TOMLINSON VS. TOMLINSON (RETIREMENT DIVISION)

Key holdings

Practitioner summary

The court held that 10 U.S.C. sec. 1408 (the USFSPA), enacted to reverse McCarty v. McCarty, 453 U.S. 210 (1981), was intended only to return courts to their pre-McCarty position and does not create new rights to alter final decrees issued before McCarty; the former wife's rights were therefore the same as before McCarty and the statute afforded no basis to reopen the 1971 decree. Under Nevada choice-of-law principles, the wife's rights were governed by the law of the marital domicile at divorce - Michigan (Wicker v. Wicker, 85 Nev. 141, 451 P.2d 715 (1969)) - an equitable-distribution jurisdiction where military pensions may, but need not, be divided. The claim was also barred by res judicata, which prevents relitigation between the same parties and bars matters that might have been presented in the first action but were not (McGinn v. McGinn, 337 N.W.2d 632 (Mich. App. 1983)); both parties were represented by counsel in 1971 and could have raised or appealed the pension omission (see York v. York, 99 Nev. 491, 664 P.2d 967 (1983)). The dismissal was affirmed.

In plain language

Robert Tomlinson served in the military starting in 1941 and married Rosemary in 1946. A Michigan court granted Rosemary a divorce in 1971. That divorce judgment addressed alimony, child support, and property division, but it said nothing about Robert's military pension. In 1985 - fourteen years after the divorce - Rosemary filed a new complaint in Nevada seeking 41 percent of Robert's military retirement pay. The district court dismissed her complaint, and the Nevada Supreme Court affirmed. Rosemary relied on a federal law (the Uniformed Services Former Spouses Protection Act) that Congress passed to let state courts divide military pensions after a 1981 U.S. Supreme Court decision (McCarty v. McCarty) had said they could not. But the Nevada court explained that Congress intended only to restore the law to where it stood before McCarty, not to create new rights to reopen final divorce decrees issued before McCarty. So the federal statute gave Rosemary no power to reopen her 1971 decree. The court also held that Rosemary's claim was barred by res judicata. Her rights would be governed by Michigan law (the marital home at the time of the divorce), and although Michigan now allows military pensions to be divided as marital assets, that does not mean they must be. More importantly, both parties had lawyers in 1971 and Rosemary could have raised the pension then or on appeal. Because she did not, she was barred from raising it in 1986.