Murphy v. Murphy

• Decision Date: 22 November 1988
• Docket Number: No. WD,WD
• Citation: 763 S.W.2d 237
• Parties: Jimmie Lee MURPHY, Appellant, v. Dorothy MURPHY, Respondent. 40413.
• Court: Missouri Court of Appeals

Page 237

763 S.W.2d 237

Jimmie Lee MURPHY, Appellant, v. Dorothy MURPHY, Respondent.

No. WD 40413.

Missouri Court of Appeals,

Western District.

Nov. 22, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 27, 1988.

Application to Transfer Denied Feb. 14, 1989.

Lori J. Levine, Jefferson City, for appellant.

David L. Knight, Susan Ford Robertson, Columbia, for respondent.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

GAITAN, Judge.

This is an appeal from a circuit court judgment awarding a portion of appellant Jimmie Lee Murphy's vested nondisability military pension to his former wife, respondent, Dorothy Murphy. Appellant contends that the trial court erred on two points. First, it is argued that the trial court erred in awarding any share of appellant's nondisability military pension pursuant to respondent's petition in equity to divide marital assets and in reopening a judgment that was allegedly made final on October 7, 1980.

Second, appellant claims that it was error for the trial court to award respondent any of appellant's nondisability military pension because the alleged unappealable judgment of the trial court in the dissolution decree is res judicata. Appellant contends that any action to divide appellant's military pension six and one-half years after the decree was entered is precluded by the equitable doctrines of waiver, collateral estoppel and laches.

Appellant and respondent's marriage was dissolved and the original dissolution order was entered on October 7, 1980. During the original dissolution proceeding there was no argument made to the trial court regarding military retirement. The only mention of the military retirement was in regard to the deduction of a bond from appellant's paycheck. There was a division made by the court of the savings bonds purchased from the military retirement. Respondent accepted a check for $3000 in settlement of the property ordered sold and divided by the court. The settlement agreement did not specify that it was considering the military pension.

In her petition for dissolution, respondent did not plead that the military pension was a marital asset and did not pray for a division of the same. Furthermore, respondent did not request that appellant's military pension be divided as a marital asset at the dissolution hearing.

On August 15, 1983, appellant filed a motion to modify to terminate child support and maintenance. Respondent, on September 28, 1983, filed an answer and countermotion to modify raising the issue of appellant's military retirement pay and asking the court to consider it in reviewing the amount of child support and maintenance. However, respondent did not request that appellant's military retirement pay be divided as marital property until a first amended motion to modify was filed on September 4, 1984. The matter was subsequently tried before the Honorable Ellen Roper on September 11, 1985, wherein the court found that the military pension should be divided retroactive to the date of dissolution. However, on appeal, this Court concluded that the judgment, which was based upon respondent's motion to modify, was beyond the jurisdiction of the trial court and was voided. Murphy v. Murphy, 716 S.W.2d 870 (Mo.App.1986).

On September 24, 1986, respondent filed an action in equity in the Circuit Court of Callaway County to divide the undistributed marital asset. The Honorable Frank Conley, in a judgment dated February 16, 1988, awarded respondent one-third ( 1/3) of 17/25ths of the net (after tax) amount of the pension that appellant had received from the date of dissolution until the date of the trial on this matter, August 20, 1987, in the total amount of Fifteen Thousand Three Hundred Eighty-nine and 76/100 Dollars ($15,389.76), and one-third ( 1/3) of 17/25ths of the gross amount of pension payments made from and after August 20, 1987.

I.

Appellant's first argument is that the trial court erred in awarding any portion of his nondisability military pension pursuant to the petition in equity to divide marital assets and in reopening the October 7, 1980 judgment. In support of his argument, appellant asserts that at the time of the divorce decree in 1980 the military pension was not and could not be considered marital property pursuant to then existing federal law. We disagree. In 1980, under Missouri law, vested nondisability military pension was marital property which was subject to division by the trial court in a dissolution proceeding. In re Marriage of Weaver, 606 S.W.2d 243, 244 (Mo.App.1980); Daffin v. Daffin, 567 S.W.2d 672, 677 (Mo.App.1978).

Appellant contends that In re Marriage of Weaver should be disregarded as precedent because the Court of Appeals interpreted federal law (10 U.S.C. § 3911, 3929) differently than the United States Supreme Court did subsequently in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

Notwithstanding the McCarty decision, "[p]rior to McCarty (citation omitted) it was well settled in Missouri that military retired pay was marital property. In re Marriage of Weaver, 606 S.W.2d 243, 244 (Mo.App.1980)." Sink v. Sink, 669 S.W.2d 284, 285 (Mo.App.1984). In Missouri court cases that state that vested military pensions are marital property subject to division, the federal law is not mentioned. It appears that appellant is arguing that the federal law should have been considered in determining whether military pension is a marital asset. Missouri courts have not determined how pre-McCarty cases are affected by the McCarty case and the Uniformed Services Former Spouse's Protection Act (USFSPA), 10 U.S.C. § 1408 (1982). However, other jurisdictions have ruled that the state law at the time of the original dissolution proceedings control and that McCarty does not apply retroactively. See Chisnell v. Chisnell, 149 Mich.App. 224, 385 N.W.2d 758, 760 (1986); Casas v. Thompson, 42 Cal.3d 131, 228 Cal.Rptr. 33, 35, 720 P.2d 921, 926 (1986).

Also in support of his first point appellant argues that the USFSPA does not permit distribution of a military pension as marital property for any divorce decree entered prior to June 26, 1981. This is not so. The relevant portion of the USFSPA states as follows:

Subject to the limitation 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) (1982).

It is clear that the purpose of this section is to reverse the effect of the McCarty decision and restore prior state law. See Sink, 669 S.W.2d at 285. There is no preclusion in the statute for distribution of military pension as marital property in divorce decrees entered prior to June 26, 1981.

Appellant quotes 32 C.F.R. § 63.6(c)(7) (1985) to the effect that subsequent amendments to court orders issued before McCarty that provide for a division of a pension are unenforceable. Court order is defined in 32 C.F.R. § 63.3(3) (1985) as a "final decree." The decree in the instant case is not a court order for the purpose of its regulation because the decree was not final, and the division of appellant's military retirement pay pursuant to respondent's petition in equity is but a completion of the original dissolution decree. The concern of Congress was that a spouse who, under pre-McCarty state law, had been denied a share of the pension would try to reopen his or her case through the USFSPA. However, in this case, the pre-McCarty law was in respondent's favor in that Missouri law required distribution of military pension rights as marital property prior to McCarty. See In Re Marriage of Weaver, 606 S.W.2d 243 (Mo.App.1980); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978). Therefore, the prohibition against reopening decrees is irrelevant to this appeal.

In Re Marriage of Quintard, 691 S.W.2d 950 (Mo.App.1985), upon which appellant also relies, is distinguishable from the case at bar. Quintard involved a final divorce decree issued after McCarty and before the effective date of the USFSPA. The Southern District Court of Appeals found no grounds to reopen this final judgment, but noted that "[a] party can seek the distribution of an omitted marital asset, Sink v. Sink, supra, 669 S.W.2d at 285, but cannot seek the redistribution of property covered by the decree." Quintard, 691 S.W.2d at 953-54.

The case at bar concerns the distribution of an omitted marital asset, appellant's military pension. Therefore, the military pension as an omitted asset can now be distributed in accordance with Missouri law that existed at the time of the original dissolution proceedings. Appellant's proposition that the McCarty decision should somehow defeat respondent's petition to have the undistributed military pension treated as marital property subject to division is unwarranted and, therefore, the decision of the trial court is affirmed.

II.

Appellant's second argument is that the trial court erred in awarding respondent a share of the nondisability military pension because the unappealed judgment of the October 7, 1980 divorce decree of dissolution is res judicata. Appellant relies upon State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980), wherein the Missouri Supreme Court distinguished between finality for purposes of appeal and the concept of res judicata. However, in McClintock, the Missouri Supreme...