of military retirement benefits as community property, to the extent accrued in a community property state, in Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984). In that year, and while the original property division and support orders were still on appeal before this Court, Mrs. McHugh filed a motion with the district court to divide the military retirement benefits which had accrued during her marriage to Mr. McHugh. The trial court did not act upon this motion prior to this Court rendering its decision and remittitur regarding the initial property division and support orders in April, 1985. McHugh v. McHugh, 108 Idaho 347, 699 P.2d 1361 (1985).

The district court heard Mrs. McHugh's motion to divide the military retirement benefits on January 17, 1986, and on October 3, 1986, denied the motion, ruling both that "[t]his matter was tried and no issue was ever raised with regard to a division of the military retirement funds" and that "the motion now to reopen is a collateral attack upon a matter that has been fully adjudicated by the court and is not proper. The court does not have the jurisdiction to consider the matter." The trial court never addressed the combined effect of McCarty, supra and the USFSPA upon the jurisdiction of Idaho's courts. It focused upon which matters had been tried during the trial in November, 1988, instead of upon whether the case was open and uncompleted as to the military pension issue.

At the time Mrs. McHugh filed her motion to receive her share of the pension, the Idaho courts clearly possessed both personal and subject-matter jurisdiction over Mr. McHugh, by way of the divorce proceeding, as this Court had yet to rule on the property and support issues before it on appeal, and as the finality of a trial court judgment is suspended pending appeal. It is axiomatic that jurisdiction continues for the duration of an action or until extinguished by some event, once it has been properly attained. Ward v. Lupinacci, 111 Idaho 40, 720 P.2d 223 (Ct.App.1986). Further, this Court has recognized that the USFSPA does apply in any case not finalized at the time the Act became effective. In LeVine, we noted that jurisdiction need not have been reserved in that instance, as the appeal was still pending:

[W]e need not reach the issue of whether the magistrate properly reserved jurisdiction here. In Ratkowski v. Ratkowski, 108 Idaho 355, 699 P.2d 1369 (1985), this Court held that the FUSFSPA applies in any case in which an appeal was pending, and therefore no final judgment entered, as of the effective date of that act.

Levine v. Spickelmier, 109 Idaho 341, 344, 707 P.2d 452, 455 (1985). As in LeVine, supra, jurisdiction was reobtained by Idaho's courts over the military retirement benefits once the USFSPA became effective, as the case was still before this Court on appeal at that time. Mr. McHugh's answer and counterclaim subjected him to the total jurisdiction of Idaho's courts. ² It is important to remember that causes of action based upon complaints for divorce are actions in equity. Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983). Further, [e]quity having obtained jurisdiction of the subject matter of a dispute, will retain it for the settlement of all controversies between the parties with respect thereto and will grant all proper relief whether prayed for or not." Boesiger v. Freer, 85 Idaho 551, 563, 381 P.2d 802, 809 (1963). General maxims of equity dictate that "once the equitable jurisdiction of the court has attached, the court should retain jurisdiction to resolve all portions of the dispute between the parties and render equity to all parties...." Barnard & Son, Inc. v. Akins, 109 Idaho 466, 469, 708 P.2d 871, 874 (1985). See also, Huddleson v. Huddleson, 187 Cal.App.3d 1564, 232 Cal.Rptr. 722, 727 (1986), wherein the court noted the special treatment courts accord in equity actions, stating that an action to divide an omitted asset in the context of a divorce proceeding is an action in equity, and that such does not seek to modify or reopen the previous final judgment of dissolution. Id. 232 Cal.Rptr. at 727. See also, Casas v. Thompson, 42 Cal.3d 131, fn. 4 at 141-42, 228 Cal.Rptr. 33, 720 P.2d 921 (1986).

We can see no reason why Mr. McHugh, who has already expressly subjected himself to the personal and subject matter jurisdiction of the Idaho courts with regard to all aspects of community and separate property division, may validly claim that he must again be served with process under the USFSPA. ³ Admittedly, had the appeal been completed, remittitur issued, and final judgment entered, Mrs. McHugh may have had to file a new action under the USFSPA in Maine, but such a second action would be improper where there is a current action pending.

In summary, Mr. McHugh consented to (and, indeed, asked for) Idaho's jurisdiction over all aspects of his divorce proceedings. Such consent was never extinguished prior to the date Mrs. McHugh's motion to divide the pension was made. Accordingly, we reverse and remand to the trial court for proceedings to divide the military retirement pension, to the extent accrued during marriage, as community property. In making that division, the court is entitled to exercise its discretion in dividing the pension either equally or unequally, based upon due consideration of the value of the assets and liabilities previously divided or assumed. Costs to appellant, no attorney fees awarded.

BISTLINE and JOHNSON, JJ., concur.

BISTLINE, Justice, specially concurring.

At one time I, too, had somewhat the same concerns as Justice Bakes and Justice Shepard.

An ounce of caution being worth a pound of cure, by expending a modicum of energy in betaking myself to the clerk's office, I discovered in the original file a plaintiff's motion filed in this Court on April 29, 1987, requesting that we temporarily suspend the appeal and remand the case for the purpose of allowing the trial court to pass upon plaintiff's motions filed in the trial court to modify the divorce decree, particularly the property dispositions thereof by including the military retirement benefits. The motion was based upon a statutory change in Idaho law, ch. 68, 1987 Idaho Sess. Laws 122, effective March 24, 1987, and the Uniform Services Former Spouses Protection Act. When the motion came before the Court membership, only two votes, Huntley, J. and Bistline, J. favored the remand. Hence there was none.

Clearly the plaintiff, through her counsel, was correct in seeking the remand so that the trial court would again be vested with jurisdiction to entertain the motion. ¹ In fact, there was no other course open to the plaintiff. In short, she did all that she could do, and two of the Court members who voted against the remand apparently do not remember--or at least do not mention--that at one time the opportunity was presented to remand the case to the proper court for the resolution of the issues. Today those same two Court members do not agree with the majority's opinion...