Mings v. Mings, 17726

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMAUS; MONTGOMERY, P.J., and PREWITT
Citation841 S.W.2d 267
PartiesPatricia Ann MINGS, Plaintiff-Respondent, v. Jesse Ayers MINGS, Defendant-Appellant.
Docket NumberNo. 17726,17726
Decision Date14 October 1992

Page 267

841 S.W.2d 267
Patricia Ann MINGS, Plaintiff-Respondent,
v.
Jesse Ayers MINGS, Defendant-Appellant.
No. 17726.
Missouri Court of Appeals,
Southern District,
Division Two.
Oct. 14, 1992.
Motion for Rehearing or Transfer to
Supreme Court Denied Nov. 5, 1992.

Page 268

Fred Charles Moon, Lewis & Moon, Mark E. Gardner, Hall, Ansley, Carmichael & Gardner, Springfield, for plaintiff-respondent.

Christopher J. Stark, Springfield, for defendant-appellant.

MAUS, Judge.

Plaintiff, Patricia Ann Mings, (Plaintiff), brought this equitable action for the division of alleged marital property omitted from a 1979 Decree of Dissolution. That property is the nondisability military retirement pay of her ex-husband, Jesse Ayers Mings, (Defendant). Defendant then filed, in the dissolution action, a Motion to Correct Judgment requesting the court to amend the original decree to expressly provide that the retirement pay was awarded to him. The two actions were consolidated and Defendant's motion was overruled. Defendant does not appeal the denial of his motion.

By agreement, the court held a bifurcated trial of Plaintiff's action. The first hearing was on February 14, 1990. On March 27, 1990, the trial court entered Findings of Fact and Conclusions of Law determining that the retirement pay was marital property omitted from the 1979 Decree of Dissolution.

On April 10, 1991, the trial court held the contemplated second hearing to determine the division of that retirement pay. On May 9, 1991, the trial court entered a judgment awarding Plaintiff one-half of the retirement pay, retroactively, and other relief, including a judgment for the sum of $49,070 representing one-half of the monthly retirement payments previously received by Defendant. Defendant appeals from this judgment.

The following is the background of the case. The parties were married in October 1954. Defendant was a member of the United States Air Force, having joined voluntarily in February 1954. Three children were born of the marriage. Defendant retired as a 20-year career serviceman in 1974. Plaintiff, during the marriage, was intermittently employed in different areas but was primarily a homemaker.

A decree dissolving the marriage was entered in the Circuit Court of Greene County on September 21, 1979. The decree placed custody of the two minor children with Plaintiff. It awarded the marital home with existing debt, two vehicles, furniture and one-half of insurance proceeds in the amount of $350 to Plaintiff. She was ordered to pay Defendant $8,500, one-half of the equity in the marital home. Defendant was awarded a vehicle, tools, lumber and one-half of the insurance proceeds, amounting to $350. Defendant was ordered to pay $150 a month, per child, child support and $100 a month maintenance. There was no mention or award made of Defendant's retirement pay.

At the time of the dissolution decree, such retirement pay was considered "marital property" in Missouri. Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978); In re

Page 269

Marriage of Weaver, 606 S.W.2d 243 (Mo.App.1980). However, in 1981, the United States Supreme Court held that U.S. military retirement pay was not subject to division by state courts as marital property. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). McCarty was controlling law for only a short time until Congress enacted the "Uniformed Services Former Spouses' Protection Act", 10 U.S.C. § 1408 (1982). This Act provided, in part:

"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." 10 U.S.C. § 1408(c)(1). 1

June 25, 1981, was the day before McCarty was handed down.

After this Congressional enactment, cases such as Murphy v. Murphy, 763 S.W.2d 237 (Mo.App.1988), held the Act abrogated the McCarty limitation and military retirement pay could be divided in a dissolution proceeding as marital property. It was further held that if military retirement pay, which was marital property, was omitted from a dissolution decree, the ex-spouse could seek recovery in an independent action.

In response to cases such as Murphy, Congress amended 10 U.S.C. § 1408(c), effective November 5, 1990, to add the italicized sentence:

"(c) Authority for court to treat retired pay as property of the member and spouse. (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. A court may not treat retired pay as property in any proceeding to divide or...

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7 cases
  • Buys v. Buys, 95-0521
    • United States
    • Supreme Court of Texas
    • 14 Junio 1996
    ...in the [divorce] judgment," so "decree neither treated, nor reserved jurisdiction to treat" military retired pay); Mings v. Mings, 841 S.W.2d 267, 268 Page 375 (Mo.App.1992)(equitable action for division of alleged marital property in which military retirement was not awarded by divorce dec......
  • Bottiggi v. Wall, 99-P-1737
    • United States
    • Appeals Court of Massachusetts
    • 10 Abril 2002
    ...White v. White, 623 So.2d 31, 34 (La. Ct. App. 1993); Hollyfield v. Hollyfield, 618 So.2d 1303, 1304-1305 (Miss. 1993); Mings v. Mings, 841 S.W.2d 267, 269-270 (Mo. Ct. App. 1992); Havlen v. McDougall, 22 S.W.3d 343, 347 (Tex. 2000). But see Reppy, The 1990 U.S.F.S.P.A. Amendment: No Bar to......
  • Marriage of Bowman, In re, 21904
    • United States
    • Court of Appeal of Missouri (US)
    • 22 Julio 1998
    ...retirement pension benefits received, for service which occurred during marriage, are also considered marital property." Mings v. Mings, 841 S.W.2d 267 (Mo.App.1992); and In re Marriage of Berger, 950 S.W.2d 307 USFSPA defines "disposable retired pay" as the total monthly retired pay to whi......
  • Bottiggi v. Wall, 99-P-1737.
    • United States
    • Appeals Court of Massachusetts
    • 10 Abril 2002
    ...White v. White, 623 So. 2d 31, 34 (La. Ct. App. 1993); Hollyfield v. Hollyfield, 618 So. 2d 1303, 1304-1305 (Miss. 1993); Mings v. Mings, 841 S.W.2d 267, 269-270 (Mo. Ct. App. 1992); Havlen v. McDougall, 22 S.W.3d 343, 347 (Tex. 2000). But see Reppy, The 1990 U.S.F.S.P.A. Amendment: No Bar ......
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