BURTON VS. BURTON (RETIREMENT DIVISION)

Key holdings

Practitioner summary

This appeal presented a threshold jurisdictional question and a remand request arising from the post-McCarty statutory landscape. The decree, entered June 18, 1982, confirmed the respondent's military retirement benefits as separate property - a disposition proper under McCarty v. McCarty, 453 U.S. 210 (1981) (state courts precluded from dividing federal military retirement benefits under community property law). Congress then enacted the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. sec. 1408 (1982), and the Nevada Legislature enacted 1983 Nev. Stats. ch. 301, sec. 1, at 740 (effective May 15, 1983), permitting former military spouses divorced between June 26, 1981, and January 31, 1983, to request modification of the adjudication of property rights to determine rights to support or a military pension. The court first addressed appealability under NRAP 3A(b), noting that where no authority to appeal is granted, no right exists. Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975); Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961). NRAP 3A(b) authorizes appeals from special orders made after final judgment (excepting NRCP 60(b)(1) orders). Recognizing that not all post-judgment orders are appealable - a post-judgment order must "affect the rights of the parties growing out of final judgment," Wilkinson v. Wilkinson, 73 Nev. 143, 311 P.2d 735 (1957); Tardy v. Tarbell, 54 Nev. 342, 16 P.2d 656 (1932) - the court drew a distinction for orders denying motions to modify premised on changed factual or legal circumstances arising after judgment, where the movant is not attacking the original judgment. In that context the denial is the only adjudication of the facts and law raised and is appealable. See Brooks v. Abbott, 59 Cal. Rptr. 911 (Ct. App. 1967); Raff v. Raff, 393 P.2d 678 (Cal. 1964); Carrow v. Carrow, 294 S.W.2d 595 (Mo. Ct. App. 1956). The court noted this accorded with its practice of reviewing the merits of orders denying modification of divorce decrees. See Walport v. Walport, 98 Nev. 301, 646 P.2d 1215 (1982); Duke v. Duke, 98 Nev. 148, 643 P.2d 1205 (1982); Waldman v. Waldman, 97 Nev. 546, 635 P.2d 289 (1981); Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951); cf. Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139 (1931). Because appellant asserted a changed circumstance of law (the new federal right to seek retroactive division) occurring after judgment, the denial was an appealable special order after final judgment. On the merits of the unopposed motion to remand, the court inferred that the district court most likely denied modification on jurisdictional grounds, and, the Legislature having now expressly granted such jurisdiction, remanded for consideration of the motion in light of the new federal and state law. The opinion constituted final disposition of the appeal, with any challenge to the ruling on reconsideration to be raised in a new appeal.

In plain language

Phyllis Burton and Jimmie Burton were divorced in June 1982. Their divorce decree treated Jimmie's military retirement benefits as his own separate property, which was the correct result at the time under a 1981 U.S. Supreme Court decision (McCarty v. McCarty) that barred state courts from dividing federal military retirement pay as community property. After the divorce, Congress changed the law. It passed the Uniformed Services Former Spouses' Protection Act, which again allowed state courts to divide military retirement benefits under state law. The Nevada Legislature then passed its own law, effective May 15, 1983, letting former military spouses who had divorced during a specific window (June 26, 1981 to January 31, 1983) go back to the district court and ask to have the property division re-examined to determine their rights to support or to a share of the military pension. Phyllis had filed a motion to modify her divorce decree, which the district court denied (most likely because it believed it had no power to change the decree). She appealed. While the appeal was pending, the new Nevada statute took effect, and she asked the Supreme Court to send the case back to the district court so it could reconsider under the new law. Before granting that request, the Supreme Court had to decide whether it even had the power to hear an appeal from an order refusing to modify a divorce decree. The court held that it did. It explained that when a party seeks to modify a decree based on a change in facts or law that happened after the divorce - and is not just re-attacking the original judgment - the denial is an appealable "special order made after final judgment." Because Phyllis was pointing to the new federal and state laws, her appeal was proper. The court then granted her unopposed motion and sent the case back so the district court could reconsider the property division under the new statutes.