Messenger v. Messenger, 71388

Citation1992 OK 27,827 P.2d 865
Decision Date18 February 1992
Docket NumberNo. 71388,71388
PartiesJames D. MESSENGER, Plaintiff-Appellee, v. Earla Kay MESSENGER, Defendant-Appellant.
CourtSupreme Court of Oklahoma

On certiorari to the Court of Appeals, Div. 3 In a non-military wife's post-decree proceeding--sought to be rested on after-enacted congressional legislation--to modify the provisions of a divorce decree's support alimony obligation and property division after due consideration has been given to the husband's military retirement benefits, the District Court, Payne County, Charles Headrick, Judge, denied the wife's quest because "the military pension had not vested." The Court of Appeals found the retirement benefits to be a spousal asset subject to division and reversed the post-decree order. On the husband's petition, certiorari was granted.



Stephen R. Kistler, Hert, Baker & Kistler, Stillwater, for defendant-appellant.

Christopher D. Szlichta, Szlichta, Ramsey & Meyers, Stillwater, for plaintiff-appellee.

OPALA, Chief Justice.

In Clifton v. Clifton 1 the court held that 12 O.S.Supp.1987 § 1289(F) 2 should be construed as a bar to post-decree property division readjustment sought to be rested on an after-enacted spousal right to reach military retirement pension income. Clifton teaches that the provision in subsection (F), which authorizes the reopening of divorce decrees, addresses itself solely to support alimony modification. The narrow issue Clifton left unsettled, which is presented for decision today, is whether decrees rendered before the 1987 amendment enacted by 12 O.S.Supp.1987 § 1289(F) may be reopened for adjudication of the non-military spouse's previously untendered and unresolved support alimony claims sought to be founded on the other spouse's military retirement income that was not legally reachable at the time of marriage dissolution.

We hold today that after-enacted legislation cannot create post-decree claims for additional spousal alimony support without running afoul of our long-settled decisional law and violating vested rights protected by the Oklahoma Constitution.


The appellee, James D. Messenger [husband], and appellant, Earla Kay Messenger [wife], were married on July 19, 1963. They were divorced by an Oklahoma decree of December 16, 1981, which provides for the division of all their spousal assets. 3 The husband was ordered to pay (a) child support for the parties' two minor children and (b) support alimony in the amount of $300.00 a month for ten years, or a total of $36,000.00. When the divorce was granted the husband had spent 16 years in active military service. His military retirement rights were not mentioned in the decree's property division award.

After the divorce, the husband retired from the service and began drawing his military pension. On March 17, 1988 the wife sought to reopen the divorce decree in an effort to secure additional support alimony and a distributive share of the husband's military retirement benefits. She contended below that post-decree decisional law came to authorize the inclusion of military pensions among divisible spousal assets. 4 She argued that when Congress passed the Uniformed Services Former Spouses' Protection Act [USFSPA or Act] 5 The trial court agreed that 12 O.S.Supp.1987 § 1289(F) was intended to have retrospective effect, but denied the wife's quest to modify the decree's property division and support alimony provisions. This ruling the nisi prius court bottomed on the principle that the husband's military pension had not vested at the date of the marital bond's dissolution and hence the asset did not qualify as jointly acquired property subject to distribution. In short, the trial court reasoned that since the pension was not part of the marital estate when the divorce was granted, it could not be included as a spousal asset for equitable distribution in a post-decree proceeding.

in 1983 it sanctioned retroactive modification of a divorce decree to permit an equitable distribution of military retirement pension rights. Finally, the wife urged that the provisions of 12 O.S.Supp.1987 § 1289(F) 6 were expressly accorded retroactive effect in a legislative effort to follow the dictates of USFSPA. This was done, her argument went on, because it was Congress' intention to facilitate state-court post-decree proceedings for reopening those pre-USFSPA decrees which denied the non-military spouse a distributive share of the military retirement pension under the then extant McCarty federal jurisprudential bar. 7

The Court of Appeals, which reversed this ruling, held the husband's military pension, though not vested at the time of divorce, was nonetheless a divisible spousal asset. 8 Its opinion crafts a new rule that would allow the reopening of pre-amendment decrees for distribution of military retirement rights 9 and remands the cause for further proceedings consistent with its own pronouncement.

If the Court of Appeals' opinion in this case were indeed to become final and the cause to return to nisi prius, the post-decree property redistribution sanctioned by the appellate court clearly would offend our Clifton bar. Because the wife also might assert on remand a support alimony claim grounded on the husband's income from his military pension, she could avoid offending the teachings of Clifton by amending her claim below to opt instead for support alimony and relinquishing the

                other avenue of relief. 10  We granted certiorari on the husband's petition to decide if on remand the wife could ground her amended claim to an additional support alimony award on the husband's previously unreachable pension benefits



A. The Property Division Claim--The Clifton Bar

In Clifton the court held that 12 O.S.Supp.1987 § 1289(F) could not serve as a vehicle for reopening a divorce decree to divide military retirement benefits as spousal property, where by law those benefits were not divisible at the time of dissolution. 11 The court observed that if it were to conclude § 1289(F) controlled modification of property division awards, an irreconcilable conflict would arise between that section and subsection (A). 12 The latter proscribes modification of property division arrangements.

In short, Clifton holds that § 1289(F)'s retroactivity provisions apply only to support alimony awards. 13 Its rationale is bottomed on language in subsection (F) 14 which refers the reader to subsection (E). 15 Subsection (E) authorizes retroactive modification of support obligations upon proof of changed circumstances that affect either the need for or the ability to provide support. 16 Property division awards, the court concluded, must stand inviolate except when the decree is subject to vacation in a manner authorized by statute. 17

B. The Support Alimony Claim

The wife now predicates her support alimony claim on our construction in Clifton. She seeks to enlarge her previous award by tendering for consideration the husband's military retirement pension rights, which had not been and could not be previously included for evaluation of her support alimony claim.


At the time the divorce decree was rendered in 1981, the terms of the governing statute--12 O.S.1981 § 1289(B) 18--mandated that an alimony judgment be certain as to the total amount of the imposed obligation. A post-decree attack on a monetary alimony award 19 by a party who failed to bring a direct appeal for review of that award could succeed only if the award was fatally flawed on the face of the judgment roll. 20 A monetary allowance is deemed facially void 21 if the total amount of the adjudged obligation is not established in a sum certain or is not in a sum capable of being made certain by reference to the terms of the decree. 22 When an alimony award would be found void for indefiniteness of the decreed obligation, the obligor's liability was subject to readjudication. 23

The Messenger decree sets a specific amount of support alimony to the wife, provides the amount due each month, and declares the length of time for the required payments. No appeal was brought from the award following the marital bond's dissolution. So far as we can ascertain, the face of the judgment roll utterly fails to reveal any jurisdictional defect in the alimony adjudication now sought to be reopened. The judgment was valid when rendered and its efficacy cannot be impaired by after-enacted legislation. 24




States establish vested rights by their constitution, statutes or the common law. 26 Rights so created become absolute and, by Art. 5 § 54, Okl. Const., 27 are constitutionally shielded from legislative invasion. 28

Property interests represented by a divorce decree's support alimony award are vested rights embodied in a judgment. They are constitutionally insulated by § 54 from legislative interference by after-enacted statutes. 29 A decree's alimony decision constitutes a final judicial assessment of all those assets that are then legally available, and hence properly includable, for consideration in making the spousal support award. The judicial decree that creates a monetary obligation in an interspousal suit is a judgment which, when final, stands on a constitutional footing absolutely equal to any money judgment at law. 30 It is a final determination of all the rights that necessarily accrue and absolutely vest in the parties. 31 After a marriage's dissolution, all interspousal rights are governed...

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