Ramsey v. Ramsey

• Decision Date: 10 April 1975
• Docket Number: No. 11224,11224
• Citation: 535 P.2d 53,96 Idaho 672
• Parties: Alene P. RAMSEY, Plaintiff-Respondent-Cross-Appellant, v. Lloyd E. RAMSEY, Defendant-Appellant-Cross-Respondent.
• Court: Idaho Supreme Court

Page 53

535 P.2d 53

96 Idaho 672

Alene P. RAMSEY, Plaintiff-Respondent-Cross-Appellant, v. Lloyd E. RAMSEY, Defendant-Appellant-Cross-Respondent.

No. 11224.

Supreme Court of Idaho.

April 10, 1975.

Lawrence H. Duffin and Joseph M. Coughlan, Burley, for defendant-appellant and cross-respondent.

Roger D. Ling, Ling & Nielsen, Rupert, for plaintiff-respondent and cross-appellant.

McFADDEN, Justice.

In January 1946, Lloyd Ramsey enlisted in the United States Air Force and he continued to serve until his discharge and retirement in 1966. At the time of his enlistment he was residing with his parents in Burley, Idaho. He married Alene P. Ramsey on November 11, 1949, while stationed in Georgia. During the years following the marriage Ramsey was stationed in various locations, including Georgia, Germany, Korea, South Carolina, Utah, and California. During the service years his wife accompanied him on the various changes of station excepting the time Ramsey was in Korea. After completion of twenty years of service, Ramsey retired from the Air Force and they moved to Burley, Idaho, where they have since resided.

In 1972, Alene P. Ramsey instituted this action for divorce on the grounds of extreme cruelty, seeking dissolution of the marriage, custody of the two minor children (one of whom later became of age), division of the community property, support for herself and her minor children, and attorney fees.

Following trial of the issues raised by the pleading, the trial court rendered its memorandum opinion, which by stipulation of the parties was considered as the findings of fact and conclusions of law of the court. Thereafter judgment and an amended judgment were entered dissolving the marriage, awarding custody of one child to the mother, together with a monthly allowance for his support, and division of the community property of the parties, both real and personal. Lloyd E. Ramsey (hereinafter referred to as defendant) appealed from the amended judgment, and Alene P. Ramsey (hereinafter referred to as plaintiff) cross-appealed from the same judgment.

The issues presented on this appeal pertain primarily to the division of community property. After the defendant retired from the Air Force he received monthly military retirement benefits of $341.27 per month. See, 10 U.S.C.A. §§ 8914, 8929, 8991. He has also maintained in force his National Service Life Insurance Policy, which is a governmental life insurance program afforded military personnel. On his appeal the defendant asserts the trial court erred in awarding the plaintiff forty per cent (40%) of his monthly retirement pay. On her appeal, the plaintiff asserts the trial court erred in finding the National Service Life Insurance Policy was the husband's separate property, and erred in dealing with certain other funds to be received by the defendant from a corporation.

In this opinion we will first consider the cross-appeal taken by the plaintiff. The plaintiff, in her cross-appeal, as her first assignment of error, challenges the trial court's finding that the National Service Life Insurance Policy was the separate property of the defendant. She contends that this policy is similar to other life insurance policies and should be held to be community property. This contention overlooks the unique nature of the National Service Life Insurance Policy and the case law interpreting the federal legislation creating the serviceman's right to this type of insurance. In Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), the United States Supreme Court stated:

'The National Service Life Insurance Act is the congressional mode of affording a uniform and comprehensive system of life insurance for members and veterans of the armed forces of the United States. A liberal policy toward the serviceman and his named beneficiary is everywhere evident in the comprehensive statutory plan. Premiums are very low and are waived during the insured's disability; costs of administration are borne by the United States; liabilities may be discharged out of congressional appropriations.' 70 S.Ct. at 399.

The Supreme Court specifically rejected a lower court's finding that the proceeds of the policy were community property.

* * * (S)ince the statute which made the insurance proceeds possible was explicit in announcing that the insured shall have the right to designate the recipient of the insurance, and that 'No person shall have a vested right' to those proceeds, 38 U.S.C. § 802(i), 38 U.S.C.A. § 802(i), appellee could not, in law, contemplate their capture. The federal statute establishes the fund in issue, and forestalls the existence of any 'vested' right in the proceeds of federal insurance. Hence no constitutional question is presented. However 'vested' her right to the proceeds of nongovernmental insurance under California law, that rule cannot apply to this insurance.' 70 S.Ct. at 401.

To hold that the National Service Life Insurance Policy is community property thus creating 'vested rights' in the policy for the plaintiff would be contrary to federal statute and case law. Harris v. Harris, 94 Idaho 358, 487 P.2d 952 (1971); United States v. Donall, 466 F.2d 1246 (6th Cir. 1972). See also, In re Marriage of Fithian (Fithian v. Fithian), 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974), cert. den., 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974); In re Marriage of Milhan (Milhan v. Milhan), 13 Cal.3d 129, 117 Cal.Rptr. 809, 528 P.2d 1145 (1974).

On her cross-appeal, the plaintiff has also assigned as error the following portion of the judgment and decree:

'11. That plaintiff is awarded an undivided one-half (2/1) interest in all funds held by Ramsey Produce Company as a result of retained stock dividends or earnings or sums loaned to Ramsey Produce Company by defendant prior to July 14, 1972, and defendant shall deliver one-half (2/1) of all such funds to the plaintiff upon receipt of said sums by defendant from Ramsey Produce Company, an Idaho corporation.'

This portion of the decree is too indefinite to be enforceable. The trial court should have specifically determined the nature of the interest of the parties, i. e., whether it was a loan of funds to the corporation, whether it was the result of an investment in the firm, and also whether the interest was community or separate property. After such determination has been made, the trial court should then divide this interest between the parties as the facts indicate, and if feasible, have the interest vest immediately by way of cash settlement or division of the property. See, Larson v. Larson, 95 Idaho 376, 509 P.2d 1297 (1973); McNett v. McNett, 95 Idaho 59, 501 P.2d 1059 (1972). Should the trial court deem it appropriate, it may, on application of either party, receive additional evidence on the nature of this property.

At this point we will consider the issues raised by the defendant on his appeal. The trial court found that the parties had been married seventeen of the twenty years that the defendant served in the Air Force and therefore, 17/20 of the retirement pay was community property because the defendant had been domiciled in Idaho throughout his Air Force career.

Throughout this case the defendant has contended that the trial court erred in its allocation to the plaintiff wife of forty percent (40%) of the monthly retirement benefits received by the defendant from his military retirement pay. It is his contention that throughout the time of his service with the Air Force, he was domiciled not in Idaho, but in the various stations where he served which, aside from California, were common law and not community property states. He contends that his domicile was moved from Idaho to Georgia upon his marriage to plaintiff in accordance with his actual residence and intention; that this domicile continued for the first seven years of the marriage, and later his domicile was changed to South Carolina, Utah and California in that order. He further contends that he never intended to return to Idaho, but did return to Idaho only when he was offered employment by his father to join in his father's business, Ramsey Produce Company. He asserts that for fifteen years of the marriage, he and his wife lived in various common law states and for two years they lived in California, a community property state. He thus asserts the trial court erred in its award of forty percent (40%) of his retirement pay to the wife.

Before considering the issue of the domiciliary states of the parties it is necessary first to examine the nature of the defendant's retirement pay.

It is generally recognized that retirement pay based upon military or naval service is not a gratuity, but is an earned property right which accrues by reason of the individual's years of military service. Berkey v. United States, 361 F.2d 983, 176 Ct.Cl. 1 (1966); Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966); LeClert v. LeClert, 80 N.M. 235, 453 P.2d [96 Idaho 676] 755 (1969); Busby v. Busby, 457 S.W.2d 551 (Tex.1970). It is also generally recognized in Community property states that military retirement benefits, to the extent that such benefits have vested or accured while the husband and wife are domiciliary in a community property state, are community property subject to division between the parties upon dissolution of the marriage. ¹ In re Marriage of Wilson (Wilson v. Wilson), 10 Cal.3d 851, 112 Cal.Rptr. 405, 519 P.2d 165 (1974); Smith v. Lewis, 107 Cal.Rptr. 95 (Cal.App.1973); Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973); Morris v. Morris, supra; Otto v. Otto, 80 N.M. 331, 455 P.2d 642 (1969); LeClert v. LeClert, supra; Busby v. Busby, supra; Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ.App.1972); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968).

The most recent cases on point have focused on the issue of whether the application of a state's community property law to military retirement pay has been pre-empted by...