McHugh v. McHugh

766 P.2d 133, 115 Idaho 198, 1988 Ida. LEXIS 154

• Court: Idaho Supreme Court
• Decided: December 8, 1988
• Docket: 16703
• Status: Published

Opinions

HUNTLEY, Justice.

Berit Elizabet McHugh appeals the trial court’s order refusing to entertain her motion to award her a portion of respondent Richard McHugh’s military retirement pension as community property, pursuant to the Uniformed Services’ Former Spouses’ Protection Act (USFSPA) 10 U.S.C. § 1408.

Berit and Richard McHugh were married in 1972. In 1979, Mrs. McHugh filed for divorce, while both parties were domiciled in Idaho, listing “Navy Retirement” as an asset to be divided which had been acquired during marriage. Richard McHugh filed an Answer and Counterclaim, section V of which Answer states in relevant part:

Defendant prays that the Court make an equal distribution of the community property of the parties after being fully advised of the values thereof and the debts related thereto.

Paragraph VI of his Counterclaim reads as follows:

VI

That during the marriage of these parties, numerous and extensive debts have been acquired. That Counterclaimant prays that the Court enter an Order transferring over and unto Counterclaim-ant all separate property and making an equal distribution of the community property of the parties, after being fully advised of the values thereof and the debts related thereto

In short, Mr. McHugh’s Answer and Counterclaim expressly subjected himself and both the separate and community property to the jurisdiction of Idaho’s court system.

Prior to the divorce trial, the U.S. Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), wherein it held that military retirement benefits were, pursuant to congressional statute, separate property.¹ The divorce trial was held in November 1981, one year after Richard McHugh moved to Maine, and during the effective period of McCarty, supra. In April 1982, the district court entered its decree of divorce, making no division of Mr. McHugh’s military retirement benefits because of the McCarty decision having withdrawn the military retirement benefits from the subject-matter jurisdiction of state courts. At no time throughout this proceeding has Mr. McHugh ever sought to withdraw his appearance in Idaho’s court system.

The USFSPA, P.L. 97-252, 10 U.S.C. § 1408, enacted September 8, 1982, became effective February 1, 1983 and, by its terms, the act was made retroactive in effect to one day before the date of the McCarty decision, rendering McCarty void ab initio. The USFSPA returned to the states the right to consider the division of military retirement benefits in accordance with their own laws. The Idaho Supreme Court acknowledged the act’s effectiveness by restoring the status of military retirement benefits as community property, to the extent accrued in a community property state, in Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984). In that year, and while the original property division and support orders were still on appeal before this Court, Mrs. McHugh filed a motion with the district court to divide the military retirement benefits which had accrued during her marriage to Mr. McHugh. The trial court did not act upon this motion prior to this Court rendering its decision and remit-titur regarding the initial property division and support orders in April, 1985. McHugh v. McHugh, 108 Idaho 347, 699 P.2d 1361 (1985).

The district court heard Mrs. McHugh’s motion to divide the military retirement benefits on January 17, 1986, and on October 3, 1986, denied the motion, ruling both that “[t]his matter was tried and no issue was ever raised with regard to a division of the military retirement funds” and that “the motion now to reopen is a collateral attack upon a matter that has been fully adjudicated by the court and is not proper. The court does not have the jurisdiction to consider the matter.” The trial court never addressed the combined effect of McCarty, supra and the USFSPA upon the jurisdiction of Idaho’s courts. It focused upon which matters had been tried during the trial in November, 1988, instead of upon whether the case was open and uncompleted as to the military pension issue.

At the time Mrs. McHugh filed her motion to receive her share of the pension, the Idaho courts clearly possessed both personal and subject-matter jurisdiction over Mr. McHugh, by way of the divorce proceeding, as this Court had yet to rule on the property and support issues before it on appeal, and as the finality of a trial court judgment is suspended pending appeal. It is axiomatic that jurisdiction continues for the duration of an action or until extinguished by some event, once it has been properly attained. Ward v. Lupinacci, 111 Idaho 40, 720 P.2d 223 (Ct.App.1986). Further, this Court has recognized that the USFSPA does apply in any case not finalized at the time the Act became effective. In LeVine, we noted that jurisdiction need not have been reserved in that instance, as the appeal was still pending:

[W]e need not reach the issue of whether the magistrate properly reserved jurisdiction here. In Ratkowski v. Ratkowski, 108 Idaho 355, 699 P.2d 1369 (1985), this Court held that the FUSFSPA applies in any case in which an appeal was pending, and therefore no final judgment entered, as of the effective date of that act.

Levine v. Spickelmier, 109 Idaho 341, 344, 707 P.2d 452, 455 (1985). As in LeVine, supra, jurisdiction was reobtained by Idaho’s courts over the military retirement benefits once the USFSPA became effective, as the case was still before this Court on appeal at that time. Mr. McHugh’s answer and counterclaim subjected him to the total jurisdiction of Idaho’s courts.²

It is important to remember that causes of action based upon complaints for divorce are actions in equity. Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983). Further, [e]quity having obtained jurisdiction of the subject matter of a dispute, will retain it for the settlement of all controversies between the parties with respect thereto and will grant all proper relief whether prayed for or not.” Boesiger v. Freer, 85 Idaho 551, 563, 381 P.2d 802, 809 (1963). General maxims of equity dictate that “once the equitable jurisdiction of the court has attached, the court should retain jurisdiction to resolve all portions of the dispute between the parties and render equity to all parties....” Barnard & Son, Inc. v. Akins, 109 Idaho 466, 469, 708 P.2d 871, 874 (1985). See also, Huddleson v. Huddleson, 187 Cal.App.3d 1564, 232 Cal.Rptr. 722, 727 (1986), wherein the court noted the special treatment courts accord in equity actions, stating that an action to divide an omitted asset in the context of a divorce proceeding is an action in equity, and that such does not seek to modify or reopen the previous final judgment of dissolution. Id. 232 Cal.Rptr. at 727. See also, Casas v. Thompson, 42 Cal.3d 131, fn. 4 at 141-42, 228 Cal.Rptr. 33, 720 P.2d 921 (1986).

We can see no reason why Mr. McHugh, who has already expressly subjected himself to the personal and subject matter jurisdiction of the Idaho courts with regard to all aspects of community and separate property division, may validly claim that he must again be served with process under the USFSPA.³ Admittedly, had the appeal been completed, remittitur issued, and final judgment entered, Mrs. McHugh may have had to file a new action under the USFSPA in Maine, but such a second action would be improper where there is a current action pending.

In summary, Mr. McHugh consented to (and, indeed, asked for) Idaho’s jurisdiction over all aspects of his divorce proceedings. Such consent was never extinguished prior to the date Mrs. McHugh’s motion to divide the pension was made. Accordingly, we reverse and remand to the trial court for proceedings to divide the military retirement pension, to the extent accrued during marriage, as community property. In making that division, the court is entitled to exercise its discretion in dividing the pension either equally or unequally, based upon due consideration of the value of the assets and liabilities previously divided or assumed. Costs to appellant, no attorney fees awarded.

BISTLINE and JOHNSON, JJ.,. concur.

1 . Idaho had previously allowed for consideration of military retirement benefits as community property, to the extent they had accrued during marriage. Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975).

2 . There has been expressed some concern that the court never truly obtained jurisdiction of the subject matter of this dispute (i.e., the military retirement pension) until the enactment of the USFSPA. Mr. McHugh expressly consented to such jurisdiction over the subject-matter by way of his answer and counterclaim. We also note, however, that California’s courts have reasoned in Aloy v. Mash, 38 Cal.3d 413, 212 Cal.Rptr. 162, 696 P.2d 656 (1985), “[t]he result is that, for most purposes [after the enactment of the USFSPA], McCarty not only is not the law but never really was." 38 Cal.3d 413, 421-22, 212 Cal.Rptr. 162, 696 P.2d 656. Adherence to the rule in Aloy, supra, precludes any possible confusion regarding when and how subject matter jurisdiction was obtained, lost, or required, as, under the holding of that case, trial courts never really lacked jurisdiction to dispose of military retirement pensions in accord with their own state laws, but were merely operating under the mistaken belief that such was the case. See also, In Re Marriage of Floweree, 195 Cal.App.3d 1438, 241 Cal.Rptr. 307, 309 (1987). We prefer to refrain from adopting such a teleogical understanding of subject-matter jurisdiction.

3 . 10 U.S.C. § 1408(c)(1), (4) provides:

A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (a) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (b) his domicile in the territorial jurisdiction of the court, or (c) his consent to the jurisdiction of the court.