No. 81-91
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN RE THE MARRIAGE OF:
DOROTHY McGILL,
Petitioner and Respondent,
and
WILLIAM WESLEY McGILL,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Ravalli
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Lee A. Jordan, Missoula, Montana
For Respondent:
Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana
Submitted on briefs: November 6, 1981
Decided: December 9, 1981
Filed: DEc 9 19w1
w
CLerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal by the husband from the property
distribution in the decree of the District Court of the
Fourth Judicial District, in and for the County of Ravalli.
This is the second time this cause has been before
this Court. See In re Marriage of McGill (1980), Mont.
, 609 P.2d 278, 37 St.Rep. 578. The fact situation set
forth in that opinion is satisfactory for our consideration
of this case in view of the fact that it is again necessary
to return this case to the District Court for reconsidera-
tion.
Although eight issues are raised on appeal, they can
be summarized in two issues: (1) What effect does McCarty
v. McCarty (1981), U.S. , 101 S.Ct. 2728, 69
L.Ed.2d 589, have on this case? (2) Did the the District
Court abuse its broad discretion in making the property
settlement?
Our first decision in this case was rendered on March
27, 1980. On June 26, 1981, the United States Supreme Court
reversed a California decision and held that the federal law
precludes a state court from dividing military retirement
pay pursuant to state community property laws. McCarty v.
McCarty (1981), - U.S. , 101 S.Ct. 2728, 69 L.Ed.2d
589. The Court held that there is a conflict between the
terms of the federal military retirement statutes and the
community property rights asserted by the respondent; that
the military retirement system confers no entitlement to
retirement pay upon a retired member's spouse, and does not
embody even a limited "community property" concept. Rather
that the language, structure, and the history of the
s t a t u t e s make c l e a r t h a t r e t i r e m e n t p a y c o n t i n u e s t o be a
personal entitlement t o the r e t i r e e . See a l s o , Sandoval v.
S a n d o v a l ( A r i z . A p p . 1 9 8 1 ) , 634 P.2d 405.
McCarty is d i r e c t e d a t C a l i f o r n i a and o t h e r community
property states, but the language of the opinion is
certainly broad enough to include noncommunity property
states. The C o u r t n o t e s , "Congress h a s determined that a
y o u t h f u l m i l i t a r y is e s s e n t i a l t o t h e n a t i o n a l d e f e n s e ; it
i s n o t f o r S t a t e s t o i n t e r f e r e w i t h t h a t g o a l by l e s s e n i n g
t h e i n c e n t i v e t o r e t i r e c r e a t e d by t h e m i l i t a r y retirement
system." McCarty, 1 0 1 S . C t . a t 2742, 69 L.Ed.2d a t 607.
In the instant case, appellant's major asset is
$720.97 p e r month i n m i l i t a r y r e t i r e m e n t p e n s i o n , v a l u e d a t
$93,108.80. Therefore, this case is remanded to the
D i s t r i c t Court f o r exclusion of t h a t a s s e t .
The a p p e l l a n t a l s o c l a i m s t h e D i s t r i c t C o u r t e r r e d i n
failing to (1) order t h e home s o l d and t h e a s s e t s e q u a l l y
divided, ( 2 ) properly establish the wife's p r e s e n t income,
( 3 ) p r o p e r l y e v a l u a t e t h e f a m i l y home t o i n c l u d e i r r i g a t i o n
systems, etc., and (4) properly evaluate the insurance
proper t i e s and mortgage balance. These can all be
r e c o n s i d e r e d on r e t r i a l .
The judgment of t h e D i s t r i c t Court is reversed and
t h e c a s e remanded f o r f u r t h e r h e a r i n g s .
W e concur:
%A&
- Chief Justice