Nieman v. Nieman
673 P.2d 396
Idaho
1983
Check Treatment
PER CURIAM.

On March 6,1973, LeRoy Nieman obtained a default divorce decree from his wife Erna based on a complaint which did not mention LeRoy’s entitlement to military retirement pay. Accordingly, rights to that asset were not adjudicated. Several years later, following this Court’s decision in Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), Erna Nieman petitioned the district court to divide the militаry retirement pay. The district court noted that the military retirement pay had not been part of the eаrlier property distribution, and held that such was community property pursuant to this Court’s decision in Ramsey, supra, (military retirement bеnefits community property subject to division between the parties upon dissolution of the marriage). By judgment dated October 26, 1977, the court awarded Erna $95,365 in a “lump sum, or in such manner as the parties might agree upon.” R., p. 44. Nеither party appealed. LeRoy thereafter executed a stipulation with Erna which directed thаt 43.5 percent of his monthly military retirement benefits be paid Erna through the district court. R., p. 45. 1 Such was being done when, in Junе of 1981, the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), held that military retirement benefits are not subject .to division as community ‍​​​‌‌‌​‌‌‌​‌‌​​​​‌​‌‌​​‌​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌​‌‌​​‍property. LeRoy thereupon moved under I.R.C.P. 60(b)(4), (5) and (6) 2 to set aside the district court’s 1977 decree. However, his prinсipal argument before the court was that the 1977 decree was either void under the McCarty ruling or was not a final judgmеnt. The court denied LeRoy’s motion on the grounds that the 1977 decree was res judicata, hence, not subject to being vacated or modified. That determination led to this appeal.

I.R.C.P. 60(b) provides that “on motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ... (4) the judgment is void .... ” The Second Circuit Court of Appeals interpreted the comparable federal rule in Marshall v. Board of Education, 575 F.2d 417, 422 (1978), as providing relief from void judgments if the court that rendered the judgmеnt lacked subject matter jurisdiction or in personam jurisdiction, or if the decree granted relief which was not within the powers of ‍​​​‌‌‌​‌‌‌​‌‌​​​​‌​‌‌​​‌​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌​‌‌​​‍the court. The court stated that “a judgment is not void and is therefore not within the ambit of 60(b)(4) simply bеcause it is erroneous, or is based upon precedent which is later deemed incorrect or unсonstitutional.” Id. See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). We follow this reasoning; that this Court’s 1975 decision in Ramsey was subsequently shown to have been erroneous in light of the 1981 McCarty decision does not render void the district court’s 1977 determination based on the 1975 Ramsey holding. 3

I.R.C.P. 60(b)(5) provides that the court may relieve a party ‍​​​‌‌‌​‌‌‌​‌‌​​​​‌​‌‌​​‌​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌​‌‌​​‍from a final judgment if “it is no longer equitаble that *798 the judgment.should have prospective application.” We are not persuaded of any error on the part of the district court in not relieving LeRoy from the effect of the 1977 judgment because оf McCarty, or upon any other equitable grounds.

LeRoy argues that the district court’s 1977 decree was not a final judgment and so should not have been given res judicata effеct by the court upon LeRoy’s motion to amend. His argument is based on two premises. The first premise is that, beсause the court’s 1977 decree provided that Erna be awarded $95,367:

“in a lump sum, or in such manner as the partiеs may agree upon. If the parties are unable to reach an agreement then the court will awаrd to [Erna] a judgment for the amount of the award to be executed upon at such times and in such manner as to her seems most.expedient.”

the judgment rendered was not final until April of 1982 when the order was entered denying LeRoy’s motion to amend the 1977 judgment. However, it is readily seen that LeRoy’s stipulation of May 17, 1978, reciting that “On October 26, 1977, the above entitled court awarded judgment for the defendant against the plaintiff for the sum of $95,367.00,” and further that “if said рayments are faithfully made by plaintiff, ‍​​​‌‌‌​‌‌‌​‌‌​​​​‌​‌‌​​‌​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌​‌‌​​‍to be credited upon said judgment, in the manner aforesaid, then defendant shall not executed upon said judgment and payments made accordingly till the death of plaintiff shall be dеemed satisfaction of said judgment ...” R., pp. 45-46, cuts against his position. Our review of the record sustains the lower сourt’s determination that the district court's 1977 decree was a final judgment and thus was to be given res judicata effect as the court held.

LeRoy’s second premise was that the 1977 judgment was not final because it would not have supported a writ of execution. We nеed not pass on that contention because of the stipulation of the parties to the manner оf payment. We are not called upon to decide, nor do we, what procedures Erna might employ should LeRoy violate his agreement to transmit his military retirement checks to the clerk of the court for thе clerk’s disposition in accordance with the agreement.

The district court order is affirmed. Costs to resрondent. No attorney’s fees are awarded on appeal.

Notes

1

. The stipulation recited the 1977 judgment for $95,367 and LeRoy’s inability to pay it in a lump sum, and his willingness to pay some of his retirement check to Ema so long as hе lives. R., p. 51-52.

2

. LeRoy’s appeal to this Court is premised only on I.R.C.P. 60(b)(4) and (5).

3

. Although this Court’s decision in Ramsey was in effect overruled by the ‍​​​‌‌‌​‌‌‌​‌‌​​​​‌​‌‌​​‌​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌​‌‌​​‍United States Suрreme Court in McCarty, Congress effectively overruled McCarty by the passage of Public Law 97-252 (10 U.S.C. § 1408(c)(1) which provides that:

“A court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, [the day prior to the McCarty decision] 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." (Emphasis added.)