Smith v. Smith

Decision Date28 February 1983
Citation458 A.2d 711
PartiesA.M. SMITH, Petitioner, v. A. SMITH, Respondent. . Submitted:
CourtDelaware Family Court

Upon Motion to Open Judgment of the Court to permit additional evidence and argument. Granted.

Clay T. Jester, Dover, for respondent.

Douglas B. Catts, Dover, for petitioner.

WAKEFIELD, Judge.

Pursuant to Superior Court Rule 60(b), Respondent-Wife (Wife) has moved to reopen this Court's decision of November 30, 1981 for the purpose of admitting additional evidence and for consideration of additional arguments with respect to the ancillary matters decided therein. Specifically, the Wife asks that the Court now treat the Husband's military pension as a marital asset in view of the recently-enacted Uniformed Services Former Spouses' Protection Law, Public Law 97-252 passed by Congress and signed by the President on September 8, 1982 and now codified in 10 U.S.C. § 1408 (herein "the Act"). That law "effectively overrules the narrow holding of McCarty [McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) ] by declaring that, under certain conditions, state courts can order a division of military retired pay as part of a distribution of marital property incident to a divorce proceeding." 3 Equitable Distribution Reporter No. 4 (October, 1982) p. 37.

In this Court's decision of November 30, 1981, the Court, relying on McCarty, supra, held that, while it could consider the Husband's military pension in a general way in making allocations of property, it could not specifically allocate any share thereof to the Wife as a property right, but could consider the income from such pension in making awards of alimony and child support. On the basis of that holding the Court awarded to the Wife 60% of the marital assets (excluding the military pension), 50% of the Husband's future Post Office pension earned during marriage "if, as and when received", and $600 per month undifferentiated alimony and child support. Although the Court could not, because of McCarty, divide the military pension, the Court did admit expert testimony on the value thereof which, had it not been for McCarty and had that testimony been accepted by the Court, would have made the military pension by far the largest single asset of the marital estate. Indeed, even the most conservative value placed on the military pension by the same expert made it more valuable than all the other assets combined.

The Act, which took effect on February 1, 1983, specifically provides in Section (c)(1):

"... a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981 (date of McCarty decision), 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."

Prior to McCarty, the law of Delaware as enunciated by the Delaware Supreme Court in Robert C.S. v. Barbara J.S., Del.Supr., 434 A.2d 383 (1981) was that future pension rights were marital property subject to division in ancillary proceedings. The subsequent decision by this Court in Landanarf v. Landanarf, Del.Fam., 441 A.2d 641 (1981) and the November 30, 1981 decision in this case rested solely and exclusively on McCarty and, hence, since Congress has, in effect, rendered McCarty null and void by making the Act retroactive to the date of the McCarty decision, Landanarf should no longer be considered controlling Delaware law with respect to military pension and Robert C.S., supra, should now be considered the controlling law for all future military pensions.

The issue presented by the instant motion as amended is whether the Court should now reopen a decision almost eighteen months old for the purpose of receiving additional evidence and/or arguments with respect to the military pension for the purpose of making an award to the Wife of a portion thereof.

Under 13 Del.C. § 1519(a)(3) a disposition relating to property may be modified only under "circumstances that would justify the opening or vacation of a judgment under the Rule of the Superior Court of this State." Superior Court Rule 60(b) provides, inter alia, for relief from a final judgment where "(5) ... a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment have prospective application; or (6) any other reason justifying relief from the operation of the judgment."

It appears rather clear that Congress, in passing the Act, intended to obliterate the adverse effect of McCarty upon the divorced spouse of military personnel by making it retroactive to the date of that decision. The Committee Report which accompanied the bill (copy attached) states at p. 1:

"The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty, 458 U.S. 210 [101 S.Ct. 2728, 69 L.Ed.2d 589] (1981). The bill would accomplish their objective by permitting Federal, State, and certain other courts, consistent with the appropriate laws, to once again consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, annulment or legal separation."

And Congress clearly felt that spouses aggrieved as a result of McCarty should have a chance to rectify the situation when the Report stated at p. 5:

"Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation." (Emphasis added)

When Report used the words "divorced in the interim period", I think it...

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    ...Womack, 16 Ark.App. 139, 698 S.W.2d 306 (1985); In re Marriage of Ankenman, 142 Cal.App.3d 833, 191 Cal.Rptr. 292 (1983); Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983); Pastore v. Pastore, 497 So.2d 635 (Fla.1986); Linson v. Linson, 1 Haw.App. 272, 618 P.2d 748 (1980); Griggs v. Griggs, 10......
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  • § 12.03 Military Longevity and Disability Retirement
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 12 Division of Federal Benefits
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