Curl v. Curl

772 P.2d 204, 115 Idaho 997, 1989 Ida. LEXIS 55

• Court: Idaho Supreme Court
• Decided: April 5, 1989
• Docket: 16395
• Status: Published

Opinions

BAKES, Justice.

Plaintiff husband appeals from the district court’s order allowing modification of a divorce decree and remanding to the magistrate for further proceedings regarding awarding a portion of husband’s military retirement benefits to his former spouse pursuant to the Uniform Services Former Spouses Protection Act (USFSPA). The divorce decree became final post-McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (ruling military retirement pay was the separate property of the military spouse), but pre-USFSPA, 10 U.S.C.A. 1408 (enacted February 1, 1983, retroactively allowing military retirement pay to be classified in conformance with state law).

The sole dispositive issue in this appeal, as acknowledged by both parties, is whether the district court erred in ruling that the instant divorce decree should be reopened in order to allow a modification of the distribution of appellant’s military retirement benefits.¹ We conclude that the district court erred in allowing the decree of divorce in this case to be reopened.

I

Plaintiff appellant, James L. Curl, and defendant respondent, Carol A. Curl, were married on June 25, 1966. While appellant and respondent were married, appellant was a member of the United States Air Force. After 15 years of marriage the parties were divorced on November 10, 1981. Both were represented by legal counsel during all stages of the divorce proceeding. Appellant subsequently retired from the Air Force in February, 1985.

Plaintiff appellant James L. Curl filed his complaint seeking divorce on August 12, 1981. In his complaint he alleged that all the property of the parties, including the “military retirement benefits of [plaintiff], if any,” was community property. The defendant Carol Curl did not appear or file an answer in the action, and the divorce was granted by default. However, the defendant respondent Carol Curl was represented by counsel while the divorce was pending. At the time of the default hearing wherein plaintiff was awarded his divorce, counsel for Carol A. Curl appeared and orally stipulated into the record the property settlement which the parties had agreed to, which agreement is reflected in the stipulated decree of divorce as follows:

[T]he Court did proceed to hear stipulations between the parties hereto and counsel and evidence submitted.

The parties hereto stipulated and agreed that the community property of the parties be divided as follows:

To the Plaintiff [James L. Curl]:

1966 Chevrolet Pickup

Miscellaneous personal items and effects

Military Retirement Benefits of Plaintiff, if any

Home located at 340 Morris Drive, Mountain Home, Idaho

To the Defendant [Carol A. Curl]:

1980 Dodge Aspen Automobile

Furniture in the possession of the defendant

Miscellaneous personal items and effects of the defendant and minor children.

(Emphasis added).

Upon hearing the evidence and the stipulations of counsel, the court granted the parties a divorce and, pursuant to the stipulation, divided the property as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the plaintiff shall receive as his sole and separate property, the following described items, to-wit:

1966 Chevrolet Pickup

Home located at 340 Morris Drive, Mountain Home, Elmore County, Idaho

Miscellaneous personal items and effects

Military Retirement Benefits of Plaintiff, if any

IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the defendant shall receive as her sole and separate property, the following described items, to-wit:

1980 Dodge Aspen Automobile

Furniture now in defendant’s possession

Miscellaneous personal items and effects of the defendant and minor children.

(Emphasis added). Plaintiff appellant was also ordered to pay child support.

On September 6,1984, nearly three years later, respondent became dissatisfied with her original stipulation and property settlement agreement and filed a motion to modify the divorce decree in order to award her a portion of appellant’s military retirement benefits. Respondent’s motion was “filed under Rule 60(b)(5) I.R.C.P. on the grounds that the prior Judgment upon which the previous Decree is based has been reversed or otherwise vacated and on the further grounds that it is no longer equitable that the Judgment should have prospective application.”

On November 5, 1984, the magistrate ruled that the divorce decree could not be reopened under I.R.C.P. 60(b)(5). The magistrate stated that he was not persuaded, either by the stipulation or the decree of divorce, that the property distribution was based on the ruling in McCarty; therefore no prior judgment upon which the previous decree was based had been reversed. I.R. C.P. 60(b)(5). Respondent appealed the magistrate’s decision to the district court on December 7, 1984. When the district court affirmed the magistrate’s decision, respondent filed a motion for reconsideration. Finally, on January 21, 1986, the district court issued a revised decision allowing the original decree to be reopened and modified and remanded the case to the magistrate for further proceedings regarding division of appellant’s military retirement benefits. Appellant has appealed the district court’s order allowing the original decree to be reopened. We reverse.

II

Respondent based her motion to modify the divorce decree on I.R.C.P. 60(b)(5), relying expressly on the following language:

Rule 60(b). Mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud, grounds for relief from judgment on order. — On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) ... a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application....

“A party seeking relief from a final judgment under the provisions of I.R.C.P. 60(b) must bring a motion therefor within the applicable time period and assert facts which bring the case within the purview of the rule.” Catledge v. Transport Tire Co., Inc., 107 Idaho 602, 606, 691 P.2d 1217, 1221 (1984). “[T]o be entitled to relief under I.R.C.P. 60(b), the moving party must allege grounds and plead facts bringing it within the terms of the rule.” Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983). Here, however, respondent has not “allege[d] grounds and plead facts bringing [her case] within the terms of the rule.” Id.

A.

Defendant respondent first relies on that portion of I.R.C.P. 60(b)(5) which permits relief from a judgment when a “prior judgment upon which it is based has been reversed or otherwise vacated.” She alleged in her affidavit in support of motion for modification of decree that:

[The original divorce] Decree and the underlying Stipulation were based upon the ruling of the Supreme Court of the United States of America in the case of McCarty vs. McCarty, entered June 26, 1981. On September 8, 1982, the Congress of the United States enacted the Uniformed Services Former Spouses Protection Act, which became effective on February 1, 1983. This Congressional Act repealed the effect of McCarty vs. McCarty and rendered it ineffectual from the date of its ruling.

Thus, respondent argues that the “prior judgment” referenced in I.R.C.P. 60(b)(5) is the McCarty case in her situation and that it has been reversed by the act of Congress, and therefore she is entitled to relief from the original divorce decree under I.R. C.P. 60(b)(5). However, that argument misconstrues the “prior judgment” language of I.R.C.P. 60(b)(5). As succinctly stated by Professors Wright and Miller in their treatise on the Federal Rules of Civil Procedure (after which the Idaho rules were patterned):

This ground [that a prior judgment upon which the present judgment is based has been reversed or otherwise vacated] is limited to cases in which the present judgment is based on the prior judgment in the sense of res judicata or collateral estoppel. It does not apply merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.

11 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2863 (1973) (emphasis added). Accord Marshall v. Bd. of Education, Bergenfield, N.J., 575 F.2d 417, 424 (3d Cir.1978) (“Reliance on a judgment in an unrelated case, however, does not make the original judgment vulnerable within the ‘prior judgment’ clause of subsection 5 [of F.R.C.P. 60(b)].”); Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F.Supp. 393, 395 (S.D.N.Y.1975), aff'd, 532 F.2d 846 (2d Cir.1976), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 reh’g denied, 427 U.S. 908, 96 S.Ct. 3194, 49 L.Ed.2d 1200 (1976) (“Rule 60(b)(5) does not apply where a case relied on as precedent by the court in rendering the present judgment has since been reversed.”).

Thus, the first prong of I.R.C.P. 60(b)(5) relied on by respondent, i.e., the “prior judgment upon which it is based has been reversed or otherwise vacated” prong, is inapplicable. There was no prior judgment “in the sense of res judicata or collateral estoppel,” upon which the final divorce decree of November 10, 1981, was based. Rather, as respondent recognizes, the only “prior judgment” applicable to the final divorce decree was McCarty, and McCarty was arguably only used for its precedential value.² Accordingly, respondent’s motion fails under the “prior judgment reversed” language of I.R.C.P. 60(b)(5).³

Our prior Idaho cases are in accord. In Merrick v. Pearce, 97 Idaho 250, 542 P.2d 1169 (1975), relief was granted under I.R. C.P. 60(b)(5) because the prior judgment, relied on in the secondary case, had been modified. In Merrick, during the principal case the jury returned special verdicts of $5,422.99 for the plaintiff Merrick in his claim against the defendants, and for $7,994.67 for the defendants upon their counterclaim against the plaintiff. The trial judge, however, entered judgment for the defendants against the plaintiff in the amount of $8,441.35 (presumably the $7,994.67 -(- costs) rather than in the amount of $2,571.68, the difference between the special verdicts. Ten months later Mr. Merrick moved to amend the judgment so that it would be in the amount of $2,571.68. The trial court granted the motion and entered an amended judgment nunc pro tunc upon the verdicts for $2,571.68.

The secondary case in Merrick was initiated when the plaintiff appellants, Pearce and Flying V, sued the defendant respondent, Western Surety, the company which provided a bond for Mr. Merrick in the principal case. Judgment was entered against Western Surety based upon the $8,441.35 unsatisfied judgment the plaintiff appellants had obtained against Mr. Merrick. Later, when Mr. Merrick moved the court for an amended judgment nunc pro tunc, Western Surety did also. The trial court reduced the judgment against Western Surety to reflect the reduction in the judgment against Mr. Merrick. Pearce and Flying V appealed. This Court affirmed, stating that “the trial court was acting pursuant to its authority under I.R.C.P. 60(b)(5) because the prior judgment upon which [Pearce and Flying V’s judgment] was based had been modified.” 97 Idaho at 251, 542 P.2d at 1170. In Merrick, the judgment in the secondary case was “based on the prior judgment in the sense of res judicata or collateral estoppel,” not merely as a precedent and therefore I.R.C.P. 60(b)(5) was applicable. Conversely, nothing in the McCarty case had any res judica-ta or collateral estoppel effect on this case. There is no factual relationship between the two cases. At most, McCarty was precedent which the respondent wife and the original divorce court arguably relied on, even though the magistrate found otherwise at the hearing on respondent’s motion for modification of the decree. But I.R.C.P. 60(b)(5) . does not authorize the setting aside of a valid judgment “merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed.” 11 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2863 (1973).

B.

The second portion of I.R.C.P. 60(b)(5) relied on by respondent in her motion to modify the divorce decree is likewise inapplicable. Respondent has not shown legally why it is “no longer equitable that the judgment should have prospective application.” Id. (emphasis added). Nor can she, because there was nothing prospective about the division of appellant’s military retirement benefits in the stipulation of property settlement or the divorce decree. Rather, the decree simply awarded appellant, “as his sole and separate property,” a number of items of property, including the “military retirement benefits of plaintiff, if any.” The award of the military retirement benefits and the other property which appellant received, as well as the property which the respondent received, was effective immediately. Each received as their sole and separate property the assets which their respective legal counsel stipulated to in open court. In order “[t]o rely on Rule 60(b)(5), a movant must show two things: (1) that the judgment is prospective in nature; and (2) that it is no longer equitable to enforce the judgment as written.” Rudd v. Rudd, 105 Idaho 112, 118, 666 P.2d 639, 645 (1983) (emphasis added). Our decision, just a little over one year ago, in McBride v. McBride, 112 Idaho 959, 739 P.2d 258 (1987), is directly on point on this issue. The McBride case also involved reopening a decree of divorce in order to modify an award of military retirement benefits. In McBride, we stated:

Here, the judgment [of divorce] was not prospective. It adjudicated all the rights as between the parties as of the date of the judgment. Each party was awarded various portions of the property and there is no showing but that each party has gone into and remained in possession of those elements of property.

Further, we hold that Yockey has made no showing that it is no longer equitable to enforce the judgment, and therefore it should be modified. The record before us indicates only that the parties entered into a voluntary settlement relating to the property division. As noted, the recitation of the property to be divided included the military retirement benefits. No value was placed upon the military retirement benefits, nor on any of the other property items. [Footnote omitted.] Yockey secured legal counsel and had the advice of that counsel.

112 Idaho at 962, 739 P.2d at 261 (emphasis added). As in McBride, the stipulation and divorce decree in the instant case adjudicated all the rights as between the parties as of the date of the judgment. Each party was awarded various portions of the property and there is no showing in this record other than that each party has gone into and remained in possession of the respective items of property awarded to them. Accordingly, the judgment is not prospective. Further, again as in McBride, the parties in the instant action entered into a voluntary settlement relating to the property division, the recitation of the property to be divided included the military retirement benefits, no value was placed on the retirement benefits or any of the other property to be divided, both parties had the advice of legal counsel, both parties requested the court to divide the property in accordance with the terms of the agreement, and both parties obtained precisely what they requested from the court. Hence, there is no showing in the instant case that it is no longer equitable to enforce the judgment.

Our analysis on this issue is reinforced by cases from other jurisdictions. In Gajewski v. Bratcher, 240 N.W.2d 871, 891 (N.D.1976), the Supreme Court of North Dakota stated:

[W]e believe that a judgment which quiets title to land, although certainly having an impact on future dealings with such land, is not a judgment having prospective application within the meaning of such term in Rule 60(b)(5), N.D.R.Civ. P.

Like the land in the North Dakota case, the judgment in this case (which awarded the military retirement benefits to the appellant) will allow him to have the future benefit of that and all other property awarded to him. However, that does not give the judgment of divorce prospective application within the meaning of I.R.C.P. 60(b)(5). Because the divorce decree in the instant case cannot reasonably be read to have any prospective effect, being, rather, a one-time division of property, the district court here had no jurisdiction to allow the modification of the decree under the “prospective application” prong of I.R.C.P. 60(b)(5).

Under either portion of 60(b)(5) advanced by respondent — be it that a prior judgment upon which her divorce decree was based has been reversed or otherwise vacated, or be it that the judgment should no longer have prospective application — the motion must be denied. Under neither theory did respondent “bring the case within the purview of the rule.” Catledge v. Transport Tire Co., Inc., 107 Idaho 602, 606, 691 P.2d 1217, 1221 (1984). Accord Puphal v. Puphal, 105 Idaho 302, 669 P.2d 191 (1983). “A party seeking relief from a final judgment under the provisions of I.R.C.P. 60(b) must bring a motion therefor within the applicable time period and assert facts which bring the case within the purview of the rule.” Catledge v. Transport Tire Co., Inc., 107 Idaho 602, 606, 691 P.2d 1217, 1221 (1984). This respondent has failed to do.

Accordingly, the district court’s revised decision on appeal, dated January 21, 1986, is reversed and the magistrate’s ruling that the divorce decree could not be reopened is affirmed. Costs to appellant. No attorney fees allowed.

SHEPARD, C.J., and JOHNSON, J., concur.

1 . Mr. Curl’s statement of the issue is:

Can the Court re-open the issue of military retirement benefits when the military retirement benefits were treated as community property after the McCarty v. McCarty decision?

and Mrs. Curl’s statement of the issue on appeal is:

The sole Issue on Appeal is whether the District Court was in error in ruling that the Decree should be reopened with a view toward modification in the distribution of the retirement benefits?

2 . The magistrate, in fact, found that McCarty was not relied on for its precedential value. In his November 5, 1984, ruling on respondent’s motion to modify the decree, the magistrate expressly stated that he was not persuaded that the property distribution was based on the ruling of McCarty. Thus, even if use of a case as precedent met the strictures of the "prior judgment" prong of I.R.C.P. 60(b)(5) (which it does not), respondent’s reliance on McCarty in her motion and affidavit would not be enough to entitle her to relief.

3 . I.R.C.P. 60(b)(5) is probably inapplicable to the facts of this case for another reason. The decision of the United States Supreme Court in McCarty v. McCarty has never been "reversed or otherwise vacated” within the meaning of Rule 60(b)(5). The United States Supreme Court in McCarty interpreted the then-existing statutes of the United States Congress to preempt state courts from assuming any jurisdiction over the military retirement pay of United States servicemen. By enacting the USFSPA, 10 U.S.C.A. 1408, the Congress changed the substantive law, retroactively, expressly granting jurisdiction over military retirement pay to the state courts. While Congress did change the law, retroactively, effectively nullifying McCarty’s prece-dential impact, that action by the Congress did not "reverse[ ] or otherwise vacate[ ]” the judgment in the McCarty case.