Norris v. Saueressig , 104 N.M. 76 ( 1986 )

WALTERS, Justice,

(dissenting).

I do not agree with the opinion of the Court of Appeals or this Court’s clarification of it and must, therefore, respectfully dissent.

The underlying opinion holds that “in 1965, the military retirement benefits did not constitute a community asset, and, therefore, were not subject to division.” (104 N.M. at 86, 717 P.2d at 62.) Clearly, that is an incorrect statement. LeClert, to which the opinions of both courts refer, was indeed decided in 1969, just as was Otto v. Otto, 80 N.M. 331, 455 P.2d 642 (1969), but LeClert and Otto dealt with military retirement benefits earned for periods of more than 20 and 30 years, respectively, before those cases were decided. Just because appellate decisions on the subject had not been written earlier, that fact could not, did not, and does not change the character of community property in existence prior to the decisions. They merely declared the already existing classification of such property.

The majority states that the McCarty opinion “effectively overruled LeClert,” but that Walentowski then “reinstated ‘the law as it was under LeClert.’ ” If that is so, it doesn’t matter that the parties here were divorced in 1965 and LeClert was decided in 1969, because their 1965 Property Settlement Agreement specifically provided, and the trial court found, that if there was community property not disposed of by that Agreement, the parties would own such property as tenants in common — which, by definition, means undivided ownership and possession (1 Bouvier’s Law Dictionary, 3d rev.), of which an owner may demand partition. The 1969 cases {LeClert and Otto) recognized that retirement benefits accruing prior to those decisions were community assets. The retirement benefit here, a recognized community asset, had not been divided in the 1965 Agreement. Our divorce statutes declare how community property shall be divided; thus, how community property, by agreement held “in common” after divorce, may and should be converted to separate property of the parties.

The Uniformed Services Former Spouses’ Protection Act may properly be held to apply retroactively to judgments final after the McCarty decision of June 26, 1981, but that has nothing to do, in my mind, with the status or character of community property in 1965, nor with the Court’s obligation to enforce the division of community property not disposed of at the time of divorce under the principles of community property law. LeClert, “reinstated” as good law by this Court, would mandate that “retirement pay which was earned during coverture [in LeClert, from 1949 to 1968] became property of the community,” and thus divisible between husband and wife.

I would reverse the trial court’s limitation of the wife’s share of those benefits from the date of her claim and direct a division of all retirement benefits paid to the husband from the date he began to receive them.