Hennessy v. Duryea

1998-NMCA-036

955 P.2d 683 HENNESSY, D.

Dora D. Dora F/K/A Duryea, Petitioner-Appellee, DURYEA,

George Respondent- W.

Appellant.

No. 17317. Appeals of New Mexico.

Jan.

Certiorari Denied Feb. Marcotte, Albuquerque,

Robert for Peti- tioner-Appellee. Mallon, Bowler,

Eileen Ann Travis Clara Scott, Jr., Albuquerque, Respondent- M. Appellant.

OPINION PICKARD, Judge. (Husband) George Duryea appeals February

from the trial court’s order of 1996, awarding a share of his retire- $52,235.52. wife, pay Hennessy pay arrearages ment to his former Dora ment and The (Wife)- parties the Husband asserts that trial court court resided in trial found that the (1) in making marriage erred this award because: during New Mexico their and con- Husband and Wife were residents of por- that entitled to a cluded Wife would be during New Mexico the time he earned most military pay tion Husband’s retirement (2) benefits; pension military the of his re- the laws of either Mexico or New under New pay Jersey. tirement was not divisible under the laws appeal This followed. Jersey New at the or New Mexico time of (3) decree; II. DISCUSSION parties’ 1973

the divorce such an preempted by award the Uniformed Ser- Preemption Federal Spouses’ vices Former Protection Act 5. Husband asserts (4) (USFSPA); claim and Wife’s is barred application USFSPA bars statute of limitations and the doctrine of pre-McCarty law in state cases where a di preempt- laches. We hold that the award is specific decree vorce does not contain lan ed and therefore reach the do not other (or guage treats reserves issues. treat) military pay proper retirement as the ty of a and service member his former I.BACKGROUND spouse. decree The 1973 divorce at issue in Navy 2. Husband enlisted in the in 1958 specific case does not contain such lan retired from military Septem- and service guage. agree We with Husband. 1988. ber Husband and were married Wife January in New Mexico on and Supremacy 6. Under Clause of the April divorced New Mexico on Constitution, States U .S. Const. Art. United par- The divorce decree states that the VI, may el. preemption of state law ties consented to the of the “explicitly Congress, be mandated com County adopts Bernalillo district court and pelled due to an unavoidable conflict between findings allegations its of fact the material law and the federal or com complaint. decree pelled because the is an state law obstacle to divided household effects and two vehicles. accomplishment congressional full ob respect military decree is Co., silent with jectives.” In re Timberon Water (1992) (cita 154, 158, retirement benefits. 836 P.2d omitted). tions ‘When has consid 7, 1991, approximately On March two preemption and has ered issue of includ years one-half and after Husband retired legislation provision expressly ed years eighteen from after issue,” addressing only identify we need divorce, petition Wife filed a in Bernalillo expressly domain preempted the fed County district court to divide what she al- eral statute and infer matters be was leged her undivided yond preempted. that domain Mon are not in the retirement that Husband ¶ toya Corp., NMCA Mentor receiving. brought peti- then was Wife her 919 P.2d 410. pursuant provisions NMSA 40-4r-20(A) (1993), pro- which preemption pres Insofar as federal party to a seek division vides question statutory interpretation, ents previously distribution of undivided question novo and is reviewed de does separate proceeding a divorce. require statutory us inter to defer to the objected application Husband to the of this pretation of the district court. Cox Cf. grounds on the it does not statute satis- Comm’n, Municipal Boundary reservation-of-jurisdiction requirement fy the (Ct.App.1995) USFSPA, question (stating standard of review 1408(c)(1)(1994). § U.S.C. statutory “To interpretation). understand a February meaning, must examine the

4. On trial court statute’s used, petition, ordering the context within which the granted Wife’s Husband to words used, statute, Wife future are 22% Husband’s retire- words history.” respect the division of Montoya, 1996 and its ¶ preempted. 410. benefits NMCA though 10. Even overturned statutory 8. The context which LeClert, been pension benefits that had divid particularly important are used is words were, for most ed in reliance on LeClert provide Because relations here. domestic part, Changes in the not affected. law ordi preeminent, in law is context which state setting narily grounds aside final are for Supreme States Court has “consis United County Board decisions. See Deerman v. tently recognized Congress, when Commissioners, 501, 505-06, 116 N.M. 864 rarely general legislation, passes intends 317, According (Ct.App.1993). 321-22 displace authority in this Man state area.” ly, part final decisions that had awarded Mansell, 581, 587, sell v. 490 U.S. 109 S.Ct. military pension non-military to the 2023, 2028, (1989); 104 L.Ed.2d 675 see also spouse Whenry not set v. were aside. See 833, -, Boggs, Boggs v. 520 117 S.Ct. U.S. 737, 738, 1188, Whenry, N.M. 652 P.2d 98 1754, 1760, (1997) (noting 138 45 L.Ed.2d (1982). words, McCarty In other would 1189 “community property imple laws ... apply only pend to future or cases still cases policies lying ment and values within the ing, appeal. in on either the trial court or States”). Hence, domain traditional McCarty, response In United relations, of domestic “will the context Congress in States 1982 enacted USFS- pre-emption find absent that it evidence originally PA. stated required by positively direct enactment.” is entirety: in its Mansell, 587, 490 109 at 2028 U.S. S.Ct. disposable A court retired or treat (quoting Hisquierdo Hisquierdo, v. 439 U.S. pay payable a member retainer 802, 808, 59 L.Ed.2d 1 S.Ct. 25, periods 1981, beginning [the after June (1979)). McCarty day prior decision] to the either solely property of the member or as Examining language and his property of the member and context, history of USFSPA in this find with of the accordance the law Congress “positively required” law court. preempted begin case. We to be in this our “ purpose of ‘to remove the analysis placing Paragraph pre-emption to exist 1981, federal found Prior historical context. several Supreme McCarty, [in United Court community States property had mil states held that 210, 2728], permit U.S. S.Ct. itary retirement benefits are jurisdic competent and other courts of State property, so that the non-mili apply pertinent State or other laws tary spouse entitled to would be a share determining whether re Supreme Mexico the benefits. The New ” be [sic].’ tainer should divisable Wal so held Court LeClert v. LeC Walentowski, v. entowski lert, 236, 755, 235, N.M. 453 P.2d (1983) 657, (quoting S.Rep. No. 1981, however, In the United States 97-502, (1982)), reprinted at 16 in 1982 Supreme Court ruled that those decisions 1596, 1611; see also H.R.Conf. U.S.C.C.A.N. wrong. McCarty McCarty, v. were (1982), Rep. reprinted No. 2728, 69 L.Ed.2d 589 U.S. (stating .C.A.N. 1982 U.S.C (1981), the Court held that as matter of effect legislation “would have the of re law, military retirement benefits were versing the decision of the United States property solely military spouse. Supreme McCarty”). the case of law, community-property In the McCarty question meant as to the retirement ben 12. The arises effect were, been, juris- final always separate judgments. had Some efits statute military spouse. Despite interpreted dictions the USFSPA autho- against pre-emption final presumption rizing the con divorce decrees relations, during eighteen-month period text of domestic United States entered Supreme that state and the effec- Court found law between decision tive date of the See Edsall v. Under New Mexico divorce Section 40 USFSPA. -4-20(A) Court, part of a divorce decree Superior 143 Ariz. 693 P.2d becomes (1984) (en banc) operation Zarges Zarges, of law. v. (noting 897-901 “extraordi (1968) (statute 445 P.2d nary justifying circumstances” relief and the confers on district court to hear period); small number of cases in the interim Koppenhaver subsequent, independent action to divide Koppenhaver, cf. 105, 108-09, decree): property left undivided in divorce (Ct.App 678 P.2d 1183-84 .1984) Scanlon, (remanding post-judgment denial of Scanlon (1955) (State’s grounds); motion for consideration on similar domestic relations decree). Farm, Inc., Spendthrift part but statutes become of divorce Plaut v. cf. Thus, if a retirement benefit is not 115 S.Ct. 131 L.Ed.2d 328 (1995) decree, (separation-of-powers principles pro dealt with in the divorce enacting claiming pension an in the hibited from a statute ex benefits may tending period years pursuant seek relief later to the limitations for actions that Sec 40-4-20(A). prior Plaatje Plaatje, tion had become final to enactment of the statute). judgments But final P.2d can be re opened only very circumstances, The 1982 version of the not limited USFSPA does specifically ap see Rule NMRA address this situation. parently routinely reopen pre did not 1990, however, Congress In amended McCarty final decrees after enactment of the 1408(c)(1) Paragraph the USFSPA so that generally USFSPA. See Johnson v. John now reads: son, (Alaska 1992) 1382 n. Subject section, to the limitations of this (noting seeking obstacles to relief under may disposable pay a court treat retired counterpart

Alaska to Rule 1-060 with re payable pay periods to a member for be- spect military pension). to division of 25,1991, ginning prop- after June either as is, however, subtlety erty solely

13. There a property of the member or as complicates picture. appears spouse What on its of the member and his accor- face to abe final decree —because all issues dance with the law of the of litigated by parties may A been decided such court. court not treat retired pay property any proceeding and the decree reserves no issues for future to di- may, juris- partition any under the of vide or of laws some amount retired decision— dictions, (without subject property reopening still be to of a member as the the mem- of showing equitable spouse the need for the sort of ber and the member’s or a former 1-060). divorce, grounds spouse codified in Rule a For exam- decree dissolu- final of (in- tion, annulment, ple, entry legal separation in New Mexico even a or final decree, ordered, ratified, cluding ap- spouse bring a former can an a court or action community prop- proved property to obtain a share of marital settlement incident to decree) affecting erty that in the such the member and the was addressed decree. (A) bring spouse spouse The such an action is set forth member’s or former was (B) statute, 40-4-20, long-standing issued June did Section a¡ before (or treat) jurisdiction to which states: not treat reserve any amount the member prop- The failure to divide or distribute the member and the mem- erty entry of on the a decree of dissolution spouse spouse. ber’s or former marriage separation or of shall not af- view, property rights provision ques- In fect the of either the hus- our .this resolves wife, may subsequently open by or of the band and either left the earlier version prosecute non-military It institute and a suit for division statute. states any pen- not entitled to a share of the and distribution or with reference pertaining other matter thereto that could sion if a final decree was entered before the litigated original proceed- McCarty in the decision unless the de- have been date non-military marriage separa- provided ing for dissolution of or cree n pension or the was entitled to a share of the tion. to accom- was needed amendment determine decree reserved plish compelling inference was that result. non-military spouse entitled whether of the 1990 amendment is that pension. emphasize We to a share of preclude 40-4-20 “re- use requires the decree to was that the statute reopen pre-McCarty decree and portion jurisdiction to like serve treat” to the non-military military pension benefits property of the distribute pension as non-military spouse. though Mexico court de- spouse. Even New (implicit- every decree cisions view of the support Also incorporates ly) relevant New Mexico domes- amendment, points Husband Con- statutes, Scanlon, 60 N.M. at tic relations see indicating reports gressional committee Para- adopted was because implic- graph permit does allowing pre- were states short, incorporation. under the amend- House decrees. USFSPA, non-military spouse cannot ed enacting amended Committee 40-4-20 obtain a share of utilize Section 1408(c)(1)states: military pension if the final decree Spouses’ Protection Act The Uniformed and the entered before June 97-252) (USFSPA) (Public Law was the question. decree was silent among compromise product of substantial Indeed, meaning 15. unless that is opinions the ex- diversity of about a wide 1408(c)(1), 1990 amendment ought courts to be able tent to which state purpose for it is difficult to discern a useful upon military pay to divide retired jurisdiction In a whose law the amendment. military of a entitled to divorce member something akin to Section 40- did not include pay. legislation walks a narrow The such entered, 4-20, a after final had been a decree rights of states and line between the bring a could not later action former government in the interests of the federal military pension seeking a of a absent share military dealing pay divorce with retired extraordinary justifying eq- an circumstance The two modifications cur- settlements. as, relief, say, fraudulent con- uitable make law the committee would rent military pension by the cealment of the judgment public policy year reflect a by entry spouse or of the decree a court govern- appropriate role of 1-060(B). jurisdiction. Rule without We jurisdiction limiting ment in state court unlikely highly that such relief was think involving military pay retired divorce cases granted routinely by state being balancing with is consistent (the of the amendment to Para- date that has been state and federal interests 1408(c)(1) respect to decrees en- graph inception. law since its the hallmark of this 25,1981. question And we tered before June 101-665, 279, reprinted H.R.Rep. at No. leg- fit to Congress would see enact whether 3004-05 in 1990 U.S.C.C.A.N. just excep- preclude relief in such islation explicitly not- House Committee tional cases. ed that dissent states that 16. The have been less than some state courts Congress stop generally intended to spirit in their to the faithful adherence reopening divorce decrees for courts from reopening divorce eases the law. The taking property rights in Supreme finalized before the Court’s deci- pay from an retired individual McCarty [453 sion or transferring rights those to his her for- not divide retired con- 2728] did rights already had mer when such significant problem. tinues to be a Years separate property of that indi- become the final have been is- after divorce decrees by operation either of state law vidual courts, sued, particularly those some state express language pre- a a result California, reopened cases McCarty divorce decree. otherwise) (through partition actions or Although view, essentially of retired pay. was the result award share In our report twice stated lan- version the USFSPA. No has under intended, Thus, per particularly find guage that this result we was practice continues unabated. Such ac- in the suasive the statement House commit the notion is inconsistent with report that Paragraph tee was mo represents final final decree tivated decisions of the California courts. disposition of the marital estate. context, any ambiguity Given that in the 101-665, H.R.Rep. reprinted No. jurisdiction disap words “reserve to treat” ’ at 8005. The U.S.C.C.A.S. committee pears. quoted only can refer report is consistent with a committee jurisdiction explicitly to a reservation of stat originally at the time the USFSPA was en- decree, juris ed in the not a reservation of acted, which stated that it was not Con- implicitly incorporated diction into the decree gress’s pre- intent allow the If virtue of state we rule law. were to See, McCarty H.R.Conf.Rep. e.g., decrees. 40-4-20(A) reserved 168, reprinted No. in 1982 benefits, to treat Husband’s retirement (“[T]he U.S.C.C.A.N. at 1573 conferees in- Congressional would circumvent intent. provision preclude recognition tend this Community property upon rely states which changes to finalized court orders before the statute or ease to reserve law McCarty changes decision those are effect- over the division of would assets McCarty ed after the decision and as a direct still be able to divide result of the enactment of the new title X benefits, exactly which is what words, report. this conference In other wanted to avoid. favorably applica- courts should not consider tions based on the of this enactment title supported are in this We result reopen cases finalized before the only to rule issue California court on this decision wherein was enacted. divided.”). Curtis, Marriage Cal.App.4th re It is true that some courts have 145, (1992); Cal.Rptr.2d 153 see also John expressed rely legislative reluctance to on son, 1383-84; at 824 P.2d Johnson v. John history reports form of the committee on son, 1157, (La.Ct.App.1992); 605 1161 So.2d statute, ground the that it is the and not the (Tex. 369, Buys Buys, v. 924 S.W.2d 375 cf. report, committee that or is enacted on the 1996) (noting split authority among of Texas ground of doubt about the whether members issue, appeal courts of on this but not resolv even read the committee re ing split). the California law is not material ports. City Chicago See v. Environmental ly different from New Mexico’s insofar as Fund, 328, 337, 511 114 U.S. S.Ct. Defense community property distribution omitted 1588, 1593, (1994); 128 L.Ed.2d 302 Wiscon from divorce decrees is concerned. In both Mortier, 597, sin Pub. 501 Intervenor states, be later divided. 111 S.Ct. 115 L.Ed.2d 532 only appears material to be difference (1991) (Scalia, J., Nonetheless, concurring). that California has its rule established interpreting a traditional tool for is statutes Mexico estab case law whereas New has to look at the historical circumstances which Compare rule lished its statute. Henn led to statute. the enactment of the Henn, Cal.Rptr. 26 Cal.3d 161 County Eddy, Methola v. (1980) 40-4- with Section P.2d example, For P.2d 20(A). true, claims, it If is dissent particular legis courts will sometimes infer a to amendment statutory timing lative on intent based prohibit was to courts from trans enactments. See Coslett v. Third Street Gro ferring one to another had from what 727, 730-31, cery, separate property of first become the (Ct.App.1994). 659-60 The committee spouse, Congress certainly very pecu chose rely probably on which in this is we ease express purpose. liar to No more indication of what motivated reliable language in the 1990 amendment can reason at the enactment of the statute issue than the ably distinguishing Cali essentially be read between traditional use what is informed addition, guesswork. fornia law New Mexico law. cases, on mary the burden is calendar history 1408(e)(1) pur- disposition to party proposed its unmistakably opposing shows that practice clearly or law. point out errors fact pose to overturn the California Sisneros, 202-03, silent decrees that were State v. Therefore, (1982); Mondragon, pay. on the of retirement 404-05 State v. issue (Ct. Mexico equally preempts hold it New we practice. App.1988). together This real daunting task it be a for ization that would Accordingly, it does not matter independently research appellate court to think enactment of Para whether we cases, provides every its each and one of To graph not. be ill advised or result, change explanation some sure, arguments made both policy can be preferred to though we have even would H.R.Rep. ways. Compare No. 101-665 at gotten right time. it first reprinted in U.S.C.C.A.N. Curtis, Cal.Rptr.2d Marriage Inwith re however, are, 25. There several lessons Jr., Reppy, generally A. at 153. See William First, experience. it from this be learned No Amendment: Bar 1990 U.S.F.S.P.A. why points the lower courts and mem- out Tenancy in In Recognition Common be bers the bar cautious about should by Pre-McCarty terests Divorces Created opinions, particularly relying unpublished on Military Retirement That Fail Divide summary those on the calendar. decided (1992-93). Benefits, 29 Idaho L.Rev. Second, emphasizes appellate counsel it However, notions importance pleadings submitted 1408(c)(1)might policy that Con be bad Third, summary there is a lesson calendar. gress might have misunderstood what was humility for the members of this Court. 1408(c)(1), doing enacting Paragraph see defense, however, repeat In our we 952-54, grant Reppy, supra, at do not this were undertake the work that Court paramount liberty ignore appellate performed by counsel on should be McCarty, 453 U.S. at law. See calendar, summary process appellate our (decision protection as to what delayed bogged as to would be so down and spouse of retired should be accorded former injustices create to all those whose severe alone). member is for appear us. cases before Finally, although recognize prece opinions that memorandum are III. CONCLUSION Gonzales, dent, 218, v. 110 N.M. see State reasons, foregoing 26. For the we reverse 227, 361, aff'd, (Ct.App.1990), 794 P.2d 370 1996, 16, February court’s order trial 363, (1991), would 111 N.M. 805 P.2d 630 we military re- awarding a share of Husband’s acknowledge that if we did not be remiss pay to tirement Wife. an issue to the one did rule on identical today ago, held in IT IS SO years decided four and we ORDERED. summary opinion on the cal

a memorandum [prior]

endar that “as matter law HARTZ, C.J., concur. jurisdiction to later divorce decree reserved ARMIJO, Judge, dissenting. military retirement that divide the benefits decree,” divided in the so that were not I respectfully do not I dissent because 1408(c)(1) Paragraph did affect divi agree award in that sion of retirement benefits preempted by federal law. benefits to Wife is attorney prevailing party case. The for Wife’s interest Husband’s retire- attorney years ago is here. four Wife in the di- ment was not addressed benefits however, case, Availing one vorce decree filed in 1973. herself 24.In no chal- bring an lenged apparent proposed in our of her action divide error community property by previously un- calling our attention undivided calendar notice 40-4-20(A) 1978, (1993), rely legislative history today. der NMSA Section on which we that, petition repeatedly properly brought in sum- her within the have held Wife Our courts

761 40-4-20(A) applicable operative statute of limitations established effect of Section after (1880). 1978, by Section NMSA 37-1-4 amended 789, 790, Plaatje Plaatje, Spouses v. 95 N.M. 626 P.2d the Uniformed Services Former (“[T]he 1286, 1287 (1981) year (USFSPA) four statute Protection Act 1990. See 37-1-4, applies 101-510, 555(a), § limitations Section suits Pub.L. No. 1569 Stat. (codified personal property brought 1408(c)(1) (1994)). § to divide under at 10 U.S.C. 40-4-20.”). Section agree majority I do not 1969, 29. Since New Mexico courts have preemptive effect of couple’s treated a married in mili depends whether or not the on tary during pay earned the marriage language particular in a divorce decree reit- community property. See LeClert v. LeC (literally) statutory erates reservation of lert, 755, N.M. 40-4-20(A). found Section (1969); Walentowski, Walentowski v. 40-4-20(A) incorporated is into the 486, 484, 657, (1983); N.M. 672 P.2d by operation of regardless divorce decree law Saueressig, Norris v. 104 N.M. of whether its reservation of is 52, Community property repeated decree, on the face of the hence that is left undivided is divorce decree parties would no reason include parties held as tenants common such language redundant their decree at Meadows, Berry v. divorce. See time was entered. To make USFS- 769, (Ct. 761, 1017, 713 P.2d preemptive hinge presence PA’s effect on the Harris, 441, App.1986); Harris language or absence of such the decree Tate, (1972); 493 P.2d Jones v. rely exactly arbitrary, the kind of tech- (1961); nical distinction that wanted Jr., Reppy, A. William The 1990 U.S.F.S.P.A avoid. Recognition Amendment: No Bar to Ten Court, opinion today, 33. The in its ac ancy in Common Interests Created Pre knowledges congressional re committee Divorces Fail to Divide Mili ports always are not reliable indicators tary Benefits, Retirement 29 Idaho L.Rev. intent, especially the domestic (1992-93). 941, 943-45 preemi relations context where law is 30. A New Mexico statute existence nent pre-emption and courts “will not find provides dividing, since mechanism for ‘positively required absent evidence that it is ” distributing, partitioning and otherwise Mansell, by direct enactment.’ Mansell v. previously property. undivided 490 U.S. 109 S.Ct. (codified Laws, 62, § ch. (1989) (quoting Hisquierdo L.Ed.2d 40-4-20). §at amended This statute ex Hisquierdo, 439 U.S. 99 jurisdiction to pressly reserves treat such (1979)). Nevertheless, 59 L.Ed.2d 1 necessarily undivided became Court relies on in a House Commit part of the divorce decree at issue in the disapproval expressing tee by operation present case of law. See Scan practice reopening of divorce decrees entered Scanlon, v. 60 N.M. 287 lon P.2d Supreme before United the States Court’s (1955) (domestic-relations statutes be McCarty McCarty, decision in 453 U.S. part operation of come divorce decree of 210, (1981), 69 L.Ed.2d 589 to law); Zarges Zarges, military pay award a of to a share retired (statute (1968) jurisdic confers spouse. service member’s former subsequent, district court to hear (1990),reprint H.R.Rep. No. independent property to action divide left 2931, 3005; ed in 1990 U.S.C.C.A.N. In cf. decree). undivided in divorce Marriage Curtis, Cal.App.4th re of (1992) Quintana, Cal.Rptr.2d (interpreting In Pacheco v. (Ct.App.1985), practice preempting this as this in Cali USFSPA 40-4-20(A) fornia). applied wording in the the con- The of House Commit military report affirmatively benefits. tee does not text demonstrate appeal “posi- in question present preemption the Mexico law is central is the New positively required preemption Congress in this required by tively direct enactment” law in this context. of New Mexico context. timing of amendments to USFSPA the 1990 Congress general- I do doubt that changes in statutory California coincides with reopen- from ly stop state courts intended to (in lieu of equitable law which allow taking for the ing divorce decrees undivided previously equal) distribution from rights military pay retired property a de proceedings where divorce property rights to transferring those an individual and in the reopened, a feature not found cree is rights her former when his or es which has remained Mexico statute New property of already separate had become Compare sentially unchanged since by operation of state that individual either (codified 1105, § 2 ch. as 1989 Cal.Stat. language in a express a or as result law (West § 2556 amended at Cal.Fam.Code Reppy, su- pre-McCarty decree. See N.M.Laws, 1994)) 62, § 31 with ch. (discussing legislative pra, n. 33 953-54 40-4-20(A)); (codified § see amended at as USFSPA). However, legisla- history of (citing Reppy, supra, at n. 28 Cali also history opinion does on which the relies tive change major example statute as fornia to result support prediction a what divisibility an a claim “from 50-50 to to to specifically regard intended 50%”). light In equitable greater than share marital-property laws under the New Mexico differences, agree I do not of these particular, this In circumstances of case. Congress positively required New Mexico “[tjhere suggest is little to writer pre courts refrain from Report deprive intended Committee under Section 40-4- divorce decree military ex-spouse of an affir- member’s 20(A) in in mili order to divide an interest merely implement remedy that would mative parties tary pay which the held retired rights in her property previously vested the divorce. tenants common after (footnotes Id. at 960-61 the divorce decree.” omitted). plain language Para 37.Under statutory language and the 35. Both the 1408(c)(1),a is not graph New Mexico court history speak in broad military awarding share prohibited from terms that courts with task leave couple’s pay former retired to a sorting significant differ out the subtle but pay com retired among property marital ences laws munity property during marriage, applies. fifty states to which USFSPA effectively treated this inter divorce decree case, between New such differences exist by changing its from undivided est status longstanding community tradition of Mexico’s common, community tenancy developments recent in the property law and effectively the divorce decree reserved courts, upon majority so California which further treat re See, heavily e.g., Stephens v. Ste relies. partition tired in a later action 3,1, phens, separate tenancy in common and award (1979) adopt (declining concept “quasi- Lee, spouse. Walton v. shares each Cf. community property” California embodied (un (Tex.Ct.App.1994) S.W.2d statute). Thus, if one infers that the refer automatically Texas courts treat der House ence to the California to treat inter reserve means, Committee laws est in virtue of developments preempt wanted to certain governing ownership property, of undivided law, it follow that Con California does not precluded by subsequent partition is not gress required of positively preemption the Glenn, law); Southern v. 677 S.W.2d marital-property law. New Mexico 576, (Tex.Ct.App.1984) (quoting a dictio Further, nary meaning “to deal the definition of “treat” as

36. historical circumstances subject”); development Security a Escrow regarding of California mar- with matter or Congress Corp. Dep’t, 107 at the was v. Taxation & Revenue ital-property law time 1306, (Ct.App. considering 1990 amendments to USFS- N.M. 1988) (“Unless legislature dif- indicates a support do the inference that PA also not intent, give statutory originally ferent we must words when the statute en decrees ordinary meaning.”). acted, H.R.Conf.Rep. their see No. at 167-68 (1982), reprinted in 1982 .C.A.N. U.S.C 38. This conclusion is consistent with necessary the 1990 amendments were protecting USFSPA’s the eco interpreting because some courts were not spouses by nomic interests of former “‘re in USFSPA accordance with drafters’ the. moving pre-emption the federal found to ex ” original H.R.Rep. intent. No. at See McCarty, ist’ in at (“[S]ome 1990 U.S.C.C.A.N. at 3005 Walentowski, at at 2743. state courts have been less than faithful .Rep. 97-502, (quoting at 659 S No. at law.”); spirit their adherence to the (1982), reprinted in 1982 U.S.C.C.A.N. Reppy, supra, (citing n. at 960 Missouri 1596, 1611). USFSPA, enacting In interpretation of as court’s USFSPA 1988 recognized unique that “the status of the example of what the 1990 amendments military spouse’s great spouse and that con sought abrogate). require tribution to our defense that military spouse status of the be acknowl 40. New Mexico courts never were cited edged, supported protected.” S.Rep. being among those which failed to inter- 97-502, No. reprinted pret at congres- in accordance with USFSPA Moreover, at spirit U.S.C.C.A.N. 1601. found sional intent. protection “frequent protect parties’ is needed because property rights law is to change-of-station special divorce, pres moves and the following then should disfa- placed military sures vor a as a construction of extremely homemaker make it difficult to USFSPA which terminates the interest pursue affording a career security, military economic retired that a former job pension protection.” skills and Id. as a hold tenant common under New community property Mexico law. Such 39. The 1990 amendments to USFSPA construction could result in an unconstitu- findings modify did not alter these or these protection taking tional equal denial of or a important H.R.Rep. considerations. See No. private property public use without 101-665, at reprinted Const, just compensation. See U.S. amends. (stating U.S.C.C.A.N. at 3005 that 1990 “[Wjhen V, XIV; Reppy, supra, at 964-73. amendment “is balancing consistent with the one of two constructions raises substantial of state and federal interests that has been problems unconstitutionality, the other inception”). the hallmark of this law since its adopted.” Reppy, supra, construction is at Rather, legislative history amendments demonstrates an to clari- intent fy statutory language Finally, “public policy so that courts considerations interpret pre- would not permitting removal favor the states to define a [for- emption McCarty spouse’s found to exist as the mer]

creation of new federal to retroactive- and do favor a benefits” construction ly 1408(e)(1) deprive only retired service members their serves to de- separate property. prive less-ably Pub.L. repre- No. “older and advised or (entitled 555(a), § spouses” 104 Stat. at 1569 “Prohibi- sented of the benefit [former] Orders”); tion of marital-property routinely ap- Certain Retroactive Court laws that (6th ed.1990) Curtis, Dictionary Law ply Marriage Black’s re others. cf. (defining Cal.Rptr.2d general “retroactive laws” at as “those which 153. The rule estab- away impair rights acquired take vested lished is that the division laws”); existing Reppy, supra, under under state marital- (“The preempted. excep- House Committee ... sees laws reopenings general rule-only applies Amendment addressed tion to this to cer- disturb a final decree left tain which divorce decrees were finalized be- pen- member as sole owner of fore was decided in sion.”). 1408(c)(1). Although Congress Holding present § recognized case pre-McCarty general limitation on falls under the rule than the rather only divorce de can those exception affect New Mexico apply

crees expressly divide a com do not

munity en during marriage, and were

earned in 1969 LeClert decision

tered between the then McCarty decision in 1981—and

and the

only petition reopen the decree was if the applicable time limitation.

brought within the

Thus, petition in a determination that Wife’s require these present meets all of case necessarily scope limited

ments ‘major damage’ “do to ‘clear and

would not Hisquierdo, federal interests.”

substantial’ (quoting at 808 99 S.Ct. Yazell,

United States v. 382 U.S. (1966)). 507, 15 L.Ed.2d 404 retire- I would find that the award of preempted

ment benefits is majority decides other-

law. Because the

wise, respectfully dissent. I

1998-NMCA-051

Crystal KENNEDY, Plaintiff-Appellee, SCHOOLS,

DEXTER CONSOLIDATED Warren, Perry, Kent Rodri

Donald Sue Derrick,

guez Defendants- and James

Appellants.

Randy FORD, Plaintiff-Appellee, SCHOOLS,

DEXTER CONSOLIDATED Warren, Perry Kent and Jim

Donald

Derrick, Defendants-Appellants.

No. 17710. Appeals New Mexico.

Feb. April

Certiorari Granted

Case Details

Case Name: Hennessy v. Duryea

Court Name: New Mexico Court of Appeals

Date Published: Jan 14, 1998

Citation: 955 P.2d 683

Docket Number: 17317

Court Abbreviation: N.M. Ct. App.