Opinion
No. 4795-4-III.
March 24, 1983.
[1] Divorce and Dissolution — Disposition of Property — Military Pension — Retroactivity. McCarty v. McCarty, 453 U.S. 210 (1981) does not retroactively divest courts of jurisdiction to divide military retirement income under community property laws, nor does it preclude division of such income accruing after the decision if the decree was final before the decision was filed.
Nature of Action: Action to modify the property disposition provisions of a dissolution decree on the basis of McCarty v. McCarty, 453 U.S. 210 (1981).
Superior Court: The Superior Court for Lincoln County, No. 13774, Willard A. Zellmer, J., on September 29, 1981, deleted provisions dividing the husband's military retirement income.
Court of Appeals: Holding that McCarty did not affect the decree which was already final, the court reverses the judgment and remands for a consideration of attorney fees.
Mark E. Vovos and Vovos, Voermans Ganz, for appellant.
William E. Cullen and Cullen Campbell, for respondent.
On May 22, 1975, Kathryn Brodhead filed a petition for dissolution of her marriage to Andrew Brodhead. The decree of dissolution, entered in August of that year, approved a property settlement agreement which, in part, provided that Mrs. Brodhead receive 32.8 percent of Mr. Brodhead's military retired pay. No appeal was taken from that decree.
This appeal by Mrs. Brodhead is from a September 29, 1981, order deleting from the property settlement and the original decree the provision that Mrs. Brodhead receive a percentage of the military benefits. The court struck this provision on the basis that McCarty v. McCarty, 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728 (1981), which held federal law precludes state courts from dividing military retired pay, applies retroactively.
[1] The question presented is whether the court erred in giving retroactive application to McCarty. In re Marriage of Brown, 98 Wn.2d 46, 653 P.2d 602 (1982), decided during the pendency of this appeal, states that McCarty does not apply retroactively to decrees of dissolution which were final prior to the date McCarty was decided.
Notwithstanding, Mr. Brodhead contends McCarty should be applied here to preclude enforcement of amounts accruing after the decision. We disagree. Brown consolidated two appeals from dismissals of petitions to modify final decrees of dissolution. Based on McCarty, the appellants in that case sought all of their military retired pay either from the date of dissolution or subsequent to the date McCarty was decided. The court affirmed the dismissals, holding there was jurisdiction to divide military retired pay prior to McCarty. The decrees, which were not appealed, were therefore held to be final. Based on Brown, Mr. Brodhead's contention must therefore be rejected.
The facts in this case are virtually identical to those in Brown. Since McCarty did not retroactively divest courts of jurisdiction to divide military retired pay, courts have jurisdiction to enforce decrees of dissolution which were final before McCarty was decided.
The order amending the original decree of dissolution is reversed; this case is remanded for a determination of Mrs. Brodhead's entitlement to attorney's fees and the amount of fees incurred on appeal.
We note that among the various motions filed that culminated in the court's order of deletion is a motion for contempt. We observe, without deciding, that contempt proceedings may not be an appropriate remedy here. See Decker v. Decker, 52 Wn.2d 456, 465, 326 P.2d 332 (1958); In re Marriage of Young, 26 Wn. App. 843, 615 P.2d 508 (1980).
ROE, C.J., and McINTURFF, J., concur.