Ruth Andresen seeks to share in her husband Ralph's military retirement pay. She was denied this relief when the trial court dismissed her motion to modify a decree of divorce.
Ruth and Ralph were divorced in Maryland on November 13, 1981, after some forty years of marriage. The decree of divorce incorporated a handwritten settlement agreement between the parties which provided the following: Ralph would pay Ruth $500 in alimony per month for five years, Ralph would contribute $425 toward Ruth's attorney's fee, and the parties would divide the cost of the divorce action. Neither the settlement agreement nor the divorce decree contained any provisions relating to Ralph's military pension.
On June 26, 1981, the United States Supreme Court ruled that, as a matter of federal law, courts could not subject military retirement pay to division upon divorce. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). We applied this ruling in Hill v. Hill, 291 Md. 615, 621, 436 A.2d 67, 70 (1981). On the other hand, in Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981), we held that, as a matter of Maryland law, all pensions and retirement benefits accruing during the marriage were marital property. In the Deering opinion, 292 Md. at 117 n. 2, 437 A.2d at 884-885 n. 2, we specifically noted that military pensions were controlled by federal law, citing the Supreme Court decision in McCarty v. McCarty, supra and our own decision in Hill v. Hill, supra.
Thus, at the time the Andresens divorced, had the trial court been asked to consider the status of Ralph's military pension, both the Hill and McCarty decisions would have mandated awarding the pension entirely to Ralph under the controlling federal law.
Shortly after the Andresens' divorce became final, changes in federal statutory law permitted courts to consider military pensions as marital assets for distribution in divorce proceedings. About four years later, on March 12, 1986, Ruth, based solely on these changes in the law, filed in the Circuit Court for Montgomery County a motion to modify the 1981 divorce decree to allow her to share in Ralph's pension proceeds. Ruth's motion failed to specify what procedural mechanism, if any, authorized the court to disturb the finality of the more than four-year-old divorce decree.
Ralph moved to dismiss and after hearing argument Judge William M. Cave granted Ralph's motion. Ruth appealed this result to the Court of Special Appeals, but we granted certiorari prior to argument in the intermediate appellate court to consider whether the motion to dismiss was properly granted.
We shall set forth the changes in the law which Ruth asserts constitute sufficient justification to reopen the final divorce decree to allow her to share in Ralph's military pension benefits. As alluded to earlier in this opinion, in McCarty, the Supreme Court held that military retirement benefits could not be distributed as community or marital property in state court divorce proceedings. In response to the McCarty decision, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) on September 8, 1982, codified in pertinent part at 10 U.S.C. § 1408(c)(1), effective February 1, 1983. The USFSPA provides:
The purpose of this act was underscored by the Senate Report which stated:
Senate Report No. 97-502, July 22, 1982, reprinted in 1982 U.S.Code Cong. & Admin.News, 1555, 1596, 1611.
In essence, pursuant to the USFSPA, Maryland law was to determine whether military pensions were marital property. And, under Maryland law, as construed in Deering v. Deering, supra, pensions generally, including military pensions, are marital property. Moreover, this was confirmed by the General Assembly which, in Ch. 159 of the Acts of 1983, § 2, now codified as Maryland Code (1984), § 8-203(b) of the Family Law Article, stated that "[i]n this subtitle, a military pension shall be considered in the same manner as any other pension or retirement benefit."
Not only did Congress in the USFSPA intend to overrule the Supreme Court's McCarty decision and provide that state law should determine whether military pensions are marital property, but the legislative history reveals that Congress intended that the USFSPA be retroactive.
And later, the report explains (id. at 1611):
The congressional contemplation concerning the reopening of decrees comports with Rule 60(b) of the Federal Rules of Civil Procedure.
Consequently, unlike the law in the great majority of states, Maryland law contains no procedural mechanism which would allow a Maryland court to reopen a divorce decree finalized for more than four years. There is no authority under Maryland law which permits a court to redetermine marital property more than 30 days after the decree becomes enrolled except under specific circumstances. Subsection (b) and (d) of Maryland Rule 2-535 authorize a judgment to be revised only in case of fraud, mistake, irregularity or clerical errors.
For example, in Platt v. Platt, 302 Md. 9, 485 A.2d 250 (1984), we considered a husband's petition to amend a five-year-old enrolled divorce decree. Chief Judge Murphy, writing for the Court, held that the trial court lacked power to revise the decree. In so doing, he succinctly summarized the controlling principles:
Id. at 13, 485 A.2d at 252.
In the present case, there is neither an allegation, nor the factual basis for an allegation, that fraud, mistake, irregularity, or clerical error justify reopening the divorce decree.
We are aware that many state courts have reopened finalized divorce decrees to allow the former spouse to share in military pension benefits pursuant to the USFSPA. The cases, however, are in those jurisdictions having provisions like Federal Rule 60(b)(5) and (6) or in jurisdictions where the law provides broad powers to reopen final judgments.
For example, in Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983) the Delaware court sustained a wife's motion to reopen an 18-month-old divorce decree to consider, in light of the USFSPA, the award to the husband of his military pension as mandated by McCarty. Key to the Smith court's decision was a Delaware procedural rule permitting relief from a final judgment where "it is no longer equitable that the judgment have prospective application; or ... any other reason justifying relief from the operation of the judgment." Id. at 713. To the same effect is Flannagan v. Flannagan, 42 Wn.App. 214, 222, 709 P.2d 1247, 1252 (1985), rev. denied, 105 Wn.2d 1005 (1986) (applying a similar procedural rule to reopen a McCarty era decree). See In re Marriage of Waters, 223 Mont. 183, 724 P.2d 726 (1986); Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984); Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (N.M.Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984). See also Thorpe v. Thorpe, 123 Wis.2d 424, 367 N.W.2d 233 (Wis.App. 1985).
In jurisdictions where the law concerning the reopening of final judgments is similar to Maryland law, however, courts have held that divorce decrees, which became final during the McCarty era, cannot be reopened. In Allison v. Allison, 690 S.W.2d 340, 344 (Tex. App. 1985) (no writ of error, 700 S.W.2d 914), the Texas Court of Appeals stated:
In In re Marriage of Quintard, 691 S.W.2d 950, 953 (Mo. App. 1985), the Missouri intermediate court expressed a similar view.
There seems to be little doubt that Congress intended the USFSPA to be retroactive. If this case had arisen earlier, if the divorce decree had still been interlocutory, and if all of the requirements of the USFSPA had been met,
Under Maryland law, Ruth Andresen has established no grounds upon which the trial court's final judgment may be reexamined. Consequently, we affirm the trial judge's dismissal of Ruth's motion to modify.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. PETITIONER TO PAY THE COSTS.
The following states have adopted substantial equivalents of both FRCP 60(b)(5) and 60(b)(6): Alabama, Rule of Alabama Supreme Court 60(b)(5) and (6); Alaska, Alaska Civil Rule 60(b)(5) and (6); Arizona, Arizona Rule of Civil Procedure 60(c)(5) and (6); Colorado, Colo. Rule of Civil Procedure 60(b)(4) and (5); Delaware, Delaware Superior Court Civil Rule 60(b)(5) and (6); Hawaii, Hawaii Rule of Civil Procedure 60(b)(5) and (6); Idaho, Idaho Rule of Civil Procedure 60(b)(5) and (6); Indiana, Indiana Rule of Procedure Trial Rule 60(b)(7) and (8); Kansas, Kan.Civ. Proc.Code Ann. § 60-260(b)(5) and (6) (Vernon 1983); Kentucky, Kentucky Rule of Civil Procedure CR 60.02(e) and (f); Maine, Maine Rule of Civil Procedure 60(b)(5) and (6); Massachusetts, Mass. Rule of Civil Procedure 60(b)(5) and (6); Michigan, Mich. Court Rule 2.612(C)(1)(e) and (f); Minnesota, Minn. Rule of Civil Procedure 60.02(e) and (f); Mississippi, See Stringfellow v. Stringfellow, 451 So.2d 219 (Miss. 1984); Montana, Mont. Rule of Civil Procedure 60(b)(5) and (6); New Jersey, N.J.Civil Practice Rule 4:50-1(e) and (f); New Mexico, Rule of Civil Procedure for the District Courts 1-060(B)(5) and (6); North Carolina, N.C.Rule of Civil Procedure 60(b)(5) and (6); North Dakota, N.D.Rule of Civil Procedure 60(b)(v) and (iv); Ohio, Ohio Rule of Civil Procedure 60(B)(4) and (5); Rhode Island, Super.R.Civ.P. 60(b)(5) and (6); South Dakota, S.D.Rule of Procedure 15-6-60(b)(5) and (6); Tennessee, Tenn.Court Rules Ann., Rule 60.02(4) and (5); Utah, Utah Rule of Civil Procedure 60(b)(6) and (7); Vermont, Vermont Rule of Civil Procedure 60(b)(5) and (6); Washington, See Flannagan v. Flannagan, 42 Wn.App. 214, 222, 709 P.2d 1247, 1252 (1985), rev. denied, 105 Wn.2d 1005 (1986); West Virginia, W. Va.Rule of Civil Proc. 60(b)(5) and (6); Wisconsin, Wisc.Rule of Civil Procedure 806.07(1)(g) and (h); Wyoming, Wy.Rule of Civil Procedure 60(b)(5) and (6).
Although some of these states enumerate possible grounds for vacating judgments, discretion is reserved, either expressly or by court interpretation, to achieve this objective. New York and Virginia deserve special notice, as they reserve their court's inherent equity powers to vacate or modify any judgments in the interest of substantial justice.