Wiles v. Wiles, 86-75
| Decision Date | 30 June 1986 |
| Docket Number | No. 86-75,86-75 |
| Citation | 289 Ark. 340,711 S.W.2d 789 |
| Parties | Maria H. WILES, Appellant, v. John H. WILES, Appellee. |
| Court | Arkansas Supreme Court |
Redden & Hirby by Michael Redden, Little Rock, for appellant.
Baim, Gunti, Mouser, Bryant & DeSimone by Judith A. DeSimone, Pine Bluff, for appellee.
The sole issue to be decided in this appeal is whether to apply our decisions in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) and Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986) retroactively to a divorce decree which became final prior to the decisions in those two cases. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(c) to interpret Act 705 of 1979.
The parties, John and Maria Wiles, divorced on November 16, 1982, after approximately 20 years of marriage. Mr. Wiles was in the military during the marriage. The decree provided:
[T]he Court hereby specifically authorizes the Defendant to have all of the benefits for herself and her children under the new Former Spouses Protection Act of the United States Congress except that she is not entitled to any portion of any provision regarding present, past or future retirement benefits of the Plaintiff.
Arkansas law at the time provided that military retirement pensions were not "marital property" under Ark.Stat.Ann. § 34-1214 (Repl.1962). Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980). Mrs. Wiles did not appeal from the decree.
On January 30, 1984, this court handed down Day v. Day, supra, in which we held that an employer-sponsored retirement plan was marital property subject to allocation. In so holding, we stated:
After the adoption of Act 705 of 1979 we failed to give full effect to the new law and instead adhered to the position we had taken under a quite different statute. In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), we decided that a military pension, currently being paid but not transferable, was not marital property....
We now realize that we have inadvertently failed to recognize the new concept of "marital property," created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, with exceptions not important here. Section 34-1214 (Supp.1983). That law directs that all marital property be distributed equally unless the court finds that division inequitable.
In Young v. Young, supra, we held that military retirement benefits also constitute marital property and that our prior holding in Paulsen was effectively overruled by Day and its progeny.
On September 9, 1982, the Uniformed Services Former Spouses' Protection Act, 10 USCA § 1408, was enacted into law and became effective February 1, 1983. The Act permitted states, whose laws so provide, to divide military retired pay as marital property. See Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).
On April 30, 1985, the appellant, Mrs. Wiles, filed a complaint in chancery court seeking modification of the divorce decree. The portion of that complaint at issue here asked the chancery court to apply the Day decision retroactively and allow her a portion of Mr. Wiles' military retirement pension. The chancellor determined that Day should not be applied retroactively and dismissed that portion of the complaint. In so holding, the chancellor acknowledged that if Mr. and Mrs. Wiles had been divorced at any time following Day, Mrs. Wiles would have been entitled to make a claim for a portion of the pension. In refusing to allow her to do so now, the chancellor noted that the prior rule of law was relied upon when the decree was entered and that probably hundreds of divorces were granted between the dates of the passage of the Uniformed Services...
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