484 N.E.2d 1068 | Ohio Ct. App. | 1985
This cause comes on appeal from a decision of the Franklin County Common Pleas Court, Division of Domestic Relations, denying appellant's motion for relief from judgment pursuant to Civ. R. 60(B). Appellant, Mariam J. Alexander, sought to set aside a divorce decree filed on May 12, 1982. The basis for said request was a retroactive change in the substantive law with regard to the division of appellee's military retirement pension benefits. See Section 1408, Title 10, U.S. Code.
From the trial court's denial of Civ. R. 60(B) relief, appellant sets forth three assignments of error:
"1. The trial court erred in finding that federal law enunciated in McCarty v. McCarty,
"2. The trial court erred in finding that Ohio property law, with respect to division of military retirement benefits, remained constant during the time of the McCarty decision, the parties' divorce decree, and passage of
"3. The trial court erred in finding that plaintiff-appellant was not entitled *95
to Rule 60(B) relief from judgment after the enactment of
All three assignments of error will be dealt with simultaneously as they raise similar issues of law and fact. An examination of the trial record shows that appellant filed a motion for relief from judgment pursuant to Civ. R. 60(B)(4) and (5). The relief sought can be obtained by motion pursuant to Civ. R. 60(B) or 75(I). McKinnon v. McKinnon (1983),
"Relief from judgment under Civ. R. 60(B)(4) must be warranted by events occurring subsequent to the entry of the judgment in question, i.e., events occurring prior to the entry of the judgment cannot be relied upon as grounds to vacate the judgment pursuant to Civ. R. 60(B)(4); however, events occurring prior to the entry of the judgment may be the basis for vacating the judgment under some other section of Civ. R. 60(B)."
The relief sought via Civ. R. 60(B)(4) is that which would vacate a judgment allegedly rendered inequitable by subsequent events. Wurzelbacher v. Kroeger (1974),
The basis for vacation of the prior divorce decree is the substantive changes in the law with regard to divisibility of military retirement benefits. At the time of the challenged divorce decree, the United States Supreme Court held that military retirement benefits were not divisible as community property. McCarty v. McCarty (1981),
"We recognize that the plight of an ex-spouse of a retired service member is often a serious one. * * * Nonetheless, Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone. We very recently have re-emphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. * * *" Id. at 235-236.
Case law subsequent to the McCarty decision reflects adherence to the non-divisibility standard for military retirement benefits. Ridgway v. Ridgway (1981),
Congress enacted the Department of Defense Authorization Act, which included Title X, the Uniformed Services Former Spouses' Protection Act (USFSPA), Pub. Law
We disagree. Appellant has clearly *96 set forth a substantive and subsequent change in the law of military benefits from the date of her divorce decree. However, beyond the ability of the trial court to now order an actual division of the retirement benefits, there is little evidence of the divorce decree's unjust operation.
The divorce decree of May 12, 1982 dealt solely with the property settlement and not support alimony. Yet the provisions of R.C.
"(A) In a divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony as it deems reasonable to either party.
"The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.
"(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including:
"* * *
"(3) The retirement benefits of the parties;
"* * *
"(9) The relative assets and liabilities of the parties; * * *."
Clearly, the trial court must consider all elements set forth in R.C.
An examination of the record and divorce decree establishes that a substantial amount of property was allocated between the two parties. The decree, an agreed judgment entry, distributed numerous assets after a full disclosure of all property owned by the two parties. In certain situations, the inability of a court to order the division of retirement benefits might well interfere with the equitable and fair distribution of property. In this case, the inability does not result in an unfair distribution. The trial court could properly consider the military benefits prior to a distribution of property.
The divorce decree was a result of an agreement between the two parties entered into after the trial court had heard evidence for several days; the court reviewed the settlement and granted judgment. The capacity for an inequitable determination is much less than when a trial court must adjudicate a controversy. Appellant cites Smith v. Smith (Del.Fam.Ct. 1983),
"The Court understands and generally agrees with the argument advanced by counsel for the Husband that, in general, final court orders should only be vacated where the reasons are *97 substantial. But in this case the law of Delaware prior toMcCarty was that all pension rights were to be treated as marital property. McCarty had the effect of changing Delaware law by carving out an exception for military pensions only. Congress thereupon, legislatively vacated McCarty and clearly indicated an intention that persons who had been wronged by McCarty could reopen their cases if permitted under state law." Id. at 714.
The above reasoning requires a two-fold decision, that theMcCarty decision altered the law of Ohio and that appellant was wronged by such a change. This is not the case. The purpose of the Uniformed Services Former Spouses' Protection Act, Section 1408, Title 10, U.S. Code, was to remove the effect of theMcCarty decision. Smith at 713. In the cause sub judice, the factual elements do not present a situation where the decision inMcCarty, supra, operated to change Ohio law or harm the future operation of the bargained-for divorce decree. That the trial court recognized this, is evidenced by this excerpt from its decision:
"The law of Ohio never changed during the above described senario [sic]. Alimony and division of the property were controlled by Section
"The Court even after McCarty could have ordered sustenance alimony to the wife in an amount equal to a percentage of the military pension * * *.
"Congress did not in the enactment of
The trial court did not err in finding that the McCarty
decision, under the facts of this action, did not preempt the operation of R.C.
On consideration whereof, the decision of the Franklin County Common Pleas Court, Division of Domestic Relations, is affirmed.
Judgment affirmed.
STRAUSBAUGH and NORRIS, JJ., concur.
CONNORS, J., of the Sixth Appellate District, sitting by assignment in the Tenth Appellate District.
