Whenry v. Whenry

• Decision Date: 22 June 1982
• Docket Number: 14061 and 14093,13984,14003,Nos. 13864,13960,s. 13864
• Citation: 652 P.2d 1188,98 N.M. 737,1982 NMSC 67
• Parties: Carol L. WHENRY, Plaintiff-Appellee, v. Jack L. WHENRY, Defendant-Appellant. Gerry E. NEAVE, Petitioner-Appellee, v. David A. NEAVE, Respondent-Appellant. John W. BOWDEN, Petitioner-Appellant, v. Lorna D. BOWDEN, Respondent-Appellee. Ruth STROSHINE, Petitioner-Appellant, v. Arnold STROSHINE, Respondent-Appellee. Edmond N. DUROCHER, Petitioner-Appellant, v. Sally Rose DUROCHER, Respondent-Appellee. Albert M. ATLER, Petitioner-Appellant, v. Donna A. ATLER, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 1188

652 P.2d 1188

98 N.M. 737

Carol L. WHENRY, Plaintiff-Appellee, v. Jack L. WHENRY, Defendant-Appellant.

Gerry E. NEAVE, Petitioner-Appellee, v. David A. NEAVE, Respondent-Appellant.

John W. BOWDEN, Petitioner-Appellant, v. Lorna D. BOWDEN, Respondent-Appellee.

Ruth STROSHINE, Petitioner-Appellant, v. Arnold STROSHINE, Respondent-Appellee.

Edmond N. DUROCHER, Petitioner-Appellant, v. Sally Rose DUROCHER, Respondent-Appellee.

Albert M. ATLER, Petitioner-Appellant, v. Donna A. ATLER, Respondent-Appellee.

Nos. 13864, 13960, 13984, 14003, 14061 and 14093.

Supreme Court of New Mexico.

June 22, 1982.

[98 NM 738]

Donald D. Young, Albuquerque, for defendant-appellant Whenry

John C. Wheeler, Albuquerque, Byron L. Treaster, Los Alamos, for plaintiff-appellee Whenry.

Jack T. Whorton, Alamogordo, for respondent-appellant Neave.

Dan B. Buzzard, Clovis, Singleton & Roberts-Hohl, Sarah M. Singleton, Santa Fe, for petitioner-appellee Neave.

Jack T. Whorton, Alamogordo, for petitioner-appellant Bowden.

Durrett, Jordon & Grisham, Wayne A. Jordon, Alamogordo, for respondent-appellee Bowden.

S. Thomas Overstreet, Alamogordo, for petitioner-appellant Stroshine.

Alvin Jones, Roswell, for respondent-appellee Stroshine.

Jack T. Whorton, Alamogordo, for petitioner-appellant Durocher.

Durrett, Jordon & Grisham, Wayne A. Jordon, Alamogordo, for respondent-appellee Durocher.

David R. Sierra, Santa Fe, for petitioner-appellant Atler.

Keleher & McLeod, Peter H. Johnstone, Albuquerque, for respondent-appellee Atler.

OPINION

FEDERICI, Justice.

Numerous cases are being filed in the district courts of the State of New Mexico and appealed to the Supreme Court of New Mexico for a determination of the retroactive operation of the rule announced in Espinda v. Espinda, 96 N.M. 712, 634 P.2d 1264 (1981) (Espinda ). All of the cases now pending on appeal on this issue in this Court have been consolidated for purposes of this opinion.

On June 26, 1981, the United States Supreme Court held that federal law precludes state courts from treating military retirement pay as community property. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (McCarty ). In light of the opinion by the Supreme Court of the United States, this Court, in Espinda, overruled prior New Mexico case law, to the extent that we had held that United States military retirement pay was community property.

We address one issue in this appeal: Whether the rule announced in McCarty and Espinda should be applied retroactively to cases such as these six cases consolidated upon appeal, wherein judgments based on prior New Mexico community property case law became final before the United States Supreme Court's opinion in McCarty.

We join in the result reached by a vast majority of courts which have considered this issue and hold that McCarty and Espinda are not to be applied retroactively to New Mexico judgments which were final prior to the pronouncement of McCarty. See Wilson v. Wilson, 667 F.2d 497 (5th Cir.1982); Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981); In re Marriage of Fellers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981); In re Marriage of Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981); In re Marriage of Mahone, 123 Cal.App.3d 17, 176 Cal.Rptr. 274 (1981); Braden v. Reno, 8 Fam.L.Rptr. (BNA) 2041 (Idaho Dist.Ct., Nov. 3, 1981); Duren v. Duren, 627 S.W.2d 585 (Ky.1982). The briefs submitted by the parties and our research indicate that of the state and federal courts which have addressed this issue, only the Texas Court of Appeals has applied McCarty retroactively. See Ex Parte Buckhanan, 626 S.W.2d 65 (Tex.Ct.App.1981) (Klingeman, J., dissenting).

Each of the six cases involved in this appeal arise from final divorce decrees in which the wife was granted a portion of the husband's military retirement, which was considered by the trial court as representing the wife's portion of her one-half of the community property accumulated during the marriage. In four of the six cases involved in this appeal, the final decrees incorporated property settlements and stipulations between the parties that military retirement pay was community property. The Durocher and Whenry military spouses disputed the contention that military retirement pay was community property. In none of the six cases was an appeal taken from the final divorce decree; the time for appeal in all cases had run by the time McCarty was decided. In each case, relying on McCarty, the military spouse subsequently filed a motion for relief from the final divorce decree. In the Atler case, the military spouse has withheld payments to his ex-spouse of the military retirement benefits since August 1981. In each case, following McCarty, the military spouse sought relief from his divorce decree; in every case except Stroshine, such relief was denied by the trial court. Timely appeals were taken from these decisions.

I. RETROACTIVITY GUIDELINES.

Where, as in McCarty, the overruling court does not address the retroactive effect of its own decision, the modern trend is to allow lower courts to draw their own conclusion on retroactivity using appropriate guidelines. This is so until the overriding court expressly clarifies what retroactive effect its overruling decision is to receive. Annot., 10 A.L.R.3d 1371, 1399 (1966); Ruhm v. Turner, 357 F.Supp. 324 (W.D.Okla.1973).

For appropriate guidelines, we look to the United States Supreme Court which has reviewed the question of prospective versus retroactive application of a judicial decision in numerous occasions. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Most recently, in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), the Court discussed this issue at some length, identifying three separate factors generally applicable in considering this issue:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, [citation omitted]. Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra, at 629, 85 S.Ct. at 1737. Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity." [Citation omitted.]

(A) Reliance on the Overruled Clear Past Precedent.

McCarty clearly establishes a new principle of law, by overruling the clear precedent of the progeny of New Mexico cases following LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969). As evidenced by the final divorce decrees in the six cases at bar, for the twelve years immediately preceding McCarty, parties to cases filed in New Mexico and New Mexico attorneys and courts have relied on the rule established by case law that a division of military retirement benefits as community property could be made. Property settlements have been agreed upon based on that precedent. The extensive reliance on that prior precedent would make a fully retroactive application of McCarty unjust and inequitable. In Re Marriage of Sheldon, supra.

(B) Purpose of New Rule and Effect of Retroactive Application on the Rule's Operation.

By concluding that "[s]tate courts are not free to reduce the amounts that Congress has determined are necessary for the retired member," the McCarty Court was acting to protect the "clear and substantial federal interest" which the Congress has in maintaining a military force and in protecting the goals of the military retirement system: "to provide for the retired service member, and to meet the personnel management needs of the active military forces." McCarty, 453 U.S. at 232, 101 S.Ct. at 2741. The Court reasoned that the lessening of retirement benefits caused by state community property laws reduces the incentive for enlistment or re-enlistment and thereby poses a threat to the maintenance of "youthful and vigorous" military forces. Our determination that McCarty should not be applied retroactively does not frustrate this purpose. Future enlistees or re-enlistees will have the incentive to enlist or re-enlist; prospective operation of McCarty will guarantee them full entitlement of retirement benefits. Our refusal to reopen cases, long since final, wherein retirement benefits have been treated as community property, will have little impact on the federal interest furthered by McCarty. The Congressional purposes articulated by the McCarty majority can be adequately served even if the decision is not given retroactive effect.

(C) The Effect Retroactive Application Might Have on the Administration of Justice.

On the basis that in no other area of law is the need for stability and finality greater than in marriage and family law, the court in In re Marriage of Sheldon, supra, 177 Cal.Rptr. at 384, found this factor most compelling in their refusal to apply the McCarty holding retroactively:

Divorce inevitably requires old plans be abandoned, new plans made, and perceptions altered to conform to a changed reality. To permit and in fact encourage the relitigation of property interests long after the issues were supposedly settled would merely serve to reopen old wounds and create new...