DAVIDSON, J., delivered the opinion of the Court.
On 11 September 1981, Case No. 19, Hill v. Hill, and Case No. 31, Rauth (Myers) v. Rauth, were argued before this Court. We shall consider these cases together because they both present the common question whether, under the Supremacy Clause of the United States Constitution,
Section 3-6A-05 (a) and (b) provide in pertinent part:
The record in Hill shows that the Appellant and Cross-Appellee, Mae H. Hill (wife), and the Appellee and Cross-appellant, Theodore R. Hill, Jr. (husband), were married in 1955. The husband served as an enlisted man in the United States Army from 1945 until his retirement in 1972. Upon his retirement, he became eligible for and received military retirement benefits.
On 30 November 1979, in the Circuit Court for Anne Arundel County, a decree was entered granting the wife an absolute divorce, alimony, counsel fees, and a monetary award pursuant to the provisions of § 3-6A-05. The trial court held that the husband's military retirement benefits were not subject to the provisions of that section and did not consider their value in determining the amount of the monetary award. The trial court, however, did consider the husband's interest in the military retirement benefits in determining the amount of alimony awarded to the wife.
The wife appealed to the Court of Special Appeals. Hill v. Hill, 47 Md.App. 460, 424 A.2d 779 (1981). That Court confined its inquiry to the question whether military retirement pay is "marital property" under § 3-6A.01(e). While the Court of Special Appeals recognized that "military retirement pay is an economic resource and may be considered in fixing the amount of alimony and child support," it held "that as a matter of state law ... military retirement pay is income and not `marital property' subject to division upon divorce." Hill, 47 Md. App. at 469, 424 A.2d at 783. In view of that decision, the Court of Special Appeals found it unnecessary to determine whether federal law precludes the division of military retirement benefits under § 3-6A-05. The Court of Special Appeals affirmed the trial court's judgment.
The record in Rauth shows that the Appellant, Lois F. Rauth (Myers) (wife), and the Appellee, James A. Rauth (husband), were married in 1961. The husband served as a commissioned officer in the United States Navy from 1961 until his retirement in 1979. Upon his retirement, he became eligible for and received military retired pay.
In the Circuit Court for Anne Arundel County, decrees were entered granting the wife, among other things, an absolute divorce and a monetary award pursuant to § 3-6A-05. The trial court held that under the Supremacy Clause, federal law precludes the division of military retired pay under § 3-6A-05 and did not consider its value in determining the amount of the monetary award.
The wife filed an appeal to the Court of Special Appeals. While that appeal was pending, the wife filed a petition for a writ of certiorari. We issued the writ to the Court of Special Appeals before consideration by that Court.
In McCarty v. McCarty, 453 U.S. 210, 1010 S.Ct. 2728 (1981), the United States Supreme Court considered the question whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws. After reviewing the language, structure, legislative history, and congressional intent of federal statutes relating to retired pay for military personnel, the Supreme Court concluded that there was "a conflict between the terms of federal retirement statutes and the community property right asserted...." In determining whether the "`consequences of that [community property right] sufficiently injure the objectives of the federal program to require nonrecognition,'" the Supreme Court found that "the application of community property principles to military retired pay threatens grave harm to `clear and substantial' federal interests." In reaching this conclusion, the Supreme Court said:
The Supreme Court held that the federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.
We recognize that the analysis in McCarty was premised on a division of property in a community property state, not an "equitable distribution" state such as Maryland.
No. 19, Hill v. Hill:
Judgment of the Court of Special Appeals affirmed.
Costs to be equally divided.
No. 31, Rauth (Myers) v. Rauth:
Judgment of the Circuit Court for Anne Arundel County affirmed in part and reversed in part.
Case remanded to that court for the entry of an order in accordance with this opinion.
Costs to be paid by appellant.
In addition, the Supreme Court vacated the judgment of the Supreme Court of Montana in In re Marriage of Miller, Mont. 609 P.2d 1185 (1980), vacated and remanded, Miller v. Miller, 453 U.S. 918, 101 S.Ct. 3152 (1981), in which it was held in an "equitable distribution" state that military nondisability retired pay was divisible. See Mont. Rev. Codes Ann. § 48-321 (1977). The case was remanded "for further consideration in light of McCarty v. McCarty," 453 U.S. at 213, 101 S.Ct. at 3152.
The Supreme Court considered and decided the sole question whether federal law (10 U.S.C. § 3911 et seq.) precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws.
In addition to the three basic forms of military retirement referred to in McCarty, 38 U.S.C. §§ 521-23 (1976 & Supp. III 1979) provides for pensions for veterans for nonservice-connected disability or death. We recognize that when Hill was pending in the Court of Special Appeals, the husband proffered, for the first time, that his military retirement benefits consisted of military nondisability retired pay and veterans' disability benefits. The Court of Special Appeals drew no distinction between these two types of benefits and confined its inquiry to the question "whether military retirement pay is `marital property'" under § 3-6A-05. The question whether federal law precludes the division of veterans' disability benefits was not specifically raised, briefed, argued or decided in either the trial court or the Court of Special Appeals. Accordingly, it will not be considered here. Md. Rule 885.