Hadrych v. Hadrych , 140 N.M. 829 ( 2006 )

ROBINSON, Judge

(specially concurring).

{22} I have chosen to specially concur because this ease presents an opportunity to look at what might be described as the larger picture. In trying to analyze this case, I was impressed with the case of In re Marriage of Pierce, 26 Kan.App.2d 236, 982 P.2d 995 (1999). That divorce case went against our holding here. In Pierce, the Kansas Court of Appeals held that, under much the same fact pattern as our case, a state trial court had no jurisdiction over disability benefits received by a veteran and could not order the husband (the veteran) to change the payment back to retirement benefits and also could not order him to pay his disability benefits to his wife. Id. at 998. Then, the Kansas court said something really interesting: “We eon-elude the court may not do indirectly what it cannot do directly.” Id.

{23} The Kansas court held that the trial court had no method of granting relief to the wife. Id. That is exactly the opposite of what we are holding here. While Pierce is a minority decision, its reasoning seemed to make sense to me — a somewhat technical analysis, but a correct one. We do this every day.

{24} Then, I reread the Opinion in our case again. I had been concerned that it repeatedly reasoned that not allowing the husband to waive his retirement payments and switch to disability benefits was simply not “fair” to the wife and not “reasonable.” The Opinion repeats this language several times.

{25} After further rumination, I have reached a different conclusion. What the Opinion does is precisely what we should be doing. We should be doing what is fair and reasonable. That is what justice is all about — fair and reasonable, not just technically workable or correct.

{26} I, therefore, concur.