Sink v. Sink, 47435
| Decision Date | 17 April 1984 |
| Docket Number | No. 47435,47435 |
| Parties | In re the Marriage Lawrence Donald SINK, Petitioner-Respondent, v. Billie Marcelle SINK, Appellant. |
| Court | Missouri Court of Appeals |
Susan M. Hais, St. Louis, for appellant.
E. Fairfax Jones, St. Louis, for petitioner-respondent.
Former wife appeals summary judgment entered against her on her motion to modify or in the alternative to distribute an undistributed asset. The parties were married in 1956 and the marriage was dissolved on March 11, 1982. Respondent husband completed twenty years of military service on April 4, 1974 and thereafter received military retired pay. The details of his retired pay were disclosed to the dissolution court. The retirement was the subject of testimony by both husband and wife before the dissolution court. The husband testified that it had been agreed that he would be entitled to any and all proceeds from the military pension and appellant wife confirmed the agreement. However, the dissolution decree is silent and makes no disposition of the military retired pay.
Appellant wife contends that the trial court should not have granted a summary judgment because an issue of fact concerning the distribution of marital property, specifically the husband's military retired pay, has not been resolved. As the military retired pay was a marital asset that was not distributed by the original dissolution decree appellant's action to dispose of the property was proper. Ploch v. Ploch, 635 S.W.2d 70, 72 (Mo.App.1982).
Respondent husband's military pension vested and matured in 1974 with his retirement. Prior to McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 599 (1981) 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); Daffin v. Daffin, 567 S.W.2d 672, 679 (Mo.App.1978). However, when the United States Supreme Court decided McCarty on June 26, 1981 they held that federal retirement statutes conflicted with state law, that the conflict threatened grave harm to clear and substantial federal interests, and concluded that federal law precluded a state court from dividing military non-disability retirement pay as community property. 453 U.S. at 233, 101 S.Ct. at 2741.
After McCarty Missouri courts held that military retired pay could not be considered marital property. See e.g. Pruitt v. Pruitt, 622 S.W.2d 767, 768 (Mo.App.1981). However, on September 8, 1982, Congress enacted the "Uniformed Services Former Spouses' Protection Act," Public Law 97-252, codified as 10 U.S.C. § 1408 which had the effect of reversing the McCarty decision retroactive to June 25, 1981. Dildy v. Dildy, 650 S.W.2d 324, 330 (Mo.App.1983). See also S.Rep. No. 502, 97th Cong., 2nd. Sess. 1, 16 (1982) and H.R.Rep. No. 749, 97th Cong., 2nd. Sess. 167-168 (1982), U.S.Code Cong. & Admin.News 1982, p. 1555.
10 U.S.C. § 1408(c)(1) provides that "subject to the limitations of this section [not applicable to this case], 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." (emphasis added). This statute permits each state to apply its own pre-McCarty law on classification and division of military retired pay. S.Rep. No. 507, 97th Cong., 2nd Sess. 16 (1982). Relying on this statute our courts have again held that military retired pay is to be considered marital property. Coates v. Coates, 650 S.W.2d 307, 312 (Mo.App.1983).
On March 23, 1983 appellant wife filed her motion to modify. Respondent husband filed a motion for summary judgment and an affidavit in support of the motion claiming that the parties agreed that he was...
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