Curl v. Curl

Alabama, 380 U.S. v. Douglas tion.’ have reached doubt, jury would 13 L.Ed.2d 85 S.Ct. not occurred. had the error result the same Wigmore stated: (1965). Professor admissi- plethora introduced The State reviewing the ble, inculpatory purpose evidence. essential ‘The main and impact probative record, op- I conclude is to secure confrontation omitting inadmissi- of the State’s cross-ex- opportunity ponent case— Dr. Jambura— hearsay testimony of opponent ble demands amination. the con- I am convinced great so confrontation, purpose idle not for the if the even witness, being have obtained viction would upon the or of gazing hearsay admitted had been him, pur- inadmissible for the gazed upon but cross-examination, into evidence. can- pose of except by the direct con- of the Accordingly, the absence questions and ob- putting of personal presented, I having been issue frontation (Empha- taining immediate answers.’ providing while affirm the conviction would Wigmore, Evi- original.) 5 J. sis interrogations as future guidance for ed.1940). (3d 1395, p. 123 dence § forth. set hereinabove principal Cross-examination BISTLINE, Justice, dissenting. believability of a means testimony his the truth of witness and Huntley in conclusive- his dissent Justice tested. are reci- pediatrician’s ly demonstrates that 308, 315-16, 94 S.Ct. testimony inad- 415 U.S. the child’s tation of (1974). right 39 L.Ed.2d 347 hearsay missable and violates court found The trial confront witnesses. “no are often cases there In child abuse year old child was INCOM- that the three Pennsylva- except the victim.” witnesses How, AT TRIAL! PETENT TO TESTIFY Richie, 107 S.Ct. 480 U.S. nia then, state- she have made “reliable” could (1987). Without L.Ed.2d 40 Dr. Jambura ments six months earlier to such opportunity to cross-examine years only and one-half she was two when fair, conse- witness, no trial can be old? can be harmless. quently, no error necessary go even farther than

It is this the Huntley. In cases like

Justice right the al- to confront

violation A harmless.

leged victim can never be justice

fundamental tenet of our criminal right

system guarantees the defendant open her accusers in to confront his or As the through cross-examination. CURL, Plaintiff-appellant, Lloyd James stated States United Alaska: Davis v. CURL, Ann Carol Amendment to the Constitu- Sixth Defendant-respondent. right of an accursed guarantees tion prosecution ‘to be confront- in a criminal No. 16395. against him.’ This ed with the witnesses Idaho. Supreme Court of defendants state right is secured for proceedings as federal criminal as well April Texas, 380 U.S. Pointer v. under 1065, 13 L.Ed.2d 923 Con- S.Ct. being than al- means more

frontation physically. to confront witness

lowed construing the

‘Our cases [confrontation] primary interest se-

clause hold that right by it is the of cross-examina-

cured post-

The divorce decree became final McCarty McCarty, 453 U.S. (1981) (ruling S.Ct. 69 L.Ed.2d 589 military pay separate retirement was the military spouse), pre- of the but USFSPA, (enacted U.S.C.A. Febru- ary retroactively allowing military pay be classified conform- law). ance with state dispositive The sole appeal, issue acknowledged by parties, both is wheth- er ruling the district court erred in that the instant reopened divorce decree should be in order to allow a modification of the appellant’s military distribution of retire- ment benefits.1 We conclude dis- allowing trict court erred in the decree of reopened. divorce in this case to be I Curl, appellant, Plaintiff James L. respondent, Curl, defendant A. Carol were appellant married on June 1966. While married, respondent appellant was a member the United States Air years marriage Force. After 15 parties were divorced on November represented by legal 1981. Both were during stages counsel of the divorce proceeding. Appellant subsequently re- Home, McLaughlin, Michael R. Mountain tired Air in February, from the Force plaintiff-appellant. for appellant Plaintiff James L. Curl filed his Hicks, Home, Francis H. Mountain complaint seeking August divorce on defendant-respondent. complaint alleged 1981. In his he that all parties, including BAKES, Justice. “military [plaintiff], benefits appeals any,” community property. Plaintiff husband from the dis- The de- allowing appear trict court’s order modification of fendant Carol Curl did not or file an action, remanding decree and and the divorce answer divorce was However, magistrate proceedings regard- granted by for further default. the defen- ing awarding portion respondent represent- mili- of husband’s dant Carol Curl was tary pend- former ed retirement benefits his counsel while divorce was spouse pursuant ing. hearing to the Uniform At the time of the default Services divorce, (USFSPA). Spouses plaintiff Former Protection Act wherein was awarded his Appeal Curl’s statement of is: The sole Issue on is whether the Dis- 1. Mr. the issue ruling trict Court was in error in re-open Can the retirement benefits when the the issue of reopened to- retire- Decree should be view community ment benefits were treated as in the distribution of the ward modification McCarty McCarty property after the deci- retirement benefits? sion? appeal Mrs. Curl’s statement of the issue on is: counsel for appeared Carol A. Curl (Emphasis appellant Plaintiff orally stipulated into the proper- record the pay support. also ordered to child ty settlement parties agreed which the September 6,1984, On nearly years three to, agreement is reflected in stip- later, respondent became dissatisfied with ulated decree of divorce as follows: original stipulation her and property settle- proceed Court did stipula- hear [T]he agreement ment and filed a motion to modi- tions parties between the hereto and fy the divorce decree order to award her counsel and evidence submitted. portion appellant’s military retirement Respondent’s benefits. motion was “filed parties stipulated hereto agreed under Rule grounds I.R.C.P. on the that the community property prior Judgment upon that the which the

parties be divided as follows: previous Decree is based has been reversed To the Plaintiff L. [James Curl]: or otherwise vacated and on the further Pickup Chevrolet grounds that it is equitable no Judgment personal prospective ap- Miscellaneous items and effects plication.” Military Retirement Plain- Benefits of tiff, if any magistrate On November Home Drive, located at 340 Morris Moun- could ruled that the divorce decree not be Home, tain 60(b)(5). mag- reopened under I.R.C.P. To the Defendant A. [Carol Curl]: persuaded, that he was not istrate stated Dodge Aspen Automobile stipulation or the decree of either possession Furniture in the of the defen- divorce, distribution dant ruling McCarty; on the therefore based personal Miscellaneous items and effects upon prior judgment previous which the no of the defendant and minor children. been reversed. I.R. decree was (Emphasis 60(b)(5). Respondent appealed the C.P. magistrate’s decision to the district court Upon hearing stipu- the evidence and the 7, 1984. on December When the district counsel, granted lations of the court magistrate’s decision, court affirmed the and, pursuant stipu- parties a divorce respondent filed a motion for reconsidera- lation, divided the as follows: Finally, January on tion. ORDERED, IT FURTHER AD- IS district court issued a revised decision al- JUDGED AND DECREED That lowing original decree to reopened plaintiff shall receive as his sole and modified and remanded the case to the following separate property, de- magistrate proceedings for further regard- items, to-wit: scribed ing appellant’s military division of retire- Pickup 1966 Chevrolet Appellant ment appealed benefits. has Drive, located at 340 Moun- Home Morris allowing original district court’s order Home, County, tain Elmore reopened. decree to be We reverse. personal Miscellaneous items and effects Military Retirement Plain- Benefits of II any tiff, ORDERED, FURTHER AD- IT IS Respondent based her modify motion to AND That the de- JUDGED DECREED the divorce decree on rely- I.R.C.P. as her sole and fendant shall receive ing expressly following language: property, following separate de- 60(b). Mistakes, inadvertence, Rule ex- items, scribed to-wit: neglect, newly cusable discovered evi- Dodge Aspen Automobile dence, fraud, grounds for relief from possession Furniture now in defendant’s judgment on order.—On motion and upon just, such terms personal effects as are Miscellaneous items and may party legal repre- relieve a or his of the defendant and minor children. order, to relief judgment, gress, and therefore she is entitled from a final sentative under I.R. following original from the divorce decree reasons: proceeding or 60(b)(5). However, argument (5) prior judgment upon which C.P. ... ... a “prior judgment” lan- misconstrues the has been reversed or other- is based 60(b)(5). succinctly As guage of I.R.C.P. vacated, wise it is Wright Professors and Miller stated prospec- should have treatise on the Federal Rules of Civil their application.... tive (after which the Idaho rules Procedure seeking judg- a final party “A relief from patterned): 60(b) provisions of ment under the ground prior judgment [that bring motion therefor within the must present judgment is based has which the applicable period time and assert facts reversed or otherwise been vacated] purview bring the case within the in which the limited to cases Co., Transport Catledge the rule.” Tire prior judgment on the judgment is based 602, 606, 1217, Inc., 691 P.2d 107 Idaho or collateral judicata in sense of res the 1221 be entitled to relief un- “[T]o estoppel. apply merely not be- It does 60(b), moving party the must der I.R.C.P. precedent on as cause a case relied bringing allege grounds plead facts it present rendering in the the court Puphal v. within the terms of the rule.” has since been reversed. judgment 306, 191, Puphal, 105 Idaho 669 P.2d Miller, Wright & A. Federal Practice 11 C. (1983). Here, however, respondent has 195 (1973)(emphasis Civil 2863 & Procedure: § “allege[d] grounds plead not facts Edu Accord Marshall v. Bd. of bringing within the terms of the [her case] N.J., cation, 575 F.2d Bergenfield, rule.” Id. Cir.1978) (“Reliance in (3d judgment on a case, however, does not make an unrelated A. the original vulnerable within judgment the respondent first relies on Defendant clause of ‘prior judgment’ subsection [of 60(b)(5) per portion of I.R.C.P. Co., 60(b)].”); & Clark F.R.C.P. Wallace judgment “prior mits relief from a when Industries, Inc., 394 Inc. v. Acheson upon it is based has been judgment (S.D.N.Y.1975), aff'd, F.Supp. otherwise vacated.” She al reversed or denied, Cir.1976), (2d cert. F.2d 846 support motion leged in her affidavit in 48 L.Ed.2d 800 U.S. 96 S.Ct. decree that: for modification of denied, 96 S.Ct. 427 U.S. reh’g and the un- original 60(b)(5) Decree (1976)(“Rule does divorce] 49 L.Ed.2d 1200 [The upon the derlying Stipulation were based prece on as case relied apply where a ruling rendering Court of the Unit- in the by dent reversed.”). case of of America the ed States since been judgment has McCarty, entered June McCarty vs. 60(b)(5) Thus, prong first the September the Con- 1981. On i.e., “prior respondent, the on relied enacted the gress of the United States has been upon which it based Spouses Pro- Services Former Uniformed prong, is vacated” or otherwise reversed Act, effective on which became tection prior judgment There was inapplicable. Congressional February or collateral judicata of res “in the sense McCarty vs. repealed the effect of Act de- the final divorce estoppel,” upon which ineffectual and rendered McCarty 10, 1981, was based. cree of November ruling. its from the date of only Rather, recognizes, the respondent final applicable judgment” “prior “prior Thus, argues the respondent McCarty McCarty, 60(b)(5) decree was is divorce in I.R.C.P. judgment” referenced precedential for its only used arguably and that was case in her situation McCarty respondent’s motion Accordingly, of Con- value.2 by the act it has been reversed 5, 1984, ruling respondent’s fact, on his November magistrate, found 2. The decree, magistrate modify precedential In motion value. relied on for its was not acting trial court was stating that “the “prior judgment reversed” under the fails authority under I.R.C.P. 60(b)(5).3 its pursuant language of I.R.C.P. upon 60(b)(5) prior judgment because the In in accord. Idaho cases are prior Our judgment] was Flying V’s which [Pearce Pearce, 250, 542 P.2d Merrick v. 97 Idaho at had been modified.” (1975), granted I.R. relief under Merrick, In at 1170. judgment, 60(b)(5) prior because C.P. secondary case was “based in the case, secondary had been on in the relied sense of res prior Merrick, during principal modified. estoppel,” merely judicata or collateral special verdicts of jury case the returned therefore I.R.C.P. precedent and $5,422.99 as a plaintiff Merrick in his for the Conversely, noth- defendants, applicable. against claim judica- $7,994.67 any res ing for the defendants their case had against plaintiff. The tri- case. effect on this estoppel counterclaim ta or collateral however, judgment for judge, relationship al entered between no factual There is against plaintiff the defendants most, McCarty was At the two cases. $8,441.35 (presumably amount respondent wife and precedent which -(-costs) $7,994.67 than in the rather arguably relied original divorce court $2,571.68, the difference be- amount on, though magistrate found oth- even special months tween the verdicts. Ten respondent’s mo- hearing on at the erwise Mr. Merrick moved to amend the later the decree. But modification of tion for so that it would in the amount judgment be 60(b)(5)does not authorize the set- I.R.C.P. . $2,571.68. granted the The trial court judgment “merely ting of a valid aside judgment and entered an amended motion precedent by relied on as a case because pro nunc tunc the verdicts rendering judg- in the $2,571.68. 11 reversed.” C. ment has since been initi- secondary The case in Merrick was Miller, Wright A. Federal Practice & & plaintiff appellants, the Pearce ated when Civil 2863 Procedure: § V, respon- Flying sued the defendant dent, company Surety, Western the which B. in a bond for Mr. Merrick the provided portion second I.R.C.P. The principal Judgment case. was entered 60(b)(5) by respondent in her mo relied on upon the against Surety Western modify the divorce decree is likewise tion to $8,441.35 judgment plaintiff the unsatisfied Respondent inapplicable. has shown against Mr. Mer- appellants had obtained longer equitable that legally why it is “no Later, Mr. Merrick moved the rick. when ap prospective should have judgment the pro judgment amended nunc court for an added). (emphasis Nor plication.” Id. tunc, The trial Surety did also. Western she, nothing pro there was can because judgment against West- court reduced the appellant’s the division of spective about Surety to reflect the reduction ern stipula benefits in the military retirement against Pearce and judgment Mr. Merrick. affirmed, property settlement or the divorce tion of Flying appealed. Court V interpreted then-existing the statutes of persuaded that expressly stated that he was not Congress preempt property was based on the rul- to state distribution the United States the ing McCarty. Thus, use of a case assuming any jurisdiction even if over the courts from "prior judg- precedent strictures of the met the pay military United service- retirement States 60(b)(5) (which it does prong of I.R.C.P. ment" USFSPA, enacting By 10 the U.S.C.A. men. not), respondent’s in her reliance on law, changed Congress the substantive the enough be to would not motion and affidavit granting retroactively, expressly jurisdiction her to relief. entitle military pay to the state courts. over retirement law, Congress change retroac- While did the inapplicable probably to is nullifying McCarty’s prece- tively, effectively reason. of this case for another the facts Congress impact, did that action the dential Supreme Court in United States decision of the judg- the or otherwise "reverse[ ] vacate[ ]” McCarty McCarty never been "reversed has McCarty case. ment in the meaning of Rule the otherwise vacated” within 60(b)(5). Supreme in The United States portions prop- Rather, of the simply decree. awarded was awarded various decree showing appellant, separate proper his sole and record erty “as is no there ty,” property, of items of includ party gone number into other than that each has ing “military benefits of respec- retirement possession and remained plaintiff, any.” The the mili award of to them. property tive items of awarded tary benefits the other Accordingly, judgment prospec- is not received, property appellant as well McBride, Further, again as in tive. property respondent as the re which the instant action entered into parties ceived, immediately. effective Each relating proper- voluntary settlement separate property received as their sole and division, to property of the ty the recitation legal respective assets which their be divided included stipulated counsel to in open court. In benefits, placed retire- value rely order on Rule a movant “[t]o any of the ment benefits or other (1) things: judg must show two divided, parties advice of to had the both nature; (2) ment counsel, legal parties requested the both no longer equitable it is enforce to in accordance divide the Rudd, as written.” Rudd v. agreement, and both terms (1983) precisely they re- parties obtained what decision, (emphasis just a Our lit Hence, is no quested from court. there ago, year tle over one in McBride v. showing in case it is no the instant P.2d McBride, judgment. enforce (1987), point is directly on on this issue. analysis issue Our on this is reinforced reopening case also McBride involved jurisdictions. cases In from other Ga modify a decree divorce in an order Bratcher, jewski N.W.2d award of retirement benefits. (N.D.1976), North Court of McBride, stated: we Dakota stated: Here, was not [of divorce] that a believe [W]e adjudicated rights prospective. It all the land, certainly quiets although title to parties as the of the date of between having dealings impact an on future judgment. party the Each was awarded land, having pro- judgment such is not a property of portions various the and spective meaning application within the showing party there no but that each is of such term in Rule N.D.R.Civ. possession in gone has into and remained P. property. of elements of those case, the Like land in the North Dakota the Further, Yockey that has hold made we (which this case awarded the showing it is no no that military appel- retirement benefits to the judgment, and therefore it to enforce lant) him to future will allow have the record before should modified. The be property and all benefit other only parties entered us indicates However, awarded him. that does relating voluntary settlement into give divorce noted, the reci- property division. As application meaning within the of I.R.C.P. divided in- tation to be 60(b)(5). in the Because the divorce decree benefits. cluded reasonably case read to instant cannot placed upon the No value was effect, rather, being, any prospective have benefits, any of nor on property, the district a one-time division items. omit- other [Footnote jurisdiction court here no to allow had legal counsel and Yockey secured ted.] “pro- the decree under the modification of advice of counsel. spective application” prong of I.R.C.P. (emphasis 739 P.2d at 261 112 Idaho at 60(b)(5). McBride, stipulation As advanced portion Under either adjudi- case divorce decree instant respondent prior judgment it that a parties rights as between cated —be party upon which her divorce decree was judgment. Each as of date vacated, has been reversed or otherwise ACT ONE be it that the should no Res Judicata prospective application motion —the must theory be denied. Under neither did been decided and Justicus: Your case has respondent “bring pur case within you youDo reopen cannot it. not honor Catledge Transport view of the rule.” Judicata? understand Res Co., 602, 606, Inc., Tire 107 Idaho 691 P.2d pro- Wificus: What does it mean who (1984). Puphal Accord v. Pu nounced it? (1983). phal, 105 “things decided” Justicus: It means and a “A party seeking judg from a final relief it, magistrate, pronounced an Idaho 60(b) provisions ment under the of I.R.C.P. your case. bring must a motion therefor within the qualities Wificus: must that court applicable period time What assert facts bring purview the case within the have? Transport Co., the rule.” Catledge v. Tire jurisdiction. Justicus: It must have Inc., Wificus: Did not the U.S. respondent This has failed to McCarty hold that courts are do. preempted deciding thing” “this from Accordingly, court’s the district revised lacking jurisdiction. and are therefore appeal, January decision on dated jurisdiction How can a court with magistrate’s ruling is reversed and the something? decide reopened divorce decree could not be woman, judicata Oracle: Res careful —be affirmed. appellant. attorney Costs to No you deeply. search too fees allowed. Why Wificus: Oracle use Latin on does the me? SHEPARD, C.J., JOHNSON, J.,

concur. might appear Justicus: reasoning fool- English. ish in Justice,

HUNTLEY, dissenting. searching inspiration

While and au- dissent, thority I journeyed for this last ACT TWO night deep into the of our bowels marble palace I where overheard and recorded the Vacated person enactment of a three drama: Justicus, great 60(b)(5) Wificus: Rule Oh THE RAPE THE OF SABINE WOMEN give would relief prior seem to me “if a

(A Sequele) Modern Idaho it is based has

been reversed or otherwise vacated.” PROLOGUE You then stated that was mere precedent something and not that direct- me, brings you Oracle: What before Justi- my caused distress. cus and Wificus? understanding

Wificus: I seek why as to I Yes, precedent. Justicus: it was mere my have lost retirement benefits when magistrate Wificus: Was not both many years I have endured as a preempted and bound? wife, suffering through long ab- tongue, your Oracle: Guard woman. husband, my inadequate sences from in- sir, Congress, through Wificus: But did not come, living and difficult conditions. USFSPA at least vacate ? Oracle: tell concepts judicata, Five it: Res Justicus: Not as I it. see vacated, equity, decisis Stare and non- prospective application. sorry, my Wificus: I’m Lord. I had Justicus: thought But she understands not. is no that since it viable vacated, effect it is at least but I Play your give Oracle: out cases and I will you understanding. guess wrong. I’m I you to the next Act. Stare decisis THREE refer

ACT my is shot. best Equity Rule further states: Wificus: ACT FIVE or it . is no Stare Decisis prospective should have application....” say thing prospective Wificus: You is equity does mean? What McBride, I stare decisis under but see no Fair, just reasonable. Oracle: definition or rationale therein. What why you do does stare decisis mean and Where, is demon- Wificus: in this record use it? I strated that that which have earned thing me? should be taken from Stare decisis means the Justicus: (cid:127) respect people you like will decided you equity Justicus: We tell what is. the courts more once we decide some- legislation by Wificus: But does not the thing, we stick with it. Congress Legislature both and the Idaho respect you I You mean Wificus: and the decisions of other courts count stay you although more if consistent ascertaining equity? you with wrong? count, They enough Justicus: but course, my Of dear. Justicus: overcome of us. three grows My respect by the minute! Wificus: FOUR ACT EPILOGUE Application

Non-Prospective under- Oracle: You now have a better Wificus: What does mean? Eng- standing of three Roman and two Something happen that didn’t al- Justicus: phrases. You can trust concepts lish ready. just give you your manly courts Why prospec- decree not my Wificus: was deserts, my dear. application? tive in Yes, Lord, my I feel better al- Wificus: Justicus: Because soup is the kitch- ready. Where nearest signed given moment filed at MY en? I’LL DESSERT LATER! GET time. Justice, BISTLINE, dissenting. judgments Is that Wificus: not true of —remember, agree yet majority I cannot another years date was four opinion jurisprudence portrays my retired and four before husband very perceived at at to be low pay- first what will be years before the Also, if he had ebb. ment was to be made. during years, payment died those four version Justice Bakes’ truncated day made. On the ever would have been prior subsequent the enactment law divorce, of his our the total amount Spouses Former Services Uniform payments estab- monthly even (USFSPA) Act must be fleshed Protection give factors lished. Do not all of those may fully understand out so the reader tiny prospectivity? essence of by majority today. perpetrated travesty nothing prospective I see there.

Justicus: regularly and 1981, Prior Idaho courts to applica- I would reason that its Wificus: bene- faithfully military treated past, present, tion the decree was either to the community property, at least fits as decree did not act or future. Since the or accrued extent such benefits vested past, dividing not monies and was domiciled were while the husband wife date, Ramsey had on its does not leave we community property state. in a 672, (1975). of future? only the third 53 alternative P.2d 96 Idaho 535 Ramsey, 1981, States of the United In the summer Woman, note did not you will we Justicus: McCar- McCarty v. Supreme decided explain Court nor what we explain will we 2728, 69 L.Ed.2d 101 ty, 453 U.S. S.Ct. non-prospective. by mean (1981). that, determination and distribution. This McCarty held under fed- to the court retroac- law, military power could is returned eral retirement benefits effective date to characterized and considered tive June [the McCarty This retroac- community property divisions of the decision]. at least afford indi- Subsequent McCarty, application to tive will upon divorce. (or de- were divorced “reluctantly” complied with the viduals who this Court modified) period Rice, during the interim holding. crees McCarty Rice v. (1982). June 1981 and the P.2d 319 between effective opportunity legislation date 1, 1983, USFSPA, P.L. 97- February On advan- to return to the courts to take (enacted September USC § tage (Emphasis add- provision. of this 1982) granted took effect. The USFSPA ed). the discretion to include a divi- trial courts Congress, 2nd Report Senate No. 97th military in final sion of retirement benefits 16, reprinted in 1982U.S.Code Con- Session decrees, applicable state dissolution gressional and Ad.News left no doubt law so allow. The USFSPA response short, enacted in to McCar- solely that it was enacted the USFSPA was ty: McCarty to ameliorate the effects of power to the states the to decide to return section,

Subject to the limitations of this the extent to which may disposable treat retired could be considered in dissolution benefits payable pay retainer to member specifically provides proceedings; beginning after June pay periods cause of action where a decree has been decision], McCarty date of the 1981 [the quickly entered or modified. re- property solely either as member reinstating sponded by its USFSPA property of the and his or as member Ramsey Griggs Griggs, decision. spouse in the law of the accordance with jurisdiction of such court. Thus, wrong Bakes is flat in his Justice 1408(c)(1). 10 USC § approach motion for relief to Mrs. Curl’s Moreover, legislative history avail- property decree under I.R.C.P. from the the Act for the USFSPA shows that able ground prior judg- “a upon the McCarty only effectively voided the it is has been re- ment decision, apply intended to but also was versed or otherwise vacated.” retroactively protect spouses those persuasive precedent from was not mere oc- uniformed servicemen whose divorces binding di- jurisdiction. another It was a during twenty-month effective curred Supreme upon state courts from the rective period McCarty. had the Court of the United States which place purpose provision of this is to governing power interpret federal law position they in the same the courts posi- in the absence of a benefits in on June the date precedent was by Congress. act That tive decision, respect to treat- by its by voided the USFSPA as evidenced non-disability military retired or ment of returning power to state courts to divide provision intended pay. retainer date of military pensions as of the effective preemption found to remove the federal McCarty. to exist the United States Congress acted within its has so Where permit state and other courts courts, today plenary power, state area of apply perti- competent jurisdiction majority being represented our ours determining nent state or other laws three, inconsistently. may not act pay retainer military retired or whether convincingly by Justice point made pro- Nothing in this should be divisible. opinion. Rehnquist McCarty in his division; requires any it leaves vision decide, as it has Congress may well up applying com- ... that issue to the court Foreign and Service in the Civil Service property, equitable distribution munity contexts, protection should that more of principles or other marital 1006 extraordinary spouse permit

afforded a former of a retired the use of decision, service member. This how- 60(b)(ll) procedural mechanism CR [a ever, very Congress alone. We analogous portions of I.R.C.P. Rule for recently re-emphasized that in no 60(b)and Federal Rule of Civil Procedure area Congress has the Court accorded de- motion to reexamine the final 60.] greater than in the conduct deference light crees in of the USFSPA. and See control of affairs. 709 P.2d at 1249. Goldberg Rostker v. U.S. ante. [453 57] Flannagan court relied the 64-65, 478, at 69 L.Ed.2d 101 2646 S.Ct. congressional 2651-52], well-articulated intent “that [(1981)]. [at apply retroactively USFSPA elimi the Thus, the conclusion that we reached McCarty of Hisquierdo, in 439 U.S. nate effects the decis Hisquierdo [v. 572, (1979)], 99 S.Ct. 59 L.Ed.2d 1 quoting P.2d ion....” 709 at from here: follows a Konzen, re 103 Marriage In Wash.2d fortiori of matter, Congress weighed has the den., 473 cert. U.S. McCarty McCarty, to overrule. McBride wooden to consider parties filed of likes opening of a dissolution vorce decree date community assets in a situation where cata to S.Ct. from McBride was a courts U.S. thereto. of which [at ^[572] USFSPA, ‘it is not analysis the one preclude 813] to strike a balance at for, subsequent we Congress of 69 L.Ed.2d 589 should wrongly but before the the wife’s and received a final the Court retirement benefits 59 L.Ed.2d doctrine rigidly employed a 453 U.S. judgment, in order province today to-the enactment has ignored decided case attempted re struck. not of res (Emphasis different 210, 101 effective of hesitate 99 S.Ct. ’ judi- state sub the di fective phasis were cumstances” lied 105 S.Ct. the limited number of final and not ty-month period tary after ond, First, Those circumstances are removing moved We heavily upon finalized anomaly agree added). Additionally, the period McCarty. USFSPA, the alacrity ‘extraordinary circumstances.’ all ill effects of clear passing present during of appealed during of the but not pay allowing Congressional L.Ed.2d the where between; the before “extraordinary decrees that were twenty-month ef during USFSPA; division of mili- divorce decrees McCarty; period as (1985) (em the twen- desire of Congress follows; fourth, period. third, cases sec- cir re recognizes authority of stantial line P.2d at 1252. extraordinary presented circumstances that, Finally, emphasized by those cases where divorce decrees light extraordinary of circumstances during twenty-month effective finalized detailed, “[allowing reopening of there period McCarty. I am now convinced of provide springboard these cases will persuasive. Spe that these authorities are judgments.” 709 for attacks on other final cifically, Flannagan I look to v. Flanna short, cor- Flannagan P.2d at 1252. 214, 709 gan, Wash.App. P.2d effect nature and rectly notes the limited (1985), recognized the wherein reopening in those cases were allowing of uniqueness of the situation allowed finalized the twen- decrees were divorce light decree in of examination of final McCarty. period of ty-month effective impor USFSPA, despite acknowledged unique, the dearth This situation is res judicata. tance the doctrine seeking reopening on possible claimants recognize importance we While readily com- grounds in these judgments, finality of some situations providing for conclude that pel all us to exception to this ‘doctrine justify an situation will reopening in this limited hold that the circumstanc- finality.’ We of finali- disrespect for the doctrine presented in are sufficient- lead to es these cases ty judgments, haphazard nor the dis- 32-713A. MODIFICATION OF DI- memberment thereof. VORCE DECREE—EFFECTIVE DATE. 1.Community settlements, property Further, importantly, most states judgments, or decrees that became final procedural which have a both mechanism 25, 1981, on or after June and before reopening judgments for the of final 1, 1983, February may be modified to application have considered the retroactive include a division of military retirement of the USFSPA to final decrees have al payable 1, benefits February on or after reopening. Thorpe lowed Thorpe, 1983,in manner consistent with federal 424, (1985); Kop Wis.2d 367 N.W.2d 233 law and the law this state as it existed penhaver 105, Koppenhaver, 101 N.M. 26, 1981, before June and as it has exist- (App.1984); 678 P.2d 1180 Castiglioni v. 1, February ed since 1983. 594, Castiglioni, N.J.Super. 471 A.2d 2. community Modification of proper- (1984); Court, Superior Edsall v. ty settlements, judgments, or decrees un- 240, Idaho, Ariz. In der this may granted section be whether have, under we also such settlement, or property not the judg- procedural allowing mechanism for re ment, or decree expressly reserved the opening judgments. pension determination, issue for further For a time the courts of this state also any omitted reference to a military pen- legislative were under authorization to re- sion, manner, or in any assumed implicit- open settlements, legislation otherwise, pension, that a divisible totally ignored by which is majority community 25, as property before June today and in McBride when that case was 1, 1983, February on or after reheard: not, as of the date the settlement, judgment, or decree became CHAPTER 68 final, divisible community property. (S.B. 1076) No. Any proceeding brought 3. pursuant

AN brought ACT this section shall be before July 1988. RELATING TO ACTIONS FOR DI- 4. This section shall remain in effect VORCE; AMENDING CHAPTER TI- 1, 1988, July until and on that date it is CODE, TLE IDAHO BY THE ADDI- repealed null and void. 32-713A, TION OF A NEW SECTION Approved March CODE, IDAHO TO ALLOW MODIFICA- TION OF Gen.Laws, COMMUNITY PROPERTY 1987 Idaho Ch. 122-23. SETTLEMENTS, JUDGMENTS, OR DE- particular Of note is the date the act was CREES WHICH BECAME FINAL IN approved 24, 1987—a little over —March 25, 1981, THE PERIOD OF JUNE TO two months after McBride was filed on FEBRUARY BY ALLOWING January great leap 1987. It is not too THE INCLUSION OF MILITARY RE- imagination to surmise that the act was TIREMENT BENEFITS THE IN SET- passed to, correct, response and to TLEMENT, JUDGMENT, DECREE, OR Indeed, travesty. McBride much as with A STATUTE LIMITA- TO PROVIDE OF USFSPA, McCarty vis-a-vis the the act TIONS, AND TO A PROVIDE SUNSET may overruling read as legisla- McBride CLAUSE. tively. today’s majority Yet chooses to ac- Legislature It Enacted Be cord McBride reverence which is ordi- of Idaho: State narily judicial reserved for the doctrine of (A Chapter SECTION 1. That Title stare exception decisis. notable is the Code, be, aberration, hereby Club, and the same is Duthie v. Lewiston Gun (1983).) amended the addition thereto of a SECTION, desig- may to be known and Idaho that doctrine henceforth be es- NEW 32-713A, Code, prior to mean that all nated Section calated cases will be upheld applied ill-princi- and to read as follows: no matter how pled wrongly support, will As he or decided. It make sole cites the discredited speedier, poor- disreputable work at this level but it will Surely and decision. McBride ly serve the trial bench and bar and property a decree that awards husband people of Idaho. as his his sole benefits, in its any, prospective appli- is wrong Justice Bakes is also flat in his to yet cation. benefits are be re- misapplication ground of the second for ceived. under that it relief is “no equitable that 60(b)(5) “prospective As used in a Rule application.” prospective judgment” is used in contrast “with those remedy a for past that offer a equity, put, In Idaho or better wrong,” money such a as inequity of situation was seen and de- Miller, 2863, damages. Wright p. and by legislature4 our in its § creed statement ed.). (1973 Judgments prospective in guiding purpose of the enactment of I.C. 32-713A, application require do not quoted their unscram- above. §

bling and past of do not involve the rights parties. Eq- of third Id. at 202. OF PURPOSE STATEMENT decrees, injunctions uitable such as and A U.S. Court de- Background: divisions, require par- handed down on June cision do, act, doing or from ties to refrain some pensions precluded potentially require and which future community proper- as from consideration oversight, prospective judgments par are ty in divorce cases. excellence. urged Congress decision The court its Bakes, according judg- But to Justice by it the situation which did to correct effect, some ments that have however enacting the Federal Uniformed Services slight, day entry, prospec- of are (U.S.Code 1408) Spouses pro- Act Former interpretation tive. This dictate that would pensions military retirement viding that judgments would be community indeed considered can be ground that for relief I.R. eliminate under was enacted on Feb- property. The bill 60(b)(5). that re- C.P. If a decree awards ruary 1983. yet pay- tirement benefits which are not Idaho, gap years left a of two this able, paid be on a and which mil month- to unable treat during which courts were prospective’in is future, in the basis pensions as communi- military retirement say application pressed its I am hard to ty property. prospective. is what correct that bill would Purpose: procedural a provide Looking niggling inequity beyond Justice Bakes’ reopen to larger permit courts of rules fault application mechanism is the cases that military divorce its inher- this Court has thus abdicated fell few gap. 2 year power inequity into that to correct an ent act its pointed by out to us I.C. 32-713A and § McBride, at Cited in I Purpose quoted above. Statement dissenting (Bistline, on re- J. P.2d at prior on point occasion: have made added). This statement hearing) (emphasis itself, wholly is act purpose, like the clearly in the all too What surfaces by ignored majority as was by today’s case, its of this majority disposition It is thus majority in McBride. legisla- mention the refusal even brought into jurisprudence our Idaho overriding one tion, obsession of is the disrepair disrepute. Court, unfortunately member others, unless the joined two applica- in his likewise errs

Justice Bakes one cured be inequity can in the rule. “prospective” tion word law, change decisional legislation, quent adequate showing will an the courts "[0]n Wright operative change facts.” provide relief if it is no ed.) Miller, (1973 pp. enforced, § 209-10 because subse- whether ignore rules, Finally, efits. the three choose to plethora of it cannot be court’s legislature all. done at an act of our own reopening property settlements authorized entirely forgotten by those principle A very today’s That three that rules like the Curls’. today’s majority, who are deci- careful and con- appellate likely sometimes emanate from cast themselves as promulgated by rules judicial sions. The 1882 restraint servative believers Supreme specifical- the Territorial Court amusing irony that would be presents an ly practice stated that rules estab- consequences so serious —for were not the lished in the decisions the court shall case, for the in this and also Mrs. Curl heretofore, and were remain in juris- our Idaho debilitation of lamentable force in addition to those made administrative- prudence. few, thirty-one in all. —which

Today, we have a court which has so itself adminis-

fettered with rules made

tratively, well-nigh that it has emasculat- exception comes to

ed itself. One recent Develop-

mind. Minich v. Gem State Inc.,

ers, 591 P.2d 1078 (1979), decision, by the Court and not rule, statutory power held ‘that the ENUMCLAW, Washing- MUTUAL OF attorney’s applies to the award fees corporation, ton of this members Court as well as Plaintiff-Counterdefendant-Appellant, judges throughout district the state.’ contrast, Today, in stark the Court has HARVEY, individually, Floyd W. statutory power inequi- to correct an Excursions, Inc., Canyon Ida- Hells an ty, away ostensibly but turns it because corporation, Defendants-Counter- ho statutory power any into does not fit claimants-Respondents, pigeonhole particular the various affording court-made rules relief from judgments. Oakes, Defendant-Respondent. Bruce Today’s majority inaction presents commentary a sad the intel- on No. 17449. capabilities lect and of this to func- Supreme Court of Idaho. tion as earlier courts functioned. Finding page itself with a 613 bound April plus pocket parts

volume of rules a 1986 rules, pages of 357 more without a but

specific thought apply- rule applicable,

ing legislative remedy, unique deeming itself no

Court will be by deciding able to act a case provide

which will itself a case-law rule— notwithstanding legislative enact- authority

ment is all the needed. 972-73, McBride, 112 Idaho at

McBride v. (Bistline, dissenting

739 P.2d at 271-72 J. rehearing).

on

Thus, today’s majority of three refrains acting clearly has

from where this Court inher-

always heretofore aware of its been power

ent to do so. The three also refuse Congressional obey a directive of the

plenary power over federal retirement ben-

Case Details

Case Name: Curl v. Curl

Court Name: Idaho Supreme Court

Date Published: Apr 5, 1989

Citation: 772 P.2d 204

Docket Number: 16395

Court Abbreviation: Idaho