Ratkowski v. Ratkowski ( 1985 )

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699 P.2d 1369 (1985) 108 Idaho 355
Joan A. RATKOWSKI, Plaintiff-Respondent,
v.
Eugene RATKOWSKI, Defendant-Appellant.
No. 14802.
Supreme Court of Idaho.
April 12, 1985.
*1370 E. Don Copple, Boise, for defendant-appellant.

Howard I. Manweiler, Boise, for plaintiff-respondent.

HUNTLEY, Justice.

Eugene Ratkowski appeals to this Court from a contempt ruling enforcing a 1979 judgment and decree of divorce. The decree provided that pursuant to a pre-decree agreement between the parties, husband would pay wife $325 a month (less than 1/2) of husband's military retirement benefits.^[1] Ratkowski had stopped paying his ex-wife that share, contending that federal law, through the supremacy clause of the United States Constitution, preempts the power of Idaho courts to treat an ex-serviceman's prospective military retirement benefits as community property. He contends that McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), acknowledged preemption, and ruled that military retirement benefits were not subject to division as community property. The McCarty decision invalidated Idaho's treatment of military retirement benefits as community property as formerly enunciated in Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975). As a result, Ratkowski contends that as to the devision of military benefits, the 1979 divorce decree decided on the basis of Ramsey is null and void.

We disagree, and affirm the trial court's ruling that Mr. Ratkowski was in contempt for failure to pay his ex-wife a portion of his military benefits. Nieman v. Nieman, 105 Idaho 796, 673 P.2d 396 (1983) is dispositive.^[2] There we concluded that the McCarty decision operated prospectively only, and did not render null and void decisions based on Ramsey and finalized prior to McCarty. In the instant case, the original divorce decree was finalized in 1979, some two years prior to McCarty.

Affirmed.

No costs or attorney fees.

DONALDSON, C.J., and SHEPARD and BISTLINE, JJ., concur.

BAKES, J., concurs in the result.

NOTES

[1] On April 21, 1981, the original decree was modified to provide that husband was to pay 1/2 of his military retirement benefits to wife.

[2] Inexplicably neither party cited this case in briefs or in oral argument, thus no costs are awarded.