Reed v. Reed

604 P.2d 648, 124 Ariz. 384, 1979 Ariz. App. LEXIS 643

• Court: Court of Appeals of Arizona
• Decided: November 9, 1979
• Docket: 2 CA-CIV 3123
• Status: Published

Opinions

OPINION

HOWARD, Judge.

The marriage of the parties was dissolved by the Pima County Superior Court on January 17, 1975. On May 8, 1978 appellee filed a petition with the trial court alleging that the divorce decree failed to dispose of the military retirement benefits which appellant was receiving at the time of the divorce and that they were therefore held by the parties as tenants in common. She requested the trial court to award her one-half of these benefits. The trial court agreed with appellee and awarded her one-half of the benefits. Appellant claims the trial court erred in awarding appellee any portion of the military retirement pay. We agree.

Appellant contends that the divorce decree made a disposition of the retirement pay. Appellee claims that it did not.¹ We need not decide the issue.

Although Everson v. Everson, 24 Ariz. App. 239, 537 P.2d 624 (1975) held that any portion of a pension plan earned during marriage is community property, it was not until Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977) that the court squarely held non-vested military benefits attributable to community effort are community property.² The final decree in this case was entered prior to Everson and Van Loan.

It is the general rule that unless exceptional circumstances are shown, court decisions will be given only prospective application. State v. Zaragoza, 24 Ariz.App. 278, 537 P.2d 1336 (1975). In determining whether to give a decision prospective or retrospective application, the purpose of the decision, reliance on a prior rule of law, and the possible effect upon the administration of justice are factors that must be considered. Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); see also, State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970), cert. den. 400 U.S. 841; City of Tempe v. Del E. Webb Corporation, 14 Ariz.App. 228, 482 P.2d 477 (1971). There was a property settlement in this case and the “personal property” was mentioned as having been divided. Although appellee did not consider the retirement benefits to be included in the category of “personal property” she did know of their existence, that they were being paid to appellant and that after the decree he would still be receiving them. She knew that his only obligation with regard to these benefits was to pay child support to her.

There is a compelling policy interest favoring the finality of property settlements. Peste v. Peste, 1 Wash.App. 19, 459 P.2d 70 (1969). This policy interest would be greatly undermined if the court were to create the potential for reexamination of every military divorce prior to Everson and Van Loan. See Martin v. Martin, 20 Wash. App. 686, 581 P.2d 1085 (1978). We therefore hold that Everson and Van Loan should not be given a retrospective effect.³

The judgment of the trial court is reversed with instructions to enter judgment in favor of appellant and against appellee.

RICHMOND, C. J., concurs.

1 . On the subject of the failure of the final decree to dispose of community property see, de Funiak & Vaughn, Principles of Community Property, 2nd ed. Sec. 229 (1971) and Annot. 85 A.L.R. 339. When A.R.S. Sec. 25-318 was enacted in 1973 no provision was made for community property not provided for in the decree. This was cured in 1977 by A.R.S. Sec. 25-318(B). We need not decide the effect of this omission when the decree was entered.

2 . See also Czarnecki v. Czarnecki, 124 Ariz. 466, 600 P.2d 1098 (1979); In re Furimsky, 122 Ariz. 430, 595 P.2d 662 (1979); Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977).

3 . Appellee has filed a cross-appeal which is moot in view of our disposition.