DUKE VS. DUKE (RETIREMENT DIVISION)

Key holdings

Practitioner summary

The issue was whether McCarty v. McCarty, 453 U.S. 210 (1981), applies retroactively to disturb a final, unappealed divorce decree, and the court held that it does not. The July 18, 1980 decree awarded the respondent 35 percent of the appellant's military retirement pay as community property and directed the appellant to execute a permanent Air Force allotment; the appellant neither executed the allotment nor appealed the decree. When the respondent moved for a judgment of arrearages in June 1981, the appellant countered with a motion to modify, arguing that under McCarty the district court lacked power to enforce the retirement-pay award. The district court denied the motion. McCarty held that military retirement benefits are not divisible as community property in state-court divorce decrees. However, nothing in McCarty suggested the Supreme Court intended the decision to apply retroactively to invalidate or render unenforceable prior valid and unappealed state decrees. The court joined the clear majority holding that McCarty does not alter the res judicata consequences of a divorce decree that was final before McCarty was filed. See Erspan v. Badgett, 659 F.2d 26 (5th Cir. 1981); In re Marriage of Fellers, 178 Cal. Rptr. 35 (Ct. App. 1981); In re Marriage of Sheldon, 177 Cal. Rptr. 380 (Ct. App. 1981). Persuaded by the rationale of those cases, the court held the district court did not err in denying the motion to modify and affirmed; other contentions were found without merit.

In plain language

When Forrest and Dicksie Duke divorced, the district court's July 1980 decree awarded Dicksie 35 percent of Forrest's military retirement pay as community property, and ordered Forrest to set up a permanent allotment with the U.S. Air Force so Dicksie's share would be sent directly to her. Forrest never set up the allotment, and never appealed the divorce decree. In June 1981, Dicksie asked the court for a judgment for the arrearages (the unpaid share of the retirement benefits Forrest owed her). Forrest fought that request and filed his own motion to modify the decree. He argued that a recent U.S. Supreme Court decision, McCarty v. McCarty, meant the district court no longer had the power to enforce the part of the decree giving Dicksie a share of his military retirement pay. (McCarty had held that state courts may not divide military retirement benefits as community property.) The district court denied Forrest's motion, and he appealed. The Nevada Supreme Court affirmed. It held that McCarty does not apply retroactively to disturb a divorce decree that was already final and unappealed before McCarty was decided. Nothing in McCarty suggested the U.S. Supreme Court meant it to invalidate earlier, valid, unappealed state decrees, and most courts had held that McCarty does not change the res judicata (finality) effect of a decree that became final before McCarty. Because the Dukes' decree was final and never appealed, the district court correctly refused to modify it, and Dicksie remained entitled to enforce her 35 percent share.