77 N.C. App. 381 | N.C. Ct. App. | 1985
In her first assignment of error, defendant contends the court erred in finding as fact that plaintiff had no obligation to presently designate defendant as beneficiary under the annuity plan. This more closely resembles a conclusion of law. A finding which is designated as a finding of fact, but in character is essentially a conclusion of law, will be treated as a conclusion of law on appeal, Britt v. Britt, 49 N.C. App. 463, 271 S.E. 2d 921 (1980), and is reviewable de novo upon appeal. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E. 2d 189 (1980).
The parties’ contentions on this appeal may be summarized as follows. When plaintiff agreed in the separation agreement permanently to convey his annuity plan to defendant notwithstanding a subsequent divorce, and further agreed to clarify this requirement in the consent order, he did so knowing that the federal law at that time prohibited him from naming defendant as beneficiary after a divorce was obtained. Defendant’s contention is that although she may have known that the applicable federal statute would prohibit such a designation, she nevertheless believed that plaintiff could validly contract to continue to designate her as beneficiary despite the federal statute.
The applicable federal statutes as amended clearly provide that plan members can voluntarily elect to designate a former spouse as beneficiary. 10 U.S.C. 1448(b)(3)(A) provides:
A person —
(i) who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and
(ii) who has a former spouse who was not that person’s former spouse when he became eligible to participate in the Plan.
may (subject to subparagraph (b)) elect to provide an annuity to that former spouse. Any such election terminates any previous coverage under the Plan and must be written, signed by the person, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.
Nothing in this chapter authorizes any court to order any person to elect under Section 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such election. 10 U.S.C. 1450(f)(4).
Plaintiff husband argues that because the provisions in the separation agreement and consent decree relative to retirement benefits were prohibited by statute at the time these documents were executed, they cannot be validated by amendment to the statute. We disagree.
While the general rule is that the law at the time of the making of the contract governs and a bargain illegal on account of a statute existing at the time is not rendered enforceable by subsequent repeal of the statute, a contrary result obtains when the repealing statute expressly provides for retroactive application to existing contracts, or if the court finds an implication to that effect. 6A Corbin, Corbin on Contracts, § 1532 (1962).
In our view, the clear implication of the amendments to Title X of the United States Code was to correct manifest injustice and unfairness in situations such as the one at bar. The short title for these 1982 amendments to Title X is Uniform Services Former Spouses’ Protection Act. To adopt plaintiffs contention would eviscerate the language of the amendments. If Congress did not intend that the amendments would apply to contractual agreements entered into prior to the effective date of the statute, there would have been no need for Public Law 98-94 Section 941(1) which provided that the one year period from date of the decree of divorce, dissolution or annulment for electing, in 10 U.S.C. 1448(6)(3)(A), would begin to run on the date of the enactment of the Act, 24 September 1983, with respect to a person defined in that subsection. The reference to a spouse and dependent children vis-a-vis a former spouse obviously contemplates an existing marriage with the marriage to the former spouse having been dissolved prior to enactment of the amendments. Moreover, there is no language defining a former spouse as someone who becomes a former spouse subsequent to the effective date of the amendments.
In view of the foregoing, we hold that under applicable North Carolina law, the separation agreement and consent decree constitute a voluntary agreement in writing to make the election.
Because we hold that the court erroneously concluded that plaintiff had no obligation to presently designate defendant as beneficiary under the survivor’s benefits plan, we need not address the remaining assignments of error. The order appealed from is reversed and the case remanded for entry of an order consistent with this opinion.
