Dаvid Doyle RICE, Plaintiff-Appellant, Cross-Respondent, v. Florence Louise RICE, Defendant-Respondent, Cross-Appellant.
No. 13496.
Supreme Court of Idaho.
May 5, 1982.
645 P.2d 319
(c) The protection оf the public interest. There is no indication in the record that Stormoen would have a tendency to commit similar crimes in the future. However, the public interest lies not only in being safe from future crimes, but to some extent in seeing that punishment is imposed for crimes committed. See State v. West, 102 Idaho 562, 566-567, 633 P.2d 1140, 1144-45 (1980) (Bistline, J., dissenting); State v. Wolfe, supra. The public interest in retribution is certainly furthered by the sentence imposed.
As defense counsel has eloquently pointed out, the crime for which Stormoen was sentenced resulted from an unfortunate combination of alcohоl, jealousy and frustrated human emotions—a combination which proved to be lethal for Susan Stormoen. Wallace Stormoen‘s problem was not that he loved his wife too little, but rather that he loved her too much. The tragic consequences of this bond are not without ironic overtones. Unfortunately, those consequences cannot be reversed or corrected.
After a thorough review of the record, and particularly in view of the violent crime committed, we conclude that thе district court did not abuse its discretion in sentencing Wallace Stormoen to the custody of the State Board of Correction for an indeterminate term of not to exceed life imprisonment.
Sentence affirmed.
BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.
SHEPARD, J., concurs in the result.
Robert M. Robson, Boise, for plaintiff-appellant, crоss-respondent.
Merrily Munther of Elam, Burke, Evans, Boyd & Koontz, Boise, for defendant-respondent, cross-appellant.
This is an appeal from a decree of divorce in which the wife was awarded a community property interest in the husband‘s military retirement pay. The sole issue presented here is whether it was correctly determined that military retirеment pay can constitute community property, capable of being apportioned in part to a spouse upon divorce. We reverse.
David Rice entered the United States Air Force in 1942. He and Florence Rice were marriеd in Kansas in 1949. They lived at military stations throughout North America until he retired from the Air Force in 1967 in Illinois. Thereafter the parties moved to Idaho.
In 1976, David Rice filed suit for a divorce in Idaho. The magistrate court granted a divorce but that court held that the husband‘s military retirement pay was his separate property. That holding was based on the court‘s conclusion that Florence Rice had failed to establish that the military retirement pay was acquired in a community property jurisdiction. The remaining propеrty was held to be community and divided between the parties. Florence Rice appealed the decision of the magistrate court to the district court.
Upon appeal, the district court, in a well reasoned decision, held that the magistrаte court had erred in concluding that the military retirement pay was separate property. The district court concluded that even if the military retirement pay was acquired in a common law jurisdiction, i.e., Kansas or Illinois, Florence Rice nevertheless was entitled under the law of those jurisdictions to a share of the military retirement pay. Hence Florence Rice was awarded a portion of the military retirement pay. In that appeal to the district court, David Rice also сontended that the magistrate court decision should be affirmed on the basis that state law regarding military retirement pay was preempted by federal law and hence
Following the proceedings in lower courts, but prior to oral argument before this Court, the opinion in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), was issued by the United States Supreme Court. However much an invasion of the area of family law traditionally reserved to the jurisdiction of the courts of the several states, it is, nevertheless, clear that therein the Court held that Congress has preempted the area and state courts are precluded from applying community property principles and dividing military retirement pay in divоrce actions. However much we may disagree with the decision in McCarty, we are nevertheless bound to follow and apply it. Hence, we are required to overrule Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), insofar as it conflicts with McCarty, and we reluctantly conclude in the instant case that military retirement pay must be held to be the separate property of David Rice and not subject to division between the parties in this divorce action.
It is argued by Florence Rice that the district court in the instant case determined that the retirement pay was marital prоperty under the common law rules in Kansas and Illinois, and since McCarty applies only to community property it is not applicable here. We disagree. We find no indication in McCarty that it is intended to disable only the eight community property states from dividing military retiremеnt pay, while allowing the remaining 42 states to do so. While it is correct that McCarty is couched in the terms of community property jurisdictions, the broad language of the opinion clearly holds that state courts may not interfere with the retiree‘s receipt of military retirement pay. See also Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), which holds that the law of Maine, a common law jurisdiction, has been preempted by congressional enactments governing the Servicemen‘s Group Life Insurance Act.
Respondent Florence Rice further asserts that the holding of McCarty should be applied only prospectively and thus applied to and include only those actions tried after the date of the McCarty decision, i.e., June 26, 1981. The issue of retroapplication of an intervening ruling is far from settled. Compare State v. Mendibles, 125 Ariz. 7, 606 P.2d 825 (Ct.App.1979), which states, “As a general rule, an overruling decision is given retroactive effect unless there are special circumstances warranting the denial of retroactive application or unless the overruling court has expressly indicаted otherwise“, with Reed v. Reed, 124 Ariz. 384, 604 P.2d 648 (Ct.App.1979), wherein it is stated, “It is the general rule that unless exceptional circumstances are shown, court decisions will be given only prospective application.” Both this Court, Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975); Thompson v. Hagen, 96 Idaho 19, 523 P.2d 1365 (1974), and the United States Supreme Court, Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), hold that the issue ordinarily is a matter of discretion with the overruling сourt. We note that McCarty itself is no guidance on the issue. Here appellant raised the precise issue of federal preemption before the district court, and we hold therefore that the appellant, David Rice, has preserved the issuе on appeal to this Court. Hence the cause, not having been finally decided, and the issue being preserved before this Court, the application of McCarty to the instant cause is not correctly denominated as a retroactive application. See Sheldon v. Sheldon, 177 Cal.Rptr. 380, 124 Cal.App.3d 371 (1981); Jacanin v. Jacanin, 177 Cal.Rptr. 86, 124 Cal.App.3d 67 (1981).
The cause is remanded to the district court for additional proceedings. The district court, on the basis of the record made in the magistrate court, concluded that the magistrate court‘s decision did not divide the property of the parties in a just and reasonable fashion. See
No costs allowed.
BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.
BISTLINE, Justice, concurring and dissenting.
I.
I agree with the Court that we are bound by the Supreme Court‘s decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Accordingly, the appellate district court decision must be reversed and the correct trial court decision of Judge L. Allan Smith should be reinstated. Although I bеlieve that it may be appropriate to afford more protection to a former spouse of a retired service member, “Congress has weighed the matter and ‘[i]t is not the province of state courts to strike a balance different from the one Congress has struck.‘” 453 U.S. at 236, 101 S.Ct. at 2743 (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 590, 99 S.Ct. 802, 813, 59 L.Ed.2d 1 (1979)).
II.
The Court in this case states that “[t]he district court, on the basis of the record made in the magistrate court, concluded that the magistrate court‘s decision did not divide the property of the parties in a just and reasonablе fashion.” From that premise it is said to follow that this case should be remanded to the district court, so that “[t]he district court may take additional evidence” and enter a judgment “dividing the community property in such a method and proportion as it deems just.” I cаnnot agree, however, that this case on reversal of the district court appellate judgment should be remanded with such directions. Moreover, my initial view had been that we should simply reverse and remand to the appellate district court for reconsideration in light of McCarty, and allow a new district court opinion to emanate, just as this Court was recently accorded the same courtesy by the United States Supreme Court in Asarco, Inc. v. Idaho State Tax Commission, 445 U.S. 939, 100 S.Ct. 1333, 63 L.Ed.2d 773 (1980). In the same vein, I venture that the taking of additional evidence should be left tо the magistrate trial court, rather than the appellate district court.
The sole issue before the district court, as stated by the district court in its Memorandum Decision of August 22, 1978, was “the propriety of the magistrate‘s award of certain property, to wit, а military retirement pension, to the plaintiff-respondent as his separate property.” The district court stat
III.
At the same time I do not entertain the same disenchantment with the McCarty opinion as seems to flavor the Court‘s opinion in this case, other than I think it regrettable that the Court did not tackle the issue earlier. It must also be noted that the dissenting opinion of Justice McQuade in Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), properly overruled today by the Court (in which I concur) insofar as it conflicts with McCarty, anticipated the Supreme Court‘s opinion in McCarty and very well may have served as the prototype for the opinion authored by Justice Blackmun and concurred in by five other justices. As Justice McQuade wrote seven years ago that a state cаnnot rewrite Congressional declarations, so has Justice Blackmun added: Nor can the Supreme Court. Rather, “Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone.” 453 U.S. at 236, 101 S.Ct. at 2743.
Judicial restraint is a commendable virtue.