In the Matter of the Marriage of JOSEPH J. KONZEN, Petitioner, and GERALDINE H. KONZEN, Respondent
No. 50402-4
En Banc.
January 11, 1985
Rehearing denied February 15, 1985
103 Wn.2d 470 | 693 P.2d 97
DIMMICK, J.
Yet, the trial judge admitted the affidavit, stating the objection went to its weight and not admissibility. This was prejudicial error. We cannot say that this error did not affect or presumptively affect the outcome of the motion, Brown v. Spokane Cy. Fire Protec. Dist. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983).
CONCLUSION
Orion has administrative remedies available to request the development of its prоperty. The majority here, by its decision in ruling Orion need not exhaust its administrative remedies, establishes a dangerous precedent which, in effect, emasculates the Shoreline Management Act of 1971,
I would also hold that it was prejudicial error to admit the Buck affidavit upon which the trial judge based much of his reasoning in sweeping aside the doctrine that administrative procedure should be exhausted before seeking relief in court.
Shiers, Kamps, Love & Chrey, by Wm. J. Kamps, for petitioner.
DIMMICK, J.—This appeal challenges the trial court‘s award of a portion of petitioner‘s military retired pay to his former spouse where that military retired pay accrued prior to their marriage and was his separate property. We hold that the trial court had the authority to make such an award and did not abuse its discretion in so doing.
Prior to Joseph and Geraldine Konzens’ marriage on June 22, 1970, Mr. Konzen had retired from a 25-year career with the United States Navy. This was a second marriage for each party. At the time of trial, he was receiving $1,653 per month in military retired pay. Although both parties were unemployed at the time of trial, the trial court found that Mr. Konzen had a substantially and disproportionately greater earning capacity than Mrs. Konzen. Mr. Konzen holds an undergraduate degree and a master‘s degree. Until just prior to trial, he had worked as a manager for the Kitsap Golf and Country Club. Mrs. Konzen has not completed high school. She has worked occasionally as a waitress and a retail clerk. Both parties have health problems. Mr. Konzen suffers from a vascular рroblem which causes his right leg to bleed after prolonged sitting or standing. Mrs. Konzen is a recovering alcoholic.
A final decree of dissolution was entered on September 26, 1980. The trial court characterized Mr. Konzen‘s military retired pay as his separate property. The rest of the parties’ property was characterized as community property. The trial court apportioned the Konzens’ community property approximately equаlly. In addition, it awarded 30 percent of Mr. Konzen‘s military retired pay to Mrs. Konzen. The trial court based the property division on the economic circumstances of the parties. In its oral opinion, it stated that it had chosen to award a portion of Mr. Konzen‘s separate property, rather than a disproportionate share of the community property, to Mrs. Konzen because the military retired pay was a more liquid asset.
Petitioner herein contends that the trial court lacked subject matter jurisdiction over his military retired pay. We disagree. The trial court acted within its authority when it awarded a portion of the petitioner‘s military retired pay to his former wife. Wilder v. Wilder, 85 Wn.2d 364, 366-67, 534 P.2d 1355 (1975). While the Konzens’ аppeal was pending, the United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981) that state courts could not divide military retired pay as part of a property division in a dissolution. However, nothing in McCarty indicates that it was intended to divest the state courts of jurisdiction over military retired pay. McCarty merely changed the rule of law to prohibit the division of military retired pay as community or marital property. In re Marriage of Brown, 98 Wn.2d 46, 49, 653 P.2d 602 (1982); In re Marriage of Smith, 98 Wn.2d 772, 774, 657 P.2d 1383 (1983). Accord, In re Marriage of De Gryse, 135 Ariz. 335, 338, 661 P.2d 185, 188 (1983).
Even under McCarty, the trial court would have had jurisdiction over Mr. Konzen‘s military retired pay as his separatе property.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) now allows state law to control the division of military retired pay as part of a property settlement in a
Petitioner next argues that the award was improper under the USFSPA. He interprets the USFSPA to allow state courts to award a portion of military retired pay as part of a property division only if the parties’ marriage has lasted for more than 10 years during the service member‘s military career. In dicta, this court has referred to such a limitation in the USFSPA. In re Marriage of Smith, at 323. See also In re Marriage of Wood, 34 Wn. App. 892, 893, 664 P.2d 1297 (1983).
However, this issue is raised directly for the first time in this case. In In re Marriage of Smith, the parties had been married for almost 20 years, most of which were during the husband‘s military career. The Konzens were married for slightly more than 10 years, but were not married during any part of Mr. Konzen‘s service in the Navy.
Petitioner relies on language in section 1408(d)(2) of the USFSPA which states:
If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in detеrmining the member‘s eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.
However, it is not clear from the structure of the statute whether this 10-year requirement applies to every division of property authorized under section 1408(c) or only to
The legislative history clearly indicates that Congress did not intend to limit the application of the USFSPA to marriages lasting over 10 years during the service member‘s military career.
The Department of Defense had urged the Senate to adopt such a 15-year requirement, but this recommendation was rejected in committee. S. Rep. No. 502, 97th Cong., 2d Sess. 9-10, reprinted in 1982 U.S. Code Cong. & Ad. News 1596, 1604-05. The USFSPA as originally passed by the House had been amended to limit its application to marriages lasting more than 10 years. 128 Cong. Rec. H4726, H4736 (daily ed. July 28, 1982) (Nichols amendment). Section 1408(c)(1) of the original House version stated:
Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning on or after June 26, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court if the spouse was married to the member for a period of not less than 10 years during which the member performed at least 10 years of service which is creditable in determining the member‘s eligibility for retired or retainer pay, or equivalent pay, as a result of his sеrvice in any of the uniformed services.
128 Cong. Rec. H4726. The language in section 1408(c) limiting the application of the USFSPA to marriages lasting more than 10 years during the service member‘s military career was deleted in the conference committee. H. Rep. No. 749, 97th Cong., 2d Sess. 166-67, reprinted in 1982 U.S. Code Cong. & Ad. News 1570, 1572. The conference report states:
As passed, section 1408(c)(1) of the USFSPA states:
Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.
This interpretation of the USFSPA is in accord with rulings in other jurisdictions. A number of сourts have made reference to a 10-year requirement in the USFSPA. However, in each of these cases the marriage under consideration had lasted for more than 10 years during the service member‘s military career and the issue was not squarely before the courts. In re Marriage of Smith, at 320; Coates v. Coates, 650 S.W.2d 307, 311 (Mo. Ct. App. 1983); In re Marriage of Costo, 156 Cal. App. 3d 781, 203 Cal. Rptr. 85, 89 (1984). Every court which has directly considered this issue has determined that a state court‘s authority to divide military retired pay is not limited to cases in which the marriage has lasted for more than 10 years during the sеrv-
The final issue raised by petitioner is whether the trial court abused its discretion in awarding a portion of petitioner‘s separate property, 30 percent of his military retired pay, to his former spouse. Petitioner relies on Bodine v. Bodine, 34 Wn.2d 33, 35, 207 P.2d 1213 (1949), in which the court stated that the situations which warrant an award of one spouse‘s separate property to the other spouse are “exceptional.” At the time Bodine was decided the statute governing the division of property in a divorce stated:
In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the conditions in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody, and support and education of the minor children of such marriage.
Rem. Rev. Stat. § 989. While both separate and community property have always been considered to be before the court in a dissolution action, it was not until the statute was revised in 1949 that the allocation of separate property was explicitly governed by statutory criteria. Laws of 1949, ch. 215, § 11, p. 701. Prior to this change the courts were free to weigh the character of the property more heavily than other factors when allocating separate property.
However the current statute specifically applies the statutory criteria to separate property.
In a proceeding for dissolution of the marriage . . . the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the
parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: (1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse having custody of any children.
(Italics ours.) This court will not single out a particular factor, such as the character of the property, and require as a matter of law that it be given greater weight than other relevant factors. The statute directs the trial court to weigh all of the factors, within the context of the particular circumstances of the parties, to come to a fair, just and equitable division of property. The character of the property is a relevant factor which must be сonsidered, but is not controlling. In re Marriage of Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977). The decision of the trial court will not be disturbed on appeal absent a manifest abuse of discretion. In re Marriage of Miracle, 101 Wn.2d 137, 139, 675 P.2d 1229 (1984). Under the circumstances of this case, we find no abuse of discretion.
Respondent‘s request for attorney‘s fees is denied.
WILLIAMS, C.J., and UTTER, DORE, PEARSON, and ANDERSEN, JJ., concur.
BRACHTENBACH, J. (dissenting)—The majority holds that a state court‘s authority to divide military retired pay is not limited to cases in which the marriage has lasted for more than 10 years during the service member‘s military career. Although policy considerations may favor this holding, it
Petitioner contends that the award of his military retired pay was improper under the Uniformed Services Former Spouses’ Protection Act (USFSPA). He interprets the USFSPA to allow state courts to award a portion of military retired pay as part of a property division only if the parties’ marriage has lasted for more than 10 years during the service member‘s military career.
Petitioner relies on language in
If thе spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member‘s eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.
(Italics mine.) Petitioner contends that the 10-year requirement of subsection (d)(2) is made applicable to the entire section 1408 by the language “under this section“. Therefore, he argues no division is proper under section 1408 unless the couple was married during at least 10 years of service.
The majority summarily concludes that an ambiguity exists as to whether section 1408(d)(2) applies to subsection (d) alone or to the entire section 1408. In this way the majority introduces the legislative history which becomes the basis for its analysis. The majority does not identify or discuss the ambiguity in subsection (d). Indeed, it cannot, because no ambiguity exists.
The intent of the Legislature must be determined pri-
In the present case, the language of subsection (d), paragraph (2) is plain and free from ambiguity. The 10-year requirement set forth here is clearly made applicable to the entire section 1408 by the language “under this section“. The majority‘s assertion that it could apply either tо the entire section 1408 or only to subsection (d) is simply not supportable under this language. “Section” is defined as a distinct part or portion of a writing as a subdivision of a chapter. Webster‘s Third New International Dictionary 2052 (1961). Section 1408 is within chapter 71 and is a subdivision of this chapter. Subsection (d) is a further division of section 1408; subsection (d) is not properly termed a “section“.
An examination of the statute itself is conclusive proof that the word “section” encompasses every part of section 1408(a) through (h). The introductory language states:
Sec. 1002. (a) Chapter 71 of title 10, United States Code, is amended by adding at the end thereof the following new section:
96 Stat. 730, Pub. L. No. 97–252 (1982). Thereafter there follows in quotation marks all of section 1408(a) through
The Legislature‘s use of the words “section” and “subsection” in the entirety of section 1408 supports the contention that the 10-year requirement of subsection (d)(2) applies to the entire section 1408. When construing a statute, courts must read the act as a whole and not piecemeal. State v. Parker, 97 Wn.2d 737, 649 P.2d 637 (1982); Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). Throughout section 1408 the Legislature used the term “section” to refer to the entire act. For example, the codification index of chapter 71 of Title 10 lists the sections of the chapter. Section 1408 is listed under the heading “sections“. We can therefore presume it knew to what that term correctly referred.
In addition, specific subsections are referred to. In section 1408(b)(1)(A) and in section 1408(f)(1) and (2) the term “subsection” is used to refer to subsection (h). In section 1408(d)(2) itself subsection (c) is referred to. In section 1408(d)(5) the division of paragraph is referred to, supporting further distinction between sections, subsections, and paragraphs. And most importantly, the subsection in question, subsection (d), is correctly referred to as “subsection” in section 1408(e)(1). It is obvious that the Legislature knew the difference between “section” and “subsection” and had it wanted to limit the 10-year requirement to subsection (d) it would have used the proper term.
If the majority is correct in its conclusion that the limitation in section 1408(d)(2) is limited only to direct payments made under sectiоn 1408(d)(1), then the whole act is rendered a shambles. For example, section 1408(a)(1)
In addition, section 1408(h) is utterly meaningless under the majority‘s analysis. In its entirety it provides: “[t]he Secretaries concerned shall prescribe uniform regulations for the administration of this section.” The majority‘s holding would limit such regulations to the administration of section 1408(h) which only authorizes the issuances of regulations.
Obviously, each subsection cannot refer solely to itself. The language “under this section” must refer to the entire section 1408 or the act is rendered useless. For example, the trial court disposed of the military pension by court order. The court order must fulfill the requirements of subsection (a)(2) before the military retired payments may be divided. The court order in this case is the very type of order section 1408 is designed to deal with. Then subsection (c) comes into play by announcing that suсh division is possible. And finally subsection (d) limits the division in various ways. The subsections are meant to work together and each is designed to apply to the entire section 1408.
It may well be that the conference report, cited by the majority, is what the members of the conference committee intended. However, that is not what the drafter of the bill itself put into the document ultimately passed.
The interpretation which applies the 10-year requirement of subsection (d)(2) to thе entire statute is reconcilable with the intent apparent in the remainder of the statute. The idea that the Legislature wanted to limit state courts’ authority to divide military retired pay to cases
Because there is no ambiguity in subsection (d) and the ordinary meaning applied to the questioned term is reconcilable with the remainder of the statute, I would hold that the 10-year requirement of subsection (d)(2) applies to the entire act. Therefore, I would reverse and remand.
DOLLIVER, J., concurs with BRACHTENBACH, J.
Reconsideration denied February 15, 1985.