Clifton v. Clifton

1990 OK 88, 801 P.2d 693, 61 O.B.A.J. 2366, 1990 Okla. LEXIS 97, 1990 WL 133857

• Court: Supreme Court of Oklahoma
• Decided: September 18, 1990
• Docket: 70357
• Status: Published

Opinions

KAUGER, Justice:

The dispositive question presented on certiorari is whether, pursuant to 12 O.S. Supp.1987 § 1289(F),¹ a post-decree property settlement can be modified to award to the wife a proportionate share of military retirement benefits earned by the husband during the marriage. We find that, in the absence of fraud, a property settlement award, as opposed to an award for support alimony, cannot be modified in a post-decretal hearing. The wife relies on Nantz v. Nantz, 749 P.2d 1137, 1141 (Okla. 1988), in which we held that 12 O.S. Supp. 1987 § 1289(D) and (E) could be applied retroactively to modify an award for support. Here, the issue is the retroactive modification of a property settlement agreement included within a final divorce decree. Property division was not an issue in Nantz, and when the Clifton’s were divorced, military retirement benefits were nondivisible under Baker v. Baker, 546 P.2d 1325-26 (Okla.1975). The Court of Appeals reversed the trial court’s award of benefits. We granted certiorari on April 2, 1990 to consider an issue of first impression. We find that property settlement awards are not modifiable pursuant to § 1289(F), and that Nantz does not support the wife’s position. Because the Clifton decree cannot be modified to divide the military pension, we need not address the issue of retrospective modification of vested property rights.

FACTS

The appellee/petitioner, Catherine L. Clifton (wife), and the appellant/respondent, Homer R. Clifton (husband), were married on April 12, 1966. The husband served in the military for twenty years— sixteen of which occurred during the marriage. The wife filed for divorce on January 25, 1983. The parties entered into an agreed settlement which was approved by the court, and a divorce was granted on August 31, 1983.² At the time of the divorce, the husband had begun receiving $700.00 per month in military retirement pay. The trial court found the retirement benefits were not subject to division, and the husband’s military retirement was awarded to him under the terms of the decree. The decree did not provide for support payments to the wife, or for payments in lieu of a property award. Neither party appealed from the entry of the decree of divorce.

On October 9, 1987, the wife filed a motion to modify the divorce decree to include 50% of the husband’s gross military retirement pay as jointly acquired property, including cost of living increases. Citing 12 O.S.Supp.1987 § 1289(F), the trial court sustained the motion to modify on January 12, 1988. The wife was awarded 40% of the retirement pay³ based upon a formula which took into consideration the number of years of marriage, and the number of years of military service. In an unpublished opinion, the Court of Appeals reversed. We granted certiorari on April 2, 1990, to consider a question of first impression in Oklahoma.

IN THE ABSENCE OF FRAUD, A PROPERTY SETTLEMENT AWARD, AS OPPOSED TO AN AWARD FOR SUPPORT ALIMONY, CANNOT BE MODIFIED IN A POST-DECRETAL HEARING.

The wife asserts that pursuant to 12 O.S. Supp.1987 § 1289(F), trial courts may retroactively modify property settlement provisions of divorce decrees rendered after June 26, 1981, to divide military retirement pay. Complex and unique circumstances surround the law of division of military pensions. This Court first addressed the issue in Baker v. Baker, 546 P.2d 1325-26 (Okla.1975). We held in Baker that military retirement benefits were not property acquired during coverture subject to division between the parties. On June 26, 1981, in McCarty v. McCarty, 453 U.S. 210, 228, 101 S.Ct. 2728, 2739, 69 L.Ed.2d 589, 603 (1981), the United States Supreme Court ruled that, as a matter of federal law, state courts could not subject military retirement pay to division upon divorce. Congress responded to McCarty on June 26, 1981, by enacting the Uniformed Services Former Spouses’ Protection Act (Spouses’ Protection Act). The Spouses’ Protection Act provides in 10 U.S.C. § 1408(c)(1) (1982) that:

“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.”

In enacting § 1408, Congress intended to leave the issue of division of military retirement benefits to the states. Nothing in the enactment requires division. Under the Spouses’ Protection Act, state courts are permitted to apply state divorce laws to military retirement pay.⁴ The Baker teaching that military retirement benefits were not divisible, was the prevailing law in Oklahoma when this divorce was filed on January 25, 1983. It was not until 1987, with the promulgation of Stokes v. Stokes, 738 P.2d 1346, 1348 (Okla.1987), that we determined that military pensions may be divisible as jointly acquired property.⁵ In Stokes, we referred to § 1289(F) as an indication that the Legislature intended for military retirement pensions to be subject to property division. However, unlike the situation here, Stokes did not involve the retroactive division of military retirement benefits. Stokes arose as an appeal from the trial court’s finding that the husband’s military pension was not divisible as jointly acquired property.

The Spouses’ Protection Act does not compel the post-decree disposition of marital property.⁶ Therefore, the wife is entitled to division of the husband’s military retirement benefits only if Oklahoma law provides a mechanism which allows the district court to reopen the final decree.⁷ The wife contends that § 1289(F) provides such a procedure.

Section 1289(F) states that it shall have retrospective effect “for the purpose of obtaining support or payments pertaining to a division of property on divorce decrees which become final after June 26, 1981.” On initial reading of the statute, the wife’s position appears meritorious. However, this language cannot be read in isolation.⁸ The determination of legislative intent is the goal of statutory construction.⁹ To ascertain the intent of the Legislature in enacting § 1289(F), we must consider the other portions of § 1289,¹⁰ and other enactments relating to property division.¹¹ Where possible, relevant portions of a statute and related enactments will be considered together to give force and effect to all of them.¹²

Taken in isolation, the quoted portion of § 1289(F)¹³ appears to support a conclusion that property divisions finalized after June 26, 1981, may be subject to retroactive redistribution. However, on closer inspection, it is apparent that the provision for retroactive reopening of divorce decrees relates only to modifications of payments of alimony as support. Subsection (F) refers the reader to subsection (E)¹⁴ stating that “the provisions of subsection (E) of this section shall have retrospective ... application.” Subsection (E) provides for the modification of alimony for support upon proof of changed circumstances. There is no reference in subsection (E) to modification of a property division.

The conclusion that the Legislature intended for § 1289(F) to apply only to payments of support alimony is bolstered by other subsections found within § 1289, and by the statutory scheme relating to divorce. Subsection (A) of § 1289 ¹⁵ directs the trial court to designate, at the time the original divorce decree is entered, the dollar amount awarded as support and as property division. Subsection (A) also requires the trial court to specify that payments for property continue until completed. It further provides that “payments pertaining to a division of property are irrevocable and not subject to subsequent modification.” ¹⁶

Were we to conclude that subsection (F) controlled a readjustment of property division, an irreconcilable conflict would be created with subsection (A), which declares that payments pertaining to property cannot be modified. A reasonable reading of subsection (F) brings us to the conclusion that it must apply only to payments for support alimony.¹⁷ Therefore, we adopt the construction which avoids conflict,¹⁸ and hold that a divorce decree cannot be modified, pursuant to § 1289, to divide military retirement benefits, not divisible at the time of divorce, as jointly acquired property. The states which have considered retroactive division of military retirement benefits are almost equally divided on the issue.¹⁹ However, the majority of the jurisdictions which allow parties to reopen final decrees to divide military retirement benefits allowed division before McCarty. This was not the law in Oklahoma before the United States Supreme Court's decision in McCarty, nor is it now.

Our finding that § 1289(F) does not apply to modify the property divisions of a divorce decree to include military retirement benefits is supported by the language of 12 O.S.1981 § 1279.²⁰ Section 1279 provides that, except in cases of fraud, divorce is a bar to any claim of either party to the property of the other.²¹ The wife does not assert that the military retirement benefits were not divided because of fraudulent concealment by her husband. On the contrary, the military retirement benefits were disclosed to the trial court at the time of divorce, and were set aside in the decree as the husband’s separate property. The construction given § 1289(F) results in internal consistency within the statute, and allows the provisions within the same statutory scheme to be considered as a harmonious whole with effect given to each.²²

CONCLUSION

Property division provisions stand inviolate by actions of the divorced parties unless they act to vacate, set aside, or modify the decree in a manner authorized by statute.²³ Section 1289(F) does not provide the means to alter final divorce decrees for the division of military retirement benefits, as jointly acquired property.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED, TRIAL COURT REVERSED.

HARGRAVE, C.J., and HODGES, SIMMS, DOOLIN and SUMMERS, JJ., concur. OPALA, V.C.J., concurs in judgment. LAVENDER, J., concurs in result. ALMA WILSON, J., dissents.

1 . Title 12 O.S.Supp.1987 § 1289(F) provides: "Pursuant to the federal Uniformed Services Former Spouse’s Protection Act (PL 97-252), the provisions of subsection E of this section shall have retrospective and prospective application with regards to modifications for the purpose of obtaining support or payments pertaining to a division of property on divorce decrees which become final after June 26, 1981.”

Section 1289 was renumbered effective November 1, 1989. It now appears at 43 O.S.Supp.1989 § 134.

2 . As entered, the divorce decree indicated that the divorce was granted on November 18, 1983. An order nunc pro tunc was entered on February 6, 1984, to reflect the correct date of August 31, 1983.

3 . As of January 2, 1988, the husband was receiving monthly retirement benefits of $810.00.

4 . Casas v. Thompson, 42 Cal.3d 131, 228 Cal. Rptr. 33, 42-43, 720 P.2d 921, 930 (1986), cert. denied, 479 U.S. 1012, 107 S.Ct. 659, 93 L.Ed.2d 713 (1986); Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895, 897 (1984); Note, “Closing the McCarty -USFSPA Window: A Proposal for Relief from McCarty -Era Final Judgments,” 63 Tex.L.Rev. 497-98, 509 (1984); S.Rep. No. 502, 97th Cong., 2d Sess.1982, U.S.Code Cong. & Ad. News 1555, 1596, 1598-1599.

5 . This position has been reaffirmed. See, Rookard v. Rookard, 743 P.2d 1083 (Okla.1987).

6 . Bishir v. Bishir, 698 S.W.2d 823, 825 (Ky.1985); Goad v. Goad, 768 S.W.2d 356, 358 (Tex.Ct.App. 1989), cert, denied, -U.S.-, 110 S.Ct. 722, 107 L.Ed.2d 742 (1990).

7 . Andresen v. Andresen, 317 Md. 380, 564 A.2d 399, 403 (1989). See also, Curl v. Curl, 115 Idaho 997, 772 P.2d 204, 210 (1989).

8 . Cowart v. Piper Aircraft Corp., 665 P.2d 315, 317 (Okla.1983); Earnest, Inc. v. LeGrand, 621 P.2d 1148, 1151 (Okla.1980).

9 . Humphrey v. Denney, 757 P.2d 833, 835 (Okla.1988); Fuller v. Odom, 741 P.2d 449, 452 (Okla.1987).

10 . Dana P. v. State, 656 P.2d 253, 258 (Okla.1982); Becknell v. State Indus. Court. 512 P.2d 1180, 1183 (Okla.1973); Adams v. Fry, 204 Okla. 407, 230 P.2d 915, 917 (1951).

11 . Independent School Dist. No. 89 v. Oklahoma City Fed’n, 612 P.2d 719, 721 (Okla.1980); Appeal of Price, 88 Okl. 156, 212 P. 424-25 (1923).

12 . Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, 764 P.2d 172, 179 (Okla.1988); AMF Tubescope Co. v. Hatchel, 547 P.2d 374, 379 (Okla.1976).

13 . Title 12 O.S.Supp.1987 § 1289(F), see note 1, supra.

14 . Title 12 O.S.Supp.1987 § 1289(E) provides;

“Except as otherwise provided in subsection D of this section, the provisions of any divorce decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Only those installments accruing subsequent to the motion for modification may be modified.”

Section 1289 was renumbered effective November 1, 1989. It now appears at 43 O.S.Supp.1989 § 134.

15 .Title 12 O.S.Supp.1987 § 1289(A) provides:

“In any divorce decree which provides for periodic alimony payments, the court shall plainly state, at the time of entering the original decree, the dollar amount of all or a portion of each payment which is designated as support and the dollar amount of all or a portion of the payment which is a payment pertaining to a division of property. The court shall specify in the decree that the payments pertaining to a division of property shall continue until completed. Payments pertaining to a division of property are irrevocable and not subject to subsequent modification by the court making the award.”

Section 1289 was renumbered effective November 1, 1989. It now appears at 43 O.S.Supp.1989 § 134.

16 . Emphasis supplied.

17 . When considering the original enactment of 12 O.S.Supp.1987 § 1289(F), see note 1, supra, this interpretation is reasonable. The language relating to the Spouses’s Protection Act and to the retrospective and prospective application for modifications to obtain support or payments pertaining to a division of property was originally a part of § 1289(E). Title 12 O.S.Supp. 1985 § 1289(E) provides:

“Except as otherwise provided in subsection D of this section, the provisions of any divorce decree pertaining to the payment of support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Only those installments accruing subsequent to the motion for modification may be modified. The provisions of this subsection shall have retrospective and prospective application with regards to modifications for the purpose of obtaining support or payments pertaining to a division of property on divorce decrees which become final after June 26, 1981, and pursuant to the federal Uniformed Services Former Spouse’s Protection Act (PL 97-252).”

18 . Earnest, Inc. v. LeGrand, see note 8, supra; State ex rel. Thompson v. Ekberg, 613 P.2d 466-67 (Okla.1980).

19 . Ten states refuse to allow a reevaluation of a prior property division: Andresen v. Andresen, see note 7, 564 A.2d at 405, supra (Divisible before McCarty, but no procedure to reopen final property division.); Curl v. Curl, see note 7, 772 P.2d at 208, supra (Spouse not entitled to reopen divorce decree on ground that case law pursuant to which property rights had been determined had been statutorily repealed.); Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo.1988) (Trial court could not reopen divorce proceeding in equity to divide military pension.); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140-41 (1987) (No statutory basis for revision or modification.); Koepke v. Koepke, 732 S.W.2d 299-300 (Tex.1987) (Although the Texas Court recognized that military retirement benefits may be retroactively divided, no division was allowed if, as here, the military retirement benefits were expressly awarded in the divorce decree.); Bishir v. Bishir, see note 6 at 826, supra (No statutory provision allowing modification of property award.); Throckmorton v. Throckmorton, 767 P.2d 121, 124 (Utah App.1988) (Change in case law allowing division of military retirement benefits did not justify retroactive distribution of the pension.); Marriage of Wise, 46 Ohio App.3d 82, 545 N.E.2d 1314, 1316-17 (1988) (No division was allowed because separation agreement did not award benefits.); Murphy v. Murphy, 716 S.W.2d 870-71 (Mo.Ct.App. 1986) (Trial court was without jurisdiction to modify property distribution.); Marriage of Yates, 365 N.W.2d 49, 51 (Iowa Ct.App.1985) (New legislation would not support petition for modification of a dissolution decree to include military retirement benefits.)

Eleven states allow division: Morales v. Morales, 402 N.W.2d 322-23 (N.D.1987) (Judgment reopened to divide military pension even though it was nondivisible under state law before McCarty.); Norris v. Saueressig, 104 N.M. 76, 717 P.2d 52, 54 (1986) (Divisible before McCarty.); Marriage of Waters, 223 Mont. 183, 724 P.2d 726, 730 (1986) (Divisible before McCarty.); Casas v. Thompson, see note 4, 228 Cal.Rptr. at 39-40, 720 P.2d at 927, supra (Divisible before McCarty.); Marriage of MacDonald, 104 Wash.2d 745, 709 P.2d 1196, 1198 (1985) (Divisible before McCarty.); Edsall v. Superior Court, see note 4, 693 P.2d at 901, supra (Divisible before McCarty.); Rosen v. Rosen, 225 N.J.Super. 33, 541 A.2d 716, 718 (1988), cert. denied, 111 N.J. 649, 546 A.2d 558 (1988) (Divisible before McCarty.); Marriage of Valley, 97 Or.App. 95, 775 P.2d 332, 334 (1989), modified, 99 Or. App. 252, 781 P.2d 1219 (1989) (Divisible before McCarty.); Parshall v. Parshall, 385 Pa.Super. 142, 560 A.2d 207, 211 (1989) (Divisible where rights were reserved in dissolution agreement. Modified to allow benefits from date of order.); Marriage of Bingham, 181 Ill.App.3d 966, 130 Ill.Dec. 829, 832, 537 N.E.2d 1158, 1161 (1989) (Divisible before McCarty.); Thorpe v. Thorpe, 123 Wis.2d 424, 367 N.W.2d 233-34 (1985) (Trial court has discretion to modify award of military retirement benefits.)

See also, Annot., "Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses," 94 A.L.R.3d 176 (1979).

20 .Title 12 O.S.1981 § 1279 provides:

“A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of either party in or to the property of the other, except in cases where actual fraud shall have been committed by or on behalf of the successful party.”

Section 1279 was renumbered effective November 1, 1989. It now appears at 43 O.S.Supp.1989 § 122.

21 . Shipp v. Shipp, 383 P.2d 30, 33 (Okla.1963).

22 . Anderson v. Dyco Petroleum Corp., 782 P.2d 1367, 1376 (Okla.1989); Young v. Mid-Continent Casualty Co., 743 P.2d 1084, 1086 (Okla.1987); Inexco Oil Co. v. Corporation Comm’n, 628 P.2d 362, 365 (Okla. 1981).

23 . Henderson v. Henderson, 764 P.2d 156, 159 (Okla.1988); Reynolds v. District Court, 198 Okla. 326, 177 P.2d 830, 832 (1946); Arnold v. Arnold, 194 Okla. 571, 153 P.2d 224, 226 (1944). Inherent in these decisions is a recognition that to allow the unfettered readjustment of vested property rights would disrupt settled principles of property law.