Opinion
No. 4527-7-III.
December 21, 1982.
[1] Divorce and Dissolution — Disposition of Property — Military Pension. A dissolution decree is invalid to the extent that it characterizes military nondisability retirement income as community property and awards a portion to the nonretiree spouse.
Nature of Action: Action to dissolve a marriage.
Superior Court: The Superior Court for Spokane County, No. 80-3-02836-5, Donald N. Olson, J., on April 14, 1981, entered a decree which awarded the wife a portion of her husband's military retirement pay.
Court of Appeals: Holding that the retirement pay was not divisible as community property, the court reverses the property division portion of the decree and remands the case for further proceedings.
Don Robert Hanson, pro se.
Robert T. Carter, Grant L. Kimer, and Randall Danskin, for respondent.
[As amended by order of the Court of Appeals February 24, 1983, deleting directions that the opinion should not be published.]
Major Don Hanson, U.S.A.F., appeals a Superior Court determination that his military retirement pay was divisible under our community property laws.
[1] Don and Patricia Hanson were married on June 26, 1965. A dissolution decree was entered on April 14, 1980. The trial court characterized Major Hanson's interest in his military pension as community property and awarded Mrs. Hanson a fractional share of that pension. Major Hanson filed a notice of appeal on April 30, 1981. On June 26, 1981, the United States Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728 (1981), which held federal law precluded state courts from dividing military retirement pay in property settlements under their own community property laws. Recently, our Supreme Court decided In re Marriage of Dessauer, 97 Wn.2d 831, 650 P.2d 1099 (1982), which held at page 839:
The effect of the McCarty decision was neutralized by federal legislation enacted in September 1982. 10 U.S.C. § 1408.
a court may consider military nondisability retired pay as an economic circumstance of the parties when dividing property. However, the court must not characterize the retirement income as community property or divide it. Neither may it value the pension and offset property against that value.
The decree contains a characterization and division of Major Hanson's military pension. Thus, we must remand the property division portion of the decree to the trial court to reconsider the division of property in light of the Dessauer decision and existing federal and state laws.
The judgment of the Superior Court is reversed; the case is remanded for proceedings consistent with this opinion.
Reconsideration denied February 24, 1983.
Review denied by Supreme Court April 18, 1983.