SHEPARD, Chief Justice.
This is an appeal from an order of the district court denying plaintiff-appellant Yockey’s motion to modify and vacate a portion of a divorce decree. We affirm.
The facts are not in controversy and it is only the conclusions that flow therefrom which require examination. Defendant-respondent Lawrence McBride entered the United States Navy in July 1956, and served therein until he retired on July 1, 1983, at the rank of Lt. Commander with 27 years of service. The parties hereto were married in August 1964, and remained married for approximately 18 years. No children were born the issue of [960]*960that marriage. At some time prior to October 31, 1982, disputes and irreconcilable differences arose between the parties, and they began living separate and apart.
On October 31, 1982, the parties entered into a property settlement and separation agreement. Therein it is recited that the wife has had the advice of legal counsel who drafted the agreement, and that the husband had been advised to seek the advice of counsel.
In that agreement the parties agreed to (1) division of personal property and (2) division of real property. Therein was awarded to the wife motor vehicles, checking accounts, life insurance policies, a credit union account, jewelry, and personal property “now in possession of wife.” Awarded to the husband were motor vehicles subject to indebtedness, checking accounts, credit union accounts, jewelry, personal property now in possession of husband, and “all interest in husband’s United States government pension fund.” Additionally, each party was awarded life insurance policies. The husband was awarded, subject to existing indebtedness, certain real property.
In the said agreement no values are ascribed to any of the property, either real or personal. However, it appears that the parties intended an equal division of their property since the wife was also awarded “the sum of $48,154.00 to make an even division of the community assets____” Fifteen thousand dollars of that sum was to be paid within one year of the date of the agreement, and the balance thereof was to be paid at the rate of approximately five thousand dollars per year together with interest at ten percent per annum. If prepayment was made during that period of time a sliding scale prepayment penalty was established. The husband was required to secure the payment of those sums by executing in favor of the wife a mortgage on the real property awarded to the husband. The husband was also required to assume all of the then named existing indebtedness, however the amount thereof was not specified. On November 1, 1982, plaintiff-appellant wife filed an action for divorce in which she prayed for a divorce on the basis of irreconcilable differences and prayed “that the court approve, ratify and confirm the property settlement and separation agreement attached to this complaint.” The property settlement agreement was the agreement entered into by the parties on October 31, 1982.
Service of process was made upon the defendant husband who failed to appear, and a default was entered against him. On November 22 a hearing was held upon the complaint of the wife, and on that same day findings of fact, conclusions of law and decree of divorce were entered. In those findings the court stated:
That the parties hereto have acquired various items of community property during said marriage; that the same has been divided between the parties hereto pursuant to a property settlement and separation agreement made and entered into on the 31st day of October 1982; that said property settlement and separation agreement dividing said real and personal property and containing other agreements between the parties to this action makes a division which is fair and equitable to each of the parties hereto; and that attached to the complaint filed in this action is an executed original of said agreement between the parties hereto.
A copy of the agreement was attached to the decree, and the decree recited that the agreement was ratified, approved, and confirmed by the court.
On March 26, 1985, plaintiff-appellant filed her petition to modify and vacate that portion of the divorce decree dealing with the husband’s military retirement pay, and to grant plaintiff-appellant a one-half interest in all accrued and future benefits. The basis of Yockey’s contention is the enactment by Congress of the Uniformed Services Former Spouses’ Protection Act (USFSPA) on September 8, 1982.
In Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), this Court held that military retirement benefits that the husband earned during the marriage constituted community property of the parties subject [961]*961to distribution in a divorce action. In June 1981 the United States Supreme Court held that military retirement benefits are not subject to division as community property by a state court in a divorce action. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In response to McCarty the Congress, in 1982, enacted the Uniformed Services Former Spouses’ Protection Act, P.L. 97-252 (1982) (codified as amended at 10 U.S.C.A. § 1408). That Act was signed by the president on September 8, 1982. While that Act carried an effective date of February 1, 1983, both parties concede that the intent of the Act was retroactive to June 25, 1981 (the date of the McCarty decision), and was intended to overrule McCarty.
In the absence of an appeal from an original decree of divorce the property division portions of that decree are final, res judicata, and no jurisdiction exists to modify property provisions of a divorce decree. Sullivan v. Sullivan, 102 Idaho 737, 639 P.2d 435 (1981); Paul v. Paul, 97 Idaho 889, 556 P.2d 365 (1976); Lowe v. Lowe, 92 Idaho 208, 440 P.2d 141 (1968). That rule has been modified in circumstances demonstrating fraud, coercion, or overreaching, but no such circumstances are alleged or demonstrated here.
Other provisions of divorce decrees may be subject to modification, i.e., the custody, support, and maintenance of minor children of parties, or alimony. In the instant case there were no minor children of the parties, and each of the parties in the settlement agreement waived any claim to spousal support. On the part of the wife such waiver undoubtedly resulted from her intent to immediately remarry, and she did in fact remarry two days after the divorce decree. Hence, the Court is not requested, nor required, to consider the doctrines of integration or merger in modification of child support or alimony provisions of the divorce decree as considered by the Court in Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969), and the decisions discussed therein.
Hence, it is essentially conceded by appellant Yockey that her relief, if any, is confined to relief under I.R.C.P. 60(b)(4) or 60(b)(5).1 Relief may be granted under I.R. C.P. 60(b)(4) only on the basis that the judgment is void. For obvious reasons Yockey does not claim that the entire decree of divorce is void, but merely that part which awards husband the military retirement benefits is void.
In Nieman v. Nieman,
Free access — add to your briefcase to read the full text and ask questions with AI
SHEPARD, Chief Justice.
This is an appeal from an order of the district court denying plaintiff-appellant Yockey’s motion to modify and vacate a portion of a divorce decree. We affirm.
The facts are not in controversy and it is only the conclusions that flow therefrom which require examination. Defendant-respondent Lawrence McBride entered the United States Navy in July 1956, and served therein until he retired on July 1, 1983, at the rank of Lt. Commander with 27 years of service. The parties hereto were married in August 1964, and remained married for approximately 18 years. No children were born the issue of [960]*960that marriage. At some time prior to October 31, 1982, disputes and irreconcilable differences arose between the parties, and they began living separate and apart.
On October 31, 1982, the parties entered into a property settlement and separation agreement. Therein it is recited that the wife has had the advice of legal counsel who drafted the agreement, and that the husband had been advised to seek the advice of counsel.
In that agreement the parties agreed to (1) division of personal property and (2) division of real property. Therein was awarded to the wife motor vehicles, checking accounts, life insurance policies, a credit union account, jewelry, and personal property “now in possession of wife.” Awarded to the husband were motor vehicles subject to indebtedness, checking accounts, credit union accounts, jewelry, personal property now in possession of husband, and “all interest in husband’s United States government pension fund.” Additionally, each party was awarded life insurance policies. The husband was awarded, subject to existing indebtedness, certain real property.
In the said agreement no values are ascribed to any of the property, either real or personal. However, it appears that the parties intended an equal division of their property since the wife was also awarded “the sum of $48,154.00 to make an even division of the community assets____” Fifteen thousand dollars of that sum was to be paid within one year of the date of the agreement, and the balance thereof was to be paid at the rate of approximately five thousand dollars per year together with interest at ten percent per annum. If prepayment was made during that period of time a sliding scale prepayment penalty was established. The husband was required to secure the payment of those sums by executing in favor of the wife a mortgage on the real property awarded to the husband. The husband was also required to assume all of the then named existing indebtedness, however the amount thereof was not specified. On November 1, 1982, plaintiff-appellant wife filed an action for divorce in which she prayed for a divorce on the basis of irreconcilable differences and prayed “that the court approve, ratify and confirm the property settlement and separation agreement attached to this complaint.” The property settlement agreement was the agreement entered into by the parties on October 31, 1982.
Service of process was made upon the defendant husband who failed to appear, and a default was entered against him. On November 22 a hearing was held upon the complaint of the wife, and on that same day findings of fact, conclusions of law and decree of divorce were entered. In those findings the court stated:
That the parties hereto have acquired various items of community property during said marriage; that the same has been divided between the parties hereto pursuant to a property settlement and separation agreement made and entered into on the 31st day of October 1982; that said property settlement and separation agreement dividing said real and personal property and containing other agreements between the parties to this action makes a division which is fair and equitable to each of the parties hereto; and that attached to the complaint filed in this action is an executed original of said agreement between the parties hereto.
A copy of the agreement was attached to the decree, and the decree recited that the agreement was ratified, approved, and confirmed by the court.
On March 26, 1985, plaintiff-appellant filed her petition to modify and vacate that portion of the divorce decree dealing with the husband’s military retirement pay, and to grant plaintiff-appellant a one-half interest in all accrued and future benefits. The basis of Yockey’s contention is the enactment by Congress of the Uniformed Services Former Spouses’ Protection Act (USFSPA) on September 8, 1982.
In Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), this Court held that military retirement benefits that the husband earned during the marriage constituted community property of the parties subject [961]*961to distribution in a divorce action. In June 1981 the United States Supreme Court held that military retirement benefits are not subject to division as community property by a state court in a divorce action. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In response to McCarty the Congress, in 1982, enacted the Uniformed Services Former Spouses’ Protection Act, P.L. 97-252 (1982) (codified as amended at 10 U.S.C.A. § 1408). That Act was signed by the president on September 8, 1982. While that Act carried an effective date of February 1, 1983, both parties concede that the intent of the Act was retroactive to June 25, 1981 (the date of the McCarty decision), and was intended to overrule McCarty.
In the absence of an appeal from an original decree of divorce the property division portions of that decree are final, res judicata, and no jurisdiction exists to modify property provisions of a divorce decree. Sullivan v. Sullivan, 102 Idaho 737, 639 P.2d 435 (1981); Paul v. Paul, 97 Idaho 889, 556 P.2d 365 (1976); Lowe v. Lowe, 92 Idaho 208, 440 P.2d 141 (1968). That rule has been modified in circumstances demonstrating fraud, coercion, or overreaching, but no such circumstances are alleged or demonstrated here.
Other provisions of divorce decrees may be subject to modification, i.e., the custody, support, and maintenance of minor children of parties, or alimony. In the instant case there were no minor children of the parties, and each of the parties in the settlement agreement waived any claim to spousal support. On the part of the wife such waiver undoubtedly resulted from her intent to immediately remarry, and she did in fact remarry two days after the divorce decree. Hence, the Court is not requested, nor required, to consider the doctrines of integration or merger in modification of child support or alimony provisions of the divorce decree as considered by the Court in Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969), and the decisions discussed therein.
Hence, it is essentially conceded by appellant Yockey that her relief, if any, is confined to relief under I.R.C.P. 60(b)(4) or 60(b)(5).1 Relief may be granted under I.R. C.P. 60(b)(4) only on the basis that the judgment is void. For obvious reasons Yockey does not claim that the entire decree of divorce is void, but merely that part which awards husband the military retirement benefits is void.
In Nieman v. Nieman, 105 Idaho 796, 673 P.2d 396 (1983), the appellant claimed relief under I.R.C.P. 60(b)(4) from a judgment awarding an ex-wife military retirement benefits. It was there contended that the Supreme Court’s decision in McCarty v. McCarty, supra, had rendered this Court’s decision in Ramsey v. Ramsey, supra, erroneous, and hence the judgment awarding [962]*962military retirement benefits in Nieman was “void.”
The Court in Nieman held that the decree dividing the military retirement benefits was a final judgment, to be given res judicata effect, and that “a judgment is not void and therefore not within the ambit of 60(b)(4) simply because it is erroneous, or is based upon precedent which is later deemed incorrect or unconstitutional.” Here there is no showing that the court below lacked jurisdiction in either subject matter or in personam, or that the decree granted relief which was not within the power of the court. Indeed, here it was Yockey herself who instituted the action and sought the jurisdiction of the court. It was Yockey who tendered the settlement agreement to the court, asking the court to ratify and confirm the terms of such agreement. That agreement specifically set forth the property interest in the military retirement benefits, and awarded them to the husband. In her prayer for relief, Yockey requested the court to divide the property in accordance with the settlement agreement. Since the record demonstrates that the respondent husband defaulted and did not appear, the specific finding of the trial court that,the agreement was fair and equitable could only have been based upon the testimony and assertion of the appellant wife at the hearing. We find no error in the trial court’s refusal to modify the decree under the provisions of I.R.C.P. 60(b)(4).
Yockey also asserts that the trial court erred in denying her relief under 1.R.C.P. 60(b)(5). Under that portion of the rule Yockey must show that the judgment is prospective in nature and that it is no longer equitable to enforce the judgment as written. Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983). Here, the judgment 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. Yockey was awarded a money judgment payable at certain times, together with interest thereon, and those monies were secured by a mortgage in favor of Yockey covering the real property of respondent. There is no contention that respondent has failed to execute the mortgage, nor that respondent has failed or refused to pay the monies.
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.2 Yockey secured legal counsel and had the advice of that counsel. The agreement was prepared by her legal counsel who advised her against such a property division because of the award of the retirement benefits to the husband. She chose not to accept that advice because, as she admitted, she desired the proceedings concluded as quickly as possible so she could remarry. The record demonstrates no inequity in the trial court’s refusal to modify the divorce decree.
We further note, as indicated above, that Yockey filed the action. Respondent husband did not appear and default was taken against him. Respondent husband did not [963]*963appear at the hearing either in person or by counsel. Yockey’s complaint contained the settlement agreement, and the prayer in the complaint requested the court to divide the property set out therein in accordance with the terms of the agreement. No jurisdiction was conferred upon the court to enter a decree awarding Yockey any relief beyond that prayed for in her complaint. I.R.C.P. 54(c); Jensen v. Jensen, 97 Idaho 922, 557 P.2d 200 (1976); Hayes v. Towles, 95 Idaho 208, 506 P.2d 105 (1973). It would be a strange type of equity to allow a plaintiff on a default proceeding to obtain the relief which she demands from the court, i.e. a divorce on grounds of irreconcilable differences and the award to her of certain items of property, to all of which the husband may agree and therefore offer no contest, and at a later time when the husband is foreclosed from contesting any other portion of the decree demand that one particular portion of the decree be modified. Yockey voluntarily entered into the agreement, voluntarily sought the divorce, voluntarily prayed for certain relief, and obtained precisely that relief from the court. Under such circumstances it is difficult to comprehend that the court now possesses jurisdiction to grant relief which it did not have jurisdiction to grant in the original proceeding. To hold under the instant circumstances that there is a lack of equity would only operate to destroy the finality of judgments.
Order of the district judge affirmed; costs to respondent.
DONALDSON, BAKES and BISTLINE, JJ. concur.