Sandoval v. Sandoval

• Decision Date: 24 September 1981
• Docket Number: No. 1,CA-CIV,1
• Parties: Mary Jean SANDOVAL, Petitioner-Appellee, v. Albert Richard SANDOVAL, Respondent-Appellant. 4846.
• Court: Arizona Court of Appeals

Page 405

634 P.2d 405

130 Ariz. 117

Mary Jean SANDOVAL, Petitioner-Appellee, v. Albert Richard SANDOVAL, Respondent-Appellant.

No. 1 CA-CIV 4846.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 24, 1981.

Engler & Engler by Don B. Engler, Yuma, for petitioner-appellee.

Byrne, Bradshaw, Benesch & Thode, P. C. by H. Stewart Bradshaw, Yuma, for respondent-appellant.

OPINION

RAPP, Judge.

This is an appeal from the March 9, 1979, order of the Superior Court of Yuma County in which appellant challenges the award of a portion of his future military retirement pay to appellee. Based upon the United States Supreme Court's recent decision in McCarty v. McCarty, --- U.S. ----, 101 S.Ct. 2728, 69 L.Ed.2d --- (June 26, 1981), we are compelled to reverse.

Appellant enlisted in the United States Marine Corps on February 12, 1964. He and appellee were married on December 14, 1968, in Marietta, Georgia. It is not clear from the record where they spent the period from the date of their marriage to July 8, 1970, when they moved to Yuma, Arizona, where appellant was stationed at the local Marine air station.

It is assumed, although, again, it is not clear from the record, that in August of 1973, appellant left Yuma for an overseas assignment in the Philippine Islands. It is not disputed, however, that on October 18, 1976, appellee filed a petition for dissolution of marriage in Yuma County. On December 28, 1976, appellant signed an acceptance of service and waiver of his rights under the Soldiers' and Sailors' Civil Relief Act, 50 App.U.S.C. §§ 501-591. On January 17, 1977, a decree of dissolution was granted with an attached property settlement agreement signed by both of the parties. The property settlement agreement was silent as to any disposition of property interests in appellant's future military retirement pay. On December 28, 1978, appellee filed a petition for modification of the decree requesting additional child support and an allocation to her of an interest in appellant's future military retirement pay. The petition was served along with an order to show cause on appellant in North Carolina where he was then stationed. A hearing was conducted in Yuma County Superior Court at which he testified.

On March 9, 1979, the trial court entered an order awarding appellee a proportionate interest in appellant's future military retirement income. The bases of this ruling by the court were the cases of Furimsky v. Furimsky, 122 Ariz. 430, 595 P.2d 662 (1979), and Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977). This was the controlling law of the State of Arizona at the time of the order.

On June 26, 1981, the Supreme Court of the United States decided McCarty v. McCarty, supra. McCarty reviewed a decision of the California Court of Appeal affirming an award to a wife of a share of her former husband's military retirement pay, based on California community property law concepts. The Supreme Court, in reversing the California appellate court, found that California's application of community property concepts to military retirement pay conflicts with the federal laws that created the military retirement system. See 10 U.S.C. ch. 367, § 3911 et seq. (1976 ed. and Supp. III) (Army); ch. 571, § 6321 et seq. (1976 ed. and Supp. III) (Navy & Marine Corps); ch. 867, § 8911 et seq. (Air Force). The Court also found that the consequences of the community property interest injured the objectives of the federal program to such an extent that the community property interest could not be recognized. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). Thus, the Court held that there are no community property rights in...