Le Vine v. Spickelmier

• Decision Date: 24 September 1985
• Docket Number: No. 15568,15568
• Citation: 707 P.2d 452,109 Idaho 341
• Parties: Irving E. LE VINE, Plaintiff-Appellant-Cross Respondent-Appellant, v. Joan L. (Le Vine) SPICKELMIER, Defendant-Respondent-Cross Appellant-Respondent.
• Court: Idaho Supreme Court

Page 452

707 P.2d 452

109 Idaho 341

Irving E. LE VINE, Plaintiff-Appellant-Cross Respondent-Appellant, v. Joan L. (Le Vine) SPICKELMIER, Defendant-Respondent-Cross Appellant-Respondent.

No. 15568.

Supreme Court of Idaho.

Sept. 24, 1985.

Stanley W. Welsh and Rory R. Jones, Boise, for plaintiff-appellant.

Alan D. Wilson, Mountain Home, for defendant-respondent.

HUNTLEY, Justice.

Irving E. Le Vine and Joan Le Vine Spickelmier were married in 1968. In late 1972, the husband retired from the United States Air Force with full military retirement benefits after twenty years of service. He attended and eventually graduated from veterinary school, and then established a veterinary practice in Mountain Home, Idaho. In August, 1981, husband filed for divorce on the ground of irreconcilable differences. The wife counterclaimed on the ground of extreme mental cruelty.

On February 4, 1982, the magistrate entered findings of fact, conclusions of law and a decree of divorce. He granted each party a divorce from the other on the ground of irreconcilable differences, finding no fault by either party. The wife was awarded custody of the two children, and the court ordered the husband to pay $250 per month per child in child support. The husband was ordered to pay the wife $600 a month in spousal maintenance for a maximum of forty-eight months to enable her to increase her employability and earning potential by obtaining a college degree. In accordance with the wishes of the parties as expressed at trial, the magistrate awarded the bulk of the community property, consisting primarily of the assets of the veterinary practice, to the husband, and as a condition and almost total offset, he ordered husband to assume the community debts. Miscellaneous small items of community property were awarded to the wife. The remaining property, a small amount of personal property belonging to each spouse, was left in the hands of the spouse who possessed it at the time of the divorce. The magistrate did not make specific findings as to the value of the various items of community property.

Basing its decision on the U.S. Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the magistrate awarded the husband his entire military retirement benefit as his sole and separate property; however because legislation was pending in Congress at the time, the trial court retained jurisdiction over the issue of the military retirement benefit, granting wife permission to return to court to request a portion of that benefit within six months after such time as Congress should enact legislation overruling the McCarty decision.

Both parties appealed the magistrate's decision to the district court. While their appeals were pending, Congress enacted the Federal Uniformed Services Former Spouses' Protection Act (FSUFSPA); 96 Stat. 730 (1982). The wife promptly requested the magistrate to award her a share of the husband's military retirement benefit. On February 3, 1983, the magistrate entered a memorandum decision awarding her 11% of the husband's "disposable" retirement pay.

On appeal to the district court, the husband had contended, citing Neveau v. Neveau, 103 Idaho 707, 652 P.2d 655 (Ct.App., 1982), that an award of spousal maintenance by the magistrate was improper absent a finding of fault. The district court agreed, and on October 27, 1983 remanded to the magistrate for a finding of fault. In an order dated February 4, 1984 the magistrate found that husband was the chief cause of the differences between the parties, and that he was at fault for the divorce.

The parties had meanwhile moved for rehearing and further findings on the district court's October 27, 1983 order. After the magistrate's finding of fault, the wife moved to reconsider or rehear on the grounds that the husband's petition for rehearing of the district court's decision had been granted. The rehearing on the district court's order was held on March 15, 1984. On April 12, 1984 the district court entered an amended decision and order, again remanding to the magistrate for a finding of fault. On May 3, 1984 the magistrate reaffirmed his February 4, 1984 order finding fault on the husband's part.

This appeal presents four issues:

(1) whether a trial court may retain jurisdiction in a divorce proceeding pending an anticipated future change in the law;

(2) whether the magistrate had jurisdiction, while the case was on appeal to the district court, to enter a finding of fault by the husband in order to support an award of spousal maintenance;

(3) whether the trial court properly considered the factors required by I.C. § 32-705 in awarding spousal maintenance; and

(4) whether the district court erred in affirming the magistrate's division of community property despite the magistrate's failure to make specific findings as to the value of the items of community property allocated to each spouse.

I. RETENTION OF JURISDICTION

Appellant husband argues that the magistrate improperly retained jurisdiction over the issue of his military pension. He contends that a trial court may not retain jurisdiction over a single issue relating to property division after judgment has been rendered.

We first address the threshold matter (emphasized only at oral argument) of whether the FUSFSPA applies only to spouses married to a military retiree for ten years or more during which time the retiree served at least ten years of service. The husband here argues that he and his wife were married for thirteen years, but the husband served only four years of his military service during the marriage.

The relevant portions of title 10 U.S.C. § 1408 applicable at the time of appeal state:

(c)(1) Subject to the limitations 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.

(d)(1) After effective service on the Secretary concerned of a court order with respect to the payment of a portion of the retired or retainer pay of a member to the spouse or a former spouse of the member, the Secretary shall, subject to the limitations of this section, make payments to the spouse or former spouse in the amount of the disposable retired or retainer pay of the member specifically provided for in the court order.... ¹

(d)(2) If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.

Section (c)(1) provides the courts may distribute military pensions as community property when that is in accord with state law. Sections (d)(1) and (d)(2) simply modify (c)(1), providing that the ten year limitation applies only where in response to a court order, direct payments are made by the Secretary to the former spouse. The wife meets the definition of "spouse or former spouse" provided by statute: "... the husband or wife, or former husband or wife, respectively, of a member, who, on or before the date of a court order, was married to that member." 10 U.S.C. § 1408(a)(6). Therefore the FUSFSPA applies in this case.

Neither husband nor wife in the instant case cite relevant authority which supports the conclusion that retaining jurisdiction here was or was not proper under the facts of this case. However, we need not reach the issue of whether the magistrate properly reserved jurisdiction here. In Ratkowski v. Ratkowski, 108 Idaho 355, 699 P.2d 1369 (1985) this Court held that the FUSFSPA applies in any case in which an appeal was pending, and therefore no final judgment entered, as of the effective date of that Act. The FUSFSPA became effective on February 1st, 1983. Both parties had timely appealed the February 4th, 1982 decree entered by the magistrate, and those appeals were pending on February 1st, 1983. Whether we remand for entry of new judgment, in which case the new judgment will post-date the effective date of the FUSFSPA which will then apply; or whether we allow the present judgment to stand, the result will be the same. The judgment will become final subsequent to the effective date of the statute in either event, thus rendering the issue moot. Therefore we affirm the present judgment of an award of 11% of husband's military retirement benefits to the wife.

II. SPOUSAL MAINTENANCE

The husband also argues that the district court erred in remanding to the magistrate for a finding of fault after the magistrate had entered a decree basing the divorce on irreconcilable differences. He notes that when a judgment is appealed to a higher court, a lower court is divested of jurisdiction over the matter. Avondale Irrigation Dist. v. North Idaho Properties, Inc., 99 Idaho 30, 577 P.2d 9 (1978).

A review of the procedural record indicates that when the district court remanded in April, 1984 no appeal was pending before the court which would have divested it of jurisdiction, and that the magistrate court obtained jurisdiction again upon remand. Since the magistrate court had full jurisdiction at the time it entered the order finding fault on the part of the husband, husband's assignment of error is without merit.

III. I.C. § 32-705 AND SPOUSAL MAINTENANCE

The husband next urges that the trial court did not properly consider the factors stated by I.C. § 32-705 ² with regard to awarding of spousal maintenance. We find his contention to be without merit. The district...